High Court of Punjab and Haryana, Chandigarh
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Samar Singh v. State of Haryana - CWP-4223-2006  RD-P&H 5175 (3 August 2006)
Civil Writ Petition No.4223 of 2006.
Date of decision : 23.8.2006.
Samar Singh ...Petitioner.
State of Haryana and others ...Respondents.
Coram: Hon'ble Mr. Justice J.S.Khehar.
Hon'ble Ms. Justice Kiran Anand Lall.
Present: Mr.Akshay Bhan,Advocate,for the petitioner.
Mr.Pankaj Gupta,Advocate,for respondents no.1 and 2.
Mr.Rameshwar Malik,Additional Advocate General,Haryana, for respondent no.3.
Kiran Anand Lall, J.
The petitioner is seeking a writ in the nature of certiorari for quashing of (i) letter dated 18.11.2005 (Annexure P4) vide which he and respondent no.4 were declared surplus by respondent no.2, and (ii) letter dated 24.2.2006 (Annexure P7) vide which an offer of appointment was, subsequently, given to him by respondent no.3.
Quashing of letter dated 18.11.2005 has been sought on the ground that respondent no.4 who was junior to the petitioner and had been declared surplus alongwith him, was, later, retained in service.
Undisputed facts are that respondent no.2 declared the petitioner and four other truck drivers as surplus. Particulars of these drivers, alongwith their seniority numbers, as per the seniority list, Annexure P3, are given below:-
Sr. No. Name/ Designation Seniority No.
i) Janeshwar Dass, Truck Driver 6
ii) Bhagwati Parshad, Truck Driver 7
iii) Samar Singh, Truck Driver 8
iv) Ram Kumar, Truck Driver 9
v) Ram Phal, Truck Driver 10
The truck-driver, Nirmal Singh, who was at Sr. No.4 in the seniority, had resigned from service with effect from 23.3.2006 i.e. after the petitioner and other four truck-drivers were declared surplus. Resultantly, Janeshwar Dass who was the senior most amongst the drivers declared surplus, was ordered to be retained in service.
The above facts find mention in para 7 of the written statement of respondents no.1 and 2, and these were not specifically denied by the petitioner, in his replication. Further case of respondents no.1 and 2 in the said para of the written statement is that Bhagwati Parshad (Seniority No.7), Ram Kumar (Seniority No.9) and Ram Phal (Seniority No.10), who had been declared surplus, were retrenched vide order dated 4.4.2006. The petitioner had, in the meantime, filed this petition. Therefore, his services could not be retrenched because of the stay order granted by this court. In other words, according to respondents no.1 and 2, no employee/ driver junior to the petitioner was retained in service.
To appreciate the controversy, it would be useful to reproduce below the contents of the corresponding para no.7 of the replication filed by petitioner, to the written statement of respondents no.1 and 2:- "7. That the contents of para No.7 of the written statement are wrong and hence denied. It would be pertinent to mention here that one car bearing No.HR- 70-3339 was working properly but due to malafide intention, the car was declared condemned only few days prior to the date fixed for hearing before this Hon'ble Court. Moreover, the following drivers of respondent No.2 are going to retire only within the ****
period of 2 years:-
Sr. No. Name of the Driver Date of retirement i) Sh.Mange Ram 31.1.2007
ii) Sh.Man Singh 31.1.2008
iii) Sh. Ram Dulare 31.5.2008
iv) Sh.Jarnail Singh 31.8.2008
This clearly shows that within two years all the drivers except one Sh.Janeshwar and the present petitioner will be retired from the service and the respondent No.2 will have to recruit the drivers afresh. It is further submitted that there are 8 vehicles in which 5 are of the respondent No.2 and 3 are in the HAIC R & T Centre, Murthal, Sonepat which is fully under the control of respondent No.2. The contents of para 7 of the writ petition are hereby reiterated." The said para, thus, contains two relevant averments. The first being to the effect that one car bearing No.HR-70-3339 was in working order but was intentionally declared condemned so as to deprive the petitioner of his rightful claim of continuation in service, and the other, to the retirement of four drivers (detailed in para 7 of the replication).
The fact that the car was in working order, is not an admitted fact.
Therefore, while exercising jurisdiction under Article 226 of the Constitution of India, it is not possible for this court to determine this disputed question of fact, and once that is so, the petitioner cannot claim any right, on the basis of the relevant averment made by him, in this regard. In so far as the other averment which pertains to the retirement of four drivers is concerned, the same, too, is not of any effect, for the decision of the ****
controversy involved in this petition, as dates of retirement of these (four) drivers are quite far-off and at present they are very much in service. As such, petitioner cannot claim accruel of any legal right to him, on the basis of retirements of these drivers which are to occur in future.
It is clear from the above mentioned facts that no employee/ driver, junior to the petitioner, has been retained in employment, by respondent no.2. That being so, the contention of learned counsel for the petitioner that respondent no.2 has not followed the policy of last come first go, lacks merit altogether, and resultantly no fault can be found with the impugned letter Annexure P4 vide which the petitioner was declared surplus. In so far as the other impugned letter dated 24.2.2006 (Annexure P7) is concerned, the same, it is clear, is an offer of fresh appointment for the post of driver made by respondent no.3, to the petitioner, on the terms and conditions specified therein. This respondent (no.3) has rightly pleaded in his written statement that he has nothing to do with the letter dated 18.11.2005, Annexure P4. It being not in dispute that the petitioner has not joined the job, offered to him by respondent no.3, he would be at liberty to agitate his alleged claim for protection of his pay being drawn by him while being in the employment of respondents no.1 and 2, or for any other right available to him in that capacity, after he joins service in response to the offer of appointment given to him by respondent no.3 vide letter dated 24.2.2006, Annexure P7.
Disposed of in the above terms.
(Kiran Anand Lall)
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