Satinder Singh vs State Of Punjab And Another
2022 Latest Caselaw 17533 P&H

CWP No.9139 of 2018 (O&M)                                      -1-


     IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
                 HARYANA AT CHANDIGARH

                                              CWP No.9139 of 2018 (O&M)
                                              Reserved on:07.12.2022
                                              Date of Decision.22.12.2022

Satinder Singh                                                 ...Petitioner
                                              Vs
State of Punjab and another                                ...Respondents.

CORAM: HON'BLE MS. JUSTICE JAISHREE THAKUR Present: Mr. Vipin Mahajan, Advocate for the petitioner.

Ms. Akshita Chauhan, DAG, Punjab.

Mr. R.S. Kalra, Advocate for respondent No.2.

-.-

JAISHREE THAKUR J.

1. The instant writ petition has been filed under Article 226/227 of

the Constitution of India for issuance of writ in the nature of Certiorari for

quashing order dated 27.03.2018 with endorsement dated 05.04.2018

(Annexure P-17) whereby service of the petitioner has been terminated by

the respondents, with a further prayer to direct respondent No.2 to reinstate

the petitioner with all consequential benefits and consider the case of the

petitioner for regularization as he has rendered 19 years' service on

contractual basis.

2 Brief facts, as culled out from the writ petition are, that on

11.01.1999, the petitioner was appointed as Fireman in respondent No.2-

Punjab School Education Board, through Employment Exchange after going

through a proper selection process, initially for a period of six months.

Thereafter, the petitioner had been working as Fireman as he was being

given extensions after every six months. On 15.12.2006, the State

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Government came out with a policy of regularization of employees and in

view of the said policy/instructions, on 18.03.2011 a circular was issued

providing that contractual employees, having 3 years of service and the

requisite qualifications, be regularized w.e.f. 01.04.2011 or as and when they

complete 3 years of service. On 17.11.2011, Department of Finance,

Directorate of Disinvestment, issued a notification directing all departments

to regularize services of daily wage/contractual employees in terms of

policy/instructions dated 18.03.2011. As on 17.11.2011, the petitioner had

already rendered 12 years of service and therefore, he was squarely covered

by the aforesaid policy/instructions. The respondent-Board in a meeting

held on 15.02.2012/16.03.2012 downgraded the post of Sub Fire Officer to

the post of Fireman. Thereafter, on 27.06.2013, the respondent Board in its

meeting held on 27.06.2013 passed a resolution that those employees who

have rendered three years of contractual service ought to be regularized, in

terms of instructions dated 17.11.2011 issued by the State Government. A

list of 91 persons working on contract basis was prepared by the respondent-

Board for considering their cases for regularization wherein name of the

petitioner figured at Sr. No.1. However, the petitioner was not regularized,

despite the fact that he completed three years of contractual service as far

back as 15.01.2002. The petitioner submitted various representations to the

respondent Board to consider his case for regularization in the light of

notification dated 17.11.2011 but no positive response was received thereon.

Thereafter, on 08.12.2017, petitioner served a legal notice upon the

respondent-Board to regularize his service. In response to the aforesaid

legal notice, respondent-Board vide letter dated 05.02.2018 informed the

petitioner that his case was sent to the State Government for permission to

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regularize his service and since, permission has not been granted by the

State, his case cannot be considered for regularization. Thereafter, on

27.03.2018, the respondent-Board terminated service of the petitioner

without assigning any reason. Aggrieved against the aforesaid order,

petitioner approached this Court by way of instant writ petition.

3. The aforesaid sum and substance of the petitioner's case has been

reiterated by learned counsel appearing for the petitioner during the course

of his arguments. It was further argued that the petitioner served the

respondent-Board for 18 years before his service was terminated arbitrarily.

The petitioner herein duly fulfilled the conditions envisaged in notification

dated 17.11.2011 and therefore, was entitled for regularization, apart from

submitting that posts of Fireman are lying vacant in the respondent-Board.

However, instead of considering his case for regularization, the petitioner

has been terminated from service vide impugned order dated 27.03.2018.

4. Per contra, learned counsel appearing for respondent No.2 would

argue that the petitioner herein was engaged as Fireman on contract basis,

however, he was not appointed against the sanctioned post. The

appointment of the petitioner was need based and therefore, he performed

various tasks such as Security Guard etc. The engagement of the petitioner

came to an end on 31.12.2017, as his contract was not extended on account

of non-availability of work. It is argued that the petitioner is not entitled for

regularization, as in view of letter dated 18.03.2011 issued by Government

of Punjab, Department of Personnel, only those employees who were

working on contract basis against sanctioned posts, were entitled for

regularization w.e.f. 01.04.2011 or after completion of three years of their

service, whichever is later, but subject to the condition that no new post shall

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be created for them. Since the petitioner was not working against the

sanctioned post, therefore, his case could not be considered for

regularization. Moreover, his case had been forwarded to the State

Government for consideration under the regularization policy but the same

was rejected on the ground that case of the petitioner was not covered under

the notification. The said decision of the State Government was

communicated to him vide letter dated 05.02.2018, which has not been

challenged by the petitioner herein. It was further argued that the writ

petition filed by the petitioner itself is not maintainable, as the appropriate

remedy for the petitioner would be before the Labour Court/Industrial

Tribunal under the Industrial Disputes Act. In support of his contention,

learned counsel appearing for respondent No.2 would rely upon a judgment

rendered by a Coordinate Bench of this Court where a writ petition bearing

No.7521 of 2018 filed by similarly situated persons stood dismissed vide

order dated 09.08.2018 by granting them liberty to approach the Labour

Court against the order of their termination/retrenchment. Order dated

09.08.2018 passed by the Single Bench was challenged in Intra Court

Appeals, LPA No.1839 of 2018 being the lead case, however, the Division

Bench also dismissed the said appeals by upholding the order passed by the

Coordinate Bench. He further relied upon a judgment passed by the Hon'ble

Supreme Court in Yogesh Mahajan Vs. Prof. R.C. Deka, Director, All India

Institute of Medical Sciences (2018) 3 SCC 218 to contend that where

appointment of employee on contract basis was not made in accordance with

any regular procedure by following necessary rules, no right accrues to such

employee for regularization of services and there is no statutory right of a

contract employee seeking renewal of contract from time to time, unless

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there is arbitrariness proved on behalf of concerned authority in declining

extension of contract.

5. I have heard learned counsel for the parties and have perused the

paper book.

6. A perusal of appointment letter dated 11.01.1999 would reveal that

the petitioner was appointed as Fireman on contract basis for a period of six

months from the date of his joining. A further perusal of appointment letter

would reveal that pay of the petitioner was charged against the vacant post

of one Iqbal Singh, Security Guard who had died. Extension letter dated

16.07.1999 issued to the petitioner thereafter also would reveal that service

of the petitioner was extended from 16.07.1999 to 30.09.1999 or till the

regular appointment of Security Guard, whichever was earlier and to the

similar effect, letters dated 30.07.2001 and 01.07.2003 were issued

extending the contract period of petitioner from 01.04.2001 to 30.09.200 and

from 01.07.2003 to 31.12.2003 respectively. However, subsequent

extension letters dated 08.03.2010, 20.03.2013 and 07.10.2017 would show

that his contract period was extended as Fireman, Maintenance Wing.

Instructions/policy dated 18.03.2011 and notification dated 17.11.2011

would not come to the rescue of the petitioner, as a perusal of the same

would reveal that the same would be applicable to those contractual

employees, who were recruited against sanctioned posts after fulfilling the

settled eligibilities/entitlements by adopting proper procedure of

appointments in transparent manner and their services shall be regularized

w.e.f. 01.04.2011 or on completion of three years of their service, whichever

is later, with further condition that no new post shall be created for them.

The petitioner herein was not appointed against the sanctioned post of

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Fireman as is evident from the appointment/extension letters, as he was

appointed against the vacant posts of Security Guard/Sub-Fire Officer and

was drawing salary against the said posts. Admittedly, there were two

sanctioned posts of Fireman against which Karamjit Singh son of Sukhdev

Singh and Satnam Singh son of Prem Singh were appointed on regular basis

and therefore, petitioner cannot be said to be appointed against sanctioned

post of Fireman. The respondent-Board had decided to downgrade the post

of Sub-Fire Officer to the post of Fireman but approval from the government

was not granted on the ground that the petitioner was not covered under the

policy/notification. It is settled position of law that a person not appointed

against the sanctioned post cannot claim regularization as one time measure,

irrespective of his length in employment as the same would be violative to

the constitutional scheme as enshrined under Articles 14 and 16 of the

Constitution of India. While dealing with the issue of regularization, the

Hon'ble Supreme Court in paragraph 12 of the judgment rendered in State of

Rajasthan and others v. Daya Lal and others (2011) 2 SCC 429 has

observed as under:-

"12. We may at the outset refer to the following well-settled principles relating to regularisation and parity in pay, relevant in the context of these appeals:

(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee

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which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.

(ii) Mere continuation of service by a temporary or ad hoc or daily- wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment". Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.

(iii) Even where a scheme is formulated for regularisation with a cut- off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.

(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.

(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute. (emphasis supplied)

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The Hon'ble Supreme Court in the judgment rendered in State of Karnataka vs. Uma Devi and others (2006) 4 SCC 1 has held as under:-

"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed

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or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates."

7. The petitioner herein was not appointed against the sanctioned post of

Fireman. In fact, the petitioner was appointed as a Fireman against the

sanctioned post of a Security Guard, and therefore mere continuance in

employment for a long period would not confer a vested right in him to be

regularized in service.

8. The argument as raised by the counsel appearing for the respondent-

Board that similarly situated persons like petitioner herein approached this

Court in writ petitions, which were dismissed by this Court while relegating

them to seek their remedy before the Labour Court/Industrial Tribunal and

therefore, instant writ is not maintainable, is not sustainable. In those cases,

the respondent-Board took a decision to abolish 748 regular posts and

therefore, terminated services of daily wagers working on said posts

following Section 25G of the Industrial Disputes Act, on the principle of last

come first go, from the date of issuance of circular by giving them one

month's advance notice as per Section 25F of the Industrial Disputes Act.

Those daily wagers were also given financial benefits due to them, as per the

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said Act. Therefore, in that case, the respondent-Board itself invoked the

provisions of Industrial Disputes Act while terminating the services of said

daily wagers whereas in the instant case, service of the petitioner was

simplicitor terminated with immediate effect.

9. In view of aforesaid finding, this Court finds no reason to interfere

with the order (Annexure P-17) passed by the respondent-Board.

Consequent, the instant petition stands dismissed.

                                                (JAISHREE THAKUR)
                                                      JUDGE
December 22, 2022
Pankaj*

                   Whether speaking/reasoned         Yes/No
                   Whether reportable                Yes/No




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