CWP No.15907 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CWP No.15907 of 2010 Date of decision: 08.08.2011 Smt. Parvinder Mohindru ........ Petitioner Versus Shri Mata Mansa Devi Shrine Board, Panchkula and others .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Dr. Balram Gupta, Senior Advocate with Mr. Shireesh Gupta, Advocate for the petitioner Mr. Deepak Jindal, DAG, Haryana for the respondent State Mr. Kuldeep Singh, Advocate for Mr. G.S. Hooda, Advocate for respondent No. 3 -.- 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? Nirmaljit Kaur, J. The petitioner through the present writ petition is seeking regularization of her service with effect from 23.01.2001 with further prayer to re-fix her pay and emoluments in pursuance to her regularization. The grievance of the petitioner is two fold: CWP No.15907 of 2010 2 Firstly, she was granted continuity in service from the year 1998. The petitioner was, thus, eligible to be regularized under 2003 policy as she has completed three years. Secondly, the petitioner has also completed 10 years of service and is even otherwise entitled to be regularized in pursuance to the judgment rendered by the Apex Court in the case of Secretary, State of Karnatka and others v. Uma Devi and others, 2006 (3) RSJ, 572. The facts, in short, are that the respondents Board had issued public notice dated 22.06.1998 calling upon the applications for appointment to the post of Accountant in the regular pay scale of Rs.1400- 2600. The post was advertised to be filled on regular basis and the respondents Board followed the procedure for making regular appointment i.e. Constitution of Selection Committee etc. The petitioner being fully eligible for the post of Accountant as she possesses the qualification of B.com. and had the requisite experience of working duly applied. The interview were held on 27.08.1998. The Selection Committee interviewed 8 candidates who appeared at the time of interview. One Shri Sanjiv Ghai was placed at serial No. 1 and the petitioner was placed at No. 1 in the waiting list by the Selection Committee. It was, however, discovered that Shri Sanjiv Ghai was not fulfilling the condition of experience as he failed to submit the requisite documents. Consequently, the petitioner was placed at serial No. 1 in the category of selected candidates. Even though, the said post was sanctioned post in the regular pay scale of Rs.1400-2600, the petitioner for the reasons best known to the respondents Board, was given appointment for a period of 89 days only. CWP No.15907 of 2010 3 However, the petitioner being in dire need of the job, submitted her joining report on 24.10.1998. Finally, the petitioner filed Civil Writ Petition 13136 of 2000 seeking direction to the respondents to treat her as regularly appointed with effect from 23.10.1998. However, the respondents, during the pendency of the writ petition, terminated the services of the petitioner vide order dated 21.05.2001. The petitioner was forced to file another Civil Writ Petition No. 13612 of 2001, praying for quashing of the termination order dated 21.05.2001. Both the aforesaid writ petitions were allowed and the termination order was set aside by observing as under: “The termination of the petitioner's service vide order dated 21.05.2001, Annexure P-11, is not sustainable in law and is hereby quashed. As a consequence of the quashment of the order of termination, petitioner is entitled to be reinstated in service forthwith. It is settled law that an ad hoc and temporary employee can not be replaced by another ad hoc/temporary employee. Respondent's case is not that they do not require the accountant at all or that they have no intention to fill up the vacancy at all. To the contrary, respondents have issued another advertisement to fill up two posts of Accountants on ad hoc/temporary basis. Hence, it can be safely concluded that there is requirement of Accountant with the respondent-Board. They can not be permitted to replace the petitioner by any other temporary/ad hoc arrangement. Therefore, petitioner shall be allowed to continue in service till the post is filled up on regular basis and/or petitioner is regularized in accordance with law.” However, the question of regularization was left open with the following observation:- CWP No.15907 of 2010 4 “In so far as the right and claim of petitioner for regularisation is concerned, Hon'ble Supreme Court in Umadevi's case (supra) has issued direction to consider the cases for regularisation of such of the employees who have completed more than ten years of service and whose initial appointment was not illegal by a duly constituted committee as a one time exception. This petitioner was duly selected but has not completed ten years of service but in view of her selection by the competent authority, she is entitled to be considered for regular appointment as and when regular appointment is made for the post in question. In the event, she has crossed the upper age limit or may cross the age at the time of regular appointment, her age shall be relaxed.” The petitioner was reinstated in service in pursuance to the judgment dated 22.08.2007 passed in CWP No. 13136 of 2000 and was also granted continuity in service vide order dated 05.01.2009. Inspite of various requests and representations, the respondents have not still taken any decision qua regularization of the petitioner and is being delayed for the one reason or the other. While contesting the present writ petition, learned counsel for the respondents submitted that :- a) The respondents have already withdrawn the 2003 Policy of regularization of services of Adhoc/contractual/daily wage and part time workers vide circular letter dated 25.04.2007, copy thereof has been placed on record as R1. b) The petitioner is continuing in service in pursuance to the judgment dated 22.08.2007 in CWP No. 13136 of 2000 and since the respondents have not filled up the post on regular basis, the petitioner has CWP No.15907 of 2010 5 no right and his application for regularization will be considered as per the draft Service rules/instructions. c) Lastly, it was further stated that in view of the judgment rendered by the Apex Court in the case of Secretary, State of Karnatka and others v. Uma Devi and others, 2006 (3) RSJ, 572, the petitioner has no right to be regularized in service. Heard. After passing of the judgment dated 22.08.2007 in CWP No. 13136 of 2000, the respondents Board vide order dated 05.01.2009 granted continuity in service to the petitioner, which reads as under:- “As the Hon'ble High Court vide judgment dated 22.08.2007 quashed your termination order dated 21.05.2001, so you are entitled to continuity in service. However, you will not be entitled to emoluments during the period you remained out of service.” The consequences of the passing of the above order resulted in the petitioner completing three years eligibility period as required for regularization of the service under the 2003 Policy. As per the 2003 policy, placed on record as P-10:- “ Adhoc Employees/Contract Employees:- (i) that only such Adhoc/Contract employees who have completed three years service on 30th September, 2003 and were in service on that date should be made regular. If the break in service of an adhoc/contractually employed person has been caused for no fault attributable to him, such break period should be condoned unless it is of an extraordinary longer period i.e. not more than six months. However, if the break in CWP No.15907 of 2010 6 service has been caused due to fault of the employee like abandonment of employment, the Government may not condone the same if the period of such break is more than a period of 30 days.” The petitioner was appointed on 23.10.1998. The official respondents themselves granted continuity in service to the petitioner with effect from 21.05.2001 to the date of reinstatement in service. It is not denied that the services of almost 23 employees were regularized by the Board under this Policy. It has not been denied that the petitioner is working against the sanctioned post of Accountant in the regular pay scale. It is also an admitted position that the petitioner was duly selected by a proper and competent Selection Committee vide a proper selection procedure under the rules. Thus, the petitioner was selected by the competent authority and was entitled to be considered for regular appointment. The note dated 24.02.2009 of the legal adviser is relevant as it gives the true picture of the facts as per records of the respondent department. In fact, it is opined by him that the selection of the petitioner was proper and it was a selection against a regular post and it was illegal to convert the regular post to contractual one while appointing the petitioner. The relevant part of the same reads as under:- “There is nothing on the file to reveal what transpired between the then C.E.O. and Worthy Financial Commissioner and Principal Secretary, Haryana once the post is advertised to be filled on regular basis and the candidate has been selected by the duly constituted committee then he/she acquires legal rights. The office was not competent to convert this regular post to CWP No.15907 of 2010 7 contractual post as is clear at Flag C (Statement showing Class III and IV posts sanctioned by Board.)” The only argument raised by respondents as the objection taken by the respondents in their written statement is that the Policy 2003 has since been withdrawn vide order dated 25.04.2007. The said objection cannot be sustained inasmuch as the respondents had granted continuity in service w.e.f. 21.05.2001 vide order dated 05.01.2009. As such, in pursuance to the order granting continuity in service, the petitioner had completed three years of service on 23.10.2001 and another three years on 22.10.2004 after coming into force of the 2003 policy, whereas, the policy of 2003 was withdrawn as late as in the year 2007. The services of the similarly situated 23 employees were regularized under the said policy. Even otherwise, the petitioner is also entitled for regularization in terms of the judgment rendered by the the Apex Court in case Uma Devi (supra). This Court while considering the case of the petitioner has recorded as under:- In so far as the right and claim of petitioner for regularization is concerned, Hon'ble Supreme Court in Umadevi's case (supra) has issued direction to consider the cases for regularization of such of the employees who have completed more than ten years of service and whose initial appointment was not illegal by a duly constituted committee as a one time exception. This petitioner was duly selected but has not completed ten years of service but in view of her selection by the competent authority, she is entitled to be considered for regular appointment as and when regular appointment is made for the post in question. In the event, she has crossed the upper age limit or may cross the age at the CWP No.15907 of 2010 8 time of regular appointment, her age shall be relaxed.” As on date, the petitioner has completed 10 years of service. Thus, she is entitled for regularization being eligible on account of her having completed ten years of service both in terms of the judgment rendered by this Court on 22.08.2007 in CWP 13136 of 2000 as well as the judgment rendered by the Apex Court in the case of Uma Devi (supra). Moreover, it is admitted that the petitioner was selected by a duly constituted committee and by the competent authority. She has been granted continuity of service. She has therefore, completed ten years of service. It is also borne out from the record that the post was advertised to be filled up on regular basis against which the petitioner was selected on contract and the petitioner is already working against the same sanctioned post. In view of the above, the present writ petition is allowed and the respondents are directed to immediately consider regularization of the petitioner on the post of Accountant from the date when she completed ten years of service i.e. on 23.10.2008 and thereafter re-fix her pay and emoluments accordingly. (Nirmaljit Kaur) Judge 08.08.2011 mohan