IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 18755-CAT of 2006 Date of Decision: July 1, 2008 Tripta Devi and others …Petitioners Versus Secretary, Department of Excise and Taxation, Union Territory, Chandigarh and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MRS. JUSTICE SABINA Present: Mr. Rajeshwar Singh, Advocate, for the petitioners. Ms. Jaishree Thakur, Advocate, for the respondents. M.M. KUMAR, J. This order shall dispose of C.W.P. Nos. 18755-CAT of 2006 and 5403-CAT of 2007. In both the cases, order dated 6.10.2006, passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, ‘the Tribunal’) is subject matter of challenge. Out of the total four persons, who have filed O.A. No. 820-CH of 2005, three have filed C.W.P. No. 18755-CAT of 2006 whereas one person has filed C.W.P. No. 5407-CAT of 2007. The Tribunal has rejected the prayer of the petitioners for issuance of direction to the respondents to regularize their services by keeping in view the policy dated 23.1.2001 (P-5) framed by the State of Punjab C.W.P. No. 18755-CAT of 2006 as applicable to the Union Territory of Chandigarh and for grant of regular pay scale. 2. Brief facts of the case are that in the year 1997 the respondents sent a requisition to the Employment Exchange for filling up the posts of Clerk. Thereafter the names of the petitioners were recommended for appointment to the posts of Clerk by the Selection Committee constituted by the respondent department, vide Memo. No. 9373, dated 24.6.1997. Consequently, the petitioners were appointed on contract basis on a fixed salary of Rs. 2,000/- per month. A copy of the appointment letter, dated 16.9.1997, has been placed on record as Annexure P-2. 3. The petitioners earlier filed O.A. No. 620-CH of 1999 before the Tribunal alleging that they were sought to be replaced by the respondent department by fresh ad hoc/contractual employees. On 31.5.2000, the OA was allowed and a direction was issued to the respondents not to terminate their services by replacing them by other ad hoc/temporary employee. It was further directed that the petitioners were to continue to work till such time the work was available or regular selected candidates are appointed on the posts held by the petitioners. The petitioners sent a representation on 3.9.2003 again seeking regularization of their services in the light of the policy dated 23.1.2001 (P-5). However, the petitioners were not granted regular pay scale nor their services were regularized. On 13.12.2005, four posts of Clerks were advertised to be filled up on regular basis. One of the post was meant for General Category, two posts were reserved for OBC and one post for Ex-serviceman. 2 C.W.P. No. 18755-CAT of 2006 Apprehending termination of their services, the petitioners filed O.A. No. 820-CH-2005. However, the O.A. was dismissed by the impugned judgment on 6.10.2006 (P-17), on the basis of the judgment of Hon’ble the Supreme Court rendered in the case of Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1. 4. It is appropriate to mention that during the pendency of the instant petitions, C.M. No. 4982 of 2007 in C.W.P. No. 18755- CAT of 2006, was filed by the petitioners for issuance of interim direction restraining the respondents from terminating their services because in terms of the direction issued by the Tribunal, the respondents had conducted a regular process of selection, which was likely to result into replacing the petitioners, who were working as Clerks on daily wage basis or contract basis. The application was dismissed on 5.4.2007 by holding that the principle of ‘last come first go’ was not applicable as the petitioners did not belong to the same category of personnel who were inducted in service after the petitioners. The category of the petitioners has been separate and distinct from that category of Clerks deputed by the service provider to discharge duties who could not be deemed to be employees of Chandigarh Administration. 5. We have heard learned counsel for the parties. It is undisputed fact that the petitioners were inducted in service as Clerks on contractual basis and the procedure adopted for their appointment was entirely different than the one prescribed for selection of regular hands. These facts have been noticed by the Tribunal in para 6 of the impugned order. It has further been found 3 C.W.P. No. 18755-CAT of 2006 that the petitioners were continuing in service on the terms and conditions of their appointment letters on the basis of the order dated 14.9.2004, passed by the Tribunal in O.A. No. 1179-CH of 2003. The Tribunal also rightly expressed the view that Hon’ble the Supreme Court has taken consistent view that regularisation has not been a mode of recruitment and continuous working for a long period in the absence of any statute or statutory rules does not ipso facto confer any right upon an employee to obtain a status to which he is not otherwise entitled to. It has further been held that a civil post must be filled in accordance with the procedure laid down in the recruitment rules. The Tribunal also placed reliance on the judgment of Hon’ble the Supreme Court in Umadevi’s case (supra) holding that contractual employees can not claim regularisation if the original appointment was not made by following due process of selection as envisaged under the rules even though they may have continued in such employment for long years. Adverting to the aforementioned aspect, the Constitution Bench in Umadevi’s case (supra) has observed as under:- “43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has 4 C.W.P. No. 18755-CAT of 2006 necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. ……” 5 C.W.P. No. 18755-CAT of 2006 6. The aforementioned observation of the Constitution Bench fully apply to the facts of the present case. The petitioners have not been subjected to regular process of selection by considering the competing claims of all those persons who were available in the field. It is further appropriate to mention that requisitioning of names from the Employment Exchange alone would not satisfy the requirements of Articles 14 and 16(1) of the Constitution, as has been held by their Lordships’ of Hon’ble the Supreme Court in the case of Excise Superintendent Malkapatnam v. K.B.N. Visweshwara Rai, (1996) 6 SCC 216, laying down that restricting the selection to the candidates sponsored by Employment Exchange is impermissible. Dealing with such a contention, a Division Bench of this Court, of which one of us (M.M. Kumar, J.) was a member, in the case of Rajinder Kumar v. State of Haryana, 2006(2) PLR 474, has observed as under:- “The only argument which survives for adjudication is that in cases where employees have been appointed by requisitioning the names from the Employment Exchange, should their services be regularised. We are afraid that this argument can also not be accepted because when the requisition is sent to the Employment Exchange it clearly specify nature of employment. In these type of cases the requisition is for employment on 89 days basis or by issuing advertisement in Press for employment on contractual basis. Such like requisitions 6 C.W.P. No. 18755-CAT of 2006 or inviting applications for appointment on contractual basis or for a limited period would also not be entitled to equation with those who have been selected and appointed in accordance with the selection process as provided by the rules consistent with Articles 14 and 16 (1) of the Constitution. It is appropriate to mention that in the case of Excise Superintendent Malkapatnam v. K.B.N. Visweshwara Rai, (1996) 6 SCC 216, even for restricting the selection to the candidates sponsored by Employment Exchange has been held to be impermissible. It has impliedly overruled the principle laid down at one stage in 1987 in the case of Union of India v. N. Hargopal, (1987) 3 SCC 308, wherein it was held that requisition can be sent to employment exchanges for regular recruitment and the same use to be held to be a valid source of recruitment. However, the Supreme Court in K.B.N. Visweshwara Rao’s case (supra) has now laid down that in addition to requisition from the employment exchange, the applications should also be called for through public publication in Newspapers having wide circulation and display on office notice boards or announcement on radio, television and employment news bulletins because such a procedure would subserve fair play. Therefore, we have no hesitation in rejecting the submissions made by 7 C.W.P. No. 18755-CAT of 2006 the learned counsel for the petitioners as nothing has been pointed out that even through employment exchanges recruitment was sought to be made on regular basis. 7. In view of above, we find no merit in these petitions and the same are accordingly dismissed. (M.M. KUMAR) JUDGE (SABINA) July 1, 2008 JUDGE Pkapoor 8