IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No.4427 of 2009 Date of Decision : January 18, 2011. Raj Kumar .....Petitioner versus Municipal Corporation, Chandigarh and another .....Respondents CORAM : HON'BLE MR.JUSTICE SURYA KANT. Present : Mr.G.S.Sathi, Advocate, for the petitioner. Mr.Sanjiv Ghai, Advocate, for the respondents. -.- 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? --- Surya Kant, J. (Oral) The petitioner is aggrieved by the order dated 6.9.2007 (Annexure P-1) whereby his claim for regularization of his services as a Truck Cleaner has been turned down on the recommendations made by the Departmental Promotion Committee in its meeting held on 26.6.2007 (Annexure P-4), on the ground that the petitioner though was senior most amongst the work-charged Truck Cleaners but he does not “fulfills the criteria of qualifications as per the provisions in the DRR and it is not in the preview of the committee to relax the qualification criteria as proposed in the agenda by the Member Secretary/ Convener”. C.W.P.No .4427 of 2009 2 2] The admitted facts are that the petitioner was employed as a Cleaner w.e.f. 2.11.1981 in the Engineering Department of Chandigarh Administration initially on daily wages and was subsequently brought on work-charge establishment vide order dated 26.12.1984 (Annexure P-2). The petitioner's services were later on transferred to the Municipal Corporation, Chandigarh in the year 1996 alongwith certain functions of the Engineering Department. One Rama Shanker was also employed as a Cleaner alongwith the petitioner initially on daily wages w.e.f. 21.11.1981 and he was also brought on work-charge establishment vide the same order dated 26.12.1984. While the petitioner's name appeared at Sr.No.5 in the seniority list (Annexure P-3) of the work-charge Truck Cleaners, the name of Rama Shankar was at Sr.No.6, may be on the basis of their respective dates of birth as the petitioner is older than Rama Shankar. 3] It was after having served the Chandigarh Administration/its Municipal Corporation for more than 26 years that the Departmental Promotion Committee constituted by the Municipal Corporation, Chandigarh, considered the claim of the petitioner and other work-charge Truck Cleaners for regularization of their services in its meeting held on 26.6.2007 and while rejecting the petitioner's claim and/or regularizing the services of the next candidate, namely, Rama Shankar, the Committee observed as follows:- “...The Agenda for regularizing the workers for the post of Truck Cleaner was put up to the committee by the Convener/Member Secretary. As per agenda, there are 1 no. sanctioned post of Truck Cleaner in P.H. Wing of M.C. C.W.P.No .4427 of 2009 3 Chandigarh. Its mode of recruitment is 100% by direct. As discussed in the agenda, 1 no. sanction post of Truck Cleaner is vacant. The following 5 nos. Work Charged Truck Cleaner are eligible as per seniority:- Sr.No. Name Father's name Category to which belongs. 1. Sh.Raj Kumar Sh.Sukham Singh General 2. Sh.Rama Shankar Sh.Nathi General 3. Sh.Ram Gopal Sh.Amar Nath General 4. Sh.Jagdish Chand Sh.Bhangi Ram General 5. Sh.Ranjit Singh Sh.Arjunia Ram SC. The Committee examined and discussed the agenda in the light of recruitment rules/draft recruitment rules, reservation roster, seniority list alongwith work and conduct report of all the incumbents. As per reservation policy, 14% posts are reserved for SC/ST category. There is only one sanctioned post of this category and it is initial recruitment. As such no reservation point is involved at this stage and the post goes to General Category. The candidate at Sr.No.1 namely Sh.Raj Kumar son of Sh.Sukham Singh do not fulfill the criteria of qualifications as per provision in the DRR and it is not in the preview of the committee to relax the qualification criteria as proposed in the agenda by the Member Secretary/Convener. Therefore, the Committee considered and approved the regularization of the next candidate at Sr.No.2 namely Sh.Rama Shankar son of Sh.Nathi in the category of Truck Cleaner against the vacant sanctioned post.” (emphasis applied) 4] The above stated decision was later on conveyed to the counsel for the petitioner in reply to the Justice Demand Notice dated C.W.P.No .4427 of 2009 4 6.9.2007 (Annexure P-1) giving rise to these proceedings. 5] The respondents have filed their reply affidavit objecting to the petitioner's claim, inter-alia, maintaining that: (i) Rama Shankar is a necessary party as he is likely to be effected from the final outcome of this petition; (ii) the petitioner's claim was duly considered and he being ineligible has got no legally vested right to seek regularization of his services and (iii) regularization of services can not be claimed as a matter of right in the light of the decision of the Hon'ble Supreme Court in Secretary, State of Karnataka and others versus Uma Devi and others, 2006 (4) SCC 1. In their reply on merits, it is explained that the petitioner is an illiterate person who does not possess the qualification of middle class pass which is one of the eligibility conditions. 6] Having heard learned counsel for the parties at some length and on perusal of the record, I am of the considered view that the respondents have acted in a totally unfair, unreasonable and arbitrary manner while denying security of employment to the petitioner even after he has served them for more than 26 years. The respondents are the organ of State and are expected to act as a 'model employer' but have failed to discharge their such like constitutional obligations. 7] I say so for the reasons that there are no statutory rules/circular/policy decision prescribing the qualification of 'middle pass' as an eligibility condition for the post of Truck Cleaner. The above stated qualification is said to have been incorporated in the 'Draft Service Rules' of the Chandigarh Administration allegedly adopted by the Municipal C.W.P.No .4427 of 2009 5 Corporation, Chandigarh. The Draft Service Rules have neither been approved by the Competent Authority nor notified. There is no conscious decision placed on record to adopt those Draft Rules even as executive instructions. In my considered view, the petitioner cannot be treated ineligible on the basis of such a tentative decision which has not attained finality or taken any legal shape. 8] It is not the case of the respondents that the qualification of Middle standard was even tentatively prescribed at the time the petitioner was employed as a daily wager or when he was brought on the work- charge establishment in the year 1984. It is not a case of direct recruitment through fresh selection process, rather pertains to the petitioner's claim for regularization of his services on the basis of the respondents' own decision to regularize such services. The eligibility conditions, if any, prescribed for the post of Truck Cleaner much after the petitioner's employment on work-charge basis cannot be given retrospective effect to render him ineligible for a post against which he was employed on daily wages in the year 1981 and on work-charge basis in the year 1984. 9] The contention that the respondent-Corporation never employed the petitioner in the year 1981 or 1984 needs to be mentioned and rejected for the obvious reason that the Corporation has stepped into the shoes of the Chandigarh Administration as the regular/work-charge employees of some departments of the Chandigarh Administration alongwith their work{s} were transferred to the Municipal Corporation on its formation. C.W.P.No .4427 of 2009 6 10] The objection that there was only one 'regular' post of Truck Cleaner against which Rama Shankar stands absorbed also merits rejection. It is an admitted fact that the petitioner and Rama Shankar both were employed as Truck Cleaners on daily wages in 1981 and both were brought on work-charge establishment in the year 1984. Since they are working as Truck Cleaners uninterruptedly then how can the respondents be now heard to say at this belated juncture that there is no 'regular' work for the Truck Cleaners. The petitioner can not be denied what he is entitled to in law due to ministerial inaction of non-sanctioning of another 'regular' post when that very work has been required to be performed un- interruptedly from last over 26 years. 11] The decision in Uma Devi's case (supra) or a recent decision in P.S.E.B and others versus Jagjiwan Ram and others (2009 (3) SCC 661 would also not come to the rescue of the respondents for the reason that in Jagjiwan Ram's case (supra), the work-charge employees were claim parity with regular counter-parts and the Hon'ble Supreme Court in that, the pay and conditions of services of the work-charge employees are altogether different than the regular employees. The facts of the case in hand are otherwise. The respondents themselves decided to regularize services of the work-charged employees, yet deprived the petitioner of the benefit of such decision on hyper technicalities. 12] Similarly, the decision in Harminder Kaur versus Union of India (2009 (13) SCC 90) would not be attracted as that was a case of appointments in violation of Articles 14 & 16 of the Constitution of India C.W.P.No .4427 of 2009 7 and the appointees were seeking regularization as a matter of right. Likewise, Satya Parkash and others versus State of Bihar and others (2010 (4) SCC 179), was of daily wager employees who sought but were declined one time relaxation granted by the Apex Court in Para-53 of its decision in Uma Devi's case (supra). 13] For the reasons afore-stated, the writ petition is allowed; the impugned decision taken by the Departmental Promotion Committee in its meeting held on 26.6.2007 so far as it pertains to rejection of the claim of the petitioner for regularization of his services as well as the subsequent communication dated 6.9.2007 (Annexure P-1) are hereby quashed. Since the petitioner's claim has been rejected only on the ground of non- fulfillment of the academic qualification, it is directed that the services of the petitioner shall stand regularized w.e.f. 11.7.2007, i.e., the date when the services of his junior namely, Rama Shankar were regularized. The petitioner shall also be entitled to all the consequential benefits. 14] It is further directed that since the plea taken by the respondents regarding non-availability of a regular vacant post for regularization of services of the petitioner has been turned down, this order shall have no effect on Rama Shankar whose services have already been regularized. 15] Dasti. January 18, 2011 (SURYA KANT) Mohinder JUDGE