Punjab-Haryana High Court
Sanjay Kumar vs Punjab National Bank And Others on 30 November, 2023
Neutral Citation No:=2023:PHHC:152546
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CWP-18839-2023 & Connected Cases -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
251 (5 Cases) CWP-18839-2023
Date of Decision: 30.11.2023
Sanjay Kumar ...Petitioner
Versus
Punjab National Bank and Others ...Respondents
With
CWP-18627-2021 (O&M)
Hansraj and Others ...Petitioners
Versus
Punjab National Bank and Another ...Respondents
With
CWP-18856-2023
Sandeep Kumar ...Petitioner
Versus
Punjab National Bank and Others ...Respondents
With
CWP-18874-2023
Raj Kumar ...Petitioner
Versus
Punjab National Bank and Others ...Respondents
And
CWP-19658-2021
Shri Om and Another ...Petitioners
Versus
Punjab National Bank and Another ...Respondents
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CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present:- Mr. B.S. Bedi, Advocate and
Mr. Jasmeet Singh Bedi, Advocate for the petitioner(s)
(in CWP- No.18839-2023, CWP-18856-2023, CWP-18874-2023)
Ms. Harmeet Kaur, Advocate for the petitioner(s)
(in CWP- No.18627-2021, CWP-19658-2021)
Mr. Saurav Verma, Advocate with
Ms. Preeti Grover, Advocate for the respondents
Mr. Naresh Jain, Advocate for respondent Nos.3 to 18
***
JAGMOHAN BANSAL, J. (Oral)
1. As the issue involved is common, with the consent of contesting parties, all the captioned petitions are disposed of by this common order. For the sake of brevity and convenience, facts are borrowed from CWP No.18839 of 2023.
2. The petitioner through instant petition under Article 226 of the Constitution of India is seeking setting aside of advertisement dated 07.04.2021 (Annexure P-1) whereby respondents invited applications for regular part time sweepers without extending benefit of age relaxation to old employees.
3. The brief facts of the case which are necessary for the adjudication of the present petitions are that the petitioner belongs to Scheduled Caste Category and as per his averments, he was employed by Oriental Bank of Commerce in 2012 on part time basis. The age of the petitioner at the time of joining with the respondent-bank was 28 years. The aforesaid bank came to be merged with Punjab National Bank w.e.f. 01.04.2020. The amalgamated bank took over all the assets and liability of amalgamating bank i.e. Oriental Bank of Commerce. Punjab National Bank 2 of 14 ::: Downloaded on - 04-12-2023 22:32:58 ::: Neutral Citation No:=2023:PHHC:152546 2023:PHHC:152546 CWP-18839-2023 & Connected Cases -3- issued advertisement dated 07.04.2021 inviting applications for regular part time Sweepers. In the advertisement, the maximum age prescribed for General Category Candidates was 24 years, for OBC Category 27 years and for SC Category 29 years. The petitioner was more than 29 years of age at the time of advertisement. The petitioner was not eligible to participate in the selection process still he submitted an application. The petitioner was not considered being overage. The respondent-bank has completed selection process and selected candidates are working with the respondent-bank.
4. Learned counsel for the petitioner assailing advertisement submits that petitioner was entitled to age relaxation, however, respondents without extending benefit of age relaxation proceeded with the selection process and selected candidates other than the petitioner. The petitioner places reliance upon judgment of Supreme Court in University of Delhi v. Delhi University Contract Employees Union and Others, 2021 AIR (Supreme Court) 3305; State of Himachal Pradesh v. Suresh Kumar Verma, 1996 (7) SCC 562 and Division Bench judgment of this Court in Baldu Ram v. State of Haryana, 2000 (3) SCT 288.
5. Per contra, learned counsel for the respondents submits that selection process has already completed and selected candidates have joined their service. The petitioner neither has fundamental nor vested right to claim age relaxation. The Hon'ble Supreme Court in peculiar facts and circumstances has granted age relaxation, however, it cannot be made applicable in every selection because it would amount to backdoor entry.
6. I have heard the arguments of learned counsels for the parties and perused the record with their able assistance.
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7. The conceded position emerging from the record is that the petitioner worked with Oriental Bank of Commerce which has merged with Punjab National Bank. The respondent-Bank vide advertisement dated 07.04.2021 invited applications for regular part time sweepers. The maximum age prescribed for SC Category candidates was 29 years and petitioner was ineligible to participate being overage. The respondent has completed selection process and selected candidates have joined the service.
8. A Constitution Bench in Secretary, State of Karnataka and Others v. Uma Devi and Others, (2006) 4 SCC 1, has adverted with question of regularization of temporary/part time/adhoc employees. The Court has deprecated practice of employing temporary/part time or contractual employees though Court has held that in exigency, State can make appointment on contract basis. The Court has held that regularization of contractual or part time employees would amount to legalization of back door entry. The regularization of part time employees is violative of Articles 14, 16 & 309 of Constitution of India. The employees who are working on daily wages cannot claim discrimination on the ground that they have been paid lesser than regularly recruited employees. The High Court should not ordinarily issue directions for absorption, regularization or continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. High Court is not justified in issuing interim orders in such cases. There is no fundamental or vested right in those who have been employed on daily wages or temporary or contractual to claim that they have a right to be absorbed in service. The relevant extracts of the judgment read as:
"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and 4 of 14 ::: Downloaded on - 04-12-2023 22:32:58 ::: Neutral Citation No:=2023:PHHC:152546 2023:PHHC:152546 CWP-18839-2023 & Connected Cases -5- since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be 5 of 14 ::: Downloaded on - 04-12-2023 22:32:58 ::: Neutral Citation No:=2023:PHHC:152546 2023:PHHC:152546 CWP-18839-2023 & Connected Cases -6- caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
44. The concept of "equal pay for equal work" is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after Dharwad decision [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under 6 of 14 ::: Downloaded on - 04-12-2023 22:32:58 ::: Neutral Citation No:=2023:PHHC:152546 2023:PHHC:152546 CWP-18839-2023 & Connected Cases -7- Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality.
45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned 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 open eyes. It may be true that he is not in a position to bargain--not at arm's length--since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would 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 court 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 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 succour 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 7 of 14 ::: Downloaded on - 04-12-2023 22:32:58 ::: Neutral Citation No:=2023:PHHC:152546 2023:PHHC:152546 CWP-18839-2023 & Connected Cases -8- consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. 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 as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.
46. Learned Senior Counsel for some of the respondents argued that on the basis of the doctrine of legitimate expectation, the employees, especially of the Commercial Taxes Department, should be directed to be regularised since the decisions in Dharwad [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] , Piara Singh [(1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992) 21 ATC 403 : (1992) 3 SCR 826] , Jacob [Jacob M. Puthuparambil v. Kerala Water Authority, (1991) 1 SCC 28 :
1991 SCC (L&S) 25 : (1991) 15 ATC 697] and Gujarat Agricultural University [Gujarat Agricultural University v. Rathod Labhu Bechar, (2001) 3 SCC 574 : 2001 SCC (L&S) 613] and the like, have given rise to an expectation in them that their services would also be regularised. The doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) 8 of 14 ::: Downloaded on - 04-12-2023 22:32:58 ::: Neutral Citation No:=2023:PHHC:152546 2023:PHHC:152546 CWP-18839-2023 & Connected Cases -9-
he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. [See Lord Diplock in Council for Civil Services Union v. Minister of Civil Service [1985 AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR 1174 (HL)] , National Buildings Construction Corpn. v. S. Raghunathan [(1998) 7 SCC 66 :
1998 SCC (L&S) 1770] and Chanchal Goyal (Dr.) v. State of Rajasthan [(2003) 3 SCC 485 : 2003 SCC (L&S) 322] .] There is no case that any assurance was given by the Government or the department concerned while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it. The very engagement was against the constitutional scheme. Though, the Commissioner of the Commercial Taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out. No such promise could also have been held out in view of the circulars and directives issued by the Government after Dharwad decision [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] . Though, there is a case that the State had made regularisations in the past of similarly situated employees, the fact remains that such regularisations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some cases by this Court. Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularised in the service though they had not been selected in terms of the rules for appointment. The fact that in certain cases the court had directed regularisation of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation. The argument if accepted would also run counter to the constitutional mandate. The argument in that behalf has therefore to be rejected.
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47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
48. 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 department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not 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 10 of 14 ::: Downloaded on - 04-12-2023 22:32:58 ::: Neutral Citation No:=2023:PHHC:152546 2023:PHHC:152546 CWP-18839-2023 & Connected Cases -11- 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.
49. It is contended that the State action in not regularising 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 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."
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9. A three Judge Bench of Hon'ble Supreme Court in Official Liquidator v. Dayanand and Others, (2008) 10 SCC 1 has reiterated opinion of Constitution Bench in Uma Devi (supra).
10. A Division Bench of this Court vide judgment dated 04.07.2022 in Lokesh Rana and another v. Union of India and others, LPA No.513 of 2022, has held that a contractual employee has no right to get his contract renewed which was for a limited period.
11. The Apex Court in Hargurpratap Singh v. State of Punjab and others, (2007) 13 SCC 292, has held that contractual employees cannot be replaced by another set of contractual employees. In the case in hand, the petitioners have been replaced by regular employees who have been appointed after following due procedure.
12. A two Judge Bench of Hon'ble Supreme Court in Union of India and others v. Vartak Labour Union, (2011) 4 SCC 200 has rejected claim of regularization of contractual employees who had worked for more than 30 years with Border Roads Organization.
13. A two Judge Bench of Hon'ble Supreme Court in Union of India and others v. All India Trade Union Congress and others, (2019) 5 SCC 773, following Vartak Labour Union (supra) has held that no contractual employee can claim regularization. High Courts cannot direct authorities to frame policy and regularize the contractual employees.
14. A Division Bench of this Court vide judgment dated 31.05.2018 in Yogesh Tyagi and another v. State of Haryana and others, CWP No.17206 of 2014, set aside policy of regularization made by the State. The Court has set aside policy on the ground that regularization of contractual 12 of 14 ::: Downloaded on - 04-12-2023 22:32:58 ::: Neutral Citation No:=2023:PHHC:152546 2023:PHHC:152546 CWP-18839-2023 & Connected Cases -13- employees who have been appointed without following prescribed procedure amounts to back door entry and it amounts to violation of Articles 14, 16 & 309 of Constitution of India.
15. The petitioner relying upon judgment of Hon'ble Supreme Court in University of Delhi (supra) and Suresh Kumar Verma (supra) are claiming that they should be extended benefit of age relaxation. Hon'ble Supreme Court in aforesaid judgments has not laid down law to the extent that in every case an employer is supposed to extend benefit of age relaxation to those employees who were working on contract/part time basis. The Court has directed respondents to extend age relaxation in the facts and circumstances involved therein. It is apt to notice that in the case of University of Delhi (supra), there was an affidavit on the part of university wherein university itself agreed to grant age relaxation.
16. In the case in hand, the petitioner is claiming that he was working with Oriental Bank of Commerce on part time basis. The respondent advertised regular posts. The respondent did not attempt to replace one set of contractual/part time employees with another set of part time/contractual employees. The respondent invited applications for regular appointment. The petitioner was free to participate in the selection process subject to terms and conditions of the advertisement. The respondent has completed selection process and selected candidates have already joined.
17. In view of aforesaid judgments of Hon'ble Supreme Court, the petitioner has no vested or fundamental right to continue or claim regularization or claim age relaxation. This Court at the best could consider claim of the petitioner had appointments not been made. Undisputedly, the 13 of 14 ::: Downloaded on - 04-12-2023 22:32:58 ::: Neutral Citation No:=2023:PHHC:152546 2023:PHHC:152546 CWP-18839-2023 & Connected Cases -14- respondents have already completed selection process and petitioner has no fundamental or vested right to claim age relaxation. The Courts have directed State and its instrumentalities to grant age relaxation prior to completion of selection process and in the light of involved fact and circumstances. There is neither any straitjacket formula nor petitioner carry fundamental or vested right of age relaxation.
18. In view of above discussion and findings, this Court is of the considered opinion that present petitions are bereft of merit, thus, deserve to be dismissed and accordingly dismissed.
(JAGMOHAN BANSAL)
JUDGE
30.11.2023
Mohit Kumar
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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