IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letters Patent Appeal No.203 of 2007 Date of Decision: May 15th, 2009 Dharambir and others Appellants Versus State of Haryana and others Respondents CORAM:- HON'BLE MR. JUSTICE T.S.THAKUR, CHIEFJUSTICE HON'BLE MR. JUSTICE JASBIR SINGH Present: Mrs.Abha Rathore, Advocate for the appellants Mr.Rameshwar Malik, Additional Advocate General, Haryana for respondent No.1 Mr.Sushil Jain, Advocate for respondent No.2 ….. Jasbir Singh, J. This order will dispose of Letters Patent Appeal Nos.203 and 210 of 2007, involving similar facts and questions of law. For the sake of clarity, the facts are being mentioned from Letters Patent Appeal No.203 of 2007. In this appeal, the appellants, who are seven in number, have laid challenge to the judgment passed by learned Single Bench of this Court on 20.3.2007. By that judgment, while the prayer of the appellants for reinstatement in service, was declined, the Court ordered that after removing clause 5, from the criteria laid down to select candidates for the post of Waiter, the cases of the appellants be considered, as per their seniority, against available posts. It was further ordered that merit list prepared on 5.12.1999 be kept intact for a period of one year from the date of the judgment delivered by the Single Judge. All the appellants have to their credit qualification of Diploma Letters Patent Appeal No.203 of 2007 2 in Hotel Restaurant and Counter Service. They were taken in as Waiter (Trainees) by respondent No.2 between years 1991 and 1994. As per documents on record, the training period was for two years from the date of joining, which was liable to be further extended for a period of six months. It was further stipulated in the offer letter that except stipend of Rs.850/- (fixed) no other benefit will be granted to the candidates. Clause 3 of the offer letter (P-2) reads as under:- “3. On the completion of the training, it will not be obligatory on the part of the management to offer you any employment nor it will be obligatory on you to accept any employment in the Corporation. You will, however, be considered for appointment on same regular post subject to the availability of post, on the completion of your successful training.” All the appellants joined the respondents under the terms and conditions stipulated in document Annexure P-2 and other similar offer letters. It is common ground that on completion of training period, their services were not terminated. They continued in service against fixed amount. Several writ petitions were filed by the Waiter (Trainees) and all those cases were disposed of in terms of an order passed in CWP No.18474 of 1996 (Dharambir and others v. State of Haryana etc.) on 1.6.1999. In those writ petitions, the Waiter (Trainees) had claimed regular appointment against the posts held by them. By the order, referred to above, the writ petitions were allowed and the petitioners therein ordered to be absorbed against the advertised posts, if they were eligible for the same. Haryana Tourism Corporation went in appeal, which was disposed of on 30.9.1999, with the following direction:- Letters Patent Appeal No.203 of 2007 3 “Without prejudice to the stand of the respondents on facts alleged in the appeal, by consent of parties, the impugned judgment dated 1.6.1999 is modified to the extent that the writ petition would stand allowed and a direction issued to the Corporation to consider for absorption petitioners No.1 to 51 against the advertised posts, if they are eligible for the same. In the above terms, the appeal is disposed of.” Record reveals that the appellants and other similarly situated candidates appeared for interview for the post of Waiters on 5.12.1999, however, they were not selected. It is necessary to mention here that prior to the round of litigation, referred to above, the right of the Waiters (Trainees) for regularization, was negatived by a Division Bench of this Court in CWP No.4374 of 1998 (Tikka Ram and others v. State of Haryana and others) on 12.10.1998. Relevant portion of the order reads thus:- “After hearing learned counsel for the parties and going through the records of the case, we are of the view that the petitioners cannot raise any legitimate grouse against the impugned orders. Nothing else is required to be discussed in view of the categoric averments made by the respondent Corporation that jobs on regular basis and the posts on which the petitioners were under-going training, are not available and further that as and when there is vacancy, the petitioners shall be considered in order of seniority. The provisions of Apprentice Act, 1961 or clause in the appointment letter pressed into service by learned counsel for the petitioners cannot possible be appreciated nor in fact deserve to be appreciated in face of the stark reality that no job is available Letters Patent Appeal No.203 of 2007 4 with the respondent Corporation where the petitioners might be accommodated. Assuming, the petitioners had been adjusted against regular posts, and on account of loss suffered by the Corporation, or for any other reason, such permanent posts had become surplus, could the petitioners legitimately contend that they must continue in service and the respondent Corporation has no right to terminate the service of such workers? In out view, the answer to the question posed above has to be given in negative. If the petitioners cannot ask for their continuance on the jobs, even though regularly job available with the respondent Corporation. We have been informed that similar writ petition No.2921 of 1998 came to be dismissed by a Division Bench headed by J.L.Gupta, J on August 17, 1998. A copy of the decision aforesaid has been placed on records of the case. Learned counsel for the petitioners could not dispute that Baljit Singh and another had filed the writ petition aforesaid on the same facts and circumstances but she further stated that the provisions of Apprenticeship Act and Standing Order of the Corporation were not discussed in the judgment aforesaid. We have already mentioned that there is absolutely no necessity to go into the issue posed by learned counsel in view of the fact that respondent Corporation does not have any vacancy available against which the petitioners may be accommodated.” To the same effect is the order passed by another Division Bench on 17.8.1998 in CWP No.2921 of 1998 (Baljit Singh and others v. State of Haryana and others), wherein taking note of terms and conditions Letters Patent Appeal No.203 of 2007 5 under which Waiters (Trainees) were taken in service, it was observed as under:- “Admittedly, while admitting the petitioners for training it was stipulated that the management shall not be obliged to offer any employment on successful completion of the training. The petitioners have accepted this condition before they joined the training programme with the Corporation. In this situation, the offer made on behalf of the respondents is absolutely just and fair. Resultantly, the writ petition is disposed of with a direction that the claim of the petitioners shall be considered against the posts that may be available. In case they are found suitable they may be absorbed. Otherwise action in accordance with law may be taken. The claim shall be considered in order to seniority.” For their regular appointment in service, the Waiters (Trainees) filed CWP No.2235 of 2000, which was dismissed by this Court with liberty to them to file a contempt petition. The appellants filed COCP No.232 of 2000, which was dismissed on 22.11.2000, holding that once Waiters (Trainees) have participated in the selection process and have failed to qualify, they are estopped from raising any further dispute. Review petition filed in the above contempt petition was also dismissed on 29.11.2001. In the meantime, service of the appellants was terminated on 17.1.2001. In the order of termination, it was specifically stated that regular selection has been made in view of order passed in Baljit Singh’s case (supra). The appellants have failed to come in the merit list, as such, they could not be retained as Trainees anymore. The appellants were relieved from Training with immediate effect. They came to this Court by filing CWP No.6993 of Letters Patent Appeal No.203 of 2007 6 2002, which was disposed of vide the impugned judgment. Hence, this appeal. Counsel for the parties heard. Counsel for the appellants, Mrs.Abha Rathore, Advocate has vehemently contended that the order passed by the learned Single Judge deserves to be modified, ordering permanent absorption of the appellants in service. In the alternative, it was prayed that service of the appellants were terminated without complying with the provisions of Section 25-F of the Industrial Disputes Act, 1947, in view of that, order of termination cannot be sustained, it be quashed and appellants be reinstated in service. Prayer made has vehemently been opposed by the State counsel, by stating that more than due, has already been given to the appellants. In view of terms and conditions of their training, they were not entitled to even relief granted to them by the learned Single Bench. He prayed that appeal having no substance be dismissed. After hearing counsel for the parties, we are satisfied that counsel for the appellants has failed to indicate any infirmity in the order passed which may necessitate interference by us in Letters Patent Appeal. It is not disputed before us that, as per terms and conditions of their training letter (P-2), they continued to work against fixed stipend. Their initial training was only for two years, which was also extendable further. It appears that somehow or the other, they remained in training and thereafter, they started litigation at various level on account of which, they continued as Waiter (Trainees). In their training letter (P-2), it is specifically mentioned that on the basis of training period, the Waiter (Trainees) will not claim any benefit further. Only right of consideration against regular post was given to them, which they have exhausted under Letters Patent Appeal No.203 of 2007 7 orders passed by this Court in Baljit Singh’s case (supra). Having failed there, it is not open to them to raise any dispute further. Under orders of this Court, as referred to above, a rational criteria was formulated for selection, to the regular post of a Waiter. The learned Single Bench found that Clause 5 in the above said criteria formulated in the year 1989 was to the detriment of the appellants and accordingly, clause 5 was ordered to be quashed. To say so, it was observed as under:- “The only fault in the criteria was clause 5 which restricted the merit list upto 70% for general category, 60% for backward class and 50% for scheduled caste category. When all the Waiter Trainees were duly qualified and were holding one year diploma and had acquired experience as Waiter Trainees for a number of years, the yardstick of restricting the merit list upto the percentage stated above was not justified particularly when the jobs were available. No doubt the Government of Haryana had stopped recruitment against the available vacancies while adopting economy measures but still some posts of waiters are lying vacant. The respondents are, therefore, directed to make regular appointments of Waiters out of the merit list prepared by them in the interview held on 5.12.1999 of course on seniority basis against the available vacant posts forthwith. This merit list shall remain valid for a period of one year and the Waiter Trainees shall be appointed on seniority basis as and when the vacancies of Waiters arise.” We are satisfied that the finding given above, is perfectly justified. By ordering removal of clause 5, of the criteria for selection to the Letters Patent Appeal No.203 of 2007 8 regular post of Waiter, equity has been settled in favour of the appellants. They do not deserve anything more. It is an admitted fact that the appellants and other Waiter(Trainees) were taken in for a fixed period. Somehow or the other, they continued in service. When process of selection for regular appointment was initiated, they started litigation at various level. At this stage, no benefit of the intervening period can be granted to them. After making selection, as per orders passed by this Court in Baljit Singh’s case (supra), to adjust regularly selected candidates, they were relieved from training. Above said act cannot be taken as a retrenchment because the same has been done in consequence to the offer letter under which they were taken in training. Otherwise also, when initially, the appellants were taken in as Waiter (Trainees), there was no open advertisement. They were brought in from the back door. They continued in training by initiating litigation at various levels. In view of above, we feel that at their instance, no interference can be made in judgment, under challenge and they cannot be held entitled to get any compensation in terms of Section 25-F of the Industrial Disputes Act, 1947. Dismissed. (JASBIR SINGH) JUDGE May 15th 2009 (T.S.THAKUR) gk CHIEF JUSTICE