Central Administrative Tribunal - Chandigarh
Parul Aggarwal Wife Of Sh. Ashish Goel vs Union Of India Through The Secretary To ... on 26 October, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL,
CHANDIGARH BENCH
O.A.No.060/00247/2015 Orders pronounced on: 26.10.2015
(Orders reserved on: 14.10.2015)
CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J) &
HONBLE MS. RAJWANT SANDHU, MEMBER (A)
1. Parul Aggarwal wife of Sh. Ashish Goel, Resident of House No. 1722, Phase 7, Mohali.
2. Jaspreet Kaur d/o Tejinder Singh r/o House No. 619, Urban Estate, Phase-2, Patiala.
3. Ashish Kalia S/o Ishwar Chand Kalia r/o House No. 732/13, Sector 26, Chandigarh.
4. Rajiv Kumar S/o Santosh Raj r/o House No. 461, Phase-I, Mohali.
5. Sugandha w/o Anshu Moudgil r/o #1249, Sector 43B, Chandigarh.
6. Jagreet Kaur W/o Navdeep Singh r/o House No. 1092, Custom and Excise Society, Sector 51B, Chandigarh.
7. Bikramjit Kaur W/o Amrinder Singh Gill r/o House No. 23 Ground Floor, Sector 33A, Chandigarh.
8. Seema Bansal W/o Parveen Kumar r/o House No. 134, first Floor, Panchkula Heights, Peer Muchhla, Dhakoli, Zirakpur.
9. Sheetal Dabra w/o Amit Dangwal r/o House No. 292, Amravati Enclave, Pinjore-Kalka highway, Panchkula.
10. Rajesh Sharma s/o N.D. Sharma r/o House No. 867, Sector 38-A, Chandigarh.
11. Pankaj Rana s/o Chand Rana r/o House No. 3493, Sector 46-C, Chandigarh.
12. Vikramjit Pawar S/o Balakram r/o House No. 207, Ward No. 05, Dera Bassi.
13. Vinod Kumar Rohilla S/o Ram Phal Singh r/o Flat No. 306, Plot No. 49, Sector 20, Panchkula.
14. Chirag Mongia S/o Gulshan Dass Mongia r/o F 5/9, Rajpura Town, Patiala.
15. Amoijit Singh Gill S/o Darshan Singh Gill r/o Teachers Enclave, K.V.No. 1, A. F.S. Halwara, Ludhiana.
16. Rajwinder Singh S/o Rajwait Singh r/o Housie No. 565/5, Baba Isher Singh Nagar, Malwa Street Moga.
17. Harpreet Kaur d/o Tirath Singh r/o House No. 641, Sector 16-D, Chandigarh.
18. Himani Bansal w/o Varun Gupta r/o House No. 795, Sector 9, Chandigarh.
19. Sunita Saini w/o Sanjay Kumar r/o House No. 704, Sector 4, Panchkula.
20. Kariman HP Singh W/o Adarshdeep Singh r/o House No. 70, Kendriya Vihar, Sector 48-B, Chandigarh.
21. Raman Garg S/o Subhash Chand r/o Flat No. 307, 3rd Floor, Nirmal Tower, Peer Muchhala, Zirakpur.
22. Itinder Kaur d/o S.M. Singh r/o House No. 5171, Modern Housing Complex, Manimajra, Chandigarh.
23. Aradhana Mehta d/o S.C. Dhawan r/o House No. 1037, Sector 42-B, Chandigarh.
24. Karuna D/o Late B.M. Sharma r/o House No. 1132, Sector 4, Panchkula.
25. Gunjan Thakur W/o Gagandeep Singh r/o House No. 5171, Ground Floor, MHC, Manimajra, Chandigarh.
26. Ashu Arora d/o Krishan Lal R/o House No. 5633, Sector 38, Chandigarh.
27. Shalini Wasan D/o A.P. Wasan r/o House No. 3145, Sector 38-D, Chandigarh.
28. Jaskeerat Kaur D/o Sh. Jagjit Singh r/o # 764, Phase 3B1, Mohali.
29. Sarajjit Singh s/o Sh. Gurmukh Singh r/o #109, Street No. 01, Ekta Vihar, Patiala.
30. Uma Malik d/o Sohan Lal Malik R/o 3137/1, Sector 20D, Chandigarh.
Applicants
Versus
1. Union of India through the Secretary to the Government of India, Ministry of Human Resource Development, Department of Higher Education Shastri Bhawan, New Delhi-110001.
2. Union Public Service Commission through it Secretary, Dholpur House, Shahjahan Road, New Delhi.
3. Chandigarh Administration through the Administrator, Raj Bhawan, Chandigarh.
4. Chandigarh College of Engineering and Technology through its Principal, Sector 26, Chandigarh.
5. Dr.Radhey Sham S/o Sh. Shiv Ram R/o H.No. 159-C, Sector 51-A, Chandigarh.
6. Dr. Ashwani Kumar S/o Sh. Janak Singh Patyal, R/o H.No. 7067, Se. 125, New Sunny Enclave Kharar (Mohali).
7. Ms. Taran Kaur W/o S. Tarunveer Singh D/o S. Inder Singh, resident of House No. 92, Urban Estate Phase-I, Dugri Road, Ludhiana-141013.
Respondents
Present: Mr. D.S. Patwalia, Sr. Advocate
with Mr. Kanan Malik, Advocate,
counsel for the applicant.
Mr. Ram Lal Gupta, Sr. CGSC,
counsel for Respondent No.1.
Mr. B.B. Sharma, counsel for
Respondent No.2 (UPSC).
Mr. A.L. Nanda, , counsel for
Respondents No.3&4.
Mr. Varinder Kumar Shukla, counsel for applicants
in M.A.No.714/2015/Respondents No.5&6.
Mr. Manpreet Singh,
Counsel for applicants in M.A. No.
795, 796/2015)/respondent no.7.
*********
O R D E R
HONBLE MR. SANJEEV KAUSHIK , MEMBER (J)
1. The prayer in this Original Application is to set aside the order dated 10.2.2015 (Annexure A-9) and to direct the respondents to regularize the contractual services of the applicants on their respective posts against which they are working in view of the fact that now rules have been framed and there are sanctioned and vacant posts as per notification dated 19.12.2012 (A-6).
2. M.A.No. 714/2015 is allowed and Dr. Radhey Sham S/o Sh. Shiv Ram R/o H.No. 159-C, Sector 51-A, Chandigarh and Dr. Ashwani Kumar S/o Sh. Janak Singh Patyal, R/o H.No. 7067, Se. 125, New Sunny Enclave Kharar (Mohali) are impleaded as respondents No.5 & 6.
3. M.A.No. 060/00795/2015 is allowed and Ms. Taran Kaur W/o S. Tarunveer Singh D/o S. Inder Singh, resident of House No. 92, Urban Estate Phase-I, Dugri Road, Ludhiana-141013 is impleaded as respondent no.7.
4. The brief facts which led to the filing of the present Original Application are that in pursuance of various public notices / advertisements, the Chandigarh College of Engineering & Technology (Respondent No.3) inviting applications for filling up various posts for Faculty of said colleges on contract basis including one dated 7.4.2013 (Annexure A-1), the applicants had submitted their applications and on being successful were appointed as such on contract basis. At that time the qualifications mentioned in the advertisement was same as prescribed by the All India Council of Technical Education as no statutory rules governing the posts were available. Though their initial appointment was only for six months but same was extended from time to time. The applicants also requested for framing of recruitment rules so that they could be regularized and get promotions etc. but to no avail. Since they were under apprehension that their services may be dispensed with, they approached this Tribunal by filing O.A.No. 905-CH-2011 and O.A.No. 90-CH-2012 for issuance of directions to the respondents not to replace them with other set of contractual employees and allow them vacations / holidays / leave at par with regular employees.
5. The further case set up by the applicants is that the respondents have now notified The Chandigarh College of Engineering and Technology, Chandigarh Administration, Professor, Associate Professor, Assistant Professor, Assistant Professor in Applied Sciences and Senior Librarian (Group A Post) Recruitment Rules, 2012 for regulating the method of recruitment to the posts of Professor, Associate Professor, Assistant Professor, Assistant Professor in Applied Sciences and Senior Librarian (Group A Post) in the respondent no.3 college, vide notification dated 19.12.2012. The posts against which applicants are working have been notified as sanctioned posts. Though the applicants were possessing the qualification required at the time of their initial appointment but some of them do possess even the qualification mentioned in the rules and some are in the process of acquiring such higher qualification. Consequent upon promulgation of these rules they had first right of regularization and were hopeful of regularization. However, their hopes were dashed when they came to know that the respondents are in the process of making fresh selection against the posts held by the applicants and in that process interview letters / call letters have been issued on 11.2.2015. The claim of the applicants is that their case is squarely covered by decision of Honble High Court of Punjab and Haryana in CWP No. 10319-CAT-2001 (Sumangal Roy Vs. Union of India & Others); Shashi Tejpal Vs., State of Haryana, CWP No. 11260 of 2007 decided on 6.2.2008 and CWP No. 11144-CAT-2002 Maninder Singh and Another Vs. Union of India etc. decided on 2.2.2009. Hence, this Original Application.
6. Respondents No.1 and 2 have not filed any reply on the premise that they are proforma party. Respondents No.3&4 have filed a detailed reply. They submit that the claim of the applicants for regularization was considered in terms of direction of this Tribunal dated 30.7.2014 in two Original Applications filed by them which has been rejected vide order dated 10.2.2015. The decision in the case of Sumangal Roy (supra) was distinguishable as applicants in that case were engaged on regular pay scale and adhoc basis by the Administration whereas in this case the applicants have been engaged on contract basis only for a limited period till regularly selected candidates join the posts and as such they have no right for regularization. The post against which regularization is sought is a Group A post and Administration is not competent to make regular appointment without the recommendations of the UPSC. The decision in case of Shashi Tejpal (supra) is also not applicable as Lecturer in that case was working in a private college for lat 5 years and was appointed by way of regular selection committee. On contract basis, all the eligible persons do not apply and the competition is very limited whereas in the case of regular pay scales and selection, the standard of competition, selection and constitution of Selection Committee is entirely different. It cannot be said that they have competed with all the eligible candidates and undergone the rigorous process of selection. The applicants were appointed on contract basis only till 31.12.2011 and there have been breaks in their contractual services. They have to make way for regularly selected candidates. The applicants get only consolidated pay and not pay in a proper pay scale. A new Institution was set up by the Respondents in 2002 to cater to the needs of the students. The Administration is not competent to frame rules. The process to frame rules was initiated in 2009 and has seen light of the day only vide notification dated 19.12.2012. There was no intentional delay on their part in framing of the rules. No promise was made to the applicants that they would be regularized on their job. The decision in the case of Maninder Singh (supra) is also different as in that case the Lecturers were appointed on adhoc basis and not on contract basis.
7. The plea of respondents No. 5 & 6 is that respondents had issued Advertisement No. 04/2014 (A-10) on 9-14 March, 2014 in response to which they had submitted their applications and were selected as Assistant Professors (Mechanical Engineering). In O.A.No. 905/CH/2011 and O.A.No. 1260/CH-2011, a finding has already come that the appointments of applicants shall continue till of course regular appointment is made and regular incumbents join their duty against the posts. Thus, the applicants have to make way for respondents No.5 and 6. The respondent No. 7 pleads that 6 posts of Assistant Professor (Civil Engineering) were advertised in April, 2014 in which applicants No. 5 did not apply. Applicants No. 24, 25 and 30 had appeared in the selection but were unsuccessful. She is already working in the respondent College on contract basis and as such she will not consume post of any other person.
8. We have heard learned counsel for the parties and perused the material on record.
9. A conjunctive perusal of pleadings would indicate that the applicants had approached this Tribunal in O.A.No. 905/CH/2011 Parun Aggarwal etc. Vs. Union of India etc. and O.A.No. 1260/CHs-2011 Pardeep Kumar etc. Vs. Union of India & Others which were decided on 9.1.2012 (Annexure A-4). In those cases the specific plea raised by the applicants was that their appointment is contractual in character and they should be allowed to continue in service (uninterruptedly) till the regular appointees join and they should be allowed vacations and salary for vacation period etc. The Bench has held in para 10 as under :-
In view of the judgment rendered by us in Vandana Jains case (supra), by which view we are bound as an equi-Bench, we invalidate the relevant terms and conditions in the appointment letters of the applicants where their appointment is indicated to be for a fixed duration. We categorically declare that their appointments shall continue uninterruptedly till, of course, regular appointees come to be appointed and join duty against the posts the applicants are occupying at the moment. (Emphasis ours).
10. A perusal of the finding given by a coordinate Bench of this Tribunal in earlier round of lis leaves no manner of doubt that the applicants could be continued in employment only till regular appointees come to be appointed and join duty against the posts held by them. The claim for grant of salary for the vacation period was also allowed by the Bench. In para 19 (a) the Bench specifically recorded that The respondents are restrained from replacing the applicants / contractual lecturers by appointees of the same hue.. It was clearly held by the Bench that The contractual lecturers shall, obviously make way for the regular lecturers. Thus, now the applicants cannot be allowed to turn around and claim that they are entitled to regularization on their respective posts as their claim stands settled by decision of this Tribunal in earlier cases.
11. In any case we have perused the decision in the case of Sumangal Roy (supra), Maninder Singh (supra) and Shashi Tejpal (supra) in which cases the terms and conditions of appointment of the Lecturers / Teachers was altogether different. Their selection and appointment was in the nature of regular one but it was termed as adhoc only for some technical reasons and as such the Court issued directions to regularize their services.
12. At this stage, learned counsel for the respondents submitted that a Bench of this Tribunal has already rejected identical O.A.No. 060/00230/2014 Shilpa Jindal Vs. UOI etc. vide order dated 10.7.2015 relating to a contractual employee which is subject matter before Honble High Court in CWP so. 16157 of 2015. Paras 11 to 18 of the order being relevant are reproduced as under :-
. 10. Now even though the Tribunal came to the conclusion that Rule 14 did not permit regularization made under the impugned orders of January 3,1985 and February 14,1985, it, having regard to the long service put in by the employees named in the same two orders and on compassionate considerations, has supported the regularization under Article 162 of the Constitution. It has moulded the relief on such considerations. Since that part of the order has not been assailed and since the appellants cannot be worse off by appealing, we cannot interfere with that part of the order. It will, therefore, be worked out as directed by the Tribunal but we may clarify that it will not have the effect of disturbing the seniority of regular appointees who will rank senior to the irregular appointees under any interim orders contrary to the relief moulded by the Tribunal shall be adjusted and brought in tune with the said relief. The benefit of this relief, to the extend relevant, will be given to irregular appointees covered under both the impugned orders of January 3, 1985 and February 14, 1985.
13. Now we proceed to consider the case of the applicant in the light of law, laid down in Sukanti Mahapatra (supra) case. Admittedly, in this case the applicant was appointed as contractual employee on local basis for a specific period till regular selection is carried out as per rules. Initially she worked as Lecturer from 2003 to 2009 and after leaving that job, she joined as Assistant Professor in 2009 in the respondent College itself. There is no scheme or rules of regularization shown by the applicant. In the light of observations made by the Honble Apex Court, we have no doubt in our mind that the challenge of the applicant to the recruitment rules or to the advertisement has to fail. It has been held in Union of India v. S.L. Dutta AIR 1991 SC 363 and State of Andhra Pradesh v. V. Sadanandam AIR 1989 SC 2060 that the manner in which posts are to be filled up including the methodology and the modalities thereof is the prerogative of the employer and that once a policy decision based on expert advice is taken and all the aspects are thrashed out, it cannot be treated as without application of mind or arbitrary and such functions are best left to the Executive and the Courts should not interfere with the same. The rules in question have been made under article 309 of the Constitution of India. Just because same do not mention about regularization like applicant or do not take care of persons like her who were appointed on contractual basis does not mean that the rules are illegal in any manner. In so far as claim of the applicant for regularization is concerned, in the case of in R. N. Nanjundappa (supra), it has been held that if the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularized; ratification or regularization is possible of an act, which is within the power and province of the authority or where there has been some non-compliance with the procedure or the manner, which does not go to the root of the appointment; regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new method of appointment in defiance of rules, for, it may have the effect of setting at naught the rules itself.
14. The applicant has relied upon decision of Honble Punjab and Haryana in the case of Guneeta Chadha Vs. Union of India, 2001 (1) SCT 1026 to claim that in that case the employees like applicant were regularized and as such the applicant too is entitled to be regularized. The facts of the case are totally different and distinguished as much water has flown down the river since that decision. The questions of law and fact were totally different and are distinguishable. In that case the Court declared in the facts and circumstances of the case that the applicants had been appointed on regular basis since initial date of their appointment. The decision in the case of Dr. Gagan Inder Kaur Vs. Union Territory of Chandigarh, 1995 (6) Scale 581 would also be of no help to the applicant. In that case also the Court held that the appointment of applicants though termed as adhoc was in fact regular one. In both the cases the appointments had been made under available recruitment rules. The decision in the case of Shashi Tejpal Vs. State of Haryana, 2008(2) SCT 402 is also of no help to the applicant inasmuch as it was held that once procedure for appointment under Statute has been complied with, only administrative decision in respect of payment of grants in aid to post occupied by petitioner had to be taken and it would be wholly unreasonable if a person even after 14 years of continuous services is not granted approval. In this case the applicant was appointed purely on contractual basis for a short time and till regular selection is made. Now recruitment rules have been made and selection is to be carried out in accordance with the same. Thus, the applicant cannot be extended any preference over and above other candidates. In the case of Maninder Singh Vs. Union of India, 2009 (2) PLR 160, the petitioner was eligible for the post. In this case it has gone unrebutted that the applicant is not even eligible in terms of the recruitment rules framed by the respondents.
15. The principles to be adopted in the matter of public appointments have been formulated by Honble Apex Court in M.P. State Coop. Bank Ltd., Bhopal v. Nanuram Yadav & Ors., (2007) 8 SCC 264 as under:
(1) The appointments made without following the appropriate procedure under the rules/government circulars and without advertisement or inviting applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India.
(2) Regularization cannot be a mode of appointment.
(3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization.
(4) Those who come by back-door should go through that door.
(5) No regularization is permissible in exercise of the statutory power conferred under Article 162 of the Constitution of India if the appointments have been made in contravention of the statutory rules.
(6) The court should not exercise its jurisdiction on misplaced sympathy.
(7) If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection.
(8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside.
16. The Constitution Bench of the Apex Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors., AIR 2006 SC 1806, has held that any appointment made in violation of the Statutory Rules as also in violation of Articles 14 and 16 of the Constitution would be a nullity. Adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment. The Court further rejected the prayer that ad hoc appointees working for long be considered for regularization as such a course only encourages the State to flout its own rules and would confer undue benefits on some at the cost of many waiting to compete.
17. In State of Orissa & Anr. v. Mamata Mohanty, (2011) 3 SCC 436, the Apex Court dealt with the constitutional principle of providing equality of opportunity to all which mandatorily requires that vacancy must be notified in advance meaning thereby that information of the recruitment must be disseminated in a reasonable manner in public domain ensuring maximum participation of all eligible candidates; thereby the right of equal opportunity is effectuated. It was held as under:-
Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the notice board, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.
18. In this case the applicant was appointed on specific terms and conditions from which now she cannot escape more so when she is not even eligible under notified rules. She has to make way for a regular appointee through the UPSC. She cannot claim that she should be allowed to continue on contractual appointment for all times to come or she be treated as a regular employee when even the rules had not been formulated for the post in question.
13. For the parity of reasons given in the case of Shilpa Jindal (supra), this Original Application too turns out to be devoid of any merit and is dismissed. The interim order dated 24.3.2015 shall stand vacated. M.A.No. 060/00799/2015 filed by UPSC for vacation/ modification of stay, M.A.No. 060/00811/2015 filed by Respondents No.3&4 and M.A.No. 060/00796/2015 filed by Respondent No. 7 for same purpose are disposed of accordingly. This decision would, however, be subject to ultimate view to be taken by Honble High Court in CWP No. 16157/2015 Shilpa Jindal Vs. C.A.T. etc.
14. The parties are left to bear their own costs.
(SANJEEV KAUSHIK) MEMBER (J) (RAJWANT SANDHU) MEMBER (A) Place: Chandigarh.
Dated: 26.10.2015 HC* 1 O.A.NO.060/00247/2015