Krishan Kumar vs State of Haryana and Others

Rajesh Bindal, J.—Challenge in the present petition is to the order dated 22.7.2010, vide which Order No. 248 dated 2.9.1996, regularising services of the petitioner as Draftsman w.e.f. 1.2.1996 has been cancelled and the petitioner has been regularised as Surveyor. The consequential order regarding pay fixation has also been passed. Learned counsel for the petitioner submitted that the petitioner had been working as Draftsman with the department from 7.1.1991 onwards on daily wage basis. He was paid the wages of Surveyor. There was no difference in the wages of Surveyor and Draftsman. In terms of the policy for regularisation, the services of the petitioner were regularised as Draftsman, even though he was working on the post of Surveyor. Learned counsel further submitted that withdrawal of the order of regularisation of the petitioner on the post of Draftsman about 14 years thereafter is highly belated. The complaint against the petitioner was motivated. The petitioner had all along been working as Draftsman. His name was figuring in the seniority list. No body ever raised any objection, hence, at this stage, the order of regularisation of the petitioner on the post of Draftsman could not have been withdrawn.

On the other hand, learned counsel for the State submitted that the petitioner, in fact, was working as Surveyor on daily wage basis. In the wrong recommendation made, the name of the post was mentioned as Draftsman/Surveyor and the services of the petitioner were regularised as Draftsman. The matter came to the notice when a complaint was made, upon which enquiry was conducted. Thereafter, the report was supplied to the petitioner and after hearing him personally, the impugned order was passed finding that the petitioner having not worked on the post of Draftsman, was not entitled to be regularised as such, hence, there is no illegality in the impugned order withdrawing the order of his regularisation as Draftsman and treating him to be regularised on the post of Surveyor from the same date, i.e., 1.2.1996.

Heard learned counsel for the parties and perused the paper book.

The issue to be considered by this court in the present petition is as to whether the petitioner was rightly regularised on the post of Draftsman or not. He claimed that he was working as Draftsman on daily wage basis, but was drawing the wages that of the Surveyor, as at that time there was no difference in the wages payable to Surveyor or Draftsman. After the Government framed the policy for regularisation of the services of the employees working on daily wage basis, the petitioner''s case was recommended mentioning the post as Draftsman/Surveyor. It has been mentioned in the impugned order that there was no post with that nomenclature sanctioned in the cadre, as Draftsman and Surveyor are two different posts. During the course of enquiry, the entire record was examined and it was found that the petitioner had been working as Surveyor and was being paid the wages therefore. It was on account of wrong mentioning of nomenclature of post that the petitioner''s name was recommended to regularise his services on the post of Draftsman. Copy of the enquiry report was supplied to the petitioner, who submitted his reply, where the only stand taken is regarding delay. Nothing was produced on record by the petitioner to substantiate that he ever worked as Draftsman. The petitioner was afforded opportunity of personal hearing by the competent authority before passing the impugned order and finding that services of the petitioner had been wrongly regularised on the post of Draftsman instead of Surveyor, the post on which he was working, the order of regularisation as Draftsman was cancelled and the petitioner was directed to be regularised as Surveyor with effect from the same date, i.e., 1.2.1996. The pay was directed to be re-fixed accordingly. It was further directed in the order that no recovery from the salary already made to the petitioner shall be made. Once from the facts established during the course of enquiry, which could not possibly be disputed by the petitioner by producing any evidence, it was found that he had been worked on daily wages as Surveyor, the order of regularisation of his services on the post of Draftsman was void ab initio and has rightly been corrected by the authorities by passing the impugned order. The delay in such case is also not fatal, as illegality cannot be allowed to be perpetuated.

Accordingly, the writ petition is dismissed.