Central Administrative Tribunal - Chandigarh
Aarti vs Engineering Deptt., Ut Chandigarh on 17 October, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
ORIGINAL APPLICATION NO.1417/2021, 276/2023 and
285/2023
DATED THIS THE 17TH DAY OF OCTOBER, 2023
(RESERVED ON: 19.09.2023)
CORAM:
HON'BLE MR. RAMESH SINGH THAKUR, MEMBER (J)
HON'BLE MRS. RASHMI SAXENA SAHNI, MEMBER (A)
1. ORIGINAL APPLICATION NO.1417/2021
Nupur Mittal w/o Sh. Saurabh Garg, age 39 years, resident of
House No.324, Sector 15, Panchkula (Haryana) 134113
(Group-A).
....Applicant
(By Advocate: Sh. Jagdeep Jaswal)
Versus
1. Chandigarh Administration, through Advisor to
Administrator, UT, Chandigarh, Sector 9, Chandigarh-160009
(Email: [email protected]).
2. The Secretary, Department of Engineering. Engineering
Department, Chandigarh Administration, Sector 9,
Chandigarh-160009 (Email: [email protected])
3. The Chief Engineer, Engineering Department, Union Territory.
Chandigarh Administration, Sector 9, Chandigarh-160009
(Email: [email protected])
2
4. The Executive Engineer, Engineering Department, Union
Territory, Chandigarh Administration, Sector 9, Chandigarh-
160009 (Email: [email protected])
5. Union Public Service Commission, through its Chairman
Dholpur House, Shahjahan Road, New Delhi - 110069.
(Email: [email protected]).
....Respondents
(By Advocate: Sh. Navmohit Singh for R. No.1 to 4 and Sh.
B.B. Sharma for R. No.5).
2. ORIGINAL APPLICATION NO.276/2023
Aarti, wife of Sh. Arshdeep Kumar, age 32 years, presently
working as Assistant Engineer Design, Office of Chief Engineer,
U., Chandigarh (Resident of House No.1832, Nirvana Society,
49-B, Chandigarh).
.... Applicant
(By Advocate: Sh. D.R. Sharma)
Versus
1. Chandigarh Administration, through Advisor to
Administrator, UT, Chandigarh, Sector 9, Chandigarh-
160009.
2. The Secretary, Department of Engineering. Engineering
Department, Chandigarh Administration, Sector 9,
Chandigarh-160009.
3. The Chief Engineer, Engineering Department, Union Territory.
Chandigarh Administration, Sector 9, Chandigarh-160009.
4. The Executive Engineer, Engineering Department, Union
Territory, Chandigarh Administration, Sector 9, Chandigarh-
160009 (Email: [email protected])
5. Union Public Service Commission, through its Chairman
Dholpur House, Shahjahan Road, New Delhi-110069.
....Respondents
3
(By Advocate: Sh. Aseem Rai for R. No.1 to 4, Sh. Nitin Thatai
for R. No.5).
3. ORIGINAL APPLICATION NO.285/2023
1. Abhishek Kaushik, son of Sh. Anil Kumar Sharma, age 28
years, presently working as Assistant Engineer Design,
Office of Chief Engineer, U.T, Chandigarh (Resident of
House No.385, Sector-17, Panchkula).
2. Kanav Sharma, son of Sh. Amrit Sagar, presently working
as Assistant Engineer Design, Office of Chief Engineer, U.,
Chandigarh (Resident of House No.2099, Sector 27-C,
Chandigarh).
....Applicants
(By Advocate: Sh. Rishav Sharma)
Versus
1. Chandigarh Administration, through Advisor to Administrator,
UT, Chandigarh, Sector 9, Chandigarh-160009.
2. The Secretary, Department of Engineering. Engineering
Department, Chandigarh Administration, Sector 9,
Chandigarh-160009.
3. The Chief Engineer, Engineering Department, Union Territory.
Chandigarh Administration, Sector 9, Chandigarh-160009.
4. The Executive Engineer, Engineering Department, Union
Territory, Chandigarh Administration, Sector 9, Chandigarh-
160009 (Email: [email protected])
5. Union Public Service Commission, through its Chairman
Dholpur House, Shahjahan Road, New Delhi-110069.
....Respondents
(By Advocate: Sh. Aseem Rai for R. No.1 to 4, Sh. Nitin Thatai
for R. No.5).
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ORDER
PER: RASHMI SAXENA SAHNI, MEMBER (A)
1. With the consent of parties, these 3 Original Applications are taken up together for disposal as similar facts and a common question of law are involved in these cases.
2. Original application No.1417/2021 (Nupur Sharma vs. U.T. Chandigarh & Ors.) is taken as lead case. This O.A. has been filed by the applicant on 22.12.2021 seeking following reliefs:-
"(i) That complete record pertaining to the case may be summoned, in the interest of justice.
(ii) That respondents be directed to consider the applicant for regularization in view of judgments of Hon'ble Punjab and Haryana High Court in the case of Guneeta Chadha vs. UOI and others and the judgment of Hon'ble Supreme Court in the case of Dr. Gangan Inder Kaur and others vs. Union Territory of Chandigarh & Others, decided on 17.10.1995 followed by the order of Hon'ble CAT, Chandigarh Bench in the case of Dr. Anjali Gupta and others versus Administrator UT Chandigarh (OA No.93-CH-2009 decided on 17.08.2010), which has been upheld upto Hon'ble Supreme Court and applicant be held entitled to all consequential benefits of regular employee upon completion of 10 years of service.
(iii) Applicant be held entitled for age relaxation for the period of her total contractual service in regular selection process."5
3. Facts of the O.A. are as follows:-
I. The applicant has passed Bachelor of Engineering in Civil Engineering from Panjab University, Chandigarh in April, 2005 and Master of Engineering in Civil Engineering in the year 2007, from Panjab Engineering College, Chandigarh Deemed University.
II. Respondent no.2 vide memo No.8516 dated 20.12.2010 issued public notice and also sent requisition to employment exchange inviting applications for filling up 03 vacant posts of Assistant Engineer (Design) on contract basis on a monthly salary of Rs.32,000/- That vide application dated 17.01.2011, applicant fulfilling all the eligibility conditions as prescribed in the advertisement, applied for the said post of Assistant Engineer (Design). In response to her application, applicant was called for interview on contract basis for a period of one year vide office letter dated 17.02.2011 (Annexure A-2). That based on the performance of the applicant and merit in selection, applicant was recruited on the post of Assistant Engineer (Design) initially for a period of one year on a consolidated pay of Rs.32,000/- per month as per Chief Engineer, UT, Chandigarh, Memo No.A-2/2011/1405 dated 07.03.2011 (Annexure A-3) and joined as such on 18.03.2022 6 (Annexure A-4). Thereafter, the applicant has been continuously working for last more than 10 years and from time to time her contract period has been extended with breaks of few days as is evident from the copies of orders extending her contract. Her last extension order was upto 17.05.2022 (Annexure A-5).
III. The Recruitment Rules, 2017 for B&R wing of U.T. Engineering Department, notified in November, 2017, which have been framed illegally by the Chandigarh Administration, has the provisions of 31 sanctioned post of Assistant Engineer (Civil). Out of these 23 to say 75% of total sanctioned strength are meant for promotion quota were filled in from amongst the existing staff and balance 8 being 25% are for design office of the Engineering Department to be filled by way of direct recruitment (Annexure A-6). Thus, out of 8 sanctioned posts, six posts were lying vacant for a long period. As per the requirement of Recruitment Rules of Punjab dated 14.10.2005 and new Rules of 2017, the applicant's appointment was made to cope up with shortage of staff.
IV. In view of the provisions of Punjab Recruitment Rules of 2005, it was resolved to fill up vacancies on contract basis till regular arrangement is made. Applicant is continuously 7 working with the approval of competent authorities i.e. the Chief Engineer and the Worthy Advisor to Administrator and therefore, the appointment of applicant cannot be termed as illegal or irregular, as per Constitutional Bench judgment of Hon'ble Supreme Court in the case of Secretary, State of Karnataka and Ors. vs. Uma Devi and Ors. reported as 2006 (4) SCC 1. The facts clearly show that applicant has been on roll of the department for a period of more than 10 years. She has served the department, as per terms and conditions of appointment on minimum salary with ardent hope that later or sooner she may be considered for regularization as her selection was as per requirement of Chandigarh Administration, through proper channel, inasmuch as the advertisement issued was followed by interview and medical fitness test. Since applicant was selected through proper channel and was working against sanctioned post of SDE in the respondent department and her appointment was constantly approved by the competent authorities i.e. the Chief Engineer and Advisor to the Administrator, she submitted representations dated 08.07.2019 and dated 02.09.2019 seeking regularization of her contractual appointment. However, said representations did not receive any response from the 8 department. Lastly, she submitted representation dated 06.01.2020 again to the Advisor, UT Chandigarh, praying for regularization of her service, but again without any response (Annexure A-7).
4. In the grounds for relief, the applicant has submitted that i. The applicant has been appointed by positive act of selection and has worked continuously from 2011 till date and her claim for regularization is covered by the judgment of the Hon'ble Supreme Court in the case of Inder Kaur and others vs. UT. Chandigarh & Ors. decided on 17.10.1995 and judgment in the case of Guneeta Chadha vs. UOI & Ors. and Dr. Anjali Gupta vs. Administrator UT Chandigarh OA No.93-CH-2009 decided on 17.08.2010 which has been upheld up to the Hon'ble Supreme Court. ii. It is well settled preposition in service jurisprudence that if a contractual employee continues to work for a substantial period of time, he requires to be given preference at the time of regular appointment to the said post. In the present case, the applicant has already qualified the selection process, therefore, once applicant has already cleared the criteria as prescribed in advertisement, she should be considered for regularization of service. The action of the respondents in advertising the six vacancies of Assistant 9 Engineer (Design) to replace the applicant is, thus, clearly illegal and arbitrary and therefore, cannot be sustained in the eyes of law.
iii. It is also submitted that in the impugned advertisement, the age limit has been prescribed as 35 years, whereas the applicant is now 39 years. She was initially appointed in the year 2011 on contract basis and therefore, she is required to be given age relaxation for the above-mentioned advertised post and considered for selection on provisional basis subject to final outcome of the present case. In this regard, applicant has relied upon judgment of the Hon'ble Delhi High Court in the case of Syed Ahmar Ali Hashmi vs. UPSC and others (WP (Civil) No.5231/2020 decided on 11.08.2021) in which the Hon'ble High Court granted age relaxation for regular appointment to contractual employee as per DOPT OM dated 11.06.2019.
iv. The applicant has relied upon the judgment in the case of Rudra Kumar Sain versus Union of India and others AI 2000 SC 2808, which has considered the term adhoc, stop gap and fortuitous.
v. The applicant has also relied upon the case of Ramesh Gill vs. Union of India and others to substantiate her claim that UT Administration is not competent to frame RRs and it 10 is only Central Govt. under Article 246 of the Constitution of India is competent to frame Rules under Article 309 of Constitution of India.
5. Respondents No.1 to 4 have filed written statement on 7.02.2022 submitting therein that the present original application filed by the applicant is pre-mature and deserves dismissal on the sole ground that the applicant has not availed Departmental remedies available to her as per the claim raised by her in the present application, as per Section 20 of the Administrative Tribunal Act, 1985.
6. The claim of applicant is also liable to be dismissed being filed in gross violation of the principles governing the administration of justice as well as in abuse of the process of law. In addition to above, the present application filed by the applicant is frivolous, incorrect and malafide intention to stop the answering respondents to fill in the vacancies by direct recruitment in terms of the notification dated 24.06.2020 being recruitment rules (ANNEXURE R-1) which provide only two methods of recruitments-:
(i) 75% by promotion
(ii) 25% by direct recruitment
7. Thus, the perusal of the criteria provided in the notified recruitment rules dated 24.06.2020 the applicant herself is 11 very well aware of the fact that there is no such provisions to fill in the vacancy through other sources including contract except aforesaid two method of recruitment i.e. by promotion and by direct recruitment. The vacancies of Assistant Engineers (Design) were filled up purely as a stop gap arrangement on functional requirements and till such time direct recruitment is made. Hence the applicant has no cause of action to approach this Hon'ble Tribunal for filing the present Original Application which is devoid of any merit and liable to be dismissed out-rightly.
8. It has been submitted by the respondents No.1 to 4 in written statement dated 07.02.2022 that in case of applicant Nupur Mittal after obtaining approval of the competent authority, a public notice dated 20.12.2010 for filling 3 vacant posts of Assistant Engineers on contract bases was published and requisition in this regard was also sent to Regional Employment Exchange on 20.12.2010, Union Territory, Chandigarh. In response to Public Notice 8 candidates had applied and further Regional Employment Exchange, Union Territory, Chandigarh has also recommended the names of 11 candidates, for 3 posts of Assistant Engineers (Design) on contract basis and the interview of all the 19 candidates were held by the 12 Committee 24.02.2011 wherein no written test were conducted and selection were based only on the educational qualification besides their knowledge in using design software like STAAD PRO etc. The selection Committee recommended the names of the following candidates against 3 vacant posts of Assistant Engineers (Design) on contract basis for a period of one year on a consolidated amount of Rs.32,000/- per month
1. Ms. Ranjana Waraich wife of Shri Kavaljeet Waraich.
2. Ms. Nupur Mittal daughter of Shri Anil Mittal.
3. Ms. Nitika Garg daughter of late Shri R.K. Garg.
9. As per the approval accorded by the competent authority all the aforementioned three candidates were given appointment including Ms. Nupur Mittal vide letter No.1405 dated 07.03.2011 (ANNEXURE R-II) subject to the following terms and conditions of appointment:
1. The contract shall be terminated as and when your services are not required by the Engineering Department.
2. There shall be no increase in salary and you will not be entitled to any increment or other allowance etc.
3. The service rendered on contract basis shall not count towards the benefit of pension or gratuity etc.
4. The offer of appointment will not count as service and will not bestow upon you any claim for regular appointment against any post in the Engineering Department.
5. That no official accommodation shall be provided.
6. That no leave of any kind shall be admissible except gazette holidays, however, you may avail one day casual 13 leave per month.
7. That you will not be eligible for membership of GPF/PPF etc.
8. That in case you will be required to take any journey in connection with official work, TA/DA shall be paid as admissible to other government employees of U.T. Administration.
9. That you are declared medically fit by Medical Board duly consulted by the Director Health Services, Chandigarh Administration.
10. That your character and antecedents will be verified from the Police/District Magistrate.
10. All the applicants were clearly directed that in case they accept the offer of appointment on the aforesaid terms and conditions, they should convey their acceptance to join the department and report for duty within 15 days failing which it would be presumed that they are not interested to accept the offer of appointment on the terms and conditions specified above and their appointment will be cancelled. The applicant submitted her joining on 01.04.2011 (ANNEXURE R-III) which clearly admitted the fact "that the applicant was well within his knowledge according to condition No.(i) of the appointment letter that her "contractual appointment shall be terminated as and when her services are not required by the answering respondent and secondly condition No.(4) that her "offer of appointment will not count as service and will not bestow upon her any claim for regular appointment against any 14 post with the answering respondent". Therefore filing of the present Original Application for regularization of her services against contractual appointment, is neither sustainable nor maintainable in view of the fact that she has accepted the offer of letter after application of mind that her contractual appointment can be terminated at any stage of time and she would not raise any claim for regular appointment against the post. Thus the applicant has no cause of action to approach this Hon'ble Tribunal to file the present Original Application.
11. Even during the extension of the contractual period the applicant has not raised any objections to the aforesaid conditions according to which the extension was given to her on functional requirement as well as non filling up the vacant posts through Union Public Service Commission. Thereafter the answering respondent extended the contractual period of the applicant on yearly basis subject to usual terms and conditions mentioned in their initial appointment letter issued to her vide memo dated 07.03.2011. Last extension was given to the applicant for the period from 18.05.2021 to 17.05.2022 vide order dated 28.04.2021 (ANNEXURE R-V) after giving break in service from 11.05.2021 to 17.05.2021, with the 15 approval of the competent authority on the same terms and conditions of appointment issued to her. Therefore filing of the present Original Application at this stage of time is devoid of any merit when the applicant submitted her joining after accepting the terms and conditions on which the contractual appointment was offered to her.
12. It is further submitted by respondents that the maximum age limit prescribed for filling up the vacancies meant for direct recruitment is 35 years as per notified recruitment rules dated 24.06.2020 (ANNEXURE R I) which has also been mentioned in the advertisement No.18/2021 published by the Union Public Service Commission. However the applicant is overage by 4 years and is not eligible for applying to the post of Sub Divisional Engineer (Civil) and as such cannot be allowed to participate in the recruitment process. Respondents have relied upon Dr. Ami Lal Bhat Vs State of Rajasthan and Ors. [(1997) 6 SCC 614], the law is stated in the following terms:-
"The power of relaxation is required to be exercised in public interest in a given case; as for example, if other suitable candidates are not available for the post, and the only candidate who is suitable has crossed the maximum age-limit; or to mitigate hardship in a given case. Such a 16 relaxation in special circumstances of a given case is to be exercised by the administration after referring that case Rajasthan Public Service Commission. There cannot be any wholesale relaxation because the advertisement is delayed or because the vacancy occurred earlier especially when there is no allegation of any mala fides in connection with any delay in issuing an advertisement. This kind of power of wholesale relaxation would make for total uncertainty in determining the maximum of age of a candidate. It might be unfair to a large number of candidates who might be similarly situated, but who may not apply, thinking that they are age-barred. We fail to see how the power of relaxation can be exercised in the manner contended".
13. The respondents have also mentioned in their reply dated 07.02.2022 that the claim for regularization is clearly different and distinct from the claim raised in the original application. In the interim prayer applicant Nupur Mittal has requested for one post to be kept vacant with the direction to respondents to consider her in regular selection on provisional basis and that she may be allowed to apply for advertised posts in relaxation of her age provisionally subject to final outcome of the case.
14. Respondent No.5, UPSC has filed a short reply on 17 12.10.2022 submitting therein that the applicant has filed this Original Application with a prayer to issue direction to the respondents to consider her case for regularization in view of judgments of Hon'ble Punjab and Haryana High Court in various cases mentioned therein and that she be held entitled for age relaxation for the period of her total contractual service in regular selection process. The answering respondent (Union Public Service Commission) sets in motion the process of recruitment by advertising the posts strictly in conformity with the notified recruitment rules framed under Article 309 of the Constitution of India. The issue of relaxation in age to contractual employees stands settled by Hon'ble Supreme Court in Union Public Service Commission vs Girish Jayanti Lal Vaghela & Others (Appeal (civil) 933 of 2006) decided on 2 February, 2006 wherein Hon'ble Supreme Court has held that employment under the Government is a matter of status and not a contract even though the acquisition of such a status may be preceded by a contract, namely, an offer of appointment is accepted by the employee. The rights and obligations are not determined by the contract of the two parties but by statutory rules which are framed by the Government in exercise of power conferred by Article 309 18 of Constitution and the service rules can be unilaterally altered by the rule making authority, namely, the Government. It was held that "we are clearly of the opinion that respondent no.1 cannot be said to be a Government servant as he was working on contract basis and therefore, he was not eligible for any relaxation in upper age limit. The view taken by the High Court is clearly erroneous in law and is liable to be set aside. The appeal is accordingly allowed and the judgment and order dated 13.12.2002 of the High Court is set aside and the Writ Petition filed by respondent No.1 is dismissed." (Annexure R-1).
15. From the facts on record we find this OA has been filed on 22.12.2021 after publication of advertisement for regular appointment. The interim relief sought was age relaxation to participate in the written test being conducted by UPSC in response to advertisement number 18/2021 dated 11.12.2021. As per interim order of this Tribunal dated 26.08.2022 applicant was allowed to participate in the selection process on provisional basis. However, result as per directions of Tribunal was to be kept in sealed cover during pendency of the O.A. We find the applicant appeared for the written test conducted by UPSC on 28.08.2022 and is not among the 26 candidates shortlisted 19 for interview on 28.03.2023. In the meantime her contract also expired on 17.5.2022.
16. We have perused facts on record in the case of Abhishek Kaushik & Anr. in O.A. No.285/2023 filed on 21.03.2023 and find that relief sought is same ie Respondents No.1 to 5 be restrained from finalizing selection to post of SDE (Civil) on the basis of result declared on 4.10.2022and interview fixed for 28.03.2023 without considering case of the applicants for regularization. For regularization of the contractual appointment reliance has been placed on the case of Anjali Gupta Vs. Administrator U.T. Chandigarh (O.A. No.92/CH/2009) decided on 17.08.2010.
17. As per facts on record, through a local public notice for walk-in interview (Annexure A-3), the applicants were selected on consolidated amount of Rs.50,190/- p.m., vide appointment letter dated 18.06.2018 (Annexure A-5), initially for a period of six months and thereafter, contract was periodically extended till 18.07.2023. This means, the applicants worked for almost five years on contractual basis. From the appointment letter, which is same as that of Nupur Mittal, it is clear that it was not a regular appointment. Extract of appointment letter 20 (Annexure A-5), in paras 1, 3 and 4 read as follows:-
"1. The contract shall be terminated as and when your services are not required by the Engineering Department.
2. Xxx
3. The service rendered on contract basis shall not count towards the benefit of pension or gratuity etc.
4. The offer of appointment will not count as service and will not bestow upon you any claim for regular appointment against any post in the Engineering Department."
Annexure A-6 which is extension letter clearly states that this appointment was only till vacancies are filled up on regular basis. So the applicants were very well aware that this is only a stop gap contractual appointment and not a regular appointment and accepted appointment with said conditions. The last extension was till 18.7.2023. The applicants thereafter being eligible age and otherwise applied in response to Advt. No.18/2021 of UPSCdated 11.12.2022 for regular recruitment . Applicants appeared for the written test conducted by UPSC on 28.08.2022 and in the result declared on 4.10.2022 were not among the 26 candidates shortlisted to be called for interview on 28.03.2023.
The OA number 285/2023 to consider their case for regularization has been filed on 21.03.2023 just before the conduct of interview for regular selection for which 21 they were not shortlisted.Hence have now sought regularization of their contractual appointment through litigation based on certain judicial pronouncements .
18. We have also perused facts in the case of Arti O.A. No.276/2023 also filed on 21.03.2023 seeking following relief:-
"That the respondent No.1 to 4 be restrained from finalizing selection to the post of Sub Divisional Engineer (Civil) on the basis of result declared and interview fixed on 28.03.2023 without considering the case of the applicant for regularization."
We find from facts on record that the applicant was selected and appointed on contract vide appointment letter dated 28.04.2015 (Annexure A-6) initially for a period of 3 months on fixed consolidated salary of Rs.39,900/-. Her contract was extended from time to time with breaks in between till 25.04.2023. Her appointment letter dated 28.04.2015 (Annexure A-6) was on same terms and conditions as of the other three applicants. Relevant extracts in paras 1, 3 and 4 of her appointment letter read as under:-
"1. The contract shall be terminated as and when your services are not required by the Engineering Department.
2. Xxx
3. The service rendered on contract basis shall not count towards the benefit of pension or gratuity etc.
4. The offer of appointment will not count as service and 22 will not bestow upon you any claim for regular appointment against any post in the Engineering Department."
She accepted the appointment with said conditions. Her last extension was upto 25.04.2023.
19. Respondent No.4 had sent requisition to respondent No.5 for filling up vacancies of SDE (Civil). Vide advertisement No.18/21 dated 11.12.2021, applicant being eligible also applied for the said post. However, since she was on maternity leave, she could not appear for written test held on 28.08.2022 as her expected due date was 08.04.2023. Respondent No.5 UPSC declared result of the selection vide Annexure A-1 on 04.10.2022 fixing interview date as 28.03.2023. Not having appeared for the written test her name was not among the candidates shortlisted for interview.
20. The OA to consider her case for regularization has been filed on 21.03.2023 just before interview date. She applied in response to the advertisement 18/2021 dated 11.12.2021 but did not appear due to personal reasons and has now sought regularisation by resorting to litigation .The applicant has relied upon the case of Anjali Gupta Vs. Administrator U.T. Chandigarh (O.A. No.92/CH/2009) decided on 17.08.2010, Hargurpratap 23 Singh Versus State of Punjab and others, 2007 (13) SCC 292. According to the applicant since her appointment was against sanctioned post and initial appointment was made as per recruitment rules 2005 of Punjab Govt. (Annexure A-14) and she has completed eight years of regular service, she had acquired right for regularization in terms of judgment in the case of Rudra Kumar Sain versus Union of India & others AIR 2000 SC 2808.
21. We have considered the pleadings in all 3 OAs, laws relied upon by both sides and the case records in original. We find the facts are similar and same relief has been sought in all the three OAs i.e. regularisation of their contractual services through litigation by relying on certain case laws.
22. We have perused case record and as per file notings we find these appointments are stop gap arrangements made on functional requirements till such time direct recruitment is made as per recruitment rules. From case records file No.A221 Volume-1 in case of Nupur Mittal, we find that the original selection in 2011 was not through all India competitive examination but through regional employment exchange, Chandigarh and local public notice. Employment Exchange, Chandigarh sent a list of 11 candidates and in response to published public notice in two leading news 24 papers. 9 candidates applied thus, as seen from minutes of the recruitment committee, 20 candidates were called and only 9 appeared for interview held on 24.02.2011 for 3 posts and of which selected candidates were Ranjana Waraich, Nupur Mittal and Nitika Garg and wait listed candidates were Guljit Singh, Khushbu Gupta. Selected candidates were issued appointment letters dated 07.03.2011 which clearly mentions that the appointment was contractual and that "Contract will be terminated as and when services are not required by the Engineering Department". Further it was made clear that offer of appointment will not bestow any claim for regular employment against any post with the answering respondents.
23. The other appointments were also made in a similar manner. The case records show that all applicants were appointed through walk-in interview or through employment exchange on contract basis only i.e. from a very narrow localised selection base and not a competitive exam. Appointment letters with same conditions were issued on different dates to the applicants in other two OAs also.
24. These contracts as also extensions were accepted with all 25 the conditions by all the applicants without raising any objection at any stage. In case of State of Haryana vs. Charanjit Singh, Hon'ble Supreme Court held that having accepted terms and conditions of contract employees cannot seek regularization. Thus, we find that the applicants were well aware of the limitation of their appointment and the same was accepted by them knowing well their appointment status. They were aware that services were liable to be terminated as and when services are not required by engineering Deptt. (Ref. Appointment letter). Hence claim of regularization against contractual appointment is misconceived and cannot be considered in light of Hon'ble Supreme Court's decision in the case of Charanjit Singh. Further Rudra Kumar Sain versus Union of India & others is not applicable as it relates to seniority issue of promotees vs direct recruits
25. We have perused written statement of respondents No.1 to 4 and also respondent No.5 i.e. UPSC in OA No.276/2023. Respondent No.5 has stated that 5001 applications were received in response to advertisement 18/2021dated 11.12.2021 and 26 candidates were short-listed for interview on 28.03.2023 based on written test held on 28.08.2022, the result for which was declared on 26 4.10.2022.
26. From facts on record , three applicants being eligible in terms of age and other eligibility conditions and fourth having been given age relaxation applied and participated in the process. 3 applicants appeared for written test conducted by respondent No.5. The result of this written test was declared on 04.10.2022 and the three applicants who participated in the written test are not among 26 candidates short listed for interview. Fourth applicant did not appear due to personal reasons and was obviously not shortlisted.
27. Contention of the applicants that they were selected on contract through positive mode of selection of interview after due verification of documents is erroneous as this method of selection was a limited localised selection process with no required minimum level of suitability.It cannot be equated with the regular appointment as per RRs based on pan India advertisement of UPSC and written test and interview for which 5001 candidates have applied . For instance only 9 candidates appeared in 2011 among whom the applicant Nupur Mittal was selected on contract basis. Similar is the case with the other applicants. Hence it is very clear applicants' selection was 27 from a very narrow localised selection base and not through a competitive exam and was a stop-gap arrangement only. Thus there can be no parity between local selection and selection process which is held by UPSC which required minimum level of suitability. The UPSC advertisement itself in the box marked important stated "In case selection is made by recruitment test followed by interview, the candidate will have to achieve minimum level of suitability in their respective category at interview state". In the light of discussion above, this argument of applicants, of positive mode of selection, in our view is not a valid argument .
28. Further Hargurpratap Singh case relied upon applicants is not applicable as the applicants are not being replaced by another set of contractual employees. The applicants have primarily relied on Anjali Gupta Vs. Administrator U.T. Chandigarh and Secretary, State of Karnataka and Ors. vs. Uma Devi and Ors. cases to seek regularization.
29. In this context its important to see sequentially dates of various events. Briefly summarized facts in respect of the applicants in the three OAs are follows:-
Applicant(s) Contract Completed on Contract Service period Nurpur Mittal 17.05.2022 10 years 28 Arti 25.04.2023 8 years Abhishek & ors. 18.07.2023 5 years Dates of filing OAs are: OA No.1417 is 22.12.2021 , OA No.276 is 21.3.2023 and OA No.285 is 21.3.2023 Vide UPSC advertisement number 18/2021 dated 11.12.2021, written exam was conducted on 28.8.2022 and its result declared on 4.10.2022 and interview was scheduled on 28.3.2023, Three applicants in OA number 1417 and 285 participated in written exam but were not shortlisted for interview.
30. The case of Dr. Anjali Gupta and ors. (supra) which has been upheld up to the Hon'ble Supreme Court is not applicable to the applicants as it is distinguishable on facts. Ttribunal in case of Anjali Gupta and others held in para 10 that "there cannot be automatic abolition of post of AMOs in Chandigarh just because the same has been abolished in Punjab Government. In any case one thing is very clear that the applicants were appointed against the vacant post of AMOs and once they hold those posts, maybe on contract basis, it cannot be said that the posts stand abolished."
31. So the Tribunal held that the view of UT administration is not correct and applicants should be treated as regular 29 employees from the date of completion of 10 years in service. Tribunal relied upon the exception made in Secretary, State of Karnataka and Ors. vs. Uma Devi and Ors. reported as 2006 (4) SCC 1. Tribunal also made it clear in para 15 that "We have passed this order in backdrop of facts and circumstances of this case keeping in view that applicants were appointed against sanctioned post through regular selection as per rules, therefore, their observations may not be taken as precedence in any other case. Respondents were also directed to assess requirement of services of those others who have not completed 10 years and take a decision to treat them as also regular or stick to the terms of contract."
32. In the cases before us there is no abolition of posts instead regular recruitment process has been initiated. Further, it is only Nupur Mittal who has completed 10 years of contract and but her contract expired on 17.5.2022 before conduct of competitive examination on 28.08.2022. Hence for participation in the exam which she sought interim relief seeking age relaxation which was given by the Tribunal vide interim order dated 26.8.2022. Thus facts and circumstances in the case of Nurpur Mittal are different from the case of Dr. Anjali Gupta and others. 30
33. In the case of other three applicants, they have not completed 10 years of contractual service and as on date their contracts have also expired. We find that 3 applicants have also participated in direct recruitment process while one did not appear due to personal reasons. Not having been shortlisted/not appeared in competitive exam applicants have now sought regularization. Thus, according to us, the decision in the case of Dr. Anjali Gupta and others is not applicable in view of differing facts and circumstances in the present cases.
34. We have also perused Supreme Court judgment in the case of Secretary, State of Karnataka and Ors. vs. Uma Devi and Ors. reported as 2006 (4) SCC 1. In the said decision, the Court held in para 53 that:-
"One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for 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 be considered on merits in the light of the principles settled by this Court in the cases above 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 services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure 31 that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees 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 already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
35. Thus Nupur Mittal been provided one time equal opportunity to compete on merit and, therefore, there was no discrimination. In our view working for a length of period on contractual post creates no automatic vested right for regularization as apparent from this judgement. The Uma devi decision is applicable to only those employees who have completed 10 years or more but not under cover of Court or Tribunals and as one time measure regularization can be considered on merits. We find the applicants in OA Nos 276 and 285 are not covered by this decision as they have not completed 10 years service and have also willingly participated in selection process on merit. In the case of Nupur Mittal in OA number 1417 she has been given age relaxation thereby availing one time chance to participate in selection process on merit. However her contract having expired on 17.5.2022 she is also not in continuous service any more.
36. We find applicants have participated in examination 32 process as three applicants were eligible and fourth applicant was also given age relaxation. Facts and circumstances in the case of the applicants are not same as in Uma Devi hence the decision is not applicable to the applicants. The plea to consider their case for regularization, made after competing in the written exam/not appearing due to personal reasons and not being shortlisted, in our view does not merit consideration at all .
37. We have perused Rules dated 14.10.2005 of Govt. of Punjab, Dept of Public work (B&R-1 Branch). Rule 6 clearly states appointment by promotion (40%) and direct appointment (60%) and if no suitable candidate then by transfer of a person holding similar or an identical post under State Govt. or Govt. of India. Thereafter, U.T. Administration notified its own rules on 27.11.2017 in exercise of power conferred by the proviso to article 309 of the Constitution of India and in super- session of Punjab Rules, 2005. Applicants have claimed November 2017 rules have been formed illegally by Chandigarh Administration. We do not agree with above contention as rules have been framed under Article 309 of the Constitution of India which gives power to frame rules laying down service conditions and recruitment process 33 specifying methods of appointment and necessary guidelines. These rules of 2017 as amended in 2019, also provided for recruitment either by promotion or direct recruitment failing which deputation. These rules which have been further amended and notified on 24.06.2020 provide only promotion or direct recruitment as method of recruitment. So regularisation is not a mode of recruitment. Both 2017 recruitment rules as well as 2020 recruitment rules provide that consultation with UPSC is necessary on each occasion.
38. These Recruitment rules dated 24.06.2020 have not been assailed by the applicants. In fact they participated in the process initiated as per these Recruitment rules dated 24.06 2020. We find nothing illegal in the conduct of respondents and uphold the validity of the recruitment process based on RRs dated 24.06.2020. The appointments must necessarily be made in accordance with recruitment rules. Thus there is no ambiguity or arbitrariness in the Recruitment rules and their applicability as on 11.12.2021 the date vacancies were advertised by UPSC for direct selection. In our view therefore Guneeta Chadha vs. UOI and others and the judgment of Hon'ble Supreme Court in the case of Dr. Gangan Inder Kaur are not applicable. 34
39. To briefly summarise, we find, having participated in regular selection process as per duly notified Recruitment rules dated 24.062020 and having failed to be short listed in the selection examination/ not appearing in the selection process which is in accordance with recruitment rules, applicants are now seeking regularisation of their contractual appointment . In our view having joined their contractual appointment knowing that they had no right to regularization, they cannot now seek regularization in disregard of their appointment conditions. The claim for regularization cannot defeat selection process based on valid recruitment rules in which applicants have participated. In case of State of Haryana vs. Charanjit Singh, Hon'ble Supreme Court held that having accepted terms and conditions of contract employees cannot seek regularization. We find that the case laws relied upon by the applicants, as discussed supra, are not applicable to the facts and circumstances of their cases.
40. The effort to now enter in public service by seeking regularization of their contractual appointment by filing last minute OAs and seeking judicial intervention to stop conduct of interviews and thereby completion of recruitment process is totally misconceived. We find this 35 effort to stall the interviews necessary for completion of recruitment process being undertaken as per duly notified RRsis gross misuse of judicial process which is neither desirable nor equitable. In the light of the discussion above, we find that the OAs 276 and 285 are devoid of merit and are dismissed.
41. In so far as OA number 1417 is concerned its partly allowed. We direct in case of Nupur Mitttal, the result in sealed cover be opened and if successful as per merit be allowed to participate in the interview process and further action if any, may be taken as per appropriate rules .
42. All interim orders stand vacated. All pending MAs, if any, shall stand disposed of. No order as to costs.
(RASHMI SAXENA SAHNI) (RAMESH SINGH THAKUR) MEMBER (A) MEMBER (J) /kr/