Vinod Kumar vs State of Haryana and Others

Tejinder Singh Dhindsa, J.—The petitioner has filed the instant petition impugning the order dated 17.12.2008, Annexure P 11, passed by the Director, Industrial Training and Vocational Education, Haryana rejecting his claim for the grant of annual increments, medical leave etc. pertaining to a period of service rendered by him on 89 days basis i.e. with effect from 2.12.1997 to 29.11.2002. Pleadings, in brief, are that the petitioner possessed the qualifications prescribed under the Rules for selection and appointment to the post of Instructor under the respondent-Department. Accordingly, he got his name registered with the Employment Exchange, Rohtak for the post of Instructor. On account of certain vacancies of Instructors in various trades having become available in various Industrial Training Institutes across the State, respondent-Department sent a requisition to the Employment Exchange and in response thereto, the name of the petitioner along with certain other eligible candidates was sponsored. A Selection Committee having interviewed the petitioner, an appointment letter dated 29.10.1997 was issued to the petitioner appointing him as Accountancy and Auditing Instructor, in the grade of Rs. 1400-40-1600-50-2300-EB-60-2600, on 89 days basis. The petitioner continued to serve on the post of Instructor on such basis. In the year 2000, the Haryana Staff Selection Commission advertised certain posts of Accountancy and Auditing Instructors. It is averred that the petitioner being eligible for the same applied for such post and subjected himself to a regular process of selection. The petitioner was selected and his name was recommended for appointment as Accountancy and Auditing Instructor, and on 30.11.2002, the petitioner was issued an appointment letter against a regular post. The petitioner who had been serving on the same very post on 89 days basis joined as a regular appointee on 2.12.2002 without any break.

Certain other employees who had also been engaged on 89 days basis/adhoc basis and were subsequently regularized as per policy decisions taken by the Government from time to time approached this Court by filing Civil Writ Petition No. 5277 of 1999 titled as "Vijay Bala v. State of Haryana and others" as also Civil Writ Petition No. 18010 of 2000 titled as "Promila v. The State of Haryana". Civil Writ Petition No. 5277 of 1999 was allowed by a Division Bench of this Court vide order dated 20.7.2000 at Annexure P 5, in terms of which the petitioners therein, who had served on 89 days basis prior to their regularization of service, were granted the benefit of annual increments, leave benefits etc. by taking into account their previous adhoc service/service rendered on 89 days basis prior to the date of their regularization. Likewise, Civil Writ Petition No. 18010 of 2000 was allowed in the light of judgment dated 20.7.2000 rendered in the aforesaid Civil Writ Petition No. 5277 of 1999. Even the Special Leave to Appeal (Civil) filed at the hands of State of Haryana against the decision of this Court in Civil Writ Petition No. 18010 of 2000 was dismissed by the Hon''ble Supreme Court on 19.9.2003.

Claiming to be similarly situated the petitioner earlier in point of time filed Civil Writ Petition No. 14044 of 2008 raising a claim for the grant of benefit of annual increment, medical leave and earned leave in lieu of service rendered by him on 89 days basis prior to his selection and joining on regular basis on the post of Accountancy and Auditing Instructor. Such writ petition was disposed of on 8.8.2008 by this Court by directing the respondents to consider the claim and to take a final decision on the legal notice dated 31.5.2008 that had been served by the petitioner. It is in purported compliance of order dated 8.8.2008 that the impugned order dated 17.12.2008 has been passed rejecting the claim of the petitioner.

Learned counsel for the parties have been heard at length and pleadings on record have been perused.

A perusal of the impugned order as also the written statement filed on behalf of the State would make it apparent that even though it stands admitted that other employees who had worked on 89 days basis, adhoc basis and subsequently regularized have been granted the benefit of annual increment/medical leave and earned leave by taking into account their service prior to the regularization, yet a distinction is being sought to be drawn by contending that the petitioner had not been regularized after having served on 89 days basis, but he had rather joined as a regular selected candidate and as a direct appointee in December 2002.

This Court is of the considered view that such distinction sought to be drawn between an employee working on 89 days basis and subsequently regularized under a policy of regularization as opposed to another employee who has also served on 89 days basis and thereafter has successfully negotiated a regular selection process and has joined on the regular post without any break is totally ill-conceived. The petitioner who chose to subject himself to a process of selection conducted at the hands of a premier recruiting agency of the State and having been so selected, cannot be put to a disadvantage and as such, cannot be seen on a lower pedestal as opposed to an employee who has taken benefit of a policy of regularization. Still further, the distinction sought to be drawn on behalf of the State to deny the benefit to the petitioner would pale into insignificance in the light of the specific admission made in the written statement to the effect that the petitioner prior to joining on 89 days basis possessed the requisite qualifications for the post of Instructor, the name of the petitioner having been duly sponsored by the Employment Exchange and only upon a Selection Committee having interviewed the petitioner, was he engaged on 89 days basis. The petitioner, as such, would be vested with a right to claim parity of treatment with the other petitioners in the cases of Vijay Bala and Promila (supra). It would be apposite to even take note of memo dated 31.8.2004, Annexure P 7, issued by the Director, Industrial Training and Vocational Education, Haryana wherein the respondent-Department has taken an affirmative decision as regards grant of annual increments to the Language Teachers/Instructors working on 89 days basis in the vocational Institutions.

For the reasons recorded above, the present writ petition is allowed. The impugned order dated 17.12.2008, Annexure P 11, is quashed. The petitioner is held entitled to the grant of annual increments/earned leave/medical leave for the period 2.12.1997 to 29.11.2002 that he had served on the post in question on 89 days basis. It is, however, clarified that the benefit of actual arrears to the petitioner shall be confined to the period of 38 months prior to the date of filing of Civil Writ Petition No. 14044 of 2008 that the petitioner had preferred first in point of time towards raising such claim. Petition allowed in the aforesaid terms.