Himachal Pradesh High Court
Shailendra Kishore vs Central Administrative Tribunal & ... on 22 August, 2016
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No. 3274 of 2010 a/w CWP No. 3278 of 2010 Reserved on : 5.8.2016 Decided on : 22.8.2016 of CWP No. 3274 of 2010 Shailendra Kishore .....Petitioner.
rt Versus
Central Administrative Tribunal & others. .....Respondents.
CWP No. 3278 of 2010
Naresh Jaswal .....Petitioner.
Versus
Central Administrative Tribunal & others. .....Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge. The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the petitioners: Mr. Yudhvir Singh Thakur, Advocate vice counsel.
For the Respondents: Mr. Ashok Sharma, Assistant Solicitor General of India with Mr. Angrej Kapoor, Advocate. _______________________________________________________ 1 Whether reporters of the local papers may be allowed to see the judgment?
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Sureshwar Thakur, Judge .
In sequel to the petitioners successfully clearing a competitive examination conducted on a all India basis for filling up the relevant advertised vacancies also in consequence to theirs successfully clearing the viva-voce they stood selected against the of relevant vacancies in sequel whereto they undertook training at Jaipur. Further more their contractual appointments against the rt relevant vacancies stood preceded by their character standing affirmatively verified by the agency concerned also on theirs standing subjected to medical examination. The respondent concerned issued advertisement/notice comprised in Ex. P-18 for filling up the post of Investigator(s) on a permanent basis. The petitioners herein claim a direction being rendered upon the respondents by this Court to offer appointments to them against the post of investigator(s) as stands advertised by them to be filled up on a permanent basis.
2. The rendition of the Central Administrative Tribunal comprised in Annexure P-20 palpably ousts the claim reared by the petitioners. The aforesaid rendition of the Central Administrative Tribunal while ousting the claim generated therebefore by the ::: Downloaded on - 15/04/2017 21:03:42 :::HCHP ...3...
petitioners wherein they sought a mandate being issued upon the .
respondents to on eruption of apposite vacancies in the cadre of investigator(s) regularize their hitherto contractual appointments had in the relevant paragraphs which stands extracted hereinafter concluded of the judgment of Orissa High Court, Cuttack, which of stood affirmed by the Hon'ble Apex Court holding a view qua on eruption of apposite contractual vacancies contractual appointees rt holding a status at par with a retrenched employee whereupon they hold an entitlement to stake a claim for their appointment against contractual vacancies, whereas with the respondents issuing advertisement for filling up the relevant post on a permanent basis rendered the petitioners claim for theirs being offered appointment against a regular vacancy suffering the ill fate of it standing ousted, yet a right stands reserved qua the petitioners qua their standing entitled on eruption of contractual vacancy(s) for theirs being considered for appointment thereto.
"In view of the above mentioned statutory provisions which have been made applicable in the case of contractual appointments and since the opposite parties of the instant review petition were already working on contract basis and again the post are going to be filled up on contract basis, the opposite parties can be termed as retrenched person and the review petitioners may very well consider the relaxing in age for that category of persons.::: Downloaded on - 15/04/2017 21:03:42 :::HCHP
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8. Having heard learned counsel representing the .
applicant and examining the record of the case with his assistance, we are of the considered view that the applicant is not entitled to regular appointment. At the most he is a retrenched employee and he would e entitled to re-employment, if vacancy may arise with the respondents, on the same terms and conditions on which he was earlier appointed."
3. The legal vigor of the aforesaid pronouncement of the of Central Administrative Tribunal comprised in Annexure P-20 is to be tested on the anvil of a conjoint reading of the trite factum of the rt petitioners after undergoing the rigor of successfully facing a competitive examination also theirs successfully facing a viva-voce besides theirs undergoing training, on completion whereof they stood appointed against the relevant posts on a contractual basis preceding whereof the relevant agency after holding the apposite verifications proclaiming them to hold not a stained character also given theirs preceding to theirs standing appointed theirs standing declared medically fit vis-à-vis the availability of apposite post(s) on a permanent basis with the respondents, availability whereof bespeaks of hence the respondents holding a perception qua continued necessity of engagement of investigator(s) whereupon the renditions of the Hon'ble Apex Court occurring in (2006) Vol 4 ::: Downloaded on - 15/04/2017 21:03:42 :::HCHP ...5...
SCC 1 and in (2013) 14 SCC 65 warrants their respective .
application hereat.
4. Initially the principle constituted in a verdict of the Hon'ble Apex Court reported in (2006) Vol 4 SCC 1 Secretary, State of Karnataka and others versus Uma Devi (3) and others, ousting of the right of a temporary employee or an employee appointed against the relevant vacancy on a purely contractual basis to on rt eruption of a permanent vacancy vis-à-vis the hitherto post stake any indefeasible entitlement for his regularization thereto unless his hitherto appointment either on a contractual basis or a temporary basis stands preceded by the employer meteing reverence to the relevant rules also the apposite appointment standing preceded by a competitive examination. Relevant portion of the judgment supra is extracted as under-
" 43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and 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 ::: Downloaded on - 15/04/2017 21:03:42 :::HCHP ...6...
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 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 rt 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. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, 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 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 caused to him, whereas an interim direction to continue his employment would ::: Downloaded on - 15/04/2017 21:03:42 :::HCHP ...7...
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."
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5. Similarly in a verdict of the Hon'ble Apex Court occurring in (2013) 14 SCC 65 Nihal Singh versus state of Punjab, rt wherein the Hon'ble Apex Court has held of where an employee holds a post excepting on a regular basis he would thereupon not perse stand debarred to on occurrence of a permanent vacancy claim a right for his regularization thereto unless his initial appointment on a temporary basis was arbitrary also his initial selection besides appointment occurred in ouster of participation of all eligible candidates. The relevant paragraphs of the judgment supra stands extracted hereinafter.
"[29] The abovementioned process clearly indicates it is not a case where persons like the appellants were arbitrarily chosen to the exclusion of other eligible candidates. It required all able bodied persons to be considered by the SSP who was charged with the responsibility of selecting suitable candidates.
[30] Such a process of selection is sanctioned by law under section 17 of the Act. Viewed in the context of the situation prevailing at ::: Downloaded on - 15/04/2017 21:03:42 :::HCHP ...8...
that point of time in the State of Punjab, such a process cannot be .
said to be irrational. The need was to obtain the services of persons who had some experience and training in handling an extraordinary situation of dealing with armed miscreants.
[31] It can also be noticed from the written statement of the Assistant Inspector General of Police (Welfare & Litigation) that preference was given to persons who are in possession of licensed of weapons. The recruitment of the appellants and other similarly situated persons was made in the background of terrorism prevailing in the State of Punjab at that time as acknowledged in the order rt dated 23.4.2002 of the SSP. The procedure which is followed during the normal times of making recruitment by inviting applications and scrutinising the same to identify the suitable candidates would itself take considerable time. Even after such a selection the selected candidates are required to be provided with necessary arms and also be trained in the use of such arms. All this process is certainly time consuming. The requirement of the State was to take swift action in an extra-ordinary situation.
[32] Therefore, we are of the opinion that the process of selection adopted in identifying the appellants herein cannot be said to be unreasonable or arbitrary in the sense that it was devised to eliminate other eligible candidates. It may be worthwhile to note that in Umadevi's case, this Court was dealing with appointments made without following any rational procedure in the lower rungs of various services of the Union and the States."
6. A gauging of the factual matrix thereat unveils of the appointees therein standing appointed after compliance by the employer with the relevant procedure besides upsurgings occurring therein qua the dire necessity of continuance of their employment ::: Downloaded on - 15/04/2017 21:03:42 :::HCHP ...9...
whereupon the Hon'ble Apex Court formed a conclusion akin to the .
one formed in the judgment reported in (2006) Vol 4 SCC 44 qua a candidate/aspirant standing debarred on occurrence of a permanent vacancy to stake any entitlement for his regularization thereto if his initial appointment is bereft of scrupulous adherence of by the employer with the statuary procedure also is bereft of his employer prior thereto eliciting the participation of all eligible rt candidates. However it stands mandated therein of when the relevant appointment(s) of an aspirant stand preceded by his standing declared successful in a competitive examination he stands bestowed with a right to on occurrence of a permanent vacancy stake a claim for his regularization thereon.
Preponderantly it has also been mandated therein qua the continued necessity of engagement of appointees being a relevant factor for entitling the appointees against the relevant post to claim regularization thereon.
7. Be that as it may having culled out the relevant legal postulations from the aforesaid renditions of the Hon'ble Apex Court enjoins this Court to apply them qua the factual scenario existing thereat. Uncontrovertedly as aforestated the petitioners ::: Downloaded on - 15/04/2017 21:03:42 :::HCHP ...10...
had secured appointments against the relevant advertised .
contractual posts after theirs clearing all the statutory rigors.
Consequently, their initial appointment emanated on a scrupulous compliance by their employer with the apposite relevant rules, the petitioners hereupto continue to render service under the employer of other than on a regular basis, however extant occurrence of a permanent vacancy(s) holds loud bespeakings of the respondents rt holding a contemplation qua the dire necessity of continuous engagements of qualified appointees against the relevant posts whereagainst the petitioners stood appointed on a contractual basis hence whereupon the petitioners befittingly stand empowered to hold a right to stake a claim for theirs standing regularized thereon preponderantly when there was no ouster of participation of all eligible candidates at the stage contemporaneous to their standing appointed on a contractual basis. Further more given their long standing experience which is both an asset and an qualification vis-à-vis new entrants amplifyingly gives a vigorous force to their claim as stands reared hereat.
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8. In view of the above, the petitions are allowed and the .
respondents are directed not to terminate the services of the petitioners rather they are directed to consider them for regularization against available vacancy(s) or to consider them for appointment against contractual post(s), if available with them.
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rt ( Rajiv Sharma ),
Judge.
22-08-2016 (Sureshwar Thakur)
(priti) Judge
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