R.S.A. No. 3304 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 3304 of 2009 (O&M) Date of decision : 20.7.2010 ... The State of Haryana through Collector, District Mohindergarh at Narnaul and others ................Appellants vs. Rohit Kumar and another .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Lekh Raj Nandal, Assistant Advocate General, Haryana. Sh. Vijay Sharma, Advocate for the respondents. ... K.C. Puri, J. This is an appeal preferred by State of Haryana and others against the judgment dated 24.3.2009 passed by Sh. Rajesh Malhotra, Additional District Judge, Narnaul, vide which the appeal preferred by the defendant-appellants against the judgment dated 28.2.2006 passed by Sh. B. Diwakar, Civil Judge (Senior Division), Narnaul, was dismissed. Shorn of unnecessary details, the case of the plaintiff No.1 is that he was appointed on 1.9.1989 against the post of part time sweeper in Government Girls Primary School, Dohar Kalan and R.S.A. No. 3304 of 2009 -2- plaintiff No.2 was appointed on 17.12.1982 as part time sweeper in Government Primary School, Goad, Tehsil Narnaul, District Mahendergarh. Plaintiffs have continuously worked as part time sweeper for the last 20 years and still continuing as such. There are instructions of the Government from time to time to regularize the services of part time servants and to absorb them against the vacant posts, but that have not been complied with. Education Department, Haryana, issued instructions dated 25.2.1999, for regularization of the services of part time servants against regular posts, but to no effect. Defendants filed written statement denying the contents of plaint. It is pleaded that plaintiffs are not regular servants of the department and they are working for 1-1/2 hours on D.C. rate and their services are terminated from time to time and fresh appointments used to be issued to them. From the pleadings of the parties, following issues were framed:- 1. Whether the plaintiffs are entitled to regularize their services in pursuance of the instructions issued by the education department and are also entitled to regular pay scale as pleaded in the plaint? OPP. 2. Whether the plaintiffs are entitled for relief claimed in the suit? OPP. 3. Whether the plaintiff has no cause of action to file the suit? OPD 4. Whether the plaintiff has no locus-standi to file the suit? OPD R.S.A. No. 3304 of 2009 -3- 5. Whether the suit is not maintainable in the present form? OPD 6. Relief. Plaintiff No.1 appeared as PW-1 and produced certain documents. Defendants examined Sushma Rani as DW-1 and closed the evidence. In rebuttal, plaintiffs also examined PW-2 Radhy Shyam Assistant, PW-3 Bhim Singh, Clerk, PW-4 Ramesh Chand, Assistant, PW-5 Bhola Ram, Assistant and PW-6 Bhagwant Swarup and closed the evidence. Learned trial Court, after appraisal of the evidence has taken issues No. 1 and 2 together and returned the finding on both the issues in favour of the plaintiffs. Issue No.3, 4 and 5 were decided against the defendants and in favour of the plaintiffs. In view of the finding on all the issues, suit of the plaintiffs was decreed and decree for declaration to the effect that plaintiffs deserve to be regularized as Class IV employee in the pay scale of the regular post with effect from the due date, was passed. Feeling dissatisfied with the above said judgment dated 28.2.2006, passed by the trial Court, the defendant-appellants filed the Ist appeal. The said appeal was heard and dismissed by Sh. Rajesh Malhotra, Additional District Judge, Narnaul, vide judgment dated 24.3.2009. Feeling dissatisfied with the above said judgments dated 24.3.2009 and 28.2.2006, referred to above, the present regular second appeal has been filed. The appellants in paragraph No. 5 of the grounds of appeal, R.S.A. No. 3304 of 2009 -4- have mentioned that following substantial questions of law have arisen in present appeal:- i) Whether the judgment and decree passed by learned Courts below is sustainable in the eye of law? ii)Whether the judgment and decree passed by the learned Courts below is contrary to evidence produced on record? iii)Whether the plaintiffs-respondents are entitled to be regularized in service? Learned State counsel, relying upon the authority reported as Secretary, State of Karnataka and others vs. Umadevi (3) and others, 2006 (2) SCT 462 and State of Karnataka and others vs. G.V. Chandrashekar, 2009 (2) SCT 101, has submitted that Civil Court has no jurisdiction to regularize the services of a part time employee. In reply to the above said submission, learned counsel for the respondents has submitted that Umadevi's case (Supra) can not to be applied mechanically in every case. It is further contended that in authority reported as U.P. State Electricity Board vs. Pooran Chandra Pandey and others 2007 (4) SCT 622, the Hon'ble Apex Court has held that where there is a discrimination against the similarly situated employee, in that case, the Umadevi's case (Supra) shall not come in operation. The State cannot discriminate between the similarly situated employees. It is contended that both the Courts below have given a concurrent finding that services of the junior to the plaintiffs have been regularized. So, on the ground of discrimination, invoking the Articles 14 and 16 of the Constitution, R.S.A. No. 3304 of 2009 -5- the judgment of both the Courts below does not call for any interference. I have considered the submissions made by counsel for both the sides. Both the Courts below have given a finding that the appellants have discriminated against the plaintiffs now respondents. Services of junior to plaintiffs have been regularized. That being a finding of fact cannot be challenged in the regular second appeal, in view of Section 100 of the Code of Civil Procedure. Feeling the said difficulty, the State counsel has not challenged that finding. So far as, the reliance on Umadevi's case (Supra) and G.V. Chandrashekar's case (Supra), is concerned, those authorities are distinguishable to the facts of the present case. In both those cases, point in issue was not whether there is violation of Article 14 of the Constitution, in as much as, the services of junior employee has been regularized, the observations made by the Apex Court in Pooran Chandra Pandey 's case (Supra), in paragraphs No. 11 and 17, are reproduced as under:- “11. Learned counsel for the appellant has relied upon the decision of this Court in Secretary, State of Karnataka & others vs. Umadevi (3) and others, 2006 (2) SCT 462 : (2006) 4 SCC 1 and has urged that no direction for regularization can be given by the Court. In our opinion, the decision in Uma Devi's case (supra) is clearly distinguishable. The said decision cannot be applied to a case where regularization has R.S.A. No. 3304 of 2009 -6- been sought for in pursuance of Article 14 of the Constitution. 17. In the present case the writ petitioners (respondents herein) only wish that they should not be discriminated against vis-a-vis the original employees of the Electricity Board since they have been taken over by the Electricity Board “in the same manner and position”. Thus, the writ petitioners have to be deemed to have been appointed in the service of the Electricity Board from the date of their original appointments in the Society. Since they were all appointed in the society before 4.5.1990, they cannot be denied the benefit of the decision of the Electricity Board dated 28.11.1996 permitting regularization of the employees of the Electricity Board who were working from before 4.5.1990. To take a contrary view would violate Article 14 of the Constitution. We have to read Uma Devi's case (Supra) in conformity with Article 14 of the Constitution, and we cannot read it in a manner which will make it in conflict with Article 14. The Constitution is the supreme law of the land, and any judgment, not even of the Supreme Court, can violate the Constitution.” From the abovesaid observations, it is clear that where there is discrimination inter se employees similarly situated, in that case, the Umadevi's case (Supra) and G.V. Chandrashekar's case R.S.A. No. 3304 of 2009 -7- (Supra), are not applicable. So, in view of the above discussion, all the substantial questions of law raised by the appellants, stand answered against the appellants. Consequently, the appeal is without any merit and the same stands dismissed. ( K.C. Puri ) 20.7.2010 Judge chugh