IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision: February 17, 2010 1. CWP No. 15538 of 2009 Rajesh Prakash …Petitioner through Mr. R.K. Malik, Senior Advocate, with Mr. D.R. Sharma, Advocate Versus Central Administrative Tribunal, Chandigarh Bench, Chandigarh and others …Respondents through Mr. R.K. Sharma, Advocate 2. CWP No. 15699 of 2009 Dr. Ashwani Kumar Saini …Petitioner through Mr. Sanjiv Gupta, Advocate Versus Central Administrative Tribunal, Chandigarh Bench, Chandigarh and others …Respondents through Mr. R.K. Sharma, Advocate 3. CWP No. 15832 of 2009 Balraj …Petitioner through Mr. R.K. Malik, Senior Advocate, with Mr. D.R. Sharma, Advocate Versus Central Administrative Tribunal, Chandigarh Bench, Chandigarh and others …Respondents through Mr. R.K. Sharma, Advocate 4. CWP No. 15842 of 2009 Raj Kumar …Petitioner through Mr. R.K. Malik, Senior Advocate, with Mr. D.R. Sharma, Advocate Versus Central Administrative Tribunal, Chandigarh Bench, Chandigarh and others …Respondents through Mr. R.K. Sharma, Advocate CWP No. 15538 of 2009 & connected petitions 5. CWP No. 18489 of 2009 V.P.S. Punia …Petitioner through Mr. D.R. Bansal, Advocate Versus Central Administrative Tribunal, Chandigarh Bench, Chandigarh and others …Respondents through Mr. R.K. Sharma, Advocate 6. CWP No. 2782 of 2010 Indian Council of Agricultural Research and another …Petitioner through Mr. R.K. Sharma, Advocate Versus V.P.S. Punia and another …Respondents 7. CWP No. 2783 of 2010 Indian Council of Agricultural Research and another …Petitioner through Mr. R.K. Sharma, Advocate Versus Raj Kumar and another …Respondents 8. CWP No. 2784 of 2010 Indian Council of Agricultural Research and another …Petitioner through Mr. R.K. Sharma, Advocate Versus Dr. Ashwani Kumar Saini and another …Respondents 9. CWP No. 2785 of 2010 Indian Council of Agricultural Research and another …Petitioner through Mr. R.K. Sharma, Advocate Versus 2 CWP No. 15538 of 2009 & connected petitions Gopal Dutt Tiwari and another …Respondents 10. CWP No. 2786 of 2010 Indian Council of Agricultural Research and another …Petitioner through Mr. R.K. Sharma, Advocate Versus Balraj and another …Respondents 11. CWP No. 2787 of 2010 Indian Council of Agricultural Research and another …Petitioner through Mr. R.K. Sharma, Advocate Versus Rajesh Parkash and another …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JITENDRA CHAUHAN 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR, J. By this order we propose to dispose of above mentioned 11 peti- tions, which have been filed against the common order dated 28.8.2009, passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, ‘the Tribunal’) whereby while disposing of the Original Applications filed by the applicant-petitioner(s), the non-applicant-respondent authorities have been directed to hold the selection process in respect of the available va- cant posts against which the applicants were initially appointed by allowing them to appear in that process after giving them age relaxation etc. The Tribu- 3 CWP No. 15538 of 2009 & connected petitions nal has also declared the promotion of the applicant-petitioner(s) to the higher posts as irregular. 2. It is pertinent to mention that petitions mentioned at Sr. Nos. 1 to 5 above have been preferred by such persons who approached the Tribunal by fil- ing OAs for setting aside their termination orders, whereas petitions mentioned at Sr. Nos. 6 to 11 have been filed by the Indian Council of Agricultural Re- search feeling aggrieved against the directions issued by the Tribunal vide the impugned order. 3. For proper appreciation of the controversy raised in these petitions, it would be appropriate to first notice the factual position in respective cases: C.W.P. Nos. 15538 of 2009 & 2787-CAT of 2010 4. In pursuance of an advertisement dated 17/23.7.1993, Shri Rajesh Prakash (petitioner in CWP No. 15538 of 2009) was appointed as T-4 (Instru- ment Mechanic) on 20.6.1994, against a post created under an ad hoc project of Bio-Technology of Embryo Transfer in Buffaloes at CIRB, Hisar. He was posted at CIRB Sub Campus, Nabha. Since the said project was up to 30.9.1997, therefore, his services were terminated vide order dated 30.9.1997 (A-5). On 21.11.1997, another order was issued by the respondents extending the period of the project up to 31.3.1998. Accordingly, the applicant-petitioner was reinstated and his period of absence was ordered to be treated as leave of the kind due. On 10.2.1998, he again joined his duties. On 20.2.1998, he was adjusted against the vacant post of T-4, which was vacated by one Shri V.P.S. Poonia. It was stipulated in the order that in the event of reversion of Shri Poonia to his parent post, the services of the petitioner would be liable to be ter- minated without any notice (A-7). He continued to work against the said regu- lar post though the project stood over. On 31.3.2001, another order was passed permanently adjusting him against the post of T-4 (Computer Programmer) with immediate effect (A-8). However, after completion of 12 years of service, a 4 CWP No. 15538 of 2009 & connected petitions show cause notice was issued to him on 14.7.2006 requiring him to show cause as to why his services be not terminated because it was found that his adjust- ment was done erroneously, inasmuch as, the prescribed Recruitment Rules were not followed for recruitment to T-4 grade post. After considering the reply filed by him, his services were terminated vide order dated 17.7.2007 (A-1). Challenging the order dated 17.7.2007, Shri Rajesh Prakash-petitioner filed O.A. No. 470-HR-2007 before the Tribunal. C.W.P. Nos. 15699 of 2009 & 2784-CAT of 2010 5. Dr. Ashwani Kumar Saini (petitioner in CWP No. 15699 of 2009) was appointed to the post of T-4 (Technician) as a result of his selection in pur- suance to Advertisement No. CIRB/1/95 under the DBT-ETT Project w.e.f. 27.6.1995 (P-2). The said project was for a period of five years i.e. up to 30.10.1997. On 20.3.1995, a decision was taken by the Indian Council of Agri- cultural Research for absorption of various positions created for DBT funded projects. It was considered necessary that the Scientists/Technicians recruited for the DBT Projects are appropriately absorbed after the project period is over (P-3). On 17.7.1997 and 17.9.1997, again a plan was proposed for adjustment of the staff (P-4 & P-5). The petitioner was adjusted/absorbed against the regu- lar post of Scientist in the T-4 Grade, vide order dated 20.2.1998 (P-6). On 31.3.2001, another order was passed adjusting him against the post of T-7 (Vet- erinary Officer) instead of Scientist with immediate effect (P-8). In the year 2000, he was absorbed against a regular sanctioned post in T-4 Grade. Thereaf- ter, he was promoted to the next higher grade as T-5 (Laboratory Technician) in the pay scale of Rs. 6500-10500 w.e.f. 1.7.2000, vide order dated 7.5.2002 (P- 9). On 14.7.2006, a show cause notice was issued to him as to why his appoint- ment to the post of T-4 Grade w.e.f. 1.4.1998 be not cancelled. After consider- ing the reply filed by him, his services were terminated vide order dated 5 CWP No. 15538 of 2009 & connected petitions 17.7.2007 (P-15). Challenging the order dated 17.7.2007, Dr. Ashwani Kumar Saini-petitioner filed O.A. No. 478-HR-2007 before the Tribunal. C.W.P. Nos. 15832 of 2009 & 2786-CAT of 2010 6. Shri Balraj (petitioner in CWP No. 15832 of 2009) was initially ap- pointed as daily paid labourer in the CIRB, Hisar, in May 1987 and worked as such till 1993. On 3.2.1993, a temporary post of Supporting Staff Grade-I un- der a project on Embryo Transfer Technology sponsored by the Department of Bio-technology, Ministry of Science and Technology at Central Institute for Re- search on Buffaloes, Hisar, was offered to him (A-2). The said project was to last upto September 1997. On 12.9.1997, he was adjusted against the vacant post of Supporting Staff Grade-I at the main campus (A-3). Since the DBT Pro- ject was extended upto 31.3.1998, accordingly, Shri Balraj and other employees were transferred back under DBT Project, vide order dated 21.11.1997 (A-4). On 30.3.1998, he was again adjusted against the vacant posts of Supporting Staff Grade I. On 6.7.1999, an order was passed appointing various officials in substantive capacity with effect from the dates mentioned against their names. The name of Shri Balraj appeared at Sr. No. 7 and the date of his confirmation as Supporting Staff Grade I has been mentioned as 3.2.1995 (A-6). On 31.12.2003, CIRB issued a provisional seniority list of Supporting Staff Grade I wherein the name of Shri Balraj has been mentioned at Sr. No. 2 and his date of initial appointment has been shown as 3.2.1993 (A-7). On 25.5.2004, on the basis of the DPC, he was promoted to the post of Supporting Staff Grade-II (A- 8). However, on 2.8.2006, a show cause notice was issued to him alleging that his initial adjustment as Supporting Staff Grade-I was erroneous. He chal- lenged the show cause notice before the Tribunal by way of OA No. 505/HR/2006, which was disposed on 10.5.2007, granting liberty to file reply to 6 CWP No. 15538 of 2009 & connected petitions the show cause notice in form of representation. The respondents were directed to consider the representation and to pass a speaking order. It was further di- rected that in case of adverse decision, the same was not to be implemented for a period of 15 days. Eventually, the services of the petitioner were terminated vide order dated 17.7.2007. Challenging the order dated 17.7.2007, Shri Balraj- petitioner filed O.A. No. 468-HR-2007 before the Tribunal. C.W.P. Nos. 15842 of 2009 & 2783-CAT of 2010 7. Shri Raj Kumar (petitioner in CWP No. 15842 of 2009) was ini- tially appointed as daily paid labourer in the CIRB, Hisar, in May 1987 and worked as such till 1993. On 14.1.1993, a temporary post of Supporting Staff Grade-I under a project on Embryo Transfer Technology sponsored by the De- partment of Bio-technology, Ministry of Science and Technology at Central In- stitute for Research on Buffaloes, Hisar, was offered to him (A-2). The said project was to last up to September 1997. On 12.9.1997, he was adjusted against the vacant post of SS Grade-I at the main campus (A-3). Since the DBT Project was extended upto 31.3.1998, accordingly, Shri Raj Kumar and other employees were transferred back under DBT Project, vide order dated 21.11.1997 (A-4). On 30.3.1998, he was again adjusted against the vacant posts of SSG-I. On 6.7.1999, an order was passed appointing various officials in sub- stantive capacity with effect from the dates mentioned against their names. The name of Shri Raj Kumar appeared at Sr. No. 6 and the date of his confirmation as Supporting Staff Grade I has been mentioned as 14.1.1995 (A-6). On 31.12.2003, CIRB issued a provisional seniority list of Supporting Staff Grade I wherein the name of Shri Raj Kumar has been mentioned at Sr. No. 1 and his date of initial appointment has been shown as 14.1.1993 (A-7). On 25.5.2004, on the basis of the DPC, he was promoted to the post of Supporting Staff Grade-II (A-8). However, on 2.8.2006, a show cause notice was issued ageing 7 CWP No. 15538 of 2009 & connected petitions that his initial adjustment as Supporting Staff Grade-I was erroneous. He chal- lenged the show cause notice before the Tribunal by way of OA No. 506/HR/2006, which was disposed on 10.5.2007, granting him liberty to file re- ply to the show cause notice in form of representation. The respondents were di- rected to consider the representation and to pass a speaking order. It was fur- ther directed that in case of adverse decision, the same was not to be imple- mented for a period of 15 days. Eventually, the services of the petitioner were terminated vide order dated 17.7.2007. Chalenging the order dated 17.7.2007, Shri Raj Kumar-petitioner filed O.A. No. 467-HR-2007 before the Tribunal. C.W.P. Nos. 18489 of 2009 & 2782-CAT of 2010 8. Shri V.P.S. Punia (petitioner in CWP No. 18489 of 2009) has claimed that as a result of an all India Open Advertisement for the post of T-4 (Computer Programmer) he was appointed as such and joined the Central Insti- tute for Research on Buffaloes CIRB, Hisar on 13.10.1989. It has further been asserted that after successful completion of probation period he was confirmed w.e.f. 13.10.1991. In the year 1993, an advertisement bearing No. 1/1993 was issued advertising various posts including the post of T-6 (Computer Program- mer) [P-1/A-2)]. However, in the meanwhile he was appointed as T-6 (Com- puter Programmer) on ac hoc basis, vide order dated 11.2.1993. He was also se- lected in response to the aforementioned advertisement through open selection and a temporary post of T-6 Computer Programmer was offered to him vide or- der dated 20.1.1994 (P-1/A-3). The said post pertains to a project on Embryo Transfer Technology sponsored by the Department of Bio Technology, Ministry of Science and Technology, Government of India, for a period of 5 years. The petitioner joined the said post on 21.1.1994. The term of the said project ex- pired on 20.2.1997. Accordingly, vide order dated 30.9.1997, the petitioner was reverted from the post of T-6 Computer Programmer to his parent post of T-4 8 CWP No. 15538 of 2009 & connected petitions Computer Programmer (P-1/A-5). On 21.11.1997, another order was issued by the respondents extending the period of the project up to 31.3.1998. Accord- ingly, the petitioner was reinstated as T-6 under DBT project on the same terms and conditions as were contained in the order dated 11.2.1993 (P-1/A-6). On 2.2.1998, he was again adjusted against the vacant post of Scientists (Computer Application) till the said post was to be regularly filled up (P-1/A-7). On 7.6.1999, the petitioner made a representation for his adjustment against a post of T-6 (Statistical Officer) which was lying vacant at CIRB Hisar since January 1999 (P-1/A-8). However, respondent No. 2, vide letter dated 26.8.1999 called for the explanation with regard to the adjustment of the petitioner after the ex- piry of the project (P-1/A-9). However, the petitioner was adjusted as T-6 (Sta- tistical Officer) vide order dated 31.3.2001 (P-1/A-10). Again vide order dated January 2004 the services of the petitioner were ordered to be terminated (P-1/A-11). He represented against the said order (P-1/A-12). Thereafter, a show cause notice dated 14.7.2006 was issued to him as to why he may not be reverted as his adjustment has been found to erroneous and the competent authority has decided to cancel the same. Challenging the show cause notice, the petitioner approached the Tribunal by filing OA No. 597-HR-2006. The said OA along with others was disposed of vide order dated 10.5.2007 with direction to the applicants to file a detailed reply to show cause notice which was to be disposed of by the respondents and in case of adverse order, the applicants could approach the Tribunal. The petitioner submitted a detailed reply, which was rejected vide order dated 17.7.2007, reverting the pe- titioner from the post of T-6 to T-4. Challenging the order dated 17.7.2007, Shri V.P.S. Punia-petitioner has filed O.A. No. 465-HR-2007 before the Tribu- nal. CWP No. 2785-CAT of 2010 9 CWP No. 15538 of 2009 & connected petitions 10. Shri Gopal Dutt Tiwari-respondent No. 1 was appointed as daily paid labourer on 9.1.1989 and continued to work as such till 2.2.1993. On 3.2.1993, he was appointed as Supporting Staff Grade-I (Cook cum Khansama) against a temporary post under a project, namely, ‘NARP’ (A-1/1). Though the said project expired on 30.6.1993, he was adjusted against the post of a Messen- ger on regular basis vide order dated 16.8.1993 w.e.f. 1.7.1993 (A-2). On 28.2.1997, the designation of respondent No. 1 was changed to Lab Attendant (A-4). On 6.7.1999, an order was passed appointing various officials in sub- stantive capacity with effect from the dates mentioned against their names. The name of the Shri Gopal Dutt Tiwari-respondent No. 1 appeared at Sr. No. 8 and the date of his confirmation as Supporting Staff Grade I has been mentioned as 3.2.1995 (A-6). On 25.5.2004, on the basis of the DPC, he was promoted to the post of Supporting Staff Grade-II (A-5). However, on 2.8.2006, a show cause notice was issued to the effect that his initial adjustment as Supporting Staff Grade-I was erroneous. He filed reply to the show cause notice, which did not find favour with the authorities and eventually his services were terminated vide order dated 22.9.2007. Challenging the order dated 22.9.2007, Shri Gopal Datt Tiwari-respondent No. 1 filed O.A. No. 634-HR-2007 before the Tribunal. 11. The respondent authorities while justifying the termination/rever- sion orders asserted before the Tribunal that the applicants were appointed against a project with a clear stipulation that upon expiry of the project against which they were appointed, their services would be terminated. However, the then Director, CIRB, Hisar, without having any authority to appoint the appli- cants against regular posts, committed an irregularity by offering them regular posts without affording opportunity to all those who were eligible in terms of the rules. When this irregularity surfaced, after following due procedure i.e. af- ter issuing of show cause notice and considering the reply furnished by the ap- 10 CWP No. 15538 of 2009 & connected petitions plicants, their services have been terminated or some of them have been re- verted to their substantive posts. 12. The Tribunal clubbed together all the OAs. While disposing of the OAs filed by the applicant-petitioners vide order dated 28.8.2009, the Tribunal in para 27 has noticed that similar issues were raised in OA Nos. 75 and 76 of 2008 (Bhanwar Lal Bose v. Secretary, ICAR and others) before the Jodhpur Bench of the Tribunal, which were decided on 15.4.2008. In that case the issue was whether the employees appointed against a project could be adjusted against regular posts on completion of the project. In the said case the Jodhpur Bench of the Tribunal has held that the respondent miserably failed to justify their belated action to terminate the services of the applicants after a decade. It was also observed that there was no concealment of fact or mis-representation on the part of the applicants. The aforementioned decision of the Jodhpur Bench of the Tribunal was challenged firstly before the High Court of Ra- jasthan, Jodhpur, in CWP No. 3202 of 2008 (Secretary, ICAR, New Delhi and others v. Amit Kumar Singh and another) and CWP No. 3213 of 2008 (Secre- tary, ICAR, New Delhi and others v. Bhanwar Lal Bose and another). The High Court of Rajasthan upheld the order passed by the Jodhpur Bench of the Tribu- nal and dismissed the writ petitions on 21.10.2008. The matter then traveled to Hon’ble the Supreme Court in SLP No. 1227 of 2009 (Secretary, Indian Council of Agricultural Research and others v. Amir Kumar Singh and another), which was also dismissed. However, the Tribunal in the present cases has not adopted the same reasoning in view of the law laid down by Hon’ble the Supreme Court in the case of Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1, wherein it has been held that back door entrants or irregular appointees have no right to hold a post. The Tribunal has come to the conclusion that though the applicant-petitioners had been selected and appointed against posts in the re- 11 CWP No. 15538 of 2009 & connected petitions spective projects by competing in open selection but their adjustment and ap- pointment against regular posts was irregular and the same has been done with- out following proper selection process. Keeping this aspect in view, the Tribu- nal has directed the respondent authorities to hold the selection process for the applicant-petitioners for available vacant posts for which they were initially ap- pointed through proper selection process as per rules, by allowing them to ap- pear in that process after giving them age relaxation etc. and those who may make the grade in the final selection be allowed to continue. It has further been directed that the applicant-petitioners may be allowed to continue in their re- spective posts for which they are qualified and were appointed in the project through proper selection process upto six months or till selection process is over, whichever is earlier. Until then their promotion to the higher post would be treated irregular. 13. Having heard learned counsel for the parties and perusing the paper books with their able assistance we find that there is merit in the petitions which have been filed by the applicant-petitioners. From a bare perusal of the im- pugned order dated 28.8.2009, it is clear that the Tribunal has primarily placed reliance on the judgment of Hon’ble the Supreme Court in Umadevi’s case (su- pra). However, we find that the Tribunal has not correctly applied the judgment rendered in Umadevi’s case (supra). No doubt it is true that in Umadevi’s case (supra) their Lordships’ of Hon’ble the Supreme has held that those appointed irregularly and not in terms of the prescribed procedure in accordance with the relevant Rules and Regulations consistent with the requirement of Articles 14 and 16 of the Constitution, have no legal right to be made permanent. It has also been held that having accepted the employment at their own volition and with eyes wide open as to the nature of their employment they cannot be permit- ted to import theories which defeat the basic requirements of public employ- 12 CWP No. 15538 of 2009 & connected petitions ment and constitutional goal of equality. However, the judgment does not per- mit re-opening of order of regularisation already made. It is discernible from the perusal of following excerpts: “53. ……In the context, the Union of India, the State Gov- ernments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should fur- ther ensure that regular recruitments are undertaken to fill those va- cant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.” (emphasis added) 14. It is conceded position on record that the applicant-petitioners were initially appointed against the posts which were co-terminus with the projects by following the proper procedure i.e. by advertising those posts. On comple- tion of the term of the projects they were duly adjusted against the vacant posts and also got their promotion to the next posts. Their orders of regularisation were passed much earlier to the judgment of the Constitution Bench in Umadevi’s case (supra). In the case of Shri Rajesh Parkash the order of regu- larisation was first passed on 20.2.1998 and another was passed on 31.3.2001 by permanently adjusting him against the post of T-4 (Computer Programmer). The case was sought to be re-opened much later by issuing a show cause notice 13 CWP No. 15538 of 2009 & connected petitions on 14.7.2006, which is obviously inspired by the judgment in Umadevi’s case (supra) rendered on 10.4.2006. The facts are similar in the cases of Dr. Ash- wani Kumar Saini (CWP No. 15699 of 2009), Shri Balraj (CWP No. 15832 of 2009), Shri Raj Kumar (CWP No. 15842 of 2009), Shri V.P.S. Punia (CWP No. 18489 of 2009), Shri Gopal Dutt Tiwari (CWP No. 2785-CAT of 2010). On these facts it is not open to ICAR to withdraw the order of regularisation. The principle of Umadevi’s case (supra) is not attracted because by way of their ap- pointment against the regular posts their services have been regularised much earlier and they are working continuously for the last more than 10 years. Therefore, by virtue of the above exception,