Vijender Sharma v. Haryana Tourism Corp & Ors.

CWP No.14944 of 2008 which was disposed of vide order dated 25.8.2008 by a Division Bench of this Court directing the respondents to decide his legal notice by passing a speaking order. In compliance of the aforesaid directions of this Court, respondent No.2 passed impugned order dated

21.11.2008 (Annexure P-11) rejecting the claim of the petitioner. A perusal of the aforesaid order would show that the respondents have rejected the case of the petitioner on the ground that he CWP No.20686 of 2008 3 was appointed as a job Trainee with the clear stipulation that it will not be obligatory on the part of the Management to offer him any appointment and thus, the petitioner cannot make any claim for his absorption in the Corporation as regular employee and he being only a trainee was not found to be eligible for being regularised in the service of the respondent- Corporation. By filing this writ petition, the petitioner has sought quashing of the aforesaid order dated 21.11.2008 (Annexure P-11) and has further sought a direction to the respondents to regularise his service on the post of Manager-cum-Accountant with effect from the date of availability of post with all consequential benefits as per the terms and conditions of his appointment letter. In the written statement filed on behalf of the respondents, it has been admitted that 10 posts of Manager-cum-Accountant are vacant out of which 9 posts of Manager-cum-Accountant are meant for direct recruitment and one is to be filled up by promotion from amongst the Counter Incharge on seniority-cum-merit basis. It is the further case of the respondent-Corporation that the Corporation has already sent a requisition for the recruitment of 5 posts of Manager-cum-Accountant for direct recruitment vide memo dated 14.3.2008 and the remaining 4 posts belonging to direct recruitment quota, shall be filled up soon. It has been further stated in the written statement that the petitioner cannot be absorbed against the direct recruitment quota as per law neither he can be considered against one post of Manager-cum-Accountant meant for promotion quota from amongst the Counter Incharge on seniority-cum- merit basis. It has been further stated in the written statement that reliance of the petitioner on various judgments of the Hon'ble Supreme CWP No.20686 of 2008 4 Court is misplaced and the order Annexure P-11 has been passed legally. The petitioner filed replication wherein he mentioned that one Anil Bajaj, who was similarly situated as the petitioner, was regularised in the same manner. Moreover, the petitioner was selected through regular process being followed by the respondent-Corporation which is evident from his initial appointment as management trainee (Annexure P-2) wherein it was clearly mentioned that his case for the regular post will be considered on completion of successful training and subject to availability of the post. Since the petitioner had already completed his training successfully and is getting regular pay scale of Manager-cum-Accountant for the last 17 years and further that, posts are available, he is entitled to the regularisation. The petitioner has further placed on record the policy of the Government dated 29.7.2011 (Annexure P-13) for regularisation the services of group “C” & “D” employees. The contents of the policy as such are not disputed, and it is also an admitted fact that the policy is applicable in the case of the petitioner. At this stage, para No.5 of the affidavit dated 1.2.2012 of the Managing Director, Haryana Tourisam Corporation, Chandigarh, may also be noticed wherein it has been admitted that some other persons, who were also taken as Management Trainee, were considered and given the regular appointment by the Corporation against the regular vacant post of Manager-cum-Accountant available at that time. From the facts of the case as noticed above, it is not in dispute that the post of Manager-cum-Accountant under the direct recruitment quota are available. It is further not in dispute that the petitioner is getting regular pay scale w.e.f. 12.9.1995 and is also receiving annual increments since issuance of Annexure P-4 dated 17.11.1996. It may further be CWP No.20686 of 2008 5 noticed that the petitioner had got admission in three years Diploma in Hotel Management Catering and Nutrition through a competitive examination and on completion of the said Diploma, he was appointed as Management Trainee on the post of Manager-cum-Accountant vide Annexure P-2. The respondents have not raised any question with regard to the work of the petitioner. The respondents further could not dispute that the person similarly situated as the petitioner and who was also appointed as Management Trainee, has been regularised as Manager-cum- Accountant. Even the policy dated (Annexure P-13) is not in dispute. Further the applicability of such Policy in the case of the petitioner could also not be disputed. At this stage, it is useful to refer to a judgment of the Full Bench of this Court in the case of Virender Singh versus Haryana Tourism Corporation Ltd. (2005-1) The Punjab Law Reporter 831 which was rendered against the respondent-Corporation interpreting similar type of terms and conditions of appointment wherein it was observed as under: “29. A reading of the Division Bench judgment of this Court in Naresh Kumar's case (supra) Annexure P-9, clearly manifest that the matter came to be decided on the facts of the case. No law, we repeat, was laid down. It is clear to us that relief in the said case was given on the basis of justice, equity and good conscience, which is always permissible in the prerogative writs that are issued by the High Court in exercise of its powers under Article 226 of the Constitution of India. The language of Article 226 also provides CWP No.20686 of 2008 6 that the High Court can exercise the jurisdiction to issue to any person or authority, including in appropriate cases, any Government, various writs for enforcement of any of the rights conferred by Part III and for any other purpose (Emphasis supplied). It is, thus, clear that it is not a right conferred upon a person by Part III of the Constitution of India for which the High Court can issue a particular kind of writ to grant the relief, but it can impart justice for any other purpose also and any other purpose, in our considered view, would have in its sweep justice, equity and good conscience as well. It is, thus, clear that where the facts of a particular case may demand some relief to be granted to a citizen of the country, it shall not be necessary for him to show infringement of any right. Converse of that, in our considered view, is also true. In a given case, a citizen may show infringement of a right on account of violation of some law, but the facts and circumstances of the case may be such that he may still not be entitled to any relief. What we have said above could be demonstrated by illustrations of judicial precedents, but, inasmuch as Hon'ble Supreme Court, while dealing with the Act of 1961 itself, culled out some guidelines for the benefit of those, who came to be appointed as CWP No.20686 of 2008 7 apprentices in the facts and circumstances of that case, and for which there was no provision as such in the Act of 1961, it will not be necessary to give reference of judicial precedents, as mentioned above, in the matter of U.P. State Road Transport Corporation and another v. U.P. Parivahan Nigam Shishukhs Berozgar Sangh and others (1995)2 S.C.C. 1, Hon'ble Supreme Court, while dealing with the provisions of the Act of 1961 balanced the rights of the employees to accommodate them on the jobs for which they had taken training. The bare minimum facts of the case aforesaid, that need a mention, reveal that when on completion of training of apprentice, they were not absorbed in the jobs the High Court in a writ petition filed on their behalf, gave a direction to give them employment by invoking the principle of promissory estoppel. The Hon'ble Supreme Court, while delving on the principle of promissory estoppel, in the context of the provisions of the Act, held that “for a promise to be enforceable, the same has to be clear and unequivocal. It is not possible to read any such promise in the aforesaid circular, memo and Government letter dated 31.8.1978 and, therefore, the High Court erred in applying the doctrine of promissory estoppel and on that basis issuing the CWP No.20686 of 2008 8 direction in question”. Even while holding so the Hon'ble Supreme Court took into consideration the material resources of the country, which were limited, resource crunch, which is acute and so whenever and wherever public money invested, it has to be seen that there is proper utilization of the same, it was held that it would not be just and proper to go merely by what has been stated in Section 22(1) of the Act or for that matter, in the model contract form. What is required is to see that the nation gets the benefit of time, money and energy spent on the trainees, which would be so when they are employed in preference to non-trained direct recruits. This would also meet the legitimate expectation of the trainees. The material resources of this country are limited. The resource-crunch is, however, acute for us; and so whenever and wherever public money is invested, it has to be seen that there is a proper utilization of the same in the sense that the public ultimately gets benefits of the same. In the background, as mentioned above, Hon'ble Supreme Court directed that while dealing with the claim of trainees after successful completion, following aspects can be taken into consideration:- “(1) Other things being equal, a trained CWP No.20686 of 2008 9 apprentice should be given preference over direct recruits. (2) For this, a trainee would not be required to get his name sponsored by any employment exchange. The decision of this Court in Union of India V.N. Hargopal would permit this. (3) If age bar would come in the way of the trainee, the same would be relaxed in accordance with what is stated in this regard, if any, in the service rule concerned. If the service rule be silent on this aspect, relaxation to the extent of the period for which the apprentice had undergone training would be given. (4) The training institute concerned would maintain a list of the persons trained year wise. The persons trained earlier would be treated as senior to the persons trained later. In between the trained apprentices, preference shall be given to those who are senior.”

30. A perusal of the guiding factors, as enumerated above, would show that even though by virtue of provisions contained in Section 22(i), it is not obligatory for the employer to provide a regular job to the trainee, it is by considering the facts and circumstances of the case that it was ordered that other things being equal, a trained apprentice should be given preference over direct CWP No.20686 of 2008 10 recruits and further that a trainee would not be required to get this name sponsored by any employment exchange and still further that even the age bar, if the same may come in the way of the trainee, needs to be relaxed. These directions came to be issued, even though there was no duty cast upon the Corporation in the said case to give regular employment to the apprentices and there was no corresponding right with the trainee to get regular job.

31. The decision of the Hon'ble Supreme Court in U.P. State Road Transport Corporation's case (supra) was followed by it in U.P. Rajya Vidyut Parishad Apprentice Welfare Association and another v. State of U.P and others, (2000)5 Supreme Court Cases 438. Pertaining to entries 1 to 4 reproduced above, even though, dispensing with the requirement of examination, it was held, would apply to petitioner of that case and not to all concerned.

32. In light of the discussion made above, there is no need to go into the correctness of the decision rendered by Division Bench of this Court in Naresh Kumar's case (supra) Annexure P-9, even though it shall have to be considered as to whether the directions issued in that case need any modification or not and we indeed do feel that CWP No.20686 of 2008 11 there is need to vary the directions/conclusions drawn in the decision rendered in Naresh Kumar's case (supra), so that the same are in consonance and are commensurate to the qualifications as also training in terms and criteria laid down for selection and appointment.

33. The facts of the case are not in dispute. At the time petitioner came into the job of Waiter Trainee, there were no qualifications prescribed for the said job. He was yet assured vide condition No.3 of the appointment letter, Annexure P-2, that after successful completion of the training, he shall be considered for regular job and it is for that reason that petitioner, even though possessed the prescribed qualification for the post of Counter Incharge, was given the job of a Waiter Trainee. By the time, however, regular vacancies occurred in the respondent Corporation and an advertisement was issued to fill the same, a prescribed qualification for the job under contention came into being. The petitioner does not qualify for the post of waiter but is eligible to be appointed as Counter Incharge and has also training for the same as made out from the pleadings contained in para 6 of the petition, which are not denied by the respondents and which is also evident from Annexures P-3 and P- CWP No.20686 of 2008 12

4. The period of training of the petitioner, on the post of Counter Incharge was for two periods, i.e. From 18.9.1990 to 12.11.1990, i.e., one and half months as also for another four mounts, as made from Annexure P-3 and P-4.

34. On undisputed facts, as mentioned above, what transpires is that at the time when petitioner came to be employed as Waiter Trainee, no qualifications for the said post had since been prescribed. It was not mentioned in the letter of appointment that he shall be considered for appointment on regular basis if he was to have a particular kind of qualification. It is, thus, clear that even though the respondent Corporation was not obliged to give him regular appointment but, it was, in any case, bound to consider him and surely on the basis of the qualifications that he was already holding. The criteria prescribing requisite qualifications for the post came to be laid when this Court issued directions in various writ petitions, mentioned in earlier part of the judgment, to consider absorption of the persons, who were similarly appointed. It is, thus, a case where the respondent Corporation, while complying with the directions issued by this Court, formulated a criteria in 1999, which was not in existence and, thus, also did not find CWP No.20686 of 2008 13 mention in the conditions of letter of appointment of the petitioner. As mentioned above, petitioner was to be considered for regular appointment on the basis of qualifications that has already possessed. The petitioner continued on the job for nine years and by now, would certainly be over-age to occupy any government or semi government post. He is surely not at fault. It is rather the respondent Corporation which gave the petitioner to understand that he would be considered for appointment on regular basis on the dint of his existing qualifications and yet laid down such qualifications which he did not have. Further, what we have said above shall be demonstrated from the fact that even though having requisite qualifications for the post of Counter Incharge, as formulated in 1999, the petitioner was nonetheless given the job of a Waiter Trainee. It is absolutely clear that no requisite qualifications were in existence at the time petitioner came to be appointed as a Waiter Trainee. The action of the respondent Corporation to deny even consideration to the petitioner on either of the two posts would be unjust and unfair. It is for these reasons that we are of the view that in the facts and circumstances of this case, some directions so as CWP No.20686 of 2008 14 to mitigate miserable plight of petitioner and to do justice to him, need to be issued.

35. The petitioner, surely, on the basis of his qualifications, can be considered for appointment on the post of Counter Incharge. We, thus, direct that the respondent Corporation, if it may so choose, may put him on training for the remaining period i.e., for a period of a year and six and half months and then consider him for appointment on the regular job of Counter Incharge. If in such consideration, he is found suitable he be given regular appointment on the said post. By this method, the petitioner,who has already served the respondent Corporation for nine years, would have requisite qualifications as also training and shall certainly be eligible. It shall, however, be open to the respondent Corporation to consider the petitioner for appointment to the post of Waiter, if according to it, non-holding of his requisite qualifications for the said post, might have balanced his long training on the said post, but in the facts and circumstances of the present case, a direction needs to be issued to the respondent Corporation to consider his case for regular appointment on either of two jobs, as mentioned above. We order accordingly.

36. We have already held that the petitioner CWP No.20686 of 2008 15 was not appointed under the provisions of the Act of 1961. Even if it is assumed that he was appointed under the Act of 1961, after successful completion of his training and when order dated

7.6.1993. Annexure P-5, came to be passed, that he shall hold the post till further orders, he cannot be said to be continuing to hold the post under the Act of 1961 for the period subsequent to 7.6.1993. He was certainly a workman as defined in Section 2(s) of the Act of 1947 and his retrenchment would be violative of Section 25-F of the said Act. Same is annulled. A further direction needs to be issued in this case, which we hereby issue, that the petitioner shall be taken back in service on the post that he was holding at the time when he was relieved on the same emoluments that he was getting. He shall be paid all his back wages from the date he was relieved from the said post till such time the payment is made to him. The contention of learned counsel for the respondent Corporation that he was employed for a fixed period and, therefore, provisions of Section 2(oo) (bb) would be applicable is rejected by observing that after 7.6.1993, when he was ultimately relieved on 17.5.2001. Order dated 7.6.1993 does not limit his extension for a fixed period. Order rather stipulates that he would continue to CWP No.20686 of 2008 16 hold the post till further orders. The words 'till further orders' cannot be interpreted to mean a fixed contractual term.” In view of the undisputed facts of the case and the law laid down by a full Bench of this Court, as noticed above, the only objection of the respondents to the effect that the selection of the Group “C” employee is made through Haryana Staff Selection Commission and that the petitioner was merely a trainee, is not tenable. Thus, this Court is of the view that the petitioner is entitled to the relief, as prayed. Resultantly, the instant writ petition is allowed and the order Annexure P-11 is set aside and direction is given to the respondents to regularize the services of the petitioner to the post of Manager-cum- Accountant with effect from the date of availability of the post with all consequential benefits. November 19, 2012 (RAKESH KUMAR GARG) JUDGE