Punjab-Haryana High Court
Gurpreet Kaur vs Panjab University Sector 14,Chd.& Ors on 26 October, 2017
Author: G.S. Sandhawalia
Bench: G.S. Sandhawalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.18756 of 2015
Gurpreet Kaur
... Petitioner
Versus
Panjab University and others
... Respondents
(2)
Civil Writ Petition No.9104 of 2015
Gurpreet Kaur
... Petitioner
Versus
Panjab University and others
... Respondents
Reserved on: 27.09.2017
Decided on :26.10.2017.
CORAM : HON'BLE MR.JUSTICE G.S. SANDHAWALIA
Present : Mr. Manish Dadwal, Advocate
for the petitioner.
Mr. Subhash Ahuja, Advocate
for the respondents.
G.S. Sandhawalia, J.
The present judgment shall dispose of two writ petitions i.e. CWP Nos.9104 and 18756 of 2015. The facts are being taken from the second writ petition being CWP No.18756 of 2015 'Gurpreet Kaur Vs. Panjab University and others', since a speaking order has been passed rejecting the claim of the petitioner for regularization against the post of Assistant Professor (Education) in the Department of Correspondence, vide order dated 17.07.2015 (Annexure P-10).
1 of 20 ::: Downloaded on - 02-11-2017 22:07:48 ::: CWP Nos.18756 and 9104 of 2015 -2- It is pertinent to mention that she already stood relived on 30.04.2015 (Annexure P-9) and had approached this Court prior to the said date and direction had been issued on 08.04.2015 (Annexure P-7) to decide her legal notice dated 27.02.2015 (Annexure P-5) and pass a speaking order after giving opportunity of hearing to her.
The reasons which have been spelt out for rejecting her claim is that the post of Assistant Professor has to be filled up by way of direct recruitment after making public advertisement as per the regulations of the University and in the absence of any policy of regularization, the said benefit could not be granted. She had also applied against the advertisements, but did not make it to the merit list. The examples of two other employees who had been granted the benefit of Non-Teaching (Academic) posts were confirmed employees. They have been given the designation of Assistant Professor being personal to them against the substantive posts and the judgments passed in State of Karnataka Vs. Uma Devi, 2006 (4) JT 420, State of Haryana Vs. Piara Singh, AIR 1992 SC 2130 and R.K. Panda Vs. Steel Authority of India, 1994 (3) SCT 635 were held to be not attracted.
The pleaded case of the petitioner is that vide advertisement No.6 of 2005 dated 16.05.2005 (Annexure P-1/A), she was appointed on contract basis, which was subject to University Regulations and Rules of University Calendar, Volumes I and III, respectively, as per the letter dated 06.09.2005 (Annexure P-2) in the pay scale of `8000-275-13500 after duly constituted selection committee had held interview on 2 of 20 ::: Downloaded on - 02-11-2017 22:07:49 ::: CWP Nos.18756 and 9104 of 2015 -3- 01.09.2005. She had joined on 18.10.2005 and her services were extended from time to time with the approval and decision given by the Syndicate till 31.10.2006. Interview for the 3 posts of Lecturer in Education had been conducted on 18.10.2006 against Advertisement No.8/2006 issued on 29.04.2006 and three candidates were adjusted having lower merit than the petitioner who were selected. The petitioner was not considered despite being higher in merit on the regular post. She was again appointed by the Vice-Chancellor on contract basis and joined the department on 22.12.2006 and extension was given from time to time. Reference was made to the Advertisement No.7/2009 vide which the petitioner was got selected to show that she was re-appointed on 19.05.2014 (Annexure P-3) for the next academic session i.e. 2014-2015 w.e.f. the date she joined after the summer vacation of 2014. The said extension was being given to meet the requirements of National Council of Teaching Education, New Delhi. An Advertisement No.11/2010 for the 6 regular posts of Assistant Professor had been issued and the interview was held on 01.08.2011 and she was not called for interview, but six candidates lower in merit had been called. It is pleaded that there were sufficient posts available and 65 sanctioned posts out of which 32 posts had been filled up, whereas 33 posts were lying vacant and she should have been adjusted against the sanctioned post. She had made a representation dated 26.03.2012 and served a legal notice for regularization dated 27.02.2015 (Annexure P-5).
Reference was made to the instance of one employee, 3 of 20 ::: Downloaded on - 02-11-2017 22:07:49 ::: CWP Nos.18756 and 9104 of 2015 -4- namely, Dr. Dazy Zarabi who have been appointed earlier on contract basis vide letter dated 08.10.1997 and had been re-designated as Lecturer/Assistant Professor w.e.f. 28.08.2008 and who had been regularized on 12.07.2006. Similarly, instance of one Ms. Shveta Mahendra, Stage Craft Teacher, Department of Indian Theatre who was re-designated as Assistant Professor was also given and accordingly the petitioner had filed CWP No.6577 of 2015, seeking direction for regularization which had been disposed of on 08.04.2015 to take a decision on the legal notice by passing a speaking order and after affording opportunity of hearing to the petitioner.
It was the case of the counsel for the petitioner Mr. Dadwal that she had been relieved vide order dated 30.04.2015 (Annexure P-9), though the said order had been served upon the respondents vide communication dated 10.04.2015. Resultantly, the order dated 17.07.2015 came to be passed, which is now impugned on the ground that there was sufficient work and the petitioner was continuously working and a post was lying vacant. Instead of regularizing the petitioner against the vacancy, her case had been wrongly rejected.
The writ petition was contested by the respondent-University on the ground of limitation also, as the challenge was raised to the selections/appointments made in the years 2005, 2006 and 2010-2011, which was barred by limitation. The petitioner herself was member of the Senate of the respondent-University and knew all rules and regulations. Reference was made to the first writ petition which had been filed on the 4 of 20 ::: Downloaded on - 02-11-2017 22:07:49 ::: CWP Nos.18756 and 9104 of 2015 -5- ground that the same was also pending and had not been amended. The principle of estoppel was also pressed into again on the ground that after taking a chance in the selection process and participating in the same, she could not challenge the same. Regarding the number of posts lying vacant, it was held that the respondent-University had discontinued the Masters Course w.e.f. the Academic Session 2015-2016 in the University of School of Open Learning. Intake strength of students was referred to show decreasing admissions in the B.Ed. Course from the Academic Session 2011-2012 to 2015-2016 from 761 to 276. Thus, there was no requirement of her services and she had been relieved from the duties as per terms and conditions of appointment. Reference was made to the letter dated 14.10.2015 (Annexure R-1 colly.) that there were 150 seats, which had been sanctioned by NCTE, but from the session 2015-2016 the course of Master of Education had been discontinued.
Similarly, objections were raised that the writ petition is bad for non-joinder of necessary parties as selection/appointments of teachers made during the years 2005, 2006 and 2010-2011 had been challenged, but they had not impleaded as party. In the absence of any rules and regulations of regularization of the respondent-University, the writ petition was liable to be dismissed. The petitioner had been appointed on contract basis and joined her duties after accepting the terms and conditions of her appointment. The selection made earlier had not been challenged in the earlier writ petition in the absence of allegation of any malafide against any candidate or member of Selection Committee. Two 5 of 20 ::: Downloaded on - 02-11-2017 22:07:49 ::: CWP Nos.18756 and 9104 of 2015 -6- posts of Assistant Professor in Education were to be filled by way of regular posts vide Advertisement No.7/2013, since the Masters course had been closed down and the strength of students in B.Ed. course (Correspondence) had drastically been reduced in the University School of Open Learning. Regularization thus would not be justifiable under the University Rules and Regulations.
While rebutting the instance of Dr. Dazy Zarabi, it is submitted that applications had been invited for filling up of one post of Associate Coordinator purely on temporary basis in the Project Population Education in Adult Literacy on a fixed salary of `4,500/- per month and for one Programme Associate on a fixed salary of `3,500/- per month. The said person had been recommended to be put on the wait list in the meeting held on 29.05.1996 (Annexure R-3) and resultantly was appointed, as the selected person had asked for protection of his pay. Resultantly, she had joined on 08.08.1996 (Annexure R-4). A notice dated 20.08.1997 (Annexure R-5) had been issued for inviting applications for Programme Coordinator purely on temporary basis upto 31.12.2001 and Dr. Zarabi had been selected in the meeting held on 15.09.1997 (Annexure R-6) and had been appointed vide letter dated 08.10.1997 (Annexure R-7). Explanation was given that the salary was paid against the Budget Head Population Education in Adult Literacy of the Regional Resource Centre (RRC), Panjab University. Reference was made to the letters dated 27.10.1997 and 17.03.198 that the Population Education Cell shall be treated as integral part of the activities of State 6 of 20 ::: Downloaded on - 02-11-2017 22:07:49 ::: CWP Nos.18756 and 9104 of 2015 -7- Resource Centre both administratively and financially, as per the letter issued by the Government of India, Directorate of Adult Education dated 27.10.1997 (Annexure R-9 colly.). Similarly, reliance is placed upon letter dated 26.03.1998 (Annexure R-10) that the Ministry of Human Resource Development (MHRD) had asked all the Directors of the State Resource Centres to supply the information regarding staff position under Population Education Adult Literacy, salary of persons engaged on contract etc. and the Government of India had to meet 25% of salary component of project personnel working in the State Resource Centres.
Similarly, reference is also made to the letter dated 24.04.2000 (Annexure R-11) that the members of the staff working in the project would be treated as at part employees of the RRC. Reliance is placed upon the letter dated 05.01.2001 (Annexure R-12) that the MHRD informed the Vice-Chancellor of the University that the University should take over the liability of staff working in the Population & Development Education Project (PDEP) after the cessation of programme that existing staff be accommodated against the posts falling vacant. Reliance is placed upon the letter dated 10.12.2001 (Annexure R-13) that there was a merger of the activities and the old Coordinators due to their training and experience in the field, as they were in a better position to work and formulate the plans and it was not advisable to have changes in the staffing pattern. Accordingly, the matter of adjusting two staff members Programme Coordinator and Associate Coordinator from the PDEP against two vacant posts in the RRC in the same pay scale for taking over 7 of 20 ::: Downloaded on - 02-11-2017 22:07:49 ::: CWP Nos.18756 and 9104 of 2015 -8- the liability after cessation of the assistance from the Government of India was placed before the Senate meeting on 28.02.2004 (Annexure R-16) and the issue was to be re-examined. A Committee had been constituted which recommended that Dr. Zarabi would be adjusted against the post of Project Officer in the pay scale of `8000-13500 and the last pay was to be protected which was approved by the Vice- Chancellor on 23.04.2005, which had been duly recommended on 07.04.2005 (Annexure R-17). Resultantly, appointment letter had been issued to her on 12.07.2006 (Annexure R-20 colly.) as Project Officer which decision taken was approved by the Syndicate in the meeting held on 26.08.2006 (Annexure R-20).
Thereafter, the Senate in its meeting dated 22.12.2012 (Annexure R-22) approved the recommendations of the Committee as endorsed by the Syndicate in the meeting dated 17.05.2012 regarding designation of the Permanent Faculty/Project Officers in the RRC as Lecturer, Senior Lecturer, Reader & Professor on the basis of which all eligible Project Officers were designated as Lecturers vide office order dated 09.12.2009. The Vice-Chancellor on 26.01.2013 on the decision of the Senate dated 22.12.2012 approved the draft of office order regarding the confirmation of Dr. Zarabi under the vacant post w.e.f. 13.07.2007 after completion of one year probation period, as she had joined on 12.07.2006 and thereafter re-designated her as Lecturer (old nomenclature) (Assistant Professor new nomenclature) (as a personal measure) vide office order dated 28.01.2013 as she fulfilled requisite 8 of 20 ::: Downloaded on - 02-11-2017 22:07:49 ::: CWP Nos.18756 and 9104 of 2015 -9- qualifications for the post of Lecturer in the year 2008. It is, accordingly, submitted that she continued to work as regular Assistant Professor in the Department of Community Education & Disabilities Studies w.e.f. 28.08.2008 till date.
Similarly, regarding Ms. Shveta Mahendra the defence taken was that she was initially appointed as Stage Craft Teacher on ad hoc basis in the Department of Indian Theatre for the academic Session in the pay scale of `5000-150-8000. She had joined her duty w.e.f. 02.12.1999. Her post was advertised vide Advertisement No.4/1998 and she had been selected on the recommendations of the Selection Committee and she was confirmed as such w.e.f. 03.03.2001. She had worked against a solitary post and submitted a representation dated 26.04.2012, where she prayed for creation of promotional avenues as she was stagnating for the last more than 12 years. The Committee had been constituted to consider her case for giving her designation as Assistant Professor in the Department of Indian Theatre which was positively recommended on the ground that she was occupying an ex-cadre post and her case be referred to the relevant committee under Assured Financial Up-gradation Scheme of 10/20/30 years of service vide the positive recommendations dated 14.08.2012 (Annexure R-26 colly.). The Senate in its meeting held on 15.04.2013 and 25.04.2013 had recommended that she be re-designated as Assistant Professor and her pay be fixed notionally from the date of her joining i.e. 02.03.2000 in the grade of Assistant Professor (Annexure R-27). Resultantly, her case was sent to the Senate of the University 9 of 20 ::: Downloaded on - 02-11-2017 22:07:49 ::: CWP Nos.18756 and 9104 of 2015 -10- which recommended that agenda but enhancement of the salary was given from the date of approval i.e. 29.09.2012. Resultantly, she joined on 04.04.2014 (Annexure R-28 colly.). The BOF in its meeting held on 19.02.2015 decided re-fixation of the salary of the said person who was re-designated as Assistant Professor to be made notionally w.e.f. 02.03.2000 the date when she joined to 28.09.2013 when she was re- designated as Assistant Professor. The same had been approved by Syndicate and the Senate in the meeting held on 08.03.2015. Resultantly, the regularizations were justified as posts existed in different departments.
Mr. Subhash Ahuja, Advocate appearing on behalf of the respondent-University accordingly justified the impugned order, whereby the petitioner's case for regularization was denied and submitted that in the present circumstances, in view of the decreasing admission of the B.Ed. Course the decision has been rightly taken and she had not made the cut on merit. He also submitted that in the absence of any policy of regularization no directions were liable to be issued and there was no cause for interference in the impugned order and her case has been considered as per orders of the Court.
From the above pleadings which have been referred to and keeping in view the fact that it is the case of the petitioner herself which she cannot run away from the fact that the appointment was initially given to the post of Lecturer on contract basis which would be clear from the appointment letters itself. Merely because the petitioner continued to 10 of 20 ::: Downloaded on - 02-11-2017 22:07:49 ::: CWP Nos.18756 and 9104 of 2015 -11- work and her terms and conditions were extended from time to time, does not give any indefensible legal right to her as such irrespective of the fact that she has failed to make the cut in the regular selections which were conducted in the year 2006 and 2010 in which she had duly participated. At that point of time she never raised any dispute regarding the selection of other persons who were never made parties and therefore, she now cannot turn around and allege that the selection process was unfair in any manner. The terms of her appointment was as such initially for the academic session 2005-2006 from the date of joining.
The impugned order would go on to show that she had participated in the interview held on 18.10.2006 against Advertisement No.8/2006 issued on 29.04.2006 and thereafter also against the Advertisement No.7/2009 she had appeared in the interview for which she had been issued the appointment letter on contract basis and her services had been extended from time to time. She had failed to make the cut against Advertisement No.11/2010 for regular post of Assistant Professor in the Institute of Education Technology and Vocational Studies and she was not short listed for interview on the basis of criteria adopted. She had also applied against the Advertisement No.7/2013 in the University School of Open Learning, but the same process had been kept in abeyance by the order of the Vice-Chancellor and it has now been justified that there is a decrease in number of students taking admission.
It is settled principle that a writ of mandamus is to be issued against a legal right and it is the specific case of the University that there 11 of 20 ::: Downloaded on - 02-11-2017 22:07:49 ::: CWP Nos.18756 and 9104 of 2015 -12- is no policy of regularization as such in place and merely on the strength of long employment the petitioner as such has no vested right as such to be regularized on the strength of the fact that she had been appointed on contract basis, which has been extended time and again.
Counsel for the University was well justified in placing reliance upon the Division Bench judgment of this Court in Hardev Singh and others Vs. State of Punjab and others, 2013 (2) RSJ 683 to submit that it is not for this Court to give directions to frame a scheme for regularization. In the said case the Punjab Home Guards were seeking directions for treating them as regular employees and grant of regular pay scales which had been denied and which were being challenged on the ground that they had been working for the last 10 years and in some case for 30 years. It was, accordingly, held that in view of law laid down by the Apex Court in Secretary, State of Karnataka and others Vs. Uma Devi (3) and others 2006 (4) SCC 1 which was followed by the judgment in Official Liquidator Vs. Dayanand and others, 2008 (10) SCC 1, directions for regularization could not be issued. Similarly, reliance had also been placed upon the judgment of the Apex Court in State of Rajasthan and others Vs. Daya Lal and others, 2011 (2) SCC 429 on the ground that it would amount to back door entry and appointments would be contrary to the constitutional scheme which could not be legalized.
The Constitutional Bench in Uma Devi (3) (supra) has gone on to hold that contractual employments which are for specific time 12 of 20 ::: Downloaded on - 02-11-2017 22:07:49 ::: CWP Nos.18756 and 9104 of 2015 -13- period are not likely to be regularized on the ground that the persons have worked for significant length of time and that financial burdens are not to be put upon the employers when employees are not permanently or regularly needed and there is no such right of regularization and ordinarily directions should not be issued for absorption, regularization or permanent continuance. It has been further held that the employment was accepted fully knowing the nature of same and the consequences flowing from it, but it would not give the person as such a right to be continued permanently, as it would create another mode of public employment which is not permissible. Accordingly, it was held that in the name of individualizing justice, the Court should not issue a mandamus to compel authorities to do something. In the absence of any legal duty on the authority a writ of mandamus is not liable to be issued, since there is no rule to enforce the same and in the absence of any enforceable legal right, the position could not be justified or that the State had any legal duty to make such employees permanent. Reference can be made to the relevant observations which read as under:-
"It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not
13 of 20 ::: Downloaded on - 02-11-2017 22:07:49 ::: CWP Nos.18756 and 9104 of 2015 -14- being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.
40. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to 14 of 20 ::: Downloaded on - 02-11-2017 22:07:49 ::: CWP Nos.18756 and 9104 of 2015 -15- perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution."
The same principle would be applicable in the present case, keeping in view the judgment of Official Liquidator (supra). The relevant portion reads as under:-
"57. By virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in Secretary, State of Karnataka v. Uma Devi (supra) is binding on all the courts including this Court till the same is overruled by a larger Bench. The ratio of the Constitution Bench judgment has been followed by different two-Judges Benches for declining to entertain the claim of regularization of service made by ad hoc/temporary/ daily wage/casual employees or for reversing the orders of the High Court granting relief to such employees Indian Drugs and Pharamaceuticals Ltd. v. Workmen (2007)1 SCC 408 , Gangadhar Pillai v. Siemens Ltd.
(2007)1SCC533, Kendriya Vidyalaya Sangathan v. L.V. Subramanyeswara (2007) III LLJ 174 SC, Hindustan Aeronautics Ltd. v. Dan Bahadur Singh (2007) III LLJ 234 SC. However, in U.P. SEB v. Pooran Chand Pandey 2007 (11) SCC 92 on which reliance has been placed by
15 of 20 ::: Downloaded on - 02-11-2017 22:07:49 ::: CWP Nos.18756 and 9104 of 2015 -16- Shri Gupta, a two-Judges Bench has attempted to dilute the Constitution Bench judgment by suggesting that the said decision cannot be applied to a case where regularization has been sought for in pursuance of Article 14 of the Constitution and that the same is in conflict with the judgment of the seven-Judges Bench in Maneka Gandhi v. Union of India [1978] 2 SCR 621.
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70. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to decide as to which of the judgment lay down the correct law and which one should be followed. We may add that in our constitutional set up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to 16 of 20 ::: Downloaded on - 02-11-2017 22:07:49 ::: CWP Nos.18756 and 9104 of 2015 -17- the Constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.
71. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judges Bench in U.P. State Electricity Board v. Pooran Chandra Pandey (supra) should be read as obiter and the same should neither be treated as binding by the High Courts, Tribunals and other judicial foras nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench."
In the case of Daya Lal (supra), it was held as under:-
"8. We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals:
(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee 17 of 20 ::: Downloaded on - 02-11-2017 22:07:49 ::: CWP Nos.18756 and 9104 of 2015 -18- which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.
(ii) Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be 'litigious employment'. Even temporary, ad hoc or daily- wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.
(iii) Even where a scheme is formulated for regularization with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates.
(iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.
(v) Part time temporary employees in government run institutions cannot claim parity in salary with regular 18 of 20 ::: Downloaded on - 02-11-2017 22:07:49 ::: CWP Nos.18756 and 9104 of 2015 -19- employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute."
On the principle of equality under Article 14 of the Constitution of India while referring to other employees as noticed in the case of Dr. Dazy Zarabi and Ms. Shveta Mahindra also the petitioner's case would stand on a different footing altogether. It is to be noticed that the Dr. Zarabi was initially appointed an Associate Coordinator and thereafter as Project Officer. In view of the directions issued by the MHRD, the University had to take over the liability and she had worked since 1997 and was re-designated in view of the fact that she had relevant qualification at the time of regular appointment which had been duly sanctioned by the University at all relevant levels. Thereafter she was given appointment as Assistant Professor in the Department of Community Education & Disabilities Studies and therefore the petitioner cannot as such compare herself with the said person and the facts of the petitioner are not identical as to the facts and circumstances of the said person who had initially been appointed way back in the year 1997 and thereafter had been protected on account of her long regular service and as per directions of the MHRD.
Similarly, Ms. Shveta Mahendra also appointed way back in the year 1999 as Stage Craft Teacher after proper advertisement and only on account of stagnation in view of the positive recommendations her 19 of 20 ::: Downloaded on - 02-11-2017 22:07:49 ::: CWP Nos.18756 and 9104 of 2015 -20- case had been duly recommended and she had been confirmed way back on 03.03.2001 and her case was subject to the decision in CWP No.28159 of 2013 'Navdeep Kaur Vs. Panjab University and others'. The petitioner had not applied as such against a regular appointment and had been appointed on contract basis and the petitioner cannot as such claim that she has been discriminated against her.
The respondent-University cannot thus be forced by this Court to take on an employee merely on account of the fact of long tenure of service irrespective of the requirements, as has also been made out in its written statement. In such circumstances, keeping in view the principles laid down by the Apex Court no positive orders as such can be passed in her favour that she is entitled for regularization on the basis of equality. Resultantly, the impugned order 17.07.2015 (Annexure P-10) does not suffer from any infirmity which would warrant interference by this Court. Accordingly, the present writ petitions are dismissed.
(G.S. SANDHAWALIA)
OCTOBER 26, 2017 JUDGE
Naveen
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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