Dismissed

Wazir Singh & Anr. v. State of Haryana & Ors.

Punjab & Haryana HC4 Sept 2013CWP/13279/2011

Case brief

AI extract

What is this about?

Writ petition challenging a rectification order that changed the date of post creation for drivers and conductors from 23.8.2006 to 7.7.2010. The court dismissed the petition, upholding the rectification to maintain parity with other staff, noting service benefits remain protected.

What did the court decide?

Petition dismissed; rectification order dated 9.8.2011 upheld, stating posts created on 7.7.2010.

Wazir Singh & Anr. Vs State of… — Pension and Retirement Benefits | Punjab & Haryana HC (2013)

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Raj Kumar Arora 2013.10.23 11:25 I attest to the accuracy and integrity of this document

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CWP-13279-2011 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CWP-13279-2011 (O&M). Decided on: September 4, 2013.

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Wazir Singh and another

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..... Petitioners

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Versus

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State of Haryana and others

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..... Respondents

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CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI

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PRESENT Mr.Y.P.Malik, Advocate, for the petitioners.

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Mr.R.D.Sharma, DAG., Haryana.

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Mr.Shireesh Gupta, Advocate, for respondent Nos.2 & 3.

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M.M.S. BEDI, J. (ORAL)

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Petitioners have preferred this writ petition under Articles 226 & 227 of the Constitution of India and sought a writ in the nature of certiorari quashing office Memo dated 9.8.2011 Annexure P19, by virtue of which the order of creation of one post of Driver and one post of Conductor vide office order dated 8.7.2010 was treated as 7.7.2010 instead of 23.8.2006 by the respondents. The petitioners have also sought a writ in the nature of mandamus for a direction to respondent No.2, B.P.S. Mahila Vishwavidyalaya (University), Khanpur Kalan, District Sonepat, to modify order Annexure P9 dated 8.9.2010, and Annexure P14 dated 4.2.2011, passed by the

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CWP-13279-2011 (O&M)

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University vide which the petitioner had been brought on the regular strength of BPSM Girls College of the respondent-University. They have also sought a direction that the order of creation of posts dated 8.7.2010 passed by respondent No.1 be treated w.e.f. 27.8.2006 along with all consequential services benefits.

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Brief facts, relevant for the decision of the present case are that the petitioners are regular employees of the B.P.S. Mahila Vishwavidyalaya (University), Khanpur Kalan, District Sonepat, and were appointed as driver and conductor respectively in BPSM Girls College a constituent institution of respondent No.2 University. Initially they were appointed as driver and conductor in the said College vide letter dated 30.7.2001 and 29.7.2002 respectively on regular basis on regular pay scale vide appointments letter Annexures P1 & P2. Their services were terminated and they approached the Labour Court challenging the termination. They were reinstated during pendency of their case on 20.7.2006 though formal letter was issued on 23.8.2006 on the condition that they would withdraw their case and will not claim wages of the gap period. The petitioners withdrew their cases on 14.3.2007 stating that they were serving again w.e.f. 20.7.2006. Meanwhile, the University B.P.S. Mahila Vishwavidyalaya (University), Khanpur Kalan, District Sonepat, (hereinafter referred to as 'Mahila University') was established by a State Act on 18.8.2006 which included the College in which the petitioners were serving. Correspondence was

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CWP-13279-2011 (O&M)

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exchanged between State of Haryana respondent No.1, University, respondent No.2 and the Higher Education Commissioner, Haryana, respondent No.4, for rationalisation of the staff of the constituent institutions of the University. The petitioners also sent a representation dated 9.3.2009 Annexure P5, to the respondent University for rationalisation of their posts. Respondent No.4 vide memo dated 18.6.2009, issued guidelines regarding rationalisation of staff of constituent Colleges/Institutions of the respondentUniversity. The respondent University sent requisite information to respondent No.4 pertaining to the petitioners vide office letter dated 15.7.2009. The copies of said office memo dated 17.6.2009 and office letter dated 15.7.2009 have been appended by the petitioner as Annexures P6 & P7. Respondent No.1 vide office memo dated 8.7.2010 created one post of driver and one post of conductor for respondent University w.e.f. 23.8.2006 meant for the petitioners with the pay scales applicable to the driver and conductor of the State Government. The relevant extract of the letter dated 8.7.2010 sent by respondent No.4 to the Registrar of University is reproduced as under: -

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“Subject: Creation of one post of Driver and one post of Conductor for BPSMV Khanpur Kalan.

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Kindly refer to your letter No.BPSMV Estt.NT 2010/2613 dated 1.6.2010 on the subject noted above. The State Government agrees to the

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Raj Kumar Arora 2013.10.23 11:25 I attest to the accuracy and integrity of this document

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CWP-13279-2011 (O&M)

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creation of one post of Driver and one post of conductor for Bhagat Phool Singh Mahila Vishwavidyalaya, Khanpur Kalan sonepat with effect from the date of their reappointment i.e., 23.8.2006 (F.N) with the pay scales as applicable to Driver and Conductor of the State Govt.

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The Above sanction is being issued with the concurrence of Finance Department as conveyed vide their U.O. No.60/26/10-21-2FDII/.2124 dated 7.7.2010.”

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The regularization order pertaining to the petitioner No.2 was issued by the respondent University on 8.9.2010 vide Annexure P9 and that of petitioner No.1 dated 4.2.2011 was issued vide Annexure P14. Petitioner No.1 was brought on regular strength of respondent University vide letter dated 4.2.2011 w.e.f. 8.7.2010 and respondent No.2 vide office letters Annexures P13 & P14. Respondent No.2 University sent an office letter dated 22.11.2010 to the respondent No.3 pertaining to the posts of the petitioners. Respondent Nos.1 & 2 issued office memo dated 18.3.2011 and sought clarification regarding the creations of posts of the petitioners vide Annexure P7 to the Director General of Higher Education, Haryana informing the Vice Chancellor B.P.S. Mahila Vishwavidyalaya (University), Khanpur Kalan, District Sonepat, that after due consideration the matter has been filed. The petitioners represented to the respondent University on 13.6.2011 requesting

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CWP-13279-2011 (O&M)

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that as their posts have been sanctioned/created by the Government of Haryana w.e.f. 23.8.2006, therefore, they may be brought on the regular strength from 23.8.2006 instead of 8.7.2010.

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The respondents filed written statement along the office memo dated 9.8.2011, Annexure R2/7=Annexure P19, changing the date of creation of the posts from 23.8.2006 respectively. The petitioners claim that memo dated 9.8.2011 which was appended in the written statement (Annexure P19 appended with the amended written statement) was null and void. The petitioners claim that after they were terminated they had challenged the termination in the Labour Court but during pendency of the case, the matter was compromised and the petitioners were reinstated in service. They joined on 20.7.2006 as such they were regular employees since 2001-2002 and after inspection of the respondent University their posts become regular w.e.f. 23.8.2006 as such they would be deemed to have been appointed w.e.f. 23.8.2006 as mentioned in the order Annexure P8.

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In view of above circumstances, the petitioners have sought a writ in the nature of mandamus directing respondent No.2 to modify the order dated 8.9.2010 Annexure P9 and Annexure P14 dated 4.2.2011 vide which the petitioners were brought on regular strength of BPSM Girls College of the respondent-University and to make it from the date of creation of the posts w.e.f. 23.8.2006.

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In the written statement filed on behalf of

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CWP-13279-2011 (O&M)

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respondent Nos.1,3 & 4, it has been clarified that the petitioners were appointed by the then Mahasabha Gurukul Vidyapeeth on 30.7.2011 and 29.7.2002 respectively on the post of driver and conductor. The petitioners were relieved in the year 2003 being surplus and reappointed on previous terms and conditions on 23.8.2006. The respondent University made a request for creation of posts of driver and conductor at par with other staff of constituent Colleges/Institutions. Accordingly vide letter dated 8.7.2010, the posts of driver and conductor were sanctioned after taking approval of the Finance Department wherein the date of creation of these posts i.e., 23.8.2006 was mentioned erroneously but later on it was rectified vide memo No.18/203-2007 UNP (2) dated 9.8.2011 Annexure R1. The relevant portion of Annexure R1 dated 9.8.2011 addressed to the Registrar of the University is reproduced for ready reference as under:-

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“Subject: Creation of one post of Driver and one post of Conductor in Bhagat Phool Singh Mahila Vishwavidyalaya, Khanpur Kalan, Sonepat.

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Kindly refer to the subject cited above.

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The date of creation of one post of Driver and one post of conductor as indicated vide this office letter No.KW-18/203/2007 UNP (2) dated 8.7.2010 may be treated as 7.7.2010 instead of 23.8.2006 (F.N.).

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Concurrence of Finance Department has been obtained vide their U.O. No.60/26/10/2FD-

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CWP-13279-2011 (O&M)

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II/1806 dated 20.7.2011.”

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It has further been pleaded that if this rectification was not made, it would have resulted in disparity amongst the staff of the constituted Colleges/Institutions recently rationalised vide above said two letters. The respondents claim that a mistake can be corrected by issuing rectification as and when it comes in the notice as such, the plea taken by the petitioners that their posts were created from the date mentioned in the letter dated 8.7.2010 Annexure P8 i.e. 23.8.2006 is wrong. The rectification regarding the date of creation of the posts of the petitioners have been made at par with that of the constituent Colleges/Institutions to avoid the resentment of other staff of constituent Colleges whose posts have been created from the date of issuance of the respective letter. In view of said plea it had been submitted that the writ petitions filed by the petitioners deserves to be dismissed.

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The short question which is required to be determined in the present writ petition is whether the post of driver and conductor in BPSM Girls College, Khanpur Kalan, will be treatedto have been created w.e.f. 23.8.2006 which had been wrongly mentioned in the order Annexure P8 or it has to be read w.e.f. 8.7.2010 as has been clarified by rectification Annexure R1 in order to bring the case of the petitioners at par with the other employees of the University. The validity of order Annexure R1 dated 9.8.2011 has also been questioned by the petitioners contending that

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CWP-13279-2011 (O&M)

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no opportunity of hearing had been granted to the petitioners while treating the petitioners in service w.e.f., 8.7.2010 instead of 23.8.2006. The petitioners claim that they have come to learn about the rationalisation of their services w.e.f. 8.7.2010 vide Annexure P9 and they had not acquired any knowledge about the official letter Annexure P19 (equal to Annexure R1) dated 9.8.2011. The case of the University is that the parity has to be maintained because of the employees of the constituent Colleges/Institution. All the employees had been treated from the date of creation of their respective posts. The posts of the petitioners were created vide letter dated 9.8.2011 Annexure P19, as such they were to be treated as employees of the University w.e.f. 7.7.2010 instead of 23.8.2006. The benefit of wrong committed by an authority cannot be permitted to be perpetuated by applying the rules of natural justice especially when an order has been passed in consonance with the principles of Article 14 of the Constitution of India. In the present case, respondent No.2 University was created by State Legislature on 18.8.2006. The posts of driver and conductor were created vide memo dated 8.7.2010. Other posts in the University were also created as per rules w.e.f., the date when the letters were issued. Their does not appear to be any sound reason for creating the posts of the petitioners with retrospective effect especially when the representation was sent by the University for rationalisation of their posts vide representation dated 9.3.2009 Annexure P5. The date of creation of the posts w.e.f. 23.8.2006, in

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Raj Kumar Arora 2013.10.23 11:25 I attest to the accuracy and integrity of this document

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CWP-13279-2011 (O&M)

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Annexure P8 letter dated 8.7.2010 is apparently an inadvertent mistake which was rectified subsequently.

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No ground is made out to interfere in the order dated 9.8.2011, by virtue of which the date of creation of posts has been rectified as 7.7.2010 instead of 23.8.2006.

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The petition is dismissed. However, it is not out of place to observe here that the right of the petitioners to claim the benefit of services rendered by them with effect from the inception i.e., 2001-2002 or from 23.8.2006 for counting the service rendered by them in BPSM Girls College, a constituent College of respondent No.2 University will not be prejudiced for getting the benefit of said service while counting the length of service for the retiral benefits in accordance with relevant regulations.

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(M.M.S. BEDI)

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September 4, 2013. rka

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JUDGE

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Wazir Singh & Anr. v. State of Haryana & Ors.

Case brief

What is this about?

What did the court decide?

Wazir Singh & Anr. v. State of Haryana & Ors.

Case brief

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What the court decided

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