High Court of Punjab and Haryana, Chandigarh
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Amandeep S. Bal & Ors v. State of Punjab & Anr - CWP-6699-2005  RD-P&H 4408 (20 July 2006)
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CWP NO.6699 OF 2005
DATE OF DECISION: 25.07.2006
Amandeep S. Bal and others ....Petitioners Versus
State of Punjab and another ....Respondents.
CORAM: HON'BLE MR.JUSTICE J.S. KHEHAR
HON'BLE MS. JUSTICE KIRAN ANAND LALL
PRESENT: Mr. Kunal Dawar, Advocate
for the petitioners.
J.S. Khehar, J. (oral)
1) Notice of motion.
2) On our asking, Mr. Ashok Aggarwal, Additional Advocate General, Punjab, accepts notice on behalf of the respondents.
3) Learned counsel for the respondents states that he has no objection to the disposal of the instant writ petition at the motion stage.
4) An issue akin to the one in hand, wherein also appointment against the posts of Lecturers in English was the subject matter of consideration, a Division Bench of this Court in Gurjinder Singh and others V. State of Punjab and others (CWP No.7695 of 2004 decided on 16.5.2005) inter alia recorded the following observations:- " It is strange that the government machinery takes the decision which virtually becomes non implementive. There may be regular posts which may be lying vacant and there may CWP NO.6699 OF 2005 2
be certain persons waiting in the wings to be promoted after following the due procedure and process. Can we say that such posts also stood abolished? The office of the Director Public Instructions had sent a communication to the Secretary, Government of Punjab Higher Education Department on 7.11.2005, indicating the status of sanctioned posts, regularly filled posts, part time filled posts, the total filled posts, the vacant posts and also the requirement as per workload. The document as appended with the aforesaid communication is indicative of the entire status in the State of Punjab. The posts of Lecturers in English have been described as 297 (sanctioned posts). As against these posts, 159 persons are working, who had been regularly selected. Part time/adhoc persons had been inducted numbering 41. Thus, the total filled posts are 200 as against 297 posts. Therefore, 97 posts have been disclosed as vacant posts. However, as per the work load the requirement indicated is 288, meaning thereby there are only 9 extra posts.
Even if this is accepted, the vacant posts still available would be 88 after deducting 9 posts. Thus, as on 31.10.2005, 88 posts would be still taken as vacant posts as per the status disclosed by the office of DPI (Colleges). It is strange that both the officers have filed affidavits i.e. Nisha Sharad, DPI (Colleges) Punjab dated 6.10.2005 and Dinesh Chand Gupta, Deputy Director (Colleges) dated 16.11.2005, stating that no vacant post of lecturers in English, in view of the ban imposed by the government, is available."
CWP NO.6699 OF 2005 3
5) The present controversy relates to the claim of the petitioners to continue in service till they are substituted by regularly selected persons against the post of Lecturers in English. There can be no doubt that the petitioners, who are working on adhoc/part time basis, can legitimately be substituted by regular employees alone, and not by others temporarily appointed in the same fashion as the petitioners. Regularly selected candidates have necessarily, in the first instance, to be accommodated against existing vacant posts. The petitioners can be substituted by the regular selected candidates. The question of replacement/substitution shall however only arise if by the appointment of regularly selected candidates, those appointed against the posts of Lecturers in English, exceed the workload required. At the cost of repetition it is clarified, that those appointed on regular basis shall have the first preferential right to occupy the posts; those appointed in one or the other temporary capacity (adhoc, part time, contract, etc.) can be terminated from service to accommodate regularly selected persons if the minimum personnel required to run the institutions/schools as per the existing work load is exceeded, for otherwise, students without an adequate strength of teachers would suffer irreparably.
Of course, ideally, all those appointed in one or the other temporary capacity, should be substituted by regularly selected persons.
6) Mr. Ashok Aggarwal, Additional Advocate General, Punjab, has, however, vehemently relied upon the decision rendered by the Apex Court in Hargurpartap Singh and others. V. State of Punjab and others (Civil Appeal No.8745 of 2003 decided on 7.11.2003), wherein the Apex Court, passed the following order:-
" Leave granted.
CWP NO.6699 OF 2005 4
The appellants in these cases were employed on adhoc basis in several colleges in the State of Punjab. There being a threat of termination of their services, they filed writ petitions before the High Court seeking for the relief of regularisation, minimum pay scale and to continue in their present posts until regular appointments are made. All the reliefs were rejected by the High Court and so far as the relief relating to continue them in their present posts until regular incumbents are appointed, the High Court stated that the Government will follow its policy decision dated 23rd
We have carefully looked into the judgment of the High Court and other pleadings that have been put forth before this court. It is clear that though the appellants may be entitled to regular appointment as such it cannot be said that they will not be entitled to the minimum of the pay scale nor that they should not be continued till regular incumbents are appointed. The course adopted by the High Court is to displace one adhoc arrangement by another adhoc arrangement which is not at all appropriate for these persons who have gained experience which will be more beneficial and useful to the colleges concerned rather than to appoint persons afresh on adhoc basis.
Therefore we set aside the orders made by the High Court to the extent the same deny the claim of the appellants of minimum pay scale and continuation in service till regular incumbents are appointed. We direct that they shall be continued in service till regular appointments are made on minimum of the pay CWP NO.6699 OF 2005 5
scale. The appeals shall stand allowed in part accordingly." On the basis of the aforesaid observations of the Apex Court, it is submitted that as soon as regular recruitment is made, it is open to the respondents to substitute an equal number of adhoc/temporary employees.
7) In our view, as a general proposition, there is merit in the contention of the learned counsel for the respondents. However, when viewed minutely in the background of the workload, for which adequate recruitment is essential, the decision relied upon by the learned counsel for the respondents would be inapplicable. In fact, the issue in hand as has been examined by us while recording our conclusions, was never a subject matter of consideration, while the aforesaid order was passed by the Apex Court on 7.11.2003. It is, out of the question, to accept, that educational institutions can be permitted to run under-staffed. The acceptance of the contention of the learned counsel for the petitioners could certainly lead to that end.
8) The instant writ petition is disposed of in terms of our conclusions recorded in paragraph 5 hereinabove.
( J.S. Khehar )
( Kiran Anand Lall )
July 25, 2006. Judge
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