LPA No.48 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.48 of 2006 Date of Decision: February 04,2009 State of Haryana and others Appellants Versus Mohar Pal ..Respondent CORAM : HON'BLE MR. JUSTICE M.M.KUMAR HON'BLE MR. JUSTICE H.S.BHALLA Present:- Mr. Sanjeev Kaushik, Additional Advocate General, for the appellants. Mr. Yash Pal Malik, Advocate for the respondent. 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? M.M.KUMAR, J. This appeal filed under Clause X of the Letters Patent is directed against the judgment of the learned Single Judge rendered in Civil Writ Petition No. 17215 of 2001 decided on 10.12.2004. The learned Single Judge has placed reliance on the policy instructions dated 27.5.1993 (R-1) as modified by a subsequent instructions dated 18.3.1994 (R-2). Both the aforesaid instructions are reproduced hereunder for ready reference: LPA No.48 of 2006 2 “From The Chief secretary to Govt. Haryana To 1. All the Heads of Departments, Commissioner, Ambala, Hissar, Rohtak and Gurgaon Division, All Deputy Commissioners And All Sub Divisional Officers ( C ) in Haryana. 2. The Registrar, Punjab and Haryana High Court, Chandigarh. Dated, Chandigarh, the 27th May, 1993. Subject: Regularization of work-charged/Casual/Daily rated employees. The matter regarding the regularization of the work-charged/casual/daily rates employees was engaging the attention to the Government for some time past. After careful consideration it has now been decided that the services of the employees of these categories should be regularized as under:- Work Charged Employees: The work charged employees who have completed five or more years of continuous service as on 31st March, 1993 and were in service on 31st March, 1993 shall be regularized. On regularization, these employees shall be liable for transfer in the State of Haryana on any project/work. CASUAL /DAILY RATES EMPLOYEES The casual and daily rates employees who have LPA No.48 of 2006 3 completed 5 years' service on 31st March, 1993 and were in service on 31st March, 1993 shall be regularized. On regularization, they shall be put in the time scale of pay applicable to the lowest Group `D' cadre in the Govt. and they would be entitled to all other allowances and benefits available to regular Govt. servants of the corresponding grade.” 2 Necessary action regarding regularization of the services of such employees working in your department should be taken within 15 days in consultation with the Finance Department, if necessary under intimation to Govt. along with the number of employees so regularized. Sd/ - Joint Secretary General Administration For Chief Secretary to Govt, Haryana.” ______________________ ______________________ “From: 18.3.1994 The Chief Secretary to Govt. Haryana To 1. All Heads of Departments, Commissioner, Ambala, Hissar, Rohtak and Gurgaon Division. 2. All Deputy Commissioners and Sub Divisional Officers (Civil) 3. The Registrar, Punjab and Haryana High Court, Chandigarh. Dated – Chandigarh the 18th March, 1994 LPA No.48 of 2006 4 Subject: regularization of Work-Charged/Casual/Daily rated employees. Sir, I have been directed to draw your attention to this Department Office No.6/4/90-2 GSI dated 27.5.1993 vide which the direction was given to regularise the daily rated employees who have completed five years of service on 31.3.1993. For sometime past the attention of the Government was engaged for consideration that how much break in service should be given and whether the employees who have worked on different posts and having different designation and fulfilled other conditions in the five years of service should be regularized. After consideration the Government has decided that the daily rated employees who worked for 240 days in a year and the break in service is not more than 30 days at a time should be regularized. As regards to employees who have worked on different posts having different designation in the same department. The government has decided that such employees be also regularized if they fulfil all other conditions. Sd/ Under Secretary General Administration for Chief Secretary to Govt. Haryana.” A perusal of the aforementioned instructions would show that a Daily Rated /Casual/Work Charged employee was required to have completed five years of service on 31.3.1993 and was also LPA No.48 of 2006 5 required to be in employment on that date. It was clarified by the subsequent instructions dated 18.3.1994 that if an employee has completed 240 days then it was to be regarded as one year and an employee was required to have completed five years of service. It was further clarified that break in service of more than 30 days was not to be condoned. The respondent had earlier filed Civil Writ Petition No. 2268 of 1989 claiming that he has been working on daily wage basis as Beldar since 1.6.1986. The matter was considered by the learned Single Judge of this Court and a direction was issued for consideration of the case of the petitioner by keeping in view the judgment of Hon'ble the Supreme Court rendered in the case of State of Haryana Vs. Piara Singh, (1992) 4 SCC 118. It is appropriate to mention that the aforesaid order was passed on 9.11.1992 and the instructions dated 27.5.1993 as modified on 18.3.1994 were not in vogue. The competent authority instead of considering the case of the petitioner in the light of the judgment rendered by Hon'ble the Supreme Court in Piara Singh's case (supra) applied the instructions dated 27.5.1993 and rejected his prayer for regularization. In para 2 of the writ petition, the petitioner has made a categorical averment that he was engaged on daily wages as Beldar on 1.6.1986 and on completion of three years of his service, he along with 09 others had filed Civil Writ Petition No. 2268 of 1989. He was petitioner No.4 in the aforesaid writ petition, which was disposed of on 9.11.1992. In para 10 (1) of the writ petition, the petitioner has also made a categorical averment that he was engaged on daily wage basis as Beldar on 1.6.1986 and had completed more than five years of service on 31.3.1993. In the corresponding para of the reply, the contents of the LPA No.48 of 2006 6 aforementioned para have been admitted to the extent that the petitioner was engaged as Beldar on 1.10.1986. However, It has been denied that the petitioner had completed five years of service on 31.3.1993. The learned Single Judge in his order has noticed the period from 1988 onwards. In 1988, the petitioner has completed 259- 1/2 days; in 1989, 300 days; in 1990, 250-1/2 days and in 1991, 232-1/2 days. The period of 1986 and 1987 has not been controverted. In any case, if the period of 1986 is taken to be more than 240 days, then he would complete five years in 1991. Therefore, it cannot be said that the benefit of instructions dated 27.5.1993 as modified on 18.3.1994 can not be granted to the petitioner. Apart from the fact that the petitioner-respondent is covered by the instructions dated 25.7.1993 as modified on 18.3.1994, the case of the petitioner, as per directions issued by the learned Single Judge of this court on 9.11.1992 while disposing of CWP No. 2268 of 1989, was required to be considered in the light of the principles laid down in Piara Singh's case (supra). According to the directions issued by Hon'ble the Supreme Court in Piara Singh's case (supra), it was held that those who are eligible and qualified and have continued in service satisfactorily for a long period, have a right to be considered for regularisation because long continuance in service gives rise to a presumption about the need for a regular post (the aforementioned view has now been over-ruled in Secretary State of Karnataka v., Uma Devi (2006) 4 SCC 1). However, the respondents instead of considering his case for regularisation in the light of the principles laid down by Hon'ble the Supreme Court proceeded to consider his case on the instructions issued subsequently to the date of passing of the order. Even on that count, the petitioner who is LPA No.48 of 2006 7 admittedly in service since 1.10.1986 and continued to be in service till 1992 deserved to have been considered for regularisation. Mr. Y.P.Malik, learned counsel for the petitioner- respondent has apprised the Court that order dated 10.12.2004 passed by the learned Single Judge stands already implemented and the services of the petitioner have been regularised. Keeping in view the aforementioned position, we are not inclined to interfere with the order dated 10.12.2004 passed by the learned Single Judge. Accordingly, appeal fails and the same is dismissed. ( M.M.KUMAR ) JUDGE ( H.S.BHALLA ) 4.2.2009 JUDGE VK