DILBAG SINGH Vs. STATE OF HARYANA ETC.

JUDGEMENT

(1.) Petitioner has approached this Court assailing the order dated 11.04.2005 (Annexure P-3), vide which his services have been regularised w.e.f. 31.01.1996 and the order dated 31.08.2007 (Annexure P-4) vide which the ACP grade has been granted to the petitioner w.e.f. 01.03.2006 which, the petitioner asserts, he is entitled to w.e.f. 10.12.2003 when the services of the petitioners are counted from the date of his appointment as a Driver i.e. 10.12.1993.

(2.) Counsel for the petitioner contends that the petitioner was initially appointed on temporary basis as a Chowkidar on 05.12.1989. CWP No. 3906 of 2011 2 Thereafter, the petitioner was appointed as a Driver against a regular vacant post in the regular pay scale of <del>&#2352</del> 1200-2040 vide order dated 10.12.1993. He continued serving the respondents when in the year 2005, order dated 11.04.2005 was passed regularising the services of the petitioner w.e.f. 31.01.1996 by modifying the order of his appointment dated 10.12.1993. For the grant of the ACP grade, respondents have taken the date of his regularisation as the initiation of his service for the purpose of the said grade and accordingly, had granted the 1st ACP grade w.e.f. 10.12.2006 whereas the petitioner asserts that he is entitled to the grant of the said grade from 10.12.2003, the initial date of his appointment as a Driver. Since he was granted the ACP grade w.e.f. 10.12.2006, order dated 31.08.2007 (Annexure P-4) is assailed by him. Petitioner preferred an appeal against the order, which has now been decided by the respondents vide order dated 21.07.2011 (Annexure R-2/T) rejecting the claim of the petitioner. Counsel for the petitioner contends that the impugned order dated 11.04.2005 (Annexure P-3) deserves to be set aside as the same is in violation of the earlier order dated 10.12.1993 when there is no stipulation that the appointment of the petitioner is either on temporary basis or not regular. Since the appointment of the petitioner was against a vacant post and he was granted the regular pay scale and there being no stipulation in the appointment letter with regard to the nature of his appointment, the appointment should be deemed to have been on regular basis. The subsequent order regularising his services w.e.f. 31.01.1996 vide order dated 11.04.2005 cannot sustain. He, on this basis, has further stated that the consequential benefit of grant of 1st ACP should also be released to the petitioner w.e.f. 10.12.2003, which has been granted to him w.e.f. 10.12.2006 vide impugned order dated 31.08.2007 (Annexure P-4).

(3.) On the other hand, counsel for the respondents submits that the petitioner was appointed as a Driver as a fresh hand w.e.f. 10.12.1993 by the respondent-department. He could not have been appointed on regular basis as the said post fell in the purview of Subordinate Service Selection Board and for making appointment to the said post, the proper procedure by sending a requisition to the Board had to be followed, which was not done. Realising this difficulty as far as the initial appointment of the petitioner as a Driver is concerned, the department, to grant the benefit of services to the petitioner, had regularised his services w.e.f. 31.01.1996 as a Driver as per the instructions dated 07.03.1996 issued by the Government of Haryana. Had this order of regularisation not been passed, the petitioner would have continued on temporary basis as his appointment was not in consonance with Articles 14 and 16 of the Constitution of India and his appointment would be termed as Illegal. Since the services of the petitioner were regularised w.e.f. 31.01.1996 as per the Policy Instructions dated 07.03.1996, the consequential benefit of grant of ACP, which flows from the date of regular appointment of the employees, has been granted to him w.e.f. 10.12.2006 on completion of 10 years of service. He, therefore, contends that the present writ petition is devoid of any merit and deserves to be dismissed.