Punjab-Haryana High Court
Vinod Kumar And Ors vs State Of Punjab And Ors on 20 March, 2024
Neutral Citation No:=2024:PHHC:040466
CWP-9025-2017 (O&M) 1 2024:PHHC:040466
220
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-9025-2017 (O&M)
Date of Decision:20.03.2024
VINOD KUMAR AND ORS ......... Petitioners
Versus
STATE OF PUNJAB AND ORS ....... Respondents
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present : Mr. Fateh Singh Dhillon, Advocate
for the petitioner.
Mr. Pawan Kumar, DAG, Punjab.
****
JAGMOHAN BANSAL, J. (Oral)
1. The petitioners through instant petition under Articles
226/227 of the Constitution of India is seeking setting aside of order
dated 31.12.2016 (Annexure P-7) whereby respondent has rejected their
claim for regularization and asked them to clear 8th Class with one subject
of Punjabi language.
2. The petitioners joined respondent as Class-IV employee
during 1997-1998. They were appointed on temporary basis and paid on
Deputy Commissioner (for short 'DC') rate. At the time of their
appointment, Punjab State (Class-IV) Service Rules, 1963 (for short
'1963 Rules') were in vogue. As per Rule 5 of 1963 Rules, an applicant
was required to possess requisite knowledge of regional language and of
English language as may be prescribed by the Government from time to
time. The Government at the time of appointment of petitioners had not
issued any instructions/circular with respect to knowledge of regional or
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English language. The respondent issued instructions dated 21.05.1998
mandating that minimum qualification for Class-IV post would be 8th
pass. In the said instructions, it was clarified that it would be applicable
for future appointments. The relevant extracts of instructions dated
21.05.1998 read as:
"The Government has pondered over this and the decision
taken has been that regarding the appointment against Class
IV posts, minimum qualification should be 8th pass. Thus, in
future, when an appointment is made against the Class IV
post, the said educational qualification, now decided, shall
be kindly considered. With regard to this, the Government
has taken up the matter of amendment in the said rule under
Rules, 1963 for the Class-IV employees."
3. The Director General of Police, Punjab issued letter dated
26.11.2016 holding that no minimum educational qualification would be
required for contingent paid Class-IV employees i.e. Barber, Sweeper etc.
The State Government vide notification dated 23.01.2003 amended 1963
Rules. Rule 5(d) of 1963 Rules was also amended. As per amended rule,
an applicant must have passed examination of middle standard with
Punjabi language as one of the subject. Unamended as well as amended
Rule 5 (d) of 1963 Rules are reproduced as below:
"Unamended Rule
5. No person shall be recruited to the Service by direct
appointment unless he-
(a) produces certificates of character from two responsible
persons, not being his relatives, who are well acquainted
with him in private life;
(b) is not less than 16 years and not more than 35 years of
age on the date of appointment.
(c) has not more than one wife living and in the case of a
woman, is not married to a person already having a living
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wife :
Provided that the Government may, if satisfied that there are
special grounds for doing so, exempt any person from the
operation of this clause; and
(d) possesses the requisite knowledge of the regional
language and of English as may be prescribed by the
Government from time to time.
Provided that the appointing authority may, if it is of the
opinion that the candidate is otherwise fit to discharge his
duties satisfactorily, relax any of the qualification prescribed
under this clause.
Amended Rule
5. (d) has passed examination of middle standard with
Punjab Language as one of the subject from recognized
Educational Institution.
Provided that the Educational Qualification shall be 5th
Standard with Punjabi Language in case of person
appointed to service on compassionate ground, as a
dependent of deceased Govt. employee."
4. The respondent by order dated 31.12.2016 considered case
of the petitioners for regularization in terms of notification dated
30.12.2016. The respondent formed an opinion that no employee can be
regularized who is not possessing minimum qualification of 8th Class with
one subject of Punjabi.
5. Mr. Fateh Singh Dhillon, Advocate submits that condition of
8th Class with Punjabi as one of subject cannot be applied to petitioners
because 1963 Rules were amended after joining of petitioners. There was
no requirement of 8th standard with Punjabi as one of subject in the
original rules. The respondent amended 1963 Rules in 2003 and as per
amended rule, there is requirement of 8th standard with Punjabi language
as one of the subject. The rules are not retrospective in nature. The
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respondent has rejected claim of petitioners as per policy of 2016,
however, their claim needs to be considered as per policy of 2023
because they are working with respondent since 1997-1998.
6. Per contra, learned State counsel submits that amendment of
1963 Rules is prospective in nature, however, a candidate who seeks
regularization is required to meet requirement at the time of his
consideration. The 2016 policy required that every candidate must
possess minimum qualification. The minimum qualification at that point
of time was 8th pass with Punjabi language as one of subject for a Class-
IV employee. The petitioners as contingent paid employees were not
supposed to possess minimum qualification, however, for the purpose of
regularization, they were bound to possess minimum qualification.
7. I have heard the arguments of both sides and with the able
assistance of learned counsels have perused the record.
8. The petitioners are concededly working with respondent
since 1997-1998. They are contingent paid employee and working on
temporary basis. They are Class-IV employees and getting DC rate. They
have not been considered for regularization as per 2016 Policy because
they do not possess minimum education qualification.
9. This Court vide judgment dated 26.02.2024 has decided a
Bench of petitions involving identical issue in Civil Writ Petition
No.19238 of 2013 titled as 'Amrish Sharma and others Vs. State of
Punjab and others'. In para 47 of the judgment conclusion has been
recorded which is reproduced as below:
"47. In the wake of above discussion and findings, this
Court comes to conclusion as below:
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i) This Court in the normal course cannot ask
State to create or sanction posts.
ii) The petitioners who had completed service of 10
years by the end of December' 2006, either at present
are in service or have already retired, are entitled to
regular post and they cannot be denied regularization
on the ground of lack of sanctioned post or minimum
education qualification. To avoid burden on State
exchequer, it is clarified that from the deemed date of
their regularization, they shall be entitled to minimum
of pay scale plus dearness allowance and grade pay
till the date of this order and thereafter regular pay
scale.
iii) The petitioners who are still in service but did
not complete service of 10 years by the end of
December' 2006 would form part of dying cadre
created by 2023 Policy. The State, in view of long
service of these employees, would not insist for
minimum qualification. They from the date of
completing service of 10 years would be entitled to
minimum of pay scale plus dearness allowance plus
grade pay till the date they are regularized in terms of
2023 Policy.
iv) The petitioners who did not complete service of
10 years by the end of December' 2006 and during the
pendency of present litigation have superannuated or
passed away would be entitled to minimum of pay
scale plus dearness allowance and grade pay from the
date of completing service of 10 years till the date of
their retirement or death.
v) The petitioners who have already been
regularized by 31.12.2016 shall not be entitled to any
additional financial benefit because they are already
getting higher amount of salary for last couple of
years.
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vi) The respondent-State shall not be liable to pay
interest on arrears arising on account of re-fixation
of pay."
10. The petitioners are conceding that they may not be eligible
under 2016 policy, however, they must be considered as per policy of
2023 because, they have already served for more than 25 years and it
would be travesty of justice, if they are not considered as per 2023 policy.
The respondent by 2023 policy has created a dying cadre. The petitioners
are working as Class-IV employees and their work and conduct is
satisfactory which is prima facie evident from the fact that they are
uninterruptedly working since their appointment.
11. This Court finds that case of petitioners need to be
considered in the light of 2023 policy and without insisting for minimum
education qualification of 8th standard.
12. The petition is hereby disposed of with a direction to
respondents to consider case of petitioners within 6 months from today in
the light of above observations.
13. Pending misc. application(s), if any, shall also stand
disposed of.
( JAGMOHAN BANSAL )
JUDGE
20.03.2024
Ali
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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