RSA No. 184 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 184 of 2009 Date of Decision: July 06, 2009 Laxman Dass ...........Appellant Versus Haryana State through Collector and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Hari Om Attri Advocate for the Appellant. ** Sabina, J. Plaintiff-Laxman Dass filed a suit for declaration, seeking regularization of his service. The suit of the plaintiff was dismissed by the Civil Judge (Junior Division) Hisar vide judgment and decree dated 28.3.2006. In appeal, the said judgment and decree were upheld by the learned Additional District Judge, Hisar vide judgment and decree dated 23.10.2008. Hence, the present appeal. The case of the parties, as noticed by the learned Additional Distinct Judge, Hisar in paras 2 and 3 of its judgment reads as under:- “ 2.The facts of the plaintiff's case, in brief, are that the plaintiff was working as part time sweeper since 1991-92 in the office of the Inspecting Officer, Agriculture Department, Haryana Agmark Lab. Hisar. During 10 years of his service, there is no complaint about his work and conduct. The plaintiff made requests and representations to defendants No. 2 to 5 for regularization of his RSA No. 184 of 2009 2 services in view of the Government Policy i.e. Regularization of Part time Group D employees” but without any action. The Hon'ble Punjab and Haryana High Court has directed the State Government to draw up a policy for regularization of the services of Group-D part time employees within three months and also to lay down the criteria and conditions vide which the eligible persons shall be entitled to hold post on regular basis, in its judgment dated 24.2.1998 delivered in CWP No. 15602 of 1997 titled Mange Ram and others vs. State of Haryana and others. The State Government in compliance of the above said judgment, laid down the policy vide C.S.No. 6/47/98-1 GSI dated 1.2.1999 for regularization of the services of group-D part time employees working in all the department on the terms and conditions mentioned in Annexure -I. It was averred that the plaintiff fulfills all the conditions required for appointment on regular post of sweeper cum chowkidar. The plaintiff also moved application to the Director of Agriculture, defendant No.3, though proper channel, requesting for considering his name for the post of Sweeper lying vacant in the office of defendant No.5 but his name has not been considered. The plaintiff, through his counsel, sent first legal notice dated 10.5.2001, second legal notice dated 1.10.2001 to the defendants but to no avail and hence the present suit seeking a decree to the effect that the plaintiff is entitled to be regularized on the post of Sweeper as per the State Government Police. Relief of permanent injunction was also sought to the effect that the defendants be restrained from terminating his RSA No. 184 of 2009 3 services till final decision of the suit. 3. On notice, defendants appeared and filed joint written statement contesting the suit of the plaintiff taking various preliminary objections that the plaintiff has no cause of action and locus standi to file the suit, the suit is not maintainable in the present form, the plaintiff is estopped by his own act and conduct and that the plaintiff has not come to the court with clean hands and has suppressed material facts and therefore is not entitled to any relief. It was averred that the plaintiff was directly appointed by Sh.Amandeep Singh, the then Inspecting Officer, Agmark Laboratory, Hisar without calling applications through Employment exchange or without obtaining the non availability certificate from Employment exchange and the appointment of the plaintiff as part time employee was in violation of the service rules and,therefore, the plaintiff can not claim any right against the defendants. The plaintiff does not fulfill the conditions laid down by the State Government in the policy issued on the directions of the Hon'ble High Court. The suit of the plaintiff is also premature. All other allegations were specifically denied and prayed that the suit be dismissed with costs.” On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to be regularized in the service as per the policy laid down by the State Government vide C.E.Hr.No.6/47/98-1GSI dated 1.2.1999?OPP 2. If issue No.1 is proved, whether the plaintiff is entitled for RSA No. 184 of 2009 4 permanent injunction restraining the defendants from terminating the service of the plaintiff?OPP 3. Whether the plaintiff has no locus standi and cause of action to file the present suit?OPD 4. Whether the suit of the plaintiff is not maintainable in the present form?OPD 5. Relief.” After hearing the learned counsel for the appellant, I am of the opinion that there is no merit in this appeal. Appellant was working as part time sweeper with the respondents since 1991-92. Plaintiff sought regularization of his service in terms of the policy of the State Government dated 1.2.1999. The said policy had been reproduced by the trial Court in para 8 of its judgment and it reads as under:- “Whenever a Group `D' post becomes available in some institution/department/ office of the State Government, where a part time employee is working and has completed atleast 5 years continuous service on the date of issue of these instructions he/she shall be given preference for being considered for regular appointment against the post subject to all other things vis-a-vis the other candidates being equal and further subject to his/her fulfilling the following conditions:- i) that the employee should have been recruited through the Employment Exchange or directly appointed by the appointing authority after obtaining the non availability certificate from the Employment Exchange; RSA No. 184 of 2009 5 ii)that the employee possesses the prescribed qualification for the post;and iii)that the work and conduct of such employee has been satisfactory.” After going through the evidence led by the parties, both the Courts have found that the appellant was given appointment without taking the non-availability certificate from the Employment Exchange. As per the policy in question, the appellant did not possesses the prescribed qualification for the post i.e. middle standard examination certificate. There was no vacant post with the respondents against which the appellant could be regularized. In these circumstances, both the Courts below have rightly dismissed the suit of the plaintiff. No substantial question of law arises in this regular second appeal which would warrant interference by this Court . Accordingly, this appeal is dismissed. ( Sabina ) Judge July 06, 2009 arya