Punjab-Haryana High Court
Kamaljit Singh And Anr vs State Of Punjab And Ors on 7 July, 2023
Neutral Citation No:=2023:PHHC:087824
CWP No.28951 of 2017(O&M) 2023:PHHC:087824 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.28951 of 2017(O&M)
Date of Decision-07.07.2023
Kamaljit Singh and another ... Petitioners
Versus
Sate of Punjab and others ... Respondents
CORAM:-HON'BLE MR. JUSTICE RAJ MOHAN SINGH
Present: Mr. Gurminder Singh, Sr. Advocate with
Mr. Jatinder Singh Gill, Advocate
for the petitioners.
Mr. Sanjeev Soni, Addl., A.G., Punjab
Mr. R.S. Khosla, Senior Advocate with
Ms. Bharti Pujara, Advocate
for GMADA.
Mr. D.S. Patwalia, Sr. Advocate with
Mr. Gaurav Rana, Advocate
for the added respondents.
Mr. R.K. Arora, Advocate and
Ms. Saguna Arora, Advocate
for respondents No.5 to 16.
***
RAJ MOHAN SINGH, J.
[1]. The petitioners have preferred this writ petition for the
issuance of an appropriate writ in the nature of certiorari, quashing
the order dated 28.11.2017, whereby the claim of the petitioners
for regularization of their services in terms of State Government
Policies dated 18.03.2011 and 17.03.2011 has been declined.
Further the order dated 07.12.2017 is also sought to be annulled,
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whereby the services of the petitioners have been directed to be
dispensed with w.e.f. 31.12.2017 even after service of more than
8 years to their credit. A writ in the nature of mandamus is sought
for regularization of services of the petitioners in view of policies
dated 18.03.2011 and 17.11.2011.
[2]. Notice of motion was issued on 19.12.2017 and
operation of the order dated 07.12.2017 was stayed. CM
No.8666-CWP of 2022 for impleading the additional private
respondents was allowed and the respondents No.5 to 16 were
ordered to be impleaded. The aforesaid additional respondents
have been appointed on regular basis after the appointment of the
petitioners on contractual basis. In order to raise the issue
regarding seniority, the additional respondents have already been
impleaded as party respondents No.5 to 16 vide order dated
30.05.2022.
[3]. Learned Senior Counsel for the petitioners vehemently
submitted that the petitioners were appointed as Law Assistants in
GMADA in the year 2009 and their selection was done after
following the proper procedure. An advertisement was issued in
Daily Ajit Newspaper on 21.01.2009, requiring Law Assistants to
be appointed for the tenure of one year on contractual basis
extendable from time to time in view of requirement of the
respondent No.3-GMADA. The qualification required was law
graduate with minimum experience of three years as an Advocate
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preferably in the field of Civil, Urban and Commercial cases. Lump
sum salary of Rs.15,000/- was prescribed. Thereafter, the
petitioners were appointed and they are serving since then as
their services were extended from time to time. Ultimately, six
posts of Legal Assistants were filled on the recommendations of
the Selection Committee comprising of five members i.e. Principal
Secretary (Finance), Secretary to Government of Punjab, Housing
and Urban Development, Chief Administrator, GMADA, one
expert on subject matter and a representative of Welfare
Department, Government of Punjab. The appointment letters were
issued on different dates. The appointment letter was issued to
the petitioner No.1 on 09.06.2009 and the appointment letter was
issued to the petitioner No.2 on 20.07.2009. As per condition of
the appointment, the petitioners will not be treated as employees
of the authority/respondent No.2. The petitioners would neither get
any benefit available to the employees, nor would be entitled for
any claim etc for regularization of contractual service at a future
date. An agreement was also executed, wherein para No.4 of the
agreement reads as under:-
"4. The appointee shall not be treated as an employee of the
Authority. He/she would neither get any benefit available to
employees nor would be entitled for any claim etc. for
regularization of contractual service at a future date."
[4]. The extension in tenure for one year in contractual
services was given from time to time in view of workload in the
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Authority/respondent No.3. The salary was also increased
proportionally during the contractual period, however, terms and
conditions of the appointment remained the same.
[5]. Learned Senior Counsel for the petitioners further
submitted that the petitioners were appointed against regular
sanctioned posts and this fact is apparent from the office order
dated 28.11.2017 issued by the Chief Secretary of respondent
No.3/GMADA Mohali. According to this order, there are 8 posts
available in the Law Branch of LO/Legal Assistant. Similarly two
more posts of LO and Legal Assistants are available in the LAC
Branch. Nomenclature of LO and Legal Assistants is being used
as inter-changeable and this letter would show that there are
regular sanctioned posts available with the respondent No.3, upon
which the petitioners are working. The posts of Law Officers/Legal
Assistants are classified as Group-B (General) by the respondent-
Authority having pay band of Rs.10300-34800 with Grade Pay of
Rs.4200/-. The aforesaid letter further shows that staff of Group-A
and Group-B shall be hired on contractual basis and shall be
taken on deputation for which a committee comprising of Principal
Secretary, Finance as Chairman, Secretary to Government of
Punjab, Housing and Urban Development, Chief Administrator,
GMADA, one expert on subject matter and a representative of
Welfare Department, Government of Punjab is constituted.
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[6]. State of Punjab came out with the policy of
regularization on 18.03.2011, vide which it was decided that the
employees on contractual basis should be regularized w.e.f.
01.04.2011, who had completed three years of contractual service
or on completion of three years on contractual basis, whichever is
later. The aforesaid policy further prescribed that the regular
appointments will be made by ensuring the strict compliance of
the conditions i.e. the regular appointment will be treated from the
date of issuance of the order and no benefit of past service
(notional or otherwise) will be given to the employees being
regularized, but in case in any department, the employees of the
same cadre are appointed by the direct recruitment by adopting
the proper procedure, then in those circumstances, the employees
being regularized under this policy will be placed below them in
the seniority.
[7]. Since the above regular appointments are being made
under the aforesaid conditions keeping in view the legal advice,
administrative needs and in the public interest, in case any
candidate is deprived of his regularization for want of fulfillment of
the above requisite conditions, then he cannot stake his claim for
regular appointment. This exercise is "as a one time measure"
and has to be implemented in the departments shown in the
Annexure and the process of regular appointments be completed
within six months from the issue of instructions. No relaxation in
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the instructions, in any case, will be given. The instructions earlier
issued for regularization of employees of these departments will
not be treated as final. These instructions were being issued with
the concurrence of Finance Department on the basis of advice
given.
[8]. Learned Senior Counsel for the petitioners further
submitted that on 17.11.2011, an independent policy came to be
issued in respect of regularization of services of the daily
wagers/work-charged and contractual employees working in the
various Boards/Corporation/ Commissions/Co-operative
Institutions/other societies and Institutions falling under the
various Government departments. These instructions do not talk
about Group-B employees. The personal department vide letter
dated 28.10.2011 gathered the entire information with regard to
regularization of services of the daily wagers/work-charged and
contractual staff working in the various Board/Corporations etc
and information was sent to the Directorate accordingly. It has
been decided by the Government of Punjab that the services of
daily wager/work-charged presently working in the various
Board/Corporation falling under various departments of the
Punjab Government should have been regularized in accordance
with the fulfillment of terms and conditions contained in the
instructions dated 18.03.2011 issued for the purpose of
regularization of contractual staff. The Finance Department
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(Directorate of Disinvestment) is empowered by the State
Government to issue the requisite directions required in this
matter. The recommendation with regard to the regularization of
the services of the presently working daily wagers/work-charged
and contractual staff will be made by the Board of
Directors/competent authority of the concerned Institution if the
concerned Authority is satisfied with the fulfillment of all the
requisite terms and conditions contained in the letters issued by
the personal department and the financial position of the said
institution is sound. The concerned
Board/Corporation/Commission will send the proposal along with
recommendation to the Administrative Department and after due
consideration, the Administrative Department will send its
proposal along with recommendations to the Finance Department
and subsequently, the Directorate of Disinvestment will obtain the
approval for the purpose of regularization of the services in
question from the Hon'ble Chief Minister through the Chief
Secretary, Punjab accordingly. The services of these employees
will be regularized with immediate effect. These employees will
not be entitled for any financial or notional benefits. No past
service benefits and pensionary benefits will be applicable to
these employees.
[9]. Learned Senior Counsel for the petitioners further
submitted that initially there was only one Authority i.e. respondent
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No.2 which was constituted and established for the areas falling
under the Revenue District of SAS Nagar. Vide notification dated
14.08.2006, the power to appoint the staff of GMADA vested with
the Chief Administrator, GMADA/respondent No.3. The petitioners
were appointed through GMADA, however, the said powers were
later transferred back to the respondent No.2 vide notification
dated 06.10.2010. The petitioners filed representations for
regularization on 18.12.2012 before the Chief Administrator,
GMADA. Vide order dated 13/14.03.2013, the Chief Administrator,
GMADA passed an order thereby ordering that in view of interest
of office work, Legal Assistants appointed on contract basis in
GMADA now will be known as Law Officers. The petitioner No.1
was assigned the work of replies of writ petition and replies of
Government and files relating to High Court and files of Estate
Office for opinion will be put before the Legal Advisor. Similarly,
the petitioner No.2 was asked to do the work of preparing reply
relating to Land Acquisition Collector in association with Senior
Law Officer appointed by GMADA.
[10]. On the strength of aforesaid letter, learned Senior
Counsel for the petitioners submitted that the petitioners are being
assigned the work as that of Legal Law Officers and they are
discharging their duties accordingly.
[11]. The representation dated 18.12.2012 filed by the
petitioners was rejected by the Chief Administrator vide order
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dated 06.05.2013 on the ground that the employees appointed on
contractual basis as per terms and conditions do not cover under
the instructions of the State Government issued on 18.03.2011
and therefore, the matter regarding the regularization of the
services of the contractual staff working in various authorities,
cannot be considered by the respondent No.2.
[12]. Against the aforesaid order dated 06.05.2013 passed
by the Chief Administrator of the respondent-Department, the
petitioners filed CWP No.11047 of 2013, which was disposed of
vide order dated 11.04.2016, directing the respondent No.1 to
take a decision and forward the claim of the regularization of the
petitioners to the competent authority. It was ordered that it would
be appropriate, if the petitioners are associated with the said
decision making process by the competent authority during the
hearing at the time of consideration of the case of regularization. It
was ordered that since the petitioners have been working since
2009, therefore, it would be appropriate that their services would
not be dispensed with till the time decision making process is
completed. In case, any adverse order is to be passed, the same
may not be acted upon for a period of four weeks thereafter.
[13]. In compliance of the aforesaid order, the respondent
No.1 nominated the Chief Administrator, PUDA/respondent No.2
as competent authority to decide the issue of regularization of the
petitioners. Thereafter, the Chief Administrator of respondent No.2
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passed an order dated 10.10.2016 after considering the policies
dated 18.03.2011 and 17.11.2011, mentioning that the Chief
Administrator of respondent No.2 is not competent to take any
decision of regularization in case of the petitioners and the case is
to be sent to Administrative Department for further action as per
instructions.
[14]. Thereafter, the order dated 28.11.2017 came to be
passed on the premise that after observations made by the Chief
Administrator of respondent No.2 in respect of his incompetence
to take any decision for regularization of the case of the
petitioners and the case was ordered to be sent to Administrative
Department for further action. The Finance Department has given
the advice that the process of regularization of services was a one
time measure and this exercise was to be completed within the
prescribed period of six months. Vide letter dated 15.12.2014, the
Directorate of Public Enterprise and Disinvestment had directed
not to send the cases of regularization to them as per the
provision of policy of Personnel Department, therefore, at that
stage, the proposal was not considered and accordingly, the case
for regularization of the petitioners was rejected vide order dated
28.11.2017. Vide order dated 07.12.2017, the respondent-
Department terminated the services of the petitioners w.e.f.
31.12.2017.
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[15]. Learned Senior Counsel for the petitioners further
submitted that in view of ratio laid down in CWP No.11427 of
2015 titled Sukhjad Singh and others Vs. State of Punjab and
others decided on 19.12.2018, the petitioners were also entitled
for the same relief as in those cases also the order of rejection
was passed in similar manner and subsequently, they were
regularized. Even in case of the petitioners, a favourable
recommendation was made by the Additional Chief Administrator,
GMADA to the Chief Administrator PUDA/respondent No.2,
requesting for regularization of the services of the petitioners on
the ground that the staff structure was approved by the
respondent No.2 in respondent No.3, wherein 5 posts of Law
Officer/Legal Assistant have been sanctioned. At present, 4 Legal
Assistants on contractual basis and 1 regular Law Officer are
working in the respondent No.3. In the year 2009, the petitioners
were appointed, whereas the staff structure of the respondent
No.2 was framed in the year 2010 on contractual basis after
adopting proper procedure. After that, the respondent No.3 has
not filled up the vacancies against the sanctioned posts of PUDA.
[16]. Government of Punjab has already regularized the
services of 90 Assistant District Attorneys appointed on contract
basis in the Prosecution and Litigation Department Punjab on
completion of 3 years of service and other required formalities in
the pay scale of Rs.10300-34800+4800 gross pay. As per
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conditions of regularization, the seniority of the officials
regularized will be fixed as per the Service Rules 2010 Punjab
Prosecution and Litigation (Group-B). The appointment will be as
per notification dated 02.03.2004 issued by the Punjab
Government under the new defined contributory pension scheme.
[17]. Learned Senior Counsel for the petitioners further
submitted that as per staff structure approved by PUDA, there are
5 sanctioned posts of Law Officer for GMADA against which 4
Legal Assistants are working on contractual basis. These
employees have staked their claim for regularization of services
as per instructions of the Government as they have completed
three years of contractual services. A decision in respect of
appointment of staff of all the authorities is to be taken by PUDA,
therefore, the case was recommended by the Chief Administrator
of respondent No.3 to the Chief Administrator of the respondent
No.2 with the aforesaid information. The case of the petitioners is
fully covered under the instructions dated 18.03.2011 and
17.11.2011 of the Government as no financial implication is
involved and the Finance Department has no role to play as per
instructions dated 17.11.2011 and the Government is not to pay
anything. While rejecting the claim of the petitioners, policy dated
17.11.2011 has been completely obliterated.
[18]. Per contra, learned counsel for the respondents have
opposed the claim of the petitioners by submitting that the
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Department of Personnel did not respond to the claim of the
petitioners on the premise that the proposal of the Administrative
Department in the context of decision in Sukhjad Singh's case
(supra) related to the Department of Health, therefore,
Department of Personnel was not in a position to give any
comments keeping in view the merits of the case in Sukhjad
Singh's case (supra). State of Punjab has also filed Special
Leave to Appeal (C) No(s).15325 of 2022 against the order dated
28.03.2022 passed in LPA No.516 of 2020, dismissing the appeal
on limitation, wherein the Hon'ble Apex Court has stayed the
contempt proceedings pursuant to the order of the learned Single
Judge dated 19.12.2018. The aforesaid SLP is still pending before
the Hon'ble Apex Court.
[19]. Learned Senior Counsel for the added respondents
submitted that as per the appointment of the petitioners, the same
was purely on contractual basis. The petitioners are not to be
treated as employees of the Authorities as per condition No.2(i).
Even the extension granted to the petitioners was only for
contractual services for one year every time. Even as per
condition No.7 of the letter dated 26.11.2007, the staff of Group-B
posts was to be hired on contractual basis. The petitioners are
holding the Group-B posts. The policy dated 18.03.2011 was a
one time measure implemented only in particular departments
shown in the Annexure and the process of regular appointment
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was to be completed within six months and no relaxation in the
instructions was to be given. The appointment of the petitioners
was a contractual appointment and the petitioners are bound by
the terms and conditions of the contract, wherein they were not
entitled to seek regularization of contractual services at a future
date being not the employees of the authorities. The conditions of
the appointment letter and conditions of the agreement are
suggestive of the fact that the petitioners were not to be treated as
employees of the authorities. They would neither get benefit
available to the employees, nor would be entitled to any claim of
regularization of contractual service at a future date. The
regularization policy is applicable to the employees working on
contractual basis on sanctioned posts by virtue of a transparent
selection. The decision in Secretary, State of Karnataka and
others Vs. Uma Devi and others, 2006(4) SCC 1 has to be
strictly complied with. In view of ratio of the aforesaid judgment,
there cannot be any regularization of Group-B posts. Five Judges
Bench of the Hon'ble Supreme Court in the aforesaid Uma Devi's
case (supra) has held that no regularization of Group-B post is
permissible. The respondents No.5 to 16 are directly
recruited/promoted as Law Officers during the year 2012 to 2019
and thereafter, the respondent No.5 has been promoted as Senior
Law Officer vide order dated 26.06.2021 with a rider regarding
pendency of the present writ petition, whereas the post of Senior
Law Officer is purely a promotional appointment post of Group-A,
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therefore, the condition imposed in the promotional post on the
basis of the present writ petition is claimed to be totally illegal.
Similar condition has been imposed in the appointment letter of
the respondent No.16 issued on 12.07.2021. At the time of
issuance of advertisement dated 08.07.2018 by the respondent
No.2 for recruitment to the post of Law Officer through direct
recruitment, there was no condition mentioned that the
appointment shall be subject to decision in the present writ
petition. Even the application filed against the advertisement
issued by the respondent No.2 for recruitment to regular posts of
Law Officer was allowed to be withdrawn being not pressed by the
petitioners. The petitioners could have filed miscellaneous
application for relaxation of age, if so required, in order to
compete in the regular selection, but they did not appear in the
examination just to take benefit of back door entry, which is not
permissible in view of Uma Devi's case (supra).
[20]. In CWP No.20333 of 2016 titled Gurinder Singh and
others Vs. State of Punjab and others decided on 21.01.2022,
the prayer was for quashing of order of regularization of private
respondents therein. The challenge was made to the order of
regularization, whereby the services of private respondents were
confirmed post-regularization as well as for quashing of tentative
seniority list. The policy in question was considered by the Court.
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Under issue of violation of policy dated 18.03.2011, following
observations were made:-
"The terms of the policy have been referred to in the
preceding paragraphs. At the expense of repetition, it is stated
that regularization was to be done w.e.f. 01.04.2011 or on
completion of 03 years of service whichever was later and that
the directions issued in the policy were to be implemented
within six months of the date thereof. Relevant extracts of the
policy are reproduced below:-
2. 'On the basis of the information received in respect of
employees working on contract basis in these
departments (as mentioned in the enclosed list) the
matter was considered by the Cabinet in its meeting held
on 09.03.2011 and as per the under noted decision of the
Council of Ministers, the employees who are included in
the list sent by you (who fulfills the prescribed
qualification and eligibility as per the rules/instructions)
are required to be appointed on regular basis.
(i) Those employees who are working on contract basis
and who were recruited by following the transparent
procedure with regard to the prescribed
qualification/eligibility, there services are to be
regularized w.e.f. 01.04.2011 or on completion of 03
years service on contract basis, whichever is later but for
them new posts will not be created.'
xxxxxxxx
(4) 'As these regular appointments are being made on
the aforesaid conditions in view of the legal opinion,
administrative requirements and in public interest.
Therefore, if any employee fails to get regular
appointment due to non-fulfillment of the above
conditions, then he cannot claim his right for regular
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appointment. This action is being taken as a one time
measure and this is applicable only in the case of the
departments included in the enclosed list. Action
regarding regularization of services shall be completed
within six months of the issuance of this letter. No
relaxation of any condition shall be given in any case.'
The aforementioned extracts show that regularization
could be done even after 01.04.2011, however, the action had
to be completed within six months of the issuance of the letter.
Thus, the policy dated 18.03.2011 had ceased to exist after
expiry of six months from the date of issuance thereof. This is
how the State had also understood the same as the noting
dated 02.04.2013 requests for a relaxation of the stipulation of
six months.
On behalf of the respondents, it has been submitted that
the Cabinet had relaxed the period of six months and the
same was communicated vide letter dated 04.10.2013. There
being no challenge to this decision of the Cabinet, it can't be
argued that regularization was done after the policy has
ceased to exist.
The decision of the Cabinet is reproduced in the
communication dated 04.10.2013 and the same is extracted
below:-
'After discussing memo dated 24.09.2013 of the
Department of Home Affairs & Justice proposal
mentioned in its para No.2 has been approved. It was
also decided that Assistant District Attorneys who will
complete 03 year's experience on 05.10.2013 and
06.10.2013 shall be were regularized from the said dates
(05.10.2013 and 06.10.2013)'
The decision does not explicitly extend the duration of
the policy, but it states that the ADAs who had completed 03
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years' experience on 05.10.2013 and 06.10.2013 were to be
regularized. Impliedly, this decision extended the applicability
of the policy dated 18.03.2011. The policy having been framed
by the State Government, it was entitled to amend the same
also. Letter dated 04.10.2013 itself not being under challenge,
there is no escape from the conclusion that the policy had
been extended for the private respondents."
[21]. The second issue considered by the Court was that
whether the action of extension of policy dated 18.03.2011 was
arbitrary. In the aforesaid case, the Court has commented that the
policy dated 18.03.2011 was framed for employees of 7 different
departments. Following observations were made under the
aforesaid head:-
"The policy dated 18.03.2011 was framed for employees
of seven different departments. However, it has been
extended only for ADAs belonging to the Prosecution &
Litigation Department which is part of the Department of Home
Affairs & Justice and also includes the Jails Department and
Advocate General's office. The policy was framed for the
benefit of employees of the said departments as well, but the
ADAs were singled out for preferential treatment. Nothing has
been brought on record to show that there was a necessity to
extend the policy for granting permanent employment. Process
of direct appointment had already been initiated and the posts
occupied by the contractual employees could also have been
filled up through direct recruitment, may be in a staggered
fashion to ensure that the working of the subordinate Courts
was not adversely affected. The preferential treatment thus,
given to the private respondents and that too on the basis of
their own request, is patently arbitrary.
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It is clarified that the above finding may not be construed
to be contradictory to the finding that the decision of the
Cabinet to extend the applicability of policy dated 18.03.2011
to the private respondents was within its jurisdiction. It is
reiterated that the action was within its jurisdiction, but there is
no material on record to justify the taking of such an action.
Accordingly, it is arbitrary and action of regularization on the
basis thereof is bad in law. Even though, there is no challenge
to the communication dated 04.10.2013, technicalities of
pleading cannot come in the way of substantial justice. The
communication has been placed on record by the State itself
and the parties should have been alive to the legality or
otherwise thereof."
[22]. Under the issue of validity of regularization, the Court
proceeded to comment in the following manner:-
"On the date of regularization i.e. 08.10.2013, the 1989
Rules had been repealed by the 2010 Rules. The 1960 Rules
would be deemed to have been repealed as two sets of Rules
cannot occupy the same space. The 2010 Rules provide for
100% appointment through direct recruitment. It is thus,
apparent that the Rules framed in exercise of powers
conferred by the proviso to Article 309 of the Constitution of
India have been violated. The 2010 Rules also show that the
service comprises ADAs only and the said posts are Group-B
posts. No regularization on Group-B posts is permissible. If at
all, regularization can be done only on Group-C or Group-D
posts. Casual appointments and appointments on daily-wage
basis are made against such posts only and the entire
discussion in Uma Devi (supra) is in the context of such
employees only. The tendency needs to be nipped in the bud
so that we are not faced with the day when appointments are
made to Group-A posts too through the process of
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regularization. The situation appears to be absurd but not
beyond visualization.
The argument raised on behalf of the private
respondents that the 1989 Rules were applicable to them
cannot be accepted. The said Rules were in force when they
were appointed on contract basis. As on date of regularization,
the 1989 Rules stood repealed and thus, the argument is
fallacious.
In Uma Devi (supra), it has been held that neither the
Executive nor the Courts can accept a request for appointment
on public posts through a mode violative of the Constitutional
scheme. It has also been held that making an employee
permanent is a concept different from that of regularization
and no employee can be permanently appointed on a public
post except in accordance with the Constitutional scheme. The
best available talent must be brought into public service and
the fact that the private respondents failed to qualify in the
open competition establishes that they are not the best. For
these reasons, the regularization of the private respondents
cannot be held to be legal and valid."
[23]. Evidently, the Court has found that no regularization of
Group-B is permissible. Regularization can be done only in
Group-C and Group-D posts. The regularization of Group-B needs
to be curbed. As per ratio laid down in Uma Devi's case (supra),
neither the Executive, nor the Courts can accept a request for
appointment on public posts through a mode violative of the
Constitutional scheme. Making an employee permanent is a
concept different than that of regularization and no employee can
be permanently appointed on different posts except in accordance
with law. Order of regularization of Assistant District Attorney was
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set aside. It was ordered that the State may, however, continue
them as contract employees subject to initiation of process of
direct appointment to the posts within the prescribed period.
[24]. Based on the distinguishing features in Sukhjad
Singh's case (supra) and ratio of Gurinder Singh's case
(supra) coupled with mandatory directions in Uma Devi's case
(supra), the Chief Administrative of the respondent No.2 has
passed a detailed order dated 10.03.2023 in view of order dated
20.04.2022. The Authority has rejected the case of the petitioners
on the grounds that firstly the appointments of the petitioners are
contractual appointments and are governed by conditions of
appointment and agreement executed between the parties,
wherein the petitioners would neither get any benefit available to
the employees, nor would be entitled to any claim etc for
regularization of contractual service at a future date. The
petitioners shall not be treated to be employees of the Authority.
He/she would neither get any benefit available to the employees,
nor would be entitled for regularization of service at a future date.
Secondly, in the year 2011, State Government promulgated
policies dated 18.03.2011 and 17.11.2011 for regularization of the
service of contractual employees in the terms of Uma Devi's case
(supra). As per said policies, services of only those employees
who were appointed on contract basis and were recruited by
following transparent procedure with regard to the prescribed
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qualification/eligibility, were to be regularized w.e.f. 01.04.2011 or
on completion of three years services on contract basis,
whichever is later. The policy dated 18.03.2011 is clear that
regularization was to be effected w.e.f. 01.04.2011 in respect of
employees who had completed three years of service. The
petitioners were appointed in the year 2009 and they had not
completed three years as on 01.04.2011, nor at later stage on
18.09.2011 on completion of six months of issuance of policy and
accordingly, the petitioners were not entitled to the benefit of the
policies dated 18.03.2011 and 17.11.2011 as the action under the
policy dated 18.03.2011 had to be completed within six months
from the issuance of the policy. Accordingly, the petitioners were
not entitled to the benefit of the policies dated 18.03.2011 and
17.11.2011 as the action under the policy dated 18.03.2011 had
to complete within six months upto 18.09.2011 from the date of
issuance of the policy. The policy dated 18.03.2011 had ceased to
exist after expiry of six months being one time measure. Thirdly,
the services of the petitioners were terminated in the year 2017
and no further contract of contractual employment has been made
thereafter. The petitioners are working on contractual basis only
on the basis of interim stay granted by this Court. Fourthly, at the
time of advertisement dated 08.07.2018 for recruitment of regular
Law Officer, the petitioners had a chance to appear even by
seeking relaxation in age. At one point of time, the advertisement
was sought to be stayed by moving a miscellaneous application
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and the same was got dismissed as withdrawn as the petitioners
wanted to continue their contractual engagement. Even the
petitioner No.2 in CWP No.28719 of 2017 (Sunny Raheja) has
participated in the selection process conducted by PUDA for the
post of regular Law Officer in the year 2018, but was not selected.
Fifthly, the post of Legal Assistant as occupied by the petitioners
were purely contractual in nature and were sanctioned only for
making appointment on purely contractual basis and these
contractual posts were temporary in nature. The petitioners were
never appointed against the regular sanctioned posts as
described in Uma Devi's case (supra). In 42nd meeting of
Authority held on 01.09.2010, agenda item No.42.13 has been
discussed and it was decided that all technical and non-technical
posts will be filled up in future by Punjab Urban Planning and
Development Authority, PUDA only. Sixthly, as per Punjab Urban
Planning and Development Authority (Employees Service)
Regulations, 1999, the post of Law Officer/Legal Assistant has
been classified as Group-B. In terms of judgment passed in
Gurinder Singh's case (supra), the post of Group-B cannot be
regularized. This fact has already been endorsed by the Hon'ble
Apex Court in Uma Devi's case (supra) by holding that no
regularization of Group-B post is permissible. Seventhly, as per
ratio laid down in Uma Devi's case (supra), neither the
Executive, nor the Courts can accept a request for appointment
on public posts through a mode violative of the Constitutional
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scheme. Eighthly, in Sukhjad Singh's case (supra), the
petitioners therein are Group-C employees and their services
were governed by Punjab Health Department and Family Welfare
Technical (Group-C) Service Rules, 2016. The said judgment was
challenged in LPA No.516 of 2020, which was dismissed on
03.09.2020 on the ground of delay of 349 days in filing the appeal.
The State of Punjab has already filed SLP(C) No.15325 of 2022,
in which notice has already been issued and contempt
proceedings have been stayed. The ratio laid down in Sukhjad
Singh's case (supra) is totally different being a case of Group-C
where regularization is permissible. Order dated 10.03.2023
passed by the Chief Administrative has been simply placed on
record without assailing the same on legal parameters.
[25]. For the reasons recorded hereinabove, this Court does
not consider the claim of the petitioners to be justified in view of
their posts being Group-B posts and in the light of judgment
passed in Gurinder Singh's case (supra) and Uma Devi's case
(supra), no indulgence can be granted in the present writ petition.
This writ petition is accordingly dismissed.
(RAJ MOHAN SINGH)
JUDGE
07.07.2023
Prince
Whether reasoned/speaking Yes/No
Whether reportable Yes/No
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