Phool Singh v. State of Haryana & Ors.

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. P. L. Verma, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Plaintiff Phool Singh, having remained unsuccessful in both the courts below, has approached this Court by way of instant second appeal. Plaintiff's case is that he was appointed as Mali (Gardener) in Kamla Nehru College, Jatauli, District Gurgaon, vide order dated

20.05.1971 and was confirmed w.e.f. 18.12.1979. It was a private aided college at that time. State of Haryana – defendant no.1 took over the said college on 03.04.1980 and accordingly, the plaintiff became employee of State of Haryana. In the suit, the plaintiff has claimed the benefit of his past service before the college was taken over by the State and on its basis, the R. S. A. No. 4845 of 2009 2 plaintiff has claimed fixation of his pay at a higher level and first and second higher standard scales and pensionary benefits. Defendants' version, however, is that the plaintiff was given fresh appointment after the college was taken over by the State, and therefore, plaintiff is not entitled to benefit of past service rendered before the college was taken over by the State. Plaintiff's appointment w.e.f.

03.04.1980, when the college was taken over by the State, was on adhoc basis as a new recruitment and the plaintiff accepted the same without any objection. It was condition of taking over the college that the employees would become Government servants w.e.f. taking over the college. It was thus pleaded that pay of the plaintiff was rightly fixed keeping in view his service since 03.04.1980 and he has been accordingly granted benefit of first higher pay scale as well as second ACP scale. Learned Additional Civil Judge (Senior Division), Gurgaon, vide judgment and decree dated 29.01.2009, dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Gurgaon, vide judgment and decree dated

30.05.2009. Feeling aggrieved, the plaintiff has preferred the instant second appeal. case file. I have heard learned counsel for the appellant and perused the It is not in dispute that the college, which was a private aided R. S. A. No. 4845 of 2009 3 college, was taken over by the State w.e.f. 03.04.1980. Accordingly, vide appointment letter dated 18.04.1980 (Ex.PW-1/5), the plaintiff was appointed as Mali w.e.f. 03.04.1980 (the date of taking over the college) on adhoc basis for six months. It was specifically mentioned in this letter that only Government scales of pay would be allowed and there shall be no guarantee with regard to protection of existing salary and the pay shall be fixed in accordance with Government rules. The plaintiff accepted the said appointment. Thereafter, vide letter dated 16.08.1982 (Ex.PW-1/6), the plaintiff was appointed as Officiating Gardener/Mali w.e.f. 03.04.1980. Pay of the plaintiff was fixed accordingly. The plaintiff never objected to the pay as fixed by the defendants since 1980. The plaintiff filed the instant suit on 24.07.2002. Prior to it, the plaintiff had served notice dated 25.03.2002 under Section 80 of the Code of Civil Procedure (in short – CPC). Thus, for 22 years since 03.04.1980 till 25.03.2002, when notice under Section 80 CPC was served, the plaintiff never objected to non-grant of benefit of past service rendered by him before the college was taken over. The plaintiff, for more than two decades, did not agitate the alleged grievance of non- consideration of his past service before taking over of the college. Even on merits, the plaintiff-appellant has no case because it has been specifically mentioned in his appointment letter Ex.PW-1/5 that protection of existing salary was not being granted to the plaintiff. With this specific condition, the plaintiff accepted the appointment. In fact, the R. S. A. No. 4845 of 2009 4 plaintiff did not agitate the matter for 22 years. In view of appointment letter Ex.PW-1/5, the plaintiff-appellant is not entitled to benefit of past service rendered by him before the college was taken over by the State. The plaintiff was given fresh appointment w.e.f. 03.04.1980, when the college was taken over. Learned counsel for the appellant referred to condition No.h in letter dated 16.08.1982 (Ex.PW-1/6). Said Clause-h is reproduced hereunder :- “....your pay will be fixed in the above scale on the basis of length of service in identical time scale.” On the basis of this clause, learned counsel for the appellant contended that plaintiff-appellant is entitled to benefit of past service rendered by him before the college was taken over as his said length of service was to be taken into consideration to fix his pay. The contention is misconceived because this clause does not refer to any past service rendered by the appellant before the college was taken over. On the other hand, this clause refers to length of service as Government employee, because his appointment was w.e.f. 03.04.1980 and the letter Ex.PW-1/6 is dated

16.08.1982. Thus, when this letter was issued, the plaintiff had already rendered more than two years of service as Government employee and therefore, said length of service had to be taken into consideration to fix his R. S. A. No. 4845 of 2009 5 pay in the time scale as per Clause-h of the letter Ex.PW-1/6. Said clause does not at all refer to past service rendered by plaintiff before the college was taken over. Learned counsel for the appellant also contended that Division Bench of this Court in the case of Tajvir and others vs. State of Haryana and others reported as 2009 (1) Services Law Reporter 490 has held that lecturer working in Government colleges are entitled to count their previous service rendered in private institutions and therefore, the plaintiff-appellant, in the instant case, is also entitled to the said benefit. This contention also has no merit. In the aforesaid case, the position was that 22 private colleges had been taken over by the Government and benefit of service rendered in private institutions was granted as per instructions issued by the Government vide letters dated 08.12.2000 and 28.08.2001. Since similar benefit to lecturers in 22 colleges had been extended by the Government, the petitioners in that case were also granted the same benefit on principle of parity and to remove the discrimination. In the instant case, however, letters dated 08.12.2000 and 28.08.2001 cannot be applied to the plaintiff as the college, in which the plaintiff was serving, was taken over on

03.04.1980 and the aforesaid letters were not even in existence at that time. The plaintiff has also not made out a case of any discrimination as per evidence in the instant case. Judgment in the case of Tajvir (supra) is, therefore, not applicable to the instant case. R. S. A. No. 4845 of 2009 6 For the reasons aforesaid, I find that there is no illegality or perversity in the judgments of the courts below. The plaintiff has been rightly non-suited by the courts below. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine, being devoid of any merit. July 16, 2010 monika ( L. N. MITTAL ) JUDGE