CWP No. 19928-CAT of 2002 v. Central Administrative Tribunal, Chandigarh Bench, Chandigarh

considered in respect of Ms. Meenakshi Walia; Mona Swain and Seema Jaitley, whereas the grievance of the Administration in respect of grant of CWP No. 19928-CAT of 2002 (3) regular pay scale is to be considered in respect of all the part time / contractual Lecturers. Before coming to the facts of the cases in hand, it may be noticed that the Chandigarh Educational Services (Group-B Gazetted) Govt. Home Science College Rules, 1990 (for short `the Rules') were published on 21.2.1991. The said validity of such Rules was challenged twice before the Tribunal. In the first round of litigation decided on

1.2.1994, the Rules relating to the qualification prescribed for recruitment to the post of Lecturer were quashed for the reason that such Rules do not prescribe qualification as laid down by the Panjab University in its Circular dated 18.6.1990. Thereafter, the Rules were amended vide Notification dated 22.12.1997 published on 1.1.1998. The said Rules were again challenged before the Tribunal and on 5.5.1999, the Rules relating to qualification prescribed were again quashed. It was thereafter, the Rules were amended vide notification dated 17.1.2000 published on the same day. It is the said Rules, which are applicable. Similar is the situation in respect of the Chandigarh Educational Services (Group-B Gazetted) Arts and Science College Rules, 1990. The said Rules were also notified on 21.2.1991 and have met the same fate in respect of its validity and the amendments. Though in CWP No. 19928-CAT of 2002, the petitioner was appointed as Lecturer in Home Science College and in other cases, the appointments are to the Arts and Science College, but there is complete parity of circumstances, though separate Rules were notified for them. Prior to promulgation of both sets of Rules on 21.2.1991, the appointment of Lecturers in the Chandigarh Administration was governed by the Punjab Subordinate Education Service Rules, 1937 (hereinafter referred as `The Punjab Rules'). Such Rules were applicable in terms of Section 89 of the Punjab Reorganisation Act, 1966 (for short CWP No. 19928-CAT of 2002 (4) `the Act') contemplating that any law made before the appointed date shall have effect subject to adoption and modification so made until altered, repealed or amended by a competent legislature or other competent authorities and, inter-alia, to other conditions. All the part time/contractual Lecturers (hereinafter referred to as `the applicants') were appointed in the year 1995 or thereafter. It is the pleaded case of the applicants that the Administration has been filling the posts of Lecturers by taking the persons on deputation from the neighboring States or by offering temporary appointment to the nominees of the Employment Exchange. The regular appointments to the Lecturers has not been made in any of the Colleges in U.T., Chandigarh since 1978 through Union Public Service Commission. The applicants were appointed on a consolidated salary. The same being Rs.2200/- per month in case of the applicants, who have less than 20 teaching periods in a week and for part time Lecturers, who have more than 20 Lecturers in a week, the consolidated salary was Rs.3500/- in terms of circular dated 18.7.2000 (Annexure P.11). In respect of the Lecturers appointed prior to the notification of the Rules on 21.2.1991, the Hon'ble Supreme court in Dr. Gagon Inder Kaur v. Union Territory of Chandigarh and others, decided on 17.10.1995, has held that all such Lecturers are deemed to be regularly appointed. Relying upon the said judgment, this Court allowed CWP No.10319-CAT of 2001- Sumangal Roy v. Union of India on 6.2.2007, filed by the Lecturers, who were appointed by a duly constituted selection committee in the year 1989 in the Government College of Arts, Chandigarh. Learned counsel for the applicants have vehemently argued that the Rules notified by the Chandigarh Administration in the year 1991 remained inoperative and inapplicable till 17.1.2000 and, therefore, the appointment of the applicants is to be considered having CWP No. 19928-CAT of 2002 (5) been made in terms of the Punjab Rules. It is contended that in terms of the Punjab Rules, the post of Lecturer is Class-III post, and therefore, for appointment thereof, consultation with the State Public Service Commission is not required. Apart from the consultation with the Punjab Public Service Commission, the applicants have been appointed by complying with the process of law contemplated under the Punjab Rules. Since the Rules were not operative when the applicants were appointed on adhoc/part time or contractual basis, therefore, they are deemed to be appointed under the Punjab Rules. Such appointment is deemed to be regular appointment in terms of the judgment of the Hon'ble Supreme Court in Gagon Inder Kaur's case (supra), as followed by this Court in Sumangal Roy's case. Therefore, the order passed by the Tribunal declining the regularisation of the services of the applicants, is not sustainable. Reliance was placed on Guneeta Chadha and others v. Union of India and others, 2001(1) SLR 9; State of Sikkim v. Dorjee Tshering Bhutia and Ors., 1991(5) SLR 82 as well. Learned counsel for the applicants have further argued that lack of consultation with Union Public Service Commission is at best irregular and, therefore, in terms of the judgment of the Hon'ble Supreme Court in Secretary State of Karnataka and others v. Uma Devi and others, (2006)4 SCC page 1, the petitioners having put in more than 10 years of service continuously without any break, are entitled to be regularised. Reliance was also placed upon Balwinder Singh and others v. State of Punjab and others, 1998(1) RSJ 731, a judgment of the Division Bench of this Court to contend that the applicants having been sponsored by the Employment Exchange, their appointment cannot be said to be illegal. On the other hand, Shri Kapil Kakkar, learned counsel representing the Administration has supported the order of the Tribunal, CWP No. 19928-CAT of 2002 (6) in respect of declining the relief of regularisation of the services of the applicants, but argued that the applicants are not even entitled to the minimum of regular pay scale. Reliance is placed upon State of Haryana v. Surinder Kumar and others, (1997)3 SCC 633; Apangshu Mohan Lodh and others v. State of Tripura and others, (2004)1 SCC 119; State of Madhya Pradesh and others v. Yogesh Chandra Dubey and others, (2006)8 SCC 67 and State of Bihar & Ors. v. Bihar Veterinary Association & Ors., 2008(2) SCT 172. The learned counsel also relied upon para 48 of the judgment in Uma Devi's case (supra). It is also argued that the applicants were being paid their wages out of the amalgamated funds of the College established by the contributions from the students, therefore, the application before the Tribunal is not maintainable. Reliance is placed upon the Hon'ble Supreme Court order in Union of India and another v. Chotelal and others, (1999)1 SCC 554 and Santokh Singh v. Chandigarh Administration and others, CWP No.8476-CAT of 2001 decided on 1.6.2001. Reliance is also placed upon Nagendra Chandra and others v. State of Jharkhand and others, (2008)1 SCC 798, to contend that in the absence of advertisement, the appointments made are illegal. Firstly, we will deal with the objection raised by Shri Kakkar that the application before the Tribunal is not maintainable. In Santokh Singh's case (supra) relied upon by Shri Kakkar, the petitioner has approached the Hon'ble Supreme Court against the order passed by the Tribunal holding that the Original Application before the Tribunal is not maintainable. The Hon'ble Supreme Court permitted the petitioner to move another application on the assumption that he is an employee of the Chandigarh Administration and directed the Tribunal to examine the same without being influenced by the observations contained in the earlier order of the Tribunal. The Tribunal again dismissed the original CWP No. 19928-CAT of 2002 (7) application. But this Court in the writ petition noticed the reasoning given by the Tribunal that payment of salary in the running grade by itself was not sufficient to entitle the petitioner to seek regularisation on the post of Dispenser. It was found that the petitioner had not applied for the post of Pharmacist or Dispenser, when the same were created by the Chandigarh Administration as the petitioner was not qualified for either of those posts. Still further, it was found that the petitioner cannot claim regularisation as he was neither appointed by the competent authority of the Chandigarh Administration nor he was under its disciplinary control nor he was paid out of the funds of the Administration. Therefore, the said judgment provides no assistance to the learned counsel for the respondents. In Chotelal's case (supra), the question examined was whether the Dhobis appointed for washing clothes of the Cadets of the National Defence Academy, Khadakwasla, out of the regimental funds can be said to be holding a civil post. The regimental fund is a fund created out of the monthly Dhobi allowance given to each cadet. It was out of such regimental fund, the Dhobis were being paid. It was held that the Dhobis cannot be held to be holding a civil post. In Union of India and others v. A. Aslam and others, (2001) 1 SCC 720, the Hon'ble Supreme Court considered its earlier judgment in Chotelal's case (supra) and relying upon Parimal Chandra Raha v. LIC of India, 1995 Supp (2) SCC 611, the Court found that the employees working in the Unit-run Canteens are the Government employees. It was found that the Officers of the defence services have all pervasive control over the Unit-run Canteens as well as the employees serving therein. Therefore, such employees are holding civil post. The Tribunal has relied upon A. Aslam's case (supra) and CWP No. 19928-CAT of 2002 (8) Primal Chandra Raha's case (supra), apart from the judgment of the Constitution Bench of the Hon'ble Supreme Court in State of Gujarat and another v. Raman Lal Keshav Lal Soni & others, (1983) 2 SCC 33, to the effect that one single factor may not be considered absolutely necessary to return a finding that an employee is a Government servant. Presence of all or some of the factors, such as, the right to select for the appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employee, the right to control the employee's manner and method of work, the right to issue directions and the right to determine and the source from which wages or salary are paid and a host of such circumstances may have to be considered to determine the existence of the relationship of master and servant. In view of the aforesaid judgment, it may not be decisive to determine the nature of status only on the basis of source from which salary is drawn by an employee. The Administration has appointed the Lecturers on adhoc and part time basis on fixed salary or on contractual basis to fulfil its Constitutional obligation of imparting education. Sanction to engage the Lecturers in such manner was given by the Director Public Instructions. After the posts were sanctioned by the Director Public Instructions, the Lecturers were appointed to discharge their teaching obligations in Government Colleges. Therefore, it is not possible to return a finding that the applicants are not holding a civil post and that Tribunal will not have the jurisdiction to entertain the application. The second question which arises for consideration is whether the appointment of the applicants is under the Punjab Rules. As mentioned above, all the applicants have been appointed on part CWP No. 19928-CAT of 2002 (9) time; adhoc or contractual basis in the year 1995 or thereafter. The appointments have been primarily made by sending requisition to the Employment Exchange. Though in some cases, it is pointed out that the appointments have made by the Principal of the College directly. In an earlier order dated 16.3.1998 passed by the Tribunal, the Administration was directed to fill up the posts of Lecturers strictly in accordance with the Statutory Rules. It was further directed that till then the applicants will not be replaced by any adhoc or contractual employees. The applicant Anupama Bhardwaj applied for regular appointment, but was not recommended. In fact, Ms. Ritu Pradhan was appointed as Lecturer in Food and Nutrition i.e. the post against which the petitioner applied. It is also pointed out that the applicant Anupama Bhardwaj was 27 years of age in the year 1996, though as per the Punjab Rules, the maximum age for appointment was 25 years. It was denied that even the procedure as contemplated under the Punjab Rules was followed before making appointments. To examine the question of appointment under the Punjab Rules, one needs to examine the historical background of the creation of Union Territory Chandigarh Administration. With the enactment of the Act, separate States of Punjab; Haryana and a Union Territory of Chandigarh, were carved out of the erstwhile State of Punjab. As per Section 88 of the Act, the provisions of part II of the Act, was not to effect any change in the territories to which any law in force immediately before the appointed day extends or applies and territorial references in any such law to the State of Punjab shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day. Section 89 of the Act contemplated that the appropriate Government may, before the expiration of two years from CWP No. 19928-CAT of 2002 (10) that day, by order, make such adaptations and modifications of the law whether by way of repeal or amendment as may be necessary or expedient and that every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority. Section 89 of the Act reads as under:- “89. Power to adapt laws.- For the purpose of facilitating the application in relation to the State of Punjab or Haryana or the Union Territory of Himachal Pradesh or Chandigarh of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority. Explanation. - In this section, the expression “appropriate Government” mean- (a) as respects any law relating to a matter enumerated in the Union List, the Central Government; and (b) as respects any other law, - (i) in its application to a State, the State Government and (ii) in its application to a Union Territory, the Central Government.” In Zaverbhai Amaidas v. State of Bombay, AIR 1954 SC CWP No. 19928-CAT of 2002 (11) 752, it has been held that when there is a legislation covering the same field, by the Centre as also by the Province, the Central Legislation shall prevail over that of the State. The principle on which the rule of implied repeal rests, is that if the subject matter of the latter legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the latter one. In State of Orissa and another v. M/s M.A. Tulloch and Co. and another, AIR 1964 SC 1284, it was held that repealed enactment is to be considered, except, as past and closed transaction as if it had never existed. It was held to the following effect:- “(20) Before proceeding further it will be convenient to clear the ground by adverting to two matters: (1) the effect of a Central Act under its exclusive legislative power which covers the field of an earlier State Act which was competent and valid when enacted is not open to doubt. The Parliamentary enactment supesedes the State Law and thus it virtually effects a repeal, (2) the effect in law of a repeal, if it is not subject to a saving as is found in S. 6 of the General Clauses Act is also not a matter of controversy. Tindal, C.J., stated this in Kay v. Goodwin, (1830) 6 Bing 576 at p. 582:- “I take the effect of repealing a statute to be to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were CWP No. 19928-CAT of 2002 (12) commenced, prosecuted and concluded whilst it was an existing law.” It was the same idea that was expressed by Lord Tenterden in Surtees v.Ellison, (1829) 9 B and C 750 at p. 752:- “It has long been established that, when an Act of Parliament is repealed, it must be considered (except as to transactions past and closed) as it it had never existed.” Later while examining the question whether Section 6 of the General Clauses Act, 1897, dealing with the expressed repeal of an earlier statute, would be applicable in respect of implied repeal, the Court held to the following effect:- “Now, if the legislative intent to supersede the earlier law is the basis upon which the doctrine of implied repeal is founded could there be any incongruity in attributing to the later legislation the same intent which S. 6 presumes where the word `repeal' is expressly used. So far as statutory construction is concerned, it is one of the cardinal principles of the law that there is no distinction or difference between an express provision and a provision which is necessarily implied, for it is only the form that differs in the two cases and there is no difference in intention or in substance. A repeal may be brought about by repugnant legislation, without even any reference to the Act intended to be repealed, for once legislative competence to effect a repeal is CWP No. 19928-CAT of 2002 (13) posited, it matters little whether this is done expressly or inferentially or by the enactment of repugnant legislation. If such is the basis upon which repeals and implied repeals are brought about it appears to us to be both logical as well as in accordance with the principles upon which the rule as to implied repeal rests to attribute to that legislature which effects a repeal by necessary implication the same intention as that which would attend the case of an express repeal. Where an intention to effect a repeal is attributed to a legislature then the same would, in our opinion, attract the incident of the saving found in S. 6 for the rules of construction embodied in the General Clauses Act are, so to speak, the basic assumptions on which statures are drafted.” It is not disputed that the Rules as notified on 21.2.1991, have been framed by the authority competent to make the Rules in respect of the employees of the Chandigarh Administration. It is by virtue of Section 89 of the Act, the Punjab Rules continued to apply to Union Territory, Chandigarh. The appointments under the Rules could not be made on account of dispute regarding eligibility qualification for appointment. There cannot be two different sets of Rules on the same subject. It is not in dispute that Punjab Rules and the Rules, both relate to recruitment of Lecturers in the College cadre. Once, the the legislative powers have been exercised by the competent authority in respect of appointments of the Lecturers in the Chandigarh Administration, the Punjab Rules are impliedly repealed. Once the Punjab Rules are deemed CWP No. 19928-CAT of 2002 (14) to have been repealed, therefore, the same cannot be relied upon except if permissible and to the extent admissible under Section 6 of the General Clauses Act, 1897. Therefore, since the applicants were appointed in the year 1995 or later, the applicants cannot take advantage of the Punjab Rules at all. The judgments Gagon Inder Kaur's case and Sumangal Roy's case (supra) , arise out of the cases where appointments were made when admittedly the Punjab Rules were in force. It was held that the appointments are deemed to be regular. But in the present case, the appointments have been made much after promulgation of Rules, therefore, the applicant cannot rely upon the Punjab Rules, to assert that their appointments have been regularly made. The matter can be examined from a different angle as well. The appointments of the applicants as contractual, adhoc or part time Lecturers were made in the year 1995 or thereafter. At that time, the Rules, though notified, were inoperative on account of dispute of qualification for appointment. In our view, in the absence of the valid operative Rules, the Administration in exercise of its executive powers conferred under Article 162 of the Constitution of India could make appointments. Such executive powers of the State could be exercised to make the appointments, which was not contrary to the Rules already framed. The Constitution Bench in Rai Sahib Ram Jawaya Kapur and others v. The State of Punjab, AIR 1955 SC 549, has opined that the language of Article 162 of the Constitution indicates that the executive power extends to matters upon which the State Legislature is competent to legislate and are not confined to matters over, which legislation has been passed already. It was also held that it may not be possible to frame an exhaustive definition of what executive functions CWP No. 19928-CAT of 2002 (15) means and implies. Ordinarily the executive power connotes the residue of Governmental functions that remain after legislative and judicial functions are taken away. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. In M/s Bishamber Dayal Chandra Mohan etc. etc. v. State of U.P. and others etc. etc., AIR 1982 SC 33, the Hon'ble Supreme Court held that the State in exercise of executive powers is charged with the duty and the responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed. If there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf. In Katyani Dayal and others v. Union of India and others, 1980(2) SLR 79, while considering the scope of the executive powers of the State, the Hon'ble Supreme Court held that the President acting directly or through Officers subordinate to him, is free to constitute a service (with as many cadres as he chooses), to create posts without constituting a service or to create posts without constituting a service or to create posts outside the cadres of the constituted service. It was held to the following effect:- “17. The inevitable sequitur from these Constitutional provisions is that the President, acting directly or through Officers subordinate to him, is free to constitute a service (with as many cadres as he chooses), to create posts without constituting a service or to create posts outside (the cadres of) the CWP No. 19928-CAT of 2002 (16) constituted service. The President (or the person directed by him) may, or, again, if he so chooses he may not, make rules regulating the recruitment and conditions of service of persons appointed to such service or posts. He is also free to make or not to make appointments to such services or posts. Nor is it obligatory for him to make rules of recruitment, etc., before a service may be constituted or a post created or filled. But if there is an Act of Parliament or a rule under the proviso to Article 309 on the matter, the executive power, under Articles 53 and 73, may not be exercised in a manner inconsistent with or contrary to such Act or rule.” In Satya Narain Shukla v. Union of India and others, (2006) 9 Supreme Court Cases 69, the challenge was to Central Staffing Scheme as ultra vires Articles 309 and 312 of the Constitution. It was argued that the service conditions of the IAS Officers are governed by the provisions of All India Services Act, 1951 and the Rules framed thereunder and, therefore, no executive powers under Articles 309 and 312 of the Constitution inconsistent with the statutory Rules framed under the Act could be exercised. It was argued that the Central Staffing Scheme was neither under the provisions of any legislative enactment nor supporting legislation framed under All India Services Act. Therefore, to the extent of inconsistency with the said Act or the Rules framed thereunder, it was illegal. The Hon'ble Supreme Court held that it is not possible to accept that there is no power other than Section 3 of All India Services Act, available to the executive to deal with the recruitment and conditions of service. It was held to the following effect:- “16. It is now well established that the Central CWP No. 19928-CAT of 2002 (17) Government's executive power extends to the same subjects and to the same extent as that of Parliament, as long as it does not infringe any provision of any law made by Parliament or of the Constitution. In Rai Sahib Ram Jawaya Kapur v. State of Punjab,AIR 1955 SC 549, this Court has observed:- “It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law. This is clear from the provisions of Article 154 of the Constitution CWP No. 19928-CAT of 2002 (18) but, as we have already stated, it does not follow from this that in order to enable the executive to function there must be a law already in existence and that the powers of executive are limited merely to the carrying out of these laws.” Hence, we are unable to accept the contention that the Central Staffing Scheme is unconstitutional.” In the aforesaid case, later the argument that the Rules framed under the Act occupied the whole field of executive desertion and, therefore, by the doctrine of occupied field there is no scope left for exercise of executive action outside the purview of these Rules, was not accepted. It was held that since there are no provisions in the Rules framed which deal with the procedure for selection of Officers from the cadre for the post of Additional Secretary/Secretary to the Government of India, therefore, the subject in respect of this field, does not appear to be occupied. Therefore, it is open to the executive to resort to executive instructions by way of an office memo for dealing with this subject. The judgment in Dorjee Tshering Bhutia's case (supra), relied upon by the learned counsel for the applicants, in fact, supports the the Administration. That was a case wherein selection to Sikkim State Civil Services, was alleged to be in violation of the recruitment Rules. The recruitment Rules contemplated constitution of a Selection Committee consisting of Chairman of Sikkim Public Service Commission. However, the Public Service Commission was not in existence and, therefore, the Rules could not have become functional. In the absence of existence and functioning of the Sikkim Public Service Commission, a cabinet memo was issued by the Sikkim Government for holding a written examination and viva voce test for selection to the Service and consequently a notification in this regard was issued. The said action CWP No. 19928-CAT of 2002 (19) was challenged before the Court. The Hon'ble Supreme Court held that the executive power of the State under Article 162 of the Constitution of India extends to the matters with respect to which the legislature of the State has power to make laws. It was held that the executive powers cannot be exercised in the field which is already occupied by the law made by the legislature, but Rules though enforced, remained unworkable for about five years. The object of regulating the recruitment and conditions of service by statutory provisions is to rule out arbitrariness, provide consistency and crystalize the rights of employees concerned. The statutory provisions which are unworkable and in- operative cannot achieve these objectives. Such provisions are non-est till made operational. It was held to the following effect:- “The statutory provisions which are unworkable and inoperative cannot achieve these objectives. Such provisions are non-est till made operational. It is the operative statutory provisions which have the effect of ousting executive power of the State from the same field. When in a peculiar situation, as in the present case, the statutory provisions could not be operated there was no bar for the State Government to act in exercise of its executive power. The impugned notification to hold special selection was issued almost four years after the enforcement of the Rules. It was done to remove stagnation and to afford an opportunity to the eligible persons to enter the service. In our view the State Government was justified in issuing the impugned notification in exercise of its executive CWP No. 19928-CAT of 2002 (20) power and the High Court fell into error in quashing the same.” In the aforesaid judgment, it was held that it is operative statutory provisions, which have the effect ousting the executive power of the State from the same field. In the present case, the Rules were not operative. Therefore, in exercise of the executive power of the State, the Administration was competent to make appointments. The State Government in exercise of its executive powers had the jurisdiction and authority to make appointments to carry out the functions of the State. In Guneeta Chadha's case (supra), the process of selection and recruitment to the post of Lecturers has started prior to promulgation of the Rules i.e. Feb 21, 1991. In the said case, relying upon Y.V. Rangaiah v. J. Sreenivasa Rao, 1983(1) SLR 789 (SC), it was held that the selection process having been initiated under the Punjab Rules, the same would be deemed to be completed under the aforesaid Rules. However, the question whether the appointments can be made under the Punjab Rules after framing of the Rules was left open. Therefore, the said judgment is again not of any help to the applicants. Another argument raised by the learned counsel for the applicants that the applicants are entitled to regularisation of their services having continued on the post for more than 10 years is again misconceived. Firstly, the applicants have continued on the post of Lecturers on the strength of an interim order passed by the Tribunal on

16.3.1998, whereby the directions were given not to substitute the applicants without making regular appointments. In a subsequent round of litigation, the applicants were sought to be relieved after the selection of the regular candidates. But an interim order was passed by this Court in a writ petition that since the vacancies are available, the petitioners are entitled to continue to discharge their duties. Therefore, CWP No. 19928-CAT of 2002 (21) the petitioners have continued on the post of adhoc/contractual/part time Lecturers by virtue of one or the other order of the Tribunal. Even otherwise, the appointments of the applicants to the post of Lecturers were not made keeping in view the principles of equity and opportunity to all eligible candidates to apply for the post. At best, the appointments of the applicants were made on the basis of requisition of the names from the Employment Exchange. No public advertisement was issued nor the appointments were made in consultation with the Union Public Service Commission, which was a necessary ingredient of the Rules. Still further, it has been held by the Hon'ble Supreme Court in Nagendra Chandra's case (supra), that the vacancies, which were not advertised in the newspapers, were held to be infraction of Bihar Police Manual and violative of Articles 14 and 16 of the Constitution, which rendered the appointments made thereunder illegal. Since, in the present case, the applicants were not appointed by Public Advertisement giving opportunity to all the eligible candidates to apply for the post, nor the Union Public Service Commission was consulted, therefore, the appointment of the applicants cannot be said to be irregular appointment. The next question which arises for consideration is whether the order of the Tribunal granting minimum of pay scale to the applicants is legal. The Tribunal relied upon the Circular dated 24.7.2002 issued by the Chandigarh Administration so as to grant minimum of pay scale and the dearness allowance to all adhoc and contractual Lecturers, appointed by the Chandigarh Administration. On the basis of the said circular, the Tribunal has allowed the minimum of pay scale and dearness allowance to the applicants, who have been appointed prior to the aforesaid date. CWP No. 19928-CAT of 2002 (22) In Surinder Kumar's case (supra), the services of the daily wagers were regularised and having regularised their services, it was found that such employees are entitled to equal pay to equate with regular clerks from the date of regularisation. In Apangshu Mohan Lodh's case (supra), an Advocate was engaged as part time Lecturer. It was in these circumstances, it was held that the part time Lecturer is not contemplated as cadre post under the Rules and, therefore, the principles of service jurisprudence cannot be extended to an Advocate, who is acting as part time Lecturer. In Bihar Veterinary Association's case (supra), the pay parity was sought by the employees of Bihar Animal Husbandry Services with that of Indian Veterinary Services, a Central Government undertaking. The case relates to pay parity of the employees working in two different organisations. Therefore, the said judgment is not applicable to the facts of the present case. In Yogesh Chandra Dubey's case (supra), the petitioners before the Tribunal were engaged on daily wages without any advertisement and without notifying the vacancies to the Employment Exchange. It was held that the said petitioners were not appointed in terms of the statutory Rules and they were engaged only to meet out the exigencies of the situation and no posts were sanctioned. In the present case, the Administration itself has decided vide circular dated 24.7.2002 to pay minimum of regular pay scale and dearness allowance to adhoc/contractual/part time Lecturers engaged by the Administration. Once, the Administration has decided to grant regular pay scale to the Lecturers engaged on part time/ contractual/ adhoc basis, therefore, the regular pay scale is payable to all similarly situated Lecturers engaged even prior to such date. The said question has been examined by us in Union Territory, Chandigarh CWP No. 19928-CAT of 2002 (23) Administration v. Jaspal Kaur and others (CWP No. 10397-CAT of 2006 decided on 4.4.2008) and Dr. Lok Raj and others v. Chandigarh Administration and others (CWP No. 11836-CAT of 2002 decided on

12.3.2008), relying upon various judgments, including that of a full Bench of this Court in Vijay Kumar and others v. State of Punjab and others, 2002(1) SLR 694 and the judgment of the Hon'ble Supreme Court in State Bank of India v. M.R. Ganesh Babu, (2002)4 SCC 556 and Uma Devi's case (supra). Thus, the writ petition filed by the Administration challenging grant of minimum of the pay scale plus dearness allowance is to be dismissed. The judgments referred to by the learned counsel for the Administration have been considered by us in the judgments referred to above. Thus, we do not find that the said question can be permitted to be reagitated by the respondents at this stage. In view of the above, we find no merit in all the writ petitions, which are dismissed, except CWP No. 2237-CAT of 2002, which is dismissed as having rendered infructuous. (HEMANT GUPTA) JUDGE (MOHINDER PAL) JUDGE May 30 , 2008