Suraj Bhan vs State of Haryana and others

Augustine George Masih, J.—Petitioner has approached this Court impugning the order dated 04.08.2010 (Annexure P-6) passed by the

Executive Engineer, P.W.D (B&R), Hisar Circle, Hisar-Respondent No. 4 vide which order of his regularization with effect from 01.10.2003 vide

Annexure P-3 dated 29.03.2008 has been withdrawn. Petitioner was appointed as a Beldar in October, 1994. His services were terminated by

respondent No. 4 in April, 1996. An industrial dispute was raised by the petitioner, wherein Award dated 18.01.2006 was passed by the Labour

Court, Hisar holding therein that the termination of the services of the petitioner was not in accordance with law. He was ordered to be reinstated

in service with continuity thereof and all other consequential benefits along with 50% back wages. This Award was accepted by the respondents

and the petitioner was reinstated in service in August, 2006. On 14.08.2006, petitioner made a representation that his juniors have been

regularized with effect from 01.10.2003 and therefore, his services be also regularized from the said date. When no decision was taken thereon,

petitioner filed C.W.P. No. 18611 of 2008, which was disposed of by this Court vide order dated 30.10.2008 with direction to respondent No. 4

to consider and decide the same by passing a speaking order. In compliance with this order, respondent No. 4 passed an order dated 29.12.2008

accepting the representation of the petitioner and his services were regularized with effect from 01.10.2003. Thereafter, a show cause notice dated

13.07.2010 was served on the petitioner by respondent No. 4 as to why the order dated 29.12.2008 for regularization be not withdrawn. A

detailed reply was filed to the said show cause notice by the petitioner on 19.07.2010 but the same was not accepted by respondent No. 4 and he

proceeded to pass the impugned order dated 04.08.2010 (Annexure P-6) withdrawing the earlier order dated 29.12.2008. It is this order which is

under challenge in the present writ petition.

Counsel for the petitioner contends that the impugned order has been passed primarily on the ground that prior to the issuance of the order of

his regularization on 29.12.2008 instructions for regularization of the services stood withdrawn and therefore, the benefit could not be granted to

the petitioner. He contends that the claim of the petitioner was based not only on the instructions but was based on regularization of the services of

the similar placed employees who had been appointed subsequent to the petitioner and were serving with the respondents. Since the petitioner has

been granted continuity of service with all consequential benefits and 50% back wages in the light of the Award passed by the Labour Court, the

petitioner for all intents and purposes was treated to be in service with effect from October 1994 i.e. that is the initial date of his appointment as

Beldar. He on this basis contends that the order of regularization passed in favour of the petitioner with effect from 01.10.2003 was not based on

any instructions but on the fact that juniors to the petitioner stood regularized on that date. He submits that the impugned order dated 04.08.2010

(Annexure P-6) cannot sustain as it violates Articles 14 and 16 of the Constitution of India.

On the other hand, counsel for the respondents submits that the services of the petitioner could not be regularized in the light of the judgment

passed by the Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, In the light of the Supreme

Court''s order passed in this case, all instructions which had conferred a right of regularization on the employees stood withdrawn, as on the date

when the order of regularization of the petitioner was passed, there was no instructions on the basis of which benefit which the petitioner had been

granted, could have been given and since the same was passed not in accordance with the instructions, the same was rightly withdrawn by

respondent No. 4. He accordingly, supports the impugned order.

I have heard counsel for the parties and gone through the records of the case.

It is not in dispute that in the light of the Award passed in favour of the petitioner by the Labour Court dated 18.01.2006, petitioner was taken

back in service with continuity of services and all other consequential benefits along with 50% back wages. The Award passed by the Labour

Court had been accepted by the respondents and therefore, was required to be given effect to. In the light of the Award, petitioner was deemed to

be in service with effect from October, 1994 i.e. his initial date of appointment as Beldar. Persons, who were appointed subsequent to the

petitioner were regularized by the respondents and therefore, he being appointed prior in service and having been granted the continuity of service

by the Labour Court along with all consequential benefits and thus was senior to the persons who had been appointed subsequent to his

appointment. A right accrued to him on the date when persons junior to him stood regularized which was 01.10.2003. It is also not in dispute that

on the said date the instructions, benefit of which was given to the persons junior to the petitioner, were in force. It is after the judgment of the

Supreme Court that the instructions were withdrawn on 25.04.2007. The right which had accrued to an employee prior to the withdrawal of the

instructions cannot be taken away as the withdrawal of those instructions did not relate back to the date of issuance of the initial instructions and

the withdrawal would be prospective in nature. That apart, a senior has prior right for consideration to regularization than a junior, which admittedly

in the present case had not been granted to the petitioner for the reason that his services were illegally terminated by the respondents, and on the

date when the services of the juniors were regularized, he was out of service and had been reinstated in compliance of the Award dated

18.01.2006 passed by the Labour Court, Hisar. The benefit of regularization of his services with effect from 01.10.2003, accorded to him vide

order dated 29.12.2008, primarily based upon the fact that persons junior to the petitioner stood regularized from the said date, was rightly

granted to the petitioner by respondent No. 4. In case the petitioner is not granted the said benefit of regularization, he shall be deprived of his right

under the Constitution as it violate Articles 14 and 16 of the Constitution of India, which confers a right of equal opportunity and protection for

consideration with similarly situated persons. In view of the above, present writ petition is allowed. Impugned order dated 04.08.2012 (Annexure

P-6) is hereby quashed. Consequential benefits shall follow within a period of one month from the date of receipt of certified copy of the order.