In the High Court of Punjab & Haryana at Chandigarh L.P.A. No. 74 of 2008 Date of decision: April 17, 2009 Rattan Singh ... Appellant Vs. State of Haryana and others ... Respondents Coram: Hon'ble Mr. Justice Uma Nath Singh Hon'ble Mr. Justice A.N. Jindal Present: Mr. R.S. Sangwan, Advocate for the appellant. Ms. Ritu Bahri, DAG, Haryana for respondent. A.N. Jindal, J This appeal has arisen out of the judgment dated 29.8.2007 passed by the learned Single Judge, declining to regularize the service of the appellant-petitioner (herein referred as “the appellant”), on the post of Battery Attendant. In nutshell, the facts are that the appellant was appointed as Helper ( Battery Attendant) in Haryana Roadways on daily wage basis at D.C. Rates, in the Transport Department, Haryana. Employees of the Transport Department, Haryana went on strike in the month of December, 1993, resultantly, its work was paralyzed. In order to pull on the work, he having qualified for the post of Helper (Battery Attendant) came forward and jointed the services of Transport Department, Haryana on 7.12.1993 and worked up to 31.12.1993 during the whole strike period at erstwhile Charkhi Dadri depot. After the strike was called off, Haryana Government framed a policy decision and a committee was constituted to select the suitable candidates from those who had worked during the strike period and were duly qualified for the different posts. According to the policy decision, the recommendations of the Selection Committee, trade wise seniority list was prepared by the Transport Commissioner, Haryana. The appellant was at Sr. No. 5 in the seniority list of battery attendant trade and total candidates in this trade were 8. As such, along with other candidates L.P.A. No. 74 of 2008 -2- *** his name was referred for appointment by the Transport Commissioner, Haryana at Charkhi Dadri depot. Since there was no vacancy at Charkhi Dadri, therefore, Transport Commissioner, Haryana ordered to send name of such candidates at the place where vacancy existed. There was vacancy with respondent No.3. Thus, vide letter dated 26.7.1995, issued by the General Manager, Charkhi Dadri depot, name of the appellant was submitted as helper in the office of the respondent No.3. However, in Charkhi Dadri depot, out of selection list, some candidates were allowed to continue even after the strike, whereas, the appellant was not allowed to continue in-spite of the fact that Mukesh Kumar, junior to the appellant was working. Aggrieved against the action, the appellant filed CWP No.15810 of 1995, in which department filed the reply and this Court vide order dated 12.2.1996, was pleased to pass the following order :- “Present: Mr. R.S. Sangwan, Advocate Mr. R.N. Raina, DAG, Haryana. ORDER During the course of arguments Sh. Raina stated that as the petitioner has come out with a case that he did not receive the letter for joining at Delhi depot of the roadways, the respondents will now give a copy of letter of appointment to the petitioner with in seven days and he shall join his duties under the General Manager, Haryana Roadways, Delhi within seven days thereafter. This is also acceptable to the counsel of the petitioner. In view of the statement made by Sh. Raina it is not necessary to adjudicate upon the legality of the appointment of respondent No.4. The writ petition has been rendered in fructuous and the same is dismissed as such. Dated12.02.1996 Sd/- G.S. Singhvi (Judge) Sd/- S.S. Sudhalkar (Judge)” Compliance of the aforesaid order passed by this Court was not L.P.A. No. 74 of 2008 -3- *** made by the respondents, therefore, the appellant had to file COCP No.373 of 1996, in which notice upon respondents was issued and they stated that the appellant has been taken back in service and service of the appellant will not be terminated till such time and his appointment shall be extended from time to time without any gap whatsoever. In the seniority list issued by the Selection Committee, his name figured at Sr. No.5. Similarly, in the list issued by General Manager, Haryana Roadways, Charkhi Dadri, the name of the appellant figured at Sr. No.5. Hence, he was senior in both the lists viz- a-viz Mukesh Kumar. The appellant was allowed to join duty in Delhi depot on interference made by this Court and thereafter there was no break in service. Subsequently, the Haryana Government framed a policy on 1.10.2003, which has been published in Gazette Notification concerning Group 'C' and 'D' ad-hoc employees/contract employees and daily wages employees for regularization. According to the policy, daily wage employees group 'C' who had completed three years service on 30.9.2003 and were in service on the said date, would be regularized against their respective group 'C' and 'D' provided they fulfill the requisite qualifications and were originally appointed against the vacant posts. The appellant having fulfilled all the conditions was entitled to be regularized. However, he was not regularized because of some amendments made vide notification dated 10.2.2004 by way of which, it was added that in the case of daily wage group 'C' and 'D' employees, only those daily wage employees shall be regularized who had been engaged before 31.1.1996 provided that they fulfill the other conditions. The right of the appellant for regularization accrued on account of the instructions dated 1.10.2003 and instructions dated 10.2.2004 are not with retrospective operation. His appointment letter does not contain clause that his appointment was on daily wages and on contract basis. The appellant being senior in the selection list and fulfilled all the terms and conditions of regularization policy, therefore, he was entitled for regularization of his services earlier to the junior persons and at least along with them but his services were not regularized on flimsy ground that he was not engaged before 31.1.1996 which is illegal, unconstitutional, arbitrary and discriminatory as the services of the juniors to the appellant have been regularized which infringes his fundamental right L.P.A. No. 74 of 2008 -4- *** of equality. Having failed to convince the respondents, the appellant had to file a civil writ petition No. 13774 of 2004 which was disposed of by this Court with the following observations:- “The petitioner is holding the post of Helper in the office of General Manager, Haryana Roadways, New Delhi. He claims regularization under the policy instructions dated 1.10.2003. In order to claim regularization, the petitioner is stated to have served a legal notice dated 25.6.2004. However, it is the contention of the petitioner that no decision has been taken thereon till date. Ld. Counsel for the petitioner states that the petitioner would be satisfied if the instant petition is disposed of with a direction to the respondent No.3 General Manager Haryana Roadways, Kingsway Camp, New Delhi, to take a final decision on the legal notice dated 25.6.2004. In view of the above, without going into the merits of the claim raised by the petitioner, the instant writ petition is disposed of by directing the respondent No.3 i.e. General Manager, Kingsway Camp, New Delhi, to take a final decision on the legal notice dated 25.6.2004, by passing a well reasoned speaking order within a period of three months from the date of receipt of the certified copy of this order. In case, the petitioner is found entitled to regularization, he shall also be granted all consequential benefits thereof. Disposed of accordingly.” Even thereafter, the claim of the appellant was rejected. The respondents in written statement while countering the allegations averred that during the strike, number of persons were engaged on daily wages by various depots of Haryana Roadways for working on different posts to run the service of the depots. Their daily wage employment, however, was cancelled upon the strike being called off later. But to rehabilitate these daily wagers against the future vacancies, a list was L.P.A. No. 74 of 2008 -5- *** prepared on random basis by various depots. The depots which had long list of such daily wagers which were not likely to be absorbed in the depots preparing such list sponsored/forwarded part of their list to the other depots having potential of absorption of such persons. Accordingly, after distribution, large number of persons who worked during the strike were given appointment in different depots on random basis. The appellant was appointed on 4.4.1996 as Helper (Battery Attendant) on daily wage basis in Delhi depot. While admitting that the case of the appellant was considered, it was averred that since he did not fulfill the terms and conditions as envisaged in the policy dated 1.10.2003 as amended by another notification dated 10.2.2004, therefore, he was not entitled to be regularized. It was admitted that the appellant had filed the writ petition in the year 1995 and as per orders passed by this Court dated 12.2.1996, the appellant was issued appointment letter w.e.f. 29.7.1995, but he joined his duties on 4.4.1996. Since services of those daily wager employees were regularized, who were engaged before 31.1.1996, therefore, he being ineligible for regularization was not regularized. He was declined the relief merely on the ground that as per later notification dated 10.2.2004, only those persons could be regularized who were engaged in service before 31.1.1996. Arguments heard. Record perused. There is no denying a fact that the appellant worked during the strike as Helper (Battery Attendant) in Transport Department, Haryana w.e.f. 7.12.1993 to 31.12.1993. After closer of the strike, a policy decision was taken and Selection Committee was constituted to accommodate the employees who worked during strike and the appellant was accordingly accommodated. Due to no vacancy at Charkhi Dadri, he was accommodated for working at Delhi where the vacancy existed. The name of the appellant was submitted for his appointment for Delhi vide letter dated 26.7.1995. The latter, annexure P-1, impliedly is an offer of appointment for joining in the office of General Manager, Haryana Roadways Delhi subject to the complete documents. It is also not in dispute that the appellant had filed a writ petition as he had not obtained any appointment letter. Order dated 12.2.1996, passed by the Division Bench of this Court reveals that on the plea taken by the appellant that he had not L.P.A. No. 74 of 2008 -6- *** received the order for joining at Delhi, Deputy Advocate General, Haryana agreed to issue fresh orders. The record further reveals that even after the aforesaid order dated 12.2.1996 passed by this Court, the department did not comply with the directions which compelled the appellant to file C.O.C.P. No. 373 of 1996, pursuant to which, the respondent issued the appointment letters to the appellant w.e.f. 26.7.1995. Thus, the respondent cannot come to contend that they had not engaged the appellant before 31.1.1996, rather they had engaged him on 26.7.1995, but they did not allow him to join and ultimately he joined under the orders of the High Court. It is also not in dispute that the instructions dated 1.10.2003, were applicable to the appellant. At the same time, no such point was raised if the appellant was not eligible for regularization except that he had been engaged after 31.1.1996. Earlier this clause no where figured in the instructions dated 1.10.2003, as such subsequent amendment made by way of this notification dated 10.2.2004 is quite discriminatory and based on no reasons. The other similarly situated persons have already been regularized and the appellant had completed 8 years of service by 2004. It may further be observed that when the appellant had become eligible for regularization by way of earlier rules, cannot be said to be ineligible on the basis of the later amendment. All these aspects were not brought to the notice of the learned Single Judge at the time of arguments which contribute materially to have a view in favour of the appellant. For the foregoing reasons, we allow the appeal, set aside the impugned judgment and order that the appellant may be regularized while taking in view the instructions issued vide notification No.GSR/24/Const./Art/309/2003 dated 1.10.2003 and he be awarded all the emoluments, if any, having arisen thereto. (Uma Nath Singh) (A.N. Jindal) Judge Judge April 17, 2009 deepak