Punjab-Haryana High Court
Ashish Sharma And Others vs State Of Haryana And Others on 13 March, 2024
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2024:PHHC:042762
Neutral Citation No.2024:PHHC:042762
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Decided on :13.03.2024
105 CM-4231-2024 in/and
CWP No. 2158-2020 (O&M)
ASHISH SHARMA AND OTHERS ......PETITIONERS
Versus
STATE OF HARYANA AND OTHERS
... RESPONDENTS
102. CM-4072-CWP-2024 in/and
CWP-24397-2015 (O&M)
MUKHTYAR SINGH AND ORS ......PETITIONERS
Versus
STATE OF HARYANA AND ANR . . . RESPONDENTS
104. CM-4204-CWP-2024 in/and
CWP-9335-2017 (O&M)
SUNIL AND ANR ......PETITIONERS
Versus
STATE OF HARYANA AND ORS . . . RESPONDENTS
107.1 CM-1939-CWP-2024 in/and
CWP-2286-2021 (O&M)
VIRENDER SINGH MAAN ......PETITIONER
Versus
STATE OF HARYANA AND ORS . . . RESPONDENTS
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107.2 CM-1962-CWP-2024 in/and
CWP-2753-2021 (O&M)
RAM NIWAS ......PETITIONER
Versus
STATE OF HARYANA AND ORS . . . RESPONDENTS
107.3 CM-1974-CWP-2024 in/and
CWP-18677-2021 (O&M)
NARESH KUMAR ......PETITIONER
Versus
STATE OF HARYANA AND ORS . . . RESPONDENTS
107.4 CM-1944-CWP-2024 in/and
CWP-2760-2021 (O&M)
DINESH KUMAR ......PETITIONER
Versus
STATE OF HARYANA AND ORS . . . RESPONDENTS
107.5CM-1977-CWP-2024 in/and
CWP-2767-2021 (O&M)
SHAMSHER SINGH ......PETITIONER
Versus
STATE OF HARYANA AND ORS . . . RESPONDENTS
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110. CM-4229-CWP-2024 in/and
CWP-12006-2022 (O&M)
FATIA ......PETITIONER
Versus
STATE OF HARYANA AND ORS . . . RESPONDENTS
209 CWP No. 6125-2017 (O&M)
BIRMATI AND OTHERS ......PETITIONERS
Versus
STATE OF HARYANA AND OTHERS
... RESPONDENTS
210 CWP -26519-2017 (O&M)
TEJ BHAN AND OTHERS ......PETITIONERS
Versus
STATE OF HARYANA AND OTHERS
... RESPONDENTS
212 CWP No. 2568-2018 (O&M)
ZILE SINGH ......PETITIONER
Versus
STATE OF HARYANA AND OTHERS
... RESPONDENTS
212.2 CWP -- 28241-2017 (O&M)
OMA ......PETITIONER
Versus
STATE OF HARYANA AND OTHERS
... RESPONDENTS
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212.3 CWP-3165-2018 (O&M)
RAJA @ RAJINDER ......PETITIONER
Versus
STATE OF HARYANA AND OTHERS
... RESPONDENTS
217 CWP-24505-2018 (O&M)
MANGE RAM ......PETITIONER
Versus
STATE OF HARYANA AND OTHERS
... RESPONDENTS
218 CWP-24828-2018 (O&M)
JAGDEV ......PETITIONER
Versus
STATE OF HARYANA AND OTHERS
... RESPONDENTS
218.2 CWP-32181-2018 (O&M)
RAJ KUMAR ETC ......PETITIONER
Versus
STATE OF HARYANA AND OTHERS
... RESPONDENTS
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219 CWP-25778-2018 (O&M)
HANS RAJ AND OTHERS ......PETITIONERS
Versus
STATE OF HARYANA AND OTHERS
... RESPONDENTS
219.2 CWP-3659-2019 (O&M)
TARSEM SINGH AND OTHERS ......PETITIONERS
Versus
STATE OF HARYANA AND OTHERS
... RESPONDENTS
221 CWP - 29162-2018 (O&M)
KAMAL SINGH ......PETITIONER
Versus
STATE OF HARYANA AND OTHERS
... RESPONDENTS
222 CWP -30168-2018 (O&M)
PHUL SINGH ......PETITIONER
Versus
STATE OF HARYANA AND OTHERS
... RESPONDENTS
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230 CWP-9327-2019(O&M)
AZAD SINGH ......PETITIONER
Versus
STATE OF HARYANA AND OTHERS
... RESPONDENTS
231 CWP -11914-2019 (O&M)
SANTOSH DEVI ......PETITIONER
Versus
STATE OF HARYANA AND OTHERS
... RESPONDENTS
232 CWP-14720-2019 (O&M)
DEVENDER ......PETITIONER
Versus
STATE OF HARYANA AND OTHERS
... RESPONDENTS
237 CWP -2595-2020 (O&M)
BHUPENDER AND OTHERS ......PETITIONERS
Versus
STATE OF HARYANA AND OTHERS
... RESPONDENTS
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239 CWP-9847-2020 (O&M)
RAMESH KUMAR AND ANR ......PETITIONERS
Versus
STATE OF HARYANA AND OTHERS
... RESPONDENTS
241 CWP-12777-2020 (O&M)
BHAJNA ......PETITIONER
Versus
STATE OF HARYANA AND OTHERS
... RESPONDENTS
244 CWP-21397-2020 (O&M)
SOM NATH ......PETITIONER
Versus
STATE OF HARYANA AND OTHERS
... RESPONDENTS
250 CWP-6222-2021 (O&M)
OM PARKASH ......PETITIONER
Versus
STATE OF HARYANA AND OTHERS
... RESPONDENTS
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251 CWP-6993-2021 (O&M)
SATISH KUMAR ......PETITIONER
Versus
STATE OF HARYANA AND OTHERS
... RESPONDENTS
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
PRESENT: Mr. Jaspal Singh Maanipur, Advcoate with
Mr. Joypreet, Advocate
for the petitioner in CWP No. 2158 of 2020 and
CWP-6222-2021.
Mr. R. K. Malik, Senior Advocate with
Mr. Kartikey Chaudhary, Advocate for the petitioners
in CWP No. 24397-2015.
Mr. Tara Chand Dhanwal, Advocate
for the petitioners in CWP-2286-2021,
CWP-2753-2021, CWP-18677-2021,
CWP-2760-2021, CWP-2767-2021.
Mr. A. P. Bhandari, Advocate
for the petitioner in CWP No. 12006 -2022 &
CWP-9335-2017
Mr. Ajay Chaudhary, Advocate,
Ms. Jai Shree Kaushik, Advocate and
Mr. Aryavarat, Advocate for the petitioners
in CWP-6125-2017, CWP-3165-2018, CWP-30168-2018,
CWP-14720-2018 and CWP-3659-2019.
Mr. Ajay Redhu, Advocate for
Mr. Jagjeet Beniwal, Advocate and
Mr. Amarjit Beniwal, Advocate for the petitioners
in CWP No. 2568-2018 and CWP-28241-2017
and CWP-26519-2017.
Mr. Deepak Sonak, Advocate and
Mr. Vikas Sonak, Advocate
for the petitioners in CWP-24505-2018, CWP-24828-2018,
CWP-25778-2018.
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Mr. Shalender Mohan, Advocate
for the petitioners in CWP-32181-2018.
Mr. Ramesh Goyat, Advocate and
Mr. Ankur Goyat, Advocate
for the petitioners in CWP-29162-2018.
Mr. Sandeep Parkash Chahar, Advocate
for the petitioner in CWP-9327-2019.
Mr. Ram Niwas Sharma, Advocate
for the petitioner in CWP-11914-2019.
Mr. Surinder Kumar Daaria, Advocate
for the petitioner in CWP -2595-2020/
Mr. Sunil Kumar Bhardwaj, Advocate
for the petitioner in CWP-9847-2020.
Mr. S. K. Verma, Advocate
for the petitioner in CWP-12777-2020, CWP-21397-2020.
Mr. Pankaj Kalia, Advocate for
Mr. Karanvir SIngh Khehar, Advocate
for the petitioner in CWP-6993-2021.
Mr. Harish Rathee, Sr. DAG, Haryana.
Mr. Pankaj Middha, Additional Advocate General, Haryana.
Mr. Tapan Kumar Yadav, DAG, Haryana.
Mr. Harish Nain, AAG, Haryana.
Ms. Vibha Tewari, AAG, Haryana.
****
HARSIMRAN SINGH SETHI , J. (Oral)
CM-4072-CWP-2024, CM-4204-CWP-2024, CM-4231-2024, CM-1939-
CWP-2024, CM-1962-CWP-2024, CM-1974-CWP-2024, CM-1944-
CWP-2024 ,CM-1977-CWP-2024, CM-4229-CWP-2024
The present applications are allowed as prayed for.
The main cases are taken up for hearing today itself.
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Main case(s):-
1. As all the abovementioned writ petitions involve the same
question of law, arising out of similar facts pertaining to the issue of
regularization of the services of petitioners, the same are being disposed of
by this common order.
2. Certain facts are required to be stated before hand for the correct
appreciation of the issue involved in the present bunch of petitions, which are
stated as under.
2.1 The grievance of the petitioners in the present bunch of petitions
is that they are entitled for regularization of their services under the
regularization policy issued by the Government of Haryana on 01.10.2003,
copy of which has been appended as Annexure P-2 with CWP No.2158-2020.
2.2 It may be noticed that certain employees similarly situated as the
present petitioners had approached this Court by filing CWP No.2009 of
2016 titled as Balwinder Singh and others v. State of Haryana and others',
claiming regularization of their services on the ground that they are covered
under the terms and conditions of the regularization policy dated 01.10.2003
coupled with the fact that their juniors had already been regularized in
service, thereby making them entitled for regularization of their services
under the regularization policy dated 01.10.2003 with effect from the date
services of their juniors were regularized.
2.3 The said writ petition i.e. CWP No.2009 of 2016 was allowed by
the Co-ordinate Bench of this Court on 31.01.2020 wherein it was held that
once, the employees who were junior to the petitioners have already been
regularized in service under the policy dated 01.10.2003, the petitioners also
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have the right to claim the said benefit of regularization of their services and
direction was issued to respondent-State to regularize the services of the
petitioners in Balwinder Singh' case (supra) with effect from the date
services of employees junior to the petitioners therein were regularized.
2.4 Against the said judgment of the learned Single Judge, the State
of Haryana filed an LPA being LPA No. 688 of 2021 titled as 'State of
Haryana and others Vs. Balwinder Singh and others' which was dismissed
by learned Division Bench of this Court vide judgement dated 02.12.2022
upholding the directions given by the learned Single Judge of this Court in
the case of Balwinder Singh (supra).
2.5 Feeling aggrieved, against the said decision of learned Division
Bench of this Court, the State of Haryana preferred an SLP before the
Hon'ble Supreme Court of India being SLP No. 4531 of 2023 titled as 'State
of Haryana and others Vs. Balwinder Singh and others', which SLP was
dismissed vide judgment dated 09.01.2024.
3. In light of the said facts, learned counsel for the petitioners
submit that earlier when the present petitions came up for consideration
before this Court, the respondent-State had taken the stand that as decision
of this Court regularizing the service of similarly situated employees as
directed in Balwinder Singh' case (Supra) was stayed by the Hon'ble
Supreme Court of India in SLP No. 4531 of 2023, therefore no benefit of
regularization could have been given till such time the said SLP is decided by
the Hon'ble Supreme Court of India. Therefore, learned counsel for the
petitioners now contends that as the Hon'ble Supreme Court has dismissed
the aforesaid SLP, the petitioners are now also entitled for the regularization
of their services as the same relief has already been extended to the similarly
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situated employees, who had approached this Court in Balwinder Singh's
case (supra), which judgment has now attained finality.
4. Learned counsel for the petitioners further submits that the
services of the petitioners be regularized from the date the services of their
juniors have been regularized by the respondent-State, keeping in view the
regularization policy dated 01.10.2003.
5. Learned counsel for the respondent-State on the other hand
while conceding the factual position narrated herein before, submit that while
dismissing the SLP No. 4531 of 2023 filed by the State, the question of law
raised therein has been kept open by the Hon'ble Supreme Court of India
because of which no benefit of the judgment passed in Balwinder Singh's
case (supra) can be extended to the present petitioners.
6. Learned counsel for the respondent-State further submits that the
petitioners herein were not appointed against the regular sanctioned post and
they are not working against any regular sanctioned post as of now, hence,
the claim of the petitioners for regularization of their services cannot be
accepted in the absence of any regular sanctioned post and the question of
law on this issue is covered in favour of the State keeping in view the order
passed by the Hon'ble Supreme Court of India in Civil Appeal No. 916 of
2023, titled as 'Vibhuti Shankar Pandey v. The State of Madhya Pradesh
and others' decided on 08.02.2023.
7. Learned counsel for the respondent-State has further placed
reliance on the judgment of Hon'ble Supreme Court of India in Secretary,
State of Karnataka and others v. Umadevi and others (2006) 4 SCC 1 , so as
to contend that a claim for regularization of services cannot be raised by the
employees who have been appointed dehors the rules.
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8. In furtherance of this, learned counsel for the respondent-State
has also placed reliance upon the judgment of Hon'ble Supreme Court of
India in Civil Appeal No. 1875 of 2022, titled as 'Managing Director, Ajmer
Vidhyut Vitran Nigam ltd., Ajmer and another v. Chiggan Lal and others',
decided on 07.03.2022, wherein it has been held that no parity can be
claimed in the matter of regularization of services in different years.
9. Learned counsel for respondent-State has also rebutted the claim
of the petitioners with respect of grant of ante dated regularization in parity
with the date of regularization granted to juniors of petitioners on the ground
that there was no such claim granted by this Hon'ble Court while deciding
the case of Balwinder Singh (Supra).
10. Lastly, learned counsel for respondent-State contends that there
is delay in approaching this Court for the grant of benefit of ante dated
regularization and therefore, the claim of the petitioners is liable to be
rejected on this ground also.
11. I have heard learned counsel for the parties and have gone
through the record with their able assistance.
12. In the present bunch of petitions, the claim of the petitioners is
that they are in service of the respondent-State since about last two decades
but their services have either not been regularized under the regularization
policy which has been issued by the Government of Haryana even though
their claim is covered by the same or their services have been regularized
from a date which is later in respect to the date from when services of their
juniors were regularized which action of respondent-State has been held bad
in the case of Balwinder Singh (Supra).
13. Once, a regularization policy has been issued by the
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Government of Haryana for regularization of services of an employee, the
same has to be implemented in its entirety qua every employee who is
entitled to be considered under the said policy for regularization of his/her
services without discrimination between similarly situated employees.
14. It has come on record that some of the employees similarly
situated as the present petitioners, who were not considered for regularization
of their services, raised their claim before this Court in Balwinder Singh' s
case (Supra). A Co-ordinate Bench of this Court allowed the said petition
and held that once a regularization policy has been issued by the Government
of Haryana and the same has been given effect qua various employees, then
the petitioners, who are senior, are also entitled for consideration of
regularization of their services under the said policy with effect from the date
their juniors have been regularized in service and they cannot be denied
the said benefit especially when, the employees junior to them have already
been granted the benefit of regularization of services.
15. The said judgment of the Co-ordinate Bench of this Court in
Balwinder Singh' s case (Supra) has already been upheld by the Division
Bench and even the SLP filed by the State against the same has already been
dismissed by the Hon'ble Supreme Court of India.
16. That being the factual position, which has also been noticed by
the Hon'ble Supreme Court of India while passing judgment dated
09.01.2024 in SLP No. 4531 of 2023 titled as 'State of Haryana and others
Vs. Balwinder Singh and others', wherein it has also been mentioned that
the said benefit has already been extended to a large number of employees,
therefore the claim of the present petitioners claiming the same benefits as
the petitioners in Balwinder Singh' s case (supra) being similarly situated to
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them, cannot be denied the said benefit of regularization.
17. With regards to the argument raised by the learned counsel for
the respondent-State that once, the question of law raised by the respondent-
State was left open by the Hon'ble Supreme Court of India while passing
judgment dated 09.01.2024 in SLP No. 4531 of 2023, the judgment of the
Co-ordinate Bench of this Court in Balwinder Singh' s case (supra) as well
as judgment passed by the Division Bench in LPA-688-2021 titled as 'State
of Haryana and others Vs. Balwinder Singh and others' will lose its
significance for granting benefit in terms of the same to the petitioners in the
present bunch of petitions, the same cannot be accepted for the reason that
the Hon'ble Supreme Court while dismissing SLP No.4531 of 2023 has
nowhere stated that the position of law settled by the Co-ordinate Bench of
this Court in Balwinder Singh' s case (supra), which has further been
upheld by the Division Bench is contrary to the law and need not to be
followed. Therefore, the relief as granted to the petitioners in Balwinder
Singh's case (supra) cannot be denied to the similarly situated employees,
who are found eligible for regularization of their services under the
applicable regularization policy and if the petitioners are able to prove before
the authorities concerned that they fulfill the requisites of the concerned
regularization policy benefit of which is claimed by them, the respondent-
State shall be bound to regularize the services of the said petitioners
especially when the benefit claimed has already been extended to the
similarly situated employees.
18. Even otherwise, this Court is not deciding the petitions without
considering the objections raised by the State qua the benefit being claimed
by the petitioners in the present petitions. All the objections being raised by
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the respondents so as to object to the claim of the petitioners, are being dealt
with in the order and the claim of the petitioner is being decided on merit on
the basis of facts and circumstances, settled principles of law coupled with
the fact that the similarly situated employees have already been granted the
said benefit whether on their own by the respondent- State or under the
orders of the Court which have attained finality.
19. It may be noticed that the petitioners are working with the
respondents-department for the last more than two decades. Once, the
respondents have allowed the petitioners to continue in service on the post on
which they were initially appointed, it cannot be said that an employee who
is working for a period of two decades, there is no regular work for the post
in question.
20. The question with respect to regularization of services of
employees who continue in service for decades but are not regularized so as
to deny them the service benefit after their retirement has already been settled
by the Hon'ble Supreme Court of India in Civil Appeal No. 6798 of 2019
titled as 'Prem Singh v. State Of Uttar Pradesh and others' decided on
02.09.2019 wherein it has been held as under:-
"There are some of the employees who have not been
regularized in spite of having rendered the services for 30-40 or
more years whereas they have been superannuated. As they
have worked in the work-charged establishment, not against any
particular project, their services ought to have been regularized
under the Government instructions and even as per the decision
of this Court in Secretary, State of Karnataka & Ors. v. Uma
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Devi 2006 (4) SCC 1. This Court in the said decision has laid
down that in case services have been rendered for more than ten
years without the cover of the Court's order, as one time
measure, the services be regularized of such employees. In the
facts of the case, those employees who have worked for ten
years or more should have been regularized. It would not be
proper to regulate them for consideration of regularization as
others have been regularised, we direct that their services be
treated as a regular one. However, it is made clear that they
shall not be entitled to claiming any dues of difference in wages
had they been continued in service regularly before attaining
the age of superannuation. They shall be entitled to receive the
pension as if they have retired from the regular establishment
and the services rendered by them right from the day they
entered the work-charged establishment shall be counted as
qualifying service for purpose of pension. "
21. A bare perusal of the above reproduction would show that the
Hon'ble Supreme Court of India has held that once, an employee has worked
for more than a decade, the said employee is entitled for regularization of
his/her services even if, the said services have not been regularized up to the
date he/she attains the age of superannuation.
22. In the present petitions, the petitioners are claiming the benefit
of regularization of their services keeping in view the fact that their claim is
covered under the applicable regularization policy coupled with the fact that
under the same regularization policy, the employees junior to petitioners
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have already been regularized in service, hence, once the claim of the
similarly situated employees in Balwinder Singh' s case (Supra) so as to
regularize their services with effect from the date employees junior to them
were granted benefit of regularization of services, the same cannot be denied
to the petitioners in the present bunch of petitions when they fulfill all the
requisite of the applicable regularization policy.
23. Further, the question with regard to existence of regular
sanctioned post for the purpose of regularization while giving benefit of the
regularization policies to the employees has already been considered by the
respondent-State itself and decision has been taken vide notification dated
21.12.2018 (Annexure P-4 with CWP No.2158 of 2020) wherein it has been
mentioned that for the specific purpose of regularizing the services of
employees who are covered under regularization policies 17.06.1997,
05.11.1999, 01.10.2003 and 10.02.2004, the administrative department shall
create regular posts of diminishing nature so as to adjust such employees
whose services have been regularized.
24. Bare reading of the notification dated 21.12.2018 shows that the
decision has already been taken that where an employee is entitled for
regularization of his/her service under any of the regularization policy, the
administrative department will create posts of diminishing nature so as to
adjust the employees whose services have been regularized. The said
decision dated 21.12.2018, taken at the level of Chief Secretary to
Government of Haryana, is reproduced as under: -
MOST URGENT
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Subject Creation of posts for persons regularized under the
regularization policies of ytar 2003-2004.
Will the Additional Chief Secretary to Government, Haryana,
Finance Department kindly refer to the subject noted above?
2 It is intimated that vide Govemment notification No.0.5.R.
13/Const/Art.309/2007, dated 13.4.2007. the regularization policies
No GS.R.41/Const./Art. 309/97, G.S.R 101/Const/Art. 309/99,
GSR.24/Const/Art 309/2003 and G.S.R. 5/Const/An 309/2004,
dated 17.6.1997, 5.11.1999, 1.10.2003 and 10.2.2004 respectively
were rescinded. Thereafter, these policies were revived vide
Notification No.6/7/2014-IGSI, dated 18.6.2014 by Government.
3 Further in pursuance of Hon'ble High Court interim order dated
6.4.2018 in CWP No. 15887 of 2018 - Purushotam Das Vs State of
Haryana wherein matter of creation of diminishing cadre post for
persons regularized under 2003-2004 policies No
G.S.R.24/Const/Art. 309/2003 dated 1.10.2003 and 10.2.2004 was
under consideration with the State Government.
4 The State Government has considered the matter and decided
that wherever the Administrative Department / Boards /
Corporations / Autonomous Units are regularizing persons under the
above mentioned regularization policies, the Administrative
Department, with approval of Finance Department, may create
some posts of diminishing nature to adjust such employees.
5. The Finance Department is hereby advised to give concurrence
for creation of posts of diminishing cadre as and when any
Department/Board/Corporation/Autonomous Unit submits a case for
creating a post for any employee proposed to be regularized under
the regularization policies of 2003 and 2004.
6. The same practice would also be applicable in respect of
regularization policies dated 17.6.1997 and 5.11.1999. However,
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payment of the arrears of regular pay scale may be restricted to 38
months prior to the date of actual regularization order and other
benefits may be granted to the employees.
Sdir Superintendent, General Services-l for Chief Secretary to
Government Haryana.
The Additional Chief Secretary to Government Haryana, Finance
Department.
U.O. No. 6/20/2018-IGSI
Dated, Chandigarh the 21 Dec., 2018
A copy is forwarded to the following for information and necessary
action.
25. Hence, the objections being raised by the respondents-State that
the petitioners were not appointed against the regular sanctioned post or,
there does not exist any regular post so as to regularize the services of the
petitioners, is contrary to their own decision dated 21.12.2018 and cannot be
accepted so as to deny the petitioners benefit of regularization of their
services from the date services of employees junior to them have been
regularized.
26. Even otherwise, once an employee has worked for more than a
decade and the work of the said post exists, it is the duty of the respondents
to create a post so as to allow the said employee to continue in service. Being
a welfare State, the State has to take care of its employees rather than taking
all kinds of objections so as to defeat the claim of the employees which is
otherwise covered under the applicable regularization policy issued by the
State itself. Hence, the objections that there is no regular sanctioned post so
as to regularize the services of the petitioners cannot be accepted.
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27. Further, the said objection of the respondents-State with regard
to the ground that there is no regular sanctioned post cannot also be
accepted on the ground that in case any junior of the petitioners, has been
regularized in service under the same regularization policy, the senior
employee will ipso facto become entitled for regularization of his/her
services from the date the services of his/her junior stood regularized subject
to fulfillment of conditions as mentioned in the applicable regularization
policy. Hence, once, in Balwinder Singh' case (Supra) it has already come
on record that services of large number of employees who were junior to
their colleagues, were regularized in a pick and choose manner and
directions were given to regularize the services of senior employees on that
ground itself by this Hon'ble Court while deciding the said case which
judgment has attained finality, the respondents now cannot take a plea that
the senior employees cannot be regularized in service on the ground of non-
availability of the sanctioned post. Once, the services of junior have been
regularized the senior employee will ipso facto get the right for regularization
of his/her services even if the said benefit has to be extended by creating a
post for the very purpose.
28. The last objection which has been raised by the learned counsel
for respondent-State is that after the judgment passed in Uma Devi' s case
(Supra), no benefit of regularization can be claimed.
29. It may be noticed that once, the Hon'ble Supreme Court of India
in Prem Singh' s case (supra) after having noticed the position of law
settled in Uma Devi' s case (Supra) has carved out an exception so as to give
directions to regularize services of employees who had continued to work
for a period of more than 10 years and the said judgment has been brought
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into operation so as to give benefits of regularization to employees who have
even superannuated without getting their services regularized, therefore, in
the light of the same, the contention of the respondents that the benefit of
regularization cannot be given in view of the judgment passed in Uma
Devi' s case (supra) cannot be sustained and is accordingly rejected,
moreover, it is a conceded fact that all the petitioners who are seeking
regularization of their services have more than 10 years of service to their
credit.
30. Furthermore, in case, the respondents are of the view that after
the judgment passed in Uma Devi' s case (supra), no benefit of
regularization can be claimed by an employee, then the onus to explain the
reasons behind issuing the instructions dated 18.06.2014 vide which the
regularization policies which were earlier rescinded were revived lies on
respondent-State and in regards to the same no argument has been adduced
by learned counsel for respondent-State. Once, in the year 2014, the
respondent-State took a conscious decision to revive the rescinded
regularization policies, then the argument of respondent-State that benefit of
regularization cannot be claimed by employees in light of Uma Devi' s case
(Supra) cannot be sustained especially in view of the fact that the decision to
revive the rescinded regularization policies was taken after passing of
judgment in Uma Devi' s case (Supra) thereby giving right to claim
regularization to employees.
31. With regard to the judgment passed in Vibhuti Shankar
Pandey' s case (Supra), which has been relied by the respondent-State
herein above, the same cannot be made applicable in the present case. In the
Judgment passed in Vibhuti Shankar Pandey' s case (Supra), there were no
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such claim that the similarly situated employees have been regularized in
services, as, in Vibhuti Shankar Pandey' s case (Supra), the claim of
regularization was made despite the fact that the employees did not fulfill the
qualification required for appointment on the post in question, which fact is
missing in the present case. Also as per conceded facts, in the present case for
the purpose of regularizing services of employees who are similarly situated
to the petitioners, directions have been given by co-ordinate bench of this
Court in Balwinder Singh' s case (Supra), and the said directions have
already been upheld up to the Hon'ble Supreme Court of India. Rather some
of the similarly situated employees have been granted the benefit of
regularization of their services from the date services of employees junior to
them were regularized even before the said SLP was dismissed by Hon'ble
Supreme Court of India which fact is clear from the order dated 09.01.2024
passed by the Hon'ble Supreme Court of India.
32. With regard to the argument of grant of ante dated
regularization, it is noticed that while deciding the case of Balwinder Singh
(Supra), the learned Co-ordinate Bench has already given directions for
regularizing the services of the petitioners therein from the date services of
their juniors were regularized and the same benefit cannot be declined to
petitioners in the present bunch of petitions who are similarly situated in case
the petitioners are able to establish before the authorities that their juniors
have been regularized prior to them.
33. With respect to the argument of learned counsel for the
respondent-State pertaining to the claim of petitioners being barred on
account of delay, it may be noticed that the case of the similarly situated
employees have already been allowed by the Coordinate Bench of this Court
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in Balwinder Singh (supra), which judgment has already been upheld by the
Division Bench of this Court and even the SLP has been dismissed on
09.01.2024. Once, the actual benefit to the similarly situated employees is yet
to be extended by the respondents in terms of Balwinder Singh' s case
(Supra), it cannot be said that similar claim raised by the petitioners is time
barred.
34. Even otherwise, as per the judgment of the Division Bench of
this Court in CWP No. 4382 of 2002 titled as Satbir Singh v. State of
Haryana, decided on 21.03.2002 wherein the similarly situated employees
have already been granted the benefit, it has been held that being a welfare
State, the same should be allowed in favour of all the similarly situated
employees. Once, the benefit is yet to be extended to the similarly situated
employees, who have succeeded up to the Hon'ble Supreme Court of India,
denying the said benefit to the petitioners on the ground of delay will be too
harsh hence, the said plea of the respondents cannot be accepted and is
hereby rejected.
35. Hence, in light of the above mentioned facts and position of law,
the petitioners have a right to seek regularization of their services with
effect from the date benefit of regularization of services has been extended to
an employee junior to them in case, the petitioners fulfill the terms and
conditions of the applicable regularization policy which is in force and the
respondent -State is directed to regularize their service in case the petitioners
fulfills the qualification/conditions as mentioned in the applicable
regularization policy.
36. With respect to the condition of having three years of service
with 240 days of work in each year as on the date an employee shall become
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eligible to claim regularization of his/her services in terms of the
regularization policy dated 01.10.2003 or any other regularization policy, the
services of the employee from the date of his/her initial appointment shall be
considered for the purpose of qualifying the said condition. In case, the
petitioners has worked for 240 days in any of the 3 years upto the date of
regularization policy, said petitioners will be considered eligible under the
policy in which the benefit has been claimed.
37. Further, in case, any employee junior to the petitioners, has
been regularized in service, which fact in case is established before the
respondent authorities by the petitioners, the said petitioners will get the
right of regularization of their services from the date when the services of
the employee junior to them has been regularized if the said petitioners
fulfills all the requisite of relevant regularization policy and respondent-State
shall fix the date of regularization of such employee from the date his/her
junior was regularized in service as has been directed in the case of
Balwinder Singh (Supra).
38. It is further directed that in case the respondent-State does not
have any sanctioned post so as to regularize the services of the petitioners the
respondent-State shall create appropriate posts which can be of diminishing
nature or otherwise as may be deemed appropriate by the respondent-State in
light of position of law observed herein before, keeping in view the decision
of the respondent-State dated 21.12.2018.
39. The Respondent-State is hereby directed to examine each and
every case of petitioners in terms of the directions given herein before and
pass appropriate speaking order. In case, the respondent-State is of the view
that any petitioner does not qualify any condition of the applicable
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regularization policy, the respondent-State shall pass order giving details as
to how the petitioner does not qualify the applicable condition in terms of the
regularization policy under which the petitioner raised his/her claim. In case
it is found that there is no difference between the petitioner and his/her junior
whose services had been regularized prior in time, the respondent shall pass
an order fixing the date regularizing the services of such petitioner in terms
of the directions given herein before i.e. from the date services of the
employee junior to the petitioner were regularized.
40. At this stage, learned counsel for the petitioners has raised a plea
that in some cases on the ground that the petitioners have been appointed
prior to 1996, their claims has been rejected which condition has already
been set aside by a co-ordinate bench of this Hon'ble Court in CWP No.1582
of 2018 titled as 'Gobind v. State of Haryana and others' , decided on
13.03.2019.
41. Learned counsel for the respondent-State does not dispute the
said factum and submits that no claim will be rejected by the respondent-
State on the ground that the petitioners claiming benefit of regularization
were not appointed prior to the year 1996 as per the aforesaid judgment.
42. Let consideration as directed herein above be completed within
the period of four months from the date of receipt of certified copy of this
order.
43. In view of the above, the writ petitions are disposed of in the
terms and conditions mentioned herein before. Let the respondent-State pass
appropriate speaking order as directed herein before. In case, any of the
petitioner is found entitled for regularization/retrospective regularization of
services from the date employees junior to him/her has been regularized, they
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will be granted the said date of regularization otherwise due reasons be
mentioned in the speaking order keeping in mind the directions given by the
Court herein before so as to decide the eligibility of each petitioners qua
their respective claims. Further in case any of the petitioners is found entitled
for regularization of his services retrospectively the said benefit shall be
given notionally, no arrears will be granted to the petitioners up to the date
of filing of the respective petitions. The petitioners will be entitled for fixing
of their salaries from the date of regularization notionally and the arrears will
only be extended from the date of filing of their respective petitions before
this Court and if any of the petitioners has already retired, his/her pensionary
benefits will also be fixed/revised and arrears will also be extended from the
date of filing the petition by the said petitioner.
44. A photocopy of this order be placed on the files of connected
cases.
45. Pending miscellaneous application, if any, shall also stand
disposed of.
(HARSIMRAN SINGH SETHI)
JUDGE
13.03.2024
Riya
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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