← Library
High Court of Punjab and HaryanaCWP/176/2020dismissed

Bhagi Rath And Others v. State Of Haryana And Others

2023-02-06Mr. Justice Harnaresh Singh Gill11 pages

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Date of Decision: 06.02.2023 BHAGI RATH AND OTHERS ... Petitioners VS STATE OF HARYANA AND OTHERS ... Respondents 241-A CWP-2359-2020 (O&M) SURAJ BHAN ... Petitioner VS STATE OF HARYANA AND OTHERS ... Respondents 241-B CWP-2103-2020 (O&M) VINOD KUMAR AND OTHERS ... Petitioners VS STATE OF HARYANA AND OTHERS ... Respondents 241-C CWP-2127-2020 (O&M) RAMESH CHANDER AND OTHERS ... Petitioners VS STATE OF HARYANA AND OTHERS ... Respondents 241-D CWP-30996-2019 (O&M) ASHOK KUMAR AND ORS ... Petitioners VS STATE OF HARYANA AND OTHERS ... Respondents

-2241-E CWP-34569-2019 (O&M) RAM SARAN AND OTHERS ... Petitioners VS STATE OF HARYANA AND OTHERS ... Respondents 241-H CWP-32580-2019 MUKESH KUMAR AND OTHERS ... Petitioners VS STATE OF HARYANA AND OTHERS ... Respondents 241-I CWP-33405-2019 BEDO DEVI AND ORS ... Petitioners VS STATE OF HARYANA AND OTHERS ... Respondents CORAM: HON'BLE MR. JUSTICE HARNARESH SINGH GILL

Present:

Mr. BD Rana, Advocate for the petitioners in all the petitions.

  

   

  **** HARNARESH SINGH GILL, J.(Oral) This order of mine shall dispose of the above noted writ petitions, as a common question of law and fact arose for consideration in all the petitions. However, for facility reference, facts are being taken from CWP-176-2020 titled as Bhagi Rath and others vs State of Haryana and others.

-3Prayer in this petition is for issuance of a writ in the nature of Certiorari quashing the impugned order dated 10.09.2019 (Annexure P-3) passed by respondent No.2 and notice dated 23.11.2019 (Annexure P-4), vide which the benefits of ante-dated regularization and arrears granted earlier, have been sought to be withdrawn. Learned counsel for the petitioners submits that the petitioners are working in the capacities of Peon/Sweeper-cumChowkidar/Water Carriers being Class-IV employees on regular basis; that the petitioners were initially appointed on part-time basis in the respondent-Department; that the respondent-Department had promoted the persons junior to the petitioners w.e.f. 01.04.

2011; that the petitioners filed a writ petition before this Court, seeking regularization from the date their juniors were regularized; that on the directions of this Court, the respondent-Department considered the case of the petitioners for regularization and that the services of the petitioners were regularized w.e.f. 01.04.2011 and accordingly, the arrears were also paid. Learned counsel for the petitioners further submits that now, in compliance of the order dated 19.07.2019 passed in CWP-16086-2019 titled as Pushpa Devi vs State of Haryana and others and other connected petitions, the Director Secondary Education, Haryana, has framed guidelines for regularization of part time Class-IV employees, vide impugned notice dated 10.09.

-4that the case of the employees for regularization is to be strictly considered as per the seniority list; that the Committee considering the case of the employees shall provide an opportunity of hearing to the employee concerned, before passing any order and that the cases of all the employees, who have either filed the writ petitions before this Court or not, were to be considered. He further submits that the guidelines so framed were in terms of the policy dated 11.11.2003 and after making the seniority list.

Learned counsel for the petitioners further submits that after the judgment in CWP-16086-2019, the petitioners are being harassed and that the respondent-Department is giving threats to the petitioners and violating the mandate of the law.

Learned counsel for the petitioners submits that, though, vide instructions dated 23.02.2016, the Additional Chief Secretary, Government of Haryana, clarified that the recovery of the excess amount cannot be made from the employees belonging to Class-III and Class-IV service (or Group-C and Group-D service), yet the fact remains that recovery has now been sought to be effected from the petitioners, vide the notice impugned herein. In support of his contention, learned counsel for the petitioners relies upon the judgment rendered by Hon'ble Apex Court in Civil Appeal No.11527-2014 titled as State of Punjab and others vs Rafiq Masih (White Washer) and others.

On the other hand, learned State counsel submits that the petitioners were paid contingencies as per the DC Rates, Hisar, issued

-5from time to time and that as per the policy dated 30.12.1998/25.02.1999, issued by the Department concerned, there were following three conditions for regularization:- i. Part time employee fulfilling the requisite qualification for regular Class-IV employee in Haryana Staff Secondary Education Filed Offices (Group-D) Services Rules, 1998.

ii. Those part time candidates who have been recruited through Employment Exchange should have at least three years' experience on their post.

iii.Those candidates recruited on part time basis through direct recruitment, they should have at least six years' experience on their posts.

Learned State counsel further submits that as per the Policy for the year 1998-99, the petitioners did not fulfill the above-said conditions, at that stage, as there was neither any vacant nor sanctioned post of Class-IV employee in the Government Primary Schools. He further submits that in the Middle School, there was/is only one sanctioned post of Peon and the same is not vacant and thus, the services of the petitioners cannot be regularized.

Learned State counsel further submits that in compliance of the order passed by this Court in CWP-5926-2001 titled as Vidya Devi and Others vs State of Haryana and others, the Department framed the new policies dated 11.11.2003/27.02.2004 for regularization of the

-6services of Class-IV employees working on part-time basis against the vacant regular sanctioned posts and all the prior policies were superseded by these policies. He further submits that as per the policies for the year 2003-04, the District Education Officer, Hisar, prepared a district level common seniority list of all Class-IV employees working in Government Primary/Middle/High/Senior Secondary Schools/Field Office as on 30.06.2003 and that the services of the petitioners were regularized as per their eligibility and seniority.

Learned State counsel further submits that vide letter dated 10.09.2019, the Director Secondary Education, Haryana, has directed the Department concerned to reconsider the cases of all the employees for regularization, who were regularized w.e.f. 01.04.2011, inadvertently. In support of his contention, the learned State counsel relies upon the judgment passed by the Hon'ble Supreme Court in Civil Appeal No.18752022 titled as Managing Director, Ajmer Vidhyut Vitran Nigam Ltd. Vs Chiggan Lal and others, wherein it has been held that the Notification dated 01.10.2003 issued by Haryana Government, General Administration Department, is not applicable on part-time Class-IV Employees and the same is applicable to ad hoc/contractual/daily wages employees only.

Learned State counsel further submits that vide orders impugned in the writ petition(s), the petitioners have been called to put forth their defence/case as to why action be not taken against them and that there is no specific order either terminating the services of the

-7petitioners or ordering recovery from them and thus, the petitioners have no cause of action to file the present petition. I have heard the learned counsel for the parties. The petitioners were initially appointed on part-time basis and their services were regularized w.e.f. 01.04.2011, though after the interference of this Court and accordingly, the arrears were also paid. In CWP-16086-2019, the Coordinate Bench of this Court on 19.07.2019, passed the following orders:-  

           

 

       



                                 

! "      !   

     ####$%%&    !

     

  !   

  !   '

'

         (     

     

 

       

    ) 



    



 !

  !       "    '



      "   

  

 ####$%%& 

-8-        !

    " 

 " !  "              

         !

 

   )"

  



 

          

  !

 

    

  !

! *'

 

   

                +   

  

      

    



          

  '

              

  

    '

  *  "  

         '

   ,  -.#/

0 

'



1   ( 

      !    $%#$ $%#& $%#2

$%#3 $%#4$%#56    7"! 

 " !

    - 

 

! 

  "

-9-   8  

    



   "  



'

  

      "  In compliance of the said order, the respondent-Department vide order dated 10.09.2019 (Annexure P-3) had directed the official concerned to constitute a committee to reexamine the cases of the petitioners along with other similarly situated employees for regularization in terms of the Policy dated 11.11.2003. The relevant extract of the order dated 10.09.2019, would read as under:- 1 to 5.

xxxxx 6.

The competent constituted committee after re-examining the regularization cases found that an employee is not entitled for ante-dated regularization and then the orders of their regularization may be revised as per the departmental policy dated 11.11.2003 and their pay be refixed as per the revised order. In compliance of the order dated 19.07.2019 passed by the Hon'ble High Court in CWP-16086-20149 along with other connected matter, all the District Education Offices are to be directed to adopt the complete process of regularization till 10.10.2019. Any delay and violation of the direction of the Hon'ble Court will be taken seriously and

-10departmental action will start against all members and chairman of the committee'.

In compliance of the order dated 10.09.2019, Headmaster, Government Girls High School, Hisar, issued the show cause notice dated 23.11.2019, calling upon petitioner No.1 to put forth his defence/case as to why action be not taken against him as his services were regularized, without following the due process of law. The relevant extract of the show cause notice would read as under:- 'As per guidelines issued by the director, Secondary Education, Haryana, Panchkula for regularization of class-IV part time employees vide memo No.13/91-2016 HRME-I(4) dated 10.09.2019 and the Committee constituted as per DSE, Panchkula vide Memo No.13/91 HRME-I(4) dated 28.05.2016 found that the benfit of regularization along with arrears given to Sh. Bhagirath posted in GGHS Kabrel, Hisar, designated Sweeper was not as per rule due to example of other district in regularization policy, 2003 and the employee who are regularized notional 01.01.1999 and 01.04.2011 actual in 1998-99 policy but are not entitle as they are not engaged as part time sweeper against sanction post...... ......

-11Accordingly, this notice is hereby saved upon you to put forth all your defence/case before the undersigned/committee on or prior to ___ or receipt of this notice. It not reply/defence is received within stipulated time,. It would be presumed that you have nothing to submit against this notice.'

The factual position is that the petitioners have been called upon by the competent authority to put forth their defence/case and there is no order either terminating their services or ordering recovery from them. As no order has yet been passed affecting the rights of the petitioners and they have only been called to put up their defence, the present petitions are not maintainable, being premature. In view of the above, I find no merit in the present petitions. Dismissed.

06.02.2023 (HARNARESH SINGH GILL) Aman Jain JUDGE Whether speaking/reasoned :

Yes/No Whether reportable :

Yes/No