CWP No. 13721 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 13721 of 2009 Date of decision: 07.04.2010 Director General, Health Services, Haryana at Panchkula and another ...... PETITIONERS VERSUS Shakuntla Devi and another ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. D.S.Nalwa, Addl. A.G. Haryana, for the petitioners. Mr. Rajesh Garg, Advocate, and Mr. Hitesh Pandit, Advocate, for respondent No. 1. *** AUGUSTINE GEORGE MASIH, J. (ORAL) Prayer in the present writ petition is for setting aside of the Award dated 06.03.2009 (Annexure P-1) passed by the Labour Court-cum- Industrial Tribunal, Hisar, vide which the reference has been answered in favour of the worklady holding her entitled to compensation to the tune of Rs. 50,000/- to be paid by the petitioner-department within a period of three months' with a further direction that she shall be appointed on the post of CWP No. 13721 of 2009 2 Multipurpose Health Workers (Female) forthwith on existence of any vacancy. Counsel for the petitioners submits that the Labour Court has totally misinterpreted the judgment passed by the learned Single Judge in CWP No. 9287 of 1995 titled as Kalawati and others vs. State of Haryana and others decided on 15.05.1997 wherein it has been stated by the learned Single Judge in his order that in case the posts are available, the claim of the petitioners shall be considered against those posts. He contends that the direction given by the learned Single Judge referred to the posts which were advertised and not to any subsequent vacancies or posts which would become available for appointment against the posts of Multipurpose Health Workers (Female). He contends that there is no question of violation of Section 25-F of the Industrial Disputes Act in the light of the fact that the services of the worklady were terminated in compliance with the order passed by this Court, wherein it has been held that the worklady could not have been appointed on the posts advertised for the reason that the first 129 posts are to be filled up on the basis of merit. The class or category to which a person belongs was irrelevant. On this basis, he contends that the Award passed by the Labour Court cannot be sustained and deserves to be set aside. On the other hand, counsel for respondent No. 1 submits that 129 posts of general category were advertised for filling up the posts of Multipurpose Health Workers (Female). In the general category candidates, the worklady made the grade and was accordingly, issued appointment letter. CWP No. 9287 of 1995 titled as Kalawati and others vs. State of Haryana and others was preferred by some of the reserve category candidates, wherein a plea was taken that the reserved category CWP No. 13721 of 2009 3 candidates were to be first considered as per their own merit and if they made the grade in the general category, those appointments should not be taken into consideration for the reserved posts of the reserve categories. The said writ petition was allowed by this Court and as a consequence thereof, the merit list of the worklady came to be 133. In the light of the said merit list, the service of the worklady was terminated by the petitioners by complying with the directions issued by this Court in CWP No. 11734 of 1997 titled as Geeta Rani and others vs. State of Haryana and another, decided on 27.08.1997 by giving a show cause notice and then considering the reply filed by the employees. He contends that the Award passed by the Labour Court is fully justified as the direction issued by the learned Single Judge dated 15.05.1997 clearly spelt out that the cases of the selected candidates should be considered against the posts available on the date of passing of the order. He contends that the Award passed by the Labour Court is fully justified and based on correct interpretation of the order passed by this Court. His submission is that the termination of the services of the worklady even if held to be in accordance with law but still in the light of the provisions of Section 25-H of the Industrial Disputes Act, the worklady would have a preferential right of re-employment over the other candidates as and when the advertisement for the posts of Multipurpose Health Workers (Female) was issued and, therefore, the claim granted by the Labour Court in favour of the worklady-respondent No. 1 is fully justified and does not call for any interference by this Court. I have heard the counsel for the parties and have gone through the records of the case. The facts are not in dispute. 129 posts meant for the persons of general category were advertised by the petitioner-department for CWP No. 13721 of 2009 4 appointment to the posts of Multipurpose Health Workers (Female) on 22.03.1994. Respondent No. 1-worklady was one of the applicants in response to the advertisement. She was duly selected by the selection committee and her name was recommended for appointment in the category of general candidates. Accordingly, on issuance of the appointment letter, she joined the service. CWP No. 9287 of 1995 was preferred by some reserved category candidates, wherein they had claimed that the reserved category candidates, who fall within and as per their own merit in the select list, should be first appointed against the vacancies advertised for the general category candidates and thereafter, who did not find a place in 129 posts advertised in the general categories should be considered as per their own merit in their own category depending upon the reservation and the posts advertised. The said writ petition was allowed by the learned Single Judge holding their contention to be correct and accordingly holding them entitled to appointment in the reserved category, to which they belong, by directing the respondents to first consider the candidates of the reserved categories on the basis of merit. An observation was made by the learned Single Judge in his judgment that in case the posts are available, the claim of the petitioners will be considered against those posts and in case no vacancies are available, then the appointment of any of the private respondents, as impleaded in this case, may have to be terminated. These observations of the learned Single Judge are very clear that these were with regard to the posts which were advertised and which would have for one reason or the other, remained vacant. In compliance with the directions issued by the learned Single Judge in CWP No. 9287 of 1995, the services of the worklady along with others, who were similarly situated belonging to the CWP No. 13721 of 2009 5 general category and who did not fall within the merit of 129, were terminated but since their termination was done without complying with the principles of natural justice, the challenge to the termination order was upheld by this Court vide order dated 27.08.1997 in CWP No. 11734 of 1997 titled as Geeta Rani and others vs. State of Haryana and another, along with other writ petition. However, liberty was granted to the respondents to issue show cause notice to the petitioners and on consideration of their responses, the department would proceed against them in accordance with law. In compliance with the directions issued in the subsequent writ petition dated 27.08.1997, notices were given to the worklady along with other similarly situated employees and on consideration of their responses, as their merit was found to be beyond 129 posts advertised in the general category, their services were terminated. No steps were taken by respondent No. 1-worklady to challenge the termination at that stage. In the year 2000, 67 posts of general category i.e. Multipurpose Health Workers (Female) were advertised. Respondent No. 1-worklady again applied in response to the said advertisement and she was issued Roll No. 241. She was interviewed in January, 2001. During the interview process, she submitted a representation Ex. W-7 dated 02.01.2001 stating therein that she had a preferential right of re- employment under Section 25-H of the Industrial Disputes Act and, therefore, she should be appointed against the vacant posts. Despite the said representation, her claim was not considered as per the provisions of Section 25-H of the Industrial Disputes Act. However, as she could not make the merit, therefore, no appointment letter was issued to her. Respondent No. 1- worklady preferred a demand notice. CWP No. 13721 of 2009 6 When the matter could not be resolved in the conciliation proceedings, the matter was referred to the Labour Court for adjudication, which considered the pleadings and the evidence leading to the passing of the impugned Award. The contention of the counsel for respondent No. 1-worklady that the learned Single Judge had, in his directions while allowing the writ petition, directed that the worklady was to be considered against the posts, which were available at the time of passing of the order, cannot be sustained for the simple reason that the directions are very clear and specific which deal with only the posts, which were advertised by the petitioners, in which selection process, the worklady had participated and in the light of the judgment passed by this court in CWP No. 9287 of 1995, she could not figure in the merit list as her merit number was 133 whereas 129 posts were to be filled in the general category only. In the light of this specific position, the observation made by the Labour Court in the impugned Award, which entitles the worklady for appointment against the posts of Multipurpose Health Workers (Female), cannot be sustained. The contention of the counsel for respondent No. 1-worklady with regard to the application of the provisions of Section 25-H of the Industrial Disputes Act in the case of the worklady, also cannot be accepted for the reason that the said provision would not be attracted in the case in hand. Firstly, her appointment was not in consonance with law and the same was set aside and her termination order was passed in compliance with the judgment passed by this Court, secondly, it is not the claim of the worklady-respondent No. 1 that there were posts available of the initial selection where she should have been considered as per the directions of the learned Single Judge. That being so, the claim of the CWP No. 13721 of 2009 7 worklady with regard to the violation of Section 25-H of the Industrial Disputes Act, is totally unfounded and uncalled for. The findings given by the Labour Court on this count, thus, cannot be sustained. Accordingly, the present writ petition is allowed. The impugned Award dated 06.03.2009 (Annexure P-1) passed by the Labour court-cum-Industrial Tribunal, Hisar, is hereby set aside. ( AUGUSTINE GEORGE MASIH ) JUDGE April 07, 2010 pj