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Judgment
Nidhi Gupta, J.
Present Civil Writ Petition under Articles 226/227 of the Constitution of India has been filed by the petitioner for the issuance of an appropriate order, directions or Writ, especially in the nature of: certiorari for setting aside the impugned order dated 05.12.2019 (Annexure P-7) vide which case of the petitioner for regularization of his services under 2003 policy has been rejected without giving any reasoning; and further a writ in the nature of Mandamus for directing the respondents to consider the case of the petitioner for regularization of his services under 2003 policy alongwith all consequential benefits and arrears as persons similarly placed as well as juniors to the petitioner have been regularized by the department without considering the case of the petitioner.
It is inter alia submitted by learned counsel for the petitioner that the petitioner was appointed as Road Roller driver in the respondent-Department on work charge basis in June 1986. The services of petitioner were illegally terminated by the respondents on 02.03.1995. Accordingly, petitioner had raised an Industrial Dispute before the Labour Court, Ambala. Vide Award dated 05.08.2003 (Annexure P-1), Labour Court had directed reinstatement of the petitioner with continuity of service without back wages. In pursuance thereto petitioner was reinstated.
It is submitted that vide Office Order dated 17.01.2008 (Annexure P-2), petitioner was transferred from Ambala to Faridabad; and since then, petitioner had been continuously working there. On 23.05.2018, petitioner had met with an accident and remained in hospital upto 19.07.2018. Petitioner had duly informed the Department regarding the accident. In July 2018, after his discharge from the hospital, petitioner had gone back to resumed duty, however, respondent No.4 did not allow the petitioner to join his duties. It is contended that the petitioner used to go to office everyday, but respondent No.4 has not paid any heed to the request of the petitioner.
Learned counsel contends that therefore, the petitioner has worked continuously from June 1986 upto May, 2018. Thus, as per the Policy dated 01.10.2003 (Annexure P-3), services of the petitioner are liable to be regularized. Learned counsel contends that the petitioner was a daily wage employee who has worked for more than 33 years. Appointment of the petitioner was made against vacant sanctioned post. Persons similarly situated as the petitioner and in fact juniors to the petitioner, have been regularized vide order dated 10.01.1994 (Annexure P-4). Petitioner has made several requests to the respondents to consider his case for regularization. Petitioner had even served legal notice dated 06.02.2019 (Annexure P-6) upon the respondents, but to no avail. Petitioner had previously also approached this Court vide CWP-28325-2019 which was disposed of vide order dated 01.10.2019 with a direction to the respondents to decide the legal notice within a period of two months. However, vide the impugned order dated 05.12.2019 (Annexure P-7), claim of the petitioner had been rejected. It is contended that the impugned order is a non-speaking order and can therefore not be sustained. Moreover, reasons mentioned in impugned order are untrue. In support, ld. counsel relies upon judgment of the Hon’ble Supreme Court passed in Jaggo vs Union of India & Ors. 2024 SCC online SC 3826.
It is further informed that during the pendency of the present Writ Petition, petitioner had expired on 06.04.2021. As such, legal representatives of the petitioner were brought on record. It is contended that therefore, they are also entitled to family pension in terms of the judgment passed by a Coordinate Bench of this Court in CWP-20846-2014 titled as Savitri Devi vs. H.V.P.N.L and others, decided on 11.03.2016.
He accordingly prays that the present Writ Petition be allowed; and following prayers be accepted: -
“b)A writ in the nature of certiorari for setting aside the impugned order dated 05.12.2019 (Annexure P-7) vide which case of the petitioner for regularization of his services under 2003 policy has been rejected without giving any reasoning. The impugned order passed by respondents is wholly illegal, arbitrary and discriminatory and in violation of Article 14 and 16 of the Constitution of India; and Further a writ in the nature of Mandamus for directing the respondents to consider the case of the petitioner for regularization of his services under 2003 policy alongwith all consequential benefits and arrears as persons similarly placed as well as juniors to the petitioner have been regularized by the department without considering the case of the petitioner.”
Per contra, learned State Counsel has vehemently opposed submissions of the petitioner and submitted that impugned order dated 05.12.2019 (Annexure P-7) is a speaking order; wherein cogent reasons have been given for rejecting claim of the petitioner. Moreover, claim of the petitioner is highly belated. He accordingly prays for dismissal of the present Writ Petition.
No other argument has been raised on behalf of learned counsel for the parties. I have heard learned counsel and perused the case file in detail. I find no merit in the submissions of the petitioner.
In seeking regularization, petitioner is relying upon the Haryana Government Policy dated 01.10.2003 (Annexure P-3). The said Policy enumerates and lays down certain mandatory conditions which are required to be fulfilled for consideration for regularization, as under: -
“Adhoc Employees/Contract Employees:-
i)XX XX
ii) XX XX
iii) XX XX
iv) That the employees shall be regularized, who were originally appointed against the vacant posts.
v)That only those contract employees shall be regularized who are appointed against sanctioned posts on regular pay scale of an consolidated salary.”
In the present case, it is the categoric case of the respondents that the petitioner was not appointed against a vacant sanctioned post. Ld. Counsel for the petitioner has been unable to dispute the same. As such, even in terms of the relied-upon Policy dated 1.10.2003, petitioner is not entitled to regularisation.
It is also a stipulated condition of the Policy dated 01.10.2003 that petitioner should have completed continuous and unblemished service of minimum 240 days in each year. Despite repeated Court query, learned counsel for the petitioner is unable to show any such averment in the Writ Petition that petitioner has worked continuously for a minimum period of 240 days in each calendar year.
Moreover, the respondents in their written statement dated 24.12.2020 have categorically stated that services of the petitioner were previously terminated w.e.f. 02.03.1995 as the petitioner is a habitual absentee from his duties. A perusal of the Award dated 05.08.2003 (Annexure P-1) also shows that services of the petitioner had been previously terminated on two grounds: that he had caused an accident by rashly and negligently driving the vehicle assigned to him. As a result of which, Department had suffered loss and had to pay hefty compensation awarded by the MACT to the kith and kin of the deceased. The Labour Court reinstated the petitioner despite noting the fact in para 17 of the Award that in the accident, petitioner had been duly convicted. But in appeal findings of learned Trial Court were reversed and petitioner was absolved of all charges.
The second ground on which the petitioner was previously terminated vide order dated 02.03.1995 was that he remained wilfully absent from his duty. Labour Court has recorded that although absenteeism is an act of grave misconduct, however opportunity ought to have been given to the petitioner to prove his innocence. Accordingly, petitioner was directed to be reinstated with continuity of service but without backwages.
Written statement further shows that even after reinstatement, petitioner remained absent from his duty for which numerous letters (Annexure R-1 colly.) were issued to the petitioner. It is in this background, claim of the petitioner for regularization was rejected.
Reliance of the petitioner upon Jaggo’s case (supra) is misconceived. In the said judgment Hon’ble Apex Court has held as under:-
"However, where appointments were not illegal but possibly "irregular," and where employees had served continuously against the backdrop of sanctioned functions for a considerable period, the need for a fair and humane resolution becomes paramount. Prolonged, continuous, and unblemished service performing tasks inherently required on a regular basis can, over the time, transform what was initially ad-hoc or temporary into a scenario demanding fair regularization.”
In the present case, it is not established on record that service of the petitioner was continuous and unblemished. As such, petitioner cannot derive benefit of the said ruling. Moreover, the said judgment contemplates regularization upon completion of continuous service of 10 years; whereas petitioner is seeking regularization in terms of Policy dated 01.10.2003 (Annexure P-3), which stipulates the aforesaid conditions.
Furthermore, even if, for the sake of argument, it is accepted that cause of action arose in favour of the petitioner in 2003, however the petitioner has first sought regularization only in the year 2019 by way of CWP-28325-2019. Thus, claim of the petitioner is barred by delay and laches. The issue of delay stands settled by the Hon’ble Supreme Court in case of State of Uttar Pradesh v. Arvind Kumar Srivastava (SC) : Law Finder Doc Id # 627984, holding as under: -
“A. Constitution of India, Article 14 - Equality - Extending the benefit of judgments to similar situated persons (fence sitters) - Normal rule is that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently - This rule is subject to well recognised exceptions in the form of latches and delay as well as acquiescence - Same would be valid ground to dismiss claim - Exception is inapplicable in cases where judgment pronounced by Court is judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. B. Constitution of India, Articles 14, 16 and 226 -Appointment - Cancellation of appointment - Challenged -Delay and latches - Acquiescence - Cancellation challenged after nine years when some of similarly situated aggrieved persons got relief from Court - Unexplained delay and latches in filing the claim petition after period of 9 years - Totally unjust to give appointment after a period of 27 years - Order of High Court allowing claim of appellant set aside.” The relevant para of the said judgment reads as under:-
“23.The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under:
(1)Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
(2)However, this principle is subject to well recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
(3)However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.”
The aforesaid judgment has been followed by a Coordinate Bench of this Court in Sudhir Bala v. State of Punjab, (Punjab And Haryana): Law Finder Doc Id # 2678248, decided on 11.12.2024; wherein it is held that “Delay and laches in filing a writ petition under Article 226 of the Constitution of India can disentitle a petitioner to relief, especially when there is an inordinate and unexplained delay in asserting one's rights.”
Keeping in view the above factual and legal position, the present Writ Petition stands dismissed.
Pending application(s) if any also stand(s) disposed of.