IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 20791 of 2008 Date of Decision: 18.3.2011. Surinder Kumar and others --Petitioners Versus State of Punjab and another --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. Girish Agnihotri, Sr. Advocate with Mr. Vijay Pal, Advocate for the petitioner. Ms. Anu Pal, A.A.G., Punjab. *** PERMOD KOHLI.J (ORAL) Petitioners were appointed as Draftsmen on ad hoc/temporary basis pursuant to interviews/tests between the period 4.2.1982 to 14.1.1983 as indicated in Annexure P-1. Their names were sponsored by the Employment Exchange for such appointment. Their initial appointment was for a period of six months or till suitable candidates are appointed by the Subordinate Service Selection Board, Punjab. Between April, 1983 to August, 1983 some more appointments were made against the posts of Draftsmen for S.Y.L. Canal Project on being sponsored by the Employment Exchange. Their appointment was also temporary for a period of six months or till the suitable candidates were appointed by the concerned Selection Board. Vide letter dated 12.9.1983 posts of Draftsmen/Junior Engineer were excluded from the purview of the Selection Board by the State Govt. The State Govt. took a policy decision for regularization of the services of the ad hoc/temporary employees appointed to Class-III posts or posts under the Punjab Govt. in various departments/offices having minimum of two years service as on 1.4.1985. Since the petitioners were fulfilling the requisite CWP No. 20791 of 2008 -2- criteria under the aforesaid Govt. Instructions (Annexure P-2), their services were regularized vide order dated 12.5.1986 w.e.f. 1.4.1985. Regularization order is placed on record as Annexure P-3. A seniority list of the drawing establishment of P.W.D/Irrigation Departments of Chief Draftsman, Circle, Head Draftsman, Divisional Head and Draftsmen was issued on 21.9.1988 in respect to all appointees/promotees up to 31.12.1987. Petitioners were shown below in the seniority list as against those Draftsmen who were appointed later in time between April, 1983 to August, 1983. It is stated that on issuance of the seniority list, the petitioners made inquiry and came to know that Draftsmen appointed in the S.Y.L. Canal Project were regularized with effect from the date of their initial appointment pursuant to the recommendations of a Committee vide decision dated 1.2.1985 (Annexure P-6). It is further stated that the petitioners were not considered, though, they were senior to those who were appointed in S.Y.L. Canal Project. Petitioners, accordingly, made joint representation dated 4.2.1999 through proper channel (Annexure P-7). No decision was taken on this representation. Petitioners, accordingly, filed CWP No. 6266 of 1993 before the High Court seeking quashment of the order dated 1.2.1985 and the seniority list dated 21.9.1988. The Chief Engineer, Irrigation Works, Punjab, who was one of the respondents in the writ petition filed affidavit in response to the writ petition with the following averments:- “ Now in view of the decision of the Supreme Court of India in Writ No.5105-13 of 1983, the services of all the petitioners have been regularized w.e.f. The date of their initial appointments vide office order No.13186/13187-212/5 NGE-I/93 dated 5.11.1993 placed at Annexure R-1” In view of the above, the petitioners got the relief as their services were also regularized with effect from the date of their initial CWP No. 20791 of 2008 -3- appointment vide order dated 5.11.1993, referred to in the affidavit filed by the Chief Engineer. The petitioners were, however, served with a notice dated 5.1.1996 proposing to withdraw the order regularizing their services from the date of their initial appointment and it was proposed to regularize their services w.e.f. 1.4.1985 on the ground that the order of regularization from the initial date of recruitment is contrary to the Govt. Instructions. Petitioners filed a Contempt Petition being COCP No. 273 of 1996. This contempt petition was, however, disposed of vide order dated 24.4.1996 granting liberty to the petitioners to seek appropriate remedy, if, aggrieved by the action of the respondents. The petitioners filed their reply to the show cause notice. In the meantime, petitioners were also granted proficiency step-up from time to time. No action was taken on the basis of the aforesaid notice. In the year 2005, petitioners were served with another notice dated 14.4.2005 (Annexure P-11) on the same ground for regularization of their services w.e.f. 1.4.1985 instead of the intial date of appointment. Petitioners again represented against the aforesaid notice vide their representation dated 12.5.2005. Respondents, however, passed the impugned order dated 23.9.2008 (Annexure P-12) rejecting the representation of the petitioners and the earlier order dated 3.11.1993 granting the benefit of regularization from the initial date of appointment has been withdrawn and resultantly the petitioners have been ordered to be regularized from the cut of date i.e. 1.4.1985. This order is under challenge in the presen writ petition. The only distinction given in the reply filed is that the order dated 5.11.1983 granting benefit of regularization from the initial date of appointment was contrary to the Govt. Instructions issued in this regard. It CWP No. 20791 of 2008 -4- is further stated that since CWP No. 6266 of 1993 filed by the petitioners was dismissed as infructuous and the contempt petition filed by the petitioners also came to be dismissed, the respondents have legally and validly passed the impugned order withdrawing the benefit of regularization from the initial date of appointment. I have heard learned counsel for the parties at length. It is admitted case of the parties that petitioners were engaged earlier in time than those Draftsmen who were engaged in S.Y.L. Canal Project. However, in case of the petitioners, regularization was effective from 1.4.1985, whereas in case of the Draftsmen engaged in S.Y.L. Canal Project, they were granted benefit of regularization from the date of their initial appointment i.e year 1983 and consequently their seniority was fixed over and above the petitioners only on the ground that their regularization dates back to the initial appointment, whereas the petitioners' regularization is from a later date. Aggrieved of the seniority list of the Draftsmen engaged in S.Y.L. Canal Project, the petitioners filed the writ petition. The respondents filed an affidavit admitting the claim of the petitioners. Not only the affidavit was filed even the order dated 5.11.1993 was also produced granting the actual benefit of regularization to the petitioners from the date of their initial appointment. It was only on account of the undertaking given in the affidavit and the order dated 5.11.1993 that the petitioners' writ petition came to be dismissed as infructuous. It was only after a period of almost 13 years that the impugned order came to be passed withdrawing the benefit granted to the petitioners through an undertaking filed before the Court. Even a show cause notice served in the year 1996 for the same purpose was never acted upon in view of the reply filed by the CWP No. 20791 of 2008 -5- petitioners. The action of the respondents is totally unjustified. Firstly, those employees who were engaged later than the petitioners have been granted the benefit of regularization from their intial date of appointment. The petitioners cannot be treated differently as the Govt. Instructions equally apply to the petitioners as also those engaged in the S.Y.L. Canal Project. This fact is not disputed by the respondents in the reply. Respondents have adopted different yardsticks against the petitioners in the matter of regularization. Impugned order has been passed after a period of 13 years when the seniority of the petitioners was settled. The action of the respondents is totally unwarranted and uncalled for. No valid reasons have been indicated for hostile discremination against the petitioners. If, the Govt. Instructions are to be implemented, all similarly situated persons have to be treated alike. Respondents cannot be permitted to discriminate between the petitioners and similarly situated employees. Apart from above respondents have admitted the claim of the petitioners in CWP No.6266 of 1993. They cannot be permitted to retract from the same on the technical grounds that the writ petition was rendered infructuous. As a matter of fact the writ petition was declared as infructuous in view of the admission of the claim of the petitioners by the respondents. In view of the above, this petition is allowed. Impugned order (Annexure P-12) is hereby quashed. Petitioners shall be deemed to have been regularized from the date of their initial engagement on ad hoc/temporary basis. (PERMOD KOHLI) JUDGE 18.3.2011. lucky