C.M. No. 2880 of 2010 and LPA No. 972 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. No. 2880 of 2010 and LPA No. 972 of 2010 Date of decision: 13.08.2010 Union of India and others ….. APPELLANTS VERSUS Dr. Mohd. Munis s/o Late Mohd. Hanif and others ….. RESPONDENTS CORAM:HON’BLE MR. JUSTICE JASBIR SINGH HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Sanjay Goyal, Advocate, for the appellants. *** AUGUSTINE GEORGE MASIH, J. C.M. No. 2880 of 2010 This application is for condonation of delay of 87 days in filing the accompanying Appeal. For the reasons mentioned in the application, delay in filing the appeal is condoned. C.M. stands disposed of. LPA No. 972 of 2010 This appeal has been preferred by the appellants challenging the order dated 19.03.2010 passed by the learned Single Judge, whereby the appointment of Zubair Shadab (respondent No. 6 in the writ petition) was set aside on the ground that he was ineligible being overage and C.M. No. 2880 of 2010 and LPA No. 972 of 2010 2 directing the appellants to appoint the petitioner (respondent No. 1 herein) in his place at Patiala from the date, the appointment was granted to respondents No. 4 to 6 in the writ petition and that the petitioner shall not be entitled to any wages for the period he has not served with the appellants. A further direction was issued to appellant No. 3 to have a proper policy evolved for the method of recruitment and not engage in questionable practices of periodically extending contractual employment and terminating the service of persons only to be replaced by a fresh batch of contractual appointees. The petitioner or such like persons shall retain the post so long as such posts are available and they shall not be replaced yet again by contractual employment. Counsel for the appellants submits that as regards the setting aside of the appointment of Zubair Shadab (respondent No. 6 in the writ petition) and the appointment of petitioner-Mohd. Munis (respondent No. 1 herein) in his place for the remaining period of the contract, the appellants have not laid any challenge. However, challenge has been laid to the later part of the directions, wherein the Court had directed Northern Regional Language Centre, Punjabi University Campus, Patiala-appellant No. 3 to have a proper policy evolved for the method of recruitment and directions thereafter. He submits that appellant No. 3 appoints Resource Persons (Academic) on need basis as per the requirement of the appellants. The engagement as Guest Lecturer/ Resource Person is purely on daily rate basis and the payment is made on the basis of the number of working days the persons put in. The appointment is made from session to session depending upon the number of students opting for that particular field. It does not bestow any right upon the persons, so engaged, for continuation C.M. No. 2880 of 2010 and LPA No. 972 of 2010 3 of engagement till regular persons are appointed. This appointment is also not on contract basis and the incumbent is paid honorarium. The intent and purpose of the appointment on session to session basis is to give an opportunity to the organization to engage suitable qualified and experienced candidates and simultaneously avoid to legitimize right to appoint merely on the basis of being in service. He, on this basis, contends that the directions issued by the learned Single Judge, vide the impugned order, cannot be sustained and deserve to be set aside. Reliance has been placed by the counsel for the appellants on the judgment of the Hon'ble Supreme Court in the case of State of U.P. and another vs. Ram Adhar, 2008 AIR (SC) 3243. We have heard the counsel for the appellants and have gone through the impugned judgment of the learned Single Judge as well as the records of the case. It is not in dispute that the appointment, on session to session basis, is made on pure merit basis meaning thereby that the appointment is after issuance of a proper advertisement and a proper selection process. It is incorrect that the appointment made on session to session basis is not a contractual employment. All eligible candidates, as per the merit, are appointed and, therefore, unless the work and conduct of the appointee is not found to be satisfactory, there is no justification of replacing one contractual employee with another. The directions issued by the learned Single Judge, as mentioned in para-5 of the judgment, which have been impugned by the appellants, read as follows:- “ The 3rd respondent shall have a proper policy evolved for the method of recruitment and not engage in questionable C.M. No. 2880 of 2010 and LPA No. 972 of 2010 4 practices of periodically extending contractual employment and terminating the service of persons only to be replaced by a fresh batch of contractual appointees. The petitioner or such like persons shall retain the post so long as such posts are available and they shall not be replaced yet again by contractual employment.” These directions do not, in any manner, change the nature of appointment of the employees. It only reiterates the well settled principle of law that a contractual employee cannot be replaced by another contractual employee as it results in indulgence in unfair practice in dispensing with the service of the contract employee to be replaced by another contract employee. The learned Single Judge, vide his order, had not, in any manner, directed the appellants to make appointment on regular basis nor is there any direction that the contractual employee would continue till he is replaced by a regular employee. The judgment relied upon by the counsel for the appellants in the case of State of U.P. and another vs. Ram Adhar (supra) was a case where a Stenographer was appointed on a post on ad-hoc basis for a period of three months, which time was extended twice and ultimately when the test was held, the employee participated in the said test but failed. Apprehending termination, the employee filed writ petition before the High Court where he was allowed to continue till regularly selected candidate joins the post. Therefore, factually the employee was not selected on merit but his appointment was made merely on some recommendation. It is in those circumstances that the Court held that appointment on ad-hoc basis for a fixed period, does not entitle an C.M. No. 2880 of 2010 and LPA No. 972 of 2010 5 employee to continue till regular appointment is made. There is no similarity of facts with the facts of the above- mentioned case and the present case. What has been directed by the learned Single Judge is not to periodically extend contractual employment and replace the already working contractual employees by terminating their services by a fresh batch of contractual appointees so long as the post dependent on the availability of work exists. We do not find any justification to interfere in the order passed by the learned Single Judge. However, it is clarified that the directions, as issued by the learned Single Judge in para-5 of the judgment which have been impugned herein, shall not confer any absolute right on respondent No. 1 or such like persons who had been appointed on contractual basis, to continue and their service can be terminated/discontinued in case the work and conduct of such an employees is not found satisfactory. Appeal stands dismissed with above clarifications. ( JASBIR SINGH ) ( AUGUSTINE GEORGE MASIH ) JUDGE JUDGE August 13, 2010 pj