Labh Singh vs State of Haryana and Others

Rajiv Narain Raina, J.—The claim, in this petition filed under Article 226 of the Constitution, is for regularization of services with effect from 1.10.2003. The petitioner was appointed as mali-cum-chowkidar in 1994. He was retrenched from service in November, 1996. He raised an industrial dispute which was referred to the labour court, Ambala. The labour court awarded reinstatement with continuity of service and 50% back wages. The award was passed on 18.7.2003. The award was called in question before this court. Vide order dated 19.10.2007, the award was set aside. However, on a review application, the order dated 19.10.2007 was recalled by the division bench of this court on 20.3.2008. The review application was allowed to the extent of setting aside reinstatement of the workman and the review order was confined to the question of back wages. It was specifically directed that the reinstatement would mean that the workman gets back to the same status as was held by him prior to termination and not the status of a regular employee. It was further ordered and made clear that the review order will not debar passing of any fresh order in accordance with law. Against the order in review, the petitioner approached the Supreme Court in Civil Appeal No. 1949 of 2011 arising out of SLP (C) No. 11967 of 2008. Before the Supreme Court, an order dated 28.6.2004 was shown, by which, a large number of daily wage employees such as the appellant-petitioner have been regularized with effect from 1.10.2003 and the petitioner was left out only because of litigation that ensued meanwhile. The Supreme Court vide order dated 17.2.2011 directed as follows:-

The learned counsel for the appellant however states that in view of the instructions dated 28th June, 2004, issued by the State Government, a large number of daily wagers such as the appellant had been regularized and that the appellant has been left out only because the present matter was pending in the Supreme Court. We accordingly feel that no substantive order by us is necessary but we direct the respondent to consider the case of the appellant for regularization, of his services in terms of the Government instructions aforesaid or any other instructions which may apply. The final decision be taken by the respondent in the matter within six months from today.

Order dated 28.6.2004 is found at Annexure P-2 at Page 36 of the writ paper-book.

Learned counsel for the petitioner points out from the office order that Dharam Pal at Serial No. 6, Phool Chand at Serial No. 9, Anil Kumar at Serial No. 13, Sukhvinder Singh at Serial No. 20, Jaswant Singh at Serial No. 24, Dinesh Kumar at Serial No. 28 and Shis Kumar at Serial No. 36 were in service when the petitioner was retrenched from service. It is asserted that they were junior to the petitioner, at that time. The petitioner made a written request for grant of regularization with effect from 1.10.2003 when junior employees came to be regularized. When no action was taken on his request, the petitioner approached this Court through CWP No. 24562 of 2012 which was disposed of with a direction to the respondents to consider and decide his representation. The order was passed on 19th December, 2012.

In terms of the directions of this Court, the impugned office order (P-10) was passed. The claim was rejected on the ground that the instructions dated 1.10.2003 stand rescinded in the year 2007 and a new policy of regularization of services of Group C & D employees has been floated vide notification dated 29.7.2011. The services of the petitioner for regularization with effect from 1.10.2003 stands rejected. It is also reasoned in the order that 2003 policy was rescinded in 2007 much before the filing of SLP No. 24467 of 2008.

The directions of the Supreme Court supra have been misread and brushed aside in the aforesaid manner without due application of mind. The directions of the Supreme Court dated 17.2.2011 are more than clear and have apparently been twisted to injure the petitioner. The respondents have been directed to consider the case of the appellant for regularization in terms of the Government "instructions" aforesaid. The direction "aforesaid" refers to the "instructions dated 28.6.2004". The "instructions" dated 28.6.2004 are none other than the office order No. 7329 dated 28.6.2004 (P-2) where similarly situated daily wage employees who have completed 3 years of service as on 30.9.2003 were brought on regular cadre with effect from 1.10.2003. On 1.10.2003, the petitioner''s services stood terminated and remained under litigation. The reinstatement came on 18.7.2003 through the award of the Labour Court.

Heard learned counsel for the parties at length.

Learned counsel for the petitioner submits that by deeming fiction, the petitioner would have been taken as in service on the date of the instructions dated 1.10.2003 and as having completed 3 years of service as on 30.9.2003. His mainstay of thrust is the office order dated 28.6.2004 which accords regularization to his compatriots or so called juniors with effect from 1.10.2003 and, therefore, there would be discrimination, in case, the petitioner is not given the benefit of the office order dated 28.6.2004 with retroactive effect to achieve parity of treatment. This was also considered in the order of the Supreme Court when it referred to document dated 28.6.2004. The words "instructions" used in the order with all respect appear to be an accidental slip or a typographical/clerical error. Those instructions are none other than the office order (P-2). This fact has also not been disputed before me.

Mr. Sunil Nehra appearing for the State relies on the recent decision of the Division Bench of this Court in State of Haryana and others v. Channi; LPA No. 1746 of 2012 (O & M) decided on 28.2.2013. The Division Bench of this Court has applied the law laid down in Secretary, State of Karnataka and Others Vs. Umadevi and Others, and Official Liquidator Vs. Dayanand and Others, and the declaration by the Supreme Court that the law laid down by two Judge Bench in U.P. State Electricity Board Vs. Pooran Chandra Pandey and Others, (6) Recent Apex Judgments (R.A.J.) 64 : 2007 (11) SCC 92 did not lay down the correct law.

Mr. Nehra submits that the Division Bench of this Court has also dealt with the question of discrimination and therefore I am precluded from examining it. The court has to see the nature of the initial appointment and whether it was in consonance with the rules and the constitutional scheme of making public appointments and within the power and province of the authority. The distinction between irregular appointments and illegal appointments were also dealt with. There is no dispute as to the propositions of law laid down in the aforesaid judgment to which I am bound. However, in the present case, the State has not disclosed with any clarity as to the nature of the initial appointment of the petitioner on daily wage basis. Be that as it may, this Court is under a constitutional duty to give effect and to act in aid of the Supreme Court and the directions contained in the judgment and order dated 17.2.2011 which is res-judicata between the parties litigating still. Those directions to my mind are plainly in personam and part of enforceable judgment.

When the order was made by the Supreme Court the consideration of the case of the petitioner was specifically directed in terms of the document dated 28.6.2004 which, as stated above, was an office order. It is not the case set up in the written statement that there are any instructions under Article 162 of the Constitution of India in existence issued by the Haryana Government on 28.6.2004. When the Supreme Court directed consideration under the aforesaid "instructions", it meant preferential consideration under the office order dated 28.6.2004 and, thereafter, under any other instructions which may apply. There is no doubt that the petitioner''s services have been regularized but with effect from 29.7.2011. Merely because the policies of regularization of services stood rescinded in the year 2006 following the decision in Umadevi-3, it would not be reason enough to circumvent the directions of the Supreme Court which are case specific and binding on both parties and issued on the principle of nondiscrimination. Therefore, I am not persuaded by the submissions of Mr. Nehra, in this case to hold to the contrary, if my view of the material directions is correct. For the foregoing reasons, this writ petition is allowed. The impugned office order (P-10) dated 12.3.2013 stands quashed. The respondents are directed to consider the case of the petitioner in terms of the directive of the Supreme Court dated 17.2.2011 and in the light of the office order dated 28.6.2004 (P-2). Let this fresh exercise be concluded within 2 months from the date of receipt of a certified copy of this order.