Punjab-Haryana High Court
Daljit Singh vs Divisional Manager And Anr on 14 November, 2024
Neutral Citation No:=2024:PHHC:148767
CWP-20771-2014 1
211 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-20771-2014
Date of Decision:14.11.2024
DALJIT SINGH ......... Petitioner
Versus
DIVISIONAL MANAGER AND ANR. ..... Respondents
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present : Mr. G.S. Bal, Sr. Advocate with
Ms. Gurneet Kaur, Advocate for the petitioner.
Ms. Madhu Dayal, Advocate for the respondents.
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JAGMOHAN BANSAL, J. (Oral)
1. The petitioner through instant petition under Articles
226/227 of the Constitution of India is seeking setting aside of Award
dated 27.02.2013 (Annexure P-8) whereby Labour Court has answered
the reference against him.
2. The petitioner is an Ex-serviceman. He, on temporary basis,
joined respondent-Chandigarh Transport Undertaking in December'
1998. His appointment was for 89 days. He came to be relieved in July'
1999. He filed an application before Central Administrative Tribunal (for
short 'CAT') seeking reinstatement and regularization. Vide interim
order dated 02.09.1999, CAT ordered to reinstate him. The said
application came to be disposed of by CAT vide order dated 24.08.2000
whereby it was held that applicant may be replaced by regular employee.
He continued to work, as process of regular selection, though had
commenced in 1999, yet was not completed till 2001. He filed second
application before CAT seeking regularization. CAT vide order dated
19.07.2001 directed the respondent to decide his representation within 3
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months. The respondent vide order dated 08.10.2001 rejected his
representation. The petitioner filed 3rd application before CAT in 2001
and 4th application in 2003. Prayer in both the applications was to
regularize him and permit to continue. The respondent advertised regular
post in 2003 as well as in 2006. The petitioner participated in selection
process of 1999 to 2001 as well as 2003 and 2006. The petitioner could
not achieve benchmark in all the three selection processes, thus, he was
not selected against a regular post. CAT vide order dated 24.12.2003
disposed of his 3rd and 4th application seeking regularization.
3. The Tribunal rejected application of the petitioner in 2003,
however he continued to work with respondent because no regular
appointment was made during 2004-2006. The respondent in 2006
advertised 45 regular posts. The selection process completed in 2007
wherein petitioner though participated but was not selected as he could
not achieve benchmark. The respondent on account of selection of
regular employees relieved him on 30.05.2007. It is apt to notice here that
it was not only petitioner who was appointed on temporary basis but also
there were a number of Drivers who were appointed on temporary basis
and pursuing their remedies for regularization. Apart from petitioner 11
more workers were relieved on 30.05.2007. The petitioner as well as
other relieved workers approached the Labour Court which passed
impugned order against the petitioner but allowed reference of other
workers. Hence this petition.
4. Mr. G.S. Bal, Sr. Advocate for the petitioner submits that
petitioner was similarly situated with 11 other Drivers. The Labour Court
has wrongly declined claim of the petitioner whereas other Drivers have
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been ordered to be reinstated with 50% back wages. The claim of
petitioner as well as others was rejected by CAT. The Labour Court has
misinterpreted order of CAT qua the petitioner. CAT had permitted
petitioner as well as other workers to continue till regular appointment.
On 30.05.2007, 12 posts were lying vacant, thus, petitioner could be
adjusted like other 11 workers.
5. Per contra, Ms. Madhu Dayal, Advocate for the respondents
submits that application of petitioner was dismissed by CAT on
24.12.2003 wherein it was observed that there is no bar to replace him by
duly selected candidate against a regular post. The respondent made
regular selection in 2007, thus, he was relieved. There was compliance of
directions of CAT. The other similarly situated employees were permitted
to continue after order of CAT passed on 24.05.2006. The similarly
situated employees were also relieved on 30.05.2007. There were 12
vacant posts on 30.05.2007. The Labour Court has ordered to reinstate 11
persons because posts were lying vacant on 30.05.2007. There were 30
Drivers who were contesting before CAT. 29 persons had filed joint
application and petitioner herein had filed separate application. The
application of petitioner was disposed of by Tribunal in 2003 and
application of 29 persons was disposed of on 24.05.2006. Out of total 30
persons, at the most 12 persons could be adjusted because on 30.05.2007,
12 posts were lying vacant. The petitioner was not entitled to
reinstatement because his claim was not only rejected by CAT but also
his writ petition was dismissed by this Court vide order dated 18.02.2009.
6. I have heard the arguments of learned counsel for the parties
and perused the record.
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7. The conceded position emerging from the record is that the
petitioner and 29 persons joined respondent on temporary basis as
Drivers. They time to time approached CAT seeking regularization. The
Tribunal dismissed their application seeking regularization, however,
permitted them to continue till selection of regular Drivers. The
respondent made appointment of regular employees in 2001, 2003 and
2006. The petitioner and other temporary Drivers participated in selection
process, however, very few of them could achieve the benchmark and
came to be selected. The application of petitioner was dismissed by CAT
on 24.12.2003 whereas application of other Drivers was disposed of on
24.05.2006. In the case of other workers, the application was not
dismissed and they were allowed to continue till regular selection. On
account of said order, they continued to work till 30.05.2006. They were
relieved on 30.05.2007, though, 12 posts were lying vacant on
30.05.2007. The Labour Court has ordered to reinstate 11 persons who
were relieved on 30.05.2007.
8. The respondent is claiming that they have reinstated 12
persons because 12 posts were lying vacant. In the case of petitioner,
there was no positive direction by CAT and his writ petition was also
dismissed by this Court, thus, he was bound to be ignored in comparison
of other Drivers.
9. The petitioner seeking regularization preferred O.A
No.1079/CH/2001 and O.A No.703/CH/2003 before CAT. Both the
applications were dismissed vide order dated 24.12.2003. The operative
portion of order dated 24.12.2003 is reproduced as below:
"9. After hearing both the counsel, we are
convinced that the applicant has no claim to be
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regularized against the regular vacancies for which
selection has been made twice and applicant had
appeared in both the selections but had failed to make
the mark. He is, therefore, not entitled for regular
appointment against the regular post. In so far as his
contractual appointment is concerned, he is
continuing against this post on account of the relief
given by this Tribunal but, there is no bar upon his
being removed if he is replaced by duly selected
candidate against a regular post. The judgments cited
by him are not relevant in the case as he was
appointed on contract basis for a limited period and
he had joined the post with open eyes. Besides the
above, he has participated in the selection for the
regular post in which he has failed. He has, therefore,
no legal right to claim regularization against the
regular post.
10. In view of the above facts, we find no merit in
both the O.As and the same are dismissed without any
order as to costs."
10. From the perusal of above quoted order, it is evident that
both O.As of the petitioner were dismissed and it was observed that there
is no bar to remove him if he is replaced by duly selected candidate
against a regular post.
11. In view of aforesaid observation of Tribunal, the petitioner
was not relieved in 2003 and he continued to work till 2007. Selection
process commenced in 2006 and petitioner participated in the said
process. He could not achieve benchmark, thus, he was not selected. He
preferred CWP No.7558 of 2009-CAT of 2004 before this Court which
was dismissed vide order dated 18.02.2009. The operative portion of
order dated 18.02.2009 is reproduced as below:
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"A perusal of the case file shows that the petitioner
was engaged on purely contractual basis as is clear
from his appointment letter (Annexure P-2). The
appointment was made in order to meet the emergent
situation which had arisen because of the threat of
strike given by the Drivers and Conductors of
Chandigarh Transport Undertaking. The requisition
which was sent to the Employment Exchange was also
to the effect that names of only those persons be sent
who are willing to work on contractual basis. The
petitioner had accepted he terms and conditions of his
appointment and had agreed to work on contractual
basis of 89 days on consolidated salary of Rs. 2462/-
per month and hence now he cannot claim that he be
appointed on regular basis.
Apart from the above, the petitioner also
participated in the selection for regular post twice, but
he failed to achieve the requisite merit for regular
appointment. As the petitioner was unsuccessful in
regular selection, therefore, now he cannot turn
around and claim regularization.
In view of the above, we are of the considered
opinion that the petitioner is bound by the terms and
conditions of his appointment letter according to
which he was appointed on purely contractual basis
on a consolidated salary. We find infirmity in the
order passed by the Tribunal and accordingly, the writ
petition is dismissed."
12. The similarly situated employees preferred joint application
before CAT which was allowed vide order dated 24.05.2006. The
applicants therein were permitted to continue to work as Driver against
available posts till regular candidates join. The operative portion of order
dated 24.05.2006 passed in the case of similarly situated employee is
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reproduced as below:
"20. The service of a Govt. employee can be
terminated after following the due procedure, if his
work and conduct is not found satisfactory.
Considering the circumstances of this case, parking of
bus by the petitioner outside the bus stand or a little
away therefrom, cannot be said to be 'unsatisfactory
performance' particularly, when the authorities
themselves have recognized the authority faced by the
Drivers in parking of buses at night at the bus stands,
which are smaller in areas, and issued directions vide
letter dated June 8, 2005 for parking of vehicles of the
roadside. Jawalaji bus stand is mentioned as one such
spot, which does not have adequate parking area.
Thus, the respondent should not have terminated the
services of the petitioner on this ground, which was
otherwise not available to him. Otherwise also, since
this court had directed the respondents to continue the
applicant till regular incumbents are appointed, no
such order could be passed, without approaching this
court for modification of the above order or getting
appropriate directions. In the interest of justice, it is,
therefore, directed that while maintaining the status
quo ante, the petitioner be reinstated in service with
all consequential benefits and be continued, till a
regularly selected hand joins on the post held by him.
21. In the given facts and circumstances of this
case, we do not find that it was a willful disobedience
of the courts orders. No ground is made out for
initiating contempt proceedings against the
respondent. Hence, the notice issued to him is
discharged. Contempt petition stands disposed of
accordingly.
22. For the foregoing reason, applicants pray for
regularization is rejected. The applicants in OA No.
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1159/CH-04 are allowed to continue to work as
Driver against available posts till regular candidates
join. OA 455/CH/2005 filed by Kaka Singh stands
allowed in terms of the directions given in para 16
above, while quashing the impugned order, dated 13-
1-2005."
13. From the perusal of orders passed by Tribunal in the case of
petitioner as well as other employees, it is evident that application of
petitioner was dismissed by CAT whereas application of other employees
was allowed and they were specifically permitted to continue. The
petitioner and other employees after their discharge on 30.05.2007,
approached Labour Court despite earlier orders passed by CAT. This
Court has reservation about procedure adopted by petitioner and other
employees. They had remedy to approach CAT which they availed in the
previous round of litigation. They as per doctrine of selection could
approach Labour Court, however, in view of previous orders passed by
Tribunal and orders passed by this Court should have approached CAT
instead of Labour Court. Nevertheless, they approached Labour Court
which has passed orders without considering question of alternative
remedy. There seems no reason, at this stage, to pass any order qua
jurisdiction because Labour Court in the instant case has dismissed
application of the petitioner.
14. The Labour Court has rejected claim of petitioner because
CAT had dismissed his application in 2003. There was specific
observation to the effect that there is no bar to relieve him as soon as a
regular employee is appointed. Posts were lying vacant, thus, petitioner
was permitted to continue till 30.05.2007. The petitioner participated in
selection process of 2006, however, he could not achieve benchmark. He
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was relieved on 30.05.2007. At that point of time, 12 posts despite
regular selection were lying vacant. The respondent has categorically
stated that in view of orders passed by Labour Court, all the vacant posts
have been filled up from those candidates who were selected as
temporary. There was no other vacant post, thus, petitioner could not be
permitted to continue after appointment of regular employees.
15. No post on 30.05.2007 was lying vacant and regular
appointed candidates joined, thus, petitioner could not be accommodated.
He was relieved in 2007 and a period of 17 years has passed away. Any
favourable order passed by this Court would amount to continuation of
petitioner for an indefinite period who was never selected against a
regular post and following regular selection process. Direction of this
Court to allow him to continue would amount to regular selection and it
would be in the teeth of judgment of Constitution Bench in 'Secretary,
State of Karnataka Vs. Uma Devi', (2006) 4 SCC 1. It is worth
mentioning that his claim for regularization has been turned down by
CAT as well as this Court.
16. In the wake of above discussion and findings, this Court is of
the considered opinion that there is no jurisdictional error or factual
infirmity in the impugned order dated 27.02.2013 warranting
interference.
17. Dismissed.
( JAGMOHAN BANSAL )
JUDGE
14.11.2024
Ali
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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