IN THE HIGH COURT OF PUNJAB AHD HARYANA AT CHANDIGARH C.W.P. No.13162-CAT of 2004 Date of Decision: May 13, 2008 Union of India and others …Petitioners Versus Central Administrative Tribunal, Chandigarh Bench, Chandigarh and another …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MRS. JUSTICE SABINA Present: Ms. Deepali Puri, Advocate, for the petitioners. None for the respondents. M.M. KUMAR, J. This petition filed under Article 226 of the Constitution challenges order dated 30.6.2004 (P-6), passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, ‘the Tribunal’). Brief facts of the case are that on 1.8.2002, on the basis of her selection and appointment, Smt. Roopa Jolly-respondent No. 2 joined the service as Lecturer of Music (Vocal) on contract basis at a C.W.P. No. 13162-CAT of 2004 fixed salary of Rs. 2,500/- per month (P-1). On 4.10.2002, she was relieved from her duties because the petitioner department made fresh appointments of contract teachers as a result of advertisement dated 10.8.2002. On 16.1.2003, respondent No. 2 was allowed to join again, inasmuch as, the selections made pursuant to advertisement dated 10.8.2002 were challenged before the Tribunal, which were set aside in the case of Krishan Kumar v. Union Territory, Chandigarh and others, decided on 2.12.2002. She continued to perform Thereafter, respondent No. 2 continued performing her duties till 28.7.2003. On 28.7.2003, the Principal, Government Model Senior Secondary School, Sector 33-D, Chandigarh-petitioner No. 5, directed respondent No. 2 to report to the District Education Officer, UT, Chandigarh-respondent No. 4 for her new teaching assignment as Lecturer in Music on contract basis. It is claimed that this was done inadvertently because there was no post in the school of Sector 16, Chandigarh and without verifying the availability of post in that school, petitioner No. 4 directed respondent No. 2 to report in the school of Sector 16. Moreover, the post of Lecturer in Music in Government Model Senior Secondary School, Sector 33-D, Chandigarh, was declared surplus due to annual comprehensive staff review and work load in the subject. The post of Lecturer in Music (Vocal) was converted into the post of Lecturer in History and since there was no need of Lecturer in Music (Vocal) and no post existed, the contractual appointment of respondent No. 2 came to an end. 2 C.W.P. No. 13162-CAT of 2004 Feeling aggrieved, respondent No. 2 filed Original Application No. 704/CH/2003 before the Tribunal (P-2), which was tagged alongwith other connected cases/matters with regard to appointment on contractual basis. On 27.8.2003, the Tribunal passed an order in OA No. 429/CH/2003 and connected Original Applications including OA No. 704/CH/2003 filed by respondent No. 2 and disposed of all the original applications by giving certain directions on different issues involved in the said original applications (P-3). Since the Tribunal did not give any finding/observation on the issue of conversion of posts from one subject to another, therefore, on 21.9.2003, respondent No. 2 filed an application for recalling the order dated 27.8.2003, passed by the Tribunal (P-4). It seems that during the course of arguments of the aforementioned application when counsel for the applicant- respondent No. 2 felt that he would not be able to persuade the Tribunal on the issue of conversion of post from one subject to another, he made a prayer that respondent No. 2 may be considered for appointment to a lower post of TGT in which cadre a number of vacancies were available. Accordingly, the Tribunal passed an order dated 30.6.2004 directing the Director, Public Instruction (Schools), Chandigarh Administration to consider the case of the applicant- respondent No. 2 for appointment against any one of the posts in TGT grade during the ensuing academic session (P-6). Paras 4, 5 and 6 of the order dated 30.6.2004, passed by the Tribunal are reproduced as under:- 3 C.W.P. No. 13162-CAT of 2004 “4. There is no doubt about the fact that services of a contractual teacher can be dispensed with if there is no neet of a teacher in a particular subject. In Krishan Kumar’s case (supra) this Tribunal has made it clear that the respondent-administration shall be at liberty to dispense with the services of the contract appointees on the ground of efficiency, delinquency or misconduct or on the abolition of the post. Shri N.K. Bhardwaj, learned counsel for the respondents urged that there was not enough students to take up the Music (Vocal) classes and the applicant could not be allowed to join her duties in the Government Model Senior Secondary School, Sector 16, Chandigarh as only a teacher in Music (Instrumental) was required there. The Respondents have, it is stated taken the decision to abolish, the post of Lecturer in Music (Vocal) as there was no need for such a post. On this point, there is decision of this Tribunal dated 12.12.2003 in OA No. 753-CH of 2003 – Mrs. Darshan Kaur Vs. Union Territory, Chandigarh & Others. Since the post which the applicant was holding has become redundant, the contractual appointment of the applicant was to be terminated by the respondents. The applicant has no case on merits. 5. Shri R.K. Sharma, learned counsel for the applicant made a fervent appeal that since the academic 4 C.W.P. No. 13162-CAT of 2004 record of the applicant is quite brilliant and her work & conduct as a contract teacher has been satisfactory, the applicant may be considered for appointment to a lower post of TGT in which cadre a number of vacancies are available. Shri Bhardwaj was required by us to ascertain whether there are vacancies available in the TGT grade. He stated that though there are vacancies available in the TGT grade, the respondents are not obliged or duty bound to offer appointment to the applicant in the said grade, particularly, in view of the fact that her engagement on contract basis as Lecturer in Music (Vocal) has come to an end in accordance with the letter and the earlier decisions of this Tribunal. 6. We have given our thoughtful consideration to the aspect of the matter and find that the applicant has served the respondent-department as a Music Teacher (Vocal) for a period of more than two years. She is well qualified. There is nothing on record to indicate that her work and conduct was not satisfactory. Her disengagement has come into being only on account of the facts that there was shortage of students in the subject of Music (Vocal) and the post which she was holding has been converted into another subject. The prayer made on behalf of the applicant for consideration for appointment to a lower post of TGT cannot be said to 5 C.W.P. No. 13162-CAT of 2004 be unjustified. We feel that it would meet ends of justice if the case of the applicant who has been in the Lecturer’s grade, is considered for appointment in the lower grade of TGT, in which grade, a number of vacancies are available to accommodate her. The OA is accordingly disposed of with the direction that the Respondent No. 3- Director Public Instruction (Schools), Chandigarh Administration shall consider the case of the applicant for appointment against any one of the posts in TGT grade during the ensuing academic session and appropriate orders shall be passed by him within a month of the production of a certified copy of this order before him. No order as to costs.” The aforementioned order dated 30.6.2004, is subject matter of challenge in the instant petition. After hearing learned counsel for the petitioners and perusing the paper book we find that the instant petition deserves to be allowed. On facts there is no dispute that respondent No. 2 had joined as a Lecturer of Music (Vocal) on contract basis at a fixed salary on 1.8.2002. She was relieved from duty on 4.10.2002 and again allowed to join on 16.1.2003. It is also conceded position on facts that she never worked on the post of TGT in which cadre some vacancies were available. The aforementioned fact has been made the basis for issuance of directions in favour of respondent No. 2 requiring the petitioners to consider her for appointment in the lower 6 C.W.P. No. 13162-CAT of 2004 grade of TGT. It is well settled that contractual appointments for a short period does not create any substantive right in favour of any employee to hold the post whereas in the present case respondent No. 2 has not even worked on the post of TGT. For the aforementioned proposition we may place reliance on a Constitution Bench judgment of Hon’ble the Supreme Court in the case of Secretary, State of Karnataka v. Uma Devi, (2006) 4 SCC 1. The relevant observation, which fully apply to the facts of the present case reads as under:- “47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such 7 C.W.P. No. 13162-CAT of 2004 a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.” It is further appropriate to mention that there was not even a prayer made by respondent No. 2 for consideration of her case for appointment against lower grade of TGT. In view of the aforementioned enunciation of law, the impugned order dated 30.6.2004 (P-6), passed by the Tribunal deserves to be set aside. For the reasons aforementioned, this petition succeeds. The impugned order dated 30.6.2004 (P-6), passed by the Tribunal is hereby set aside. However, there shall be no order as to costs. (M.M. KUMAR) JUDGE (SABINA) May 13, 2008 JUDGE Pkapoor 8