CWP No. 19928-CAT of 2002 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 19928-CAT of 2002 Date of Decision: May 30, 2008 Anupama Bhardwaj ......Petitioner Versus Central Administrative Tribunal, Chandigarh Bench, Chandigarh and others .....Respondents Coram: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE MOHINDER PAL Present: Shri Balram Gupta, Senior Advocate, with Shri Vikrant Hooda, Advocate, for the petitioner. Shri Kapil Kakkar, Advocate, and Shri Vishal Sodhi, Advocate, for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? HEMANT GUPTA, J. This order shall dispose of a bunch of writ petitions raising similar questions of law and facts. CWP No. 19928-CAT of 2002 has been filed by Ms. Anupama Bhardwaj, a part time Lecturer in the Government Home Science College, Chandigarh, against an order dated 11.10.2002 passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for short `the Tribunal') partly allowing the original application filed by her. Vide the aforesaid order, the learned Tribunal declined the relief of regularisation of services of the petitioner, but ordered that the petitioner shall be entitled to the minimum of pay scale of the post of Lecturer and that she shall not be replaced by another contractual or part time employee. The applicant is challenging the order of the Tribunal to the extent it has denied the relief of CWP No. 19928-CAT of 2002 (2) regularisation to her. CWP No. 1374-CAT of 2003 has been filed by the Chandigarh Administration, challenging the order of the Tribunal allowing the original application, partly. CWP No. 18115-CAT of 2003 and CWP No. 16122-CAT of 2003, arise out of an Original Application filed by Meenakshi Walia; CWP No. 217-CAT of 2004 and CWP No. 16933-CAT of 2003 arise out of an Original Application filed by Mona Soin and others and CWP No. 16107-CAT of 2003 is filed by the Administration. The said Original Applications were disposed of by the learned Tribunal in terms of the earlier order dated 11.10.2002 passed in the case of Anupama Bhardwaj. CWP No. 4841-CAT of 2005 and CWP No. 4021-CAT of 2006, are directed against the order dated 24.2.2005, passed in an Original Application filed by Seema Jaitely, following the earlier order dated 11.10.2002, passed in the case of Anupama Bhardwaj. In CWP No. 2237 -CAT of 2002, the challenge by the Administration is to the order dated 1.1.2002 passed in the Original application filed by one Ms. Meenakshi Walia, whereby her relieving as part time Lecturer on account of appointment of a regular appointee was quashed. Though the facts of each case are substantially same, but for facility of reference, the facts are taken from CWP No. 19928-CAT of 2002. It may be noticed that though number of part time/contractual Lecturers were before the Tribunal at some stage or the other, only three applicants, namely, Ms. Meenakshi Walia; Mona Soin and Seema Jaitley have not been appointed on regular basis, whereas Anupama Bhardwaj, though not appointed on regular basis, has submitted her resignation more than a year ago. Therefore, the claim of regularization is to be considered in respect of Ms. Meenakshi Walia; Mona Swain and Seema Jaitley, whereas the grievance of the Administration in respect of grant of CWP No. 19928-CAT of 2002 (3) regular pay scale is to be considered in respect of all the part time / contractual Lecturers. Before coming to the facts of the cases in hand, it may be noticed that the Chandigarh Educational Services (Group-B Gazetted) Govt. Home Science College Rules, 1990 (for short `the Rules') were published on 21.2.1991. The said validity of such Rules was challenged twice before the Tribunal. In the first round of litigation decided on 1.2.1994, the Rules relating to the qualification prescribed for recruitment to the post of Lecturer were quashed for the reason that such Rules do not prescribe qualification as laid down by the Panjab University in its Circular dated 18.6.1990. Thereafter, the Rules were amended vide Notification dated 22.12.1997 published on 1.1.1998. The said Rules were again challenged before the Tribunal and on 5.5.1999, the Rules relating to qualification prescribed were again quashed. It was thereafter, the Rules were amended vide notification dated 17.1.2000 published on the same day. It is the said Rules, which are applicable. Similar is the situation in respect of the Chandigarh Educational Services (Group-B Gazetted) Arts and Science College Rules, 1990. The said Rules were also notified on 21.2.1991 and have met the same fate in respect of its validity and the amendments. Though in CWP No. 19928-CAT of 2002, the petitioner was appointed as Lecturer in Home Science College and in other cases, the appointments are to the Arts and Science College, but there is complete parity of circumstances, though separate Rules were notified for them. Prior to promulgation of both sets of Rules on 21.2.1991, the appointment of Lecturers in the Chandigarh Administration was governed by the Punjab Subordinate Education Service Rules, 1937 (hereinafter referred as `The Punjab Rules'). Such Rules were applicable in terms of Section 89 of the Punjab Reorganisation Act, 1966 (for short CWP No. 19928-CAT of 2002 (4) `the Act') contemplating that any law made before the appointed date shall have effect subject to adoption and modification so made until altered, repealed or amended by a competent legislature or other competent authorities and, inter-alia, to other conditions. All the part time/contractual Lecturers (hereinafter referred to as `the applicants') were appointed in the year 1995 or thereafter. It is the pleaded case of the applicants that the Administration has been filling the posts of Lecturers by taking the persons on deputation from the neighboring States or by offering temporary appointment to the nominees of the Employment Exchange. The regular appointments to the Lecturers has not been made in any of the Colleges in U.T., Chandigarh since 1978 through Union Public Service Commission. The applicants were appointed on a consolidated salary. The same being Rs.2200/- per month in case of the applicants, who have less than 20 teaching periods in a week and for part time Lecturers, who have more than 20 Lecturers in a week, the consolidated salary was Rs.3500/- in terms of circular dated 18.7.2000 (Annexure P.11). In respect of the Lecturers appointed prior to the notification of the Rules on 21.2.1991, the Hon'ble Supreme court in Dr. Gagon Inder Kaur v. Union Territory of Chandigarh and others, decided on 17.10.1995, has held that all such Lecturers are deemed to be regularly appointed. Relying upon the said judgment, this Court allowed CWP No.10319-CAT of 2001- Sumangal Roy v. Union of India on 6.2.2007, filed by the Lecturers, who were appointed by a duly constituted selection committee in the year 1989 in the Government College of Arts, Chandigarh. Learned counsel for the applicants have vehemently argued that the Rules notified by the Chandigarh Administration in the year 1991 remained inoperative and inapplicable till 17.1.2000 and, therefore, the appointment of the applicants is to be considered having CWP No. 19928-CAT of 2002 (5) been made in terms of the Punjab Rules. It is contended that in terms of the Punjab Rules, the post of Lecturer is Class-III post, and therefore, for appointment thereof, consultation with the State Public Service Commission is not required. Apart from the consultation with the Punjab Public Service Commission, the applicants have been appointed by complying with the process of law contemplated under the Punjab Rules. Since the Rules were not operative when the applicants were appointed on adhoc/part time or contractual basis, therefore, they are deemed to be appointed under the Punjab Rules. Such appointment is deemed to be regular appointment in terms of the judgment of the Hon'ble Supreme Court in Gagon Inder Kaur's case (supra), as followed by this Court in Sumangal Roy's case. Therefore, the order passed by the Tribunal declining the regularisation of the services of the applicants, is not sustainable. Reliance was placed on Guneeta Chadha and others v. Union of India and others, 2001(1) SLR 9; State of Sikkim v. Dorjee Tshering Bhutia and Ors., 1991(5) SLR 82 as well. Learned counsel for the applicants have further argued that lack of consultation with Union Public Service Commission is at best irregular and, therefore, in terms of the judgment of the Hon'ble Supreme Court in Secretary State of Karnataka and others v. Uma Devi and others, (2006)4 SCC page 1, the petitioners having put in more than 10 years of service continuously without any break, are entitled to be regularised. Reliance was also placed upon Balwinder Singh and others v. State of Punjab and others, 1998(1) RSJ 731, a judgment of the Division Bench of this Court to contend that the applicants having been sponsored by the Employment Exchange, their appointment cannot be said to be illegal. On the other hand, Shri Kapil Kakkar, learned counsel representing the Administration has supported the order of the Tribunal, CWP No. 19928-CAT of 2002 (6) in respect of declining the relief of regularisation of the services of the applicants, but argued that the applicants are not even entitled to the minimum of regular pay scale. Reliance is placed upon State of Haryana v. Surinder Kumar and others, (1997)3 SCC 633; Apangshu Mohan Lodh and others v. State of Tripura and others, (2004)1 SCC 119; State of Madhya Pradesh and others v. Yogesh Chandra Dubey and others, (2006)8 SCC 67 and State of Bihar & Ors. v. Bihar Veterinary Association & Ors., 2008(2) SCT 172. The learned counsel also relied upon para 48 of the judgment in Uma Devi's case (supra). It is also argued that the applicants were being paid their wages out of the amalgamated funds of the College established by the contributions from the students, therefore, the application before the Tribunal is not maintainable. Reliance is placed upon the Hon'ble Supreme Court order in Union of India and another v. Chotelal and others, (1999)1 SCC 554 and Santokh Singh v. Chandigarh Administration and others, CWP No.8476-CAT of 2001 decided on 1.6.2001. Reliance is also placed upon Nagendra Chandra and others v. State of Jharkhand and others, (2008)1 SCC 798, to contend that in the absence of advertisement, the appointments made are illegal. Firstly, we will deal with the objection raised by Shri Kakkar that the application before the Tribunal is not maintainable. In Santokh Singh's case (supra) relied upon by Shri Kakkar, the petitioner has approached the Hon'ble Supreme Court against the order passed by the Tribunal holding that the Original Application before the Tribunal is not maintainable. The Hon'ble Supreme Court permitted the petitioner to move another application on the assumption that he is an employee of the Chandigarh Administration and directed the Tribunal to examine the same without being influenced by the observations contained in the earlier order of the Tribunal. The Tribunal again dismissed the original CWP No. 19928-CAT of 2002 (7) application. But this Court in the writ petition noticed the reasoning given by the Tribunal that payment of salary in the running grade by itself was not sufficient to entitle the petitioner to seek regularisation on the post of Dispenser. It was found that the petitioner had not applied for the post of Pharmacist or Dispenser, when the same were created by the Chandigarh Administration as the petitioner was not qualified for either of those posts. Still further, it was found that the petitioner cannot claim regularisation as he was neither appointed by the competent authority of the Chandigarh Administration nor he was under its disciplinary control nor he was paid out of the funds of the Administration. Therefore, the said judgment provides no assistance to the learned counsel for the respondents. In Chotelal's case (supra), the question examined was whether the Dhobis appointed for washing clothes of the Cadets of the National Defence Academy, Khadakwasla, out of the regimental funds can be said to be holding a civil post. The regimental fund is a fund created out of the monthly Dhobi allowance given to each cadet. It was out of such regimental fund, the Dhobis were being paid. It was held that the Dhobis cannot be held to be holding a civil post. In Union of India and others v. A. Aslam and others, (2001) 1 SCC 720, the Hon'ble Supreme Court considered its earlier judgment in Chotelal's case (supra) and relying upon Parimal Chandra Raha v. LIC of India, 1995 Supp (2) SCC 611, the Court found that the employees working in the Unit-run Canteens are the Government employees. It was found that the Officers of the defence services have all pervasive control over the Unit-run Canteens as well as the employees serving therein. Therefore, such employees are holding civil post. The Tribunal has relied upon A. Aslam's case (supra) and CWP No. 19928-CAT of 2002 (8) Primal Chandra Raha's case (supra), apart from the judgment of the Constitution Bench of the Hon'ble Supreme Court in State of Gujarat and another v. Raman Lal Keshav Lal Soni & others, (1983) 2 SCC 33, to the effect that one single factor may not be considered absolutely necessary to return a finding that an employee is a Government servant. Presence of all or some of the factors, such as, the right to select for the appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employee, the right to control the employee's manner and method of work, the right to issue directions and the right to determine and the source from which wages or salary are paid and a host of such circumstances may have to be considered to determine the existence of the relationship of master and servant. In view of the aforesaid judgment, it may not be decisive to determine the nature of status only on the basis of source from which salary is drawn by an employee. The Administration has appointed the Lecturers on adhoc and part time basis on fixed salary or on contractual basis to fulfil its Constitutional obligation of imparting education. Sanction to engage the Lecturers in such manner was given by the Director Public Instructions. After the posts were sanctioned by the Director Public Instructions, the Lecturers were appointed to discharge their teaching obligations in Government Colleges. Therefore, it is not possible to return a finding that the applicants are not holding a civil post and that Tribunal will not have the jurisdiction to entertain the application. The second question which arises for consideration is whether the appointment of the applicants is under the Punjab Rules. As mentioned above, all the applicants have been appointed on part CWP No. 19928-CAT of 2002 (9) time; adhoc or contractual basis in the year 1995 or thereafter. The appointments have been primarily made by sending requisition to the Employment Exchange. Though in some cases, it is pointed out that the appointments have made by the Principal of the College directly. In an earlier order dated 16.3.1998 passed by the Tribunal, the Administration was directed to fill up the posts of Lecturers strictly in accordance with the Statutory Rules. It was further directed that till then the applicants will not be replaced by any adhoc or contractual employees. The applicant Anupama Bhardwaj applied for regular appointment, but was not recommended. In fact, Ms. Ritu Pradhan was appointed as Lecturer in Food and Nutrition i.e. the post against which the petitioner applied. It is also pointed out that the applicant Anupama Bhardwaj was 27 years of age in the year 1996, though as per the Punjab Rules, the maximum age for appointment was 25 years. It was denied that even the procedure as contemplated under the Punjab Rules was followed before making appointments. To examine the question of appointment under the Punjab Rules, one needs to examine the historical background of the creation of Union Territory Chandigarh Administration. With the enactment of the Act, separate States of Punjab; Haryana and a Union Territory of Chandigarh, were carved out of the erstwhile State of Punjab. As per Section 88 of the Act, the provisions of part II of the Act, was not to effect any change in the territories to which any law in force immediately before the appointed day extends or applies and territorial references in any such law to the State of Punjab shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day. Section 89 of the Act contemplated that the appropriate Government may, before the expiration of two years from CWP No. 19928-CAT of 2002 (10) that day, by order, make such adaptations and modifications of the law whether by way of repeal or amendment as may be necessary or expedient and that every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority. Section 89 of the Act reads as under:- “89. Power to adapt laws.- For the purpose of facilitating the application in relation to the State of Punjab or Haryana or the Union Territory of Himachal Pradesh or Chandigarh of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority. Explanation. - In this section, the expression “appropriate Government” mean- (a) as respects any law relating to a matter enumerated in the Union List, the Central Government; and (b) as respects any other law, - (i) in its application to a State, the State Government and (ii) in its application to a Union Territory, the Central Government.” In Zaverbhai Amaidas v. State of Bombay, AIR 1954 SC CWP No. 19928-CAT of 2002 (11) 752, it has been held that when there is a legislation covering the same field, by the Centre as also by the Province, the Central Legislation shall prevail over that of the State. The principle on which the rule of implied repeal rests, is that if the subject matter of the latter legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the latter one. In State of Orissa and another v. M/s M.A. Tulloch and Co. and another, AIR 1964 SC 1284, it was held that repealed enactment is to be considered, except, as past and closed transaction as if it had never existed. It was held to the following effect:- “(20) Before proceeding further it will be convenient to clear the ground by adverting to two matters: (1) the effect of a Central Act under its exclusive legislative power which covers the field of an earlier State Act which was competent and valid when enacted is not open to doubt. The Parliamentary enactment supesedes the State Law and thus it virtually effects a repeal, (2) the effect in law of a repeal, if it is not subject to a saving as is found in S. 6 of the General Clauses Act is also not a matter of controversy. Tindal, C.J., stated this in Kay v. Goodwin, (1830) 6 Bing 576 at p. 582:- “I take the effect of repealing a statute to be to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were CWP No. 19928-CAT of 2002 (12) commenced, prosecuted and concluded whilst it was an existing law.” It was the same idea that was expressed by Lord Tenterden in Surtees v.Ellison, (1829) 9 B and C 750 at p. 752:- “It has long been established that, when an Act of Parliament is repealed, it must be considered (except as to transactions past and closed) as it it had never existed.” Later while examining the question whether Section 6 of the General Clauses Act, 1897, dealing with the expressed repeal of an earlier statute, would be applicable in respect of implied repeal, the Court held to the following effect:- “Now, if the legislative intent to supersede the earlier law is the basis upon which the doctrine of implied repeal is founded could there be any incongruity in attributing to the later legislation the same intent which S. 6 presumes where the word `repeal' is expressly used. So far as statutory construction is concerned, it is one of the cardinal principles of the law that there is no distinction or difference between an express provision and a provision which is necessarily implied, for it is only the form that differs in the two cases and there is no difference in intention or in substance. A repeal may be brought about by repugnant legislation, without even any reference to the Act intended to be repealed, for once legislative competence to effect a repeal is CWP No. 19928-CAT of 2002 (13) posited, it matters little whether this is done expressly or inferentially or by the enactment of repugnant legislation. If such is the basis upon which repeals and implied repeals are brought about it appears to us to be both logical as well as in accordance with the principles upon which the rule as to implied repeal rests to attribute to that legislature which effects a repeal by necessary implication the same intention as that which would attend the case of an express repeal. Where an intention to effect a repeal is attributed to a legislature then the same would, in our opinion, attract the incident of the saving found in S. 6 for the rules of construction embodied in the General Clauses Act are, so to speak, the basic assumptions on which statures are drafted.” It is not disputed that the Rules as notified on 21.2.1991, have been framed by the authority competent to make the Rules in respect of the employees of the Chandigarh Administration. It is by virtue of Section 89 of the Act, the Punjab Rules continued to apply to Union Territory, Chandigarh. The appointments under the Rules could not be made on account of dispute regarding eligibility qualification for appointment. There cannot be two different sets of Rules on the same subject. It is not in dispute that Punjab Rules and the Rules, both relate to recruitment of Lecturers in the College cadre. Once, the the legislative powers have been exercised by the competent authority in respect of appointments of the Lecturers in the Chandigarh Administration, the Punjab Rules are impliedly repealed. Once the Punjab Rules are deemed CWP No. 19928-CAT of 2002 (14) to have been repealed, therefore, the same cannot be relied upon except if permissible and to the extent admissible under Section 6 of the General Clauses Act, 1897. Therefore, since the applicants were appointed in the year 1995 or later, the applicants cannot take advantage of the Punjab Rules at all. The judgments Gagon Inder Kaur's case and Sumangal Roy's case (supra) , arise out of the cases where appointments were made when admittedly the Punjab Rules were in force. It was held that the appointments are deemed to be regular. But in the present case, the appointments have been made much after promulgation of Rules, therefore, the applicant cannot rely upon the Punjab Rules, to assert that their appointments have been regularly made. The matter can be examined from a different angle as well. The appointments of the applicants as contractual, adhoc or part time Lecturers were made in the year 1995 or thereafter. At