Central Administrative Tribunal - Mumbai
Jignesh B. Panwala vs The Administrator on 12 December, 2013
1 O.A. No. 553/2008 & 102/2010 CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI. ORIGINAL APPLICATIONS NO.: 553/2008 and 102/2010 Dated this Thursday, the 12th day of December, 2013. CORAM : Hon'ble Smt. Chameli Majumdar, Member (J). Hon'ble Dr. Mrutyunjay Sarangi, Member (A). O.A. 553/2008 Jignesh B. Panwala, Junior Engineer, (W.C.E.), Electricity Department, Office of Executive Engineer, Administration of Daman & Diu, Nani Daman (U.T.), (Pin 396 210). R/at: Manish Apptt., 303, 3rd Floor, Opp. Satyanarayan Temple, Kathiria, Nani Daman 396 210 ... Applicant (By Advocate Shri S.P. Saxena) VERSUS 1. The Administrator, Union Territory Administration of Daman & Diu, Secretariat, Moti Daman 396 220. 2. The Finance Secretary, Finance Department, Secretariat, U.T. Administration of Daman & Diu, Moti Daman 396 220. 3. The Executive Engineer, Electricity Department, U.T. Administration of Daman & Diu, Power House Bldg., 2nd Floor, Kathiria, Nani Daman 396 210. ... Respondents (By Advocate Shri R.R. Shetty) 2 O.A. No. 553/2008 & 102/2010 O.A. No. 102/2010 Rajendra Bhagwan Vala, Junior Engineer, Work Charged Establishment, Sub-Division II, Office of the Assistant Engineer, Sd.-II, Electricity Department, Diu R/at: Main Road, Jolawadi- Diu 362 520. Nani Daman 396 210 ... (By Advocate Shri S.R. Atre) VERSUS 1. The Administrator Administration of Daman and Diu, Department of Personnel and Administrative Reforms, Secretariat, Daman 396 230 2. The Secretary (Finance)/Power, Administration of U.T. of Daman & Diu, Secretariat, Daman 396 230 3. The Executive Engineer, Administration of U.T. Daman & Diu, Office of the Executive Engineer, Electricity Department, Power House Building, 2nd Floor, Kathiria, Nani Daman 396 210. 4. The Assistant Engineer, Sub Division II, Electricity Department, Diu 362 520. 5. Shri Pareshkumar Karshan Patel, Junior Engineer (Electrical), Electricity Department, DAMAN. 6. Shri Ajay Manilal Patel Junior Engineer (Electrical), Electricity Department, DAMAN. Applicant 3 O.A. No. 553/2008 & 102/2010 7. Shri Pritam Hasmukh Rathod, Junior Engineer (Electrical), Electricity Department, DAMAN. 8. Shri Mahesh Karshan Bamania, Junior Engineer (Electrical), Electricity Department, DAMAN. ... Respondents (By Advocate Shri R.R. Shetty for Respondents No. 1 to 3 and Shri K.R. Yelwe for Respondents 5 to 8) O R D E R
Per : Smt. Chameli Majumdar, Member (J).
In these two Original Applications, the applicants have primarily prayed for regularisation of service. Since similar question of law is involved and similar reliefs have been prayed for in both the Original Applications, a common order is being passed. However, the facts of the two O.As. are stated separately herein below :
O.A. 553/20082. The applicant, working as Junior Engineer, Work-
Charged Establishment, Electricity Department, in the Office of the Executive Engineer, Administration of Daman & Diu, New Daman, has filed this O.A. praying for the following reliefs :
(a) to allow the Original Application,
(b) to hold and declare that the Applicant is eligible and entitled for regularisation in the post of Junior Engineer (Electrical) under the Respondents,
(c) to direct the Respondents to consider and issue appropriate orders of regularisation of theApplicant in the post of Junior Engineer 4 O.A. No. 553/2008 & 102/2010 (Electrical) from the date of his initial appointment i.e. 06.05.2003,
(d) to grant all consequential benefits includingseniority, counting of service for all purposesetc.,
(e) to pass any other orders which may be considered necessary in the facts and circumstances of the case,
(f) to award the cost of Original Application.
3. The applicant was appointed in the post of Junior Engineer vide order dated 06.05.2003 after being sponsored by the Employment Exchange for selection to the post of Junior Engineer. A duly constituted Selection Committee selected the applicant in the said post. But in the appointment letter, the applicant was offered a post of Junior Engineer on work-charged establishment. The terms of appointment, as laid down in the said appointment letter was that the appointment was temporary and would not confer any right for permanent employment. The applicant might be terminated at any time by a month's notice given either side, i.e., appointee or the appointing authority without assigning any reason. The applicant was appointed on 06.05.2003 for the period up to 28.02.2004. The applicant's service was extented time to time by issuing orders.
4. The applicant has annexed the Recruitment Rules for recruitment to the post of Group 'C' and 'D' post in the Electricity Department under the administration 5 O.A. No. 553/2008 & 102/2010 of Daman & Diu. From the schedule to the said Recruitment Rules it appears that the method of recruitment was by direct recruitment or by promotion or by deputation or by absorption. It appears that the applicant, pursuant to an advertisement dated 04.12.2006, applied for selection to the regular post of Junior Engineer (Electrical). However, the Selection Committee prepared a select list consisting of five persons and the applicant's name was kept at Sl. No. 1 in the Wait List. The grievance of the applicant is that although two vacancies were advertised but five candidates were selected and appointed.
5. The respondents have filed their reply. The respondents contentions are, inter alia, that despite having been appointed in a work-charged post since 1998, the applicant alleged non-grant of regularisation of his service. The applicant participated in the selection process for regular appointment, therefore, the applicant was estopped from pursuing the present O.A. The Recruitment Rules were framed in 2001. The Memorandum dated 03.12.2007 relied on by the applicant has since been withdrawn by the respondents vide O.M. dated 03.12.2008. The applicant has to undergo regular selection process. The claim of the applicant for regularisation de hors the rules does not arise.
6 O.A. No. 553/2008 & 102/2010 O.A. 102/20106. The applicant who was working as Junior Engineer in Work-charged establishment in the Office of Assistant Engineer, Sub-Division II, Electricity Department, Diu, has filed this present O.A. against orders dated 04.01.2010 whereas Respondents No. 5 to 8 have been appointed to the post of Junior Engineer (Electrical) overlooking the claim of the applicant for regularisation in the post of Junior Engineer. The applicant also filed this O.A. against the possible termination of his service as Junior Engineer pursuant to the appointment of Respondents No. 5 to 8 on the post of Junior Engineer (E).
7. The applicant has sought for the following relief :
(a) This Hon'ble Tribunal be pleased to call forthe records and proceedings of the present case especially leading to the appointment/regularization of Respondent Nos. 5 to8 and after examining the legality and proprietythereof, quash and set aside the Impugned Ordersdated 4th January, 2010 (Annexure A-1) and directthe Respondents to regularize the services of theApplicant in the post of Junior Engineer(Electrical), with all consequential benefits.
(b) This Hon'ble Tribunal be pleased to hold anddeclare that the Applicant is deemed to have beendeclared quasi-permanent/permanent in the post ofJunior Engineer (Electrical) on he having completedthree years of continuous service in the post andaccordingly direct the Respondents to grant him allthe benefits of permanent pay-fixation, arrears ofsalary, pension etc.;
(c) Pass any such order and /or Orders as this Hon'ble Tribunal deems fit and proper in the factsand circumstances of the present case.7 O.A. No. 553/2008 & 102/2010
(d) Costs of the Application be provided for.
8. The applicant was appointed initially as an Electrician on daily wages. The applicant's name was sponsored by the Employment Exchange on work-charged establishment in the Electricity Department, Daman. Thereafter, on the recommendations of the Departmental Selection Committee for Group 'C' and 'D' post under work-charged establishment of Electricity Department, the applicant was appointed to the post of Junior Engineer vide order dated 06.05.2003. The applicant was appointed for a period up to 28.02.2004. His appointment was extended subsequently thereafter by issuing fresh orders. The Learned Counsel for the applicant submits that instead of regularising services of the applicant under relevant service rules pertaining to the work-charged establishment, the respondents issued a circular dated 04.12.2006 calling for applications for filling up three posts of Junior Engineers two for unreserved and one for O.B.C.
9. The applicant admits that all the eligible candidates including the applicant, who was working on work-charged establishment, was called vide notice dated 17.10.2008 to remain present for the written test to be held on 23.11.2008. The applicant having passed the Written Test, he was called for an interview to be 8 O.A. No. 553/2008 & 102/2010 held on 05.01.2009. However, the applicant did not find place in the list of candidates. But instead of 3 posts advertised, five persons were selected vide 26.03.2009. The applicant apprehends that the private respondents from 5 to 8 were juniors to the applicant in the work charged establishment and were selected, therefore, the applicant's service may be terminated at any time.
10. We have heard Shri S.P. Saxena, Learned Counsel for applicant in O.A. 553/2008 and Shri S. R. Atre, Learned Counsel for applicant in O.A. 102/2010. Shri R. R. Shetty, Learned Counsel for official Respondents in both the O.As. and Shri K.R. Yelwe, Learned Counsel for Private Respondents No. 5,6,7 and 8 in O.A. No. 102/2010 have also been heard. The pleadings along with documents annexed have also been perused.
11. In support of their case, the Learned Counsel for the applicants, at the time of arguments, have relied on a decision rendered by the Himachal Pradesh High Court (Seema Sharma Vs. Lokayukta Himachal Pradesh through its Secretary [2013 (4) SLR 592 (H.P.). The Learned Counsel annexed to the common notes on submissions the decision of the Hon'ble Supreme Court [Smt. K. Lakshmi Vs. State of Kerala & Others reported at 2012 AIR SCW 1825]
12. The learned counsel for the official respondents has relied on the following judgments in support of 9 O.A. No. 553/2008 & 102/2010 their contentions :
(i) Om Prakash Shukla Vs. Akhilesh Kumar Shukla & Others [1986 SCC (L&S) 644].
(ii) Madan Lal & Others Vs. State of J & K and Others [1995 SCC (L&S) 712].
(iii) Suneeta Aggarwal Vs. State of Haryana & Others [2000 SCC (L&S) 313]
(iv) State of Punjab Vs. Raghbir Chand Sharma & Another [2002 SCC (L&S) 104].
(v) Khetrabasi Biswal Vs. Ajaya Kumar Baral & Others [2004 SCC (L&S) 182].
(vi) Ramrao & Others Vs. All India Backward Class Bank Employees Welfare Association & Others [2004 SCC (L&S) 337].
13. Learned Counsel for the applicants have relied on the CPWD Manual for work-charged establishment. The Learned Counsel submit that the provisions of CPWD manual applies in the instant case. The learned Counsel for the applicants have referred to para 8.01. The said para 8.01 envisages that Central Civil Services (Temporary Services) Rules, 1956, are applicable to such of the temporary work-charged employees, as have opted for pensionary benefits. The temporary work-charged employees of this category shall be declared quasi-permanent under the aforesaid rules. The same paragraph 8.01 in sub-para 4 says that work 10 O.A. No. 553/2008 & 102/2010 charged staff of CPWD opting for pensionary benefits may be declared quasi-permanent. Learned Counsel for the applicants also rely on sub-para 12 of para 9.02 which says that an employee will be considered for confirmation in the first instance in the category of post actually held by him on a regular basis. If he cannot be confirmed in that category either due to non- availability of permanent post or because of his position in the seniority list in that category, he can be considered successively for confirmation in his own turn in each of the lower post actually held by him previously. Relying on these paragraphs of the CPWD, learned counsel for the applicants submit that the respondents ought to have confirmed and given quasi- permanency to the service of the applicants. Having not done so, the respondents violated Articles 14, 16 and 21 of the Constitution. The learned counsel for the applicants have referred to paragraph 2.06 of the said CPWD Manual which envisages 'Registration of Departmental Candidates with Employment Exchange'. It is stated that such of the members of work-charged establishment as are educationally qualified for equivalent Group 'C' posts may be issued a 'No Objection Certificate' to enable them to register themselves with the Employment Exchange as outsiders.
14. The CPWD Manual (Volume-III) which has been annexed 11 O.A. No. 553/2008 & 102/2010 to this O.A. belongs to 1984 Edition published by the Authority of the Director General of Works, Central Public Works Department, New Delhi. Para 2.06 of the said CPWD Manual envisages as follows :
2.06 Registration of Departmental Candidates with Employment Exchange No objection Certificate for registration with the Employment Exchange :
Such of the members of workcharged establishment as are educationally qualified for equivalent Group 'C' posts may be issued a 'No Objection Certificate' to enable them to register themselves with the Employment Exchange as Outsiders. However, they will not be eligible for priority III as is admissible to the educationally qualified Group 'D' employees of the regular establishment under the rules 33(29)/ 58-EW-V dated 12.11.1958. Para 2.06 contemplates that such members of this work- charged establishment who are educationally qualified for equivalent Group 'C' post may also compete as outsiders in open selection process after registering themselves with Employment Exchange. It also appears from the said Manual that in a work-charged establishment under CPWD, there will be permanent employees, quasi-permanent employees as well as temporary employees. It is not disputed that the administration of Daman & Diu issued notification dated 29.05.2001 whereby the Recruitment Rules was issued.
The introductory paragraph of the said notification is set out herein below :
In exercise of the powers conferred by the provision to Article 309 of the Constitution read with the Government of India, Ministry of External 12 O.A. No. 553/2008 & 102/2010 Affairs Notification No. F.7(11)/62/GOA dated 25th July, 1963 and Department of Pers. & Training O.M. No. A-B/1401/2/97-Estt(RR) dt. 25/5/1998, and in supersession of the existing Recruitment Rules for the posts and all other powers enabling him in this behalf, the Administrator of Daman & Diu hereby makes the following rules relating to recruitment to Group 'C' and Group 'D' (Non-Gazetted Non-
Ministerial) posts in the Electricity Department under the Administration of Daman & Diu.
15. We are afraid that after promulgation of Recruitment Rules vide notification dated 29.05.2001, it would be open to the applicants to rely on the CPWD Manual for the purpose of recruitment or regularisation. The consistent view of the Hon'ble Supreme Court that regularisation of service in temporary posts de hors the provisions of Recruitment rules will not be permissible, being opposed to the basic feature of the Constitution of equality in public employment. Admittedly, the selection process was initiated for appointment in the post of Junior Engineer vide advertisement dated 04.12.2006. The applicants, without any protest, participated in the said selection process for appointment in the permanent post. Therefore, now it is not open to the applicants to contend that their services are required to be regularized when their names could not find place in the select list prepared by the duly constituted selection committee for appointment in the permanent post of work-charged establishment.
16. The prayer of the applicants primarily is to 13 O.A. No. 553/2008 & 102/2010 regularise their service but the issue of regularisation of temporary, casual, work-charged employees has gone a sea-change in various decisions of the Hon'ble Apex Court.
17. The Constitution Bench judgment of the Hon'ble Supreme Court in Secretary, State of Karnataka & Others Vs. Uma Devi & Others [AIR 2006 SC 1806] emphasised the constitutional scheme relating to public employment. The court noted that the constitutionally mandated process has to be scrupulously followed and cannot be bypassed by the Union or the State as well as respective instrumentalities and regardless of their duty to ensure proper appointment procedure. The Hon'ble Supreme Court held that in additional to Equality Clause represented by Article 14 of the Constitution, Article 16 has specifically provided for equality of opportunity in matters of public employment. Buttressing those arguments, the Hon'ble Apex Court in Uma Devi (3)'s case held that Article 309 provides that subject to the provisions of the Constitution, Acts of the legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of a State. The so called equity arising out of giving of temporary employment or engagement on daily wages and the continuance of such persons in the 14 O.A. No. 553/2008 & 102/2010 engaged work for a certain length of time can have only a limited role to play when every qualified citizen has a right to apply for employment. The adoption of the concept of rule of law and the scheme of the Constitution for appointment to posts, it cannot be forgotten that it is not the role of the Courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted while adopting the Constitution. The approving of such acts results in depriving many of their opportunity to compete for public employment.
18. In Umadevi (3), the Hon'ble Apex Court in paragraph 17 has said that the State is also controlled by economic considerations and financial implications of any public employment. The viability of the department or the instrumentality or of the project is of equal concern for the State. The State works out the scheme taking into consideration the financial implications and the economic aspects. Court cannot impose on the State a financial burden by insistence of regularisation or permanence in employment. The Hon'ble Supreme Court, in paragraph 20, declined to accept the previous judgment of the Hon'ble Supreme 15 O.A. No. 553/2008 & 102/2010 Court where the Apex Court directed for regularisation of ad hoc or temporary employees by formulating a Scheme.
19. In paragraph 36 of the judgment, the Hon'ble Supreme Court held that while directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain not at arms length, since he might have been search for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it could not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment, which is not permissible. If the courts were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any 16 O.A. No. 553/2008 & 102/2010 relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude to enable the giving up of the procedure established for making regular appointments to available posts in the services of the State.
20. The Hon'ble Supreme Court has gone further to say that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument 17 O.A. No. 553/2008 & 102/2010 indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and
309.
21. Paragraph 41 of the said judgment is set out herein below :
41. It is argued that in a country like Indiawhere there is so much poverty and unemploymentand there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the veryargument indicates that there are so manywaiting for employment and an equal opportunityfor competing for employment and it is in thatcontext that the Constitution as one of its basic features, has included Articles 14, 16and 309 so as to ensure that public employmentis given only in a fair and equitable manner bygiving all those who are qualified, an opportunity to seek employment. In the guise ofupholding rights under Article 21 of the Constitution of India, a set of persons cannotbe preferred over a vast majority of peoplewaiting for an opportunity to compete for Stateemployment. The acceptance of the argument onbehalf of the respondents would really negatethe rights of the others conferred by Article21 of the Constitution, assuming that we are ina position to hold that the right to employmentis also a right coming within the purview ofArticle 21 of the Constitution. The argumentthat Article 23 of the Constitution is breached because the employment on daily wages amountsto forced labour, cannot be accepted. After all, the employees accepted the employment attheir own volition and with eyes open as to thenature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basicrequirement of public employment would defeat the constitutional scheme and the constitutional goal of equality.
22. The Hon'ble Supreme Court in the case of Official 18 O.A. No. 553/2008 & 102/2010 Liquidator Vs. Dayanand & Others [2009 (1) SCC (L&S) 943 highlighted the changing approach of the Court in regularising temporary, contractual, casual, daily wage or ad hoc employees. While in 1980 and 1990s the trend was to treat such employees at par with regular employees and schemes framed to such effect by the Government tended to approve regularisation or conferring equal benefits irrespective of mode and source of employment, the Court was of the view that such approach encouraged several employees who got employment through backdoor methods gained an undue advantage over genuine candidates resulting in a huge pool of illegal employment corrupting the whole system.
23. The Hon'ble Apex Court in Umadevi's case has made some notable permissive deviations (i.e. exceptions) enunciated by itself namely (
i) Where irregular appointments (i.e. those not in compliance with procedure) have been made or continued but sanctioned posts were vacant or become vacant, the State will take immediate steps for filing those posts by a regular process of selection.
(ii) In the situation covered by (i) above, when regular recruitment is undertaken, the irregulars will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the concerned 19 O.A. No. 553/2008 & 102/2010 department for a significant period of time.
24. The Court justified such departures drawing upon Article 142 of the Constitution to do justice to the irregulars. In this regard, paragraphs 44 and 46 of the said judgment are set out herein below :
44. One aspect needs to be clarified. There may be cases where irregular appointments (notillegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to inparagraph 15 above, of duly qualified personsin duly sanctioned vacant posts might have beenmade and the employees have continued to workfor ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to beconsidered on merits in the light of the principles settled by this Court in the casesabove referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the servicesof such irregularly appointed, who have workedfor ten years or more in duly sanctioned postsbut not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require tobe filled up, in cases where temporaryemployees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any alreadymade, but not subjudice, need not be reopenedbased on this judgment, but there should be nofurther by-passing of the constitutional requirement and regularizing or makingpermanent, those not duly appointed as per theconstitutional scheme.
45. xxx xxx
46. In cases relating to service in the commercial taxes department, the High Court hasdirected that those engaged on daily wages, bepaid wages equal to the salary and allowancesthat are being paid to the regular employees oftheir cadre in government service, with effectfrom the dates from which they were 20 O.A. No. 553/2008 & 102/2010 respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that are being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily wage earners, there would be no question of other allowances being paid to them. In view of our conclusion, that Courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularization. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in C.A. No. 3595-3612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the 21 O.A. No. 553/2008 & 102/2010 exercise of power by this Court under Article 142 of the Constitution to do justice to them.
25. The applicants herein joined the temporary service in a work-charged establishment. The Hon'ble Supreme Court in the case of Jaswant Singh Vs. Union of India [AIR 1980 SC 115] has held that a work-charged establishment broadly means an establishment of which the expenses, including the wages and allowances of the staff are chargeable to works. The pay and allowances of employees who are borne on a work charged establishment are generally shown as a separate sub-head of the estimated cost of the work. The Hon'ble Supreme Court further observed that The work charged employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. From the very nature of their employment, their services automatically come to an end on the completion of the works for the sole purpose of which they are employed. They do not get any relief under the Payment of Gratuity Act nor do they receive any retrenchment benefits or any benefits under the Employees' State Insurance Schemes.
26. The Hon'ble Supreme Court in the case of State of Punjab Vs. Jagjiwan Ram [2009 (3) SCC 661] held that work-charged employees cannot be treated on a par with regular employees. Work-charged employees cannot also claim regularization as of right.
27. The Learned Counsel for the respondents submits that in the work-charged establishment there are permanent posts of Junior Engineer. Selection was held 22 O.A. No. 553/2008 & 102/2010 for filling up posts of Junior Engineer in 2009 pursuant to an advertisement of 2006. Admittedly, the applicants participated in the said selection process but their name did not find place in the Select List.
The name of Applicant of O.A. 553/2008 appeared at Sl.
No. 1 in Wait List. The Hon'ble Supreme Court, on number of occasions, has held that a candidate who participated in the selection process, being aware of the procedure, cannot turn round and contend that the selection process was bad.
28. The Hon'ble Supreme Court in the case of Madan Lal & Others Vs. State of J & K and Others [1995 SCC (L&S) 712] in paragraphs 9 and 10 held that the result of interview, test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. Paragraph 9 is set out herein below :
9. Before dealing with this contention, we must keep in view the salient fact that thepetitioners as well as the contestingsuccessful candidates being concerned respondents herein, were all found eligible inthe light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no disputebetween the parties. The petitioners also appeared at the oral interview conducted by theconcerned Members of the Commission who interviewed the petitioners as well as the concerned contesting respondents. Thus the petitioners took a chance to get themselves selected at the said oral interview. Onlybecause they did not find themselves to haveemerged successful as a result of their combined performance both at written test andoral interview, that they have filed this 23 O.A. No. 553/2008 & 102/2010 petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. In the case of Om Prakash Shukla v.
Akhilesh Kumar Shukla and Ors., (AIR 1986 SC 1043), it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination withoutprotest and when he found that he would notsucceed in examination he filed a petitionchallenging the said examination, the HighCourt should not have granted any relief to such a petitioner.
29. The Hon'ble Supreme Court further in paragraph 10 has held that the assessment on merits made by an Expert Committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body. The Court, not being the Court of appeal, cannot act over the assessment made by such an expert committee. Para 10 of the said judgment is set out herein below :
10. Therefore, the result of the interview teston merits cannot be successfully challenged by acandidate who takes a chance to get selected atthe said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sitas a Court of appeal and try to reassess the relevant merits of the concerned candidates who had been assessed at the oral interview nor can the petitioners successfully urge before us thatthey were given less marks though their performance was better. It is for the InterviewCommittee which amongst others consisted of a sitting High Court Judge to judge the relativemerits of the candidates who were orallyinterviewed in the light of the guidelines laiddown by the relevant rules governing such interviews. Therefore, the assessment on merits 24 O.A. No. 553/2008 & 102/2010 as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such an expert committee.
30. The Learned Counsel for the respondents submits that the action of the applicants in claiming regularisation and also challenging their non selection after participating in the selection process, is hit by the principle of estoppel and acquiescence. It is not open to the applicants to challenge the selection process whereby the regular Junior Engineers (Electrical) have been appointed in the work-charged establishment since the applicants could not succeed in the said selection process. In this regard, the learned counsel for the respondents has referred to para 4 of the judgment of Hon'ble Supreme Court in Suneeta Aggarwal Vs. State of Haryana & Others [2000 SCC (L&S) 313].
Para 4 of the judgment is set out herein below :
4. We have heard learned counsel for the parties. Narration of aforestated facts would show that the appellant had disentitled herself to seek relief in the writ petition filed by her before the High Court. The appellant did not challenge the order of the Vice Chancellor declining to accord approval to her selection and, on the contrary, she applied afresh for the said post in response to re-advertisement of the post without any kind of protest. Not only did she apply for the post, but also she appeared before the Selection Committee constituted consequent upon re-advertisement of the post and that too without any kind of protest, and on the same day she filed a writ petition against the order of the Vice Chancellor declining to accord his approval and obtained an ad-interim order. In the writ petition she also did not disclose that she has applied for 25 O.A. No. 553/2008 & 102/2010 the post consequent upon second advertisement. The appellant having appeared before the Selection Committee without any protest and having taken a chance, we are of the view that the appellant is estopped by her conduct from challenging the earlier order of the Vice Chancellor. The High Court was justified in refusing to accord any discretionary relief in favour of the appellant.
The writ petition was rightly dismissed.
31. We have gone through the pleadings. We do not find that the applicants have thrown any challenge to the selection process, save and except, that although two vacancies in the post of Junior Engineer (E) were declared vide circular dated 04.12.2006 but the Selection Committee selected five candidates and those five candidates have been appointed in the regular post of Junior Engineer. It appears that the name of the applicant in O.A. No. 553/2008 was kept in the Waiting List, which was valid for a period of one year. The Hon'ble Supreme Court, in the case of Chandra Prakash Tiwari & Others Vs. Shankuntala Shukla & Others AIR 2002 SC 2322 held that clubbing of vacancies does not render selection process void.
32. The Learned counsel for the official respondents has submitted that the circular was issued in 2006 and the select list was prepared on 26.02.2009. Therefore, the vacancies which arose in the meantime were also taken into consideration in the said selection process. It is not on record whether further corrigendum was issued for this purpose or not. The applicants have 26 O.A. No. 553/2008 & 102/2010 not pleaded that they have been prejudiced for such clubbing together of the vacancies or by holding a single Selection process by the respondents. On the contrary, they participated in the said selection process without any demurrer.
33. We find force in the argument of the learned counsel for the respondents that the action of the applicants in challenging non regularisation of their service in the work-charged establishment suffers from the principles of acquiescence and estoppel since the applicants themselves volunteered to participate in the selection process for regular appointment in the post of Junior Engineer knowing fully well that their appointment in the post of Junior Engineer in Work- charged employment was a temporary one.
34. Learned counsel for the respondents submitted that O.A. 553/2008 is liable to be dismissed on the ground of non-joinder of necessary parties. The applicant has not impleaded the selected and thereafter appointed Junior Engineers (E) in the same establishment. He has relied on the judgment reported at 2004 SCC (L&S) 182 [Khetrabasi Biswal Vs. Ajaya Kumar Baral & Others]. Paragraph 6 of the said judgment is set out herein below :
6. The procedural law as well as the substantive law both mandates that in the absence of a necessary party, the order passed is a nullity and does not have a binding effect. 27 O.A. No. 553/2008 & 102/2010 From the relief para in O.A. 553/2008 we find that the applicant has prayed for grant of all consequential benefits, including seniority, counting of service for all purpose, etc., but he has not impleaded any private persons as respondents.
35. The main relief sought for by the applicants is for a declaration that the applicants are eligible and entitled for regularisation in the post of Junior Engineer and also for issuance of appropriate order for regularisation of the applicants from the date of their initial appointment.
36. The Learned Counsel for the applicants relied on a judgment passed by Himachal Pradesh High Court in the case of Seema Sharma Vs. Lokayukta Himachal Pradesh through its Secretary [2013 (4) SLR 592]. In that case, the Recruitment Rules did not provide for filling of the post of Junior Scale Stenographer on contract basis. However, an amendment was made where the provision was made to fill up the post of Junior Scale Stenographer on contract basis. The applicant therein qualified in the Screening Test as well as Skill Test. But surprisingly, the name of the applicant was recommended subsequently for appointment on contract basis. The Hon'ble High Court at Himachal Pradesh held that there is no gainsaying that while the candidates who appear in the typing test have no indefeasible right to seek an appointment and 28 O.A. No. 553/2008 & 102/2010 the same also did not give licence to the competent authority to cancel the examination and the result in an arbitrary manner. Therefore, the contractual appointment was quashed. The applicant was deemed to have been appointed on regular basis as Junior Scale Stenographer with all consequential benefits. We are afraid that the facts of Seema Sharma's case (supra) do not apply in the instant case.
37. In the judgment [Smt. K. Lakshmi Vs. State of Kerala & Others [2012 AIR SCW 1825] annexed to the notes on submissions by the Learned Counsel for applicants, the Hon'ble Supreme Court, in the penultimate paragraph has held as under :
The appellant, it is not in dispute, has participated in the fresh selection process initiated by the High Court like many others who were eligible to apply against the vacancies in the open merit and the reserved category. It is, therefore, neither proper nor feasible at this stage for this Court to interfere with the ongoing selection process. The appellant it goes without saying would get a fair chance like every other eligible candidate to compete for an appointment. In the result, this appeal fails and is hereby dismissed but in the circumstances without any orders as to costs.
38. Having regard to the settled position of law, as enunciated by number of judgments of the Hon'ble Supreme Court, we are of the view that the prayer for regularisation is not sustainable. We have been assured by the learned counsel for respondents, on instructions, that the respondents will continue the services of the applicants in work-charged 29 O.A. No. 553/2008 & 102/2010 establishment till the said establishment continues to run. It will be open to the applicants to participate in the selection process for appointment in the regular posts of Junior Engineer, whenever such vacancy arises. The respondents are directed to consider the case of the applicants sympathetically waiving age restriction and giving weightage for the services they have rendered in the temporary post of Junior Engineer in the same work-charged establishment.
39. Both the O.As. stand disposed of in the above terms. Accordingly, M.A. No. 204/2009 in O.A. No. 553/2008 and M.A. No. 331/2011 in O.A. 102/2010 also stand disposed of. No order as to costs.
(Dr. Mrutyunjay Sarangi) (Smt. Chameli Majumdar) Member (A) Member (J) os*