85 1 5 IP IN THE HIGH COURT OF PUNJAB 8r HARYANA AT CHANDIGARH 1e CWP No 7358 of2010 DateofDecisionl 8A201 MohinderSinghandanother Petitioners Versus Tourism Corporation Ltd Through its MD 2 CWP No 1908of2010 Rakam Singh Petitioner Versus 1m7 j11 Haryana Tourism Corporation Ltd Through its M C01 0 3 CWP No 3451 of2010 y9e Naresh Kumar 8 others Petitioners mm f ll7t lie Versus 512 Tourism Corporation Ltd Through its MD 122 4 CWP No 3939 of2010 r BhoopSinghandanother Petitioners IXl 1C Versus X Tourism Corporation Ltd Through Cl its M Z CORAM HONBLE MRJUSTICE PERMOD KOHLI Cil Presentl Mr Ashok SharmaNabhewalaAdvocate for thepetitioners meo Z Mr AjaiJain Advocate for the ll t PERMOD KOHLI J ORALI The order dated 32009 is common in all these The grounds of challenge and the nature of grievance beingalso 1 similar all thesepetitions are being ofbythis common order is a Govt controlled and thus falls within the purviewof State under Article 12 of the and is amenableto thewrit jurisdiction of this Court Anita 2014.04.26 13: 16 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 86 1 t terCWPNo7358 of2010 m2 Petitionersin thesewrit petitions were as Job Trainee Waiters Counter Trainee Kitchen HelpersKitchen Trainee etc All the possess of matric and aboveplusDiploma branchesofHotel ManagementTheyWere enaed bW the lll 1991 to 1993 as lll variousbranchesin the corporatiOll as herein above Their was through written appointment containingidenticalconditions The terms of their engagement inter alia includea trainingperiodof 2 years om the date ofjoining extendablefor another 6 monthsin the event of failure to the training paymentof fixed stipendduringthe of trainingand rightof the to disengageif training1S Another relevant containedin the not found letter readsas underl oftraining it will not be obligatory on 3 On completion the part of the to 0Heryou any nor it will be on you to acceptany in the You will howeverbe fpost on the ofyour training 33 It is coinmon case ofthe parties that even thoughthe initial was for a periodof 2 yearson basisandextendableto 6 however the petitioners continuedeven the periodand haveworked between 7 to 8 years when their services were 1 ae with in theyear 1998 Someofthe on their andtheYWer takenbdck to service for a short whileand againrelievedfrom theduties Some of the alongwith situatedpersoils flled CWPNo 2921 of 1998 titled as other Kuldeep SinghandothersVs State ofHaryanaand others Similarwrit e Anita 2014.04.26 13: 16 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document l 87 CWP No 7358of2010 3 were flled bvarious other similarlysituated This writ petition was allowed vide dated 16999 and following directions were issuedl C 6 In the result thewrit petition is allowedand a direction to the to absorb 1 to 51 againstthe advertisedpostsif theyare for the same This direction will not applyin the case of petitionerno21who has since withdrawnfrom the oj case The will be at libertyto flll up the remainingvacant 016 the open marketas advertised No costs 3P m0W4 N4 c1 filed an LPA beingLPA No 866 of 1999 The 40 llc the oivision Bench of this Court The HOnble DiViSiO B C01 mmm 11 rnodifiedthe with the consent of the partiesThe modified 1 directionsare as under 2I5 to the standof the on facts 14 Without 11M1 11 alleged in theappealbyconsent the dated 04 0 I 6 1999is modijled to theextentthatthewrit petition wouldstandallowed W4 1 41 and a direction issued to the Corporatlonto consider the absorption ar05 1 51againstthe advertisedpostsif theyare eligiblefor er No l to n the same In theabove terms theappeal is 0 5 SIW4 m Sdl Arun B Saharya Cm 301999 ChiefJusticee Il One Virender who was also workingas a Job Trainee ftled CWP No 8117 of 2001 The matter was consideredby the C Honble FullBench of this Court and the writ petition was allowedwith a directionto the to takebackthe in service on the postthat he Was at the time when he was relievedon the that he was getting A further direction was issuedfor same Pursuantto the Anita 2014.04.26 13: 16 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 88 CWP No 7358of2010 4v aforesaid Virender Singhwas taken back in service with full back wages Another namelyHans RajYadav led CWP No 1964of 2001 which also came to be decided in the same manner vide dated2672006 It is admittedcase of theparties thatatlerthe were relieved from service the had issued advertisement m for direct recruitment on various posts advertised Under these Ll circumstancesvariouswrit petitions came to be flled 0 0 It is by the petitioners that after the aforementioned Z 5 about 100 waiters were absorbedby the who were juniorto the and were in the year 2000 Since the Z petitioners were not consideredfor absorptionanotherCWP No6993 of 8 e 2002 was flled in this Court Thispetition was also decidedvide C 8 dated2032007 titled as Dharamvir and othersVs State of Haryanaand r C3 othersby a learned SingleJudgeof this Court In this writ petitionthe 21 14 had also challenged the criteria adoptedby the for ClO 41 consideration for absorption of the petitioners and other similarlysituated 1 Z Learned SingleJudgeof this Court found thatone of the clause 2D Clp of the criteria was to the detriment of the petitionersAccordingly following directionswere issuec 44 in view the discussion held above thewrit petitionis ofwiththe directions to the toremove clause5from thecriterialaid down bythemand to make ofselectedWaiter Vd Traineesfromthe merit list preparedby them afterholdinglntenltew on 5121999 to theseniorityagainsttheavailablevacant postsand to keep the merit list intactfora periodof one yearfromtodayand to give them as and when thevacanciesarise March 20 2007 SdlSeNeAggarwaP Judge 11 Anita 2014.04.26 13: 16 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 1 89 CWP No 7358 of2010 5 After the passingof this thecorporation considered some of thepetitioners and vide order dated 13122007 ten personswere absorbedagainstthepostsof waiters The grievance of the petitioners 1S that their claimswere still not considered Petitioners continued to make Some of thepetitioners even flled contemptpetitionbeing COCP No244 of 1999and some ofthe filed CWP N016365 of 4am 1998 In COCP N01244 0f1999following order was passed 3 44 In view oftheabove the is disposed ofwitha 40l directionto the to considerthe case no313 and n 15 and other similarlysituated petitioners for absorption in the lightof Clll attached as Annexure P2 to 16 with CM No8197CII of c 200 G February022009 Sdl TePS Mann 21 Judgee 35 Il Ql As a consequenceof the aforesaiddirections the 44 22 considered the claim of thepetitioners and have now passed the C1 Z order dated382009 In the aforesaidorder the has considered t all the relied upon by the petitionersThe claim of the m 41 petitioners for absorption has been rejectedprimarilyon two grounds619 7 Z That in view of the Constitution Bench of the Honble Supreme Om Court in case of Secretary State of Kamataka Vs Unia Devi reported as 4 SCC 1the of the services of the petitioners who were not selectedby any valid procedure is in law 629That C1e in view of the of the Honble Division Bench of this Court dated 211O2008passedin CWP N011076 of 2007 titled as Dilawar SinghVs Officer Industrial TribunalecuLabour Court the petitioners who were engaged as Trainees are not workmen and thus theyare not r entitledto therelief of Se Anita 2014.04.26 13: 16 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 90 v CWP No 7358of2010 0 In the written statement filed by the a similar plea israised On facts it is statedthat the of thepetitioners as Job Trainees was not againstthe regular sanctionedposts It is hlrther stated thatit was in January1999 that the State Govt pemission for creation of 140postsofwaiters 83 postsofKitchen Helpers and 13 postsof CounterIncharge vide sanctlOll letterdated 271 1999 These postswere meant for direct recruitment for which an advertisementwas 111 thenewspaper on 2731999 for fillingup the postsofwaiters It is further stated that in response to the advertisement a number of candidates some Traineesapplied for thepostshowever in the meantimethe 105 I4 e 1Ill dated 1 6999 was delivered in CWP No 18474 of 1996 6k944 pv wherebydirection was issued to consider no 1 to 51 except c1 5 nol againstthe advertisedposts However the order was 0 431 modified in LPA No 866 of 1999 and insteadofdirectionto absorbit was hllCl C0 directedto consider them for absorptionThe have also 2 41 rnentionedthat in order to comply the a suitabilitycriteria was lD 4 laid downfor various posts The criteriahasbeendisclosedin thereplyIt Wa Z is statedthat some ofthe petitioners did not fulfill the tl essential whereasthe othersdid not gettherequisite marks as requiredtherefore they were declared unsuccessOll Some of the unsuccessfulcandidatesflled CWP No6993 of2002 challenging the criteria de and this writ petitionwas allowedwith certaindirections and the orderwas upheld in LPA No203 of 2007 Some review filed were also n 1 dismissed 4 Mr Shanna leamed counsel for the petitioners submitsthat the in UmaDevis case is not applicable in the presentcase as the Anita 2014.04.26 13: 16 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 91 V CWP No 7358of2010 7 were engagedmuch earlier in timeand even directionshavebeen issued in variouswrit petitions for ofthe petitionersIt is further contendedthatpersonswith similar havebeenabsorbed In para 8 of thereplyfiled bythecorporation the has statedthat thepetitioners do not have similar as in Virender Singhs case 1nreA the petitioners are out ofjobsince 1998 These S 0 01r writ petitionshave been filed in the year 2010 the impugned Cl C0 order dated3009 There isno disputethatpetitioners were engaged as 213 Co Trainees on fixed stipendwith a furtherstipulationthat theywill have no I1W2140 5Il2 claim for regularjob It is also not in disputethat the initial engagementof 54 21 thepetitioners as Trainees was without any advertisement or adopting any 4 10 procedure for to the publicservice As a matter of fact the 48 12 petitioners entrywas back door It is equallyprovedthatvarious directions 41L11 have been issued by this Court including Full Bench to W76 a rC 4150 consider the petitioners for Some of the writ petitioners have 0 41 been absorbed The petitioners were not partiesto the Full Bench 845140 8 Wlo 14 D1 thoughthey claim to be similarlysituated Right of tC2e consideration to the petitioners is granted vide orderpassedin the contempt petitionbeingCOCP No 1244of 1999 Petitioners claim hasbeen rejected vide the order One of the important question 1S whether the petitioners have C any rightof absorption 111the service of the It is indisputed that the ls a Stateand thus all the posts with the are partof thepublicemploymentItisnot in fact an absorption but a thattoo aftertheir serviceswere Anita 2014.04.26 13: 16 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 192 CWP No 7358of2010 8 v 1 with longback There is no specific whereunderthe have been directed to be absorbed vanous directions the claim of the petitioners can onlybe consideredin the lightof the directions issued by Honble Court in Constitution Bench in case of Secretary Stateof Kamatka Vs Uma Devi as 620069 4 SCC 1 upra9It is relevant to notethat some of the observations of the Honble SupremeCourt relating to the are as under 44 53 One aspectneeds to be clarifled There may be cases whereirregular 0zotillegal as lTl SN Narayanappa RN and N Nagarajan and referredto in para 15 above ofdulyqualified persons in dulysanctionedvacant posts mighthave beenmade and the have continuedto work for ten yearsor more but withoutthe interventionof ordef the courts or of tribunclls The of oftheservicesof such mayhave to be considered on meritsin the lightoftheprinciples settledby this Court in the cases above referredto and in the lightof thisjudgment In that context the Union of ImHa the State Governmentsand their shouldtake stepsto regularise as a oneime measure the servlces of such irregularly appointedwho have workedfor ten years or morein duly but not under cover ofordersofthecourts or of tribunals and should further ensure that regularrecruitments are undertaken tojlll thosevacant sanctionedpoststhatrequireto belilledup ln cases where temporary or daily wagers are beingnow The process must beset in motion within six monthsfromthis date We also clar that if any alreadymade but not sub ee judiceneed not be based on but thereshould be no furtherbypassingof the constitutional and regularising or permanentthose not du as per the constitutional scheme 73 Anita 2014.04.26 13: 16 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 93 CWP No 7358 of2010 4 The claim of the petitioners could best be considered in the light of the aforesaid The have accorded considerationand rejected their claim The petitioners havenot beenableto establishthat their initial engagement was and not illegal Asa matter of fact they were only Trainees on stipendbasis and their was against no post Posts were createdonlyin the year 1999 ma These postswere put to advertisement Ofcourse under the directionsofthe r Honble Division Bench of this Court some of the vacancies were utilized ICD 0 for of some of the candidates but that does not help the i2 45 petitioners to seek absorption even whentheir claims were rejected on their I consideration Even if there lS any specificdirection for their e Z consideration the samealso cannot be enforcedin view of the following r Q observationsof the Honble Supreme Court in case of Uma Devi supra9 Cr 12 whereinin para 54 it hasbeen held as under IllO 44 54 It is also clarifledthat thosedecisionswhich run counter Z t to the principlesettled in this decision or ln which directions running 10 counter to what we have held herein will stand denudedof their status as t precedents 33 um Z In view of the above circumstances it is not possibleto grant r reliefto thepetitioners These petitions are accordingly dismissed Copyofthis order beplaced on eachconnectedflle C 9 Q0cc 4 PERMOD KOHLII JUDGE gA2011e l Whetherto be Yes l4 1 Anita 2014.04.26 13: 16 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document