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2019 DIGILAW 3379 (PNJ)

Anil Kumar v. State Of Haryana And Others

2019-12-19

SANJAY KUMAR

body2019
JUDGMENT Sanjay Kumar, J. - The petitioner seeks a direction to the Haryana Power Generation Corporation Limited, the second respondent, to appoint him as an Upper Division Clerk (for short, 'UDC') as per the policy dated 05.07.2007 (Annexure P-1). He seeks such appointment, from the date when others similarly situated were appointed, along with the arrears of pay with interest thereon. These reliefs were sought consequent to his prayer to quash the letter dated 09.04.2015 (Annexure P20), whereby the Chief Engineer (Administration) of the second respondentCorporation rejected his request for appointment as a UDC. 2. The land belonging to the family of the petitioner was acquired for the purpose of the Thermal Power Project at Village Khedar in District Hisar. In terms of the policy of the Government, employment was to be provided to one member of each family, whose lands were acquired to the tune of 2 acres or more, in Class-III and Class-IV categories of posts. The petitioner applied for employment in terms of this policy. In July, 2011, the second respondentCorporation offered employment to 132 people from Village Khedar but the petitioner was not extended such benefit, though 17 kanals 7 marlas of his family's land had been acquired. Upon inquiry, he came to know that the Patwari of his village had furnished wrong information as to the extent of his family's land that had been acquired and after getting it corrected, he again submitted an application seeking employment. As no action was taken even thereafter, he got addressed legal notice dated 13.12.2011 to the second respondent-Corporation. He then filed CWP-6743-2012 agitating his grievance that no employment had been provided to him. The said writ petition was disposed of on 17.04.2012, directing the authorities concerned to consider his legal notice within a time frame and take an appropriate decision. As no decision was taken within the time stipulated, the petitioner initiated contempt proceedings in COCP-2933-2012. The same was dismissed as withdrawn on 06.10.2012, permitting him to file a fresh case with better particulars. He then filed COCP-3036-2012. However, during the pendency of this contempt case, he was offered appointment to the post of Lower Division Clerk (for short, 'LDC'), vide letter dated 22.01.2013. The contempt case was dismissed as withdrawn on 31.01.2013. The petitioner's grievance presently is that he ought to have been appointed as a UDC and not as a LDC. 3. He then filed COCP-3036-2012. However, during the pendency of this contempt case, he was offered appointment to the post of Lower Division Clerk (for short, 'LDC'), vide letter dated 22.01.2013. The contempt case was dismissed as withdrawn on 31.01.2013. The petitioner's grievance presently is that he ought to have been appointed as a UDC and not as a LDC. 3. It is the case of the petitioner that when the authorities sought information, vide letter dated 29.03.2012, and asked him to supply documents in support of his qualification, he replied on 03.10.2012 stating that the result of his one remaining paper of B.Sc. IInd year was still awaited when he deposited his documents earlier and as the result thereof had been declared, he should be treated as a Graduate. The petitioner made a representation on 03.04.2014 requesting that he should be considered for appointment as a UDC in terms of his qualification and eligibility. However, the same came to be turned down by way of the impugned letter dated 09.04.2015. 4. The Under Secretary of the second respondent-Corporation filed a written statement. Therein, he stated that the petitioner was not a Graduate by the time his case was considered and therefore, he could not be appointed as a UDC in terms of the qualification eligibility prescribed therefor. He however admitted that, by way of his letter dated 03.10.2012, the petitioner had informed the second respondent-Corporation that his result in the one leftover paper of B.Sc. IInd year had been declared. According to the Under Secretary, the petitioner's case was considered as per the qualification held by him at the time of his appointment, i.e., 29.06.2012. 5. The petitioner filed an additional affidavit in January, 2019, and placed on record Annexure P-26 to support his contention that the second respondent-Corporation had extended the benefit of upgradation to higher posts to Peons appointed under land-oustee category, basing upon their higher qualification. 6. At the outset, it would be relevant to note that in terms of the policy of the Government, employment is to be provided to one member from each family of land-oustees, whose land of 2 acres or more, was acquired for the Thermal Power Project at Village Khedar, District Hisar. 6. At the outset, it would be relevant to note that in terms of the policy of the Government, employment is to be provided to one member from each family of land-oustees, whose land of 2 acres or more, was acquired for the Thermal Power Project at Village Khedar, District Hisar. The first stage was to make a list of such families whose lands had been acquired and the second stage was to notify such families about the jobs available in Class-III and Class-IV categories in the power plant and the qualifications required for recruitment to these posts in about one/two years from then, so that such families could get their children to acquire the desired technical training or educational qualification so as to make them eligible. It is therefore clear that the qualifications of such persons aspiring for the posts were to be taken into account as obtaining on the date of consideration of their candidature for employment. That is the reason why time was given to the members of such families to acquire the requisite qualifications. In consequence, the eligibility of the petitioner to be appointed to one post or the other had to be reckoned by considering his qualification as on the date when the second respondentCorporation assessed his candidature for providing employment. Admittedly, at the point of time when he submitted his original application in 2007, the petitioner was still at the stage of appearing for his 10+2 examination. However, that was of no consequence, as his case did not come up for consideration till much later. 7. Though the second respondent-Corporation asserted in its written statement that the case of the petitioner was considered on 29.06.2012, it is an admitted fact that he was offered appointment as a LDC only under appointment letter dated 22.01.2013. Reference was made in the said appointment letter to the petitioner's application dated 25.08.2011 but there is no indication as to when the actual consideration of his candidature took place. In this regard, the chronology of events, set out supra, assumes great significance. 8. Be it noted that aggrieved by the inaction of the second respondent-Corporation, consequent to the order dated 17.04.2012 secured by him in CWP-6743-2012, the petitioner filed COCP-2933-2012. The said contempt case was withdrawn by the petitioner on 06.10.2012, reserving liberty to file a fresh contempt case with better particulars. 8. Be it noted that aggrieved by the inaction of the second respondent-Corporation, consequent to the order dated 17.04.2012 secured by him in CWP-6743-2012, the petitioner filed COCP-2933-2012. The said contempt case was withdrawn by the petitioner on 06.10.2012, reserving liberty to file a fresh contempt case with better particulars. Had it been the case of the second respondent-Corporation that it had already considered the petitioner's candidature by that date and that it had taken a decision to offer him appointment as a LDC, it would have brought the same to the notice of this Court and opposed the request of the petitioner to grant liberty to file a fresh contempt case. Admittedly, the second respondent-Corporation did not do so. Thereafter, the petitioner filed COCP-3036-2012 and the same remained alive till 31.01.2013, when it was dismissed as withdrawn owing to issuance of the appointment letter dated 22.11.2013. Significantly, the petitioner submitted letter dated 03.10.2012 to the second respondent-Corporation in the interregnum, wherein he stated that he had deposited all his documents of qualification on 29.06.2012 and that the result of his one paper of B.Sc. IInd year, which was in waiting, had also been declared and therefore, he should be given employment as per his qualification. He enclosed therewith the said result. 9. The second respondent-Corporation seems to have considered the petitioner's candidature for employment only after submission of the aforestated letter dated 03.10.2012, as is evident from the fact that it did not offer him appointment till January, 2013, and allowed his earlier contempt case to be withdrawn on 06.10.2012 with liberty to file a fresh one. The second respondent-Corporation therefore cannot justify its action in ignoring the Graduate qualification secured by the petitioner by that time. He was therefore entitled to be appointed as a UDC, and not as a LDC, on the strength of such qualification. 10. Annexure P-26 filed by the petitioner demonstrates that several Peons who were appointed as such in 2011 were granted upgradation by appointing them as LDCs in 2016 and 2017, based on their qualifications. There is no reason why the petitioner should be denied parity of treatment with them. All the more so, as the lapse in not considering his qualification and eligibility properly lies squarely at the door of the second respondent-Corporation. There is no reason why the petitioner should be denied parity of treatment with them. All the more so, as the lapse in not considering his qualification and eligibility properly lies squarely at the door of the second respondent-Corporation. However, given the fact that the petitioner accepted the lower appointment offered to him in January, 2013, and did not take any effective steps to challenge the action of the second respondent-Corporation, in not giving him employment in a higher post, till October, 2017, when he filed this writ petition, he cannot be given such benefit with retrospective effect. Doing so would adversely affect the seniority of those who were appointed in the interregnum and would also unjustly entitle him to benefits in relation to a post which he never held, partly due to his own lassitude. 11. The writ petition is accordingly allowed, setting aside the impugned letter dated 09.04.2015 whereby the petitioner's claim for appointment to the post of UDC was rejected. The second respondent-Corporation shall consider the petitioner eligible for appointment as a UDC basing on his qualification which was secured in the year 2012 and upgrade him to the post of UDC prospectively. 12. In the circumstances, there shall be no order as to costs.