Present: Mr. H.N. Khanduja Advocate Vs. State of Haryana and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1091014
CourtPunjab and Haryana High Court
Decided OnSep-24-2013
AppellantPresent: Mr. H.N. Khanduja Advocate
RespondentState of Haryana and Others
Excerpt:
cwp no.10561 of 2012 -1- in the high court of punjab and haryana at chandigarh cwp no.10561 of 2012 date of decision: 24.09.2013 sunita ....petitioner versus state of haryana and others ....respondents coram:- hon'ble mr.justice rajiv narain raina present: mr.h.n.khanduja, advocate, for the petitioner. mr.sunil nehra, sr.dag, haryana. 1. to be referred to the reporters or not?. 2. whether the judgment should be reported in the digest?. rajiv narain raina, j. on may 29, 2012 this court passed the following order:- “petitioner has been working on the post of a helper on a fixed salary of rs.100/- per month since 29.01.2004. she has to perform her duties from 7 a.m.to 1:00 p.m.daily. she approached this court by filing cwp no.5814 of 2009 for direction to the respondents to raise the pay/wages of the petitioner but the said writ petition was disposed of by this court vide order dated 21.07.2009 with directions to the petitioner to approach the competent authority under the payment of wages act. petitioner thereafter, appraoched the authority under the minimum wages act, sonepat, which, vide order dated 11.02.2011 (annexure p-6).directed the respondents to give her the minimum wages of rs.4348/- per month. the director, elementary education, haryana, vide order dated 09.04.2012 (annexure p-7) had directed the district elementary education officer, sonepat, to comply with the directions issued by the authority under the minimum wages act, 1948 and immediately pay rs.4348/- per month to the petitioner. however, a condition has further been added that since there is no sanctioned post of a nursery helper in the school, she cannot be retained in service and she should be removed from service by following the proceduremittal undermanju the 2013.09.27 12:41 i attest to the accuracy and integrity of this document chandigarh cwp no.10561 of 2012 -2- industrial disputes act. in pursuance to this order, the head master, government high school, salimsar majra, sonepat has served a notice of terminating her services due to non-sanctioning of post nursery teacher helper dated 18.05.2012 (annexure p-8).to which the petitioner had responded vide reply dated 26.05.2012, annexure p-8 (a).according to the show cause notice, service of the petitioner is to be terminated w.e.f.18.06.2012. it has been contended that she has been serving the respondents since 29.01.2004 and now when the petitioner has approached the competent authority to grant her the minimum wages which she is entitled to under the statute and the same benefit having been granted, the services of the petitioner are being sought to be terminated by taking a plea that there is no sanctioned post of nursery helper. this, counsel for the petitioner contends, is contrary to the facts and to punish her with an intention to deny the right which the petitioner is entitled to. notice of motion for 16.10.2012. operation of the impugned order dated 18.05.2012 (annexure p- 8) is stayed till further orders.”. it appears that if the petitioner had not litigated, she may have continued to serve the respondent-department in her previous capacity. merely because the petitioner has approached this court and was granted liberty to approach the authority under the minimum wages act (apw) claiming minimum wages fixed by the deputy commissioner of the district for the category of post, it would appear too hars.if the government punishes her citing financial liability and throw her out of her means of livlihood on micro earnings. it is no sin to ask for minimum wages established by law or to approach the apw or this court for succour nor should a citizen be punished for that reason. the government should after all ought always to act as a model employer. this court had stayed the operation of the impugned notice dated 18.05.2012 against proposed action that the petitioners services would automatically stand terminated after one month on 18.06.2012 on the mittal manju 2013.09.27 12:41 i attest to the accuracy and integrity of this document chandigarh cwp no.10561 of 2012 -3- ground that there is no sanctioned post of ntt helper in government girls primary school, salimsar by taking resort to the industrial disputes act, 1947. the petitioner had filed a reply to the show cause notice. she approached this court in a writ petition in which she had pointed out that a post of helper in the nursery branch of the said school had been sanctioned in 1977 and her mother-in-law smt. prem kaur was appointed as helper in 1977. the petitioner was engaged as a helper on 29.01.2004 at rs.100/- per day. her effort to better her lot has resulted in advers.action against her. learned counsel for the petitioner points out to order no.1-2- 75/415 dated 01.02.1977 issued by the education officer, sonepat-ii which appears to suggest that the post offered to smt. prem kaur in the same school through the employment exchange on six months' basis with the condition that in case, a candidate is appointed or a confirmed employee is transferred to this post then her appointment will be considered as cancelled without any notice. if this is the position then the learned counsel for the petitioner may be true in his contention that the engagement of smt. prem kaur was against a 'post'. if the petitioner has stepped into the shoes of her mother-in-law then she deserves the same protection at least to the extent that she should be continued in service and not replaced till such time as a regular recruit is inducted. heard the learned counsel for the parties and perused the record with the able assistance of the learned counsel for the parties. there appears to be merit in the submission of the learned counsel for the petitioner that the engagement of the petitioner was not against a post. if the post has continued since 1977 with or without break that may be mittal manju 2013.09.27 12:41 i attest to the accuracy and integrity of this document chandigarh cwp no.10561 of 2012 -4- reason enough to suggest that continuation of the post was not unlawful and that there may be deemed sanction involved especially looking to the duration of existence of the job. be that as it may, i think it would suffice to serve the ends of justice if the respondents would take up the matter sympathetically and consider the case of the petitionier for continuation as nursery helper in government girls primary school, salimsar majra, tehsil & district sonepat (haryana).the state would, therefore, also consider adjusting her in the arrangement till such time the final decision is not taken with respect to the engagement/post if there is continued need for such permanent help for little children in the school set in rural background. with the aforesaid directions, trust and hope the writ petition stands disposed of. (rajiv narain raina) judge2409.2013 manju mittal manju 2013.09.27 12:41 i attest to the accuracy and integrity of this document chandigarh
Judgment:

CWP No.10561 of 2012 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.10561 of 2012 Date of Decision: 24.09.2013 Sunita ....Petitioner Versus State of Haryana and others ....Respondents CORAM:- HON'BLE Mr.JUSTICE RAJIV NARAIN RAINA Present: Mr.H.N.Khanduja, Advocate, for the petitioner.

Mr.Sunil Nehra, Sr.DAG, Haryana.

1.

To be referred to the Reporters or not?.

2.

Whether the judgment should be reported in the Digest?.

RAJIV NARAIN RAINA, J.

On May 29, 2012 this Court passed the following order:- “Petitioner has been working on the post of a Helper on a fixed salary of Rs.100/- per month since 29.01.2004.

She has to perform her duties from 7 A.M.To 1:00 P.M.daily.

She approached this Court by filing CWP No.5814 of 2009 for direction to the respondents to raise the pay/wages of the petitioner but the said writ petition was disposed of by this Court vide order dated 21.07.2009 with directions to the petitioner to approach the competent authority under the Payment of Wages Act.

Petitioner thereafter, appraoched the authority under the Minimum Wages Act, Sonepat, which, vide order dated 11.02.2011 (Annexure P-6).directed the respondents to give her the minimum wages of Rs.4348/- per month.

The Director, Elementary Education, Haryana, vide order dated 09.04.2012 (Annexure P-7) had directed the District Elementary Education Officer, Sonepat, to comply with the directions issued by the authority under the Minimum Wages Act, 1948 and immediately pay Rs.4348/- per month to the petitioner.

However, a condition has further been added that since there is no sanctioned post of a Nursery Helper in the school, she cannot be retained in service and she should be removed from service by following the procedureMittal underManju the 2013.09.27 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.10561 of 2012 -2- Industrial Disputes Act.

In pursuance to this order, the Head Master, Government High School, Salimsar Majra, Sonepat has served a notice of terminating her services due to non-sanctioning of post Nursery Teacher Helper dated 18.05.2012 (Annexure P-8).to which the petitioner had responded vide reply dated 26.05.2012, Annexure P-8 (a).According to the show cause notice, service of the petitioner is to be terminated w.e.f.18.06.2012.

It has been contended that she has been serving the respondents since 29.01.2004 and now when the petitioner has approached the competent authority to grant her the minimum wages which she is entitled to under the Statute and the same benefit having been granted, the services of the petitioner are being sought to be terminated by taking a plea that there is no sanctioned post of Nursery Helper.

This, counsel for the petitioner contends, is contrary to the facts and to punish her with an intention to deny the right which the petitioner is entitled to.

Notice of motion for 16.10.2012.

Operation of the impugned order dated 18.05.2012 (Annexure P- 8) is stayed till further orders.”

.

It appears that if the petitioner had not litigated, she may have continued to serve the respondent-Department in her previous capacity.

Merely because the petitioner has approached this Court and was granted liberty to approach the Authority under the Minimum Wages Act (APW) claiming minimum wages fixed by the Deputy Commissioner of the District for the category of post, it would appear too haRs.if the Government punishes her citing financial liability and throw her out of her means of livlihood on micro earnings.

It is no sin to ask for minimum wages established by law or to approach the APW or this Court for succour nor should a citizen be punished for that reason.

The Government should after all ought always to act as a model employer.

This Court had stayed the operation of the impugned notice dated 18.05.2012 against proposed action that the petitioners services would automatically stand terminated after one month on 18.06.2012 on the Mittal Manju 2013.09.27 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.10561 of 2012 -3- ground that there is no sanctioned post of NTT Helper in Government Girls Primary School, Salimsar by taking resort to the Industrial Disputes Act, 1947.

The petitioner had filed a reply to the show cause notice.

She approached this Court in a writ petition in which she had pointed out that a post of Helper in the Nursery Branch of the said school had been sanctioned in 1977 and her mother-in-law Smt.

Prem Kaur was appointed as Helper in 1977.

The petitioner was engaged as a Helper on 29.01.2004 at Rs.100/- per day.

Her effort to better her lot has resulted in adveRs.action against her.

Learned counsel for the petitioner points out to order No.1-2- 75/415 dated 01.02.1977 issued by the Education Officer, Sonepat-II which appears to suggest that the post offered to Smt.

Prem Kaur in the same school through the Employment Exchange on six months' basis with the condition that in case, a candidate is appointed or a confirmed employee is transferred to this post then her appointment will be considered as cancelled without any notice.

If this is the position then the learned counsel for the petitioner may be true in his contention that the engagement of Smt.

Prem Kaur was against a 'post'.

If the petitioner has stepped into the shoes of her mother-in-law then she deserves the same protection at least to the extent that she should be continued in service and not replaced till such time as a regular recruit is inducted.

Heard the learned counsel for the parties and perused the record with the able assistance of the learned counsel for the parties.

There appears to be merit in the submission of the learned counsel for the petitioner that the engagement of the petitioner was not against a post.

If the post has continued since 1977 with or without break that may be Mittal Manju 2013.09.27 12:41 I attest to the accuracy and integrity of this document Chandigarh CWP No.10561 of 2012 -4- reason enough to suggest that continuation of the post was not unlawful and that there may be deemed sanction involved especially looking to the duration of existence of the job.

Be that as it may, I think it would suffice to serve the ends of justice if the respondents would take up the matter sympathetically and consider the case of the petitionier for continuation as Nursery Helper in Government Girls Primary School, Salimsar Majra, Tehsil & District Sonepat (Haryana).The State would, therefore, also consider adjusting her in the arrangement till such time the final decision is not taken with respect to the engagement/post if there is continued need for such permanent help for little children in the school set in rural background.

With the aforesaid directions, trust and hope the writ petition stands disposed of.

(RAJIV NARAIN RAINA) JUDGE2409.2013 manju Mittal Manju 2013.09.27 12:41 I attest to the accuracy and integrity of this document Chandigarh