Punjab-Haryana High Court
Rekha vs State Of Punjab And Ors on 3 May, 2024
Neutral Citation No:=2024:PHHC:061475
CWP-14370-2017 (O&M) 2024:PHHC:061475
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IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
208 WP-14370-2017 (O&M)
C
Date of decision: 03.05.2024
Rekha
...Petitioner
Versus
State of Punjab and others
...Respondents
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY
*****
Present : Mr. V.K. Shukla and Mr. Ashish Gupta,
Advocates for the petitioner.
Mr. Arun Gupta, DAG, Punjab.
*****
AMAN CHAUDHARY, J. (Oral)
1. The prayer made in the present petition is for directing the
respondentstoconsiderandregularizetheservicesofthepetitionersintermsof
the Punjab Government Policy Instructions dated 04.03.1999, Annexure P-2
and for granting all consequential benefits.
2. Learned counsel would submit that the petitioner, who was
appointed as part-time Sweeper in the office of District Treasury Officer in
July, 2006, had been working continuously since, thus was entitled to
regularization as per policy dated 04.03.1999, Annexure P-2, which she was
denied. Reference has been made to State of Punjab and others vs. Surjit
Kaur, LPA-771-2015, decided on 29.04.2016, against which SLP stands
dismissed vide judgment dated 09.12.2016, wherein the petitioner, who was
also working on part-time basis as a sweeper, was granted similar benefit as
claimed in the present petition, the relevant parasthereof read thus:
" Having held that, it may be further seen that the
policy decision dated 4th March, 1999 is undeniably a
welfare scheme launched by the State of Punjab in
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d eference to its Constitutional obligations. The policy has
beenissuedtoachievealaudableobjecttoconferthestatus
ofregularemployeesonthoseClassIVpart-employeeswho
are in service for 10 years or more. It may betruethatthe
policy contemplates adjustment of part-time Class IV
employees against 25% vacancies which were to become
available after the policy has come into force. However, if
the authorities find that due to nonavailability of requisite
vacancies, they were unable to achieve the object and
purpose of the policy, even in those case where part-time
employee has reached the age of superannuation, it was
imperative upon them to re-visit and re-modulate thesame
so that it does not turn out to be a false promise or a mirage.
hould such a policy remain on papers or its object
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must percolate to net-end beneficiaries, at least to those
who, after long span of 30 years of service, have attained
the age of retirement, is a question which the authorities
themselves ought to have addressedinsteadofawaitingfor
the court directions.
earesurethattheStateofPunjabwilllookintothis
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aspect of the matter and re-structure the policy in such a
manner that services of Class IV part-time employees are
regularized at least before one attains theageofretirement
and in case, regular vacancy does not becomeavailable,in
that case, such employee shall be takentohavebeenmade
regular immediate before his retirement. Suchaliberaland
pragmatic interpretation is the only effective modicum to
achieveitsobject.Sufficetoobservethatrecoursetosucha
policy decision is permissible under the mandate of
Constitution Bench decision in Secretary, State Of
Karnataka AndothersvsUmadeviAndOthers,2006(4)
SCC 1.
I nthelightoftheabovediscussion,therespondentis
held entitled to the benefits of liberal construction of the
policy as have been granted by the learned Single Judge.
orthereasonsafore-stated,wedonotfindanymerit
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in this appeal. Accordingly, the same is dismissed."
3. This Court in Kanta Rani vs. State of Punjab and others,
CWP-1933-2014,decidedon28.10.2014,regularisedtheservicesofaparttime
peon-cum-sweeperafter3decadesofcontinuousandfulltimeservice,relevant
paras thereof read thus:
" The second argument of the ld. Counsel for the
respondents that there is no sanctioned post of sweeper in
the office of respondent No.4 is also liable to be rejected.
The petitioner has been continuously working with
respondent No.4 since 1984. This necessarily implies that
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thereisneedforasweeperintheofficeofrespondentNo.4.
In fact,judicialnoticecanbetakenofthefactthatinevery
office there is necessity of at least one sweeper, and in
bigger offices the requirement would be more. It has not
beenstatedbytherespondentsthatapartfromthepetitioner
there are any other sweepers working in the office of
respondent No. 4.
I n Nihal Singh v. State of Punjab, (2013) 14 SCC
65,theHon'bleSupremeCourtheldthatwhenthereisneed
for the creation of posts, the failure of the executive
government to apply its mind and take adecisiontocreate
posts or stop extracting work from persons for decades
together itself would be arbitrary action (inaction) on the
part of the State...
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hirdly, ithasbeencontendedthatthepetitionerwas
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a part-timesweeper,hencehercasewasnotcoveredbythe
instructionsdated23.1.2001(AnnexureP-9)whichareonly
in relation to work charged/ daily wage employees. The
petitioner in paragraph 3 of the petition has stated thatshe
has been working throughout as peon-cum-sweeper in the
office of the Executive Officer, Block Samiti Dina Nagar
during full office hours from 9.00 A.M. to 5.00 P.M. This
fact regarding the number of hours of duty/work of the
petitioner has not been specifically denied. There is onlya
bald denial stating that itisincorrectthatthepetitionerhas
been working throughout as peoncum-sweeper and it has
been asserted that the petitioner has been engaged as
part-time sweeper. From this, it is clearthatthoughtermed
part-time, the petitioner has been working in the office of
respondentNo.4asafulltimeemployee.Shehascontinued
to work in the same capacity for over 30 years now.
Terming her as part-time is manifestly unjust.
hus,ithastobeheldthatthepetitionerwasliableto
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have been regularised both in terms of the circular letter
dated 4.3.1999 and 23.1.2001 and the action of the
respondents in denying her the benefit of regularisation is
illegal.
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hus, in my opinion the petitioner's case for
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regularisation has been wrongly rejected. She was eligible
tohavebeenregularisedundereachoneofthethreepolicies
referred to above. Itismanifestthatthepetitionerhasbeen
extremely unfairlydealtwith.Forwhatshouldhaveflowed
to her in normal course, she has been forced to repeatedly
knock at the doors of the authorities and as a last resort
approach the Court. While making her work full time, the
respondents have persisted in terming her as part-time,
taking shelter under theletterofappointment.Thisissheer
exploitation of the poor petitioner."
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4. Relevant paras of Sukhdev Kaur vs. State of Punjab,
CWP-12199-2000, decided on 23.09.2002, against which the SLP-4772-2003
filedbytheStatestandsdismissedvideorderdated31.03.2003,whereinapart
time sweeper was granted regularization, read thus:
" 10. Admittedly, the petitioners belongtoapoorsectionof
the society. They have been working on the posts of
Sweepers for a substantially long period of 10 years or
more. Nothing has been placed on record which may even
prima facie show that the petitioners have been found
wantingintheperformanceoftheirduties.Stillfurther,itis
not disputed that there isacontinuingneedforthepostsof
Sweepers as it is necessary to have someone to clean the
class-rooms and toilets etc. in the educational institutions.
11. In the background of this factual position, the short
questionthatarisesforconsiderationis-Canthepetitioners
be denied the relief of regularisation merely because their
names had not been sponsored by the respective
Employment Exchanges at the time of their entry into
service ?
12. To answer this question, we have repeatedly askedMr.
D.V. Sharma, if the State Government had issued any
instructions to the Departments requiring that the posts of
PartTimeSweepersshallbefilleduponlyaftersubmission
of a requisition to the Employment Exchange.Thecounsel
has not been able to point out anything from the record of
thesecaseswhichmayindicatethatitwasnecessaryforthe
Departments of the Government to ask for
recommendations from the Employment Exchange. Still
further, it is not disputed that the requirement for
notification of thevacanciestotheEmploymentExchanges
is not a mandatory pre-condition for filling up the postsin
different servicesoftheGovernment.Infact,areferenceto
Section 4(4) of the Employment Exchange (Compulsory
Notification of Vacancies) Act, 1959 clearly indicates that
the provisions have not to be "deemed to impose any
obligationuponanyemployertorecruitanypersonthrough
the Employment Exchange to fill any vacancy merely
because that vacancy has beennotifiedunder"sub-sections
(1) and (2) of Section 4. The provision clearly militates
against any plea of a mandatory requirement of law under
whichtheemployermayberequiredtonotifythevacancies
to the Employment Exchange.
13. In view of the factual position that there is nothing on
record to show that the departments of the State
Government had ever notified the vacancies of Part Time
SweepersunderSection4totheEmploymentExchangesor
that any instructions had beenissuedtotheDepartmentsto
notify the vacancies to the Employment Exchanges, the
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c ondition as now sought to be imposed is apparently
arbitrary and unfair.
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15. On a consideration of the matter, we are satisfied that
the impugned orders are not just and fair. The petitioners
havebeenmadetoworkforalongtimewithoutevenbeing
placed in a regular scale. In fact, they are being paid a
meagresumrangingfromRs.375/-toRs.600/-permonth.
In the present day when the cost of living has gone very
high, it is not a fair wage.
16.Inviewoftheabove,thewritpetitionsareallowed.The
impugnedordersaresetaside.Therespondentsaredirected
toconsidertheclaimofthepetitionersfortheregularisation
of their services. They would be placed in a regular time
scaleofpay.Theconsequentialreliefsshallalsobegivento
them.Theneedfulshallbedonewithinonemonthfromthe
date of receipt of a copy of this order."
5. Learned State counsel, despite his best efforts, is unable to
controvert the factual position and draw out any distinctive aspects in the
aforementioned judgments or cite any contrary law.
6. In view of the aforesaid, the present petition is disposed of in
terms of the judgments passed in Surjit Kaur, Kanta Rani and Sukhdev
Kaur(supra).
(AMAN CHAUDHARY)
JUDGE
0 3.05.2024
Hemant
hether speaking/reasoned
W : es / No
Y
Whether reportable : Yes / No
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