Punjab-Haryana High Court
Baldev Singh vs State Of Haryana on 29 October, 2024
Neutral Citation No:=2024:PHHC:136480
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP-12044-2001 (O&M)
Reserved on : 16.10.2024
Pronounced on : 29.10.2024
Baldev Singh .....Petitioner
Versus
State of Haryana and others .....Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Present : Mr. Amanpreet (A.P.) Singh, Advocate and
Ms. Samdisha Kaur, Advocate for the petitioner.
Mr. Saurabh Mohunta, D.A.G., Haryana.
NAMIT KUMAR, J.
1. The instant petition has been filed by the petitioner under
Articles 226/227 of the Constitution of India, seeking a writ of
certiorari, quashing the order dated 14.06.2001 (Annexure P-5),
whereby the claim of the petitioner for regularization has been rejected.
Further, seeking a writ of mandamus, directing the respondents to
regularize the services of the petitioner w.e.f. 31.03.1993 or any other
subsequent date, with all consequential benefits.
2. Brief facts of the case, as have been pleaded in the present
petition, are that the petitioner was engaged on muster roll as daily
wager in April, 1986. Thereafter, on the basis of instructions dated
27.05.1993 (Annexure P-1) which were clarified vide circular dated
18.03.1994 (Annexure P-2), the petitioner submitted representation
claiming regularization and since no response was received on the said
representation, the petitioner filed CWP No.17269 of 1994 titled as
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'Baldev Singh Vs. State of Haryana and others' and the same was
admitted and thereafter, the petitioner has received an order dated
14.06.2001, whereby his claim for regularization has been rejected
mainly on the ground that there has been a break of more than 30 days
and that the petitioner was not in service as on 31.03.1993.
3. Written statement on behalf of the respondents has been
filed wherein the claim of the petitioner has been contested by stating
that since the petitioner does not fulfill the terms and conditions of the
regularization policy dated 27.05.1993 which was clarified vide circular
dated 18.03.1994, therefore, his services cannot be regularized under the
said policy. The relevant portion of the written statement is as under :-
"xx xx xx xx xx
2. That as per the Haryana Government Instructions
issued vide letter No.6/4/90-2 GS-I dated 27.5.1993
attached as Annexure P-1 and 18.3.1994 the petitioner
has not fulfilled the terms and conditions for regularisation
in service (Annexure P-l and P-2). The terms and
conditions for regularisation are reproduced hereunder :
(i) Have completed five years service as on
31.3.1993.
(ii) Was present on 31.3.1993.
(iii) Have worked for 240 days in each year.
(iv) Break should not be more than one month at a
time.
In the instant writ petition, the petitioner fulfills
condition Nos.(i) and (iii) and does not fulfill condition
Nos.(ii) and (iv) which runs as under :-
(i) He was not present on 31.3.1993.
(ii) The break was more than one month as he was
absent during the period from 1.6.1988 to
19.7.1988 as per his own accord.
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So in view of above said circumstances, the petitioner is
not entitled to any relief from this Hon'ble Court and the
present writ petition is liable to be dismissed on this score
alone.
3. That it is further submitted that the petitioner
submitted the medical certificate for the period from
1.6.1988 to 19.7.1988 on dated 21.6.2000 but the same was
not accepted being submitted at a belated stage i.e. after
the expiry of twelve years period and this medical
certificate has been submitted by the petitioner for his self
interest i.e. for getting the benefits of regularisation.
Furthermore, there is no rule of the Government to
accept the Medical Certificate of a person working on the
Muster Rolls that too for the absent period. As such, the
representation of the petitioner was rightly rejected.
xx xx xx xx xx"
4. Learned counsel for the petitioner has submitted that in
terms of policy dated 27.05.1993, the claim of the petitioner for
regularization was required to be considered. He further submitted that
the petitioner was eligible as per the said policy as he was having more
than 05 years service on 31.03.1993. He submits that the policy dated
27.05.1993 was clarified vide instructions dated 18.03.1994, wherein it
was stated that the matter was under consideration with the Government
as to how much break in service should be allowed during the 05 years
period and whether those daily wagers who have worked on different
posts under different designations and has completed the requisite
conditions should be regularized or not and the Government had taken
the decision that those daily wagers who have completed 240 days of
service in a year without having continuous break of more than 30 days
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in a year should be regularized. He further submitted that the
clarificatory instructions dated 18.03.1994 is not applicable to those
cases where the persons were eligible to be regularized under the
original policy dated 27.05.1993. Therefore, the claim of the petitioner
should have been considered by the respondents under the policy dated
27.05.1993 without applying the clarificatory instructions dated
18.03.1994. He has placed reliance upon a Division Bench judgment of
this Court in Anand Kumar Vs. Haryana Urban Development
Authority, Manimajra (U.T.), Chandigarh :1995(1) SCT 677.
5. Per contra, learned State counsel submitted that since the
petitioner has not fulfilled the requisite conditions for his regularization
in service in terms of policy dated 27.05.1993 and clarificatory
instructions dated 18.03.1994, therefore, he is not eligible to be
regularized under the said policy. He further submits that the services of
the petitioner has already been regularized in the year 2002.
6. I have heard learned counsel for the parties and perused the
relevant documents.
7. Admittedly, the petitioner was engaged on muster roll as
daily wager in April, 1986. The State Government issued instructions
dated 27.05.1993 regarding regularization of the services of work
charged/casual/daily rated employees. As per the said instructions, the
casual/daily rated employees, who have completed 05 years service on
31.03.1993 and were in service on 31.03.1993, shall be considered for
regularization. The said instructions have been clarified vide
instructions dated 18.03.1994 which provides that those daily wagers
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who have completed 240 days of service in a year without having
continuous break of more than 30 days in a year should be regularized.
The relevant portion from instructions dated 27.05.1993 and 18.03.1994
are as under :-
Instructions dated 27.05.1993 :-
"xx xx xx xx xx
CASUAL/DAILY RATED EMPLOYEES
The Casual and Daily rated employees who have
completed 5 year's service on 31st March, 1993 and were
in service on 31st March, 1993, shall be regularized. On
regularization, they shall be put in the time scale of pay
applicable to the lowest Group 'D' cadre in the
Government and they would be entitled to all other
allowances and benefits available to regular Govt. servants
of the corresponding grade.
xx xx xx xx xx"
Clarificatory instructions dated 18.03.1994 :-
"I have been directed to draw your attention to
circular No.6/4/90-2GS-I dated 27.5.1993 by which those
daily wagers who had completed 5 years on 31.03.1993
were directed to be regularized. For some time it was
under consideration by the Government as to how much
break in service should be allowed during this 5 years
period and whether those daily wagers who have worked
on different posts or under different designations and have
completed the requisite conditions should be regularized or
not. Now the Government after consideration has decided
that those daily wagers who have completed 240 days of
service in a year without having a continuous break of
more than 30 days in a year should be regularized. With
regard to the regularization of those daily wagers who
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have worked in different posts under different designations,
the Government has decided that those daily wagers who
have worked on different posts under different designations
but complete the other requisite conditions would be
regularized if they have worked in the same department."
8. From a perusal of the abovesaid instructions, it is clear that
a daily wager, who has completed 05 years service as on 31.03.1993 is
eligible to be considered for regularization and further clarified that he
must have completed 240 days of service in a year without having a
continuous break of more than 30 days in a year. In the present case,
there is a break of more than 30 days and the petitioner was not in
service on 31.03.1993. Since the petitioner does not fulfill the requisite
conditions of the abovesaid policy, therefore, he cannot claim
regularization under the said policy.
9. Similar issue came up for hearing before the Hon'ble Full
Bench of this Court in Tek Chand vs State of Haryana : 2002(1) SCT
308, wherein the following questions were framed:-
"Can the State or its instrumentalities refuse to regularise
the services of an employee on the ground that there is a
break of more than a month despite the fact that the
employee was not to blame or the fact that the absence was
for reasons entirely beyond his control ? This question has
been answered in favour of the employee by different
benches of this Court. The correctness of the view has been
doubted. Thus, these petitions were admitted for hearing
before a Full Bench.
2. The issue arises in the context of the instructions
issued by the State Government in March, 1996. After
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hearing the counsel for the parties, we find that the
following questions arise :-
1. Can the competent authority refuse to
regularise the services of a daily wager merely
because there was a break of more than a month
even when the employer had caused the interruption
in service ?
2. Can the employer refuse to regularise the
services of an employee who has remained absent
from duty for a continuous period of more than a
month for reasons entirely beyond his control ?
3. Does the absence of the employee on January
31, 1996 disentitle him to claim regularisation in
service despite the fact that he had remained in
service prior to and after the date ?
4. Can this court not go into these matters in
proceedings under Article 226 of the Constitution ?"
10. After considering the matter at depth, the Hon'ble Full
Bench has answered the said questions as under:-
"34. In view of the above, we hold that :-
(i) The condition that the break in service should
not be more than one month at a time is reasonable.
However, the benefit of regularisation can be denied
only in a case where the break is attributable to the
employee and not in a case where the employer has
caused the break.
(ii) The instructions do not require that the
employee should have attended to the duties on
January 31, 1996. The only requirement is that his
services should not have been terminated and that he
should be in service on that day.
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(iii) While hearing a petition under Article 226 of
the Constitution, the court can adopt such procedure
as it considers reasonable in the circumstances of the
case. It can even record evidence.
35. As a result of the above, we hold that the view taken
by a bench of this Court in Anand Kumar's case to the
effect that benefit of regularisation cannot be denied even
in a case where the employee remains absent for reasons
not attributable to the employer, is not correct. However,
the view in so far as the break on account of the reasons
attributable to the employer is concerned, embodies the
correct statement of law.
36. The writ petitions are disposed of in the above terms.
The respondents shall now consider the claims of the
petitioners in the light of the above decision within three
months from the date of receipt of a certified copy of this
order. If it is found that they fulfill the requirements of the
instructions, their services shall be duly regularized.
However, in cases where the petitioners have not
performed their duties for certain durations of time, then
they will not be entitled to the arrears of salary. In the
circumstances, we make no order as to costs.
Petitions disposed of."
11. The Hon'ble supreme Court in Managing Director, Ajmer
Vidhyut Vitran Nigam Ltd., Ajmer and another Vs. Chiggan Lal and
others : 2022(2) S.C.T. 176 has held as under :-
"9. It is the settled position that the date from which
regularization is to be granted is a matter to be decided by
the employer keeping in view a number of factors like the
nature of the work, number of posts lying vacant, the
financial condition of the employer, the additional financial
burden caused, the suitability of the workmen for the job,
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the manner and reason for which the initial appointments
were made etc. The said decision will depend upon the
facts of each year and no parity can be claimed based on
regularization made in respect of the earlier years.
10. This Court in Jodhpur Vidyut Vitran Nigam Ltd. v.
Nanu Ram and Others, (2006) 12 SCC 494, has held that
the employer is required to examine the question as to how
many workmen could be regularized keeping in mind, the
budget provisions, availability of the posts, the number of
muster roll workers engaged in construction work without
their being existence of any vacant sanctioned posts and
the manner in which these muster roll workers were
initially recruited i.e. whether with or without the approval
of the management, thereafter examining the above, the
employer has to recommend their absorption in regular
service on the basis of eligibility as determined by the
Screening Committee. It was held that mere completion of
two years is not the only criterion and that the State is not
under an obligation to constitute Screening Committee at
the end of each year. Constitution of the Screening
Committee is within the discretion of the State Government
dependent upon the aforesaid factors. Applying the above
principles, it was held in that case that:
"9. ...Even in the award dated 31-5-1978 read with
award dated 15-6-1979 the fixation in the regular
pay scale was only for those employees who were
recruited with the approval of the management and
in accordance with law. Even under the awards, as
they then stood, the Screening Committee had to
examine the performance of the workmen before
granting them the regular pay scale. Granting of
pay scale simpliciter is different from grant of
permanency. While granting permanency, the State
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has to consider the number of posts falling vacant,
those posts should exist as and by way of regular
vacancy, the financial burden of granting
permanency and, therefore, in our view, the High
Court has failed to keep in mind the difference
between the concept of grant of pay scale as distinct
from grant of permanency. The State was not under
an obligation to constitute Screening Committee at
the end of each year. Constitution of the Screening
Committee was within the discretion of the State
Government dependent upon the above factors.
Therefore, there was no question of comparing the
case of the present respondents with the case of the
workmen who got regularised prior to 31-3-1982.
Each exercise by the Screening Committee has to be
seen in the light of the above factors. In a given
exercise, the State may have sufficient number of
vacant posts to accommodate certain number of
workers. However, that may not be the case in the
subsequent years. Therefore, there is no question of
any discrimination in the matter of regularisation or
in the matter of grant of permanency."
11. This Court, in The Rajasthan Rajya Vidyut
Utpadan Nigam Limited, Kota v. Shri Karam Singh -
Civil Appeal No(s).8807-8808 of 2016, reiterated the
above principles as under:
"7. In the face of the aforesaid view taken by this
Court in Civil Appeal No.1042 of 2006, we do not
see how the Division Bench of the High Court could
have found the workman entitled to regular pay
scale from 1st April, 1983 though he was found
entitled to regularization with effect from 1st April,
1989. While it is correct that the workman may have
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been entitled to regular pay scale from 1st April,
1983 grant of the same would have to be linked to
the availability of a post carrying that pay-scale. As
the same became available from 1 st April, 1989,
from which date regularization was granted, the
High Court, according to us, could not have granted
the benefit of regular pay-scale from 1st April, 1983.
In that view of the matter, we interfere with the order
of the High Court insofar as grant of regular pay
scale is concerned and hold that the respondent
workman is entitled to the benefit of regular pay-
scale as well as regularization with effect from 1st
April, 1989."
12. In view of the above, it is clear that the date of
regularization and grant of pay scale is a prerogative of the
employer/screening committee and no parity can be
claimed in the matter of regularization in different years.
Therefore, the High Court was not justified in directing
payment of arrears and in fixing the grant of regular pay-
scale w.e.f. 01.04.1983. The appeal is accordingly allowed
and the judgment and order of the Division Bench of the
High Court dated 04.01.2017 in D.B. Special Appeal Writ
No.117/2006 and the order of the learned Single Judge
dated 06.05.2005 in S.B. Civil Writ Petition No.5326/1990
are set aside."
12. It may be stated here that the earlier writ petition bearing
CWP No.17269 of 1994 titled as 'Baldev Singh Vs. State of Haryana
and others' filed by the petitioner for claiming regularization has been
dismissed by this Court vide order dated 05.07.2010 by passing the
following order :-
"The present petition is filed seeking regularization
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of services of the petitioner as Beldar.
In view of the dictum of the Apex Court in the matter
of Secretary, State of Karnataka Vs. Uma Devi and others,
2006(4) SCC 1, this writ petition is dismissed.
Dismissed."
13. Moreover, the services of the petitioner already stood
regularized in the year 2002 in terms of the prevalent policy.
14. The judgment cited by learned counsel for the petitioner is
not applicable to the facts of the present case as the said case relates to
de-regularization of the services of the petitioner without issuance of
any show cause notice and compliance of the principles of natural
justice.
15. For the forgoing reasons and in view of the law laid down
by the Hon'ble Full Bench of this Court in Tek Chand's case (supra)
and Hon'ble Supreme Court in Chiggan Lal and others case (supra),
the services of the petitioner cannot be regularized w.e.f. 31.03.1993
and the present petition is dismissed, accordingly.
(NAMIT KUMAR)
29.10.2024 JUDGE
Kothiyal
Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No
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