Civil Writ Petition No. 11156 of 2003 [1] IN THE HIGH COURT OF PUNAJB AND HARYANA AT CHANDIGARH Date of Decision: February 19, 2008 Rajpal Singh and others ............ Petitioners versus State of Haryana and others ............. Respondents CORAM HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR.JUSTICE MOHINDER PAL 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3.Whether the judgment should be reported in the Digest ? -.- Present: Shri D.S. Patwalia, Advocate for the petitioner. Ms. Mamta Singhal Talwar, AAG Haryana Shri R.K. Malik, Senior Advocate with Shri Yashdeep Singh, Advocate for respondent No. 2 Shri Pawan Mutneja, Advocate for respondents No.15, 18 to 25 Shri Balwinder S. Sudan, Advocate for respondent Nos. 26 and 27. HEMANT GUPTA, J. The challenge in the present writ petition is to the order dated 18.07.2002, Annexure P-11, whereby the petitioners were reverted as daily wagers and not adjusted against the post of Cane Kamdar was declined. The petitioners were appointed as Cane Development and Marketing Clerk / Cane Kamdar on daily wage at the rates fixed by the Deputy Commissioner in the year 1987. They were made regular in the pay Civil Writ Petition No. 11156 of 2003 [2] scale of Rs.367-477 plus allowances vide letter of appointment dated 27.07.1990. The petitioner completed the period of probation as well. However certain daily wager employees whose services were not regularised filed a Civil Writ Petition No. 11715 of 1990 before this Court. The said writ petition was disposed of on 07.08.1991 with the direction to the respondent-Mill to decide the representations filed by the employees. The claim of such daily wagers was rejected on 19.03.1991 by the Management. The order dated 19.03.1991 was challenged before this Court in CWP No. 3265 of 1991. The said writ petition was disposed of with a direction to the respondents to decide the representation afresh after affording an opportunity of hearing to the petitioners and after passing a speaking order. Before the respondents could pass an order in terms of the directions of this Court, a show cause notice dated 29.01.1992 was served upon the petitioner to the effect as to why the services of the petitioners which have been regularised should not be declared null and void. After considering the reply submitted by the petitioners to the show cause notice, an order has been passed on 19.03.1993 terminating the services of the petitioners. In the order dated 19.03.1993, Annexure P-4, the reason for termination of the services was that there is no post of Cane Development and Marketing Clerk in the sanctioned strength duly approved by the Registrar, Cooperative Society, Haryana, and that there was no distinction between the Cane Clerk and Cane Kamdar / Runners as qualification for these posts was matriculation. It was found that as against 114 posts of Cane Clerks and Cane Kamdars, 129 incumbents were working. Therefore, the appointment of the petitioners was found to be beyond the sanctioned Civil Writ Petition No. 11156 of 2003 [3] strength. The said order was challenged in appeal. The appeal was accepted vide order Annexure P-5 but in revision, the same was set aside vide Annexure P-6. Consequently, order dated 19.03.1993 came to be restored. The order Annexures P-4, P-5 and P-6 became subject matter of challenge in Civil Writ Petition No. 2912 of 1998 before this Court. The said writ petition was disposed of vide order dated 13.03.2002, Annexure P-7, on the basis of statement of counsel for the respondent-Mill. It was stated by learned counsel for the petitioners that during the pendency of the petition, the number of posts have been increased from 25 to 36 and that the claim of the eligible persons shall be considered against these 11 posts in order of their inter se seniority. In pursuance of such directions, order Annexure P-11 has been passed whereby 11 Cane Kamdar senior to the petitioners have been adjusted against 11 vacancies. It has been further found that 26 posts have been reduced in Cane Department alone with the approval of the Registrar, Cooperative Societies. The posts of Cane Clerks have been decreased from 36 to 20, the posts of weighment Clerk at centres have been reduced from 20 to 15 and centre Incharges from 20 to 15. It was also found that 31 Clerks are still surplus in view of the revised sanctioned strength and most of them are eligible for the post of Cane Runner Kamdar and are senior to the petitioners. In view of the said fact, surplus Cane Clerks were adjusted against the additional 13 posts. At this stage, it may be mentioned that vide order dated 14.03.2002, Annexure P-8, 6 posts of Cane Kamdar were found vacant and vide order dated 19.03.2002, Annexure P-9, seven other posts of Cane Kamdar under seasonal category were found to be eligible. The entire case of the petitioners is that their services were Civil Writ Petition No. 11156 of 2003 [4] terminated on 19.03.1993 for the reason that the posts are not available for the petitioners but once 13 posts are available, which are evident from Annexures P-8 and P-9, the petitioners were required to be appointed in preference to the Cane Clerks who form part of a separate cadre. Reliance is placed upon the following observations of order dated 19.03.1993:- “ While deciding the matter a seniority list is also drawn (copy enclosed). Your name is duly incorporated in this list. This list is prepared with sole purpose that you along with S/Shri Jaipal Singh and others will be given preference in appointment in the event of any regular vacancy being available in future according to this seniority list. However, this seniority list is without prejudice to and shall in no way effect the rights of the candidates belonging to the reserved candidates viz Scheduled Caste and Backward Classes as per the policy of the Haryana Govt.” The petitioners have also relied upon the service rules for the employees of the Cooperative Sugar Mills in the State of Haryana promulgated in the year 1991 wherein the post of Cane Kamdar/ Runner (Semi Skilled) is required to be filled up by way of direct recruitment by matriculates with knowledge of cane cultivation, whereas the post of Cane Clerk is required to be filled up by graduate. The posts of Cane Kamdar/ Runner Kamdar are 12 permanent, 13 seasonal and total 25, whereas the posts of Cane Clerks/ Ledger & Pruzi sec., are 12 permanent, 24 seasonal and total 36. The sanctioned strength has increased to 164 in the year 1990. On the basis of said facts, it is contended by the learned counsel for the petitioner that the post of Cane Kamdar is a separate cadre post having distinct qualifications and, therefore, the post of Cane Kamdar falling vacant is required to be filled up from amongst the retrenched / terminated Cane Kamdar only. Civil Writ Petition No. 11156 of 2003 [5] On the other hand, respondent No.2-Mill in its reply has, inter alia, averred that the respondents have considered the claim of senior-most daily wagers working in the Cane Department in terms of the directions of this Court by appointing them as Cane Kamdar under seasonal category vide order dated 18.07.2002. The said 11 persons are senior to the petitioners which fact is not disputed by the petitioners as well. It is further mentioned that in terms of the instructions issued by the Registrar, the surplus permanent / seasonal permanent employees have to be adjusted against the vacant posts. Since the post of Cane Kamdar and Cane Clerk are interchangeable in view of the Rules before amendment in 1991, therefore, the posts of Cane Kamdars have been filled up. It has been further averred that in the year 1984, 114 regular posts of Cane Clerks/ Cane Kamdars were sanctioned, whereas 129 regular candidates were in the employment of the Mill as Cane Clerks/ Cane Kamdars. 23 daily wagers were also engaged including the present petitioners in different years right from 1980 to 1990. It is also mentioned that the petitioners were appointed without following any proper procedure as the posts were neither advertised nor notified to the Employment Exchange for general public. No criteria, be it by way of oral or written test, was observed in appointing the present petitioners. No seniority list was prepared and rather the persons working on daily wages engaged prior to the present petitioners were ignored. The sanctioned strength of the Mill was revised by the Registrar, Cooperative Societies, Haryana, on 18.12.2001 and the posts of all categories in the Mill were reduced from 764 to 652. At the time when letter dated 18.12.2001 was issued, there were about 133 Clerks working under permanent and seasonal category against the sanctioned strength of about 108 clerks. Since there Civil Writ Petition No. 11156 of 2003 [6] was surplus staff in the clerical category, the surplus Clerks were adjusted against the post of Cane Kamdar. Such persons have joined. It was explained in the additional affidavit dated 17.01.2008, the petitioners were working against the posts of Cane Development & Marketing Clerk (seasonal permanent) in the pay scale of Rs.367-4-387-5-477. The private respondents were working against the post of Cane Clerk (Seasonal permanent and permanent) which is a Clerical IV grade post. Before the year 1987, the qualification of both types of Clerks were same i.e. Matric but after the adoption of the Rules, the qualification of Cane Kamdar is Matric, whereas the basic qualification for Cane Clerk is graduation. It is also pointed out that all the surplus Cane Clerks adjusted were working on seasonal permanent basis much prior to the engagement of the petitioners on daily wages. In fact, Dharam Pal, one of the respondents, is working since 25th December, 1976 and was made permanent on 19.12.1988, whereas petitioner No.1 was appointed on daily wages on 19.12.1987. In reply on behalf of private respondents, it has been pointed out that the petitioners were appointed as Cane Development & Marketing Clerk and the work of the said post and that of Cane Clerk is almost the same and these posts have been inter changeable and inter-transferable. Some of the orders reflecting interchangeability have been appended with the reply. It is also averred that both the posts are of Clerical IV Grade and carry the same pay scale. A perusal of the record shows that the letter of appointment issued to the petitioners is against the post of Cane Development and Marketing Clerk / Cane Kamdar in the pay scale of Rs.367-4-387-5-477. The said post is Clerical IV Grade. The very nomenclature of the posts against which the petitioners were appointed is to the effect that they were Civil Writ Petition No. 11156 of 2003 [7] appointed against the post of Cane Development and Marketing Clerk / Cane Kamdar meaning thereby that there was no clear demarcation of the cadre of Cane Development and Marketing Clerk and Cane Kamdar. It could not be disputed by the learned counsel for the petitioner that the pay scale of both the posts is same and there was interchangeability and transferability of Cane Development and Marketing Clerk and Cane Kamdar. The claim of the Cane Kamdar for appointment against 11 vacancies, subject matter of order dated 13.03.2002, have been admittedly filled up from amongst the persons who were senior to the petitioners. The other 13 posts which came into existence by virtue of Annexures P-8 and P-9 have been filled up from Cane Clerks who were appointed much prior to the appointment of the petitioners on daily wages. The Cane Clerks and Cane Kamdars draw the same salary and are in the same scale. There are directions of the Registrar, Cooperative Societies, dated 18.12.2001, Annexure R-2/7, to the effect that regular / seasonal employees working against the posts may be adjusted against equivalent vacant posts subject to the fulfillment of prescribed qualifications. The said clause reads as under:- “ That the work of sweeping, gardening and watch and ward at cane purchase centres shall be gradually undertaken through contract. Regular / seasonal employees working against these posts may be adjusted against equivalent vacant posts subject to the fulfillment of prescribed qualifications”. The private respondents were found surplus as Cane Clerks. The post of Cane Kamdar is equivalent and were vacant as well. The said respondents, who are senior to the petitioners, fulfil the prescribed qualifications for the post of Cane Kamdar as they are graduate, whereas the Civil Writ Petition No. 11156 of 2003 [8] minimum qualification is matriculation. Therefore, the said respondents have been rightly adjusted as Cane Kamdar on the basis of circular, Annexure R2/7. The reliance of the petitioners on order dated 19.03.1993, Annexure P-4, has to be read along with the directions of the Registrar contained in circular Annexure R2/7. The order of the Managing Director dated 19.03.1993 cannot be read in isolation and the petitioners appointed in preference to the persons who are working for a longer period on similar post. Therefore, neither in law nor in equity, the petitioners have any justifiable claim which may warrant interference in writ jurisdiction of this Court. However, before parting with the judgement, we direct the respondents to fill up the future vacant posts of Cane Kamdar on the basis of seniority and subject to the policy of reservation as is applicable. With the aforesaid directions, present writ petition stands disposed of. (HEMANT GUPTA) JUDGE February 19, 2008 (MOHINDER PAL) ks JUDGE