C.W.P. No. 5921 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 5921 of 2008 DATE OF DECISION: OCTOBER 24, 2009 Anil Kumar .....PETITIONER Versus State of Haryana and others ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL --- Present: Ms. Pooja Satija, Advocate, for the petitioner. Ms.Kirti Singh, A.A.G.,Haryana, for respondents No.1 to 3. Mr. Raman B. Garg, Advocate, for respondent No.4. .. SATISH KUMAR MITTAL, J. The petitioner has filed the instant petition under Article 226 of the Constitution of India for quashing the order dated 18.7.2007 (Annexure P13) passed by the Director, Urban Development Department, Haryana (respondent No.2 herein), whereby the representation of the petitioner claiming appointment on the post of Clerk in the Municipality, has been rejected. Briefly, in the present case, the petitioner was appointed as Octroi Clerk on contract basis on 3.1.1997 when the employees of the Municipal Committees/Municipal Councils were on strike. Since the petitioner did not perform his duties satisfactorily, therefore, vide order C.W.P. No. 5921 of 2008 -2- dated 2.2.1997 his services were dispensed with while specifying therein that his services were found unsatisfactory. It is admitted position that the petitioner had challenged the said order of his termination by filing a Civil Suit in the court of Civil judge (Jr.Division), Bhiwani. Ultimately the said suit was dismissed by the Civil Court on 24.5.2001. The petitioner filed an appeal against the said judgment, which was also dismissed by the Additional District Judge, Bhiwani on 22.3.2002. RSA No.2482 of 2002 filed by the petitioner was also dismissed by this Court on 12.3.2005. After dismissal of his Regular Second Appeal, the petitioner made a representation to respondent No.2 on 15.6.2007, without disclosing the fact that the Civil Suit filed by him challenging his termination has been dismissed by the Civil Court and the said order has been upheld by this Court in R.S.A. No.2482 of 2002, stating therein that many employees, who had worked during the strike period on ad hoc basis, were appointed on regular basis in view of the policy decision of the State Government, therefore, his claim for appointment on regular basis as Clerk in Municipal Council, Bhiwani against the vacant posts may also be considered. The said representation has been rejected vide impugned order. In the said order, it has been stated that as per the Instructions dated 13.5.1997 issued by the Government, it was decided that during the Municipal strike in 1996-97, the employees appointed on regular basis may be allowed to continue in Municipality and those appointed on ad hoc basis and daily wage basis against vacant posts, may be appointed against vacant posts on the basis of seniority. If there is no vacant post, then seniority list may be got prepared and preference may be given to appoint them against vacant posts in future. But the Government vide letter dated 24.4.2001 issued Instructions to all C.W.P. No. 5921 of 2008 -3- the Deputy Commissioners and Municipalities to give appointment to only those employees who had worked during the entire period of strike i.e. 16.12.1996 to 4.3.1997, and that too, after receiving proof of payment of salary as well as appointment letters by the competent authority. In view of the said Policy, the petitioner, who had worked only from 3.1.1997 to 2.2.1997, was not entitled for regular appointment, particularly when his services were dispensed with being unsatisfactory. Further, it has been mentioned that in the year 2006, vide letter dated 23.3.2006 the Government asked all the Deputy Commissioners to send complete record of such persons who have worked during the strike period and could not be given appointment so far. It is further mentioned that subsequently the Government issued Instructions dated 19.2.2007, whereby it was decided not to appoint any employee who had worked during the strike period. It has been stated that in view of the latest Instructions of the Government, the petitioner was not entitled for appointment on the post of Clerk against the vacant post. In the written statement filed on behalf of respondents No.1 to 3, it has been stated that the petitioner while concealing the fact of filing the Civil Suit in his representation and CWP No.8673 of 2007, got directions from this Court to respondent No.2 to consider and decide the representation filed by him, within a period of one month. It has been stated that in view of the fact that the ad hoc service of the petitioner was dispensed with on 2.2.1997 being unsatisfactory and the said order became final as the Civil Suit filed by the petitioner was dismissed by the Civil Court and upheld by the High Court in R.S.A. No. 2482 of 2002, the petitioner is not entitled for any relief. It has been further submitted that the C.W.P. No. 5921 of 2008 -4- policy decision of the Government dated 19.2.2007, whereby it was decided not to give appointment to any employee who had worked during the strike period, has been upheld by a Division Bench of this Court in Narender Kumar v. The Municipal Council, Ambala City and others (CWP No.5280 of 2006, decided on 11.3.2008), copy of which has been annexed as Annexure R-4/4. Therefore, in view of the said fact also, it was pleaded that the writ petition filed by the petitioner is liable to be dismissed. I have heard the counsel for the parties. During the course of arguments, the aforesaid factual position has not been disputed by the counsel for the petitioner. However, counsel argued that some of the employees, who were appointed on ad hoc basis during the strike period in Municipal Council, Bhiwani, were given appointments in the year 1998. It has been further argued that the name of the petitioner also figured in the list of the employees sent by the Municipal Council, Bhiwani to the Director, Local Bodies, Urban Development Department, Haryana, who alleged to have worked during the strike, for considering their names for appointment on the vacant posts in terms of the Government Policy decision. In spite of that, the petitioner was not given appointment and his claim was wrongly rejected. It has been further stated that in the year 2006, when in terms of the Policy of the State Government dated 13.5.1997, the names of those employees, who had worked during the strike period and were not given the appointment, were called, the name of the petitioner also figured in that list. But at that time also, the petitioner was not given the appointment. Therefore, according to the learned counsel, the action of the respondents is illegal and arbitrary. On the other hand, learned counsel for the respondents argued C.W.P. No. 5921 of 2008 -5- that in view of the Policy of the Government dated 13.5.1997, at no point of time the petitioner was entitled for appointment against the vacant posts on the basis of his alleged work during the strike period because his services during the strike period were found unsatisfactory and were dispensed with by the specific order. The said order was challenged by the petitioner in the Civil Court. The Civil Court while recording a finding of fact regarding unsatisfactory services of the petitioner, dismissed the suit filed by the petitioner and upheld the order of dispensing with/terminating the services of the petitioner being unsatisfactory. The said judgment and decree passed by the trial Court became final. He submitted that in view of those facts, the petitioner was not entitled for being appointed on regular basis against the vacant posts in view of Policies of the State Government dated 13.5.1997 and 24.4.2001, respectively. Therefore, his claim was rejected by the impugned order. It has been further argued that even the policy decision taken by the Government on 19.2.2007 has been upheld by a Division Bench of this Court in Narender Kumar v. The Municipal Council, Ambala City and others (CWP No.5280 of 2006, decided on 11.3.2008), wherein it has been held that the mere fact that the petitioner had worked during the strike period, will not confer any right to seek appointment. Therefore, there is no merit in this petition. After hearing arguments of the counsel for the parties, I do not find any merit in the instant petition. Undisputedly, the petitioner had worked for a short period i.e. 3.1.1997 to 2.2.1997 during the strike on ad hoc basis as Octroi Clerk. Since he did not perform his duties well, therefore, his services were dispensed with being unsatisfactory. The said order was upheld in Civil Suit filed by the petitioner and the said judgment C.W.P. No. 5921 of 2008 -6- and decree became final as R.S.A. . No.2482 of 2002 filed by the petitioner was dismissed by this Court on 12.3.2005. Merely on the basis of the unsatisfactory period of service, the petitioner cannot claim the regular appointment against the vacant posts. The claim of the petitioner is based upon the Government Policy/Instructions dated 13.5.1997. Even as per the Instructions dated 24.4.2001, the petitioner was not entitled as he did not work during the entire period of strike. Subsequently, in the year 2006, the Government sought the names of those employees, who had worked during the strike period and were not appointed. Subsequent to that, the Government took a policy decision dated 19.2.2007 not to absorb any employee against the vacant post in the Municipal services who had worked during the strike period of Municipal Employees during 1996-97. In Narender Kumar v. The Municipal Council, Ambala City and others (CWP No.5280 of 2006, decided on 11.03.2008), it has been held by a Division Bench of this Court that the mere fact that the petitioner has worked during the strike period, will not confer any right to seek appointment. The discharge of work during strike of other employees is not a qualification for appointment on priority basis, which may satisfy the requirement of equal opportunity to all the eligible candidates in terms of Articles 14 & 16 of the Constitution of India. In view of these facts, the claim of the petitioner for appointment on regular basis has rightly been rejected. In view of the above, there is no merit in the petition and the same is hereby dismissed. October 24, 2009 (SATISH KUMAR MITTAL) vkg JUDGE