j 424 5 J 4 IN THE HIGH COURT OF PUNJAB c HARYANA AT r CHANDIGARH 1 1 CWP No 7358 of2010 DateofDecisionl 8A2011 NlohinderSinghandanother aPetitioners Versus Haryana Tourism Ltd Through its MD 2 CWP No 1908of2010 RakamSingh ePetitioner m Versus 1 r Haryana Tourism Ltd Through its MD 0 0 3 CWP No 3451 of2010 I Naresh Kumar 8r others Petitioners C5 Versus I HaryanaTourism Corporation Ltd Through its MD Respondents Z 4 CWP No 3939of2010 2 r BhoopSinghand another Petitioners Versus I Haryana Tourism Ltd Through itsM Respondents Z CORAM HONBLE MRJUSTICE PERMOD KOHLI C Present Mr Ashok SharmaNabhewala Advocate for thepetitioners ev Z Mr AjaiJain Advocate for the 4S8 PERMOD KOHLIJ ORALI The order impugned dated 382009 is common in all these J petitionsThe grounds of challenge andthe nature of grievance beingalso similar all thesepetitions are beingdisposed of bythis common order RespondentlS a Govt controlled corporationand thus definitelyfalls within the purviewof State under Article 12 of the 1 Constitution and is amenableto thewrit jurisdiction of this Court Anita 2014.05.15 12: 30 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:54 I attest to the accuracy and integrity of this document 425 CWP No 7358 of2010 2 Petitionersin thesewrit petitions were as Job Trainee WaitersCounter Incharge Trainee Kitchen HelpersKitchen Trainee etc All the possess of matric andaboveplusDiploma variousbranchesof Hotel Theywere betweenthe in years1991 to 1993 as in various branches in the corporationas mentionedherein above Their engagement was through written letterscontaining identicalconditions The terms of 0 theirengagement inter alia include a trainingperiodof2 yearsfrom the date 0 0 of joining extendable for another 6 months in the event of failure to I 40 the training paymentof flxed stipendduringthe I period of trainingand rightof the to if training1S Z not found Another relevant containedin the letter readsas under 0 I 3 On of trainingit will not be on thepart of the management to ofr you any nor it will be Z on you to acceptany in the CorporationYou will howeverbe on same subjectto the rio ofposton the ofyoursuccessful training Ip e Z It is common case of the partiesthat even thoughthe initial was for a periodof 2 yearson trainingbasisand extendableto 6 monthshowever the petitioners continued even beyondthe StiPUlatd periodand have worked between 7 to 8 years when their services were ea dispensed with in the year 1998 Someofthe petitioners on their and theywere taken back to service for a short whileand againrelievedfrom the duties Someofthe petitioners alongwith other situated persons filed CWP No 2921 of 1998 titled as Singhand othersVs StateofHaryana and others Similarwrit Anita 2014.05.15 12: 30 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:54 I attest to the accuracy and integrity of this document 1 426 CWP No 7358 of2010 3 P were filed byvarious othersimilarly situated This writ petitionwas allowed vide dated 1 6999 and following directions were issued r4 6 In the result the writ petitionis allowedand a direction issued to the corporationto absorb petitioners1 to 51 againstthe advertisedpostsif theyare eligiblefor the same This direction will not applyin the case ofpetitionerno21 who has since withdrawn from the 1 case Thecorporation will be at libertyto flll up the remainingvacant the open marketas advertisedNocosts 1P 0 The filed an LPA beingLP No 866 of 1999 O I beforethe Division Bench of this Court The Honble Division Bench 40 I moditled the with the consent of the partiesThe modified directionsare as underl 46 Withoutprejudice to the stand of the respondents on facts C in the appealbyconsent ofparliesthe dated I 16 1999 is modijied to the extent thatthe writ petitionwould standallowed C1 and a direction issued to the to consider the absorption Z Nol to 51 againsttheadvertisedpostsif theyare eligiblefor 0 thesame In theaboveterms theappeal is disposed of wn Z 301999 Sdl Arun BeSaharya Chief Justicee 53 One Virender Singhwho was also workingas a Job Trainee Waiterfiled CWP No 8117 of 2001 The matter was consideredby the C HonbleFull Bench of this Court and the writ petitionwas allowed with a direction to the to takeback thepetitioner in service on thepostthat 1 was holdingat the time when he was relievedon the sameemolumentsthat hewas gettingA further direction was issued for ofback wagesfrom the datehe was relieved Pursuantto the Anita 2014.05.15 12: 30 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:54 I attest to the accuracy and integrity of this document 427 CWP No 7358 of2010 e4 A6 aforesaid Virender Singhwas takenback in servicewith full backwages namelyHans Raj Yadav Oled CWP No 1964of 2001 which also came to be decidedin the same manner vide dated2672006 It is admittedcase of theparties that afterthe were relievedfrom service the had issuedadvertisement for direct on various posts advertised Under these tr variouswrit petitions came to be ftled 0 0 It is by the that after the aforementioned I about 100 waiters were absorbedbythe corporation who were t5 I juniorto the and were in the year 2000 Since the Z petitioners were not consideredfor anotherCWP Nof0993of 2002was filed in this Court Thispetition was also decidedvide C dated 2032007 titled as Dharamvirand others Vs Stateof Haryanaand I othersby a learnedSingleJudgeof this Court In this writ petitionthe Z had also the criteria adoptedby the for 00 consideration forabsorption of the petitioners and other similarlYSitUated wma Z Learned SingleJudgeofthis Court foundthat one ofthe clause Qm of the criteria was to the detriment of the Accordingly following directionswere issuedl 66 in view the discussion held above the writ petUimis ofwiththe directions to the to remove clause5jom thecriterialaid down bythemand to make ofselectedWaiter 4aee Traineesfromthe merit list preparedby them afterholdingintervtew on 5121999 to theseniorityagainstthe availablevacant postsand to the merit list intactfor a periodof one yearfromtodayand to give them appointmentzs and whenthe vacanciesarise March 20 2007 SdlmSeN Aggarwal Judgee 25 Anita 2014.05.15 12: 30 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:54 I attest to the accuracy and integrity of this document 428 67 r CWP No 7358 of2010 5 91 After the passing of this the considered some of the petitioners and vide order dated 1322007 ten persons were absorbedagainst the postsof waiters The grievance of the petitioners 1S that their claims were still not considered Petitioners continuedto make Some of thepetitioners even filed contemptpetitionbeing COCP Nol244 0f1999 and some ofthe filed CWP No365 of m 1998 In COCP Nol244 of 1999following order was passed Cl Ci In view oftheabove thepresentpetitionis disposed ofwitha 0 directionto the to consider the case no13 and 0 I 15 and other similarlysituated petitioners for in the lightof C5 attached as Annexure Pe2 to P6 with CM No8197aCII of I 200 February022009 Sdl TePeS Mann Z Judge 55 r As a consequenceof the aforesaid directions the I considered the claim of thepetitioners and have now passed the impugned Z order dated382009 In the aforesaidorder thecorporation has considered 4 all the relied upon by the petitionersThe claim of the 0 petitioners for absorption has been rejectedprimarilyon two groundsl9 3 Z That in view of the Constitution Bench of the Honble Supreme Court in case of SecretaryStateof Karnataka Vs Uma Devi as 620069 4 SCC lthe of the services of the petitioners who were not selectedby any valid procedure is in law 629That eL in Vlew ofthe Honble Division Bench ofthis Coun dated 2102008 passedin CWP N011076 of 2007 titled as Dilawar SinghVs PresidingOfficer Industrial TribunallnLabour Court the petitioners who were engaged as Trainees are not workmen and thus theyare not entitledto the relief of Anita 2014.05.15 12: 30 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:54 I attest to the accuracy and integrity of this document 429 1 1 CWP No 7358 of2010 m In thewritten statement filed bythe a similarplea 1Sraised On facts it is statedthat the of thepetitioners as Job Traineeswas not against theregularsanctionedposts It is 8irtherstated thatit was in January1999 that the State Govt for creation of 140 postsofwaiters 83 postsofKitchen Helpers and13 postsof Counter vide sanctionletter dated 2711999 These postswere 1 meant for direct recruitmentfor which an advertisementwas 111 C the newspaperon 273999 for fillingup thepostsofwaiters It is 8lrther 0 0 stated that in response to the advertisement a number of candidates I some Trainees appliedfor the postshowever in the meantimethe C5 I dated 1 6999 was delivered in CWP No 18474 of 1996 Z direction was issued to consider no to 51 eXCePt no21 againstthe advertisedposts However the order was modifiedin PA No 866 of 1999 and insteadofdirectionto absorbit WaS I t3 directed to consider them for absorptionThe have also Z mentionedthat in order to comply the a suitability crlteria was CO laid down forvarious posts The criteriahasbeendisclosedin the replYeIt 7 Z 1S statedthat some of thepetitioners did not fulfill the requisite m essential whereasthe othersdid not gettherequisite marks as therefore they were declaredunsuccessful Some of the candidatesfiled CWP No6993 of2002 challenging the criteria 1 andthis writ petition was allowed with certain directions and the order was in LPA No203 of2007 Some review flled were also dismissed Mr Shannalearnedcounsel for thepetitioners submitsthat the in Uma Devis case is not applicable in thepresent case as the Anita 2014.05.15 12: 30 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:54 I attest to the accuracy and integrity of this document 430 1 CWP No 7358 of2010 7 IA were engaged much earlier in time and even directionshave been issued in various writ petitions for absorption of the It is nher contended that personswith similar havebeen absorbed In para 8 of the replyfiled bythe the has statedthat the do not havesimilar as in Virender Singhscase Admittedlythe petitioners are out ofjob since 1998 These wnt petitions have been filed in the year 2010 challenging the 0 0 order dated 82009 There is no disputethatpetitioners were as I C5 Traineeson flxed stipendwith a further stipulation that theywill have no I claim for regularjob It is also not in disputethat the initial engagement of Z the petitioners as Trainees was withoutany advertisementor adopting any procedure for to the publicservice As a matter of fact the I petitioners entrywas backdoor It is equallyproved that various directions r have been issued by this Court includinga Full Bench to Z consider the petitioners for Some of the writ petitioners have CO been absorbed The petitioners were not partiesto the Full Bench W2 Z thoughthey claim to be similarlysituated Right of tl consideration to thepetitioners is granted vide orderpassed in thecontempt petition beingCOCP No 1244of 1999 Petitioners claim hasbeen rejected vide theimpugned order One of the important questionis whether the petitioners have 4 anyrightof in the service of the It is indisputed that thee is a Stateand thus all the posts with the are partofthe public It is not in fact an absorption but a thattoo aftertheir serviceswere 1 Anita 2014.05.15 12: 30 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:54 I attest to the accuracy and integrity of this document r 431 1 1 CWP No 7358of2010 8m with longback There IS IlO specific whereunderthe have been directed to be absorbed vanous directionsthe claim ofthepetitioners can onlybe consideredin the lightof the directions issued byHonble Supreme Court in ConstitutionBench in case of Stateof KarnatkaVs Uma Devi as 20069 4 SCC l supralIt is relevant to note that some of the observations of the Honble SupremeCourt relating to the 1 Q are as underl 0 66 53 Oneaspectneeds to be claried There may be cases 0 I where ot illegal as ln C5 S14 RN and BlV Nagarajanand referredto I inpara 15 above of dulyqualijled persons in dulysanctionedvacant posts might have been made and the have continuedto work for ten Z yearsor more but withoutthe intervention of order of the courts or of tribunalsThe questionof of thesenlices ofsuch mayhave to be consideredon meritsin the lightoftheprinciples settledby t this Court in the cases above to and in the lightof thisjudgment Z In thatcontext the Union of India the State Governments and their CO shouldtakestepsto as a oneetimemeasure the servlces ofsuch who have workedfor ten years or em3 Z morein duly but not under cover ofordersofthecourts or of tribunals and shouldfurtherensure that regularrecruitments are tojll thosevacant that require to bejilledup in cases where temporary or daily wagers are beingnow employedThe process must beset in motion within six monthsfromthis date We also clarifthat if any alreadymade but not sub e judiceneednot be reopened based on but thereshouldbe no furtherbypassingof the constitutional and regularising or permanentthose not duly as per the constitutional scheme P5 Anita 2014.05.15 12: 30 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:54 I attest to the accuracy and integrity of this document 432 1 1 CWP No 7358 of2010 ee9 V The claim of the petitioners could best be consideredin the light of the aforesaid The have accorded considerationandrejected their claim The petitioners have not beenable to establishthat their initial engagement was irregular and not illegal As a matter of fact theywere only Trainees Oll stipendbasis and their was against no post Posts were createdonlyin the year 1999 1 These postswere put to advertisementOf courseunder the directions ofthe Honble Division Bench of this Court some of the vacancieswere utilized 0 0 for of some of the candidates but that does not help the I C5 petitioners to seek even whentheir claims were on their I consideration Even if there lS any specificdirection for their Z consideration the samealso cannot be enforcedtn view of the following r observationsof the Honble Supreme Court ln case of Uma Devi 6supra I wherein in para54 it hasbeenheld as under r 44 54 Itis alsoclarifiedthat thosedecisionswhich run counter Z to the principlesettled in this decision Or ln which direclions running 0 counter to what we have held herein will stand denudedof their status as precedents 31 17 Z In view of the above circumstances it is not possibleto grant reliefto thepetitioners Thesepetitions are accordingly dismissed Copyof thisorder beplacedon eachconnectedfile C 9 tJ e PERMOD KOHLII JUDGE g20110 lucky L Whether to be Yes ls Ill Anita 2014.05.15 12: 30 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:54 I attest to the accuracy and integrity of this document