5 29 IN THE I4IGHCOURT OF PUNJAB 8cHARYANA AT CHANDIGARH 0 1 CWP N7358 of2010 DateofDecisionlSA2011 MohinderSinglland another ePetitioners Versus Tourism Ltd Through its MJ1 2 CWP No 1908of2010 RakamSingh Petitioner Versus m Q Tourism Ltd Through its MD 0 0 0 3 CWP No 3451 of2010 I NareshKumar others Petitioners C5 Versus Tourism Ltd Through c itsM Z 4 CWP N 3939of2010 BhoopSinghandanother 2etitioners CC Versus Z Tourism Ltd Through L3 itsM Z CORAMe HONBLE MRJUSTICE PERMOD KOHLI Oo Present Mr Ashok SharmaNabhewalaAdvocatefor the 7 Z Mr AjaiJain Advocate for the tl 98 4 4t PERMOD KOHLIJ ORAI The order dated32009 1S commonin a11these The grounds of challengc andlhe nature of beingalso 1 similar all these petitions are being ofbythiscolnmon order ts a Govt controlled and thus falls within the purvlewof State under Article 12 of the and is amenableto the writ of thisCourt 44a A 6t0na9w a new mnrv w r 4 1e avsee rraaA i 9 Anita Rani 2014.05.01 11: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:52 I attest to the accuracy and integrity of this document 430 r t2 CWPNo7358of2010 2 as Job Trainee in thesewrit petitions were CounterIncharge Trainee Kitchen HelpersKitchen Trainee clc All the possess ofmatricandaboveplusDiploma Theywere betweenthe 111various branchesof Hotel variousbranchesin the 1991to 1993 as TraineeslHOerS111 years herein above Their was through corporatton as conditions The terms of 1 written letterscontainlng 1r thedate mD Osl 41 foranother6 monthsin the event of failure to e 0 of joiningextendable the training payinentof Oxedstipendduringthc C5 m4 of trainingand rightof the to if traininglS 4 in the wee Another relevallt contained 4 not found t ne letter readsas underl I7 Sl it will not be obligalool Oll 444 On of training t it will be lhepart of the to 0Heryou any nor 6 on you to acceplany ill the You will howeverbe ofposton the ofyour training Il i It is common case ofthe parties that even thoughthe initial monthshowever the even the and have worked between 7 to 8 years when their scrvlces were e4 ultimately with in theyear198 Some ofthe on their and thcywere takenbdckto servicefor a short whileandagainrelievedfromtllc duties Some ofthe alongwith 1 CWPNo 2921 of 1998 titled as other situatedpersonsOled Kuldeep SinghandothersVs ofIiaryana andothers Similarwrit 1 Anita Rani 2014.05.01 11: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:52 I attest to the accuracy and integrity of this document 4311 r CWPNo 7358of2010 3e were Oledbyvarious other similarly situated This writ petitionwas allowedvide dated 61999 and following directions were issued Ir 6 In theresult thewrit petilionis allowedand a direction issued to the to absorb l to 51 againstthe adllerlised postsif theyare eligibleforthesame This directionwill nol in the case ofpelitioner no21 whohas sirlce wilhdrawnfromthe will be at libertylo fill up the remaining vacant 1 case The 0 ATocosts 2J 0 The filed an LPA LPA No 866 of 1999 0 Z the Division Bench of this Court The Honble Division Bench C5 modiftedthe wjththe consent of the The mOdfld I t directionsare as underl Z to lhe standof the on facts 64 Without m in theappeaIby ofpurtiesthe dated e the extenttllathc writ petition wouldstandallowed 32 161999is modUled to CO anda direction issued to the to considerthe absorption Z 51againstthe advcrlisedpostsif theyare eligiblej79r C Nol to QO the same In theaboveterms theappeal is oj 7 Z Sdl Arun BeSaharya jl 301999 ChiefJusticee 31 OneVirender who was also workingas a JoloTraince Waiterfiled CWP No of 2001 The matter was consideredby the C Full Bench of this Court andtlhewrit petition was allowedwitll a directionto the to takebackthe in servlce on thepostthat he Was at the time when he was relievedon the that he was gettingA further direction was issuedfor same Pursuantto tJlC Anita Rani 2014.05.01 11: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:52 I attest to the accuracy and integrity of this document 1 432 CWP No 7358of2010 4 2 afbresaid VirenderSinghwas takenback in service with full backwages Another namely H2insRajYadav Oled CWP No 1964of 2001 which also came to be decidedin the same manner vide dated2672006 1 It is admittedcase of theparties thatafterthe were relievedfrom service the had issuedadvertisement 1 1 for direct recruitinent on various postsadvertised Under these r variouswrit petitlons came to be filed 0 0 Jl is by thc that after the I about100 waiters were absorbedbythe who were 5 I juniorto the and were appoinl in the year 2000 Since tlle 4 Z were not considercdfor anotherCWP No6993 of 2002was Oledin this Court Thispetition was alsodecidedvide C dated2012007 titled as Dharamvirand others Vs Stateof Haryanaand I tlO othersby a learnedSingleJudgeof this Couit In this writ petitionthe Z had also the criteria adoptedbythe for 10 considerationfor of the petitioners and otller similarlYSitUated mV3 Z LeamedSingleJudgeof this Court foundthat oneofthe clause tl sl of the criteria was to the detrimentof the Accordingly directionswere issucdl 64 in view thediscussion heldabove thewrt2etlln is ofwilh the directions to lhe to remove clause5from thecriterzlaid down bythelnundto make iter 4e Traineesfromthe merit list prcparedby themaj2erholdingintenliew on 5 12 1999 to theslicity againstthe availableval1lt Iostsad to the merit lt intactfora periodofoneyearfromtodayand to give them as and wllenthevacancies arise March 20 2007 Sdl SeNe Judge 35 Anita Rani 2014.05.01 11: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:52 I attest to the accuracy and integrity of this document 1 433 re CWP No 7358 of2010 5 After thepassing of this the considercd some of the andvide orderdated 13122007 ten personswere absorbedagainst the postsof waitoersThe grievance of the lS thattheir claimswere still not considered Petitionerscontinuedto make Some of the even filedcontemptpetitionbeing COCP No1244of 1999and some ofthe Oled CWP No6365 of 1 1998 In COCP Nol244 0f1999 following orderwas passedl 1 64Inview oftheabove the is disposed ofwithci 0 direction lo the to considerthecase no313 and 0 15 and other situated for absorption in the lightof I 5 altached as Annexure Pm2lo Pe6 with CM N8197CII of I 2008 February022009 Sdl T0PS Mann Z Judge 31 t fL As a consequenceof the aforesaiddirections the I consideredthe claim of tlle and have now passed the t3 orderdated382009 In thc aforesaidorder the has considered Z all the relied upon by the The claim of the 00 for absorption has been primarily Ontwo grounds 7 Z Thatin view of theConstitutionBench of theHonble Supreme Qm Court in case of Secretary State of KarnatakaVs Uma Devi as 4 SCC 1the of the services of the who were notselectedbyanyvalid is iIl law 21That e ln view ofthe of theHonble DivisionBenchof thisCourt dated 21 102008 in CWP No11076 of 2007 titled as Dilawar SinghVs Officer Industrial TribunallmeLabour Court the petitioners who were engaged as Trainees are not workmenand thus theyare not entitledto the Anita Rani 2014.05.01 11: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:52 I attest to the accuracy and integrity of this document 434 1 1 r CWP No 7358of2010 m J In the written statement8ledbythe a israised On factsit is statedthat the of the aS JOb Traineeswas not against the sanctionedposts It is furtherstated 1999 that the State Govt pennissionfor that it was in of 140postsofwaiters 83 postsofKitchen Helpers and13postsof vide sanctionletter dated2711999 Thesepostswere Counter for which an advertisement was ltl meantfor direct 01 17 the newspaper on 273999for flllingup thepostsof waiters It is further 0 43 that in responseto the advertisementa number of candidates C applied for thepostshowever in the meantimethe including some t5 I dated 1 61999 was delivercd in CWP No 18474of 1996 Z direction was issued to consider nol to 51 except nol againstthe adverlisedposts Hvever the order was petitioner modifledin LPA No 866of 1999andinsteadof direction to absorbit was I t3 directed to consider them for The have also Z mentionedthat in orderto te a suitabilitycriteriaWaS ClO forvarious posts The criteriahas beendiscloscdin the It laid down emo Z is accordinglystatedthatsome ofthc did not ful8ll the Ll essential whereasthc othersdid not getthe requisitc marksas therefore they were unsuccessful Some of the candidatesflled CWP No6993 of2002 the criteria d1 and thiswrit petition was allowedwith certain directionsandtheorderwas in LPA No203 of2007 Somereview Oled were also dismissed lvlrSharmaleamedcounselfor the submitsthat the in Utna Devis case is not appliole in thepresent case as the Anita Rani 2014.05.01 11: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:52 I attest to the accuracy and integrity of this document 435 r CWP No 7358of2010 e7 were engaged muchearlier in timeand even directionshavebcen issued in various writ petitions for ofthe petitionersIt is further contendedthat personswith similar have beenabsorbed In para80f thereplyflled bythe the has statedthatthe do not havesiinilar as in Virender Singhs case 1 Admittedlythe petitioners are out ofjobsince 1998 These Q writ petitionshave been filed in the ycar 2010 the 0 tJ orderdated32009 TherelSno dispute tllat were as I C9 Traineeson fixed stipendwith a further thattheywill have no X claim for regularjobItis also notin dispute thatthe initial engagement of Z the petitioners as Trainees was witlhoutany advertisementor aily 5t 2 0 procedure for to the publicservice As a matter of fact tlle I entrywas back door It is equallyprovedthatvarious directions C have been issued by this Court including a Full Bench to Z 4t consider the petitioners for Someof the writ petitioners have OO 4t been absorbed The petitioners were not partiesto the Full Bench aum Z thoughtheyclaim to be similarlysituated Right of Il consideration lo the petitioners is vide orderpassedin thecontempt petition beingCOCP No 1244of 1999 Petitioners claim hasbeenrejected vide the impugned order One of the important questionis whether lhe petitioners have C anyrightof in the service of the It lS indisputed that the Is a Stateand thus all the posts with the are partof thepublic lt is not in fact an absorption but a thattoo afterthcirserviccs wcre Anita Rani 2014.05.01 11: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:52 I attest to the accuracy and integrity of this document 436 r CWP No 7358of2010 8 44 with longback TherelSno speci6 whercundcrllle have been directedto be absorbed vanous directionstheclaim ofthe can onlybeconsideredin thelighlof the directionsissued by Honble Court in ConstitutionBench in case of Secretary Stateof KamallkaVs Uma Devi as 4 SCC l suprallt is relevantto note thatsome ofthe observations of the Honble SupremeCourt relating to the Ilb l are as underl 0 4 53 Oneaspectneedslo be clarijiedThere may be cases 0 1 where Ozotillegal as lll C5 SV Narayanaa RN NanjuridaaundBV and rerred to Z inpara 15 above ofdulyqualuled personsin dulysanclionedvacant posts hallebeenlnadeand lhe haveconlinuedto worlor lCTl 2 years or more but withoutthe intenlenlionof order of the courts or of m tribunals The of oflheservlces ofsuch r may have to be consideredon meritsin thellghtofthe settledby C1 thisCourt in thc cases above to and in thelightof this Z In that contex the Union of India the State Governmentsand their er shouldtakestepsto as a oneatimemeasure the 0 4t sennces ofsuch who haveworkedfor ten years or mmo Z duly but not undercover ofordersofthecourts or nzore m of tribunals and shouldfurtherensurethal regularrecruitmcnts are Ll undertakentojill thosevacant thatrequireto bejllledup tn cases where temporary or daly Mlagers are beingnow Theprocessmtist be set in molionwithin six monthsJ7omthis dale We also clarifythat tfanyalready made but not sub W judiceneed not be basedoll but thereshouldbe no bassing of tlle constitutional and regulwisillg O permanentthose not duly as per the constitutional scheme 11 Anita Rani 2014.05.01 11: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:52 I attest to the accuracy and integrity of this document 437 V P CWP No 7358of2010 m9 The claim of the could bestbe consideredin tlle light of the aforesaid The have accorded considerationand theirclaim Thepetitioners havenot beenableto establishthat their initial engagement was and 110tillegal As a inatter of fact theywere only Trainees on stipendbasis and their was against no post Posts were createdonlyin theyear1999 1 Thesepostswere put to advertisementOf course under the directionsof the C Honble Division Bench of this Court some of thevacancies were utilized 0 0 for of some of the candidatesbut that does not hclpthe I t5 petitioners to seekabsorption even whentheir claimswere on their I consideration Even if therc 1S any speciflcdirection for their Z considerationthe samealso cannot be enforcedin Vlew of the following observationsof the Honble Court in case of Uma Devi supral rt e I whereinin para54 it hasbeenheldas underl 0 c 54 It is alsoclarijiedthatthosedecisionswhich run counter Z to the principlesettledin this decision OY lll which directions running QO Couriter to whatwe hale held herein will stand denudedof their status as precedents Il 7 Z In view of the above circumstances it is not possibleto grant Om relieftothepetitionersThese are dismissed Copyofthis orderbeplaced on eachconnectedOle C e Q1 n PERMOD KOHLII JUDGE 8 Ae20110 lucky L Whetherto be Yes 0141 Il Anita Rani 2014.05.01 11: 01 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:52 I attest to the accuracy and integrity of this document