Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through Secretary on 19 March, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH
ORIGINAL APPLICATION NO.350/CH/2013
Order Reserved on 10.3.2015
Pronounced on 19.3.2015
CORAM: HON'BLE MRS. RAJWANT SANDHU, MEMBER (A)
HON'BLE DR. BRAHM A. AGRAWAL, MEMBER (J)
Prema Kumari wife of Sh. Mahipal Singh, C/o Dalbir Singh, H. No.2057, Sector 41-C, Chandigarh.
Applicant
Versus
1. Union of India through Secretary, Ministry of Home Affairs, North Block, New Delhi-110001.
2. Union Territory, Chandigarh through Secretary, Technical Education, U.T. Chandigarh.
3. Director, Technical Education, U.T. Chandigarh.
4. Principal/HoD (Degree Wing), Chandigarh College of Engineering & Technology, Sector 26, Chandigarh.
Respondents
Present: Sh. J.R. Syal, counsel for the applicant.
Sh. Karamjit Singh, proxy for Sh. Vivek Arora, counsel for the respondents.
O R D E R
BY HON'BLE MRS. RAJWANT SANDHU, MEMBER (A)
1. This O.A. has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
8 (iii) The respondents may be directed to regularize the services of the applicant as Clerk, pursuant to the instructions issued by the Government of Punjab in the Department of Personnel, conveyed vide Endst. No.11/8/2009-4PP3/396, dated 18.03.2011 (Annexure A-11) as a follow-up action to the decision of the Honble Apex Court in the case of Secretary, State of Karnataka and others Vs. Umadevi and others, from the date she completed 03 years of service.
2. Averment has been made in the O.A. that on the basis of interview held on 05.02.2010 by duly constituted Selection Committee, the applicant was offered appointment to the post of Clerk and she joined as such on 09.02.2010 in the Chandigarh College of Engineering and Technology and was assigned work of Record Keeper-cum-Academic Clerk vide order dated 25.02.2010 (Annexure A-2). The tenure of contractual appointment of the applicant continued to be extended from time to time and the consolidated salary of Rs.9500/-p.m. that was being paid to her initially was also enhanced and since 07.09.2012 she is drawing Rs.22,300/-p.m. (Annexure A-8). It has further been stated that although the applicant had been serving the respondent Department since her initial appointment in February 2010, her services had not been regularized but the respondents had initiated process for filling the post held by the applicant on regular basis through issue of advertisement.
3. In the grounds for relief, it has inter alia been stated as follows:
1. The conditions of service of employees of Union Territory Chandigarh as per the Conditions of Service of Union Territory of Chandigarh Employees Rules, 1992, are the same as the conditions of service of the persons appointed to corresponding posts in Punjab Civil Services and are to be governed by the same rules and orders as are for the time being applicable to the latter category of persons. The instructions issued by the State of Punjab relating to condition of service are ipso facto applicable to the employees of the Union Territory of Chandigarh. As the State of Punjab has regularized the services of their contractual employees on completion of the service, as prescribed in the instructions dated 18.03.2011 (Annexure A-11), non-regularizing the services of the applicant is not sustainable in the eyes of law.
2. The applicant was duly appointed by the Selection Committee and her appointment had been strictly in accordance with the rules. She has tremendous experience and expertise in her field. The instructions pursuant to the judgment of Uma Devis case (supra) are equally applicable in the case of the applicant. Non-regularizing the services of the applicant is, therefore, not sustainable in the eyes of law.
3. In the case of Union Territory of Chandigarh and Others versus Rajesh Kumar Basandhi and Anr., Civil Appeal No.2731 of 1997, decided on 08.09.2003, the Honble Supreme Court of India held that no adoption of the amended provision is necessary and it would be applicable without being specifically adopted by the Chandigarh Administration. The instructions dated 18.03.2011 (Annexure A-11), though not adopted by the Chandigarh Administration, as per the judgment of the Honble Apex Court in Rajesh Kumar Basandhis case, are equally applicable to the employees of the Union Territory of Chandigarh. Ignoring the instructions and non-regularizing the services of the applicant is, therefore, not legally sustainable in the eyes of law.
4. In the written statement filed on behalf of the respondents it has been stated that Chandigarh Administration in consultation with the Finance Department vide Memo No.13/1-56-IH(10)-2009/18313 dated 18.09.2009 created 20 new posts of various categories on contract basis with the approval of Administrator, UT, Chandigarh (Annexure R-1). 02 posts of Clerk were included in this number. The applicant was appointed as Clerk on contract basis initially for a period of six months as per terms and conditions mentioned in the appointment letter dated 05.02.2010 (Annexure A-1). It was made clear in this letter that the applicant was appointed on contract basis and not against a regular sanctioned post. The posts against which the applicant is seeking regularization were not even created at that time when the applicant was appointed on contract basis. Hence the post on which the applicant joined on contract basis has no relevance with the post advertised on 13.07.2013 by Cdac Mohali. The post on which the applicant joined was created out of student fund as a stop gap arrangement.
5. The Ministry of Human Resource Development, Government of India, conveyed the approval of Ministry of Finance, Department of Expenditure, to the creation of 31 posts (16 faculty and 15 non-faculty) in the Chandigarh College of Engineering and Technology, Chandigarh vide letter dated 04.08.2010, out of which 5 posts of Clerk have been advertised by the Cdac Mohali (Annexure R-II). It is further stated that Uma Devi (Supra) is not relevant to the matter as this judgment relates to persons serving the Government Departments in 2006 and earlier while the applicant only joined as a contract employee in 2010. The applicant had availed opportunity to compete with other candidates to the post of Clerk on regular basis but she had failed to qualify the written test held in July 2010. The respondents have further stated that the circular dated 18.03.2011 (A-11) is not relevant to the present applicant. This circular has been given application only to the State of Punjab employees based on Uma Devi (Supra) judgment and this circular had not been adopted by the Chandigarh Administration. The applicant was also not eligible to claim benefit of circular dated 18.03.2011 as she was appointed in February 2010 and had not even completed 03 years service as such on the date when the circular was issued.
6. In the rejoinder filed on behalf of the applicant the content of the O.A. have been reiterated.
7. Arguments advanced by learned counsel for the parties were heard when learned counsel for the applicant reiterated the content of the O.A. He placed reliance particularly on judgment dated 08.09.2013 in Civil Appeal No.2731 of 1997 titled Union Territory of Chandigarh and Others Vs. Rajesh Kumar Basandhi and Anr. and stated that the circular of 18.03.2011 issued by Punjab Government regularizing the services of contract employee was applicable in the case of the applicant and the respondent Department was therefore bound to regularize services of the applicant. He also stated that the Chandigarh Administration had not framed its own rules for appointment of Clerks in the CCET and hence Rajesh Kumar Basandhi (Supra) was very much relevant to the matter.
8. Learned counsel for the respondents states that the contractual appointment of the applicant as Clerk was made against the posts sanctioned under the student fund and the applicant could not claim regularization against such post.
9. We have carefully considered the pleadings of the parties, material on record and the arguments put forth by learned counsel. Letter dated 18.9.2009 (Annexure R-1) shows that 2 posts of Clerk along with other posts were allowed to be filled on contract basis and expenditure on the same was to be met from the student fund. The applicants claim that she was appointed on contractual basis against a regular post is without basis. Moreover, her claim for regularization based upon the circular dated 18.03.2011 issued by Punjab Government is also without merit as there is nothing to show that this circular has been adopted by the Chandigarh Administration. The claim made on behalf of the applicant that keeping in view Rajesh Kumar Basandhi (Supra), the circular of 18.03.2011 is applicable in the case of the applicant is also without merit. The Conditions of Service of Union Territory of Chandigarh Employees Rules, 1992, are applicable to the regular employees of Chandigarh Administration and not to the persons employed on contractual basis.
10. Moreover, there can be no claim for regularization in the absence of a regular post as has been held by the Delhi High Court in the case of Amita Gulati & Ors. Vs. Union of India & Ors. CWP No.2273 of 1995 decided on 06.03.1996. In Director, Institute of Management Development, U.P. Vs. Smt. Pushpa Srivastava, JT 1992 (4), it has been held as follows:-
The appointment made purely on ad-hoc and contractual basis for a limited period comes to an end after the expiry of the period whereafter the incumbent does not enjoy any right to continue on the said post. In State of Gujrat Vs. P.J. Kamapavat, (1992) 3 SCC 226, it has been observed as follows:-
A person appointed on a purely contractual basis by the State on the specific express condition that his services shall be liable to be terminated at any time without giving any notice or assigning any reason and that the tenure of the appointment is for a limited period and would not have any right to be absorbed in the regular cadres, has no right to be absorbed permanently.
11. In view of the discussion above, the O.A. is rejected.
(DR. BRAHM A. AGRAWAL) (RAJWANT SANDHU) MEMBER (J) MEMBER (A) Place: Chandigarh. Dated: 19.03.2015 8 7 O.A. No.350/CH/2013 1