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PUNJAB & HARYANA HIGH COURT
M.M.Kumar and M.M.S.Bedi JJ.
Rajinder Kumar
Versus
State Of Haryana
Civil Writ Petition No. 7563 of 2005,
Decided On : APRIL 25, 2006
(i) Merely because a temporary employee or a causal wage worker is continued for time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. (Para 7)
(ii) No mandamus can be issued to legalise, which was initially not permissible by the Constitution or the Rules of service regulation recruitment. (Para 8)
(iii) Any entry into service by a method contrary to the provisions of Articles 14 and 16(1) of the Constitution have been considered illegal. (Para 11)
Appointment made itself in infraction of the rules or if it is in violation of the provisions of the Constitution, such an illegality cannot be regularised. (Para 11)
Service Law - Regularisation of Service - Intial appointment of the petitioner on the post was not in accordance with the procedure envisaged by the Rules - It has to be viewed as an illegality, which cannot be cured by the magic wand of regularisation. (Para 12)
Constitution of India, 1950 - Article 226 - Writ Jurisdiction - Writ of Mandamus - A mandamus could only be issued if a legal right exist in order to compel the respondent to fulfill his legal obligation. (Para 13)
Service Law - Regularisation of Service - Notification No. GSR 24/Const/309/3003 dated 1.10.2003 - Rights accrued to the daily wagers/temporary/adhoc employees in pursuance to the policy - Back door entrant cannot seek regularisation of his service on the basis of such policies or rules - Arguments that policies and the rules framed by the State permit regularisation as a mode of recruitment at the cost of those who are fully qualified and unable to exert any influence to gain back door entry, could not be accepted.
Service Law - Daily Wager - Regularisation of Service - Rejection of demand justice notice - Petitioner did not fulfill the requirement of the policy - Policy fixing date of coming in employment of preceding 7 years - Whether in view of Constitution Bench Judgment of Honble Supreme Court in case of Secretary, fixing a date of coming in employment is unfair and violative of Articles 14 and 16 of the Constitution? NO. Held; Question of regular appointment of such employees those having continued to work for 10 years or more in duly sanctioned posts have to be considered on merits in the light of the principles settled in Umadevi case. (Para 20)
Service Law - Where employees have been appointed by requisitioning the names from the employment exchange, should their services be regularised? No Held; when the requisition is sent to the Employment Exchange it clearly specify nature of employment. In these type of case the requisition is for employment on 89 days basis or by issuing advertisement in Press for employment on contractual basis. Such like requisitions or inviting applications for appointment on contractual basis or limited period also not be entitled to equation with those who have been selected and appointed in accordance with the selection process as provided by the rules consistent with Articles 14 and 16 (1) of the Constitution. (Para 19)
Service Law - Regularization of Service - Temporary or daily wagers - Follows Directions issued.
i) State of Haryana to ensure that process of regular recruitments are undertaken to fill up those vacant sanctioned posts where temporary employees or daily wagers are being now employed.
ii) State of Haryana and its instrumentalities shall take steps to regularise as one time measure the services of such employees as one time measure the services of such employees who have been appointed regularly in accordance with the mandate of the Supreme Court.
iii) State is further directed to grant exemption to the employees who are working on ad hoc basis in relaxation of the rules when recruitment on permanent posts is to be made.
M.M.Kumar, J.
1. On account of common questions of facts and law and the view taken by the Constitution Bench judgment of the Hon ble Supreme Court in the case of Secretary, State of Karnataka and Ors. v. Umadevi and Ors., we propose to decide these bunch of petitions, namely. C.W.P. Nos. 7563 of 2005, 7334 of 2005, 7569 of 2005, 728 of 2006, 1210 of 2006, 5651 of 2006, 5771 of 2006 and 5772 of 2006, by a common order. However, the facts arc mentioned mainly from two petitions i.e. C.W.P. Nos. 7563 of 2005 and 5771 of 2006. In C.W.P. No. 7563 of 2005, the petitioner has made prayer for quashing order dated 3.12.2004 (P-6) rejecting his demand justice notice on the ground that he was not in service prior to 31.1.1996 and he joined service as Tractor Driver on 1.5.1996.
2. Brief facts of the case are that the petitioner was appointed as a Tractor Driver on daily wage basis on 1.5.1996. His services were terminated on 30.11.1997. He approached the Labour Court and vide award dated 18.5.2001 (P-I), the Labour Court set aside his termination. He was granted continuity of service with full back wages. Thereafter, the respondents filed C.W.P. No. 9713 of 2002 against the aforementioned award, which has been admitted on 7.3.2002 without any interim directions. Accordingly, the respondents have paid the petitioner his back wages. On a reference received by the respondents, the case of the petitioner for. regularization of his services was considered by keeping in view the policy of the State Government, dated 1.10.2003 (P-4). Accordingly, it has been found that he did not fulfill the requirement of the policy as he was not appointed prior to 31.1.1996. It is appropriate to mention that the petitioner has placed reliance on policy instructions dated 7.3.1996, 18.3.1996 and 1.10.2003 (P-2, P-3 & P-4 respectively) beside challenging the constitutional validity of the policy instructions dated 10.2.2004 (P-5), which in fact is an amendment in the policy instructions dated 1.10.2003 (P-4). According to the amendment made on 10.2.2004 (P-5) in the policy instructions dated 1.10.2003 (P-4) only those daily wage employees who had completed three years of service on 30.9.2003 were to be regularised, subject to the condition that they were in service prior to 30.1.1996. The principal challenge is that once a period of three years for regularization of service of a daily wager has been laid down then fixing a date of coming in employment of preceding 7 years is unfair and violative of Articles 14 and 16 of the Constitution.
3. In C.W.P. No. 5771 of 2006, the petitioner, who was a Matriculate, has joined as a Water Pump Operator, Grade-II on 1.7.1992 in the Public Health Division, Kaithal. He worked as such up to 31.3.1994. Thereafter with effect from 1.4.1994 he was shifted as Mali-cum-Chowkidar. The prayer made in the aforementioned petition is for regularization of services of the petitioner by placing reliance on policy instructions dated 7.3.1996 (P-1) stating that those who have completed five years of service as on 31.1.1996 and were in. service on that date were entitled to be regularised on Class-Ill posts provided that they fulfill the requisite qualification. If a post in Class-Ill was not available then they were to be considered for regularization on a Class-IV post. On 18.3.1996 (P-2) another set of instructions were issued reducing the period of five years to three years of service by maintaining all other conditions. The services of the petitioner has been regularised on the post of Mali-cum-Chowkidar and his claim for regularization on the post of Water Pump Operator, Grade-II appears to have been rejected on 24.10.2005 (P-4). He filed C.W.P. No. 13394 of 2005, which was disposed of with a direction to the respondents to take a decision on the representation made by him and to pass a reasoned order. The representation has been considered by concluding that the petitioner had joined Public Health Department on 1.1.1991 as W
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