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UDEY BHAN YADAV versus STATE OF HARYANA & ORS

High Court of Punjab and Haryana, Chandigarh

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UDEY BHAN YADAV v. STATE OF HARYANA & Ors - CWP-17648-2003 [2005] RD-P&H 215 (28 October 2005)

C.W.P. No.17648 of 2003

.....

Udey Bhan Yadav

v.

State of Haryana and others

.....

Present: Mr. Rajesh Garg, Advocate for the petitioner.

Mr. Anil Rathee, Additional Advocate General, Haryana for the respondents.

.....

S.S. Saron, J.

The petitioner in this petition under Article 226/227 of the Constitution of India prays for regularization of his services and for quashing the order dated 22.10.2003 (Annexure-P.6) whereby his claim for regularization of his services has been rejected.

The petitioner was initially engaged as a daily wage Mazdoor in the Haryana Textbooks Press on 8.2.1993. Since then it is stated that he has been working regularly without there being any break and has completed more than 240 days of service in each year. The petitioner earlier represented for regularization of his service. The respondents while rejecting the claim of the petitioner for regularization at the same time applied for permission to retrench the C..W.P. No.17648/2003

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petitioner and 23 others. However, the said request of the respondents seeking retrenchment was declined by the specified authority on 10.12.2000. The petitioner, therefore, again on 17.1.2001 (Annexure- P.2) represented for regularization of his service and payment of salary in the regular scale. There being inaction on the part of the respondents, he filed Civil Writ Petition No.3242 of 2002 which was disposed of by this Court on 21.2.2002 with a direction to the respondents to consider the representation dated 17.1.2001 and dispose of the same within six months keeping in view the Full Bench judgment of this Court in the case of Vijay Kumar and others v.

State of Punjab and others, (CWP No.14050 of 1999), decided on 13.12.2001. The respondents rejected the claim of the petitioner as made in his representation vide order dated 3.7.2002 (Annexure-P.3). The petitioner then filed Civil Writ Petition No.13649 of 2002 impugning the order dated 3.7.2002. The said writ petition was disposed of by this Court on 1.9.2003 (Annexure-P.5). The learned counsel appearing for the respondent-State submitted that in view of the averments made in the said additional affidavit dated 30.6.2003 particularly Annexure-P.1 to the additional affidavit that the case of the petitioner for regularization of his services shall be considered by the respondents in accordance with C..W.P. No.17648/2003

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the policy. The writ petition was disposed of with a direction to the respondents to pass appropriate orders in the light of the submissions made in the said writ petition. In consequence of the order dated 1.9.2003 (Annexure-P.5) passed by this Court, the respondents rejected the claim of the petitioner vide impugned order dated 22.10.2003 (Annexure-P.6) which, as already noticed, is assailed in this petition.

On notice of motion, written statement has been filed by Controller, Printing and Stationery Department, Haryana on behalf of the respondents. It is stated that the claim of the petitioner was not found to be as per the conditions laid down in the regularization policy of the State Government dated 7.3.1996 and subsequently modified on 18.3.1996. The grounds for rejection of the claim of the petitioner was that he did not complete three years of service on 31.1.1996 as required under the said policy notwithstanding the fact that he had worked for minimum 240 days in each year. The condition of completing three years of service on 31.1.1996 and working for a minimum period of 240 days in each year, it is stated, were two distinct and simultaneous conditions rather than one being substitute of the other. It is stated that both the conditions were required to be fulfilled independently of each C..W.P. No.17648/2003

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other. It is submitted that the claim of the petitioner could only be entertained under the specific policy of the State Government laid down in this regard. The petitioner, it is stated, was engaged as a daily wages Mazdoor on daily wages and he has never been appointed against a regular sanctioned post of Mazdoor. Since he is working on daily wages, it is stated that he has rightly been paid the daily wages as per rates fixed by the Deputy Commissioner, Panchkula. It has been denied that the petitioner fulfilled all the eligibility conditions under the policy instructions. The petitioner, it is stated, started his service as daily wages worker on 8.2.1993 and thus on 31.1.1996 he had not completed three years of service which is the condition under the regularization policy.

Therefore, even though the petitioner has completed 240 days of service in each year the condition of three years service, it is stated, has not been fulfilled.

The petitioner filed replication to the written statement of the respondents wherein the stand taken by the respondents is stated to be absolutely misleading as one of the co-employees of the petitioners, namely, Hari Dutt, who was appointed on daily wages on 1.5.1993 i.e.

almost three months after the appointment of the petitioner, have been regularized. The copy of the order showing the dates of appointment of C..W.P. No.17648/2003

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the petitioner and Hari Dutt has been appended as Annexure-P.7 and copy of the order dated 23.5.1997 regularizing the services of said Hari Dutt by showing his date of appointment as December 1992 is appended as Annexure-P.8.

The respondents have filed a rejoinder to the replication in which it is stated that the said Hari Dutt was initially appointed as daily wage worker in September 1985 and thereafter he was on the rolls of the department intermittently as daily wage worker till his services were regularized in the month of May 1997. Annexure-R.1 showing the attendance report of Hari Dutt during the year 1985 has been placed on record.

Mr. Rajesh Garg, learned counsel appearing for the petitioner, submits that the services of the petitioner are liable to be regularized and the rejection of the claim of the petitioner on the ground that he had not completed three years of service as on 31.1.1996 as he was engaged on 8.2.1993, is not sustainable in view of the fact that the person should have worked for 240 days in each calendar year irrespective of the fact that the person had not worked for 12 calendar months in that particular year. It is contended that a person is liable to be regularized if he fulfils the condition of 240 days in each calendar C..W.P. No.17648/2003

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year without there being any break of more than 30 days after his engagement. In support of his contention, learned counsel has placed reliance on a Division Bench judgment of this Court in the case of Ramdhari v. The Chief Wild Life Warden, Haryana, 1996 (1) RSJ

246. It is further submitted that the petitioner is better placed than Hari Dutt who is a co-employee of the petitioner inasmuch as he was appointed three months after the petitioner which is apparent from Annexure-P.8 and his service's have been regularized vide office order dated 23.5.1997(Annexure-P.8).

In response, Mr. Anil Rathee, learned Additional Advocate General, Haryana appearing for the respondents submits that the petitioner was appointed on 8.2.1993 and he has not completed three years of service as on 31.1.1996 which was/is the requirement of the policy instructions dated 7.3.1996 as modified on 18.3.1996.

Therefore, the petitioner is not entitled to be regularized in service.

Insofar as the case of Hari Dutt is concerned it is submitted that he was engaged on daily wage basis in 1985 and his attendance report Annexure-R.1 clearly shows the engagement in 1985.

We have given our thoughtful consideration to the respective contentions of the learned counsel appearing for the C..W.P. No.17648/2003

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parties. The question that requires consideration is whether the petitioner is entitled to have his services regularized on the basis that he has completed 240 days of service in a calendar year even though he may not have completed three years of regular service as on 31.1.1996 from the date of his appointment on 8.2.1993.

The instructions dated 7.3.1996 and 18.3.1996 are to the following effect:-

"Letter dated 07.03.1996.

The Casual and Daily rated employees who have completed five years service on 31st January, 1996 and were in service on 31st January, 1996 and were in service on 31st January, 1996, shall be regularized provided they have worked for a minimum period of 240 days in each year and the break in service in any year is not more than one month at a time. Such employees who have worked on different posts having different designations in the same department shall also be regularized if they fulfil other conditions. On regularization, they shall be put in the time scale of pay applicable to the lowest Group `D' cadre in the Government and they would be entitled to all other C..W.P. No.17648/2003

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allowances and benefits available to regular Government Servants of the corresponding grade.

Letter dated 18.03.1996.

I am directed to refer to Haryana Govt. letter No.6/38/95-2GS1, dated 7th March, 1996 vide which Government had issued instructions that the services of those Work-charged/casual/ daily-rated employees who have completed 5 years service on 31st Jan., 1996 and fulfil other conditions laid therein, should be regularized.

This matter has further been considered and after careful consideration it has now been decided to regularize the services of all those work-charged/casual/daily-rated employees who have completed 3 years service on 31st Jan., 1996 and fulfil other conditions laid down in Haryana govt. letter of even number dated 7th March, 1996.

Accordingly, Government instructions issued C..W.P. No.17648/2003

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vide letter of even number dated 7th March, 1996 should be considered as modified to the extent that the work-charged/casual/daily- rated employees with 3 years service on 31st January, 1996 instead of 5 years on 31st January, 1996, shall be eligible for

regularization."

In terms of the instructions dated 7.3.1996, the services of the casual and daily rated employees, who had completed five years of service as on 31.1.1996 were to be regularized provided they had worked for a minimum period of 240 days in each year and the break in service in any year was not more than one month at a time. In terms of the subsequent instructions dated 18.3.1996, the period of five years was reduced to three years and the other conditions as laid down in the instructions dated 7.3.1996 were maintained.

In Ramdhari's case (supra), a Division Bench of this Court considered an earlier policy of the Government of Haryana dated 27.5.1993 which enjoins that all daily wages employees who had completed five years of service as on 31.3.1993 and were in service on the said date be considered for regularization. The said policy was C..W.P. No.17648/2003

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clarified subsequently and it was decided that daily wages employees who had completed 240 days service in a year should be regularized but the break in service could not be more than 30 days at a time during the year. The petitioner therein had rendered service from 1.6.1988 to 31.3.1993 and had worked more than 240 days in each year. As such the said petitioner had not completed five years of service which was the requirement for consideration for regularization. This Court held that in case the petitioner had put in 240 days of service in each of the preceding years prior to 31.3.1993 without any interruption he would be deemed to have completed five years of service and entitled to be regularized in terms of the government instructions dated 27.5.1993 read with the subsequent clarification. It was observed that by issuing the clarification to the earlier instructions, by a deeming fiction the State Government had provided that a workman who has rendered more than 240 days of service in a year would be deemed to have completed one year service. Reliance was placed on the Supreme Court decision in Mohan Lal v. The Management of M/s Bharat Electronics Limited, AIR 1981 SC 1253, wherein while interpreting the words "continuous service" in Section 25-B of the Industrial Disputes Act, 1947 (`Act' for short) had held that the said provisions C..W.P. No.17648/2003

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introduced a deeming fiction as to in what circumstances a workman could be said to be in "continuous service" for the purpose of Chapter-VA of the Act.

In the case in hand the perusal of the letter dated 7.3.1996 as modified vide letter dated 18.3.1996 would require for consideration to regularization of a daily rated employee who has completed three years of services on 31.1.1996 and was in service on the said date provided he has worked for a minimum period of 240 days in each year and the break in service in any year is not more than one month at a time.

Therefore, the requirement of completing three years service is to be considered in the context that the daily rated employee has worked for a minimum period of 240 days in each year and the break in service in any year is not more than one month at a time. If this is so then it is to be taken that the petitioner has been in continuous service of one year as contemplated by Section 25-B of the Act. This has been so held in Ramdhari's case (supra). The petitioner admittedly has worked continuously since 8.2.1993 and he has worked for a minimum period of 240 days in each year. Therefore, by deeming fiction the petitioner is deemed to have been in continuous service for three years preceding 31.1.1996 in the light of the observation of the Division Bench of this C..W.P. No.17648/2003

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Court in Ramdhari's case (supra).

It may also be noticed that a similarly situated employee as the petitioner, namely, Hari Dutt is shown to be an employee of the Panchkula Press on daily wages like the petitioner. The particulars as mentioned in Annexure-P.7 would show that the petitioner is at serial No.15 and is shown to have been working since 1.3.1993 and the total days is shown as 297 days. However, Hari Dutt is at serial No.22 and is indicated to be working since 1.5.1993 and the total days is shown as 246 days. However, vide order dated 23.5.1997 (Annexure-P.8) the services of Hari Dutt who is at Serial No.8 are to be regularized and his date of joining is shown as December 1992. The respondents have tried to justify the regularization of said Hari Dutt by stating that he was initially appointed as daily wages worker in September 1985 and thereafter he was on the rolls of the department intermittently as daily wages worker till his services were regularized in the month of May 1997 vide order dated 23.5.1997 (Annexure-P.8). However, the perusal of Annexure-R.1, which is the attendance report of Hari Dutt, would show that he joined on 12.9.1985 and he worked for 13 days in September

1985. Thereafter, it is shown that he worked for 20 days in October 1985, 21 days in November, 1985 and 7 days in December, 1985.

C..W.P. No.17648/2003

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It is not shown by the respondents as to how the date of joining of Hari Dutt, which is indicated as 1.5.1993 in Annexure-P.7, was changed to December 1992 while regularizing his services vide office order dated 23.5.1997(Annexure-P.8). Besides, in case said Hari Dutt has been working since September, 1985 as is the stand now taken by the respondents in the rejoinder to the replication, it is not shown why this period has not been indicated in the order dated 23.5.1997 (Annexure- P.8) while regularizing the services of said Hari Dutt. In the order dated 23.5.1997 (Annexure-P.8) the date of joining of Hari Dutt has been mentioned as December 1992. The position, therefore, is that the services of Hari Dutt, who is working in the same department i.e. the Printing Press, Haryana and joined two months after the petitioner have been regularized by showing his date of joining as December 1992 whereas the services of the petitioner have not been regularized.

Besides, it is not shown by the respondents as to how Hari Dutt's date of joining is shown as December 1992 when in fact in Annexure-P.7 he is shown to be working since 1.5.1993 for 246 days and the petitioner is shown to be working from 1.3.1993 for 297 days. Therefore, evidently there has been discrimination in respect of the petitioner vis- a-vis his co-employee Hari Dutt whose services have been regularized C..W.P. No.17648/2003

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even though he joined after the petitioner. Accordingly, it is held that the petitioner is deemed to be in continuous service for three years preceding 31.1.1996 as he had put in 240 days of service in each of the preceding three years prior to the said date without any interruption. Besides, the petitioner has been discriminated against vis-a-vis his co-employee as the services of the co-employee, namely, Hari Dutt, who was appointed two months after the petitioner, have been regularized.

Accordingly, the writ petition is allowed and the impugned order dated 22.10.2003 (Annexure-P.6) is quashed. The respondents shall consider the case for regularization of the services of the petitioner in terms of the policy instructions dated 7.3.1996 as modified by subsequent instructions dated 18.3.1996 and if found suitable in other respects, his services be regularized. There shall, however, be no order as to costs.

(S.S. Saron)

Judge

May 10, 2005. (S.S. Nijjar)

Judge

*hsp*


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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