1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA C.W.P. No. 174/2000 along with CWP Nos.263,429, 566 of 2000 and 212 of 2001. Date of decision: 26.6.2008 CWP No. 174/2000 Renuka Bali & anr ….Petitioners Vs. Union of India & others ….Respondent For the Petitioners Mr. Sunil Chaudhary, vice Mr. Anand Sharma, Advocate. For Respondents 1,2,4 and 5. Mr Sandeep Sharma, ASGI CWP No. 263 of 2000. Varinder Kumar ….Petitioner Vs. Union of India & others ….Respondent For the Petitioner Mr. Sunil Chaudhary, vice Mr. Anand Sharma, Advocate. For Respondents 1,2,5 and 6. Mr Sandeep Sharma, ASGI For Respondents 3 & 4 Mr. Vinay Kuthiala, Adv. CWP 429 of 2000 Anupama Sharma & anr ….Petitioners Vs Union of India & others …Respondents. For the Petitioners Mr. Vikram Thakur, vice Mr. Shrawan Dogra, Advocate. 2 For Respondents 1,5 and 6. Mr Sandeep Sharma, ASGI For Respondents 2 to 4 Mr. Vinay Kuthiala, Adv. CWP 566 of 2000 Vijay Laxmi & another …Petitioner Vs Union of India & ors …Respondents. For the Petitioners Mr. Ranjeesh Maniktala Advocate. For Respondents 1,4 and 5. Mr Sandeep Sharma, ASGI For Respondents 2 & 3 Mr. Vinay Kuthiala, Adv. CWP 212 of 2001 Jeewan Lata ….Petitioner Vs Union of India & others ….Respondents. For the Petitioner Mr. N.K. Khosla, Advocate For Respondent No.1. Mr Sandeep Sharma, ASGI For Respondents 2 to 5 Mr. Vinay Kuthiala, Adv. Coram: The Hon’ble Mr. R.B.Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? Per R.B.Misra, J. (Oral) The present writ petition has been preferred against the order dated 29.2.2000 passed by learned 3 Central Administrative Tribunal ( for short ‘The Tribunal’ in OA No. 495-HP of 1998 ), whereby other three Original applications namely OA No. 537-HP of 1998, OA No. 535-PB of 1998 and OA No. 540-PB of 1998 have also been adjudicated and disposed of by the learned Tribunal by a common order. In view of the fact that in all the Original applications the prayers were common, therefore, on the request of learned counsel for the parties, all the writ petitions are being adjudicated and disposed of by a common order. 2. Undisputedly, the writ petitioners were appointed as Stenographers Grade-D in the department of Income Tax on ad hoc basis in the pay scale of Rs. 1200-2400/- from time to time in the year 1994, 1995, 1996 on different dated and they were allowed to continue initially for a period of 89 days. However, writ petitioners were put to breaks after every three months for a few days and were re- engaged for subsequent period. The deployment of these writ petitioners on ad hoc basis were made in reference to the names having been sponsored by the Employment exchange, selected through due process 4 after undergoing shorthand/ typing test and by approval of duly constituted committee for the purpose. According to the writ petitioners, the establishment/ department where the petitioners were deployed is a permanent establishment and posts of Stenographers are of permanent nature. However, to cope up with the workload, urgency and smooth functioning of the Income Tax department, the respondents resorted to the practice of appointing Stenographers/ Lower Division Clerks on ad hoc basis initially for a period of 89 days and allowed them to continue for several years with notional breaks since the Income Tax Department was unable to get regular incumbents recruited through Staff Selection Commission. In such circumstances, the valuable services of the petitioners were utilized by the respondents. 3. Being aggrieved for not getting regular appointment, writ petitioners through their respective Original applications approached to learned Central Administrative Tribunal seeking directions to the respondents to conduct a special test for the writ petitioners for regularization keeping in view the facts 5 and circumstances for non availability of regular incumbents through Staff Selection Commission. It has been pleaded on behalf of writ petitioners before learned Tribunal that the appointment of writ petitioners were through recognized source of agency and on being sponsored their names through respective employment exchange and not through backdoor entry and since their initial appointments were made by the duly selected committee constituted for the purpose and they had put in 3 to 4 years of satisfactory service under Income Tax Department, therefore, they are entitled for regularization with regular salary. 4. The consistent stand of respondents before the learned Tribunal was that though the writ petitioners were appointed initially on ad hoc basis for a period of 89 days, however, they were allowed to continue for some time by giving notional breaks keeping in view of the requirement of work. It was also contended on behalf of the respondents before the learned Tribunal that as per existing recruitment rules, there is no provision for regularizing the services of the incumbents deployed as ad hoc Stenographers. 6 Recruitment of Stenographer working on Grade-III cadre is to be made 100% by direct recruitment which could be done only by Staff Selection Commission. The Income Tax department is not competent to conduct the special test for regularization of the services of the writ petitioners/applicants. According to the respondents, the deployment of writ petitioners on ad hoc basis was made keeping in view the directions and approval of Commissioner of Income Tax, Patiala though such appointments were consequent upon the sponsorship of their names through employment exchange. It had also been fairly indicated by the respondents before the learned Tribunal that despite regular intimation about the existence of work and vacancy, the Staff Selection Commission has not been able to approve the requisite number of candidates to cope up the requirement of the Income Tax department. Further according to the respondents, no special test can be conducted at the level of Income Tax Department. However, the aspirants/writ petitioners/incumbents if so desire, could have applied to the Staff Selection Commission 7 for passing the requisite examination being conducted regularly. 5. It appears that an interim directions were given to the respondents by learned Tribunal indicating not to replace the writ petitioners by other ad hoc employees as the aspirants/petitioners have continued for some time. It has specifically been brought to the notice of learned Tribunal that the posts against which the writ petitioners herein ( the applicants before the learned Tribunal) have been working as ad hoc Stenographers were not permanent posts. On the basis of the pleadings and materials on record and after hearing rival contentions of the respondents herein, learned Tribunal has observed that the rights of applicants ( writ petitioners herein) were limited to the deployment as ad hoc employees under the terms and conditions of their appointment which initially were on daily wage basis. As such the Tribunal cannot raise a presumption of existence of posts. The learned Tribunal has also arrived at a conclusion that the appointment to the post of Stenographer/LDC in the Income Tax Department has to be done through Staff Selection Commission 8 and when there are specific recruitment rules for regularization for employees and there are specific instructions of the Government of India for recruitment of employees in the Income Tax Department, in such conditions, the court cannot give directions for regularization of the persons deployed on ad hoc basis and when Staff Selection Commission is prevailing, then also no direction could be given to the respondents to conduct a special test for regularization of the applicants (writ petitioners herein). 6. Learned Tribunal has relied on the decision of Hon’ble Supreme Court in J & K Public Service Commission & others Vs. Dr. Narinder Mohan & others 1994 (27) ATC 56, Union of India & Others Vs. Harish Bal Krishan Mahajan 1997(3) SCC 194, Santosh Kumar Singh Vs. State of H.P. 1996(1) SLR 602, Committee of Management, Arya Nagar Inter College, Kanpur Vs. Shri Kumar Tiwari & & another 1997 SCC (L&S) 967 and has observed in paragraph 12 as below: “12. On the question that the respondent Ministry/Department has been taking work from these applicants as 9 Stenographers/LDCs again cannot confer any rights on them. Directions were issued to consider creation/sanction of posts but the Court itself cannot direct creation of posts. This is a prerogative of the State/the Executive. The Courts cannot and should not be used as a conduit dehors the rules for appointment or for regularization of services if the same is not provided under the relevant rules. The prayer of the applicants, thus for a direction to regularize their services after holding a special test, other than the process of selection by the Staff Selection Commission is, therefore, found to be not available under the Law. Their selection and appointment was on local basis. It may not be a backdoor entry, but still is not as per the process of selection applicable to them. Unfortunately for them, the steps taken by the respondents for seeking approval of the Department of Personnel and Training have remained without any result. Recruitment to Gr.III Stenographers is 100% by direct recruitment and it would not be competent for the Income Tax Department to conduct special tests for making regular appointments. It is another thing that the Staff Selection Commission has not been able to nominate adequate number of candidates for 10 appointment as and when vacancies arose. That, however, does not empower this Court to direct regular appointments ignoring rules.” 7. Learned Tribunal vide impugned order while dismissing batch of OAs has declined to give any direction for regularization in favour of applicants ( writ petitioners herein) much less by holding a special test for their regularization to the posts of Stenographers/LDCs. However, learned Tribunal vide impugned order dated 29.2.2000 has indicated that the present writ petitioners should be given preference in future keeping in view to their past work and conduct and the seniority on the deployment on ad hoc basis in past. 8. Mr. R. Maniktala, learned counsel for the the petitioners have consistently taken similar stand for and on behalf of the writ petitioners which they have taken before learned Tribunal. In addition, Mr. R. Maniktala has submitted that it is not disputed that the petitioners were not eligible initially while they were appointed on ad hoc basis in the Income Tax Department as they had undergone the required shorthand/typing test conducted by the duly 11 constituted committee for the purpose and their names were initially sponsored by the respective employment exchange and they discharged the work to the satisfaction of the Income Tax Department and by virtue of their continuous deployment, all the writ petitioners have become proficient in their work, however, many of them have become over age. In such circumstances, the Income Tax Department ought to have regularized the services of the petitioners by holding a special test by Staff Selection Commission by indicating appropriate relaxation so that their valuable services rendered in past might not be ignored. As has been submitted on behalf of the writ petitioners that by virtue of perpetual requirement of work and necessity of deployment of petitioners in the Income Tax Department, it should be presumed that the permanent posts were available. In such circumstances, the petitioners’ past services have to be given due weightage and appropriate directions are to be given for their regularization to the posts of Stenographers/LDCs or to Grade. III post. 9. Learned counsel for the petitioner Mr. Khosla has placed reliance on the decision of Hon’ble 12 Supreme Court in U.P. State Electricity Board Vs. Pooran Chandra Pandey & others 2007 (11) SCC 92: JT 2007 (12) SC 179 where the Hon’ble Supreme Court has endeavoured to distinguish its earlier decision in Secretary, State of Karnataka and Others Vs. Uma Devi (3) and others (2006) 4 SCC 1 and has observed in Pooran Chand Pandey case (supra) that in view of the facts and circumstances when petitioners were working from 1985 as daily wager in Co operative Electric Supply Society which were subsequently taken over by Electricity Board and they had put in about 22 years of service as daily wager, in such circumstances, the claim of their regularization cannot be denied after their rendering for such a long period of service by discriminating them with those daily wage workers deployed in the Electricity Board, as such the claim of writ petitioner in Pooran Chandra Pandey case (supra) were not to be ignored on the ground of discrimination as has been made in reference to article 14 of the Constitution of India. It has been submitted on behalf of Mr. Vinay Kuthiala, learned counsel appearing for the Income Tax Department and Mr. Sandeep Sharma, learned counsel 13 appearing for Union of India that the decision of Hon’ble Supreme Court in Pooran Chandra Pandey (supra) is different and distinguishable and the same shall not give protection to the cause of the present writ petitioners as the writ petitioners in Pooran Chandra Pandey (supra) were of two categories where daily wagers deployed in Cooperative Electricity Supply Society after being taken over by Electricity Board were given different treatment in respect of regularization in comparison to those daily wagers of Electricity Board. According to the respondents that in respect of regularization of daily wagers and ad hoc employees, the Hon’ble Supreme Court has already elaborated the guidelines in Uma Devi (supra), according to which the services of the petitioners cannot be regularized. It has further been submitted that in the absence of substantive vacancies and rules for regularization of ad hoc employees in the Income Tax Department, no direction for regularization for absorption in favour of petitioners could be given by this court, more so, when the petitioners had no right to the post by virtue of their deployment on ad hoc basis in the Income Tax Department. Learned counsel 14 for the respondents, in view of the observation made by the Hon’ble Supreme in Uma Devi (supra) has submitted that the High Court in exercise of power under article 226 of the Constitution of India shall not issue direction for absorption, regularization or for permanent continuance unless the recruitment rules itself provide so. The relevant para 43 of Uma Devi case (supra) is reproduced herein below: “43 Thus, it is clear that adherence to the rule of equality in public employment is a basis feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing 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 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 15 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, the 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 temporary employees whose period of employment has come to an end or 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, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued 16 under cover of an order of the court, which we have described as “litigious employment” in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after al, if ultimately the employee approaching it is found entitled to relief, it maybe possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the by passing of the constitutional and statutory mandates.” 10. Since there is no recruitment rules for keeping the writ petitioners continuously on ad hoc basis and for observing them on regular basis, as such, no interference is called for in the impugned order. 17 9. We have heard learned counsel for the parties and have also perused the documents and analyzed the impugned order. We are of the considered view that there is considerable force in the statement of respondents and in the absence of substantive vacancies and also in the absence of specific Rules for regularizing, no direction could be issued to the respondents to regularize the services of the petitioners deployed intermittently as adhoc employees. We do not find any illegality and impropriety in the impugned order passed by the learned Tribunal, therefore, the writ petitions being devoid of merit, are dismissed. In view of the dismissal of the writ petitions, respective miscellaneous applications pending, if any, are also dismissed. ( R. B. Misra ), J. ( Sanjay Karol ), J. 27th June, 2008 (sl)