Punjab-Haryana High Court
Gurpreet Singh And Ors vs State Of Punjab And Anr on 16 December, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.20728 of 2012
:1:
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Civil Writ Petition No.20728 of 2012 (O&M)
Date of decision: 16.12.2014
Gurpreet Singh and others
..... Petitioners
Versus
State of Punjab and others
..... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr.I.S.Sidhu, Advocate,
for the petitioners.
Mr.Rajiv Prashad, Addl. AG, Punjab.
*****
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
The petitioners are working as Junior Engineers on contract basis in Punjab Rural Water Supply and Sanitation Project. Their contract has been extended on yearly basis in terms of their letters of appointment. Their services are co-terminus with the project which is funded by foreign agencies like the World Bank, NABARD, IDA etc. Indisputably, they were appointed by a selection committee set up in the Department pursuant to an advertisement issued in the newspaper in 2008. They claim that 94 vacancies of Junior Engineers are lying vacant for regular recruitment in the Water Supply & Sanitation Department and they deserve to be adjusted PARITOSH KUMAR 2014.12.26 15:20 I attest to the accuracy and authenticity of this document CWP No.20728 of 2012 :2: against those posts.
2. The department had advertised 85 posts of JE (Civil) in December, 2009. In the light of the advertisement, they approached this Court in CWP No.844 of 2010 seeking regularization of their services against the available vacancies lest they are filled up by regular recruits leaving none for them to claim adjustment from Project to Government department. The petition was disposed of on 14th December, 2011 leaving it open to the petitioners to make a representation for regularization of their services with a direction to the competent authority to decide the same within 3 months.
3. They approached the department again relying on the instructions of the Punjab Government dated 11/21st November, 2011 claiming regularization of their services on their strength. Their claim was not considered. They approached this Court again in CWP No.8233 of 2012 which was dismissed as withdrawn on 3rd May, 2012 granting them liberty to make a representation for consideration of regularization of their services. Their representation has been rejected vide order Annexure P-10. That is how they are before the Court again.
4. The State Programme Management Cell (SPMC) which runs the project is an independent organization which pilots the Punjab Rural Water Supply & Sanitation Project funded externally. It is explained that the staff recruited on contract basis including the petitioners are not paid out of the budget of the department of the State Government. The advertisement under which they were appointed has not been issued by the Department but by an independent agency set up to bolster the State effort in providing PARITOSH KUMAR 2014.12.26 15:20 I attest to the accuracy and authenticity of this document CWP No.20728 of 2012 :3: water and sanitation in different parts of the Punjab with SPMC piloting the rural project. Merely because the petitioners have been sent on election duty or on field duty, it has been done or performed while carrying out the directions of the Project Director, SPMC. The petitioners are not contractual employees of the State of Punjab but of the SPMC. The petitioners applied and competed under the advertisement against 85 vacant posts of Junior Engineers in the Department but failed to qualify and have now turned around seeking regularization under the State Government circular which is not applicable to them. Neither the petitioners have a right to regularization nor is the State under a legal duty to do so. On these premises, the representation has been dismissed by the Chief Engineer (North), Punjab under the directives of this Court to decide the representation.
5. In response to the petition, the Chief Engineer-cum-Programme Director, State Programme Management Cell (SPMC) in the Department of Water Supply & Sanitation, Punjab has filed written statement on behalf of the respondents as adverted to in the preceding paragraph from where those facts are culled out to serve as a backgrounder of what the project is about. It is stated in the WS that an agreement for financing the subject project was entered between the Government of India and the International Development Association (IDA) on 26th December, 2007 containing Articles I to V set out in the memorandum. The agreement was signed by the competent authority in the Government of India and one Mr.Rachid Benmessaud, Acting Regional Vice President on behalf of the IDA. The closing date of the agreement was 31st December, 2013. The SPMC was PARITOSH KUMAR 2014.12.26 15:20 I attest to the accuracy and authenticity of this document CWP No.20728 of 2012 :4: established by Government of Punjab vide notification dated 18th October, 2006 and the District Programme Management Cell (DPMC) was established vide separate notification dated 28th October, 2006 to run the project at the grassroots. The powers and responsibilities of the SPMC and DPMC stand defined in the notification.
6. As per the directions given by the World Bank vide letter dated 1st October, 2007 (R-3), the posts of 41 Junior Engineers were to be filled on hire from the job market on contractual basis for the duration of the project to support the project implementation activities. C-DAC, Mohali was chosen as the selecting agency to complete the selection process and recommend the names to the cell for appointments. The petitioners accepted contractual engagement and joined the offices of SPMC/DPMC and it was known to them through the letter of appointment that their status was contractual in nature and co-terminus with the project.
7. Instructions dated 18th March, 2011 relate to persons appointed on contractual basis by the State Government against sanctioned posts with due procedure followed whereas the petitioners were appointed in World Bank Aided Project and are not government servants. Therefore, the instructions are of no avail to them. No promise was held out to the petitioners that their services would be regularized or they would be paid pension and gratuity. The project does not entail any regular appointment nor was there any age bar prescribed in search of 41 persons to work under the SPMC/DPMC.
8. Paragraph 53 of the Secretary, State of Karnataka and others v. Umadevi , (2006) 4 SCC 1 cannot be read in favour of the PARITOSH KUMAR 2014.12.26 15:20 I attest to the accuracy and authenticity of this document CWP No.20728 of 2012 :5: petitioners for regularization as a one-time measure as those directions are meant for public employment. The provisions of equal opportunity clause in article 16 of the Constitution do not apply to the petitioners with respect to the present posts held by them as the equal opportunity guarantee is a fundamental right to apply only for public posts. The petitioners always free to apply for public posts and be considered for them on merits amongst the eligible candidates who offer themselves. In this situation, the petitioners cannot be migrated or transported to regular vacancies of Junior Engineers (Civil) existing in the administrative department of Government as that would induct them to Government service through the back door which is legally impermissible. The condition precedent to establish a claim under these policy circulars including the one issued on 21st November, 2011 is when an employee has been appointed on contract or work charge basis in different departments of the Government. If SPMC/DPMC does not constitute a department of the Government, then this Court can offer no help to the petitioners by issuing directions including a mandamus to the State to regularize their services against available regular posts of Junior Engineers (Civil) lying vacant, if not filled yet, in the department of Water Supply & Sanitation, Punjab. The petitioners cannot call themselves members of the cadre in the respondent department.
9. It is another matter that the State Government has sent a requisition for filling up 120 posts of Junior Engineers (Civil) through direct recruitment. The petitioners will remain at liberty to apply for those posts but an injunction cannot be issued against the State not to fill those posts or to accommodate the petitioners on those posts by subtracting a PARITOSH KUMAR 2014.12.26 15:20 I attest to the accuracy and authenticity of this document CWP No.20728 of 2012 :6: equal number of posts from the requisition as there are petitioners. Consequently, the directions sought in CM No.17823 of 2013 are refused as not sustainable. The CM is dismissed including the main petition as no merit is found therein. If the petitioners have applied for those posts and are meanwhile overage, the State Government may consider sympathetically a case for relaxation of age consistent with the exigencies and efficiency of administration.
(RAJIV NARAIN RAINA) JUDGE December 16, 2014 Paritosh Kumar PARITOSH KUMAR 2014.12.26 15:20 I attest to the accuracy and authenticity of this document