Ved Parkash vs State of Haryana and Others

G.S. Singhvi, J.—This petition has been filed to quash the order (Annexure P-3) dated 22.5.1995 passed by the General Manager, Haryana Roadways, Panipat terminating the service of the petitioner, who was working as a daily-wager in the Haryana Roadways at Panipat.

The petitioner, who is a Matriculate, was appointed as Helper on daily wages by the General Manager Haryana Roadways, Panipat w.e.f. 17.1.1995 by order (Annexure P-1) dated 18.1.1995. His appointment was to last till 31.3.1995. However the term of his appointment as daily waged employee was extended from time to time. Respondent No. 4 was similarly appointed as Helper by order dated 17.4.1995 (Annexure P-2) with effect from 1.3.1995. His appointment was to last till 31.4.1995 and he was to be paid Rs. 1150/- per month. Services of the petitioner and the respondent No. 4 came to be terminated vide impugned order (Annexure P-3) dated 22.5.1995 on the ground that the same are no longer required. However, just after two days, the respondent No. 4 came to be appointed as Peon on daily wages with effect from 24.5.1995 vide order Annexure P-4. It is an admitted position that the orders Annexures P-3 and P-4 were issued by Shri N.K. Singla who was holding the post of General Manager, Haryana Roadways, Panipat, at the relevant time. The petitioner has challenged the termination of his service on the ground of arbitrariness and discrimination by alleging that respondent No. 4 was junior to him as a helper and, therefore, while retaining respondent No. 4 in service, respondent No. 3 could not terminate his service. Petitioner''s grievance is that with a mala fide intention, the then General Manager terminated the service of the petitioner as well as respondent No. 4 but reappointed the respondent No. 4 as Peon with effect from the same very date, i.e. 22.5.1995, without even considering his case.

In reply, respondent Nos. 1 to 3 have pleaded that the respondent No. 4 was appointed as Helper on daily wages as per the rates approved by the Deputy Commissioner and his appointment was with effect from 18.1.1995 and not from 1.3.1995, as alleged in the writ petition. It has also been pleaded that service of the petitioner was terminated as per the terms and condition of his appointment order and the appointment of respondent No. 4 as Peon with effect from 22.5.1995 has nothing to do with his appointment as Helper.

During the course of arguments, it was found that before appointing the petitioner as well as respondent No. 4 no requisition was sent by the respondent No. 3 to the Employment Exchange although such appointment had been made against the existing posts. Therefore, it was ordered by the Court on 12.2.1996 that a notice be issued to the respondent No. 3 to show cause as to why a direction be not issued to the Government to prosecute him for violation of the provisions of Section 4 of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959. Shri N.K. Singla, who was holding the post of General Manager, Haryana Roadways, Panipat, at the relevant time filed his affidavit along with Civil Misc. No. 4691 of 1996. In this affidavit, Shri Singla has stated that petitioner Ved Parkash was appointed on daily wages with effect from 17.1.1995 and respondent Brij Bhushan was appointed as daily waged Helper with effect from 18.1.1995. He has also stated that service of both i.e. the petitioner and the respondent No. 4, were dispensed with/discontinued with effect from 22.5.1995. It has also been stated that immediately after the termination of service of respondent No. 4 his mother came along with him and pleaded that they are poor people and that she was mentally retarded and the respondent No. 4 was looking after her and as the post of Peon was vacant the deponent took a compassionate view in the matter and ordered his appointment on daily wages w.e.f. 22.5.1995 till 30.11.1995. Shri Singla has further stated that he has since been transferred from the post of General Manager, Haryana Roadways, Panipat. He has tendered unqualified apology for not sending requisition to the Employment Exchange for appointment of Peon.

Learned Deputy Advocate General made a statement before the Court on 7.3.1996 that service of respondent No. 4 has also been dispensed with.

From the facts, which have been brought on record, it is clearly proved that the petitioner as well as respondent No. 4 were appointed as Helpers on daily wages w.e f. 17.1.1995 and 18.1.1995 respectively and both of them continued till 22.5.1995 without any interruption. It is also borne out from the record that respondent No. 4 was again appointed as Peon against a vacant post w.e f. 22.5.1995. Order (Annexure P-4) does not make any reference to the tenure of the appointment of respondent No. 4 on the post of Peon but in his affidavit Shri N.K. Singla has stated that said appointment was to last till 30.11.1995 and his service is said to have been dispensed with some time in March, 1996.

Since the petitioner as well as the respondent No. 4 were appointed as Helpers on daily wages without notifying the vacancies to the Employment Exchange concerned in accordance with the provisions of the 1959 Act or without issuing a short term advertisement, no right came to be vest in either of them to be continued in service. Therefore, we do not find any illegality in the order of termination of their service. However, there was no legal justification for re-appointment of the respondent No. 4 as Peon because this appointment was also given to him without sending requisition to the Employment Exchange and/or without advertising the vacancy. By Appointing Respondent No. 4 immediately after termination of his service was clearly an act of favouritism by Shri N.K. Singla and but for the fact that respondent No. 4 is no longer in service, we would have passed an order to quash his appointment.

Coming to the issue regarding violation of provisions of the 1959 Act by Shri N.K. Singla, we deem it proper to take notice of the fact that while deciding the civil writ petition No. 4522 of 1994 (Kulbhushan v. State of Haryana and Ors.), this Court had given directions to the Government and its functionaries not to make appointment except after sending requisition to the Employment Exchange or by advertising the vacancies. The extract of the directions given by the Court, which is relevant to the context of this case, is reproduced below :-

"(4) The Government of Haryana and its functionaries in all the departments are directed to make recruitment to the public services strictly in accordance with the statutory rules wherever such rules have been framed. All the available posts should be filled by regular method of recruitment prescribed in the rules. Where such rules have not been framed, recruitment to all the services shall be made either by sending requisition to the Employment Exchange or by advertisement of the posts in the newspapers.

(5) The Government and its officers shall not make any appointment on daily wages in future. If any officer makes appointment on daily wages or on part-time basis or on fixed term basis or on casual basis, he shall be made personally responsible to the Government in respect of the wages paid or to be paid to such an appointee."

In this case, it has been admitted by Shri N.K. Singla that he did not send requisition to the Employment Exchange before giving appointment to the petitioner and respondent No. 4 in the first instance or to the respondent No. 4 on the second occasion, but he has tried to justify his action by saying that respondent No. 4 was appointed on compassionate ground. In our opinion, the explanation given by Shri Singla is clearly an afterthought. The order issued by Shri Singla appointing the respondent No. 4 as Peon does not indicate that it was issued for appointment on compassionate ground. Moreover, neither any rule nor the policy of the Government has been brought to our notice which empowered Shri Singla to give appointment to the respondent No. 4 because his mother had come to the officer and pleaded for appointment of her son. It is therefore, prima facie established that Shri Singla has acted in clear violation of Section 4 of the 1959 Act.

In their reply, respondent Nos. 1 to 3 have also not stated that the appointment on daily wages was given to the petitioner and respondent No. 4 after notifying the vacancies to the Employment Exchange. Section 4 of the 1959 Act makes it obligatory for the public as well as private employer to notify the vacancies to the Employment Exchange concerned before filling-up any vacancy in any employment. This provision is couched in a mandatory form and violation of Section 4 makes the employer liable for punishment u/s 7 of the 1959 Act. For the purpose of this order it will be useful to quote Sections 4 and 7 of the 1959 Act, which read as under :-

"4. Notification of vacancies to employment exchange:-

(1) After the commencement of this Act in any State or area thereof, the employer in every establishment in public sector in that State or area shall before filling up any vacancy in any employment in that establishment, notify that vacancy to such employment exchanges as may be prescribed.

(2) The appropriate Government may by notification in the Official Gazette, require that from such date as may be specified in the notification, the employer in every establishment in private sector or every establishment pertaining to any class or category of establishment in private sector, shall, before filling up any vacancy in any employment in that establishment notify that vacancy to such employment exchanges as may be prescribed, and the employer shall thereupon comply with such requisition.

(3) The manner in which the vacancies referred to in Sub-section (1) or Sub-section (2) shall be notified to the employment; exchanges and the particulars of employments in which such vacancies have occurred or are about to occur shall be such as may be prescribed.

(4) Nothing in Sub-sections (1) and (2) shall be deemed to impose any obligation upon any employer to recruit any person through the employment exchange to fill any vacancy merely because that vacancy has been notified under any of those Sub-sections.

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Penalties: (1) If any employer fails to notify to the employment exchange prescribed for the purpose any vacancy in contravention of Sub-section (1) or Sub-section (2) of Section 4, he shall be punishable for the first offence with fine which may extend to five hundred rupees and for every subsequent offence with fine which may extend to one thousand rupees.

(2) If any person: -

(a) required to furnish any information or return-

(i) refuses or neglects to furnish such information or return, or

(ii) furnishes or causes to be furnished any information or return which he knows to be false, or

(iii) refuses to answer, or gives a false answer to, any question necessary for obtaining any information required to be furnished u/s 5; or

(b) impedes the right of access to relevant records or documents or the right to entry conferred by Section 6, he shall be punishable for the first offence with fine which may extend to two hundred and fifty rupees and for every subsequent offence with fine which may extend to five hundred rupees."

In view of Section 3, the provisions of this Act shall not apply in relation to the employment which is of less than three months, but admittedly the petitioner as well as the respondent No. 4 were appointed as Helpers for a period of more than three months. The respondent No. 4 was re-appointed as Peon vide order dated 24.5.1995 without any time limit. Even if we were to accept the statement of Shri Singla that appointment of the respondent No. 4 as Peon was to last till 30.11.1995, it is evident that before making that appointment, requisition was required to be sent to the Employment Exchange as per Section 4 of the 1959 Act and Prima facie it is clear that Shri N.K. Singla acted in violation of the provisions of Section 4.

At this stage, we may deal with the argument of Shri C.B. Goel that the court should show compassion and condone the lapse on the part of Shri N.K. Singla. Shri Goel submitted that the lapse committed by his client is of minor nature and, therefore, the Court may accept his apology. Employment in public services has been recognised as public property and all eligible persons are entitled to share this property. In some of the judgments, the Supreme Court has recognised it to be a part of right to life enshrined in Article 21 of the Constitution. Thus, if proved, the action of Shri N.K. Singla may amount to violation of important constitutional provision as well. That apart, we see no reason for adopting an approach, which would be an indication of Court shrinking its responsibility towards the people at large. Corruption in all walks of urban life has become deep and prevassive. Acceptance of money for showing favours in the award of contracts, issue of permit, licences, distribution of quotas and appointment in public services is rampant. During last few years, corruption has become so deep rooted that those who are party to the corruption have become totally insensitive. Public money and property is being consumed by few individuals without any repetence or thought of remorse. Those who indulge in unethical acts and are bent upon to destroy the basic value system in the country occupy important position in public service and elsewhere. The policy of liberlisation which was intended to benefit the common man has brought out a new class of people who are out to grab public property irrespective of means. When these people are booked by law enforcing agency then they plead for compassion. When the Courts take cognizance of violation of law then this new class of people makes loud protest through few vested interests. Then there is a cry of judiciary encroaching the field of executive. The beneficiary of corruption plead equality by saying that other indulging in similar activities are not being booked.

Employment in public service without notification of vacancies to the Employment Exchange concerned or without advertisement has become the order of the day. The courts are flooded with litigation involving challenge to the unlawful appointments. It has been found as a matter of fact that back-door employment is given in most of the cases for extraneous reasons and employment in Public service has virtually become a commerce. Rampant acts of favourtism, nepotism and corruption in giving jobs are reported every day. it is, therefore, high time that this unethical and corrupt practice of making appointment on daily wages or fixed term appointment without intimation of the vacancies to the Employment Exchange is brought to a halt. We do not find any justification to condone the violation of provisions of the 1959 Act by Shri N.K. Singla and in our opinion it is a fit case for direction the prosecution of Shri N.K. Singla for violation of the provisions of Section 4 of the 1959 Act.

For the reasons stated above, the writ petition is dismissed. However, the respondent Nos. 1 and 2 are directed to pass appropriate order u/s 8 of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 within one month of the receipt of a copy of this order for prosecution of Shri N.K. Singla, who is presently holding the post of Managing Director, Sugar Mill, Panipat.