CWP No.7416 of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.7416 of 2002 Date of Decision: 7.12.2009 Sri Krishan ...Petitioner Vs. Vaish Technical Institute, Rohtak & Ors. ...Respondents CORAM Hon'ble Mr.Justice Vinod K.Sharma Present: Mr.Vivek Sharma, Advocate, for the petitioner. Mr.Akshay Bhan, Advocate, for respondents No.1, 2 and 4. Mr.Ashwani Markanday, DAG, Haryana, for respondent No.3. 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma, J . (Oral This writ petition under Articles 226/227 of the Constitution of India is directed against the order dated 2.11.2001 i.e. a notice of CWP No.7416 of 2002 2 termination of his services. After issuance of impugned notice petitioner was paid a cheque of Rs.3857/- in lieu of one month's pay. The facts which are not in dispute are that the petitioner was appointed as Chowkidar on a consolidated salary of Rs.450/- per month on 17.8.1988. Request of the petitioner for grant of Regular Pay Scale was accepted and vide letter/letter of appointment dated 30.10.1990 the petitioner was placed in the Pay Scale of 750-940. The petitioner thereafter made a request for regularization of his services. The request made by the petitioner was accepted vide letter of regularization dated 4.7.1994 his services were regularized and confirmed. He was held entitled to CPF benefit at the rate of 10 per cent as admissible to other employees of the Institute. Terms of the appointment of petitioner reads as under:- “ With reference to your application dated 18.5.1994, you are hereby informed that your services are regularized and confirmed with CPC benefits @ 10 % as admissible to other employees of the Institute at the post of Chowkidar in Hostel in the prescribed pay scale w.e.f. 1.5.94 after considering your suitability for the post. This is subject to the following terms and conditions:- 1. The period of notice for terminating the services without assigning any reason, will be three months or salary in lieu of on either side. 2. You will be required to perform any duty assigned by CWP No.7416 of 2002 3 the Principal or any other higher officer of the Institute. 3. It can be withdrawn/modified with retrospective effect, in case, if in future at any stage the authorities decision/clarification made against any representation or otherwise whatsoever to redress any grievances/ anomalies and to enforce such decisions/clarifications etc. It becomes necessary to modify/withdraw it. 4. In case the need arises to modify/withdraw it, no advantage in respect of salary and seniority etc. whatsoever will be allowed in lieu thereof and you will return back to your original status and will deemed to be not regularized and confirmed.” Thereafter another letter of appointment was issued to the petitioner in the Pay scale of 750-12-870-EB-14-940 on 2.9.1999 said to be on the request of the petitioner. It is not understood how this letter could be issued even on the request of the petitioner, when he already stood confirmed on 4.7.1994 as Chowkidar in the Regular Pay Scale. The case of the petitioner further is that there was a practice in the institute to promote Chowkidar-cum-Peon as Lab Attendant and accordingly he was given the post of Lab Attendant w.e.f. 2.9.1999. It was, therefore, on account of the availability of the post of Lab Attendant on 2.9.1999 that a fresh letter of appointment was issued showing him to be appointed against the post of Lab Attendant. The CWP No.7416 of 2002 4 impugned order has been passed vide which services of the petitioner has been ordered to be terminated on the ground that his appointment as Lab Attendant has not been approved. Learned counsel for the petitioner has challenged the impugned order primarily on the ground that the order impugned on the face of it is totally arbitrary as the regular appointment of the petitioner is sought to be terminated by treating him to be a temporary employee by invoking Clause (iii) of Appointment letter referred to above, under which the right was reserved by the Institute, to withdraw/modify with retrospective effect the post offered to the petitioner. Learned counsel for the respondent contends that no interference in the impugned order is called for, as the petitioner was not appointed on regular post nor his services were either on regular basis, as the appointment letter dated 4.7.1994 stood modified on 2.9.1999 when he was offered post of Chowkidar in the Institute against a post of Lab Attendant. It is also the contention of the learned counsel for the respondent that once his appointment was not proved, the Institute has no other option but to terminate his services as per the terms of the appointment, by giving one month's salary. On consideration of the matter, I find force in the contentions raised by the learned counsel for the petitioner. Once the services of the petitioner were regularized vide Annexure P.3, his services could not be terminated by issuing fresh letter of CWP No.7416 of 2002 5 appointment on a temporary post under the garb of promotion to the post of Lab Attendant. In case his temporary appointment was not approved then the respondents were required to offer him post of chowkidar on which he was appointed on regular basis. It is needless to say that condition (iii) of appointment letter is totally arbitrary and violative of Article 14 of the Constitution of India, as no employer can reserve a right to modify or terminate the services of a regular employee with retrospective effect. It is also well settled law that the authorities cannot act in arbitrary manner, a condition in the appointment letter of regular employee, reserving right to terminate the services without assigning any reason by giving notice of one month's or salary or longer period is totally arbitrary and violative of the constitutional right. On appointment of regular basis employee is governed by service rules and the services of regular employee can only be terminated by following due process of law. For the reasons stated, this writ petition is allowed. The impugned order is set aside. The petitioner shall be entitled to all consequential benefits. It is made clear that the petitioner shall be entitled to appointment on regular basis as chowkidar, and not as Lab Attendant. No costs. (Vinod K.Sharma) 07.12.2009 Judge rp