C.W.P.No.14211 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.14211 of 2009 Date of Decision:- 17.05.2011 Malkiat Singh ....Petitioner(s) vs. State of Punjab and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.D.R.Bansal, Advocate, for the petitioner. Ms.Monica Chhibbar Sharma, DAG, Punjab, for respondent No.1. Ms.Jaspal Kaur Gurna, Advocate, for respondents No.2 and 3. *** AUGUSTINE GEORGE MASIH, J. (Oral) The petitioner was appointed as a Chowkidar on daily wages on 4.9.1986. He continued to serve the respondent-Punjab State Civil Supplies Corporation (hereinafter referred to as 'the Corporation') when his services were terminated on 3.5.1988. The petitioner challenged his termination by submitting a demand notice which was referred to the Labour Court for adjudication. The Labour Court, Bathinda vide its award dated 22.7.2002 held the order of termination to be illegal and reinstated the petitioner in service with all consequential benefits. In compliance with the award, the petitioner reported for duty and he was taken back in service on 11.9.2002. This C.W.P.No.14211 of 2009 -2- order of the Labour Court, Bathinda was challenged by the respondent- Corporation in the High Court by filing CWP No.7294 of 2003. The writ petition was dismissed on 16.8.2004. The petitioner submitted a claim for regularization of his services from the date his junior was regularized i.e. with effect from 1.1.1997. When the said representation was not decided by the respondent- Corporation, a legal notice dated 18.9.2004 was served by the petitioner on them. Receiving no response, the petitioner was forced to file CWP No.4464 of 2005 which was disposed of by this Court vide order dated 21.3.2005 (Annexure P-3) directing the respondent-Corporation to consider the representation/notice of the petitioner within a period of three months. In the year 2007, order dated 28.5.2007 was passed by the respondent- Corporation regularizing the services of the petitioner. The petitioner felt aggrieved as according to him he was entitled to regularization of his services with effect from 1.1.1997 the day when his junior, namely, Darshan Singh was regularized. He again served a legal notice on 17.9.2007 (Annexure P-5) claiming his right of regularization from the date above mentioned. To this, the respondent- Corporation responded by stating that the petitioner, who was earlier working as a daily wage Chowkidar, was retrenched from service but was taken back in service in compliance with the award passed by the Labour court dated 22.7.2002. The Punjab Government vide its decision dated 13.5.2002 abolished all direct quota posts lying vacant with effect from 30.4.2002 and likely to fall vacant in future. As there was no post of Chowkidar available in District Ferozepur, the services of the petitioner could not be regularized with effect from 1.1.1997. It was the further C.W.P.No.14211 of 2009 -3- contention of the respondent-Corporation that the process for revival of the posts has been initiated with the Government but till date, no sanction has been received and the claim of the petitioner shall be considered as and when an appropriate sanction is received and decision would be taken accordingly as per the policy prevalent then. The petitioner moved this Court for claiming regularization with effect from 1.1.1997, the date his junior Darshan Singh stood regularized vide order dated 18.6.1998 (Annexure P-2) through the present writ petition. Upon notice having been issued, respondent-Corporation has responded by relying on the same grounds as were taken in response to the legal notice served by the petitioner which has been referred to above to contest the claim of the petitioner. I have heard counsel for the parties and have gone through the records of the case. The facts as have been narrated above are not in dispute. The question which requires consideration by this Court is whether the petitioner is entitled to claim regularization of his services from the date admittedly person junior to him, namely, Darshan Singh stands regularized and whether the stand of the respondents that the claim of the petitioner would be considered after the revival of the posts which stood abolished in 2002 on the basis of the instructions which would be holding the field and prevalent at that time. Right of regularization can be claimed by an employee on the basis of the instructions which are required to be implemented equally to all the employees. Articles 14 and 16 of the Constitution of India too give a C.W.P.No.14211 of 2009 -4- right to a senior to consideration of his right prior to a junior if all other things are equal. It is not in dispute that the petitioner was working as a Chowkidar similarly as Darshan Singh, whose services have been regularized with effect from 1.1.1997 vide order dated 18.6.1998. It is also not in dispute that Darshan Singh was junior to the petitioner as a Chowkidar. One of the grounds which have been taken for denying the benefit of regularization to the petitioner with effect from 1.1.1997 is that when the order dated 18.6.1998 was passed regularising the services of Darshan Singh, the petitioner was not in service. That would not be a ground available to the respondents in the light of the Award dated 22.7.2002 passed by the Labour Court according to which the petitioner was entitled to reinstatement in service with all consequential benefits which would include seniority as well. If the petitioner is to be treated as in service from the date of his initial appointment, ignoring the order of termination which has been held to be illegal, he stands senior to Darshan Singh and, therefore, had a prior right of consideration for regularization of his services. It is not in dispute that the petitioner fulfilled the requirements for consideration and regularization of his services on the date when Darshan Singh was ordered to be regularized with effect from 1.1.1997. In this view of the matter, the contention of the respondents that the petitioner not being in service on 18.6.1988, disentitles him to the right of regularization from the date of his junior cannot be sustained. That apart, once the order of termination has been set aside and even the challenge to the award passed by the Labour Court rejected by this Court, which order has not been challenged further by the Corporation entitles the petitioner to the consequential claims which flow from the order C.W.P.No.14211 of 2009 -5- passed by the Labour Court. The contention that the posts were abolished by the Punjab Government vide order dated 13.5.2002, would not be an impediment for granting the benefit to the petitioner as the petitioner was to be considered against a post which was available when his junior in the year 1997 when the claim of his junior Darshan Singh for regularization was allowed and granted. In view of the above, the present writ petition is allowed; a direction is issued to regularize the services of the petitioner with effect from 1.1.1997 from the date his junior Darshan Singh was regularized in service vide order dated 18.6.1998 (Annexure P-2). It goes without saying that the petitioner shall be entitled to all consequential benefits thereto which be released to him within a period of three months from the date of receipt of certified copy of this order. May 17, 2011 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE