Judgment:
CWP No.21217 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
CWP No.21217 of 2011 Date of Decision: 30.06.2014 Suman Bala ....Petitioner Versus Haryana State Sainik Board-cum-Defence Secretary etc....Respondents BEFORE :- HON'BLE MRS.JUSTICE DAYA CHAUDHARY Present:- Mr.R.K.Malik, Sr.Advocate with Mr.Mandeep Singh, Advocate for the petitioner.
Mr.S.K.Hooda, Advocate for respondents No.1 and 2.
Mr.Y.P.Malik, Advocate for respondent No.3.
***** DAYA CHAUDHARY, J.
Petitioner-Suman Bala was working on the post of Instructor (Cutting & Tailoring) with the respondents since 20.07.1991 till she was retrenched vide order dated 20.10.2011.
She was appointed against the category meant for ex-servicemen being dependent of ex-serviceman.
The order of retrenchment dated 20.10.2011 is a subject matter of challenge in the present petition.
Learned counsel for the petitioner has challenged the said order of retrenchment on the ground that the same has been passed without taking into consideration the reservation policy as out of total four instructORS.none of them belong to ex-servicemen category.
All four posts have been retained and the petitioner has been retrenched.
Learned Kaur Gurpreet 2014.07.02 16:02 I attest to the accuracy and integrity of this document CWP No.21217 of 2011 2 counsel also submits that the controveRs.in the present case is squarely covered by judgment of this Court passed in CWP No.16464 of 1989.
It is also the argument of learned counsel for the petitioner that the petitioner has been retrenched on the ground that no student has opted for the same trade and hence the services of the petitioner are not required, whereas, the students are not being admitted in the trade on the ground that there is no instructor.
Learned counsel further submits that the stand of the respondents is not only contradictory but the services of the petitioner have been retrenched by taking a false plea that there is no student, whereas, many students are ready to get admission but they are not being allowed on the ground that there is no instructor.
Learned counsel for the respondents has raised a preliminary objection with regard to maintainability of the writ petition.
Learned counsel for respondents No.1 and 2 submits that as per terms and conditions of the appointment, the services of the petitioner could not be terminated without giving any notice or assigning any reason.
He further submits that the respondent-Board has its own Rules and Regulations known as “Sainik Parivar Bhavan Service (Common Cadre) Rules 1999”.
and there is no reservation for ex-servicemen or dependent of ex-service man.
Learned counsel also submits that the strength of the students in Cutting and Tailoring was poor and the petitioner, being the junior most, was retrenched after making payment of retrenchment compensation which was deposited in her account.
It is also the argument of learned counsel for the respondents that the petitioner cannot come forward with the submission that her services have been retrenched on wrong ground and the students are available to join the course.
There is no evidence to show that the students are ready to get admission.
During pendency of this petition, an application was moved by Kaur Gurpreet 2014.07.02 16:02 I attest to the accuracy and integrity of this document CWP No.21217 of 2011 3 the petitioner that one Instructor of Cutting and Sewing, namely, Chander Kanta has resigned from her post on 01.03.2013 and hence, the post is in existence, against which, the petitioner can be adjusted.
Learned counsel for the petitioner has also given an undertaking on behalf of the petitioner that the petitioner is ready not to claim any salary, in case, the students for the trade of Cutting and Sewing are not available.
In view of undertaking given by the petitioner, the following order was passed on 22.10.2013 :- “ Reply to the misc.
Application in the shape of affidavit of Manager, Sainik Parivar Bhavan, Panchkula, filed to the effect that Smt.
Chander Kanta, Instructor, Cutting and Sewing has resigned w.e.f.01.03.2013 resulting in creation of vacancy for Instructor Cutting and Sewing in Sainik Parivar Bhavan, ITI, Rewari, but cutting and sewing trade is not being run in the current academic session in Sainik Parivar Bhavan, ITI, Rewari for want of students.
In the absence of students, no Instructor is required at present.
It has been ensured that legal procedure will be followed in case any need arises for Instructor, Cutting and Sewing.
Taking into consideration the above said circumstances, I deem it appropriate to defer the adjudication of this petition.
Adjourned to 20.01.2014.
Meanwhile, it is ordered that in case the students in the trade of cutting and sewing are available, the petitioner will be adjusted as Instructor with respondent No.2.
The petitioner will also find out whether students in the trade of cutting and sewing are available.
The above said interim direction has been issued in view of the averment of the Manager of respondent No.2 that legal procedure will be followed if need arises for Instructor in cutting and sewing trade.”
.
Thereafter, the case came up for hearing on 05.05.2014 and Kaur Gurpreet 2014.07.02 16:02 I attest to the accuracy and integrity of this document CWP No.21217 of 2011 4 the following order was passed :- “ Learned senior counsel for the petitioner contends that in view of order passed by this Court on 22.10.2013, the petitioner is ready to give an undertaking before this Court that till the students take admission, she will not claim salary for that period.
Learned senior counsel further contends that the admissions in the CouRs.are not made due to non- availability of Instructor, whereas, as per stand of the respondents, the appointment is not being made because the students are not there.
Learned senior counsel also contends that number of students are interested in pursuing the said couRs.but just to debar the petitioner, the contradictory stand has been taken by the respondents.
Keeping in view the submission made by learned senior counsel for the petitioner as well as order dated 22.10.2013, respondent No.2 is directed to file a specific affidavit within a period of two weeks from today to show as to why the order passed on 22.10.2013 has not been complied with when the petitioner is ready to give an undertaking not to claim any salary and students are also interested in studying the course.
A specific stand should be taken in the affidavit as a contradictory stand has come on record, as at one place the stand is being taken that post of Instructor is not there and students are not getting admission, whereas, on the other hand, it has been stated that due to non-admission of the students, the petitioner cannot be adjusted.
Adjourned to 26.05.2014.”
.
Learned counsel for respondents No.1 and 2 submits that there is no provision for appointment of a retrenched employee on giving an undertaking that he/she will not claim salary and it is for the respondents to see as to whether any Instructor is to be appointed or not, keeping in Kaur Gurpreet 2014.07.02 16:02 I attest to the accuracy and integrity of this document CWP No.21217 of 2011 5 view the strength of students.
The respondents cannot be compelled to retain any retrenched employee on such undertaking that he/she will not claim any salary.
Learned counsel for respondents No.1 and 2 has relied upon the judgments of Hon’ble the Apex Court in cases Lt.
Governor of Delhi and others vs V.K.Sodhi and others 2007(4) SCT102as well as General Manager, Kisan Sahkari Chini Mills LTD.Sultanpur U.P vs Satrughan Nishad and others 2003(8) SCC639 Learned counsel for respondent No.3 has also raised a preliminary objection that no writ petition is maintainable against the registered society and this petition can be dismissed on this ground alone.
He has also relied upon the judgment of Hon’ble the Apex Court in General Manager’s case (supra).Learned counsel for the respondent also submits that it has wrongly been mentioned by learned counsel for the petitioner that there was no candidate of ex-serviceman and the petitioner has wrongly been retrenched, whereas, out of total 4 serving instructors of cutting and tailoring, three belong to ex-servicemen/dependent of ex-serviceman category and one belongs to backward class category and all the said instructors are senior to the petitioner and the petitioner was retrenched being the junior most employee.
Learned counsel also submits that it is a case of misjoinder of parties as no claim has been sought against respondent No.3.
Heard the arguments of learned counsel for the parties and have also perused the documents on the file including the order of retrenchment, which has been challenged in the present petition.
Initially, the petitioner was appointed as Instructor (Cutting and Tailoring) on contractual basis and thereafter, she was made temporarily Kaur Gurpreet 2014.07.02 16:02 I attest to the accuracy and integrity of this document CWP No.21217 of 2011 6 regular w.e.f 31.01.1996.
It is also not disputed that the petitioner was retrenched vide order dated 20.10.2011 and the said order has been challenged in the present petition on the ground that the petitioner was not the junior most and has wrongly been retrenched.
Subsequently, a post fell vacant and the petitioner can be adjusted against the said post.
It has also been argued that no procedure, whatsoever, was followed at the time of retrenchment and wrong averment was made that there was poor strength of the students and therefore, the services of the petitioner were not required.
It has also been argued by learned counsel for the petitioner that the stand of the respondents is contradictory as it has been mentioned while retrenching the petitioner that the strength of the students is poor and there is no requirement of the services of the petitioner, whereas, the admission was not granted to the students on the ground that there was no instructor.
Even learned counsel for the petitioner submits that the petitioner is ready to work without claiming any salary till regular admissions are made.
In case, the regular admissions are there and sufficient number of students are there, the salary be paid to her and she can be retained.
In case, no admission is there, then the petitioner will herself withdraw.
This undertaking was not accepted by the respondents stating that there is no provision under Rules to employ person without salary.
Undoubtedly, the respondents cannot be compelled to retain any employee on job, if the requirement of his/her services are not there.
There is nothing on record to show that number of students are interested in getting admission but they are not being allowed to give admission on the ground that the instructor is not there.
Since the petitioner is also ready to give undertaking that she will not claim any salary for the period the admissions are completed and in case, sufficient number of students are there then the salary be given to her.
The conduct of the petitioner appears Kaur Gurpreet 2014.07.02 16:02 I attest to the accuracy and integrity of this document CWP No.21217 of 2011 7 to be genuine but no such direction of appointment can be issued prior to giving any admission to the students.
It has also come on record that one post of Instructor (Cutting and Tailoring) has become available due to resignation of one Instructor, namely, Chander Kanta during pendency of the petition and the petitioner can be adjusted against that post, in case, sufficient number of students are there.
Accordingly, this petition is disposed of with a direction to respondents No.2 and 3 that in case, sufficient number of students get admission in the same trade, then the case of the petitioner be considered against the vacancy which has fallen vacant due to resignation of one Chander Kanta.
It is also made clear that in case, the students are interested in getting admission, no impression should be given that the admission is not to be made because there is no instructor.
The petition is disposed of with the above said directions.
(DAYA CHAUDHARY) 30.06.2014 JUDGE gurpreet Kaur Gurpreet 2014.07.02 16:02 I attest to the accuracy and integrity of this document