Allowed

Parveen Chopra v. State of Punjab and Ors.

Punjab & Haryana HC2 Feb 2012CWP/15109/1996

Case brief

AI extract

What is this about?

In a service dispute, the single-judge bench quashed the termination order of a temporary Clerk. The court held that termination due to completion of Lok Sabha elections was arbitrary as junior staff remained. It also found the illegality ground regarding employment exchange sponsorship was a technical breach without legal necessity. The court reinstated the petitioner with continuity of service a

What did the court decide?

Quashing of termination order; reinstatement to service as Clerk on ad hoc basis with continuity and notional increments; personal costs of Rs. 25,000.

Parveen Chopra Vs State of Punjab and Ors. — Service and Employment | Punjab & Haryana HC (2012)

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CWP No.15109 of 1996

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CWP No.15109 of 1996 Date of Decision: 02.02.2012

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Smt. Parveen Chopra ..... Petitioner

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Versus

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The State of Punjab and others ..... Respondents

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CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA

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Present: Mr. A.K. Chopra, Sr. Advocate, with Mr. N.D. Kalra, Advocate, for the petitioner.

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Mr. N.S. Pawar, Addl. AG, Punjab, for the respondents.

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To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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RAJIV NARAIN RAINA, J.

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This petition was admitted on 6.10.1997 for final disposal on 22.12.1997. Prior to the admission order an affidavit was filed by the Deputy Commissioner cum District Election Officer, Ferozepur stating that none of the 11 persons who were appointed in January 1996 together with the petitioner have been retained or their services regularized.

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The prayer in the petition is for quashing the impugned order dated 17.06.1996 (P-3) terminating the services of the petitioner from the post of Clerk on ad hoc basis on the ground that the work relating to the Lok Sabha Elections stand completed and the services of the petitioner were no longer

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CWP No.15109 of 1996

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required. The petitioner has prayed for reinstatement and for regularization of her services as Clerk from the date persons junior to her were retained in service and were regularized. The further prayer is for release of salary for the period 17.06.1996 to 30.08.1996 being the period that she was made to work despite passing of the order of termination.

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The brief facts of the case are that in the first instance the petitioner served as a Clerk on ad hoc basis in the District Election Office, Ferozepur from 24.01.1992 to 15.05.1992. This period has no material bearing on the case. What is relevant is that the petitioner was appointed again as Clerk on ad hoc basis vide order dated 16.01.1996 along with 20 others. The Departmental Selection Committee was constituted by the Election Department, Punjab to make the selections. In the appointment that followed the petitioner avers that her name figured at serial no.2 of the merit list. She joined service on 17.01.1996. Nine other persons were appointed as Clerks along with the petitioner. Initially, the appointment was made up to 29.02.1996. The services of the petitioner and others were extended every month. She pleads that one Amarjit Singh Clerk, junior to the petitioner was allowed to continue. The services of one Bhupinder Singh also junior to the petitioner in the merit list have been regularized on 16.06.1996 itself. Besides, six other persons were appointed afresh on the post of Clerk on ad hoc basis on 14/15.06.1996. In this background, the petitioner claims that the grounds of termination, that is, non availability of work is an unreal, non-existent reason and therefore severance was one sided arbitrary action. On termination, the petitioner made representations dated 26.06.1996 to the Deputy Commissioner, Ferozepur and to the Commissioner, Ferozepur Division, Ferozepur (P-4 & P-

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CWP No.15109 of 1996

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5). It was on this representation that the petitioner was allowed to continue working on the post with an assurance that she would be issued afresh appointment letter. It is in this background that the prayer has been made for release of salary for the short period aforesaid. The appointment order of the petitioner (P-2) bears out that though appointed on ad hoc basis against temporary post of Clerk, she was granted the pay scale of 950-1800 with initial pay of Rs.1000/- up to 29.02.1996.

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On notice of motion having been issued, the respondent-State put in appearance and filed a written statement of Sh. Satish Chandra, IAS, Deputy Commissioner, Ferozepur. It was admitted that the appointment of the petitioner was based on merit selection. The petitioner's name was placed at serial no.3; the petitioner insists she was ranked 2^nd . Though the appointment order specified date of exit as 29.02.1996 but in the written statement, it was said that after 89 days of service, one day break was made in respect of all the Clerks. It was further stated that the petitioner was appointed on purely temporary basis against one of the 11 temporary posts of Clerks which were sanctioned by the Chief Electoral Officer, Punjab, Chandigarh. Nine posts were for preparation of identity cards, seperately for the Lok Sabha Elections and for the Gurdwara Elections. It was emphatically stated that the petitioner was appointed against one of the post sanctioned for “Gurdwara Election”. The sanction of the post was extended up to 28.02.1997. The appointments were put under scrutiny of record of all candidates selected and appointed pursuant to a letter issued by the Punjab Government dated 11.06.1996. On scrutiny it was found that the petitioner was not one of the recommendees from the District Employment Exchange, Ferozepur along with one other Clerk namely,

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CWP No.15109 of 1996

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Chamkaur Singh whose appointment was said to have suffered from the same defect. The Deputy Commissioner in his affidavit in response before this Court categorically stated that the services of the petitioner and Chamkaur Singh were brought to an end on this ground alone. It was further stated that all the Clerks and Class-IV employees engaged in January 1996 were terminated from service w.e.f. 30.08.1996 A.N. under the instructions of the Punjab Election Department, Chandigarh received through the letter dated 23.08.1996. It was also stated that the appointment of the petitioner being wrong and illegal necessitated termination, therefore, the replacement of the petitioner by another employee would not offend the law.

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The petitioner has filed a replication to the written statement of the State where she has reiterated her case; the petitioner has highlighted the contradiction in the termination order and the stand in the written statement inasmuch as the foundation of the order of termination is based on completion of Lok Sabha elections while the motive was that her name was not sponsored by the Employment Exchange like others. I find that this stand was contra indicatory to the one taken in the termination order. A frresh reason cannot be supplied to support an administrative order.

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The petitioner in her replication further stated that it was wrong to say that her name was not registered at all with the District Employment Exchange, Ferozepur. When she was initially appointed as Clerk on ad hoc basis in the district Election Office at Ferozepur on 24.01.1992 her name was duly sponsored by the Employment Exchange and, therefore, this ground was not available to the State to press against her. It is well known that a person whose name is sponsored by an Employment Exchange and obtains a job,

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CWP No.15109 of 1996

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his/her name is deleted from the live list of the Exchange, the purpose having been served. It is, therefore, argued that the reason contained in the impugned order is patently bad. The order being in the nature of an administrative order can survive only if the reason is valid and germane to the action taken. A fresh reason cannot be supplied in defence in a written statement unlike in judicial or quasi-judicial orders which can be supported or castigated for reasons other than those contained in it. The petitioner also pressed into service the Punjab Government instructions (P-10) on regularization of services of persons appointed prior to 12.08.1996. The petitioner has filed a counter affidavit per contra the affidavit of the Deputy Commissioner cum DEO, Ferozepur dated 27.06.1997. In the counter she has pleaded that Amarjit Singh who was placed below her in merit continued working as Clerk at Jalalabad. One Bhupinder Singh at serial no.6 also junior to her was relieved from the office of the 3^rd respondent on 20.06.1996 and was transferred to Muktsar where his services stand confirmed. She has also spelt out the cases of one Smt. Reena Sethi who was appointed as Clerk after the petitioner and was allowed to continue up to 09.10.1996. The petitioner sought to falsify the stand of the Deputy Commissioner, Ferozepur that no appointments were made as incorrect. In fact, numerous persons were appointed as Clerks even on 03.01.1997. This counter affidavit compelled the Deputy Commissioner, Ferozepur to file yet another affidavit. It was countered that Amarjit Singh was not allowed to continue as Clerk at Jalalabad under the District Election Office, Ferozepur. He was relieved on 28.02.1997. For Bhupinder Singh, Clerk it was stated that he managed his transfer from District Election Office, Ferozepur to Muktsar while in service and before the expiry of the term against which he was appointed.

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CWP No.15109 of 1996

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Therefore, he was not in service of the District Election Office, Ferozepur. The case of Smt. Reena Sethi was sought to be explained on the ground that she was appointed against one of the six posts sanctioned by the Commissioner Gurdwara Elections, Punjab, Chandigarh on 18.04.1996 to cope with additional work in connection with the preparation and printing of Gurdwara Electoral rolls. She continued in service till 9.10.1996 after which she was no more in the service of the District Election Office, Ferozepur. It was defended that the affidavit filed on 27.06.1997 was correct and nothing has been concealed therein. In this affidavit dated 05.10.1997 it was further admitted that the regular post of Clerk was lying vacant in DEO, Ferozepur but the appointing authority was the Chief Electoral Officer, Punjab, Chandigarh. 7. On 24.08.2011, the petitioner brought to the notice of this Court the case of one Sunil Hans, who was also appointed as Clerk on ad hoc basis together with the petitioner in 1996. The services of Sunil Hans were also terminated. He filed CWP No.1750 of 1997 which was disposed of by this Court vide a detailed order dated 16.09.1997 with a direction to the respondents to consider his claim. His case was considered but because of registration of some criminal case, he was not taken back in service. The petitioner also gave an undertaking that in case, she is reinstated to the post of Clerk or any other equivalent post she would be ready to forego her claims as set out in this petition. Learned State counsel sought time to seek instructions. 8. In response, the Deputy Commissioner, Ferozepur has filed a short affidavit dated 15.11.2011. In this affidavit, it is categorically stated; just as in the case of the previous Deputy Commissioner, that the petitioner was appointed against one post sanctioned for Gurdwara Elections. If that were true

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CWP No.15109 of 1996

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then it is not understandable as to why her services were terminated on completion of Lok Sabha elections given that there is a distinction between the two. In this affidavit, it has been stated that the CEO, Punjab vide letter dated 4.4.2011 has sanctioned the extension of post of Clerks in District Election Office as mentioned in the column. The minimum qualification is now Graduate etc. whereas the petitioner's qualification is matric and, therefore, she can be considered only according to her qualification and eligibility for the vacant post of Clerk; and that her case will be considered in the future if any sanctioned post becomes available as per her qualification and eligibility. The resistance of the State has been considerably diluted in this affidavit of Dr. S. Karuna Raju, IAS, Deputy Commissioner, Ferozepur. The petitioner has filed a counter affidavit. She has stuck to her initial stand. Her assertions are now contemporary and up to date. She emphatically states that Bhupinder Singh who was on her select list in 1996 and lower in merit has continuously served the State. Besides, Chamkaur Singh and Pippal Singh who were appointed as Clerks with the petitioner are still continuing. Her compatriot Balwinder Singh lower in merit as Clerk and, therefore, junior to her was though disengaged in October 1996 but was reappointed as Clerk in 20.04.1998 and is continuing till date. The petitioner emphatically states that the aforesaid persons are continuing in service or were reappointed, also possess qualification of matric, like the petitioner. They are also not graduates. She narrates the story of one Sh. Tilak Raj appointed with her but in a Class-IV post. He continues to serve on promotion as Clerk on the basis of his matric qualification. His services have been made permanent. Insofar as Sunil Hans is concerned, she states that this Court had ordered reconsideration of his case for reappointment. This

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CWP No.15109 of 1996

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Court did not find that there was no merit in his case. The order of this Court in Sunil Hans case is an elaborate order running into eight pages, a copy of which has been placed on record. She, therefore, contends that at the time of appointment of the petitioner the minimum qualification prescribed for the post of Clerk was matric and not graduation. She submits assuming arguendo that the qualification for the post was now taken as graduation she continued with her education and now possesses certificates to prove that she has done 12^th class from the Punjab School Education Board in the year 2001. Besides in her early years she had obtained a trade certificate in TCS in 1998; she passed her Giani examination from Panjab University in 1989 and she has also obtained certificate from Satyam Computers regarding 180 hours comprising of Information Technology in Office Productivity Applications. She stakes her claim on past and present qualification as a ground for consideration for grant of relief to her. The Deputy Commissioner, Ferozepur has walked an extra length to reply to the counter affidavit. Bhupinder Singh's case is now explained more dramatically. It is stated that he applied for his transfer from Ferozepur to Muktsar on 31.05.1996 i.e. much prior to the termination of the petitioner on 17.06.1996- “The petitioner had never applied for his (sic “her”) transfer as that of the above named Bhupinder Singh and as such the petitioner was not considered in this regard.” Still further, it is explained that Bhupinder Singh was transferred by an order passed by the Additional Secretary to Government of Punjab, Revenue Department but the petitioner did not move any written objection in the said office qua transfer of Bhupinder Singh at any point of time. The Deputy Commissioner, therefore, defends by saying that the petitioner at this belated stage is estopped by her own act and

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CWP No.15109 of 1996

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conduct from raising any objection with regard to transfer of Bhupinder Singh from Ferozepur to Muktsar. Chamkaur Singh's case is further explained. He was appointed to a Class-IV post whereas the petitioner was in Class-III and, therefore, there is a difference. The later promotion of Chamkaur Singh from Class-IV to Class-III it is said is not sufficient ground to consider the case of the petitioner.

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Mr Ashwani Chopra learned senior counsel for the petitioner submits that this admission goes a long way to show that work in the Election Office had not packed up when the petitioner's services were terminated in 1996. The Deputy Commissioner explains Pippal's case in the same fashion and that his promotion as Clerk has no relevance with the case of the petitioner in any manner whatsoever. Tilak Raj has also been put in the same bracket. Sunil Hans case is explained that he was appointed through Employment Exchange but it is admitted that on account of criminal case, his case could not be considered. The case of Balwinder Singh appointed along with the petitioner in 1996 and whose services were also terminated in similar fashion was re-employed through Employment Exchange and, therefore, the petitioner cannot take any undue advantage of the said appointment. Learned Senior counsel informs that the petitioner is in her mid 40s and has sufficient time to serve the State in case the petition is allowed.

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To make matters more tiresome and tedious for the Court, Dr. S.Karuna Raju, IAS, Deputy Commissioner, Ferozepur has filed another affidavit dated 17.01.2012 explaining heading wise cases of the aforesaid persons. This affidavit though says nothing new but has been filed under this Court's order dated 14.12.2011 when it was directed that the Deputy

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CWP No.15109 of 1996

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Commissioner would remain present in Court and to file an affidavit regarding details of appointments of the employees and to produce the original record on the next date of hearing.

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This case is a fine example of man's inhumanity to man. This Court has been left wondering at the length that the pleadings have stretched with shifting stands of successive Deputy Commissioners-cum-Chief Election Officers, Ferozepur. This matter was unnecessarily complicated by the first written statement callously filed by Mr Satish Chandra IAS, the then Deputy Commissioner, Ferozepur because he had power to say what he wanted to or which suited him. I have no hesitation in my mind that this petition deserves to be allowed. There appears to be good reason for it. The order of termination is based on incorrect assumptions. The work of the Lok Sabha Elections may have been over but the Election Office had not been wound up. Others had continued. No cadre review exercise was done to abolish posts or downsize the office in question. The first Deputy Commissioner took the defence for the first time before this Court that the petitioner's appointment was illegal as her name was not sponsored by the local Employment Exchange. There was nothing illegal about the appointment. It was not even, to my mind, an irregularity. The so called flaw appears to have been ferreted out. It was too technical to have thrown out a fellow human being on and deprive her of a living. The petitioner was not heard while passing the order. The principles of natural justice were breached. Had she been afforded an opportunity of hearing, however brief, she may have explained that her first entry in the same office in 1992 was through the front door of employment exchange and through the main gate of the district election office. The Deputy Commissioner unfortunately failed to

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examine record or notice that in the same office she was appointed as Clerk on ad hoc basis on her name being sponsored by the District Employment Exchange, Ferozepur. There was no legal necessity for her name to be sponsored yet again by the Employment Exchange. In any case, appointments can never be restricted to names being sponsored by employment exchanges alone. It is only one source from where candidates come. The petitioner could easily have been treated as general candidate responding to an employment notice. She was selected by a duly constituted Departmental Selection Committee in an interview based selection. She was second or third on merit as the case may be. She could have been treated on open merit. She has been discriminated by circumstances qua her compatriots of 1996. Some of them were appointed with her but in the lower category and have been promoted as Clerks. One sought a transfer to another Department and stands confirmed. The petitioner is being accused of not having agitated the matter earlier qua transfer of Bhupinder Singh. I would remind the respondents that it is the duty of the State to administer even handed justice and not require citizens to come to them with a beggar's bowl on bended knees. I have no doubt in my mind that this woman has been wronged. I feel that this writ petition not only deserves to be allowed but that she should have costs/damages against the State as well for this long battle for justice.

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I, therefore, allow this writ petition; quash the impugned order of termination dated 17.06.1996 (P-3). The petitioner would now stand reinstated to service. Since the petitioner has already made a statement before this Court that she is prepared to forego her claims if granted reinstatement she would receive no monetary benefit of this order and would honour her statement. No

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back wages would be granted but she will have continuity in service. She would of course remain a Clerk on ad hoc basis just as she was in 1996. She would, however, be entitled to notional increments from 1996 and current pay fixation from the date of this judgment. She would be entitled to personal costs/damages as well. Rs.25,000/- would meet the ends of justice, to be paid personally to her by the respondent-Department without delay. Let this order be implemented forthwith.

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(RAJIV NARAIN RAINA) 02.02.2012 JUDGE manju

Parveen Chopra v. State of Punjab and Ors.

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Parveen Chopra v. State of Punjab and Ors.

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