IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 13053 of 2005 Date of decision: 06.01.2009 State of Haryana .....PETITIONER VERSUS Sube Singh and others ..... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. D.S.Nalwa, Addl. A.G. Haryana, for the petitioner. None for respondent No.1. *** AUGUSTINE GEORGE MASIH, J. (ORAL) The petitioner-State of Haryana has challenged the award dated 17.08.2004 (Annexure P-3) passed by the learned Presiding Officer, Industrial Tribunal-cum-Labour Court, Panipat. It is an admitted position that respondent No. 1-workman was employed as Beldar in the Forest Department in the month of January, 1985 on daily wage basis and continued in service till 29.10.1997 when his services were terminated. A demand was raised by the workman- respondent No. 1 before the Labour and Conciliation Officer. The matter having not been settled before the Labour and Conciliation Officer, the case was referred to the Labour Court for adjudication. On the basis of the evidence led by the parties, the impugned award dated 17.08.2004 CWP No. 13053 of 2005 -2- (Annexure P-3) came to be passed wherein the reference was answered in favour of the workman to the effect that the workman is entitled to reinstatement with continuity of service and full back wages from the date of his termination. Counsel for the petitioner contends that the workman was a daily wager and even if he has completed 240 days in one calendar year, the said workman is not entitled to be reinstated against a public post when the engagement of the workman was not in accordance with the Recruitment Rules and further after giving an opportunity to all eligible candidates. This would amount to violation of Articles 14 and 16 of the Constitution of India and the appointment being not in consonance with the provisions of Constitution, the award is not sustainable. Reliance has been placed on the decisions of the Hon'ble Supreme Court in the cases reported as Ghazibad Development Authority and another vs. Ashok Kumar and another, 2008 (4) SCC 261, Mahboob Deepak vs. Nagar Panchayat, Gajraula, (2008) 1 SCC 575, M.P. Administration vs. Tribhuwan, (2007) 9 SCC 748 and State of M.P. and others vs. Lalit Kumar Verma, (2007) 1 SCC 575 to contend that the posts under the State are required to be filled up in terms of the statutory rules governing the service by inviting applications from all eligible candidates and thereafter, on consideration of the same, the appointment can be said to be a valid appointment. It has been contended that the respondent-workman was engaged on daily wages without following the rules and principles of Articles 14 and 16 of the Constitution, therefore, even if the workman has completed 240 days of service, the said workman was not entitled to be reinstated and also for the grant of back wages. He further submits that even if persons junior to him have been retained, the retention of such CWP No. 13053 of 2005 -3- juniors will not confer any right in favour of the workman to be reinstated. For making this submission, reliance has been placed by a judgment of the Hon'ble Supreme Court in Jaipur Development Authority vs. Ramsahai and another, (2006) 11 SCC 684. None has put in appearance on behalf of the respondent- workman. With the able assistance of the counsel for the petitioner, I have gone through the records of the case as well as the impugned award dated 17.08.2004 (Annexure P-3) passed by the Presiding Officer, Industrial Tribunal-cum-Labour Court, Panipat. I am of the opinion that the workman was engaged against a public post on daily wage basis. Such engagement was not in terms of the statutory Recruitment Rules applicable to the post which would have required giving opportunity to all eligible candidates to apply and to be considered for appointment. Therefore, the workman cannot be ordered to be reinstated. Still further, the retention of juniors will not confer any right on the workman to be reinstated as illegality in continuing to engage a daily wager will only mean perpetuating an illegality. In Jaipur Development Authority's case (supra), the Hon'ble Supreme Court has held that even in case of breach of the provisions of Section 25- G and 25-H of the Act, the workman cannot be ordered to be reinstated. In view of the above, the award granting reinstatement and back wages to the workman-respondent No. 1 is not sustainable. Consequently, the impugned award dated 17.08.2004 (Annexure P-3), is set aside. As the workman has worked for sufficient long period as well as a person is said to have been appointed on his place and has been retained, I deem it appropriate to grant compensation amounting to Rs. 90,000/- to settle equities between the parties in the light of the judgment passed by the Hon'ble Supreme Court in Telecom District Manager and CWP No. 13053 of 2005 -4- others vs. Keshab Deb, 2008 (4) SCT 33. This writ petition is allowed in above terms. The petitioner is directed to pay compensation of Rs. 90,000/- to the respondent-workman within a period of four months from the date of receipt of a copy of this order. ( AUGUSTINE GEORGE MASIH ) JUDGE January 06, 2009 pj Whether referred to Reporters......................Yes/No.