State of Haryana and others vs Surender Kumar

A.N. Jindal, J.—This appeal has arisen out of the judgment dated 30.04.2010 passed by the Additional District Judge, Fast Track Court, Sirsa, accepting the appeal filed by the plaintiff-respondent (hereinafter referred as ''the plaintiff'') against the judgment and decree dated 16.03.20 10 passed by the Civil Judge (Senior Division), Sirsa, dismissing the suit filed by the plaintiff for declaration. By filing the present suit, the plaintiff has sought declaration that he was posted'' as a sweeper vide appointment letter dated 16.01.1990, therefore, he could be deputed only to work as a sweeper and the order dated 05.07.2007 passed by defendant-appellant No. 2 asking the plaintiff to perform the duties of ''Chowkidar'' in addition to his own duties of Sweeper, is illegal, null and void and is liable to be set aside and the defendants appellants (hereinafter referred as the defendants'') be restrained from directing the plaintiff to perform the duties of ''Chowkidar'' in addition to his own duties of Sweeper.

The suit was contested by the defendants, inter alia with the averments that the plaintiff was initially appointed as Sweeper vide order dated 16.01.1990, but it was clearly mentioned in the said order that he would also work as ''Chowkidar'' in addition to his duties as Sweeper. The plaintiff is not forced to work for 24 hours. It was further submitted that vide order dated 05.07.2007, the plaintiff was directed to work as per his initial appointment order, which contains a clause that he would also perform the duties of ''Chowkidar'', as there is no post of ''Chowkidar'' in the school. It was also averred that the order dated 23.03.2006 passed by the then Head Mistress of the school, was also procured by the plaintiff, as she sought her voluntary retirement on 04.07.2006. Hence, this order is not binding on the defendants and it also does not supersede the initial appointment letter. It was also averred that the plaintiff having challenged this order after 18 years of his appointment, the suit is time barred.

From the pleadings of the parties, following issues were framed by the trial Court on 19.11.2007:-

Whether the plaintiff is entitled to decree for declaration to the effect that the plaintiff is entitled to perform the duties of post of Sweeper only under the defendants and order No. 4 13 dated 05.07.2007 passed by defendant No. 2 is illegal, null and void, against the Service Rules, by which the plaintiff is governed as prayed for? OPP

Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP

Whether the plaintiff has no locus standi to file the present suit? OPD

Whether the plaintiff has no cause of action to file the present suit? OPD

Whether the suit of the plaintiff is false and frivolous? OPD

Relief.

Both the parties led evidence. The trial Court, vide judgment and decree dated 16.03.2010, dismissed the suit. However, the Appellate Court reversed the findings of the trial Court and decreed the suit of the plaintiff, vide judgment dated 30.04.2010.

Mr. Ajay Gupta, Additional A.G., Haryana, in order to stress that the plaintiff was bound to work on the additional duty of ''Chowkidar'', has drawn my attention towards the instructions F.D. Hr. No. 4/5/86-2FRII dated 27.03.1986 (clause 4), which refers that the Government had decided that no change in the nomenclature of the present sanctioned posts of Class IV employees should be made and no post of Class IV employees, including work charged, without double nomenclature should be created in future without obtaining specific prior approval of Finance Department.

As such, in the light of aforesaid instructions, it transpires that the plaintiff was appointed as Sweeper-cum-Chowkidar, which is clearly'' mentioned in Ex. P 10 and he could not refuse to perform the duties of ''Chowkidar'' also.

As regards the appointment letter (Ex.P9), it also clearly indicates that the plaintiff was appointed as Sweeper with a condition that he would also work as ''Chowkidar'' in addition to his duties as Sweeper. Translated version of the appointment letter (Ex.P9) reads as under:-

To

Shree Surender Kumar.

Today i.e. on 16.01.1990, you have been selected and permitted to join your duties to the post of Sweeper (Class IV) on temporary basis. You will get the pay scale of Rs. 750-950. The remaining allowances would be admissible as per Haryana Government rules. Your selection is purely on temporary basis. You will be removed from service any time without any prior notice, in case your work and conduct is found to be unsatisfactory. You will also perform the duties of ''Chowkidar'' in addition to the work of Sweeper. Your designated post would be of a Sweeper. Note it.

Headmistress, Govt. High School, Khairpur (Sirsa)

Thus, the plaintiff cannot go against the letter and spirit of the original letter of appointment and contend that he cannot be deputed to work as ''Chowkidar''.

As such, there is no reason to differ with the findings returned by the trial Court on issue No. 1.

At this juncture, it has been brought to my notice that since there are number of rooms in the school, which are to be cleaned by the plaintiff and he has also to spend time during night to perform the duty of ''Chowkidar'', it would not be feasible to perform both the duties efficiently and appointment of only one Sweeper-cum-Chowkidar in the school would not be sufficient in the interest of school also.

Having heard the contention, it may be observed that keeping in view the hea duty work in the school, the Education Department, Haryana could be'' directed to find out the possibility of appointing another Class IV employee in the school, in addition to the plaintiff, who could be deputed to work as per roster. As such, the Director, Education Department, Haryana, is directed to comply with the aforesaid direction within three months.

In view of the aforesaid discussion, it is observed that the Additional District Judge, Sirsa, has not taken correct view of the matter while accepting the appeal filed by the plaintiff that he could be deputed only to work as a Sweeper. Since the appointment letter (Ex. P9) clearly indicates that the plaintiff was appointed to the post of Sweeper and he could also be deputed to perform the duties of ''Chowkidar'' in addition, therefore, he could not refuse to act as a ''Chowkidar'' also.

With the aforesaid observations and directions to the Government of Haryana, this appeal is accepted; the impugned judgment is set aside and the suit filed by the plaintiff is hereby dismissed.