Punjab-Haryana High Court
Bhawna And Another vs State Of Haryana And Another on 2 June, 2023
Neutral Citation No:=2023:PHHC:081270
CWP-22371-2021 (O&M) and
CWP-22376-2021 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on: 09.05.2023
Date of decision: 02.06.2023
1. CWP-22371-2021 (O&M)
BHAWNA AND ANOTHER
...Petitioners
VERSUS
STATE OF HARYANA AND ANOTHER
...Respondents
2. CWP-22376-2021 (O&M)
SONIA
...Petitioner
VERSUS
STATE OF HARYANA AND ANOTHER
...Respondents
CORAM: HON'BLE MS. JUSTICE JAISHREE THAKUR
Present:- Mr. Gurminder Singh, Senior Advocate with
Mr. J. S. Gill, Advocate
for the petitioners.
Mr. S. K. Kaushik, Addl. A.G., Haryana.
****
JAISHREE THAKUR, J.
1. By this common order, this Court proposes to dispose of the above
noted two writ petitions, as a common question of law is involved.
2. CWP No.22371 of 2021 has been filed under Articles 226/227 of the
Constitution of India, seeking issuance of a writ in the nature of certiorari for
quashing order dated 13.10.2021 (Annexure P-28) vide which, the petitioners,
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namely Bhawna and Sanjeev Kumar, have been reverted to their original post of
Computer Operator and Data Entry Operator respectively on contractual basis,
despite the fact that they stood absorbed in terms of Haryana Electricity Regulatory
Commission (Officer and Employees Condition of Service) Regulations, 2016,
with a further prayer to direct the respondents to allow the petitioners to continue
on the post of Junior Scale Stenographer and Assistant Librarian, respectively.
CWP No.22376 of 2021 has been filed, seeking issuance of a writ in
the nature of certiorari for quashing order dated 13.10.2021 (Annexure P-35) vide
which, the petitioner, namely Sonia, has been reverted to the post of Assistant
Director (Economics) on contractual basis despite the fact that she already stood
absorbed in terms of Haryana Electricity Regulatory Commission (Officer and
Employees Condition of Service) Regulations, 2016, with a further prayer to direct
the respondents to allow the petitioner to continue on the post of Deputy Director
(Economics).
3. In brief, the facts, as stated in CWP No.22371 of 2021, are that for the
purpose of computerization in the State of Haryana, Government of Haryana
established the Haryana State Electronics Development Corporation Limited
(HARTRON), for providing technical manpower to the various departments in the
State of Haryana. Petitioners were placed as Computer professionals with the
respondent-Commission by HARTRON on contract basis in terms of Haryana
Electricity Regulatory Commission (Officer and Employees Condition of Service)
Regulations, 2011. Petitioners No.1 and 2 joined the services as Computer
Operator and Data Entry Operator respectively in the respondent-Commission on
contract basis for a period of one year in terms of the placement letters dated
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27.12.2011 and 26.03.2013 and were working against sanctioned posts. Thereafter,
the petitioners were granted yearly extensions. In addition to their own duties,
petitioner No.1 was posted as Junior Scale Stenographer and petitioner No.2 was
posted/adjusted as Assistant Librarian vide order dated 18.09.2014. Even though
the petitioners were discharging their duties as Junior Scale Stenographer and
Assistant Librarian, however, in subsequent extension orders, they were still shown
as Data Entry Operators.
4. With regard to CWP No.22376 of 2021, the facts, as stated are that the
respondent-Commission issued an advertisement/notice in the year 2014, inviting
applications for the post of Assistant Director (Economics) in the Commission on
contract basis for a period of one year. Petitioner joined as Assistant Director
(Economics) on contractual basis on 20.11.2014 and was granted yearly extensions
from time to time. She was allotted and executed the work against the post of
Deputy Director (Economics).
5. Subsequently, the respondent-Commission in exercise of its powers
conferred by Section 91 of the Electricity Act, 2003 and with the approval of the
State Government, framed the Haryana Electricity Regulatory Commission
(Officer and Employees Condition of Service) Regulations, 2016, by repealing the
2011 Regulations. Regulations of 2016 provided for absorption of anyone, who is
working on the post of Junior Scale Stenographer and Assistant Librarian after
completion of three years of post qualification service in Commission and who is
working on the post of Deputy Director (Economics) after completion of two years
of post qualification service in Commission. The petitioners fulfilled the conditions
of qualifications as well as experience and submitted their applications for
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absorption. It was decided by the Commission, in its 91st meeting dated
24.12.2018, to absorb the petitioners in terms of 2016 Regulations. Vide order
dated 24.12.2018, the petitioners were permanently absorbed against the vacant
post of Junior Scale Stenographer, Assistant Librarian and Deputy Director
(Economics) respectively, as per the provisions of Haryana Electricity Regulatory
Commission (Officer and Employees Condition of Service) Regulations, 2016.
One Smt. Atti Devi, working as Clerk in the respondent-Commission and whose
services were regularized in terms of the 2014 Regularization Policy, requested the
benefit of absorption on the post of Junior Scale Stenographer, which is a
promotional post of Clerk, as has been done in the case of petitioner No.1 in CWP
No.22371 of 2021. The representation of Smt. Atti Devi was considered by the
then Chairman of the Commission on 07.01.2020 and the same was rejected. It is
thereafter, the Commission decided to re-examine the case of the petitioners herein
and issued them show cause notice. Thereafter, the petitioners stand reverted to
their original posts of Computer Operator, Data Entry Operator and Deputy
Director (Economics) respectively on contractual basis. Hence, these writ petitions.
6. Learned Senior Advocate appearing on behalf of the petitioners would
argue that once the petitioners stand absorbed in terms of Regulations of 2016,
there was no reason for reverting them and such orders would tantamount to
imposing a major punishment. It is submitted that the services of the contractual
employee can be absorbed in terms of 2016 Regulations as Appendix 'D' to 2016
Regulations provides that the post of Junior Scale Stenographer can be filled either
by direct recruitment or by promotion amongst Clerks having two years' post
qualification experience as such and having English shorthand at a speed of 100
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words per minute and transcription thereof at a speed of 20 words per minute and
Hindi shorthand at a speed of 80 words per minute and transcription thereof at a
speed of 15 words per minute and has passed the test conducted by the
Commission or by permanent absorption of the Junior Scale Stenographer, who
may already be working on the post in the Commission after completion of three
years of post qualification service in the Commission. The post of Assistant
Librarian can be filled either by direct recruitment or by deputation or by
permanent absorption of the Assistant Librarian, who may already be working on
the post in the Commission for three years of post qualification service in the
Commission and the post of Deputy Director (Economics) can be filled either by
direct recruitment or by promotion from amongst Assistant Directors having
minimum two years post qualification experience in the Commission as such or its
equivalent or by deputation or by permanent absorption of the officer, who is
already working on post in the Commission, after completion of two years of post
qualification service in the Commission. However, in case of permanent absorption
of an officer, who was working as Assistant Director in the Commission for the
last two years and has been promoted as Deputy Director
(Accounts/Finance/Economics), the condition for serving two years on deputation
in the economics on the post of Deputy Director (Accounts/Finance/Economics)
shall not be applicable. Furthermore, the respondent-Commission has failed to
disclose any provision in the impugned order, as per which a contractual employee
cannot be absorbed in the Commission.
7. Learned counsel appearing on behalf of the respondents would urge
that the respondents while rectifying their mistake have recalled the order dated
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24.12.2018 and restored the petitioners to their original post of Computer Operator,
Data Entry Operator and Assistant Director (Economics), vide order dated
13.10.2021, on which they were initially engaged on contractual basis before their
appointment as Junior Scale Stenographer, Assistant Librarian and Deputy
Director (Economics). It is further submitted that the petitioners are not entitled to
be absorbed on the promotional post of Junior Scale Stenographer, Assistant
Librarian and Deputy Director (Economics) as enumerated in the grounds taken in
the impugned order dated 13.10.2021, as the petitioners had been initially engaged
on contractual basis before they came to be absorbed as Junior Scale Stenographer,
Assistant Librarian and Deputy Director (Economics). It is submitted that in terms
of the Employment Exchanges (Compulsory Notification for Vacancies) Act,
1956, public posts are to be filled up after inviting applications from the general
public, by judging the suitability of each candidate and, thereafter, to offer
appointment and any deviation from the abovesaid Act, will make appointments
illegal. It is further argued that the petitioners knew that their services could not be
regularized under the 2014 policy as they did not fall within the eligibility
conditions on the cut off date and, therefore, submitted representations on
15.12.2018 for their absorption on a higher post, than the post on which they were
engaged on contractual basis. The request of the petitioners for absorption was
inadvertently accepted and by the impugned orders, the mistake has been rectified
and the petitioners have been reverted back to the position of contractual
employees. Reliance in this regard has been placed upon judgments passed in
Sunder Lal and others versus State of Punjab, AIR 1970 P.H. 241; Anand
Prakash versus State of Punjab, 2005 (4) RJ 749; Raj Kumar Batra versus State
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of Haryana, 1992 (1) SCT 129; Chandigarh Administration versus Narang
Singh, J.T. 1997 (3) SC 536; G. Srinivas versus Government of A.P. and others,
2005 (13) SCC 712 and Union of India versus Narendar Singh, 2008 (2) SCC
750. It is further argued that there is no definition of an employee under the
Haryana Electricity Regulatory Commission (Officer and Employees Condition of
Service) Regulations, 2016 and such a definition of the Government employee will
be derived from the definition as given in Haryana Civil Services (General) Rules,
2016 and by virtue of the definition as stipulated in Section 2(36) of the Rules of
2016, the petitioners being on contract are not holding a public post and, therefore,
could not be absorbed.
8. I have heard learned counsel for the parties, and with their able
assistance, have gone through the pleadings of the case.
9. Admittedly, the petitioners came to be appointed to various posts on
contractual basis. The petitioners continued to work and were also given additional
duties as Junior Scale Stenographer, Assistant Librarian and Deputy Director
(Economics). Though the petitioners were discharging their duties as Junior Scale
Stenographer, Assistant Librarian and Deputy Director (Economics), their
extension orders reflected that they were working as Computer Operator, Data
Entry Operator and Assistant Director (Economics). The Regulations of 2016 and
Appendix-D would stipulate how the post of Junior Scale Stenographer, Assistant
Librarian and Deputy Director (Economics) are to be filled up. One of the modes is
by permanent absorption of Junior Scale Stenographer and Assistant Librarian,
who may be already working on the post in the Commission after completion of
three years of post qualification service in the Commission, meaning thereby, any
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person who had been working on the post of Junior Scale Stenographer for a
period of three years with the Commission and further in the case of Deputy
Director (Economics), after completion of two years of post qualification service in
the Commission, would be entitled to permanent absorption. Based on the
Regulations of 2016, the petitioners applied for absorption by contending that they
had worked on the post of Junior Scale Stenographer, Assistant Librarian and
Deputy Director (Economics) and it was after due consideration and deliberation
that they were absorbed by the Chairman of the Commission in its 91st meeting
held on 24.12.2018.
10. The argument raised by learned counsel for the respondents that the
petitioners were not eligible for regularization under the 2014 policy and chose a
method of getting themselves absorbed under the Regulations of 2016, is not
tenable as a perusal of minutes of the 91st meeting held, would reflect that there
was due consideration of the applications given. Merely because the petitioners
would not fall within the State Policy, 2014 for regularization, it cannot be held
that the Regulations policy of 2016 cannot be made applicable to the petitioners
herein. The mode of recruitment as specified in the regulation itself provides that
any person, who had worked on the post of Junior Scale Stenographer and
Assistant Librarian for a period of three years and on the post of Deputy Director
(Economics) for a period of two years, could be permanently absorbed in the
Commission.
11. Learned counsel for the respondents-State would urge that none of the
petitioners herein are Government employees as stipulated in Section 2(36) of the
Haryana Civil Services (General) Rules, 2016, since the said definition specifically
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excluded persons, who are appointed on contractual basis, appointed as casual or
daily rated or part time employees, paid from contingencies/contingent charges or
work charged establishment. However, this argument itself would not be
sustainable as the respondent-Commission is bound by its own regulations as
formulated in the year 2016, overruling the Regulations of 2011. The word
employee does not find mention therein. Even in the Appendix-D as relied upon,
the mode of recruitment is either by direct recruitment, promotion, deputation or
permanent absorption of Junior Scale Stenographer, Assistant Librarian and
Deputy Director (Economics) and the regulation does not draw any distinction
therein that a person has to be a regular employee of the Commission. A person
working through a contract has not been specifically ousted. The argument that
public posts are to be filled up after inviting applications from the general public in
terms of Employment Exchanges (Compulsory Notification for Vacancies) Act,
1956, would not be applicable since the regulation itself allows for the vacancies to
be filled up through promotion and absorption. The argument of the respondents
that the petitioners have sought to get themselves absorbed with the Commission
even though they were not entitled to regularization under the State Regularization
Policy, 2014, sans merit since the respondent-Commission was well aware of the
fact that the petitioners themselves were contractual employees and, thereafter, a
conscious decision was taken in its meeting held on 24.12.2018 to absorb them
under 2016 Regulations. The matter was deliberated upon and a legal opinion was
taken before the petitioners herein were absorbed with the Commission. Since the
petitioners were regularized/absorbed in service after due deliberation, it cannot be
said that the request of petitioners was accepted by mistake. Therefore, the
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judgments as relied upon by the respondents for rectifying the mistake are not
applicable to the facts in hand. Even otherwise, the law is well settled that the
successor in office does not have the jurisdiction to review or modify the order
passed by its predecessor. In this regard, reliance can be placed upon a judgment
rendered by the Supreme Court in Vinod Kumar versus State of Haryana and
others, 2014(1) SCT 312 and by this Court in CWP No.13794 of 1995, titled as
Balwinder Singh versus State of Punjab and others, decided on 17.05.2017.
12. Consequently, both the writ petitions are allowed and the
impugned orders dated 13.10.2021 (Annexure P-28) in CWP-22371-2021 and
dated 13.10.2021 (Annexure P-35) in CWP-22376-2021, whereby the petitioners
herein have been reverted as contractual employees, are hereby set aside.
(JAISHREE THAKUR)
02.06.2023 JUDGE
Chetan Thakur
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2023:PHHC:081270
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