SURAJ BHAN Vs. STATE OF HARYANA AND OTHERS

JUDGEMENT

(1.) Petitioner has approached this Court impugning the order dated 04.08.2010 (Annexure P-6) passed by the Executive Engineer, P.W.D (B&R), Hisar Circle, Hisar-Respondent No. 4 vide which order of his regularization with effect from 01.10.2003 vide Annexure P-3 dated 29.03.2008 has been withdrawn. Petitioner was appointed as a Beldar in October, 1994. His services were terminated by respondent No. 4 in April, 1996. An industrial dispute was raised by the petitioner, wherein Award dated 18.01.2006 was passed by the Labour Court, Hisar holding therein that the termination of the services of the petitioner was not in accordance with law. He was ordered to be reinstated in service with continuity thereof and all other consequential benefits along with 50% back wages. This Award was accepted by the respondents and the petitioner was reinstated in service in August, 2006. On 14.08.2006, petitioner made a representation that his juniors have been regularized with effect from 01.10.2003 and therefore, his services be also regularized from the said date. When no decision was taken thereon, petitioner filed C.W.P. No. 18611 of 2008, which was disposed of by this Court vide order dated 30.10.2008 with direction to respondent No. 4 to consider and decide the same by passing a speaking order. In compliance with this order, respondent No. 4 passed an order dated 29.12.2008 accepting the representation of the petitioner and his services were regularized with effect from 01.10.2003. Thereafter, a show cause notice dated 13.07.2010 was served on the petitioner by respondent No. 4 as to why the order dated 29.12.2008 for regularization be not withdrawn. A detailed reply was filed to the said show cause notice by the petitioner on 19.07.2010 but the same was not accepted by respondent No. 4 and he proceeded to pass the impugned order dated 04.08.2010 (Annexure P-6) withdrawing the earlier order dated 29.12.2008. It is this order which is under challenge in the present writ petition.

(2.) Counsel for the petitioner contends that the impugned order has been passed primarily on the ground that prior to the issuance of the order of his regularization on 29.12.2008 instructions for regularization of the services stood withdrawn and therefore, the benefit could not be granted to the petitioner. He contends that the claim of the petitioner was based not only on the instructions but was based on regularization of the services of the similar placed employees who had been appointed subsequent to the petitioner and were serving with the respondents. Since the petitioner has been granted continuity of service with all consequential benefits and 50% back wages in the light of the Award passed by the Labour Court, the petitioner for all intents and purposes was treated to be in service with effect from October 1994 i.e. that is the initial date of his appointment as Beldar. He on this basis contends that the order of regularization passed in favour of the petitioner with effect from 01.10.2003 was not based on any instructions but on the fact that juniors to the petitioner stood regularized on that date. He submits that the impugned order dated 04.08.2010 (Annexure P-6) cannot sustain as it violates Articles 14 and 16 of the Constitution of India.

(3.) On the other hand, counsel for the respondents submits that the services of the petitioner could not be regularized in the light of the judgment passed by the Supreme Court in the case of State of Karnataka and other Vs. Uma Devi and others, 2006 4 SCC 1. In the light of the Supreme Court's order passed in this case, all instructions which had conferred a right of regularization on the employees stood withdrawn, as on the date when the order of regularization of the petitioner was passed, there was no instructions on the basis of which benefit which the petitioner had been granted, could have been given and since the same was passed not in accordance with the instructions, the same was rightly withdrawn by respondent No. 4. He accordingly, supports the impugned order.