CWP No.16059 of 2005 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C. W. P. No. 16059 of 2005 Date of Decision: 30 - 9 - 2010 Dalel Singh ....Petitioner v. State of Haryana and others ....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.R.K.Malik, Sr. Advocate with Mr.Surya Partap Singh, Advocate for the petitioner. Mr.Himanshu Raj, AAG, Haryana for the respondents. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) Petitioner has approached this Court with the prayer that the order of termination of his services dated 11.3.2005, Annexure P9, be quashed and that his services be ordered to be regularised as per policy dated 5.11.1999, Annexure P11, with all consequential benefits including pensionary benefits. Briefly stated, the petitioner was appointed as a Patwari w.e.f. 18.12.1974. The impugned order, Annexure P9, reveals that petitioner had submitted an application on 12.12.1974 for the post of Patwari before the CWP No.16059 of 2005 [2] Executive Officer, Panchayat Samiti, Pundri. The application was accompanied by an attested copy of Matriculation certificate and training certificate obtained from Patwar School for the period 1.9.1968 to 28.2.1969. The Executive Officer, Panchayat Samiti, Pundri appointed the petitioner against a vacant post of Patwari in the pay scale of Rs.110-225/-. It surfaced that petitioner had failed in Paper No.4 of Patwari, therefore, his services were dispensed with on 18.7.1979 as the Director, Panchayats, Haryana came to the conclusion that appointment of the petitioner cannot be regularised by giving relaxation in the said paper. The Deputy Commissioner, Kurukshetra on 20.8.1979 again appointed the petitioner as a Patwari in Kaithal Block on ad hoc basis. However, the order of appointment was not sent to the Director, Panchayats for approval. The petitioner continued to serve the State of Haryana. Three months before his superannuation i.e. 30.6.2005, petitioner approached this Court by filing Civil Writ Petition No.3847 of 2005 apprehending his termination . In that writ petition, notice of motion was issued and termination of the petitioner was stayed. During the pendency of that writ petition, termination order, Annexure P9, was passed on 11.3.2005. Petitioner filed C.M.No.14863 of 2005 in that writ petition seeking permission to amend the writ petition. That prayer was declined. However, liberty was granted to the petitioner to file a fresh writ petition. Hence, the present writ petition. Mr.R.K.Malik, senior counsel, appearing for the petitioner has stated that due to stay of termination of the services during the pendency of Civil Writ Petition No.3847 of 2005, petitioner had retired on 30.6.2005 after attaining the age of superannuation. However, order of termination, Annexure P9, stands till today. He has further submitted that, even if, CWP No.16059 of 2005 [3] service rendered by the petitioner w.e.f. 18.12.1974 to 17.3.1977 is ignored, the petitioner with effect from 20.8.1979 till 30.6.2005 had served the State of Haryana for uninterrupted period of 25 years and 10 months. Mr.Malik has relied upon a notification dated 5.11.1999, Annexure P11, a policy of the Government of Haryana published in the Government Gazette. This policy states that those employees who had served in Group `C' posts for a minimum period of fifteen years, even if they do not fulfill the educational qualifications, as a personal measure to them, their services can be regularised. However, a rider has been put that services of those employees will be regularised, who have been recruited through Employment exchange or directly appointed by the appointing authority, after obtaining non- availability certificate from the Employment Exchange. The petitioner was neither recruited through the Employment Exchange nor he was directly appointed by the appointing authority after obtaining non-availability certificate from the Employment Exchange. Be that as it may, the matter of fact remains that petitioner served the State of Haryana for an uninterrupted period of 25 years 10 months as an ad hoc employee. The services of the petitioner were not regularised under Policy, Annexure P11, as his name was neither requisitioned from the Employment Exchange nor the appointing authority had obtained necessary non-availability certificate from the Employment Exchange. In Bimal Kumar v. State of Haryana and another, 1996(2) RSJ 290 it has been held that in case name has not been routed through Employment Exchange, it cannot be construed a serious objection in view of the fact that the employee had rendered service for such a long duration. CWP No.16059 of 2005 [4] Paragraph 7 of the judgment reads as under:- “7. In the facts and circumstances, fully detailed above, coupled with the fact that the petitioner has been in employment of the respondents for the last 18 years, it would be too iniquitous and unjust to tell him to pack up and search for another job. The Supreme Court in Bhagwati Prasad v. Delhi State Mineral Development Corporation, AIR 1990 SC 371, where the employee did not have practical experience so required for the post, was still employed and had continued to work for some years, held that "practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of initial entry into the service. Once the appointments of petitioners were made as daily rated workers and they were allowed to work for a considerable length to time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. It can be said that three years' experience, ignoring artificial break in service for short period/periods created by the Management, in the circumstances, would be sufficient for confirmation." This view of the Supreme Court has been followed by me in Civil Writ Petition No. 1549 of 1990 (Krishna Kaman Rae v. Haryana Warehousing Corporation) decided on July 5, 1994. The case in hand is on far better footing as in the present case all that is objected to is that the name of petitioner was not routed through the employment exchange whereas the petitioners in the cases aforesaid, were not having requisite qualification or experience.” Counsel for the State has relied upon Secretary, State of Karnataka and others v. Umadevi (3) and others, (2006)4 SCC 1 to say that appointment of those employees who were appointed de hors of the CWP No.16059 of 2005 [5] rules cannot be regularised. This argument cannot be accepted as in Umadevi's case (supra) it was observed that for those employees who have more than 10 years of service, State can formulate policy to regularize their services. In the present case, policy Annexure P11, was already in existence. Therefore, the State cannot be asked to make policy, Annexure P11, nugatory. Even otherwise, case of the petitioner is squarely covered by the ratio of law propounded in Bhagwati Prasad's case (supra), reliance upon which was placed in Bimal Kumar's case (supra). If the petitioner was lacking necessary educational qualification and his name was not routed through Employment Exchange, it was incumbent upon the officials not to give appointment to the petitioner. It was expertise and proficient knowledge skill of the petitioner which had impressed his immediate officials. Therefore, they allowed him to continue in service. Had the petitioner been a bad worker, his services would have been dispensed with by the officials of the State. The petitioner who had served the State of Haryana to the best of his ability for more than twenty five years and was near the age of superannuation cannot be shown the door and turned out. From August, 1979 to June, 2005, many officials occupied the post of Deputy Commissioner. In the hierarchy of the revenue officials, Patwari is under Kanungo, Naib Tehsildar, Tehsildar and other officials. Even the Sub Divisional Magistrate acts as Assistant Collector Grade II. They all not only allowed the petitioner to serve the State but also deployed him at various places for furtherance of the interest of the State. What is the justification for the officials of the State after about 26 years to open the case when the petitioner had superannuated. Therefore, the petitioner cannot be denied the benefit of regularisation under policy, CWP No.16059 of 2005 [6] Annexure P11. It was necessary for the State to have considered the case of the petitioner sympathetically. The very fact that petitioner served the State of Haryana for 25 years and 10 months and for a period of 3 years i.e. from 1974 to 1977 is sufficient to hold that he should be allowed pensionary benefits. The petitioner had served the State of Haryana for almost three decades. Hence, the present writ petition is allowed. The impugned order, Annexure P9, is set aside and a writ in the name of mandamus is issued to the respondents to regularise the services of the petitioner in view of policy, Annexure P11. The respondents are further directed to calculate and disburse to him his due pensionary benefits within a period of six months from the date of receipt of a certified copy of this order. No costs. ( KANWALJIT SINGH AHLUWALIA ) September 30, 2010. JUDGE RC