I P v. Tourism Corporat ionLt d

is a Govt cont rolled and t hus falls wit hin t he purviewof St at e under Art icle 12 of t he 1m 7 j 11 C01 0 m m y9e f ll7t 512 122 r I Xl 1C X Cl Z Cil m eo Z 1 Anit a 2014.04.26 13: 16 True Scanned Copy Of The Original PHHC,Chandigarh and is am enablet o t hewrit j urisdict ionof t his Court JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 86 1 t t erCWPNo7358 of2010 m 2 Pet it ionersin t hesewrit pet it ionswere as Job Trainee Wait ers Count er Trainee Kit chen HelpersKit chen Trainee et c All t he possess of m at ric and above plusDiplom a branchesofHot el Managem entTheyWere enaed bW t he 1991 t o 1993 as lll variousbranchesin t he corporat iOllas herein above Their t hrough cont ainingident icalcondit ions The t erm s of writ t en appoint m ent t heirengagem entint er alia includea t rainingperiodof 2 years om t he dat e ofj oining ext endablefor anot her 6 m ont hsin t he event of failure t o t he t raining paym entof fixed st ipendduringt he of t rainingand rightof t he t o disengageif t raining1S Anot her relevant cont ainedin t he let t er readsas underl 3 t hepart of t he On com plet ion oft raining it will not be obligat oryon it will be t o 0Heryou any on you t o acceptany in t he You will howeverbe fpost on t he ofyour t raining33 I t is coinm on case oft he part iest hat even t hought he init ial was for a periodof 2 yearson basisand ext endablet o 6 however t he pet it ionerscont inuedeven t he 1 periodand haveworked bet ween 7 t o 8 years when t heir services were on t heir wit h in t heyear 1998 Som eoft he and t heYWer t akenbdck t o service for a short whileand againrelievedfrom t hedut ies Som eof t he alongwit h ot her sit uat edpersoils flled CWPNo 2921 of 1998 t it led as Anit a 2014.04.26 13: 16 True Scanned Copy Of The Original PHHC,Chandigarh KuldeepSinghand ot hersVs St at eofHaryanaand ot hers Sim ilarwrit JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document e 87 l CWP No 7358of2010 3 were flled bvarious ot her sim ilarlysit uat ed This writ pet it ionwas allowed vide dat ed 16999 and following direct ionswere issuedl C 6 t o t he I n t he result t hewrit pet it ionis allowedand a direct ion 1 t o 51 againstt he t o absorb advert isedpost sif t heyare for t he sam e This direct ion will not applyin t he case of pet it ionerno21who has since wit hdrawnfrom t he 016 N4 m 0W4 c1 40 m m m C01 11 1 2I 5 11M1 11 04 0 W4 1 41 a r05 1 n 5 SI W4 m Cm C The t he open m arketas advert ised No cost s 3P will be at libert yt o flll up t he rem ainingvacant The filed an LPA beingLPA No 866 of 1999 t he oivision Bench of t his Court The HOnble DiViSiO B rnodified t he direct ionsare as under 14 Wit hout wit h t he consent of t he part iesThe m odified t o t he st andof t he on fact s allegedin t he appealbyconsent dat ed I 6 1999is m odij ledt o t heext entt hat t hewrit pet it ionwouldst andallowed and a direct ion issued t o t he Corporat lont o consider t he absorpt ion t he 51againstt he advert isedpost s if t heyare eligiblefor No l t o t he sam e I n t heabove t erm s t heappealis 0 301999 Sdl Arun B Saharya ChiefJust iceeI l One Virender who was also workingas a Job Trainee ft led CWP No 8117 of 2001 The m at t er was consideredby t he Honble FullBench of t his Court and t he writ pet it ionwas allowedwit h a direct iont o t he t o t akebackt he in service on t he postt hat he Was at t he t im e when he was relieved on t he sam e t hat he was get t ing A furt herdirect ion was issuedfor Anit a 2014.04.26 13: 16 True Scanned Copy Of The Original PHHC,Chandigarh Pursuantt o t he JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 88 CWP No 7358 of2010 4v aforesaid Virender Singhwas t aken back in service wit h full back wages Anot her nam elyHans Raj Yadav led CWP No 1964of 2001 which also cam e t o be decided in t he sam e m anner dat ed 2672006 I t is adm it t edcase of t hepart iest hatat ler t he relieved from service t he had issued advert isem ent for direct recruit m ent on various post s advert ised Under t hese circum st ancesvarious writ pet it ionscam e t o be flled I t is by t he pet it ionerst hat aft er t he aforem ent ioned about 100 wait ers were absorbedby t he who were j uniort o t he and were in t he year 2 000 Since t he pet it ionerswere not consideredfor absorpt ionanot herCWP No6993 of 2002 was flled in t his Court Thispet it ionwas also decided vide dat ed2032007 t it led as Dharam vir and ot hersVs St at e of Haryanaand ot hersby a learned SingleJudgeof t his Court I n t his writ pet it iont he had also challengedt he crit eria adopt edby t he considerat ion for absorpt ionof t he pet it ionersand ot her sim ilarlysit uat ed Learned SingleJudgeof t his Court found t hatone of t he clause t he crit eria was t o t he det rim ent of t he pet it ionersAccordingly followingdirect ionswere issuec 44 ofwit ht he direct ions t o t he in view t he discussion held above t hewrit pet it ionis t orem ove clause5from t he crit erialaid down byt hem and t o m ake of select edWait er Traineesfromt he m erit list preparedby t hem aft erholdinglnt enlt ew on t o t heseniorit yagainstt heavailablevacant post sand 5121999 t o keept he m erit list int act fora periodof one yearfromt odayand t o give t hem as and when t hevacanciesarise m Ll 0 0 Z 5 Z 8 e C 8 r C3 21 14 ClO 41 1 Z 2D Clp Vd March 20 2007 SdlSeNeAggarwaP Judge 11 Anit a 2014.04.26 13: 16 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 89 1 CWP No 7358 of2010 5 Aft er t he passingof t his t he corporat ionconsidered som e of t hepet it ionersand vide order dat ed 13122007 t en persons were absorbedagainstt he post sof wait ers The grievanceof t he pet it ioners1S t hat t heir claim s were st ill not considered Pet it ioners cont inued t o m ake Som e of t hepet it ionerseven flled cont em ptpet it ionbeing COCP No244 of 1999 and som e oft he filed CWP N016365 of 4am 3 1998 I n COCP N01244 0f1999 followingorder was passed 40l n Clll c G 21 I l Ql 44 22 C1 Z t m 41 7 Z Om C1e 44 I n view oft heabove t he is disposedofwit ha direct ion t o t he t o considert he no313 and 15 and ot her sim ilarlysit uat ed pet it ionersfor absorpt ionin t he lightof t o 16 wit h CM No8197CI I of at t ached as Annexure P2 200 February022009 Sdl TePS Mann Judgee35 As a consequenceof t he aforesaiddirect ions t he considered t he claim of t he pet it ionersand have now passedt he order dat ed382009 t he I n t he aforesaidorder t he has considered relied upon by t he pet it ionersThe claim of t he pet it ionersfor absorpt ionhas been rej ect edprim arilyon t wo grounds619 That in view of t he Const it ut ion Bench of t he Honble Suprem e Court in case of Secret arySt at e of Kam at aka Vs Unia Devi report edas 4 SCC 1t he of t he services of t he pet it ionerswho were not select edby any valid procedureis in law 629That in view of t he of t he Honble Division Bench of t his Court dat ed 211O2008passedin CWP N011076 of 2007 t it led as Dilawar SinghVs Officer I ndust rial TribunalecuLabour Court t he pet it ioners who were engagedas Trainees are not workm en and t hus t hey are not JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document Anit a 2014.04.26 13: 16 True Scanned Copy Of The Original PHHC,Chandigarh ent it ledt o t herelief of r Se 90 v CWP No 7358of2010 0 I n t he writ t en st at em ent filed by t he a sim ilar plea israised On fact s it is st at ed t hat t he of t he pet it ionersas Job Traineeswas not againstt he regularsanct ionedpost s I t is hlrt her st at ed t hatit was in January1999 t hat t he St at e Govt pem issionfor creat ionof 140 post sofwait ers 83 post sofKit chen Helpersand 13 post sof Count erI nchargevide sanct lOll let t er dat ed 271 1999 These post swere m eant for direct recruit m ent for which an advert isem entwas 111 t henewspaper on 2731999 for fillingup t he post sofwait ers I t is furt her st at ed t hat in response t o t he advert isem ent a num ber of candidat es som e Trainees appliedfor t he post showever in t he m eant im et he dat ed 1 6999 was delivered in CWP No 18474 of 1996 wherebydirect ion was issued t o consider no 1 t o 51 except againstt he advert isedpost s However t he order was m odifiedin LPA No 866 of 1999 and inst eadofdirect iont o absorbit was direct ed t o consider t hem for absorpt ion The have also rnent ionedt hat in order t o com plyt he a suit abilit ycrit eria was laid downfor various post s The crit eriahasbeendisclosedin t hereply I t st at edt hat som e oft he pet it ionersdid not fulfill t he essent ial whereast he ot hersdid not get t he requisit em arks as requiredt herefore t hey were declared unsuccessOll Som e of t he unsuccessfulcandidat esflled CWP No6993 of2002 challengingt he crit eria 105 I 4 e 1I ll 6k944 c1 5 0 431 hllCl C0 2 41 lD 4 Wa Z t l and t his writ pet it ionwas allowedwit h cert ain direct ions and t he orderwas upheldin LPA No203 of 2007 Som e review filed were also 1 n dism issed 4 Anit a 2014.04.26 13: 16 True Scanned Copy Of The Original PHHC,Chandigarh Mr Shanna leam ed counsel for t he pet it ionerssubm it st hat t he in Um aDevis case is not applicablein t he presentcase as t he JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 91 V CWP No 7358 of2010 7 were engagedm uch earlier in t im e and even direct ionshave been issued in various writ pet it ionsfor oft he pet it ionersI t is furt her cont endedt hat personswit h sim ilar havebeenabsorbed I n para 8 of t he replyfiled byt hecorporat iont he st at edt hat t hepet it ionersdo not have sim ilar as in Virender 1nreA S 0 Cl 01r C0 213 Co 5I l2 54 I 1W2140 21 4 10 48 12 41L11 W76 rC 4150 0 41 8451408 Wlo14 D1 t C2e C Singhscase t he pet it ionersare out ofj ob since 1998 These writ pet it ionshave been filed in t he year 2010 t he im pugned order dat ed3009 There isno disput et hat pet it ionerswere engagedas Trainees on fixed st ipendwit h a furt herst ipulat iont hat t heywill have no claim for regularj ob I t is also in disput et hat t he init ial engagem entof t hepet it ionersas Trainees was wit hout any advert isem ent or adopt ingany procedurefor t o t he publicservice As a m at t er of fact t he pet it ionersent rywas back door have been issued by t his Court I t is equallyprovedt hatvarious direct ions including Full a Bench t o consider t he pet it ionersfor Som e of t he writ pet it ionershave been absorbed The pet it ionerswere not part iest o t he Full Bench considerat ion t hought hey claim t o be sim ilarlysit uat ed Right of t o t he pet it ionersis grant edvide order passedin t he cont em pt pet it ionbeingCOCP No 1244 of 1999 Pet it ioners claim has been rej ect ed vide t he One of t he im port antquest ion1S whet her t he pet it ionershave any rightof absorpt ion111t he service of t he I t is indisput edt hat t he ls a St at eand t hus all t he post s wit h t he Anit a 2014.04.26 13: 16 True Scanned Copy Of The Original PHHC,Chandigarh in fact an absorpt ionbut a are partof t hepublicem ploym entI t isnot t hat t oo aft er t heir serviceswere JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 192 v 1 CWP No 7358 of2010 8 wit h longback There is no specific whereundert he have been direct ed t o be absorbed vanous direct ions t he claim of t he pet it ionerscan onlybe consideredin t he lightof t he direct ions issued by Honble Court in Const it ut ion Bench in case of Secret arySt at eof Kam at ka Vs Um a Devi 6200694 SCC 1 upra9I t is relevant t o not et hat som e of t he observat ions t he Honble Suprem eCourt relat ing t o t he are as under where irregular 44 53 One aspectneeds t o be clarifled There m ay be cases lTl 0zotillegal SN NarayanappaRN and N Nagaraj anand referredt o in para 15 above ofdulyqualifiedpersons in dulysanct ionedvacant post s have cont inuedt o work for t en m ighthave beenm ade and t he yearsor m ore but wit hout t he int ervent ion of ordef t he court s or of t ribunclls The oft heservicesof such m ayhave t o be considered on m erit sin t he lightof t heprinciplesset t ledby in t he cases above referredt o and in t he lightof t hisj udgm ent t his Court I n t hat cont ext t he Union of I m Ha t he St at e Governm ent s and t heir shouldt ake st epst o regulariseas a oneim e m easure t he servlces of such irregularlyappoint edwho have workedfor t en years or but not under cover ofordersoft hecourt s or m orein duly of t ribunals and should furt her ensure t hat regularrecruit m ent s are undert akent o j lll t hose vacant sanct ionedpost st hat requiret o belilledup cases where t em porary or daily wagers are beingnow The process m ust be set in m ot ion wit hin six m ont hsfrom t his if any alreadym ade but not sub but t hereshould be no based on t hat dat e We also clar j udiceneed not be furt herbypassingof t he const it ut ional perm anentt hose not du schem e 73 Anit a 2014.04.26 13: 16 True Scanned Copy Of The Original PHHC,Chandigarh and regularisingor as per t he const it ut ional JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 93 m a r I CD 0 i2 45 I e Z r Q Cr 12 I llO Z t 10 t Z r CWP No 7358 of2010 4 The claim of t he pet it ionerscould best be considered in t he light of t he aforesaid The have accorded considerat ionand rej ect edt heir claim The pet it ionershave not beenable t o est ablisht hat t heir init ial engagem entwas and not illegal Asa m at t er of t hey were only Trainees on st ipendbasis and t heir was againstno post Post s were creat edonlyin t he year 1999 These post swere put t o advert isem ent Ofcourse under t he direct ionsoft he Honble Division Bench of t his Court som e of t he vacancies were ut ilized som e of t he candidat es but t hat does not help t he pet it ionerst o seek absorpt ioneven whent heir claim s were considerat ion t here Even rej ect edon t heir lS any specificdirect ion for t heir considerat ion t he sam ealso cannot be enforcedin view of t he following observat ionsof t he Honble Suprem eCourt in case of Um a Devi supra9 whereinin para 54 it has been held as under 44 54 I t is also clarifledt hat t hose decisions which run count er t o t he principleset t led in t his decision or count er t o what we have held herein will st and denuded of t heir st at us as precedent s33 ln which direct ions running I n view of t he above circum st ances it is not possiblet o grant relief t o t he pet it ionersThese pet it ionsare accordinglydism issed Copyoft his order be placedon each connect edflle gA2011e Whet hert o be l Yes Anit a 2014.04.26 13: 16 True Scanned Copy Of The Original PHHC,Chandigarh l4 1 C 9 4 Q0cc PERMOD KOHLI I JUDGE JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document