Divisional Manager, Aravali Golf Club & ... vs Chander Hass & Anr

4. The brief facts which are necessary for the disposal of the present appeal are that the plaintiffs (respondents in this appeal) were appointed as Mali (gardener) in the service of the defendant-appellant, which is a golf club run by the Haryana Tourism Corporation in the year 1989 and 1988 respectively on daily wages. Subsequently in the year 1989 they were told to perform the duties of Tractor Drivers, though there was no post of tractor driver in the employers establishment. However for a number of years they continued to be paid wages for the post of Mali.

5. Thereafter on a recommendation made by the Head Office, the appellants started paying them wages of tractor driver on daily wage basis, as per rates recommended by the Deputy Commissioner. Though they continued to work for about a decade as tractor drivers, their services were regularized against the post of Mali in the year 1999 and not as tractor driver. When despite representations their grievance was not redressed, the respondents herein filed civil suit in the month of April, 2001 claiming regularization against the posts of tractor driver. Their claim was rejected by the Trial Court which observed that there was no post of tractor driver in the establishment, and the suit was dismissed. The Trial Court held that plying a tractor is part and parcel of the job of Mali in a Golf Club, since the Golf Field of the Club is vast and needs to be maintained with mechanical gadgets.

6. Aggrieved against the said order of dismissal of the suit, the respondents herein preferred an appeal before the Additional District Judge, Faridabad. Their appeal was accepted and the judgment and decree of the Trial Court was set aside. The First Appellate Court observed that the defendants were taking the work of tractor driver from the plaintiffs since 13.8.1999, and hence it directed the defendants to get the post of tractor driver sanctioned, and to regularize the plaintiffs on that post.

7. Thereafter the Divisional Manager, Aravali Golf Club filed a second appeal before the High Court of Punjab and Haryana. The learned Single Judge held that the post of tractor driver should be created as there is no hitch in not creating the posts of drivers especially when tractors were available and there existed need to use those tractors. It was also observed by the learned Single Judge that simply by relying upon technicalities the State authorities cannot be allowed to suppress the individuals and to deny their lawful rights. The learned Single Judge also held that no substantial question of law arose in the matter. Hence, the second appeal was dismissed and the judgment of the First Appellate Court was upheld. Aggrieved against the said judgment of the learned Single Judge, the appellants are in appeal before us.

8. The plaintiff-respondents admitted in the plaint that they were appointed as Mali. In the suit the plaintiff-respondents stated that they were working as tractor driver at Aravali Golf Club. Initially they were engaged on daily wages. Thereafter their services were regularized on the post of Mali (gardener) instead of tractor driver. The respondents filed a representation before the concerned authorities for regularizing them on the post of Tractor Driver, but that was not done since there was no post of tractor driver. Therefore, the respondents filed a suit.

9. The suit was contested by the defendants-appellants. The appellants in their written statement submitted that the plaintiffs were appointed as Mali on a daily wage basis on 9.10.1989. The respondent No.1 had earlier filed Writ Petition No.6216/1991 for regularizing his services. The Honble High Court disposed of the said writ petition by passing the order directing the respondent No.1 to make a representation against the termination of his services and the appellants herein were restrained from terminating the services of the respondent No.1 till his representation was decided. The writ petition was accordingly disposed of.

10. In pursuance of the said order the respondent No.1 made representation for regularization of his service on 2.5.1991. The plaintiff- respondent was informed vide order dated 14.5.1991 that there was no post of tractor driver and his case for regularization would be considered as and when sanctioned post of the tractor deriver will be available.

11. The plaintiff-respondent was paid wages of tractor deriver from August 1990 to 11.5.1999 on daily wage basis on D.C. rate as he was asked to work as a tractor driver. He was also informed that whenever a post of tractor driver was created, his case for appointment of tractor deriver will be considered. In the meanwhile services of plaintiff No.1 was regularized as Mali vide order dated 11.5.1999 which was duly accepted by him without any protest. Similar is the case of respondent No.2 herein. He was engaged as Mali on daily wage basis w.e.f. 1.9.1988 and his services were also regularized as Mali vide order dated 11.5.1999.

12. In the written statement in the suit the appellants took preliminary objection that as there is no sanctioned post of tractor driver and hence there is no question of their being appointed on the post of tractor driver. It was also asserted in the written statement that as and when the post of tractor driver will be available their cases will be considered in accordance with law. On the basis of these pleadings, several issues were framed and a finding was recorded by the Trial Court that as there is no sanctioned post of tractor driver, the plaintiffs cannot be regularized in the said post. This is a finding of fact recorded by the Trial Court and it was never disputed at any stage. Aggrieved against the said judgment the respondents herein filed an appeal and the learned First Appellate Court without going into the merit of the matter set aside the judgment and decree of the Trial Court and directed creation of the post of tractor driver, and regularization of the respondents on the said post. Against the said order of the First Appellate Court, the appellants herein preferred a second appeal before the High Court of Punjab and Haryana. The learned Single Judge has affirmed the judgment and order of the First Appellate Court.

14. Since there is no sanctioned post of tractor driver against which the respondents could be regularized as tractor driver, the direction of the First Appellate Court and the learned Single Judge to create the post of tractor driver and regularizing the services of the respondents against the said newly created posts was in our opinion completely beyond their jurisdiction.

16. Consequently, this appeal is allowed and the judgment and order of the High Court as well as that of the First Appellate Court are set aside and the judgment of the Trial Court is upheld. The suit is dismissed. No costs.

38. The moral of this story is that if the judiciary does not exercise restraint and over-stretches its limits there is bound to be a reaction from politicians and others. The politicians will then step in and curtail the powers, or even the independence, of the judiciary (in fact the mere threat may do, as the above example demonstrates). The judiciary should, therefore, confine itself to its proper sphere, realizing that in a democracy many matters and controversies are best resolved in non-judicial setting.

Appeal Allowed.