JAIVEER SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) Jaiveer Singh petitioner has filed this writ petition under Articles 226/227 of the Constitution of India against the respondents for issuing an appropriate writ, order or direction especially in the nature of certiorari seeking the quashment of the retrenchment order dated 13.12.2000 (Annexure P-4), passed by respondent No. 3. It has been further prayed by the petitioner that directions be issued to the respondents to treat him at serial No. 3 of the seniority list of Accountant Assistants/Accountant-B over and above Shri Bhawani Shankar and Shri Darshan Kumar in view of his date of joining i.e. 20.12.1979 and his date of confirmation/regularisation i.e. 11.1.82 on the post of Accountant-B in the respondent No. 3-Confed. Further it has been prayed by the petitioner that directions be issued to the respondents to absorb him against a suitable vacancy commensurating to his status lying vacant in other Govt. Departments/Co-operative Societies/Boards as per the decision of the Board of Directors dated 29.5.1998 and 24.11.1999. Yet another prayer was made by the petitioner that directions be given to the respondents to bring Accounts Clerks, who have been promoted to the post of Accountant-B in the year 1992, within the zone of retrenchment in place of the petitioner and two others.

(2.) The case set up by the petitioner is that he was appointed as Assistant Accountant/Accountant-B with respondent No. 3 on 20.12.1979 on ad hoc basis. his services were regularised with effect from 11.1.1982. On 12.1.1982 keeping in view the work exigencies in the respondent-Confed, the petitioner was promoted/given the charge of the post of Accountant-A. The petitioner performed his duty diligently and effectively. On 21.1.1983 the petitioner was reverted back to the post of Accountant-B after performing more than one year continuous service against the post of Accountant-A. According to the petitioner he is B.Com. and he is fully eligible for the post of Accountant. The post of Accountant-A and Accountant-B carries the same pay scale and same qualifications. he is fully eligible for being considered on any of the posts of Accountant-A or Accountant-B. Initially the appointment of the petitioner was made by way of following proper procedure. The petitioner stood the test of scrutiny and was ultimately selected and appointed as an Accountant-B on 20.12.1979 on ad hoc basis. The ad hoc period starting from 20.12.79 to 11.1.1982 was uninterrupted and according to the petitioner this period should have been calculated for the purpose of seniority. Further it is pleaded by the petitioner that respondent No. 3 issued a tentative seniority list on 13.6.1994 in which the petitioner's name was shown at serial No. 4. Two persons of the name of Bhawani Shankar and Darshan Kumar were appointed in respondent-Confed as Accountant Assistant on 25.7.1980 and 25.10.1980 respectively on ad hoc basis. Both these employees were juniors to the petitioner and they have also been shown juniors in the tentative seniority list dated 13.6.1994. The services of Bhawani Shankar were terminated by respondent No. 3 but he was taken into service with the benefit of continuity of service by virtue of the award given by the Labour Court and his seniority was fixed treating his date of appointment as 25.7.1980. In fact the ad hoc period was also counted towards seniority. Similarly, Shri Darshan Kumar was also assigned the seniority with effect from 25.10.1980 and the ad hoc period was also taken into consideration. In the seniority list of 1994 the petitioner was shown senior to Shri Bhawani Shankar and Darshan Kumar. They were shown at serial No. 6 and 8 while petitioner was shown at serial No. 4 but in the seniority list of 1996, Bhawani Shankar and Darshan Kumar have been shown senior to the petitioner by virtue of the fact that ad hoc period of service of these two persons was counted for the purpose of seniority. Earlier, Civil Writ Petition No. 16464 of 1989 was filed and the High Court made the observation that the department may consider to create superary posts. One more writ petition bearing No. 17246 of 2000 was filed and on 14.12.2000 Hon'ble Division Bench granted the status quo with regard to the services of the petitioner but the authorities passed the impugned order on 13.12.2000 retrenching the services of the petitioner and this order was received by the petitioner on 19.12.2000. The petitioner has challenged the order of retrenchment dated 13.12.2000 by alleging that a false excuse has been given in the retrenchment order that respondent No. 3 is suffering financial difficulties. It has been further alleged by the petitioner that there are 55 posts of Accountant-A and 48 Accountants are working. Since the petitioner had been working against the vacancy of Accountant-A, therefore, he could be adjusted against the vacancy of post of Accountant-A in his own pay scale and in this manner the retrenchment could be avoided. It is also the case of the petitioner that retrenchment order dated 13.12.2000 is illegal, arbitrary, malafide and against the principles of natural justice as the seniority of the petitioner has not been correctly fixed. He should be ranked as senior against Darshan Kumar and Bhawani Shankar. His date of appointment should be taken as 20.12.1979. He could not be discriminated. The revised seniority list has to be re-considered and in this manner the retrenchment order dated 13.12.2000 is bad.

(3.) Notice of the writ petition was given to the respondents. The writ was contested by respondent No. 3-Confed which filed the reply. A preliminary objection was taken the writ is bad for non-joinder of necessary parties as Bhawni Shankar and Darshan Kumar have not been made as a party. Moreover, the services of the petitioner were retrenched on account of the abolition of the post. The petitioner has further alleged that few persons such as Sheesh Pal, Rameshwar Dass, Rohtash and Piyare Lal are juniors to him and they have been retained in service but these people have not been made party. On merits, the stand of the respondent is that petitioner was appointed as Accountant on ad hoc basis on 20.12.1979 and his services were regularised on 11.1.1982. On 11.1.1982, the petitioner was appointed to the post of Accountant Assistant. It was a fresh appointment. He was placed under probation and therefore, his seniority has to be counted with effect from 11.1.1982. The final seniority was circulated in the year 1996 and after a lapse of 5 years, the petitioner has given challenge to the seniority list through this writ petition. The Confed suffered huge financial loss and as per the decision taken by the Board of Directors in order of streamline the financial position it was decided to abolish some posts and to retrench some persons after complying the principles of last come first go. Due compensation as per the provisions of Industrial Disputes Act was given. The petitioner was junior most in the category of Accountant-B and after maintaining the roster point for the reserved category the petitioner was retrenched vide order dated 13.12.2000. With this defence, the respondents have made a prayer for the dismissal of the writ petition.