C.M. NOS.14743-44 OF 2009 (O&M) :{ 1 }: CIVIL WRIT PETITION NO.556 OF 1987 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: SEPTEMBER 01, 2009 Manjit Kaur .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. R. S. Sihota, Sr.Advocate with Mr. B. R. Rana, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner had approached this Court by way of this writ petition, seeking twofold reliefs. He would first seek quashing of the order (Annexure P-2) terminating her services and grant of consequential relief. Further prayer is also made for issuing a writ of C.M. NOS.14743-44 OF 2009 (O&M) :{ 2 }: CIVIL WRIT PETITION NO.556 OF 1987 mandamus to consider and regularise the services of the petitioner in view of the policy decision, Annexure P-5. The writ petition was heard in detail and was dismissed by Single Judge of this Court on 23.4.2003. It was then viewed that the petitioner was appointed without following any procedure against a non sanctioned post. The petitioner thereafter filed a Letters Patent Appeal against this judgment. The L.P.A Bench, without expressing any opinion on the merits of the controversy, set-aside the judgement dated 23.4.2003 and remanded the case back for a fresh decision, after hearing both the parties. Before the L.P.A Bench, the petitioner had moved Civil Miscellaneous Application No.1851 of 2003 under Order 41 Rule 27 read with Section 151 C.P.C. for placing on record some additional documents as Annexures A1 and A2. These annexures were earlier not available on the record of the writ petition. Though there is no order placed before this Court, whether this prayer of additional evidence was allowed by the L.P.A Bench but Bench had referred to these annexures to observe that these documents appear to suggest that requisition was sent through the Employment Exchange, Gurgaon, for recruitment to the post, to which the petitioner was appointed. This view was expressed, when the State did not file any reply in opposition to the application to rebut the documents, (annexed with L.P.A as Annexures A-1 and A-2). After remand, no additional evidence or facts have been brought on record of the writ petition. When the matter came up for hearing before this Court, the issue arose whether these documents, which were placed on record of the Letters Patent Appeal, could be C.M. NOS.14743-44 OF 2009 (O&M) :{ 3 }: CIVIL WRIT PETITION NO.556 OF 1987 taken into consideration by this Court now. There is no order allowing these documents as additional material or evidence, except that what is noticed in the impugned order, remanding this case to Single Judge. Perhaps realising this difficulty, the petitioner has today moved an application for placing on record these documents as material in the form of Annexures P-6 and P-7. It is accordingly prayed that these be taken on record and considered. This application was ordered to be taken up with the main case, which is also listed today only. It will, thus, has to be seen whether these documents can be relied upon to consider the claim of the petitioner raised in the writ petition. FIRST THE FACTS:- The petitioner was appointed as a Clerk at Daronacharya Government College, Gurgaon, by its Principal on 31.7.1981. The appointment letter of the petitioner is placed on record as Annexure P-1. As per terms of the appointment, the petitioner was appointed on adhoc basis purely temporarily for six months. It was further stated that services were liable to be terminated any time without assigning any reason. No averment is made as to how this appointment had come about. It is simply stated that the petitioner was appointed as a Clerk on six months basis in the College on 31.7.1981. Whether the requisition was sent to Employment Exchange or whether this appointment was after constituting a Selection Committee or whether the petitioner was so appointed after due selection is not averred in any manner. The question, thus, would also arise as to what would be the nature of this appointment. C.M. NOS.14743-44 OF 2009 (O&M) :{ 4 }: CIVIL WRIT PETITION NO.556 OF 1987 Even if the annexures now placed before this Court through the miscellaneous application are to be considered, these would only show that requisition was sent to the Employment Exchange and thereafter names were sent on 31.7.1981. On the same day, the petitioner was appointed on adhoc basis. Whatever may be the case, the appointment of the petitioner was adhoc and temporary for a period of six months. When the appointment is read in the light of Annexure P-2, which is the order terminating the services of the petitioner, it would come out clearly that she was paid out of amalgamated fund constituted from the contribution made by the students. This annexure has been placed on record by the petitioner herself. Reference is also made to the contents of Annexure P-2 to show that keeping in view the financial position of the College and work load of the office, the termination order was made. It is, thus, pleaded that though this is the reason mentioned in the order to terminate the services of the petitioner, but this was a stigmatic order and issued by way of punishment. The counsel would also contend that this Court must lift the veil to see the real purpose behind it and it was to punish the petitioner. For this, the counsel would make reference to the minutes, copy of which has been placed on record as Annexure P-4. It is accordingly prayed that termination order could not have been passed, showing it to be innocuous termination order whereas it was punitive in nature. The counsel would also plead that the petitioner was entitled to the protection of the rules and if she was to be punished, the procedure under the rules was required to be followed. Similar submissions were made before the Single Bench C.M. NOS.14743-44 OF 2009 (O&M) :{ 5 }: CIVIL WRIT PETITION NO.556 OF 1987 of this Court, when order dated 23.4.2003 was made, as can be seen from the following facts noticed in the order:- “The petitioner has challenged the termination of her service on the ground of violation of Article 14 and 16 of the Constitution of India. She has averred that the impugned order is punitive in character because the real cause for termination of her service is not lack of funds or reduction in work load, but her alleged absence from duty in January and February, 1986. To substantiate this assertion, she has placed on record copies of the office notings marked as Annexures P3 and P-4. She has also relied on the decision allegedly taken by the Government of Haryana to regularise the service of 8000 ad hoc teachers and averred that the competent authority is under an obligation to consider her case for regular appointment because she satisfies the conditions of eligibility.” In the reply filed by the State, by way of preliminary objection, it is stated that the petitioner was appointed out of amalgamated fund of the College on six months basis. As per the reply, the amalgamated fund is totally private fund collected from the students and is utilized for their welfare and it is not a Government revenue. It is pointed out that the services of the petitioner were not required and accordingly no further approval/sanction was obtained from the competent authority. As per the respondents, this decision to appoint was taken in the interest/welfare of the students. The C.M. NOS.14743-44 OF 2009 (O&M) :{ 6 }: CIVIL WRIT PETITION NO.556 OF 1987 respondents would further state that since there was paucity in the amalgamation fund, her services were not further continued. While replying to the contents of the writ petition on merits, it is clearly stated in Para 2 of the reply that appointment on adhoc basis was out of amalgamated fund of the College. It is pointed out:- “It may be stated at the cost of repetition that amalgamated fund of the college constitute the fund collected from the students of the college and is utilized for the welfare of the students. It is not Government revenue for any purpose. The petitioner was appointed to be paid out of the amalgamated fund in the year 1981 after obtaining the sanction of the DPI, Haryana, vide his order No.18/31-81-C-III(3) dated 30.6.1981. In the said sanction, it has been clearly mentioned that the post has been sanctioned for 15.7.81 to 31.3.82 or till the date of receipt of the sanction for the post of Clerks from Government side whichever is earlier.” The copy of this letter has been annexed with the reply as Annexure I. It is also pointed out that the petitioner could not be continued in service as sanction for the post was not received. In May 1986, four additional posts of Clerks were provided to the College, as a result of which the shortage of clerical staff was reduced and, thus, there was no need to make appointment out of the amalgamated fund. This, stand taken in the written statement was taken note of and was reproduced in the earlier order passed by C.M. NOS.14743-44 OF 2009 (O&M) :{ 7 }: CIVIL WRIT PETITION NO.556 OF 1987 Single Judge of this Court. For seeking regularisation of the service of the petitioner, the counsel would rely upon the instructions issued by the Haryana Government, whereby decision was taken to regularise the services of those who have completed two years service as on 1.11.1986. The case set up by the petitioner appears to be that if her services had not been terminated illegally, then she was entitled to regularization of her services in view of the policy decision issued by the Government of Haryana and accordingly it is prayed that after setting-aside the order of termination, mandamus be issued, directing the respondents to regularise her services. In response to this, the respondents would plead that there is no relevance of the prayer of regularisation with the termination of the services of the petitioner. It is stated that the service of the petitioner was not required and because of paucity of funds, further retention was dis-continued. The contention that decision has been taken to regularise the services of the employees, who have completed two years service, is also referred to as wrong and misleading. A news item referred to in this regard relating to regularizing the services of adhoc teachers has no applicability to the case of the Clerks, as per the reply. From the position, as would emerge, it is first to be seen as to what is the nature of appointment of the petitioner. It has specifically been pleaded in the reply that the petitioner was not appointed on a post, which was sanctioned and was appointed after taking permission and was paid out of amalgamated fund. These averments made in the reply have not been countered or rebutted in C.M. NOS.14743-44 OF 2009 (O&M) :{ 8 }: CIVIL WRIT PETITION NO.556 OF 1987 any manner by the petitioner. Otherwise also, the petitioner has not been able to show if she was being paid by the Government or out of the Government funds. It is clarified in the reply that amalgamated fund is a contribution by the students and to ensure proper working, the petitioner was appointed as a Clerk and this arrangement had been continued till the regular posts of the Clerks were sanctioned. Mr.Rathi has drawn my attention to the provisions of Rule 1.2 of Punjab Civil Services Rules to say that such rules will apply to all Government employees belonging to categories mentioned therein, who are under the administrative control of the Haryana Government and whose pay is debitable to the consolidated fund of the State of Haryana. He would, thus, urge that the petitioner could be considered as a Government employee if she was being paid from the fund which was debitable to the consolidated fund of the State of Haryana. There is a clear averment in the reply that the petitioner was being paid out of the amalgamated fund. It can not, thus, be said that the petitioner could be treated as an employee of the Government. As such, it is not possible to treat the employment of the petitioner to be an employment under the Government. The petitioner was temporarily employed by the College and was paid out of amalgamated fund and, this appointment, by no stretch of imagination, can be treated as an appointment under the Government. If that be the position, then the petitioner can not seek protection of any provision of the Rules that would apply to the employees of the Haryana Government. The petitioner could have become employee only in case he was being paid out of the C.M. NOS.14743-44 OF 2009 (O&M) :{ 9 }: CIVIL WRIT PETITION NO.556 OF 1987 consolidated fund of the State of Haryana. That being the position, no case is made out for considering the plea of regularising of the service. The justification given in the impugned order, not to continue with the service of the petitioner once four posts of Clerks were sanctioned would show that the order can not be termed as punitive as made out. Once the petitioner can not be considered to be an employee of the State of Haryana, the rest of the prayers as made in the petition would not arise for consideration. Similarly, judgments as referred by learned counsel for the petitioner in the cases of Jarnail Singh and others, etc. Vs. State of Punjab and others, AIR 1986 Supreme Court 1626 and Dharminder Kumar Vs. State of Punjab and others, 2005 (2) RSJ 710, would not be applicable to the facts and circumstances of the case. Jarnail Singh (supra) was a case where the services were terminated on the basis of adverse remarks and allegation of embezzlement. Though the petitioners therein were adhoc employees, it was observed that termination being by way of punishment, could not be sustained in view of violation of Article 311 (2) of the Constitution of India. The facts in the said case would not apply in the present case. In Dharminder Kumar's case (supra), the termination was on account of remaining absent without leave and consequent violation of discipline of Police Department. No enquiry nor any action or opportunity of hearing was given to the petitioner and order of termination was held to be illegal. In the present case, the petitioner, who was being paid out of amalgamated fund and was not allowed to continue upon the sanction of the posts on regular basis. It can not be said that the C.M. NOS.14743-44 OF 2009 (O&M) :{ 10 }: CIVIL WRIT PETITION NO.556 OF 1987 order is punitive in nature. Besides the person like the petitioner would not be entitled to the protection of the rules. I am, thus, of the view that there is no merit in the writ petition and the same is accordingly dismissed. September 01, 2009 ( RANJIT SINGH ) khurmi JUDGE