CWP No.5265 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.5265 of 2007 Date of Decision: 5.5.2009 Dharamender Singh ...Petitioner V E R S U S State of Haryana and another ...Respondents CORAM: HON'BLE MR. JUSTICE AJAY TEWARI Present: Mr. S. K. Tamak, Advocate for the petitioner. Mr. Harish Rathee, Sr. DAG, Haryana for respondent Nos.1 & 2. Mr. R. K. Malik, Sr. Advocate with Mr. Ashish Chaudhry, Advocate for respondents No.4, 5 and 7. AJAY TEWARI J. (ORAL) The petitioner has challenged the action of the respondents for not issuing him appointment as Heavy Vehicle Driver on the ground that on the cut off date, his driving licence was not three years old as envisaged by the rule. The grouse of the petitioner is that the private respondent Nos.4 to 7 also suffered the same disability as he had and they were in lower rank than him in the merit list. However, relaxation was granted to them while the same was denied to the petitioner. In reply, it has been stated that the respondents had issued notices to the private respondents to show cause why the relaxation granted to them be not withdrawn. Thus as per the respondents, the petitioner could not have any surviving cause of action. However, learned counsel for the petitioner has argued that CWP No.5265 of 2007 -2- against the show cause notices issued to the private respondents they filed civil writ petition and the said show cause notices were quashed. Learned counsel for the petitioner does not dispute the finding of the inquiry officer but relies upon a judgment of this Court in CWP No. 13941 of 2008 titled Constable Kanwal Singh, No. 214/IRB V. State of Haryana and others wherein by judgment and order dated 27.11.2008 a Division Bench held as follows:- “It is not in dispute, as we have pointed out earlier that none of the petitioners had the requisite number of 3 years of experience as licence holders of heavy vehicles. They held three years experience only as holders of light motor vehicles and only by continuance in service after the appointment of the petitioners, all the petitioners obtained the requisite three years experience as holders of heavy motor vehicles. If we must be concerned about the continuance of employment only on the basis of initial eligibility, we could have had no option but to keep a hands off approach. But we must remember that the petitioners were being employed not on any highly technical or skilled work, although drivers require basic skills and it is the issuance of driving licences that guaranteed their respective eligibility. The number of years of experience was also relevant for after all, an employer was entitled to insist and expect that with experience they would have gained better control and applied norms of safety and CWP No.5265 of 2007 -3- exhibited higher efficiency while driving. It is now not the case that owing to any lack of experience, the respondents had suffered any loss. The experience that they have gained through the years since their employment in 2002 till the time when the show cause notices were issued, in 2008, they have sufficiently filled up the initial lacuna. It has been held by the Supreme Court of India in Bhagwati Prasad and others Vs. Delhi State Mineral Development 1990 1 S.C.C 361 while adverting to the value of experience, that education would not always give experience and if the experience has been obtained during the service, that itself would be sufficient ground for retention of service and not to terminate on the ground of lack of the requisite educational qualification. The learned Senior counsel for the petitioners rely on the judgment of the Supreme Court in AIR 1978 SC 1536 1979 1 SCC 168 where the Hon'ble Supreme Court was addressing the issue of the appointment of Statistical Officer who did not fulfill the requisite qualification at the time of appointment but who had obtained necessary experience subsequently during the service and that was good enough justification for retention of service without termination. We find ourselves bound by the decision of the Supreme Court and we are in full agreement with raison- d'tre (sic) found in the above judgment. We CWP No.5265 of 2007 -4- quash the show cause notices in the above circumstances and uphold the contentions of the petitioners. Consequently, the respondents shall not give effect to any proposal for termination of the services of the petitioners. The summary rejection of a driver's plea in CWP No. 19039 of 2003 (R-3) that he did not have the requisite experience offers no value of precedent to us, since we are now concerned about the status of the drivers who have been allowed to be continued in service for over six years without any action on the part of the respondents and the complaint of lack of experience could no longer avail to the respondents to justify this proposed action to terminate their services.” Learned counsel for the petitioner has also relied upon the following judgments:- (i)Sanjay Kumar v. State of Haryana and others in CWP No.14790 of 2006 decided on 29th May, 2007. (ii)Ram Sarup v. State of Haryana and others reported as AIR 1978 Supreme Court 1536. (iii)Sheela Devi v. State of Haryana and others reported as 1994 (2) SLR 411. (iv)Deepak Sharma v. State of Haryana reported as 1996(1) SCT 594. (v)Purnendu Mukhopadhyay and others v. V. K. Kapoor and another reported as 2008 (1) RSJ 288. (vi)Pawan Kumar v. Haryana Public Service CWP No.5265 of 2007 -5- Commission and another reported as 2005(2)SLR 794. (vii)Ranjit Singh v. State of Haryana reported as 2001(4) SCT 372. He contends that in all these cases it was held that a similarly situated ineligible persons lower in merit were appointed, the same benefit has to be granted to the person who is higher in merit. The other argument which has been based on these judgments is that initial ineligibility regarding experience can always be cured by the fact of having worked on the post in question. In my opinion, both the contentions of the learned counsel are misplaced. Regarding the first contention, it has to be noticed that as soon as the respondents came to know about the differential treatment meted out to the petitioner they initiated action to terminate the services of the other similarly situated employees. The fact that this Court set aside that action would not bring into play the argument of discrimination against the respondents. As regards the second argument, it must be noticed that all these cases relate to persons who were actually appointed and cured their lack of experience by actually working. As noticed above, the petitioner was never appointed and thus it cannot be said that the petitioner's initial ineligibility has been cured by experience. Consequently, this writ petition is dismissed. ( AJAY TEWARI ) May 05, 2009 JUDGE ashish