Surekha Rani vs State of Haryana and Others

Rajiv Narain Raina, J.—The petitioner was appointed as an adhoc teacher in 1994 in school cadre (Haryana). She served till 1.7.2003 when due to illness, she took leave and remained incapable to work till 17.5.2004. Thereafter, she resumed service and continued to teach and was posted to different schools in Haryana from time to time. A regularization policy was floated on 1.10.2003 by the Haryana Government. It was amended on 10.2.2004. This policy created a valuable right of adhoc employees to regularization, provided they were in service up to 30.9.2003 which was appointed as the cut off date for consideration of claims. The petitioner was not physically available on 30.9.2003 due to her illness. However, the learned counsel for the petitioner submits that the thread of service was not been broken and the relationship of master and servant continued. Therefore, the petitioner will be deemed to be in service on 30.9.2003. Her colleagues in the school cadre, who were also appointed on adhoc basis, secured orders of regularization of their services and came into regular cadre under the policy. The petitioner''s case, however, lingered on without decision, compelling her to approach this Court through the present writ petition on 27.5.2010.

Notice of motion was issued and the respondents have filed reply. The State admits that the petitioner is continuously working on the post of Lecturer in Commerce but had spent 10 months from 1.7.2003 to 17.5.2004 on leave and, therefore, her case deserves to be rejected since the State is not at fault of her physical absence on 30.9.2003.

Rule 8.121 of the Punjab Civil Services Rules, Volume-I, Part-I as applicable to Haryana has been cited which deals with extra ordinary leave period and the period of 10 months is too long time to be counted towards service of an adhoc employee.

In the written statement, the nature and quality of her appointment on adhoc basis in 1994 has not been questioned as either illegal or irregular nor has the defence been taken that the case is covered by the judgment of the constitution bench of the Supreme Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others,

Appearing for the State, Mr. Sunil Nehra, learned Sr. DAG, Haryana argues that even though, the respondents may not have specifically raised the issue with respect to the law laid down in Umadevi-3 but that law would apply nevertheless, so also the law rendered by this Court in State of Haryana and others v. Channi, in LPA No. 1746 of 2012 (O&M) decided on 28.2.2013. Still further, the case of the petitioner does not fall in paragraphs 45 or 53 of the judgment Umadevi-3 and the ratio laid down by this Court in Channi''s case where even the issue of discrimination has been excluded for securing relief of regularization on principles of parity of treatment to such as may have been left out due to any reason whatsoever stands against the petitioner disentitling him to relief. It cannot be disputed that the respondents did not pass any order treating the period from 1.7.2003 to 17.5.2004 as either period not spent on duty or as dies non nor had they passed any order declaring it to be extra ordinary leave. The question has assumed significance because it is the common case that after 17.5.2004, the petitioner rejoined service and serves still.

To the contrary, learned counsel for the petitioner points out that the objection taken by the respondents in the written statement with respect to 10 months of absence deserves to be rejected in view of the Notification dated 10.5.2004 (P-4) of the Haryana Government where in exercise of power conferred by proviso to Article 309 of the Constitution of India read with the proviso to Clause 6 of the Haryana Government, General Administration Department (General Services) notification dated 28.2.1970 Government amended the words "not more than 6 months" occurring in the original policy by substituting them for the words "not more than six months in a year". Therefore, it is argued that the period has to be examined in two parts; one for the year 2003 and the other for 2004 for calculation of 6 months and in this manner, the petitioner would qualify under the amended provision.

To clarify, the petitioner would be deemed to have spent 5 months in 2003 and 5 months in 2004 on leave which is less than 6 months. These were periods when she was being treated for Cancer.

There appears to be merit in the submission of the learned counsel for the petitioner that 10 months of absence should not deprive the petitioner of her right to be treated on parity with her compatriots who secured regularization orders on the ground that they were in service on 30.9.2003 and had spent 3 years service prior thereto. When discrimination under Article 14 is writ large, it cannot be fair for this Court to deprive the petitioner of her right of consideration of regularization as per policy with effect from the appropriate date which her colleagues had come to take benefit of. Still further, it can be validly assumed that the petitioner had a crystallized right under the 2003 policy which was extant well before the pronouncement of the judgment in Umadevi''s case on 10.4.2006. Therefore, this Court may be justified in applying the principle of relation back to declare the right of the petitioner as on 30.9.2003 on the assumption that the master-servant relationship continued and crossed over though on adhoc basis for unforeseeable reasons beyond her control. The petitioner cannot be made to pay such a heavy price for not being physically present on 30.9.2003 when admittedly was under treatment for Cancer. The government has utilized her services throughout and ought not to be seen as an exploiter of human resources. To my mind, nothing would be more abhorrent to the cause of justice than not to give her parity of treatment with those who were not afflicted by disease and kept away from performing duty on the appointed day, that is, 30.9.2003. Therefore, this writ petition is allowed. A direction is issued to the respondents to consider regularizing the petitioner under Policy, 2003 by assuming that she was in service and present on 30.9.2003 by deeming fiction with all consequential benefits.

Let a decision be taken accordingly within two months from the date of receipt of a certified copy of this order.