Sangeeta Kalra vs State of Haryana

Mehtab S. Gill, J.—Heard, Learned counsel for the petitioner has prayed for the issuance of a writ in the nature of mandamus directing the respondents to consider the appointment of the petitioner to the post of Technical Assistant keeping in view the provisions of Section 25-H of the Industrial Disputes Act, 1947 (hereinafter to be referred as ''the Act''). Further prayer made in the petition is for issuance of a writ in the nature of certiorari quashing the appointment of respon- dent Nos. 5 and 6 as the same was illegal, arbitrary, violative of Articles 14 and 16 of the Constitution of India and also violative of Section 25-H of the Act.

The petitioner has averred that she was appoinled as Technical Assistant in the pay scale of Rs. 1400-2600 + Rs. 100/- as special pay in the respondent-Batik on temporary basis for a period of 89 days in 1995. She fulfilled all the qualifications required for the post of Technical Assistant. Thereafter, she was granted extensions on various dates, the last being on 22.7.1996. Her services was regularised on 8.8.1996. Later on, a show case notice was issued to her on 4.10.1996, whereby the regularisation order dated 8.8.1996 was sought to be withdrawn. The petitioner challenged the withdrawal of regularisation order in C.W.P. No. 16597 of 1996. The Hon''ble High Court dismissed the writ petition as the respondent-Bank had taken a stand that services of the petitioner were regularised by mistake as there was no post of Technical Assistant available in the Bank. The order of the High Court dated 17.12.1996 is Annexure P-1. Thereafter, the petitioner was retrenched u/s 25-F(b) of the Act. Retrenchment order is Annexure P-3. In the course of hearing of C.W.P. No. 16597 of 1996, the categoric stand of the Bank was that the petitioner had been erroneously regularised and, in fact, there was no vacant post available and no regular person could be appointed without the availability of a vacant post. The petitioner approached the respondent-Bank several times for appointment as a Technical Assistant against any vacant post, but she was orally informed the there was no vacant post available and as and when post did fall vacant, she will be adjusted accordingly as per provision or Section 25-H of the Act. The petitioner in the meanwhile learnt that the respondent-Bank had employed respondent Nos. 5 and 6 on contract basis. The petitioner then gave representations to respondent Nos. 1, 2 and 4 that her case should be considered for appointment as Technical Assistant as a post had fallen vacant on 9.4.1997. One such representation is Annexure P-4. Respondent Nos. 5 and 6 who were appointed on contract basis were given extensions time and again. It has further been averred that no advertisement of any kind prior to the engagement of respondent Nos. 5 and 6 was made, nor any selection procedure was followed, thus violating Articles 14 and 16 of the Constitution.

The Government of Haryana had issued instructions on 2.4.1999 and 3.5.1999 imposing complete ban on fresh recruitments and the persons working on contract basis were exempted from the ban but only if those were made in accordance with the policies framed by the Chief Secretary. On 12.6.1999, respondent Nos. 5 and 6 were appointed on regular basis as Technical Assistants in the respondent-Bank without any advertisement, open selection or test and interview and without inviting the petitioner or any other person. No procedure was followed, meaning thereby that appointments of respondent Nos. 5 and 6 were by back door entry. Posting orders of respondent Nos. 5 and 6 dated 22.6.1999 and 23.6.1999 are attached as Annexure P-7 and P-8 respectively. A representation dated 23.6.1999 was submitted by the petitioner to respondent Nos. 1, 3 and 4 which is Annexure P-9. However, no action was taken thereon.

Notice of motion was issued to the respondents and written statements have been filed. In their written statements, respondent Nos. 5 and 6 took the stand that they were regularised as they had worked with the respondent-Bank for more than 240 days and also because of their good performance. They also further took the stand that the writ petition suffers from delay and laches because they were appointed in December, 1997 and April, 1998 and the writ petition was filed in July, 1999. Respondent Nos. 1 to 4 took the stand that the present writ petition was not maintainable; that the petitioner should avail her alternative remedy under the Act as she was seeking her appointment as per provisions of Section 25-H of the Act.

I have heard the learned counsel for the parties and have gone through the record.

Learned counsel for the petitioner has vehemently argued that even if taking that the petitioner was governed under the provisions of the Industrial Disputes Act, then even Section 25-H therein is very clear whereby the rule of ''first come, last go'' is applied. He drew my attention to paras 4 and 5 of the written statement filed by respondent Nos. 1 and 4 wherein the respondents have admitted that the petitioner''s services were retrenched on the ground that there was no post available at that time.

It is strange that when it came to regularise services of the petitioner, stand taken by respondent Nos. 1 to 4 is that there was no post. If any post had been created later or became available, it was incumbent upon respondent Nos. 1 to 4 to offer it first to the petitioner and then appoint any one else, but only to block her legitimate right, respondent Nos. 5 and 6 were appointed first on adhoc basis and then finally, their services were regularised. They were appointed without any advertisement and no selection procedure was followed, thus, showing that they had come from back door. If there was a ban on fresh appointments as per Haryana Government decision on 2.4.1999 and 3.5.1999, what was the need for them to recruit respondent Nos. 5 and 6 and then question arises as to why they were regularised.

For the reasons mentioned above, writ petition is allowed and the appointment orders of respondent Nos. 5 and 6 (Annexure P-6 and P7) are quashed. Respondent Nos. 1 to 4 are directed to first given appointment to the petitioner and thereafter in case, any post is left vacant, appointment may be given to respondent Nos 5 and 6 as they have served the Bank for a fairly long period.

Petition allowed.