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2019 DIGILAW 3383 (PNJ)

Mamman Ram v. State Of Haryana And Another

2019-12-19

SANJAY KUMAR

body2019
JUDGMENT Sanjay Kumar, J. - By order dated 23.06.2005, the Commissioner, Municipal Corporation, Faridabad, the second respondent, rejected the claim of the petitioner for regularization of his services under the regularization policy dated 01.10.2003. Assailing the same, he filed the present writ petition and sought a consequential direction to regularize his services w.e.f. 30.09.2003. 2. The petitioner claims to have entered the service of the Municipal Corporation as a daily-wage Beldar in September, 1993. The Government of Haryana notified its regularization policy on 01.10.2003, whereby employees who completed 3 years of service as on 30.09.2003 were held eligible to be regularized against Group-D posts. As his case was not considered for regularization despite his entitlement, the petitioner got issued legal notice dated 16.09.2004 to the Municipal Corporation. He then filed CWP-18730-2004 complaining of inaction on the part of the Municipal Corporation. This writ petition was disposed of on 14.12.2004, directing the authorities concerned to take a decision on the petitioner's legal notice within a timeframe. According to the petitioner, the Municipal Corporation passed an order dated 23.06.2005 rejecting his claim but a copy of the said order was not provided to him. It was only after he made an application under the Right to Information Act, 2005, in June, 2017, that he was communicated a copy of the said order. He then filed the present writ petition. 3. Perusal of the impugned order dated 23.06.2005 reflects that the Municipal Corporation conceded that the petitioner entered its service as a muster roll/daily-wage Beldar in May, 1995. According to it, daily-wage employees who were engaged before 31.01.1996 and had completed uninterrupted service of 3 years as on 30.09.2003, without a break in service in any year for more than one month, apart from having the requisite qualification, were alone entitled to regularization of their services in terms of the Government Policy dated 01.10.2003. As the petitioner had only passed 5th class and did not possess the requisite educational qualification vis- -vis the post of Beldar, i.e., middle pass (8th class pass), the Municipal Corporation held him ineligible for regularization under the aforestated policy. 4. As the petitioner had only passed 5th class and did not possess the requisite educational qualification vis- -vis the post of Beldar, i.e., middle pass (8th class pass), the Municipal Corporation held him ineligible for regularization under the aforestated policy. 4. The petitioner would however contend that even if the date put forth by the Municipal Corporation was taken into account, he was in service since May, 1995, and at that point of time, the relevant rules only required a person to be able to read and write to become eligible for appointment as a Beldar. The petitioner pointed out that the requirement of middle pass (8th class pass) for such appointment was introduced only in the year 1998 and therefore, the same could not be applied to his case. 5. The Municipal Corporation filed its written statement through its Secretary. Therein, he contended that the writ petition was liable to be dismissed on the ground of delay and laches. On the merits of the matter, he stated that the regularization policy of 2003 stood revoked after the decision of the Supreme Court in Secretary, State of Karnataka and others V/s Uma Devi, (2006) 4 SCC 1 . He however conceded that the rules relied upon by the petitioner were taken as guidelines by the Municipal Corporation but stated that fresh rules were framed in 1998 which required a pass in 8th class as the qualification to be appointed as a Beldar. He accordingly justified the rejection of the petitioner's claim vide the impugned order dated 23.06.2005. 6. Even going by the stand of the Municipal Corporation, the petitioner entered its service as a muster roll/daily-wage Beldar in May, 1995. Admittedly, at that point of time the Municipal Corporation was following the Haryana Municipal Services (Integration, Recruitment and Conditions of Service) Rules, 1982. Even if they were taken to be only guidelines, the written statement filed by the Secretary of the Municipal Corporation makes it clear that they were the only rules applicable at that point of time. As per the said rules, the qualification for appointment as a Beldar was mere ability to read and write and no more. It appears that the Haryana Municipal Corporation Employees (Recruitment and Conditions) Service Rules, 1998,were promulgated w.e.f. 30.09.1998, whereunder the qualification for appointment as a Beldar was stipulated as 8th class pass. As per the said rules, the qualification for appointment as a Beldar was mere ability to read and write and no more. It appears that the Haryana Municipal Corporation Employees (Recruitment and Conditions) Service Rules, 1998,were promulgated w.e.f. 30.09.1998, whereunder the qualification for appointment as a Beldar was stipulated as 8th class pass. As the petitioner entered the service of the Municipal Corporation long before the advent of these later rules, the question of applying the requirement prescribed therein to his case does not arise. His eligibility for appointment or regularization, as the case may be, has to be decided with reference to the date of his entry into service alone. This settled legal position was affirmed and applied by this Court in CWP-9899-1996, titled Ved Pal V/s Municipal Corporation, Faridabad, and others. The Order dated 03.01.2014 passed therein is placed on record. Perusal thereof reflects that a similar issue arose for consideration and this Court took note of the fact that the petitioner therein was working as a Beldar w.e.f. 15.06.1996 and the qualification for his appointment to the post at that point of time was merely ability to read and write. It was accordingly held that as he was appointed on 15.06.1996 and as per the rules applicable at that time, he was not required to pass 8th class, he was entitled to be appointed to the post and the Municipal Corporation was directed to consider his case for regularization in terms of the 2003 policy. This Court is informed that the aforestated judgment attained finality and was duly implemented by the Municipal Corporation. As the case on hand is identical in all respects to the aforestated case, which was accepted and acted upon by the second respondent-Municipal Corporation, which was the respondent therein, the question of taking a different view in the case of the petitioner does not arise. 7. As regards the issue of delay, it may be noted that it was the specific case of the petitioner that the order dated 23.06.2005, presently under challenge, was never communicated to him. Though he specifically raised this ground in the writ petition, the Secretary of the Municipal Corporation neither rebutted it nor contended to the contrary that the order was duly served upon him. Though he specifically raised this ground in the writ petition, the Secretary of the Municipal Corporation neither rebutted it nor contended to the contrary that the order was duly served upon him. In the absence of proof of service of the impugned order upon the petitioner at the relevant point of time, the delay on his part cannot be held against him to the extent of non-suiting him altogether. All the more so, keeping in view the circumstances obtaining and the level of education of the petitioner. It may also be noted that even if the regularization policy of 2003 came to be revoked after the judgment of the Supreme Court in Uma Devi, referred to supra, the inescapable fact remains that the petitioner's right thereunder to be regularized in service stood crystallized long before that and the Municipal Corporation cannot take advantage of its own error in denying him such relief by stating that the policy now stands abolished. That apart, it is not open to the Municipal Corporation to deny relief to the petitioner on such technical grounds having utilized his services all through. However, as the petitioner did not take steps to follow up the matter even after securing an order in his earlier writ petition, viz., CWP-18730-2004, and filed this writ petition only in the year 2017, he would not be entitled to arrears of the regular pay attached to the post, applying the law of limitation. 8. The writ petition is accordingly allowed setting aside the impugned order dated 23.06.2005. The second respondent-Municipal Corporation is directed to regularize the services of the petitioner notionally with effect from 01.10.2003 in terms of the 2003 policy. The monetary benefits of such regularization shall however be extended to him only from 3 years prior to the date of institution of this writ petition, viz., 08.08.2017. He shall therefore be entitled to such monetary benefits, including arrears of regular pay, w.e.f. 01.08.2014. Notional regularization of the petitioner's services from 2003 shall also be counted for the purpose of reckoning his retirement benefits but not for seniority. 9. In the circumstances, there shall be no order as to costs.