IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 1858 of 2003 Date of decision: 18th November, 2008 Ashwani Kumar … Petitioner Versus State of Punjab and others … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. S.C. Pathela, Advocate for the petitioner. Mr. Satish Bhanot, Senior DAG, Punjab for the State. Mr. R.S. Longia, Advocate for Mr. Arun Walia, Advocate for respondent No.3. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present writ petition has been filed by Ashwani Kumar. He has preferred the present writ petition under Article 226 of the Constitution of India seeking a writ in the nature of certiorari for quashing of order dated 27th December, 2002, issued on 24th January, 2003, attached as Annexure P-12 with the present petition, whereby the appointment of the petitioner made on 21st December, 1994 and order of regularization dated 22nd December, 1997 was set aside by respondent No.2 Director, Local Government Punjab, Sector 17, Chandigarh. A perusal of order (Annexure P-12) shows that during the proceedings of a hearing in case of Municipal Corporation Employees Union and others v. Santokh Singh, before Secretary Local Government, a list of 22 employees, who were appointed/ promoted in violation of rules, was submitted by an Advocate of Santokh Singh. Name of the petitioner Civil Writ Petition No. 1858 of 2003 Ashwani Kumar, Junior Engineer (Operation and Management Cell) was also included in that list. Therefore, the matter was considered by the Government and it was held that the appointment of Ashwani Kumar was made in violation of the Punjab Municipal Corporation (Recruitment and Conditions of Service) Rules, 1978. According to the rules, 50 percent appointment was to be made by direct recruitment and 50 percent by promotion on seniority-cum-merit basis. Petitioner cannot be treated in 50 percent quota of promotion on seniority-cum-merit basis as he was regularized as Tubewell Operator and in no way constitute the feeder cadre to the post of Junior Engineer (O&M). Therefore, he can only be considered for 50 percent quota of direct recruits. It was noticed in the impugned order that for direct recruitment, posts were to be filled up by open advertisement or by notifying vacancies to the employment exchange. The impugned order further states that none of the above methods of recruitment, i.e. open advertisement or calling vacancies from employment exchange was adhered to in case of petitioner. It further states that appointment of the petitioner amounted to unsustainable backdoor entry and an underhand method to secure the job. It further states that the prescribed process of selection was not made applicable therefore, it was an appointment de-hors the rules and therefore, doctrine of legitimate expectation cannot be invoked. The impugned order was passed in pursuance of the show cause notice (Annexure P-9), to which petitioner replied vide Annexure P-10 on 05.09.2002. The entire edifice of the petitioner in the present writ petition is built on the reply to the show cause notice, therefore, it will be convenient to take the brief facts from the writ petition. Petitioner had joined the service of Municipal Corporation, Amritsar as Tubewell Driver in the pay scale of Rs.950-1800 with the immediate scale of Rs.1000/- on 3rd July, 1984 on 89 days basis. 2 Civil Writ Petition No. 1858 of 2003 Thereafter, his appointment was on work-charge basis with effect from 1st June, 1985. At the time of employment, petitioner was having a Diploma in Electrical from ITI, Pathankot. This Diploma, according to the petitioner, was obtained in year 1981. Thereafter, during the course of employment, petitioner acquired 4 year Diploma in Electrical Engineering from 1987 to 1991. Services of the petitioner were regularized as Tubewell Driver in year 1992. As stated earlier, cadre of Junior Engineer was a separate cadre and Tubewell Driver was not a feeder cadre. Necessity arose in year 1992 for the Government to constitute a separate cadre for annual operation and maintenance of water supplies, sewerage and storm drainage system in the three Municipal Corporations in the State of Punjab. Therefore, the Government issued a letter on 21st October, 1992 calling upon the employees of the cadre, who were eligible for absorption in the cadre. A note given in the end of the letter assumes importance, which reads as under: “For S.D.Es in the fields: They may take the option of the J.Es of the Water Supply and Sewerage Board working under them and sent their options along with their options. Even if they are not willing to opt, negative reply may be sent.” Annexures to this letter show that 56 Junior Engineers were to be absorbed from the Municipal Corporations in the cadre, which was to be constituted in pursuance of letter (Annexure P-1). A perusal of the letter will show that only the Junior Engineers working in the Corporation were eligible to apply. Petitioner, who was working as a Tubewell Operator, vide Annexure P-3, sent his option on the ground that he is eligible for the post of Sectional Officer (Mech.) as per Punjab Government Gazette Notification dated February 1, 1991. Reliance has been placed upon the proceedings 3 Civil Writ Petition No. 1858 of 2003 of meeting of a committee constituted by Local Government, Punjab to show that constitution of the cadre had improved public health facilities in the Municipal Corporation Town of Ludhiana. But the public health services had not taken up at Jalandhar and Amritsar. The committee further noticed that the personal record of all employees, who were working in the Operation and Maintenance Cell, may be called from different offices and be put up before the committee for judging the suitability of the different categories of the employees for promotion. It has been further stated therein that 50 percent posts are to be filled up from amongst the Corporation Officers and the remaining 50 percent from amongst the officers belonging to the other departments. Recommendation of the Commissioner, Municipal Corporation, Amritsar (Annexure P-5) has been also relied to say that those, who possess the qualification, even may not constitute the feeder cadre, be also considered. In pursuance of his application (Annexure P-3), whereby he has given his option, petitioner appeared before the screening committee but was not appointed. Since the petitioner was not appointed, aggrieved against the same, he filed Civil Writ Petition No. 4282 of 1994 in this Court. Written statement (Annexure P-6) was filed to the writ petition, in which it was averred as under: “4. That as already stated above the petitioners not being in the line of promotion as Sectional Officers are not entitled for promotion. Therefore, the State Government in the Department of Local Government has taken a cautious decision to appoint the petitioners as Sectional Officers on adhoc basis because all the petitioners possesses National Certificate Courses although they are not surveyors or work- mistries. The matter regarding appointment of the petitioners has been under active consideration of the State Government for the last about six months and so far the Department ibid has appointed six (6) out of nine (9) petitioners as Sectional Officers on adhoc basis whereas the case of remaining three 4 Civil Writ Petition No. 1858 of 2003 petitioners is engaging the attention of the Department. Information is being gathered from relevant quarters for processing their cases further for their appointment on adhoc basis as Sectional Officers in order to redress their main grouse. In compliance with the orders of this Hon'ble Court no person is being taken on deputation after 5.4.1994 pending their appointment as Sectional Officers.” Writ petition was disposed off by passing the following order: “In view of the averments made in the written statement to the effect that out of nine petitioners, six have been appointed and the case of the remaining is under consideration. The petition is dismissed as having become infructuous. However, the respondents are directed to decide the case of remaining petitioners within six months from today. Sd/- M.S.Librahan Judge Sd/- H.S. Brar 12.12.1994 Judge” Admittedly, petitioner was not among those six persons, who were appointed rather he belongs to those persons, whose case was to be considered. Thereafter, petitioner was issued appointment letter on December 29, 1994 along with other four persons and was appointed as Sectional Officer in the Operation and Maintenance Cell purely on adhoc basis in the pay scale of Rs.1800-3200. Since the petitioner was not appointed against a promotional post and the Tubewell Operator, as stated earlier, did not constitute the feeder cadre, his appointment was as a direct recruit. It can be discerned that the other employees undertook the litigation, which necessitated issuing of show cause notice. Petitioner, on 22nd April, 1997, was regularized as Sectional Officer. Thereafter, it is the case of the petitioner that he was promoted as Assistant Engineers on 8th March, 2006, during the pendency of the present writ petition in this Court. 5 Civil Writ Petition No. 1858 of 2003 This Court had issued a notice on 4th February, 2003 and had ordered that the impugned order dated 24th January, 2003 (Annexure P-12) shall remain stayed. Mr. Pathela appearing for the petitioner has submitted before this Court that there has been no fault on the part of the petitioner. He was appointed by the competent authority, that too in pursuance of writ petition filed, wherein a written statement was filed that the case of the petitioner is being considered. A question, which has arisen later, is that whether a person, who is not entitled to promotion, can be appointed on the post left for the direct recruits without adhering to the provisions of Article 14 and 16 of the Constitution of India and affording equal opportunity and fair competition to all, in the matters of public employment. Hon'ble Apex Court, in Secretary, State of Karnataka and Ors. V. Umadevi and Ors., (2006) 4 SCC 1, has held as under: “… … Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularized in the service though they had not been selected in terms of the rules for appointment.” It is difficult for this Court to set aside the order (Annexure P-12), which has been passed on the basis of show cause notice (Annexure P-9) and where it has been specifically stated that petitioner was inducted into the cadre as unsustainable backdoor entry on the basis of underhand method to secure the job. Admittedly, there was no open advertisement and the vacancies were not notified through the employment exchange. Number of other eligible persons were not given chance to compete. Therefore, para 36 of Umadevi’s case (supra) assumes importance, which reads as under: 6 Civil Writ Petition No. 1858 of 2003 “36. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain - not at arms length - since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to 7 Civil Writ Petition No. 1858 of 2003 available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India. It has been stated that the ratio of Umadevi’s case (supra), laid in para 36 and 39 will not be applicable as before the show cause notice was issued, services of the petitioner were regularized. I am afraid this contention cannot be accepted. In the case of temporary, contractual or casual employment, no show cause notice is required to be served. It has dawned upon the authorities that the basic feature of the constitution under Article 14, 16 and 309 is to ensure that public employment is given only in a fair and equitable manner, and by issuing show cause notice, petitioner’s services can be dispensed with. Para 41 of Umadevi’s case (supra) reads as under: “41. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf 8 Civil Writ Petition No. 1858 of 2003 of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality.” Therefore, impugned order (Annexure P-12) is upheld, as it has been passed in consonance with the constitutional scheme as enumerated in Umadevi’s case (supra). Since petitioner was regular employee, a show cause notice was served, reply was considered and impugned order reflect not only application of mind but concern of Government to ensure purity in Public Employment. At this stage, after seeing the tenor of the order by the Court, it has been stated by Mr.Pathela that petitioner has not only become overage, but has also gained experience of 14 years and has discharged his duty as Junior Engineer. Therefore, till the direct recruits are inducted by fair competition, petitioner may be allowed to continue in service and petitioner may be given an opportunity to compete. This is wholly for the Government to decide. The Government may consider the case of the petitioner as to whether he be allowed to compete as and when direct recruits are inducted in the department and whether any relaxation can be made in favour of the petitioner or not. Till 9 Civil Writ Petition No. 1858 of 2003 such a decision is taken by the Government, petitioner be allowed to continue in service. With these observations, present writ petition is disposed off. [KANWALJIT SINGH AHLUWALIA] JUDGE November 18, 2008 rps 10