Central Administrative Tribunal - Delhi
Dr. Akshay Bahadur vs Govt. Of Nct Of Delhi on 28 May, 2013
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 3653/2012
New Delhi this the 28th day of May, 2013
Honble Smt. Manjulika Gautam, Member (A)
Honble Mr. A.K.Bhardwaj, Member (J)
1. Dr. Akshay Bahadur,
Aged about 43 years,
S/o Shri Madan Gopal,
R/o B-79, 2nd Floor, Nirman Vihar,
Delhi-110092
2. Dr.Beena Agarwal,
W/o Dr. Arvind Agarwal,
815 CA Apartments, Paschim Vihar,
Delhi-63
3. Dr. Saroj Bala,
W/o Dr. Parmesh Sharma,
3B, Pocket-1, Mayur Vihar, PH-1,
Delhi-110091
4. Dr. Vimla,
D/o Late Raghvir Singh,
B-5/159 Paschim Vihar, New Delhi-110063
5. Dr. Narendra Kr. Varma,
S/o r. Y.C. Varma,
A-14, Meera Bagh, Paschim Vihar,
New Delhi-87
6. Dr. Ashish Gopal,
S/o Sh. Shyam Gopal,
63, Babar Road, New Delhi-110001
Applicants
(By Advocates Mr. Pawan Kumar Saini, Ms. Aishwarya Bhati
and Shri Ashok Mahapatra )
VERSUS
1. Govt. of NCT of Delhi.
Through its Chief Secretary,
Department of Health and Family Welfare,
5th Level, A Wing, Delhi Secretariat,
I.P.Estate, New Delhi.
2. The Director,
Directorate of Health Services,
Government of NCT of Delhi,
F-17, Karkardooma, Delhi-110032
OA 3653/2012
3. The Medical Superintendent,
Dr. Hedgewar Arogya Sansthan,
Karkardooma, Delhi-110032
4. The Medical Superintendent,
Guru Gobind Singh Hospital,
Raghubir Nagar, Delhi.
5. The Medical Superintendent,
Aruna Asif Ali Hospital, Rajpur Road,
Delhi-110054
6. The Medical Superintendent,
Maharishi Valmiki Hospital, Pooth Khurd,
Delhi-110039
7. Union Public Service Commission
Through Secretary,
Dholpur House, Shahjahan Road,
New Delhi-110069. Respondents
(By Advocate Mrs. Sumedha Sharma for Respondents 1-6
and Shri Naresh Kaushik, counsel for R-7)
O R D E R
Honble Mr. A.K.Bhardwaj, Member (J):
As has been alluded in the counter reply filed on behalf of respondent Nos 1 to 6, the applicants were appointed as Junior Specialists on contract basis in the Directorate of Health Services, Govt. of NCT of Delhi between 1998 to 2004. Their selection was based on the recommendations of a duly constituted Selection Board and their service conditions were to be regulated in terms of Rules and orders issued from time to time. Since the date of their initial appointment, the applicants have been serving in the Directorate of Heath Services (for short DHS), Govt. of NCT of Delhi and contractual appointment has been extended on yearly basis. For their initial contractual appointment, applicants had offered their candidature in response to the advertisement issued by DHS (GNCT of Delhi) and their suitability for the posts was adjudged by a select panel consisting of a minimum of two specialists from the respective speciality and an administrative member of DHS (GNCTD). On OA 3653/2012 their selection, the applicants were posted as Jr. Specialist in the various hospitals/dispensaries/health centres under the Govt. of NCT of Delhi. On 13.11.2006, the Department of Health and Family Welfare, Govt. of NCT of Delhi initiated proposal for the formation of Delhi Health Services for managing the health delivery in the NCT of Delhi alluding therein that until 1996, the requirement of doctors for the purpose of operation and maintenance of health delivery in the NCT of Delhi was being met by the Central Health Services and in mid 90s, the Central Government had stopped the process of encadrement of new posts created by the Lt. Governor of NCT of Delhi to meet the growing requirements of health delivery. Thus, a large number of such posts remained outside the Central Health Services cadre resulting in practical difficulties in managing the health services in NCT of Delhi. Under these circumstances, the Ministry of Health and Family Welfare suggested to Govt. of NCT of Delhi to fill the vacant posts by making contractual appointment. On the date of initiation of the proposal, the Govt. of NCT of Delhi had 1174 sanctioned posts of General Duty Medical Officers (GDMOs), 410 posts of Non-Teaching Specialists, 349 Teaching Specialists and 04 Public Health Specialists, against which 438 posts of GDMOs and 242 posts of Non teaching specialists were being operated as ex-cadre posts. As per the suggestion of Ministry of Health & Family Welfare, contractual appointment had been made against 438 posts of GDMOs and 242 posts of non-teaching specialists. As a part of aforementioned proposal, it could be suggested that the initial constitution of new service could be from amongst:-
(a) Members of the CHS who opt to be a part of the new service being proposed.OA 3653/2012
(b) Individuals who had been appointed by the Government of NCT of Delhi on contract basis against ex-cadre posts from the year 1995-96 onwards as per the advice of the Ministry of Health & Family Welfare, Govt. of India.
The list of hospitals functioning under Government of NCT of Delhi (Allopathic Hospitals) for which Delhi Health Service was sought to be created read as under:-
(1) Existing Hospitals S.No. Name of the Hospital and Address
1. Lok Nayak Hospital, Jawahar Lal Nehru Marg, New Delhi-110002
2. G.B.Pant Hospital, Delhi Gate, Delhi-110002
3. Aruna Asaf Ali Government Hospital 5, Rajpur Road, Delhi-110054
4. Deen Dayal Upadhaya Hospital, Hari Nagar, New Delhi-110064
5. GTB Hospital, Shahdara, Delhi-110095
6. Sanjay Gandhi Memorial Hospital, S-Block, Mangolpuri, Delhi.
7. Guru Nanak Eye Centre, Maharaja Ranjit Singh Marg, New Delhi-110002
8. Dr, Baba Saheb Ambedkar Hospital, Sector-6, Rohini, Delhi-110085
9. Central Jail Hospital, Tihar, New Delhi-110064
10. Attar Sain Jain Eye & Gen. Hospital, Lawrence Road, Near Britania Chowk, Delhi-110035
11. Babu Jagjivan Ram Memorial Hospital, E-Block (Near DTC Terminal), Jahagir Puri, Delhi-110033
12. Bhagwan Mahavir Hospital, H-4/5, Guru Harikishan Marg, Pitam Pura, Delhi.
13. Dr. Hedgewar Arogya Sansthan, East Arjun Nagar, Delhi-110032
14. Dr. N.C. Joshi Memorial Hospital, Joshi Road, Karol Bagh, New Delhi-110005
15. Guru Gobind Singh Govt. Hospital, F-Block, Raghubir Nagar, New Delhi-110027
16. Lal Bhadur Shastri Hospital, Khichiripur, Near Kalyanvas, Delhi-91
17. Maharishi Balmiki Hospital, Pooth Khurd, Delhi-110039
18. Malviya Nagar Colony Hospital, Malviya Nagar, New Delhi.
19. Acharyashri Bhikshu Govt. Hospital, Moti Nagar, New Delhi.
20. Patel Nagar Hospital, East Patel Nagar, New Delhi-110008
21. Rao Tula Ram Memorial Hospital, Jaffar Pur Village, New Delhi-110073
22. Satyawadi Raja Harishchandra Hospital, Narela, Delhi-110040
23. Chacha Nehru Bal Chikitsalaya, Geeta Colony, Delhi.
24. Shastri Park Hospital, Shastri Park, Delhi OA 3653/2012 (II) Hospitals under construction:
S.No.. Name of the Hospital and Address
1. 650 bedded Rajiv Gandhi Super Speciality Hospital, Tahirpur.
2. 300 bedded Super Speciality Hospital, Janakpuri, New Delhi.
3. Maternity & Child Hospital, Nasirpur.
4. Multi Speciality Hospital, Dwarka, New Delhi.
Indian System of Medicine Hospitals (I) Existing Hospitals:-
S.No.. Name of the Hospital and Address
1. Ayurvedic & Unani Tibbia College & Hospital, Karol Bagh, New Delhi..
(II) Hospitals under construction:
S.No.. Name of the Hospital and Address
1. Rajkiya Ayurvedic Sansthan, Khera Dabur, Najafgarh, Delhi.
(I) Existing Hospitals:
S.No.. Name of the Hospital and Address
1. Nehru Homoeopathic Medical College & Hospital, Defence Colony, New Delhi.
2. Dr. B.R. Sur Homoeopathic Medical College, Hospital & Research Centre, Nanak Pura, Moti Bagh, New Delhi.
In acceptance of the aforementioned proposal as recommended by the Council of Ministers, Lt. Governor of NCT of Delhi desired the initiation of process for settling the service regulations in consultation with the UPSC along side process of identification and notification of the posts to be included in the new services. Thus vide Office Memo No.F.70/49/2006/H&FW dated 18.12.2006, the Govt. of NCT announced the formation of the new service known as Delhi Health Service for medical practitioners under the allopathic system of medicine with immediate effect. The service covered all the civil posts of medical practitioners under the allopathic system of medicine at the strength of OA 3653/2012 the Government of NCT of Delhi and paid from the consolidated funds of NCT of Delhi. As a result, Government of NCT of Delhi (Health and Family Welfare Department) issued Notification No. 70/49/2006/H&FW/PF-IV dated 2009 notifying the rules regulating the terms and conditions of Delhi Health Service (Allopathy)). In Rule 5 of the said Rules, it was provided that amongst others, the persons appointed to the post of Duty Officer shall be member of the service. Rule 6 (2) provided that all officers appointed on contract/ ad-hoc basis on or before 18.12.2006, i.e. the date of issue of Govt. of Delhi OM No.F.70/49/2006/H&FW/SSHFW/463-475 dated 18.12.2006, on the basis of their suitability as assessed by the Commission and requisite educational qualifications and experience prescribed for the post and being found to be deemed to have been appointed under the rules shall be assigned to the sub-cadre of GDMOs or non-teaching specialists, as the case may be. For easy reference, Rule 6 of said Rules is extracted hereinbelow:-
6. Initial constitution of the Service.
(1) All the officers appointed under the Central Health Service Rules, 1996, who are working in the Government of NCT of Delhi as on the date of publication of these rules in the official gazette and who opt to be part of this service shall be deemed to have been appointed under these rules and they shall be members of the service in the respective grades.
(2) All officers appointed on contract basis/ad-hoc basis on or before 18th December, 2006, i.e. the date of issue of the Government of Delhi O.M.No.F.70/4/2006/H&FW/SSHFW/463-475 dated 18th December, 2006, on the basis of their suitability as assessed by the Commission and requisite educational qualifications and experience prescribed for the post and being found fit, shall be deemed to have been appointed under these Rules and assigned to the sub-cadre of General Duty Medical Officers or Non-teaching Specialists, as the case may be, and they shall be members of the service at the entry level of the respective sub-cadre at the initial constitution stage. OA 3653/2012 With reference to letter dated 9.01.2012 of Govt. of NCT of Delhi regarding assessment of suitability of doctors appointed on contract basis under Rule 6 (2) of the Delhi Health Services (Allopathy) Rules, 2009 (ibid), the UPSC sent the letter No.F.No.1/31(3)/2011-AP dated 8.02.2012 to the Chief Secretary, Govt. of NCT of Delhi apprising that the complete ACRs in the prescribed form upto the prescribed date, i.e. 18.12.2006 were not available in respect of either of the candidates appointed on contract basis, which was one of the vital inputs for assessment of their suitability for regularization. In the said letter, it could also be indicated that the Commission had taken a decision that in order to maintain greater fairness and transparency, the assessment of all the doctors appointed on contract basis who possessed the educational qualifications prescribed in the Recruitment Rules (RRs), should be made by subjecting them to qualify the written test followed by personal talk. Nevertheless, vide circular No F.70/49/2006/H&FW/Vol.IV/Part-file/1501 dated 19.03.2012 (Annexure A-7), the Health & Family Welfare Department of Govt. of NCT of Delhi circulated to all MS/HOD Hospitals /Institute that the meeting of the Department Assessment Board (for short DAB) to consider the suitability of doctors appointed on contract basis under Rule 6 (2) of Delhi Health Service (Allopathy) Rules, 2009 was to take place on 27th, 28th, 29th, 30th, 31st March, 2012, 2nd, 3rd and 4th April, 2012 at 10.30AM and 2.30 PM, each day in the office of the Commission, Dholpur House, Shahjahan Road, New Delhi and the doctors (GDMOs and non-teaching specialists) mentioned in the list enclosed to said circular might be invited for personal talk on the date and time indicated on the top of the annexure. All the doctors were invited for personal talk as per the schedule indicated in the annexure and requested to report for personal talk at 9.30 AM. The applicants along with other doctors participated in OA 3653/2012 the personal talk with a committee consisting of two respective specialists and one member- Secretary, UPSC. As a result of personal talk, Govt. of NCT of Delhi issued order No. F.70/49/2006/H&FW/Vol.IV/Part-file/2670-2700 dated 15.05.2012 appointing the doctors mentioned in the enclosed list in their respective sub-cadres under the Delhi Health Service with immediate effect. According to applicants, the list consisted of 370 medical officers and 204 non-teaching specialist doctors. Names of all the six applicants did not figure in the order dated 15.05.2012, thus they have filed the present Original Application praying therein:-
a) direct that the action of the Respondents in not regularizing the petitioners, who are distinguished Specialist-Doctors and are heading their departments for the past several years, having an impeccable professional record, in the initial constitution of Delhi Health Service, in terms of Rule 6 (2) of Rules 2009 is wholly illegal, constitutional and violates valuable fundamental rights of the petitioners;
b) call for the entire records of the selection process carried out by UPSC in consultation with NCTD for the initial constitution of Delhi Health Service, in terms of Rule 6 (2) of Rules 2009;
c ) quash the order dated 15.05.2012 passed by the Respondent No.2 to the extent that it omits the names of the Applicants while appointing 370 Medical Officers and 204 Non-teaching Specialist-Doctors under Delhi Health Services with immediate effect;
d) direct the Respondents to grant permanent status to the Applicants from the date of their initial/first appointment and accordingly they should be promoted to their respective ranks as given to CHS doctors under assured career progression, counting full service and seniority from initial/first date of appointment;
e) direct that the Respondents have no power to exploit the Applicants by first appointing them on contract basis for an uninterrupted period of several years, continuing and promoting them and finally denying regularization and the state as a modal employer in a welfare state, is not expected to take advantage of its position and impose wholly un-equitable and unreasonable condition of employment on the prospective employees;
f) direct that the so-called process of appointment of personal talk carried out by the Respondents to appoint doctors under Rule 6 (2) of Delhi Health Services (Allopathy) Rules, 2009, at initial constitution stage, is arbitrary, unfair, unreasonable and therefore unconstitutional;
g) direct the Respondents to regularise the Applicants in the Delhi Health Services, on the basis of their exemplary and proven work and conduct record.
OA 3653/2012h) direct the Respondents to grant seniority and all consequential benefits to the Applicants from the date of their initial appointments;
AND/OR
i) pass such and other order (s) as this Honble Tribunal may deem just and proper in the facts and circumstances of the case.
It is pertinent to note that the applicants had also preferred separate representation to the Principal Secretary (H&FW) requesting for reconsideration of decision of UPSC regarding their suitability. It is also borne out from record that when in the year 2007, services of one Dr. Radha Dubey were terminated in terms of letter No F.8/262/2004/11/2007/H&FW/P.F.1/17648 dated 23-17/11/2007, she had filed OA No. 2745/2008 before this Tribunal. The same was dismissed by this Tribunal vide 0rder dated 13.11.2009. Writ Petition preferred against the said order also came to be dismissed on 21.12.2009. Finally, Dr. Radha Dubey, filed Special Leave to Appeal (Civil) No. 23809-23810/2010 before Honble Supreme Court, in which their lordships passed the order dated 16.08.2010 which reads as under:-
By an order dated 12.1.1996, the petitioner was appointed as Medical Officer on contract basis for one year in the Directorate of Health Services, Government of N.C.T. of Delhi. She continued in service for next ten years without any break. However, the nature of her employment continued to be contractual. She proceeded on sanctioned leave on 3.4.2006. At the end of sanctioned leave, she applied for extension of leave due to domestic difficulties. Her request was rejected vide letters 13.6.2006 and 31.7.2007 and she was asked to join duty. The petitioner again applied for extension of leave by stating that her widowed mother was suffering from Parkinson and there was none to look after her, but her request was rejected and the Director, Health Services, Government of N.C.T. Delhi terminated her service vide order dated 23.11.2007. The petitioner challenged the termination of her service on the ground that the termination of her service was punitive but the Central Administrative Tribunal and the Division Bench of the High Court dismissed the original application and the writ petition without properly appreciating the issue raised by her and without considering the important question whether the State has the power to employ a person on contract basis and continue her/him for a period of ten years. We are prima facie of the view that appointment of a person on contract basis for an uninterrupted OA 3653/2012 period of ten years amounts to exploitation. The State, as a modal employer in a welfare State, is not expected to take advantage of its position and impose wholly inequitable and unreasonable condition of employment on the prospective employees, who do not have the choice but to accept the appointment on terms and conditions offered by the employer. This practice seems to be contrary to the ratio of the judgments of this Court in Central Inland Water Transport Corporation Ltd and another versus Brojo Nath Ganguly and another ( AIR 1986 SC 1571) and Delhi Transport Corporation versus D.T.C Mazdoor Congress (AIR 1991 SC 101).
Issue notice to the respondents on the special leave petition as also on the petitioners prayer for interim relief, returnable in 16 weeks.
Dasti, in addition, is permitted.
Having regard to the peculiar facts of the case, we deem it proper to direct the respondents, by an interim order, to take the petitioner back in service.
A copy of this order be served upon the respondents along with the notice. In the said SLP, the applicants also filed Intervention Application, i.e. IA No. 22- 23/2012 on 26.07.2012. When the counsel for the applicants was specifically questioned regarding maintainability of the present OA in view of the pendency of the said application, she categorically submitted that the issue in the SLP of Dr. Radha Dubey pertained to the year 2007 and the same being SLP against the order of Honble High Court upholding the order passed by this Tribunal, the applicants have sought to intervene in the same just to support the cause of Dr. Radha Dubey. According to Ms. Aishwarya Bhati, counsel for some of the applicants, cause of action in the present OA is of a date much after the cause of action involved in the SLP before the Honble Supreme Court. According to her, the rejection of applicants by the Commission in terms of Rule 6 (2) is not an issue before Honble Supreme Court. None of the respondents opposed the maintainability of the present OA on account of filing of IA No. 22 & 23 of 2010 by the applicants herein before the Honble Supreme Court. Rather Ms. Aishwarya Bhati, counsel for OA 3653/2012 applicants pleaded with vehemence and aplomb that if her present OA is not entertained on account of filing of aforementioned application in the SLP filed by Dr. Radha Dubey, she would be deprived of the remedy available to her before approaching Honble Supreme Court in her own cause independently. In the absence of any objection on behalf of respondents as to the maintainability of the instant OA on such ground, we have no option but to decide the OA on merits. The counsel for applicant Nos. 1, 2 and 4 submitted orally as well as also in writing as follows:-
Approximately 10 to 14 years have passed since the applicants have been working in DHS as junior specialists on contract basis, thus have proved their impeccable suitability for the post in question.
All the applicants are working as incharge in their respective departments and have been performing to the best of their capacity from their initial appointment. The extension of the contractual appointment from year to year is evidence of their track record.
In view of the Cabinet Note dated 13.11.2006 (ibid), the initial Constitution of Delhi Health Service provided for appointment by transfer amongst those who had been appointed by GNCTD on contract basis on or before 10.04.2006.
Deviating from the normal procedure of assessing suitability on the basis of most vital input of past record and conduct is illegal, unfair, unreasonable and malafide. It has been admitted by DHS, GNCTD in its counter reply that the initial appointment of the applicants was against sanctioned and vacant posts pursuant to the public advertisement and OA 3653/2012 based on the recommendations of a duly constituted Selection Board consisting of two specialists in respective field and an administrative member of the Directorate of Health Services, GNCTD, thus their initial selection was in accordance with the prevalent procedure.
(v). The applicants could not have been adjudged unsuitable for appointment to the post on which they worked for 10 to 15 years. Marks fixed for personal talk were excessive. When 50% marks prescribed for bio-data were further divided into 25+10+15 for essential qualification and qualifying service and desired qualification, additional academic qualification, professional training and work experience over and above required experience and research publication and reports/project reports/ awards/scholarships/official appreciation and affiliation with the professional bodies/institution/societies, there was no break up of 100 marks for personal talk/interaction. No specific parameter had been fixed in personal talk and the basis of performance was only interaction with the officers by the Assessment Board, which included subject experts.
(vi). As per settled law laid and reiterated by the Apex Court in a catena of cases, the practice of having excessive marks in interview without fixing any specific parameter had been strongly deprecated for there being inherent and substantial flaws. Judging the candidates in an artificial and often desultory conversation only reveals the superficial aspects of candidates personality with the deeper traits going undetected.OA 3653/2012
When the test was on assessment of suitability of those who had experience on contractual service, allocating only 3 = marks for experience was highly irrational. When work and conduct report was maintained in respect of each doctor and was considered for annual extension and increments and extension, it was not fair to disregard the same completely while assessing the suitability of a doctor for regular appointment/regularization.
It is irony of the situation that the applicants who had been working uninterruptedly for several years and treated thousand of patients, attended hundreds of emergency cases involving life and death issues and handled effectively and efficiently their respective departments for quite long, have not been given regular appointment on the initial constitution of Delhi Health Services on the basis of personal talk of 10 minutes. Four of the applicants are Surgeons who are carrying out hundreds of complex and advance laparoscopic surgeries, complicated cancer surgeries providing chemotherapy to cancer patients for past several years in their respective hospitals with limited resources having minimum mortality and complications.
The criteria laid down in Rule 6 (2) of the Recruitment Rules notified in the year 2009 have been disregarded in case of the applicants for their appointment on initial constitution of the Service. There being no specific break up or parameter for awarding marks out of 100 marks, the entire exercise of assessment suitability was wholly arbitrary and left enough scope for manipulation, arbitrariness and nepotism.
OA 3653/2012Though non teaching specialists required minimum of MBBS, MS/MD degree and 3 to 5 years post PG experience, GDMO required only MBBS degree. Same criteria for marking bio-data was adopted for both the posts.
Even such candidates who did not satisfy the necessary pre-requisite qualifications and experience have been considered suitable.
2. Mr.Ashok K.Mahapatra, counsel for applicant Nos. 3,4 and 6 referred to the judgments of Honble Supreme Court in UPSC Vs. Gyan Prakash Srivastava ( 2012 )1 SCC 537), (ii) Kalabharti Advertising Vs. Hemant Vimalnath ( 2010) 9 SCC 437) and (iii) Dr. A.K.Jain Vs. UOI and Ors (1987 (Suppl SCC 497). On facts, he adopted the submissions put forth by Ms. Aishwarya Bhati, learned counsel for applicants 1, 2 and 5.
3. In the counter reply filed on behalf of respondent Nos. 1 to 6, it could be specifically asserted that after the year 1996, advertisements were issued from time to time by the Dte. of Health Services, Govt. of Delhi for appointment of Medical Officers on contract basis and the applicants were appointed as junior specialists on contract basis on consideration of their candidature in response to such advertisement and based on assessment by a duly constituted selection board. It is also the stand taken by respondents 1-6 that recruitment on contract basis has been made in the past also against created/ sanctioned posts due to non availability of doctors on regular basis. Ex-facie, the initial appointment of the applicants on contract basis was made by the respondents after following the selection process and against sanctioned posts. For easy reference, the relevant excerpt of the said counter reply is extracted hereinbelow:-
OA 3653/2012All the six applicants are doctors appointed as Junior Specialists on contract basis for one year in the Directorate of Health Services, Govt. of NCT of Delhi between 1998 to 2004.
That since 1996, advertisements were issued from time to time by the Directorate of Health Services, Government of Delhi for appointment of medical officers on contract basis.
Pursuant to the above referred advertisement; most of the applicants herein applied for such posts and were selected through a duly constituted selection board interview. Later on other doctors were also appointed on contract basis. Their service condition was to be governed by relevant rules and orders issued from time to time. Since then i.e. from 1996 onwards, the applicants as well as other similarly situated doctors are working under the GNCTD on contract basis and the contracts are extended yearly basis.
That at the time of initial appointment of the petitioners, the post on which they were appointed was advertised by the Govt. and selection/appointment was made through a selection panel consisting of a minimum of two respective specialists from the respective speciality and an administrative member of the Directorate of Health Services, GNCTD. The applicants were employed by the respondent Govt. as Junior Specialist for working in the various Hospitals/Dispensaries/Health Centres under the Govt. of NCT of Delhi That Delhi Health Services (Allopathy) Rules, 2009 herein after referred to as rules, 2009 were framed by Delhi Govt. to regulate the terms and conditions of DHS. Rule 6 deals with the initial constitution of the service and the relevant rule is Rule 6(2), which deals with officers appointed on contract basis on or before 18.12.2006. Mrs. Sumedha Sharma counsel for the said respondents reiterated the aforementioned submissions and asserted that the selection made by UPSC is in order.
4. Mr. Naresh Kaushik, counsel for respondent No. 7, submitted:-
(i). That in April 2011, the Health & Family Welfare Department in Govt. of NCT of Delhi requested the Commission to assess suitability of 214 non-teaching specialists (Junior Specialists) and 322 general duty medical officers (GDMOs) who were appointed on or prior to 18.12.2006 on contract basis.OA 3653/2012
(ii). Though in Rule 6 (2) of DHS (Allopathy) Rules, 2009, it had been provided that the suitability of the candidates will be assessed by the UPSC, but no method/criteria for appointment was available in the Rules. As such, the Commission, in discharge of constitutional obligation and as per various executive instructions, decided to follow apt method and procedure for objective assessment of the suitability of the candidates.
(iii). Normally, the suitability of candidates is assessed on the basis of ACRs, bio data and holding a personal talk (interview). In the instant case, the ACRs of doctors are not recorded/maintained being appointed on contractual basis. Further, the work and conduct reports in respect of many officers for the period prior to 2005 and in respect of candidates appointed upto cut off date of 18.12.2006 were not available and the work and conduct reports were so concise that they did not sketch out the performance of the doctors on all the attributes appropriately. In view of this, the Commission, had earlier taken a decision that in order to maintain greater fairness and transparency, the assessment of all the doctors could be made by subjecting them to a qualifying written test followed by the personal talk but later on, at the request of the Govt. of NCTD, the Commission had agreed to assess the suitability of doctors on the basis of personal talk and bio-data only.
(iv) In order to maintain equal opportunity, fairness and transparency among all the candidates, the Commission decided to adopt the following criteria, adhered to by the assessment board to OA 3653/2012 assess the suitability of doctors on the basis of personal talk and bio-data:
(i) Personal talk - 100 marks
(ii) Bio- data - 50 marks A candidate could be declared as fit for regularization on achieving the aggregate 50% marks out of 150 marks. No specific parameters were imposed on the assessment Board for personal talk. It was the prerogative of assessment Board to adjudge the suitability of the candidate on the basis of such questions as deemed fit for the post in overall public interest. The fairness of the assessment Board comprising of senior experts in that particular field cannot be questioned in the personal talk just because the applicants (six candidates) out of total 535 candidates were found unfit for regularization. The assertion by the applicants that personal talk was finished in just 10 minutes with irrelevant questions is false and has no basis at all. All the candidates were given proper time to illustrate their performance during the personal talk.
He relied upon the judgments of Honble Supreme Court cited in para 9 of the reply filed on behalf of UPSC as under:-
(i) R.S.Dass Vs. UOI & Others ( 1996 (Supp) SCC 617)
(ii) UPSC Vs. H .L.Dev and Ors ( AIR 1988 SC 1069)
(iii) Dalpat Abasahab Solanke Vs. B.S. Mahajan (AIR 1990 SC 434)
(iv) UPSC Vs. L.P. Tiwari & Ors ( 2006 (12) Scale 278)
(v) M.V.Thummaiah & Ors Vs.UPSC & Ors (Appeal (Civil) 5883-5891 of 2007) OA 3653/2012
5. We have heard learned counsel for the parties and perused the record.
6. In view of the rival submissions and pleadings of the parties, the following questions arise to be determined by us:-
(i) Whether merely the length of contractual, casual/ad hoc service rendered by person would entitled him for regularization/ regular appointment on the post in question.
(ii) Whether the Courts or Tribunal can interfere with the recommendations of the Selection Committee or the criteria adopted for selection.
(iii) Whether in terms of Rule 6 (2) of Delhi Health Service (Allopathy) Rules, 2009, all the officers appointed on contract basis/ad hoc basis on or before 18.12.2006 were to be treated members of the service, subject to the suitability to be assessed by the Commission, fulfillment of requisite qualification and experience prescribed for the post and being found fit. When in terms of said Rules, the suitability test was confined only to limited number of candidates worked on contract basis till a particular date, whether the performance, work and conduct of the contractual doctors during the service rendered by them on contract basis and their experience could be given bare minimum consideration.
(iv) Whether the assessment of suitability in terms of Rule 6 (2) of the aforementioned Rules could be treated as regular selection or regularization.
(v) Whether the same yardstick can be adopted in respect of interview in an open selection and interaction/personal talk in a limited selection mode of regularization.OA 3653/2012
(vi) Whether in the process of regularization of GDMOs/Junior Specialists envisaged in the RRs, the factum of assessment of suitability for contractual test for 10-15 years could be completely disregarded.
7. As far as first proposition is concerned, two broad classifications of services under the union are:
(1) Civil and (2) Defence The defence services are entrusted with the duties pertaining to the defence of the country and, naturally, they do not come in touch with the common man. The personnel belonging to various civil services under the Union and the States are required to serve the needs of the public. Hence, the civil services under the Union and the States are also called the public services (vide entry 70 of list 1 and entry 41 of list II of the VII schedule, respectively). There is relationship of master and servant between the Union and the States and its servants. Such relationship is not left to be regulated as a mere contractual relationship in view of the provisions contained in part III (fundamental rights) and XIV (Articles 309 to 323 of the Constitution) and special provisions relating to certain specified services. The servants under the Union and the States after their appointment acquire a status. Their rights and obligations are all required to be determined by the provisions of statutes and statutory rules which may be framed or altered by the competent authority unilaterally and are not to be determined by consent of both the parties as in the case of contractual relationship. The subject matter relating to services under the Union and all India Services fall within the legislative power of Parliament vide entry 70 of list 1 of the VII schedule to the OA 3653/2012 Constitution read with Articles 245 and 246 (1). Similarly, the services under the Sates fall within the legislative power of the States vide entry 41 of list II of VII schedule read with Articles 245 and 246 (2). By virtue of these legislative powers, it is competent for Parliament or the legislature, as the case may be, to make any law relating to the services. Such matters include the power to create or abolish the services or posts fixing the strength of a cadre or cadres, prescription of various powers and duties attached to the post and every matter relating to services including matters relating to the recruitment and conditions of service. It is competent for the legislature to provide for by legislation all matters relating to the services in exercise of its legislative power. Out of various matters relating to the services, two matters, namely, recruitment and conditions of service under the Union and the States have been singled out for special treatment under Article 309. First part of Article 309 only reiterates the power of Parliament under the legislature who makes laws relating to the services even in respect of recruitment and conditions of service which is included within its legislative power under Article 246. The problems relating to recruitment and conditions of service are manifold and require to be regulated as and when the necessity arises and cannot wait for legislative enactments, the framing of which naturally takes some time. Therefore, under proviso to Article 309, it is provided that the recruitment and conditions of service could be regulated by the rules framed by the President or the Governor, as the case may be, subject to the acts of appropriate legislature. Having regard to Article 309 of the Constitution, it is competent for the President or any person authorized by him or the Governor or any person authorized by him to regulate by rules the method of recruitment and conditions of service to the services under the Union or the States under OA 3653/2012 the Rules. Rules framed under Article 309 have to be strictly confined to recruitment and conditions of services mentioned therein. Under Article 309, the power of legislature to regulate recruitment and conditions of service is wide and includes power to constitute new cadre by merging certain existing cadres. The rule making power is conferred on the President or the Governor or their delegates personally and does not form part of the executive power of the State. Subject to the law made by legislatures the rule has the same efficacy as that of legislative enactment. The legislative power carries with it the power to amend or alter the rules with retrospective effect. It is neither legal nor proper for the High Court or Administrative Tribunal to issue mandate to the State Government to make the Rules under Article 309. Though non-statutory rules cannot modify statutory rules, there is nothing to prevent the government from issue of administrative instructions in the matter in which the statutory rules are silent (Controller and Auditor General of India Vs. Mohan (AIR 1991 SC 2288). A rule made in exercise of the power under the proviso to Article 309 constitutes law within the meaning of Article 235. Such rule may be struck down only on such ground as may invalidate a legislative measure, e.g. violation of Articles 14 and 16 and not because the Courts consider it to be unreasonable (Bansal Vs Union of India (AIR 1992 SC 978). Thus, the method for induction to public service has been suggested by the Constitution. Still, On the face of ensuring transparency, fairness and equal opportunity in the selection process, appointments could not be made in disregard to the interest of administration and exigency of service. In such process, procedure could be evolved by issuing administrative guidelines etc. to make appointment in connection with the affairs of the Union or the State of different nature, such as long term appointment, officiating OA 3653/2012 appointment, ad hoc appointment, contractual appointment, casual appointment and substitute etc. As defined in the Contract Labour (Regulation and Abolition) Act, 1970, a workman is deemed to be employed as contract labour in or in connection with the work of establishment when he is hired in or in connection with such work by or through a contract, with or without the knowledge of principal employer. However, in the changed scenario, a person directly appointed by the employer for a particular term on fixed salary is also called Contractual employee. In certain cases, depending upon the facts and circumstances, the contract employees are given minimum of the basic pay admissible to the regular employee. The initial appointment of the applicants, subject to assessment of their suitability by duly constituted Board, was appointment of second type. Though prior to the judgment of Honble Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Uma Devi (3) and Others ( 2006) 4 SCC 1), the Court could direct for absorption of illegal, irregular or improper entrants into service, i.e. a class of employment which could only be called litigious employment, but in the case of Uma Devi, the Constitutional Bench could take a view that such kind of employment which could only be called litigious employment, has risen like a phoenix impairing the constitutional scheme. Paras 4 and 5 of the judgment in the case of Secretary, State of Karnataka Vs. Uma Devi and Ors, read as under:-
4. But, sometimes this process is not adhered to and the Constitutional scheme of public employment is by-passed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even OA 3653/2012 through the backdoor or on daily wages, approaching Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the concerned posts. Courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution of India. Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for High Courts in the scheme of things and their wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.
5. This Court has also on occasions issued directions which could not be said to be consistent with the Constitutional scheme of public employment. Such directions are issued presumably on the basis of equitable considerations or individualization of justice. The question arises, equity to whom? Equity for the handful of people who have approached the Court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment? When one side of the coin is considered, the other side of the coin, has also to be considered and the way open to any court of law or justice, is to adhere to the law as laid down by the Constitution and not to make directions, which at times, even if do not run counter to the Constitutional scheme, certainly tend to water down the Constitutional requirements. It is this conflict that is reflected in these cases referred to the Constitution Bench.
8. In setting out salient principles regarding appointment on ad hoc/ contractual/ casual wages and regularization of the incumbents appointed in such capacity, Honble Supreme Court enunciated certain guidelines as follows:-
OA 3653/2012The power of a State as an employer is more limited than that of private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily.
If Rules have been framed under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules. The State is meant to be a model employer. The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 caste an obligation on the employer to notify the vacancies that may arise in the various departments and for filling up the same based on procedure.
No Government order, notification or circular can be substituted for the statutory rules framed under the authority of law as, following any such course, could be disastrous inasmuch as it will deprive the security of tenure and the right of equality conferred on civil servants under the constitutional scheme and may amount to negating the accepted service jurisprudence.
There may be occasion when the sovereign State or its instrumentality will need to employ persons in posts which are temporary on daily wages as additional hands or taking them in without following the required procedure to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure established by the Constitution or for work in temporary posts or projects that are not needed permanently. This right of the Union or of the State Government cannot but be recognized as there is nothing in the Constitution which prohibits such engagement of persons temporarily or on daily wages to meet the needs of the situation.OA 3653/2012
But it is also a fact that such engagements resorted to cannot be used to defeat the very scheme of public employment nor can a court say that the Union or the State Governments do not have the right to engage persons in various capacities for a duration or until the work in a particular project is completed. Once this right of the Government is recognized and the mandate of the constitutional requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for courts, whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following due process of selection as envisaged by the constitutional scheme.
It is not the role of the Courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme.
The bypassing of the constitutional scheme cannot be perpetuated by passing an order without dealing with and deciding the validity of such orders on the touchstone of constitutionality. While deciding the questions falling for decision of the Court, it is necessary to bear in mind and to bring about certainty in the matter of public employment. It is a misconception to consider that regularization means permanence. The words regular or regularization do not connote permanence and cannot be construed so as to convey idea of the nature of tenure of appointment.
Only something that is irregular, for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized.OA 3653/2012
The Court in appropriate cases would have only the right to regularise an appointment made after following the due procedure, even though a non fundamental right of that process or procedure has not been followed.
A socialist republic and its executive is not bound to give permanence to all those who are employed as casual labourers or temporary hands and that too without process of selection or without following the mandate of the Constitution.
The State is also controlled by economic consideration and financial implications of any public employment. The viability of department or the instrumentality of the project is also of equal concern for the State. The State works out the Scheme taking into consideration the financial implications and economic aspects. The Court ought not to impose financial burden on the State by issuing direction to give permanent status to those who are being temporarily or casually employed in a Public Sector Undertaking, as the burden may become so heavy by such direction that the undertaking itself may collapse under its own weight.
Jettisoning of the constitutional Scheme of appointment cannot be approved. Ordinarily speaking, the creation and abolition of the post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. Such conditions of service can be exercised either by making rule under the proviso to Article 309 of the Constitution or (in the absence of such rules) by issuing rules/instructions in exercise of its executive power. The court comes into the picture only to ensure observance of fundamental OA 3653/2012 rights, statutory provisions, rules and other instructions, if any, governing the conditions of service.
The State should not be allowed to depart from the normal rule and indulge in temporary employment in permanent posts. Court is bound to insist on the State making regular and proper recruitment and not to encourage or shut its eyes to the persistent transgression of the rules or regular recruitment. The direction to make regularization can only encourage the State, the model employer to flout its own rules and would confer undue benefit on a few at the cost of many waiting to compete. It cannot be held that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent.
Merely because the Supreme Court granted certain relief in exercise of its power under Article 142 of the Constitution, similar orders could not be passed by the High Court. A decision is available as a precedent only if it decides a question of law. The temporary employees would not be entitled to rely on a writ petition they filed before the High Court or upon an order of the Supreme Court which directs a temporary employee to be regularized in his service without assigning reasons and ask the High Court to pass an order of similar nature. Para 27 reads thus:-
27. We shall now refer to the other decisions. In State of Punjab and others Vs. Surinder Kumar and others (1991 Suppl. (3) SCR 553), a three judge bench of this Court held that High Courts had no power, like the power available to the Supreme Court under Article 142 of the Constitution of India, and merely because the Supreme Court granted certain reliefs in exercise of its power under Article 142 of the Constitution of India, similar orders could not be issued by the High Courts. The bench pointed out that a decision is available as a precedent only if it decides a question of law. The temporary employees would not be entitled to rely in a OA 3653/2012 Writ Petition they filed before the High Court upon an order of the Supreme Court which directs a temporary employee to be regularized in his service without assigning reasons and ask the High Court to pass an order of a similar nature. This Court noticed that the jurisdiction of the High Court while dealing with a Writ Petition was circumscribed by the limitations discussed and declared by judicial decisions and the High Court cannot transgress the limits on the basis of the whims or subjective sense of justice varying from judge to judge. Though the High Court is entitled to exercise its judicial discretion in deciding Writ Petitions or Civil Revision Applications coming before it, the discretion had to be confined in declining to entertain petitions and refusing to grant reliefs asked for by the petitioners on adequate considerations and it did not permit the High Court to grant relief on such a consideration alone. This Court set aside the directions given by the High Court for regularization of persons appointed temporarily to the post of lecturers. The Court also emphasized that specific terms on which appointments were made should be normally enforced. Of course, this decision is more on the absence of power in the High Court to pass orders against the constitutional scheme of appointment.
The appointment made on purely contractual basis on consolidated pay for a fixed period and terminable without notice, comes to an end by efflux of time and the appointee has no right to continue in the post and to claim regularization in service in the absence of any rule providing for regularization after the period of service.
Ad hoc appointees/temporary employee engaged on ad hoc basis and paid on piece-rate basis for certain clerical work and discontinued on completion of their task cannot be found entitled for reinstatement or regularization of their services even if their working period is raised from one to two years.
Appointment on daily wage basis is not an appointment to post according to rules. A person appointed on daily rate wages, on discontinuance of his services, cannot seek issuance of direction to re-engage him in any other work or appoint him against existing vacancies.
OA 3653/2012The question of regularization of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorized and is not against any sanctioned vacancy, question of regularizing the incumbent on such a non-existing vacancy would never arise for consideration and even if such purported regularization or confirmation is given, it would be an exercise in futility. Para 31 reads thus:-
31. In Ashwani Kumar and others Vs. State of Bihar and others (1996 Supp. (10) SCR 120), this Court was considering the validity of confirmation of the irregularly employed. It was stated:
"13. So far as the question of confirmation of these employees whose entry was illegal and void, is concerned, it is to be noted that question of confirmation or regularization of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorized and is not against any sanctioned vacancy, question of regularizing the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularization or confirmation is given it would be an exercise in futility."
This Court further stated:
"In this connection it is pertinent to note that question of regularization in any service including any government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily-wage basis by a competent authority and are continued from time to time and if it is found that the incumbents concerned have continued to be employed for a long period of time with or without any artificial breaks, and their services are otherwise required by the institution which employs them, a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularize them so that the employees concerned can give their best by being assured security of tenure. But this would require one precondition that the initial entry of such an employee must be made against an available sanctioned OA 3653/2012 vacancy by following the rules and regulations governing such entry. The second type of situation in which the question of regularization may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by a competent authority and the irregular initial appointment may be regularized and security of tenure may be made available to the incumbent concerned. But even in such a case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment."
The cases directing regularization have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment. The mere fact that some persons worked for a long time would not mean that they had acquired a right for regularization.
Sympathy or sentiment cannot be a ground for passing an order in relation whereto the appellant miserably fails to establish a legal right.
Regularization is not and cannot be the mode of recruitment by any State.
There should be equality of opportunity for all citizens relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words employment or appointment cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation etc. The appointment to any post under the State can only be made after a proper advertisement inviting OA 3653/2012 applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial, through a written examination or interview or some other rational criteria for judging the inter se merit of the candidates who have applied in response to the advertisement made. The Parliament and the legislature in this country cannot transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14 of which Article 16 (1) is a facet. Para 40 reads thus:-
40. At this stage, it is relevant to notice two aspects. In Kesavananda Bharati Vs. State of Kerala (1973 Supp. S.C.R. 1), this Court held that Article 14, and Article 16, which was described as a facet of Article 14, is part of the basic structure of the Constitution of India. The position emerging from Kesavananada Bharati (supra) was summed up by Jagannatha Rao, J., speaking for a Bench of three Judges in Indira Sawhney Vs. Union of India (1999 Suppl. (5) S.C.R. 229). That decision also reiterated how neither the Parliament nor the Legislature could transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14 of which Article 16 (1) is a facet. This Court stated, "64. The preamble to the Constitution of India emphasises the principle of equality as basic to our constitution. In Keshavananda Bharati v. State of Kerala, it was ruled that even constitutional amendments which offended the basic structure of the Constitution would be ultra vires the basic structure. Sikri, CJ. laid stress on the basic features enumerated in the preamble to the Constitution and said that there were other basic features too which could be gathered from the Constitutional scheme (para 506 A of SCC). Equality was one of the basic features referred to in the Preamble to our Constitution. Shelat and Grover, JJ. also referred to the basic rights referred to in the Preamble. They specifically referred to equality (paras 520 and 535A of SCC). Hegde & Shelat, JJ. also referred to the Preamble (paras 648, 652). Ray, J. (as he then was) also did so (para 886). Jaganmohan Reddy, J. too referred to the Preamble and the equality doctrine (para 1159). Khanna, J. accepted this position (para 1471). Mathew, J. referred to equality as a basic feature(para 1621). Dwivedi, J. (paras 1882, 1883) and Chandrachud, J.(as he then was) (see para 2086) accepted this position.OA 3653/2012
65. What we mean to say is that Parliament and the legislatures in this Country cannot transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14 of which Article 16(1) is a facet."
Unless the appointment is in terms of the relevant rules, as per proper competition among the 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 expiry of his term of appointment. Merely because a temporary employee or a casual wage worker is continued for time beyond the term of his appointment, he 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.
Merely because, an employee had continued under the cover of an order of Court described as litigious employment, he would not be entitled to any right to be absorbed or made permanent in the service.
The power to make an order, as is necessary for doing complete justice in any case or matter pending before the Court, would not normally be used for giving go by to the procedure established by law in the matter of public employment. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 OA 3653/2012 of the Constitution permitting those persons engaged to be absorbed or to be made permanent, based on their appointments or engagement.
It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain - not at arms length - since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that the person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible.
A person who enters temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on proper selection as recognized by the relevant rules or procedure, is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post, appointment to which could be made only by following a proper procedure for selection. The theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has extended any promise while engaging these persons either to continue them or to make them permanent. The State cannot OA 3653/2012 constitutionally make such a promise. The theory cannot be invoked to seek a positive relief of being made permanent in the post.
Those who are employed on daily wage form a class by themselves they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wage to claim that such employee should be treated on par with a regularly recruited candidate and made permanent in employment. Even assuming that the principle could be invoked for claiming equal wages for equal work, there is no fundamental right in those who have been employed on daily wages or temporary or on contractual basis, to claim that they have a right to be absorbed in service.
The right to be treated equally with the other employees employed on daily wages cannot be extended to claim equal treatment at par with those who were regularly employed. That would be treating unequals as equals.
The right to life protected by Article 21 of the Constitution of India would include the right to employment, cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right.
Union of India, the State Government and their instrumentalities should take steps to regularise as a one time measure, the services of such irregularly appointed who had worked for ten years or more on duly sanctioned posts but not OA 3653/2012 under cover of orders of the Courts or of Tribunal and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that required to be filled up, in cases where temporary employees on daily wages are being now employed. Para 53 reads thus:-
One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme. Those decisions running contrary to the principle settled in the decision, i.e. Secretary, State of Kartanaka Vs. Uma Devi (2006 (1) SCC 1) or in which directions running counter to what had been held therein, would stand denuded of their status as precedents.
9. The view taken by Honble Supreme Court as above could be reiterated in Harminder Kaur and Ors Vs. Union of India & Ors ( 2009 (7) Scale 204). Paras 13 to 18 of the judgment read as under:-
OA 3653/201213. The short question which, thus, arises for consideration is as to whether, having regard to the long tenure of service, appointment of the appellants should have been or could be directed to be regularized.
14. Appointments had been made strictly in terms of contract by contract. No doubt, for the said purpose an office order had been issued. It furthermore appears that the names of the appellant have been called for from the Regional Employment Exchange. It is, however, beyond any doubt or dispute that they had been appointed only fora specified period. The power conferred on the Heads of the School to engage Lecturers, Masters/Mistresses was for a limited purpose, namely, when the incumbent has proceeded on leave or is not available for teaching beyond 45 days and when no substitute could be provided for in terms of the Rules. We may furthermore notice that the offers of appointment in no uncertain terms provided that the appointee would have no claim for regular appointment available in the Institute.
15. Rule 6 of the Rules empowers the Administrator to make relaxation of the applicability of the Rules only in the event if he is of the opinion that it was necessary or expedient so to do, wherefor not only an appropriate order was required to be issued but also reasons were to be recorded in writing therefor. Relaxation of the Rules could be made only in respect of any class or category of persons and not with regard to the mode "of recruitment. The offers of appointment issued in favour of the appellants clearly go to show that the Rules had been relaxed only for the purpose mentioned therein. We, however, have not been informed as to whether the requisite prior permission from the Department had been obtained by the Heads of the Schools upon assigning detailed reasons/justification therefor as stated in Paragraph 1 of the order dated 27.11.1997.
Be that as it may, it is now well known that long service by itself may not be a ground for directing regularization. Regularization as is well known is not a mode of appointment. When appointments in public office are required to be made, the provisions of Articles 14 and 16 of the Constitution of India are required to be scrupulously followed. When a departure is made for not scrupulously following the conditions precedent laid down in the statutory rules as also the constitutional scheme, it is imperative that the same must be done within the four corners of the delegated power by the Authority concerned. The High Court in its judgment has referred to a few decisions of this Court. We need not advert thereto as the matter has since been considered by a Constitution Bench of this Court in Uma Devi (supra). Therein, it has categorically been held:
"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 OA 3653/2012 the law, has necessarily to hold that unless the appointment is in terms of the 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 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 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. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, 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 the 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 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." Paragraph 53 of the said decision on which reliance has been placed by Mr. Patwalia reads as under:
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S. V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment.OA 3653/2012
In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
16. A judgment of a Constitution Bench of this Court laying down the law within the meaning of Article 141 of the Constitution of India must be read in its entirely for the purpose of finding out the ratio laid down therein. The Constitution Bench, in no uncertain terms, based its decision on the touchstone of the 'equality clause' contained in Articles 14 and 16 of the Constitution of India. Emphasis has been laid at more than one place for making appointments only upon giving an opportunity to all concerned. Appointment through side-door has been held to be constitutionally impermissible.
17. We are not oblivious of the fact that in some decisions rendered by different benches of this Court taking a sympathetic view in favour of the employees who had been serving the State for a long time, the rigours test laid down therein were sought to be dilated. However, some other benches of this Court had interpreted Paragraph 53 of the Uma Devi (supra) in the light of the decisions mentioned therein.
In Mineral Exploration Corpn. Employees' Union vs. Mineral Exploration Corpn. Ltd [(2006) 6 SCC 310J wherein this Court, while following limadevi (3) (supra), invoked para 53 of the said decision to opine:
"39. We, therefore, direct the Tribunal to decide the claim of the workmen of the Union strictly in accordance with and in compliance with all the directions given in the judgment by the Constitution Bench in Secy., State of Karnataka v. Umadevi (3) (supra) and in particular, paras 53 and 12 relied on by the learned Senior Counsel appearing for the Union. The Tribunal is directed to dispose of the matter afresh within 9 months from the date of receipt of this judgment without being influenced by any of the observations made by us in this judgment. Both the parties are at liberty to submit and furnish the details in regard to the names of the workmen, nature of the work, pay scales and the wages drawn by them from time to time and the transfers of the workmen made from time to time, from place to place and other necessary and requisite details. The above details shall be submitted within two months from the date of the receipt of this judgment before the Tribunal."OA 3653/2012
However, in National Fertilizers Ltd. & ors. vs. Somvir Singh (2006) 5 SCC 493, this Court held:-
"23. The contention of the learned counsel appearing on behalf of the respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban on employment, no recruitment was permissible in law. The reservation policy adopted by the appellant had not been maintained. Even cases of minorities had not been given due consideration.
xxx xxx xxx
25. Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the respondents are illegal. They do not, thus, have any legal right to continue in service.
26. It is true that the respondents had been working for a long time. It may also be true that they had not been paid wages on a regular scale of pay. But, they did not hold any post. They were, therefore, not entitled to be paid salary on a regular scale of pay. Furthermore, only because the respondents have worked for some time, the same by itself would not be a ground for directing regularization of their services in view of the decision of this Court in Umadevi(3)"
In State of M.P. & Ors. vs. Lalit Kumar Verma [(2007) 1 SCC 575], this Court held:-
"20. The decision to implement the judgment was evidently subject to the decision of this Court. But, the Special Leave Petition is barred by limitation. The question, inter alia, which arises for consideration before us is as to whether we should condone the delay or allow the respondent to continue to occupy the permanent post.
21. The legal position somehow was uncertain before the decision rendered by the Constitution Bench of this Court in Uma Devi (3) (supra). It has categorically been stated before us that there was no vacant post in the department in which the respondent could be reinstated. The State had also adopted a policy decision regarding regularisation. The said policy decision has also no application in the case of the respondent. Even otherwise, it would be unconstitutional being hit by Article 16 of the Constitution of India." In Punjab Water Supply & Sewerage Board vs. Ranjodh Singh & ors., [(2007) 2 SCC 491], this Court held:-
"19. In the instant case, the High Court did not issue a writ of mandamus on arriving at a finding that the respondents had a legal right in relation to their claim for regularization, which it was obligated to do. It proceeded to issue the directions only on the basis of the purported policy decision adopted by means of a OA 3653/2012 circular letter and, as noticed hereinbefore, even a policy decision adopted in terms of Article 162 of the Constitution of India in that behalf would be void. Any departmental letter or executive instruction cannot prevail over statutory rule and constitutional provisions. Any appointment, thus, made without following the procedure would be ultravires." In Postmaster General, Kolkata & Others vs. Tutu Das (Dutta) [(2007) 5 SCC 317], this Court held as under:-
"20. The statement of law contained in para 53 of Umadevi (3) cannot also be invoked in this case. The question has been considered by this Court in a large number of decisions. We would, however, refer to only a few of them.
21. In Punjab Water Supply & Sewerage Board v. Ranjodh Singh referring to paras 15, 16 and 53 of Umadevi (3) this Court:
"17.A combined reading of the aforementioned paragraphs would clearly indicate that what the Constitution Bench had in mind in directing regularisation was in relation to such appointments, which were irregular in nature and not illegal ones.
18. Distinction between irregularity and illegality is explicit. It has been so pointed out in National Fertilizers Ltd. v. Somvir Singh in the following terms:
'23. The contention of the learned counsel appearing on behalf of the respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban on employment, no recruitment was permissible in law. The reservation policy adopted by the appellant had not been maintained. Even cases of minorities had not been given due consideration.
24. The Constitution Bench thought of directing regularisation of the services only of those employees whose appointments were irregular as explained in State of Mysore v. S. V. Narayanappa, R.N. Nanjundappa v. T. Thimmiah andB.N. Nagarajan v. State of Karnataka wherein this Court observed: [Umadevi (3) case, SCC p. 24, para 16] "16. In B.N. Nagarajan v. State of Karnataka this Court clearly held that the words regular' or 'regularisation' do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making 1 the appointments."
25. Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the respondents 1 are illegal. They do not, thus, have any legal right to continue in service.'"
OA 3653/2012(See also State of M.P. v. Yogesh Chandra Dubey and State of M.P. v. Lalit Kumar Verma.) The controversy, if any, in our opinion, has been given a quietus by a three Judge Bench of this Court in Official Liquidator 25 vs. Dayanand & ors. [(2008) 10 SCC I], holding:
"75. By virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in Secretary, State of 30 Karnataka v. Uma Devi (3) is binding on all the courts including this Court till the same is overruled by a larger Bench. The ratio of the Constitution Bench judgment has been followed by different two- 35 Judges Benches for declining to entertain the claim of regularization of service made by ad hoc/temporary/daily wage/ casual employees or for reversing the orders of the High Court granting relief 40 to such employees - Indian Drugs and Pharamaceuticals Ltd. v. Workmen [(2007) 1 SCC 408], Gangadhar Pillai v. Siemens Ltd. [(2007) 1 SCC 533], Kendriya Vidyalaya Sangathan v. L. V. 45 Subramanyeswara [(2007) 5 SCC 326], Hindustan Aeronautics Ltd. v. Dan Bahadur Singh [(2007) 6 SCC 207]. However, in U.P. SEB v. Pooran Chand Pandey (2007) 11 SCC 92 on which reliance has been placed by Shri Gupta, a two-Judges Bench has attempted to dilute the Constitution Bench judgment by suggesting that the said decision cannot be applied to a case where regularization has been sought for in pursuance of Article 14 of the Constitution and that the same is in conflict with the judgment of the seven-Judges Bench in Maneka Gandhi v. Union ofIndia [(197'8) 1 SCC 248]." The Court noticed that in U.P. SEB v. Pooran Chandra Pandey (supra), this Court had held:
" 18. We may further point out that a seven-Judge Bench decision of this Court in Maneka Gandhi v. Union of India has held that reasonableness and non-arbitrariness is part of Article 14 of the Constitution. It follows that the Government must act in a reasonable and non-arbitrary manner otherwise Article 14 of the Constitution would be violated. Maneka Gandhi case is a decision of a seven-Judge Bench, whereas Umadevi (3) case is a decision of a five-Judge Bench of this Court. It is well settled that a smaller Bench decision cannot override a larger Bench decision of the Court. No doubt, Maneka Gandhi case does not 'specifically deal with the question of regularisation of government employees, but the principle of reasonableness in executive action and the law which it has laid down, in our opinion, is of general application."
(Emphasis supplied) However, the said observations were held to have been uncalled for.
The Bench noticed several judgments/ orders of different Benches taking a view contrary to Uma Devi (3) (supra) to opine that those cases were illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system. It was opined:
OA 3653/2012"90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to decide as to which of the judgments lay down the correct law and which one should be followed. 91. We may add that in our constitutional set up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the Constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.
92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judges Bench in U.P. State Electricity Board v. Poor an Chandra Pandey (supra) should be read as obiter and the same should neither be treated as binding by the High Courts, Tribunals and other judicial for as nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench."
We feel bound by the observations made therein.
{See also State of Karnataka & Ors. vs. Sri G.V. Chandrashekar [2009 (3) SCALE 653} Recently, in State of Bihar vs. Upendra Narayan Singh [2009 (4) SCALE 282], a Bench of this Court, while holding that equality clause enshrined in Article 16 mandates that every appointment to public posts or office should be made by open advertisement so as to enable all eligible persons to compete for selection on merit and despite the fact there may be certain exceptions thereto, observed:
OA 3653/2012"17. Notwithstanding the basic r mandate of Article 16 that there shall be equality of opportunity for all citizens in matters relating to employment for appointment to any office under the State, the spoil system which prevailed in America in 17th and 18th centuries has spread its tentacles in various segments of public employment apparatus and a huge illegal employment market has developed in the country adversely affecting the legal and constitutional rights of lakhs of meritorious members of younger generation of the country who are forced to seek intervention of the court and wait for justice for years together." The court noticed the spoil system as also a large number of decisions rendered thereon including Uma Devi (supra) to hold: "33. In view of the above discussion, we hold that the initial appointments of the respondents were made in gross violation of the doctrine of equality enshrined in Articles 14 and 16 and the provisions of the 1959 Act and the learned Single Judge gravely erred by directing their reinstatement with consequential benefits."
18. We, therefore, are of the opinion that the High Court was correct in its view. We were, however, informed that 800 posts of teachers are lying vacant. Ms. Kamini Jaiswal informed that the Administration is ready and willing to fill up the said posts on a regular basis. While doing so, we have no doubt in our mind that the cases of the appellants shall also be taken into consideration and the Administrator may consider the desirability of relaxing the age limit provided for in the Rules.
10. In Dr (Mrs) Chanchal Goyal Vs. State of Rajasthan ( AIR 2003 SC 1713), it could be held that mere continuation of an employee in service does not invite application of principle of legitimate expectation. Conditions attached to appointment cannot be said to be waived if the appointment is in defiance of requisite compliances. Relevant excerpts of the said judgment read as under:-
10. In J & K Public Service Commission and ors. v. Dr. Narinder Mohan and ors (1994 (2) SCC 630), it was, inter alia, observed that it cannot be laid down as general rules that in every category of ad hoc appointment if the ad hoc appointee continued for longer period, rules of recruitment should be relaxed and the appointment by regularization be made. In the said case in paragraph 11 the position was summed up as under :
"This Court in Dr. A. K. Jain v. Union of India (1987 Supp SCC 497) gave directions under Article 142 to regularize the services of the ad hoc doctors appointed on or before October 1 1984. It is direction under Article 142 on the peculiar facts and circumstances therein. Therefore, the High Court is not right in placing reliance on the judgment as a ratio to give the direction to the PSC to consider the cases of the OA 3653/2012 respondents. Article 142 power is confided only to this Court. The ratio in Dr. P.P.C. Rawani v. Union of India (1992) 1 SCC 331 is also not an authority under Article 141. Therein the orders issued by this Court under Article 32 of the Constitution to regularize the ad hoc appointments had become final. When contempt petition was filed for non implementation, the Union had come forward with an application expressing its difficulty to give effect to the orders of this Court. In that behalf, while appreciating the difficulties expressed by the Union in implementation, this Court gave further direction to implement the order issued under Article 32 of the Constitution. Therefore, it is more in the nature of an execution and not a ratio under Article 141. In Union of India v. Dr. Gyan Prakash Singh. 1994 Supp (1) SCC 306, this Court by a Bench of three Judges considered the effect of the order in A. K. Jain case (supra) and held that the doctors appointed on ad hoc basis and taken charge after October 1, 1984 have no automatic right for confirmation and they have to take their chance by appearing before the PSC for recruitment. In H. C. Puttaswamy v. Hon'ble Chief Justice of Karnataka 1991 Supp (2) SCC 421, this Court while hold- ing that the appointment to the posts of clerk etc. in the subordi- nate courts in Karnataka State without consultation of the PSC are not valid appointments, exercising the power under Article 142, directed that their appointments as a regular, on humanitarian grounds, since they have put in more than 10 years service. It is to be noted that the recruitment was only for clerical grade (Class-III post) and it is not a ratio under Article 141. In State of Haryana v. Ptara Singh (1992) 4 SCC 118, this Court noted that the normal rule is recruitment through the prescribed agency but due to ad ministrative exigencies, an ad hoc or temporary appointment may be made. In such a situation, this Court held that efforts should always be made to replace such ad hoc or temporary employees by regularly selected employees, as early as possible. The temporary employees also would geT liberty to compete along with others for regular selection but if he is not selected, he must give way to the regularly selected candidates. Appointment of the regularly selected candidates cannot be withheld or kept in abeyance for the sake of such an ad hoc or temporary employee. Ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee. He must be replaced only by regularly selected employee. The ad hoc appointment should not be a device to circumvent the rule of reservation. If a temporary or ad hoc employee continued for a fairly long spell, the authorities must consider his case for regularization provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. It is to be remembered that in that case, the appointments are only to Class-II or Class-IV posts and the selection made was by subordinate selection committee. Therefore, this Court did not appear to have intended to lay down as a general rule that in every category of ad hoc appointment, if the ad hoc appointee continued for long period, the rules of recruitment OA 3653/2012 should be relaxed and, the appointment by regularization be made. Thus considered, we have no hesitation to hold that the direction of the Division Bench is clearly illegal and the learned single Judge is right in directing the State Government to notify the vacancies to the PSC and the PSC should advertise and make recruitment of the candidates in accordance with the rules."
11. In Union of India and ors v. Harish Balkrishna Mahajan (1997 (3) SCC 194), the position was again reiterated with reference to Dr. Narain's case (supra). Therefore, the challenge to the order of dismissal on the ground of long continuance as ad hoc / temporary employee is without substance.
12. What remains to be considered is the plea of legitimate expectation. The principle of 'legitimate expectation' is still at a stage of evolution as pointed out in De Smith Administrative Law (5th Edn. Para 8.038). The principle is at the root of the rule of law and requires regularity, predictability and certainty in governments dealings with the public. Adverting to the basis of legitimate expectation its procedural and substantive aspects. Lord Steyn in Pierson v. Secretary of State for the Home Department (1997 (3) All ER 577 at p. 606) (HL) goes back to Dicey's description of the rule of law in his "Introduction to the study of the Law of the Constitution" (10th Edn. 1968 P. 203) as containing principles of enduring value in the work of a great jurist. Dicey said that the constitutional rights have roots in the common law. He said:
"The 'rule of law', lastly, may be used as a formula for expressing the fact that with us, the law of constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts; that, in short, the principles of private law have with us been by the action of the courts and Parliament so extended as to determine the position of the Crown and its servants, thus the constitution is the result of the ordinary law of the land"
This says Lord Steyn. is the pivot of Dlcey's discussion of rights to personal freedom and to freedom of association and of public meeting and that it is clear that Dicey regards the rule of law as having both procedural and substantive effects. "The rule of law enforces minimum standards of fairness, both substantive and procedural". On the facts in Pierson, the majority held that the Secretary of State could not have maintained a higher tariff of sentence that recommended by the judiciary when admittedly no aggravating circumstances existed. The State could not also increase the, tariff with retrospective effect.
13. The basic principles in this branch relating to 'legitimate expectation' were enunciated by Lord Diplock in Council of Civil Service Unions and Ors u. Minister for the Civil Service (1985 AC 374 (408-409)) (Commonly known as CCSU case). It was observed in that case that for a legitimate expectation to arise, the decisions of the administrative authority must affect the person by depriving him of some benefit or advantage which either (i) he had in the OA 3653/2012 past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. The procedural part of it relates to a representation that a hearing or other appropriate procedure will be afforded before the decision is made. The substantive part of the principle is that if a representation is made that a benefit of a substantive nature will be granted or if the person is already in receipt of the benefit that it will be continued and not be substantially varied, then the same could be enforced. In the above case. Lord Eraser accepted that the Civil servants had a legitimate expectation that they would be consulted before their trade union membership was withdrawn because prior consultation in the past was the standard practice whenever conditions of service were significantly altered. Lord Diplock went a little further, when he said that they had a legitimate expectation that they would continue to enjoy the benefits of the trade union membership, the interest in regard to which was protectable. An expectation could be based on an express promise or representation or by established past action or settled conduct. The representation must be clear and unambiguous. It could be a representation to the individual or generally to class of persons.
14. The principle of a substantive legitimate expectation, that is, expectation of favourable decision of one kind or another, has been accepted as part of the English Law in several cases. (De Smith Administrative Law. 5th Ed.) (Para 13, 030), (See also Wade. Administrative Laws. 7th Ed.) (pp. 418-419). According to Wade, the doctrine of substantive legitimate expectation has been "rejected" by the High Court of Australia in Attorney General for N.S.W. v. Quin (1990) 93 All ER 1 (But see Teon's case referred to later) and that the principle was also rejected in Canada in Reference Re Canada Assistance Plan (1991) 83 DLR (4th 297), but favoured in Treland : Canon v. Minister for the Marine 1991 (1) IR 82. The European Court goes further and permits the Court to apply proportionality and go into the balancing of legitimate expectation and the Public interest.
15. Even so, it has been held under English law that the decision maker's freedom to change the policy in public interest, cannot be fettered by the application of the principle of substantive legitimate expectation. Observations in earlier cases project a more inflexible rule than is in vogue presently. In R. v. IRC. ex P. Preston (1985 AC 835) the House of Lords rejected the plea that the altered policy relating to parole for certain categories of prisoners required prior consultation with the prisoner. Lord Scarman observed :
"But what was their legitimate expectation. Given the substance and purpose of the legislative provisions governing parole, the most that a convicted prisoner can legitimately expect is that his case be examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful OA 3653/2012 exercise of the discretion conferred upon him by the statute. Any other view would entail the conclusion that the unfettered discretion conferred by statute upon the minister can in some cases be restricted so as to hamper or even to prevent changes of policy."
16. To a like effect are the observations of Lord Diplock in Hughes v. Department of Health and Social Security (HL) 1985 AC 776 (788):
"Administrative policies may change with changing circumstances, including changes in the political complexion of governments. The liberty to make such changes is something that is inherent in our constitutional form of government."
(See in this connection Mr. Detail's article "Why Administrators should be bound by their policies" (Vol. 17) 1997 Oxford Journal of Legal Studies P. 23). But today the rigidity of the above decisions appears to have been somewhat relaxed to the extent of application of Wednesbury rule, whenever there is a change in policy and we shall be referring to those aspects presently.
17. Before we do so. we shall refer to some of the important decisions of this Court to find out the extent to which the principle of substantive legitimate expectation is accepted in our country. In Naujoyoti Co-op. Group Housing Society v. Union of India (1992 (4) SCC 477), the principle of procedural fairness was applied. In that case the seniority as per the existence list of co-operative housing societies for allotment of land was altered by subsequent decision. The previous policy was that the seniority amongst housing societies in regard to allotment of land was to be based on the date of registration of the society with the Registrar. But on 20-1-1990, the policy was changed by reckoning seniority as based upon the date of approval of the final list by the Registrar. This altered the existing seniority of the societies for allotment of land. This court held that the societies were entitled to a 'legitimate expectation' that the past consistent practice in the matter of allotment will be followed even if there was no right in private law for such allotment. The authority was not. entitled to defeat the legitimate expectation of the societies as per the previous seniority list without some overriding reason of public policy as to justify change in the criterion. No such overriding public interest was shown. According to the principle of 'legitimate expectation', if the authority proposed to defeat a person's legitimate expectation, it should afford him an opportunity to make a representation in the matter. Reference was made to Halsbury's Laws of England (p. 151. Vol. 1(1) (4th Ed. Re-issue) and to the CCSU case. It was held that the doctrine imposed, in essence, a duty on public authority to act fairly by taking into consideration all relevant factors, relating to such legitimate expectation. Within the contours of fair dealing, the reasonable opportunity to make representation against change of policy came in.
OA 3653/201218. The next case in which the principle of 'legitimate expectation' was considered is the case in Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries, (1993 (1) SCC 71). There the Food Corporation of India invited tenders for sale of stocks of damaged food grains and the respondent's bid was the highest. All tenderers were invited for negotiation, but the respondent did not raise his bide during negotiation while others did. The respondent filed a writ petition claiming that it had legitimate expectation of acceptance of its bid, which was the highest. The High Court allowed the writ petition. Reversing the judgment, this Court referred to CCSU case and to R. v. IRC ex P Preston (1985 AC 835). It was held that though the respondent's bid was the highest, still it had no right to have it accepted. No doubt, its tender could not be arbitrarily rejected, but if the Corporation reasonably felt that the amount offered by the respondent was inadequate as per the factors operating in the commercial field, the non acceptance of bid could not be faulted. The procedure of negotiation itself involved the giving due weight to the legitimate expectation of the highest bidder and this was sufficient.
19. This Court considered the question elaborately in Union of India and ors v. Hindustan Development Corporation and ors. (1993 (3) SCC 499). There tenders were called for supply of caststeel bogies to the railways. The three big manufacturers quoted less than the smaller manufacturers. The Railways then adopted a dual pricing policy giving counter offers at a lower rate to the bigger manufacturers who allegedly formed a cartel and a higher offer to others so as to enable a healthy competition. This was challenged by the three big manufacturers complaining that they were also entitled to a higher rate and a large number of bogies. This Court held that the change into a dual pricing policy was not vitiated and was based on 'rational and reasonable' grounds. In that context, reference was made to Halsbury's Laws of England (4th Ed.) (Vol. 1(I) P. 151). Schmidt v. Secretary to State for Home Affairs (1969 (2) Ch 149) which required an opportunity to be given to an alien if the leave given to him to stay in UK was being revoked before expiry of the time and to Attorney General of Hong Kong v. NgYuen Shiu (1983 (2) AC 629) which required the Government of Hong Kong to honour its undertaking to treat each deportation case on its merits, and CCSU's case (supra)which related to altera tion of conditions relating to membership of trade unions and the need to consult the unions in case of change of policy as was the practice in the past, and to Food Corporation of India's case (supra) and Navjyoti Co-op. Group Housing Society's case (supra). It was then observed that legitimate expectation was not the same thing as anticipation. It was also different from a mere wish to desire or hope: nor was It a claim or demand based on a right. A mere disappointment would not given rise to legal consequence. The position was indicated as follows :
"The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Such expectation should be justifiably legitimate and protectable."OA 3653/2012
After quoting Wade /Administrative Law (6th Ed.) (Pp. 424. 522) reference was also made to the judgment of the Australian High Court in Attorney General for New South Wales v. Quin (1990) 64 Aust LJR 327 in which the principle itself, according to Wade did not find acceptance. In that case a Stipendiary Magistrate incharge of a Court of Petty Sessions under the old court system was refused appointment to the system of local courts which replaced the previous system of petty Sessions Courts. In 1987, the Attorney General who was hitherto recommending former magistrates on the ground of 'fitness' for appointment to the new local courts, deviated from that policy and decided to go by assessment of merit of the competing applicants. The Court of Appeal had directed that the case of Mr. Quin must be considered separately and not in competition with other applicants, but it was reversed by the majority of the High Court of Australia (Mason. CJ. Brennan & Dawson. JJ.) (Deans and Toobey, JJ. dissenting). Mason, CJ held that the Court could not fetter the executive discretion to adopt a different policy which was better calculated to serve the administration of justice and make it more effective. The grant of substantive relief in such a case would effectively prevent the executive from giving effect to the new policy which it wished to pursue in relation to the appointment of magistrates. Brennan, J. observed very clearly that the notion of legitimate expectation (falling short of a legal right) was too nebulous to form a basis for invalidating the exercise of power. He said that such a principle would "set the courts adrift on a featureless sea of pragmatism." Dawson, J. held that the contention of the respondent exceeded the bound of procedural fairness and intruded upon the freedom of the executive. In Hindustan Development Corporation's case (supra) R. v. Secretary of State for the Home Department ex parte Ruddock (1987 2 All ER 518) and Findlay v. Secretary of State for the Home Department (1984) 3 All ER 801) and Breen u. Amalgamated Engineering Union (1971) 1 All ER 1148 uoere considered. It was accepted that the principle of legitimate expectation gave the applicant sufficient locus standi to seek judicial review and that the doctrine was confined mostly to a right to fair hearing before a decision which resulted in negativing a promise or withdrawing an undertaking, was taken. It did not involve any crystallized right. The protection of such legitimate expectation did not require the fulfilment of the expectation where an overriding public interest required otherwise. However. the burden lay on the decision maker to show such an overriding public interest. A case of substantive legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfil. The Court could interfere only if the decision taken by the authority was arbitrary, unreasonable or not taken in public interest. If it is established that a legitimate expectation has been improperly denied on the application of the above principles, the question of giving opportunity can arise if failure of justice is shown. The court must follow an objective method by which the decision making authority is given the full range of choice which the legislature is presumed to have intended. If the decision is reached fairly and objectively, it cannot be interfered with on the ground of procedural fairness. An example was given that if a renewal was given to an existing licence holder, a new applicant cannot claim OA 3653/2012 an opportunity based on natural justice. On facts. it was held that legitimate expectation was denied on the basis of reasonable considerations.
20. The next case in which the question was considered is Madras City Merchants' Association u. State of Tamil Nadu, 1994(5) SCC 509. In that case the rules relating to renewal of liquor licences were statutorily altered by repealing existing rules. It was held that the repeal being the result of a change in the. policy by legislation, the principle of non-arbitrariness was not invocable.
21. In M. P. Oil Extraction v. State of M.P. (1997 (7) SCC 592), the question was again considered. In that case, il was held that the State's policy to extend renewal of an agreement to selected industries which came to be located in Madhya Pradesh on invitation of State, as against other local industries was not arbitrary and the said selected industries had a legitimate expectation of renewal under renewal claims which should be given effect to according to past practice unless there was any special reasons not to adhere to the practice. It was clearly held that the principle of substantive legitimate expectation was accepted by the Court earlier. Reference was made to Food Corporation's case (supra). Navjoijti Co-op. Croup Housing Society's case (supra) and to Hindustan Development Corporation's case (supra)
22. Lastly we come to the three Judge judgment in National Building Construction Corporation v, S. Raghunathan & Others (7) SCC 66). This case has more relevance to the present case as it was also a service matter. The respondents were appointed in CPWD and they went on deputation to the NBCC in Iraq and they opted to draw, while on deputation. Their grade pay in CPWD plus deputation allowance. Besides that, the NBCC granted them Foreign Allowance at 125% of the basic pay. Mean-while their Basic Pay in CPWD was revised w.e.f. 1-1-1986 on the recommendation of the 4th Pay Commission. They contended that the abovesaid increase of 125% should be given by NBCC on their revised scales. This was not accepted by NBCC by orders dated 15-10-1990. The contention of the respondents based on legitimate expectation was rejected in view of the peculiar conditions under which NBCC was working in Iraq. It was observed that the doctrine of "legitimate expectation' had both substantive and procedural aspects. This court laid down a clear principle that claims on legitimate expectation required reliance on representation and resultant detriment in the same way as claims based on promissory estoppel. The principle was developed in the context of "reasona bleness' and in the context of natural justice'. Reference was made to IRC ExP. Preston's case (supra): Food Corporation's case (supra): Hindustan Development Corporation's case (supra); the Australian Case in Quin (1990) 64 Aust IJR 327; M.P. Oil Extraction's case (supra). CCSU's case (supra), and Naujoyti's case (supra).
23. On the facts of the case delineated above, the principle of legitimate expectation has no application. It has not been shown as to how any act was done by the authorities which created an impression that the conditions attached in the original appointment order were waived. Mere continuance does not imply OA 3653/2012 such waiver. No legitimate expectation can be founded on such unfounded impressions. It was not even indicated as to who, if any and with what authority created such impression. No waiver which would be against requisite compliances can be countenanced. Whether an expectation exists is self-evidently, a question of fact. Clear statutory words override any expectation, however, founded. (See Regina v. Director of Public Prosecutions. Exparte Kebilene and ors. (1999) 3 WLR 972 (H.L.).
24. The inevitable conclusion is that Division Bench judgment is on terra firma and needs no interference. However, one factor needs to be noted before we part with the case. The appellant has already put in 28 years of service, has participated in the provident fund, pension and gratuity schemes, and additionally she has applied for voluntary retirement. We hope that the Government would appropriately consider the prayers made by her for expending the benefits of the schemes and accepting the prayer for voluntary retirement in the proper perspective early, influenced by the dismissal of the appeal.
Also in Dr. Surinder Singh Jamwal and Another Vs. State of J and K and Others ( AIR 1996 SC 2775), it could be held that ad hoc appointment would be only temporary appointment de hors the rules pending regular recruitment without conferring any right to regularization of service. Paras 2 to 6 of the judgment read as under:-
2. The controversy raised in this case is squarely covered by the judgment of this Court reported in J. & K. Public Service Commission. Dr. Narinder Mohan, (1994) 2 SCC 630 : (1994 AIR SCW 1710). It is not in dispute that the appellants were recruited on ad hoc basis and have been continuing as such. It is their contention that since they had put in more than 13 years of service they are entitled to regularisation of service and approached the High Court for direction to regularise their services. The High Court has followed the ratio in the above judgment and dismissed the petition. In the light of the judgment of this Court the settled legal position now in that the recruitment to the service should be governed by the appropriate statutory rules. Under the rules the regular recruitment to the posts shall be made by the Public Service Commission. Consequently, the ad hoc appointments would be only temporary appointments dehors the rules, pending regular recruitment without conferring any right to regularisation of service. This Court in Narinder Mohan's case (1994 AIR SCW 1710) (supra) had given the following directions (Para 13) :
"Accordingly, we set aside the directions issued by the Division Bench of the High Court and confirm those of the single Judge and direct the State Government of the J & K. to notify the vacancies to the PSC which would process and complete the selection, as early as possible, within a period of six months from the date of the receipt of this order. The State Government should on receipt of the recommendation, OA 3653/2012 make appointments in the order mentioned in the selection list within a period of two months thereafter. Since the respondents have been continuing an ad hoc doctors, they shall continue till the regularly selected candidates are appointed. They are also entitles to apply for selection. In case any of the respondents are barred by age, the State Government is directed to consider the cases for necessary relaxation under Rule 9 (3) of the age qualification. If any of the respondents are not selected, the ad hoc appointment shall stand terminated with the appointment of the selected candidate. The direction sought for by Dr. Vinay Rampal cannot be given. His appeal is accordingly dismissed and the State appeal is also dismissed. The appeals of the PSC are accordingly allowed but in the circumstances parties are directed to bear their own costs."
3. Following the above directions, these shall be a direction to the State Government to notify the vacancies to the Public Service Commission within a period of two months from today. On notification so made, it would be open to the appellants to apply for regular recruitment. It would be for the PSC to consider the respective claims of the candidates who have applied for and to make necessary selection according to rules. On selection so made and recommendation made to the State Government, the State Government will make appointments as per rules within a period of two months from the date of the receipt of the list of the selection candidates from the PSC. The PSC is directed to complete the process of the selection within a period of three months from the date of the receipt of the requisition. The State Government after receipt of the lists shall make the necessary appointments in accordance with law. Till then the appellants would continue only on ad hoc basis till the regularly selected candidates are appointed.
4. It is obvious that the appellants have become barred by age for the direct recruitment. It would therefore, be necessary that the State Government would relax the necessary age qualification so as to enable them to apply for and seek recruitment through PSC.
5. The contesting respondents who have come on record have stated that the panel stands expired during the interregnums due to the order of suspension grated by this Court. Under these circumstances, the life of the panel is extended for the period during which the stay order is in operation.
6. The appeal is accordingly disposed of. No costs.
11. In Santosh Kumar Singh Vs. State of Uttar Pradesh (JT 1995 (9) SC 530), the Honble Supreme Court viewed that the initial ad hoc appointment of the applicant being not in accordance with the provisions of the Service Commission Act, he could acquire no right of regularization under the Regularization Ordinance. Even his subsequent OA 3653/2012 ad hoc appointment of 1985 did not confer upon him a right of regularization under the provisions of Section 31-C of the Service Commission Act. Para 15 of the judgment reads as under:-
15. So far as the last submission of Mr Sanghi is concerned, the same is based more on an humanitarian consideration than on establishing the right of the appellant. It is true that by now the appellant has become overage and it is true that the appellant served the institution from 1984 till 1988 and during his tenure the institution had cent per cent results. But in view of our conclusion that the appellant's initial ad hoc appointment was not in accordance with the provisions of the Service Commission Act and as such it did not confer any right of regularization under the Regularization Ordinance of 1985 and even the subsequent ad hoc appointment of 1985 did not confer a right of regularization under the provisions of Section 31-C of the Service Commission Act, as discussed earlier, it would not be possible for us to issue any direction in favour of the appellant. But since the appellant has got the Ph.D. degree now as stated by Mr Sanghi, appearing for the appellant and is otherwise eligible for being considered for the post of lecturer in Agronomy but for his overage, we would observe that in case he makes an application to the Director for being considered for a fresh appointment and there exists any vacancy in the post of lecturer of Agronomy either in the College in question or anywhere in the State, then Director may sympathetically consider the case of the appellant and Service Commission also may consider the case of the appellant in relaxation of the age-limit and after such consideration, if he is found suitable then he -may be appointed as a lecturer in Agronomy.
12. In Hindustan Shipyard Ltd and Others Vs. Dr. R.Sambasiva Rao, etc with Hindustan Shipyard Ltd Vs. Dr. S.Prasada Rao ( JT 1996 (2) SC 481), it could be held that the regularization of medical officer can be made only after being considered and found suitable for such appointment by duly constituted Selection Committee. Paras 9 to 13 of the judgment read as under:-
9. The submission of Shri Ram Kumar is that regular appointment on the post of Medical Officer can only be made through a process of selection by the Selection Committee in accordance with the aforementioned Rules and the High Court was in error in directing regularisation of all the three medical officers with effect from April 1, 1986 without their being required to undergo selection by the Selection Committee. On behalf of the respondents-medical officers, it has been urged that having regard to the fact that they had been working as medical officers for a number of years and there was no complaint about their performance during this period, the High Court was justified in OA 3653/2012 giving the direction for their regularisation with effect from April 1, 1986 and for payment of regular salary at par with other medical officers with effect from that date. It has also been submitted on behalf of the respondents-medical officers that after 1984 no regular selection has been made and the respondents-medical officers that after 1984 no regular selection selection has been made and the respondents-medical officers had no opportunity of being considered for regular selection by the Selection Committee and that in these circumstances the High Court has not committed any error in giving the direction regarding regularisation. The learned counsel for the respondents have placed reliance on the decisions of this Court in Dr. A. K. Jain v. Union of India, 1987 Supp SCC 497.
10. We are unable to endorse the direction given by the High Court regarding regularisation of the respondents-medical officers with effect from April 1, 1986. The process of regularisation involves regular appointment which can be done only in accordance with the prescribed procedure. Having regard to the rules which have been made by the appellant-corporation regular appointment on the post of medical officer can only be made after the duly constituted Selection Committee has found the person suitable for such appointment. Dr. P. Sambasiva Rao, though he had been working since 1976, was considered by the Selection Committee for regular appointment in the year 1981 and was not found suitable for such regular appointment. Dr. J. Sanjeeva Kumar and Dr. S. Prasada Rao were never considered by the Selection Committee for regular appointment. The fact that no regular selection has been made after their appointment on ad hoc basis does not mean that they are entitled to be regularised with effect from April 1, 1986. In view of the Rules prescribed by the appellant-corporation, regularisation of the respondent medical officers on the post of medical officer can be made only after they are considered and found suitable for such appointment by a duly constituted Selection Committee. As a result of the direction for regularisation given by the High Court, the requirement in the Rules regarding selection by a Selection committee for the purpose of regular appointment on the post of medical officer has been dispensed with. This, in our opinion, was impermissible.
11.The decision in Dr. A. K. Jain v. Union of India (1987 Supp SCC 497) (supra), on which reliance has been placed on behalf of the respondent-medical officers, does not lend any assistance to them. In that case it was directed that the regularisation of the Assistant Medical Officers/Assistant Divisional Medical Officers who were appointed on ad hoc basis upto October 1, 1984 shall be made in consultation with the Union Public Service Commission on the evaluation of their work and conduct on the basis of their confidential reports in respect of a period subsequent to October 1, 1982. In Dr. M.A. Haque v. Union of India, (1993) 2 SCC 213 : (1993 AIR SCW 784), this Court has deprecated the practice of by passing of the Public Service Commission which would open a back door for illegal recruitment without limit. The direction given by the High Court that the respondent-medical officers should be regularised with effect from April 1, 1986 cannot, therefore, be upheld. The only direction that can be given in the matter of regularisation is that the respondent-medical officers should be OA 3653/2012 considered by a duly constituted Selection Committee as per the Rules for the purpose of regular appointment on the post of medical officer and the appellant-corporation should constitute a Selection Committee for that purpose.
12. We are, however, not inclined to interfere with the direction given by the High Court for payment of regular pay scales to the respondent-medical officers with effect from April 1, 1986.
13. The appeals are accordingly allowed to the extent that the direction given by the High Court for regularisation of the respondent-medical officers with effect from April 1, 1986 is set aside. The appellant-corporation is directed to constitute a Selection committee in accordance with the relevant Rules for considering the matter of regularisation of the respondent-medical officers on the post of medical officer. The said Selection Committee shall consider the claim of the respondent-medical officers for such regularisation by applying the criteria laid down for appointment of medical officers on regular basis and it shall also take into account the record of performance of the respondent-medical officers while they were working on ad hoc basis with the appellant-corporation. In case, the respondent-medical officers are found to have crossed the age bar for regular appointment a relaxation should be made in that regard to enable them to be considered for regularisation. This process of selection by the Selection Committee for purpose of regularisation of the respondent-medical officers shall be undertaken and completed within a period of three months. No orders as to costs.
In view of the aforementioned judgments of Honble Supreme Court, it is stare decisis that mere continuation in service on ad hoc/ casual or contract basis would not confer any right upon a person for regularization or absorption, unless such appointment of duly qualified person is made against duly sanctioned vacant posts and the appointee continues to work for 10 years or more without the intervention of order of the Court or Tribunal. Even such benefit could also be given only as one time relaxation.
13. As far as the issue regarding interference by the Court or Tribunal with the assessment or recommendation made by the duly constituted selection Committee is concerned, we are in agreement with the stand taken by the UPSC in its counter reply (ibid) i.e. the evaluation made by an expert Committee should not be easily interfered with by the Courts which do not have the necessary expertise to undertake the exercise that OA 3653/2012 is necessary for such purpose. It is not the function of the Court to hear appeals over the decisions of the Selection Committee and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. Normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory rules. The Courts cannot sit as an appellate authority to examine the recommendations of the Selection Committee like the Court of appeal.
14. As far as other propositions arises to be determined by us are concerned, the same are embodied in the facts of the present case. As has been viewed by the Honble Supreme Court in S. Narayana Vs. Md. Ahmedulla Khan & Ors ( 2006) 10 SC 84), regularization is not one of the mode of recruitment and is only a term introduced to condone any procedural irregularity and is meant to cure only such defects as are attributable to the methodology followed in making the appointment. Paras 16 to 18 of the judgment read as under:-
16. Counsel drew our attention to the judgment of this Court in B.N. Nagarajan v. State of Karnataka (1979) 4 SCC 507.) (hereinafter "Nagarajan"). This Court in categorical terms rejected the ar-gument that regularisation and permanence and confirmation meant the same thing. Re-iterating the observations made in State of (air 1967 sc 10711 Mysore v. S.V. Narayanappa, (1967) 1 SCR 128 at p. 132.) and R.N. Nanjundappa v. T.Thimmiah (1972) 2 SCR 799 at p. 810.), this Court in (air 1972sc 17671 Nagarajan (supra) observed.
"Firstly, the words "regular" or "regularisa-tion", do not connote permanence. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to the meth-odology followed in making the appointments. They cannot be construed so as to convey ad idea of the nature of tenure of the appointements." (1979) 4 SCC 507 at p. 514 (paragraph 23). It was also observed: "... when rules framed under Article 309 of OA 3653/2012 the Constitu-tion of India are in force, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 thereof in contravention of the rules." Ibid at p. 514 (paragraph 25).
17. Closure on this issue must surely be attained after the recent judgment of a Con-stitution Bench of this Court in Secretary, State of Karnataka v. Umadevi (2006) 4 SCC 1.) After reviewing the cases that sew 1991, we have already adverted to, especially Nagarajan (supra), the Constitution Bench declared:
".......The words "regular" or "regularisa-tion" do not connote permanence and can-not be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any proce-dural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appoint-ments. This court emphasised that when rules framed under Article 309 of the Constitution of India are in force, no regularisation is permissible in exercise of the executive powers of the Government un-der Article 162 of the Constitution in con-travention of the rules. These decisions and the principles recognised therein have been dissented to by this Court and on prin-ciple, we see no reason not to accept the proposition as enunciated in the above de-cisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised and that it alone can be regularised and granting permanence of employment is a totally different concept and cannot be equated with regularisation." (2006) 4 SCC 1.) *
18. The learned counsel for the appellant also urged that the High Court had mis-' understood the concept of a lien on a post. I He contended, and rightly in our view, that ' there was nothing like lien on a post, un-less a person was made permanent in a post. Strong reliance was placed on the observations of this Court in Triveni sew no. Shankar Saxena v. State of U.P, (1992) Supp 1 SCC 524.) wherein after examining the con-cept of lien in Government service, it was observed: .....a person can be said to ac-quire a lien on a post only when he has been confirmed and made permanent on that post and not earlier, (1992) Supp 1 SCC 524. at p. 531 (paragraph 24), quoting from : M. P. Tewari v. Union of India, 1974 All LJ 427. with which view, we are in agreement. OA 3653/2012 In the present case, as can be seen from the Cabinet Note dated 13.11.2006 (Annexure A-2 to rejoinder affidavit) filed on behalf of applicants (pages 257 to 290 of the paper book), having noticed the judgment of Honble Supreme Court in State of Karnataka and Others Vs. Uma Devi and Ors (supra), the concerned Ministry suggested that the case of the contractual appointment of the applicants has to be appreciated in the light of the difficulty emerged due to non-encadrement of the newly created posts by the Ministry of Health and Family Welfare and also because of the observations of the Prime Minister Office quoted in D.O.letter No. C/18011/1/97-CHS/III (Pt.) dated 10th May 1999. In the said note, it is emphasized that it was not the case that appointment of the applicants was resorted to de hors the rules but it was a fall out of the decision of the competent authority not to include a group of posts in an organized service known as Central Health Services. For easy reference, relevant excerpts of the note placed on record by the applicants, are extracted hereinbelow:-
7.In a recent decision of the Honble Supreme Court in the State of Karnataka and Others Vs. Uma Devi and others, Civil (Appeal) No.35953612 of 1999, the Honble Supreme Court has held that the contract employees have no right to regularization in service-length of service rendered as a contract employees notwithstanding-because their appointment per se is de hors the statutory scheme for making appointment to the public posts. However, the Department of Health & Family Welfare is of the view that the case of contract doctors has to be appreciated in the light of difficulties that had emerged due to non-encadrement of the newly created posts by the Ministry of Heath & Family Welfare and also because of the observations of the Prime Minister Office quoted in the D.O. letter No.C/18011/1/97-CHS/III (Pt.) dated 10th May 1999 of Smt. Renu Sahni Dhar, then Joint Secretary in the Ministry of Health & Family Welfare (Annexure-B). It is not the case that appointments were resorted to de hors the rules but one of the competent authority taking a decision not to include a group of posts in an organized service known as Central Health Services. The Honble Lt. Governor of the NCT of Delhi is empowered to make appointment to such posts albeit after seeking selection/recommendations from the Commission. Further, a requisition to fill vacancies in an organized service can be sent to the Commission only by the Cadre Controlling Authority was constrained to send requisition to the Commission. For similar reasons, the Government of NCT of Delhi also could not approach OA 3653/2012 the Commission to fill the newly created posts. This is evident from the fact that the Union Public Service Commission after lengthy consultation has agreed to treat this group of posts as a separate group of posts and agreed to fill the posts under one time exemption on the basis of mode of recruitment indicated by it. Thus, ex-facie it is the stand of the user Department, i.e. Govt. of NCT of Delhi that initial appointment of the applicants on contract basis was not de hors the rules. The stand was authenticated by incorporation of Rule 6 (2) in Delhi Health Services (Allopathy) Rules, 2009 providing that all officers appointed on contract/ ad hoc basis on or before 18.12.2006, i.e. the date of issue of the Govt. of Delhi OM F.70/49/2006/H&FW dated 18.12.2006, on the basis of their suitability, as assessed by the Commission and requisite educational qualification and experience prescribed for the post and being found fit shall be deemed to have been appointed in accordance with the rules and assigned to the sub cadre of non-teaching specialist and would be treated as member of the service. In view of the aforementioned provision incorporated in the RRs notified under Article 309 of the Constitution of India, the case of the applicants for the regularization of their services was taken up with the UPSC. In its letter dated 08.02.2012, UPSC indicated that the complete ACRs of the candidates in the prescribed form upto the relevant date, i .e. 18.12.2006 was one of the vital inputs for assessment of their suitability of regularization. For easy reference, said letter is extracted hereinbelow:
I am directed to refer to your letter No.F.76/49/2006/H&FW/Vol.IV/119 dated 09.01.2012 on the subject cited above and to state that as the complete ACRs in the prescribed form upto the prescribed date i.e. 18.12.2006, are not available in respect of any candidate appointed on contract basis, which is one of the vital inputs for assessment of suitability for regularization the commission have taken a decision that in order to maintain greater fairness and transparency, the assessment of all the doctors appointed on contract basis, who possess the Educational Qualification as per recruitment rules, shall be made by subjecting them to a qualifying written test followed by personal talk.OA 3653/2012
2. In the meantime, the Department is requested to furnish clear decision of the Government in regard to eligibility with reference to the Educational Qualification in respect of Dr. Shipra Rampal, Dr. Amit Sharma and Dr. Navneet Kumar Goel as also candidature of Ms. Radha Dubey for consideration for regularization. Dr. Radha Dubeys services were terminated vide order dated 27.11.2007 on account of unauthorized absence and later she has been taken back in service on contract basis w.e.f. 16.08.2010 subject to final outcome of the SLP (Civil) Nos. 23809-23810. Finally, the applicants as well as such other persons who had been working in DHS as Jr. Specialists and GDMOs on contract basis were invited for personal talk with the duly constituted Committee. In our view, the said Committee could be called as selection Committee only if, in order to fill up the available vacancies, candidates from open market could be invited. Since only such candidates who were in the employment of DHS on contract basis as on 18.12.2006 were called for personal talk, the Committee may more appropriately be called as regularization Committee. Though in view of settled position of law, there is no scope for regularization of those initially appointed on contract basis and the only equitable view that can be taken in favour of such persons is that they may be considered for their regular appointment in the ensuing selection in accordance with the rules along with other eligible candidates, but in the present case, in the proposal of creation of Delhi Health Services (Allopathy) Rules, 2009 itself it was emphasized that the initial appointment of the applicants was not de hors the rules. In the backdrop of such proposal, as an unusual instance, the competent authority made a provision in the recruitment itself for regularization of those Jr. Specialists/GDMOs who were employed on contract basis on or before 18.12.2006. In the counter reply filed on behalf of respondent Nos. 1 to 6, in the proposal for the formation of new service i.e. Delhi Health Services for managing the health delivery system in the NCT of Delhi, it OA 3653/2012 is sufficiently indicated and emphasized that the initial appointment of the applicants was against sanctioned posts. For easy reference, para 2 of the proposal is extracted hereinbelow:
As on date the Government of NCT of Delhi has 1174 sanctioned posts of General Duty Medical Officers (GDMOs), 410 Non-Teaching Specialist, 349 Teaching Specialist and 04 Public Health Specialists as against which 438 posts of General Duty Medical Officers and 242 posts of Non-Teaching Specialist are being operated as ex-cadre posts. In accordance with the suggestions of Ministry of Health & Family Welfare, contract appointment have been made against 418 posts of General Duty Medical Officers and 252 posts of Non-Teaching Specialists. Also in the reply filed on behalf of respondents No. 1 to 6, there is a penumbra and dim fringe that the assessment of suitability of the applicants was for regularization of their services and not for regular appointment. For easy reference, relevant excerpts of the reply are extracted hereinbelow:-
A letter N.F.1/31 (17)/2012-AP-2 dated 29th August, 2012 was received in this Department from the UPSC in reference to this Department letter dated 05.07.2012, wherein it was intimated that the request of the Department for re-constituting Departmental Assessment Board meeting to re-assess the suitability of 6 Non teaching specialists was placed before the Commission who observed that the suitability of the doctors for regularization of their service under initial constitution as provided under Rule 6 (2) of the said Rules, 2009 was assessed by the duly constituted Assessment Boards consisting of experts from respective disciplines on the basis of the bio-data and their performance in the personal talk. The Commission conveyed that the request of the department for reconstitute Department Assessment Board cannot be acceded to as the Department had not made out any fresh and justifiable grounds warranting to reconstitute the Assessment Board (Annexure-6).
In views of above mentioned facts, the allegations leveled by the applicants are false and accordingly denied. An appointment could be called as regular appointment only if in the relevant RRs, a provision could be made for such appointment by prescribing requisite qualification/experience and other eligibility conditions and all those fulfilling such conditions could be considered for OA 3653/2012 their appointment. In the present case it was not so. What has been provided in Rule 5 and 6 (2) of the RRs is that all officers appointed on contract/ad hoc basis on or before 18.12.2006 were to be assessed for being found fit to be considered as deemed to have been appointed under the Rules. At the cost of repetition, Rule 6 is extracted hereinbelow:-
6. Initial constitution of the Service.
(1) All the officers appointed under the Central Health Service Rules, 1996, who are working in the Government of NCT of Delhi as on the date of publication of these rules in the official gazette and who opt to be part of this service shall be deemed to have been appointed under these rules and they shall be members of the service in the respective grades.
(2) All officers appointed on contract basis/ad-hoc basis on or before 18th December, 2006, i.e. the date of issue of the Government of Delhi O.M.No.F.70/4/2006/H&FW/SSHFW/463-475 dated 18th December, 2006, on the basis of their suitability as assessed by the Commission and requisite educational qualifications and experience prescribed for the post and being found fit, shall be deemed to have been appointed under these Rules and assigned to the sub-cadre of General Duty Medical Officers or Non-teaching Specialists, as the case may be, and they shall be members of the service at the entry level of the respective sub-cadre at the initial constitution stage. No regular appointment in accordance with Rules needs to be deemed as regular appointment as the appointments are in fact regular appointments. An act or event is deemed when the same has not actually happened but is considered so by legal fiction. Thus the assessment of the applicants in terms of Rule 6 (2) (ibid) for being treated as member of DHS (Allopathy) Rules, 2009 was not in fact a selection for regular appointment but was only a consideration for regularization. As has been discussed in detail by the Honble Supreme Court in Secretary, State of Karnataka Vs. Uma Devi (supra) and also in S. Narayana Vs Md. Ahmedulla Khan and Ors (supra), regularization is not a mode of appointment but is only a modality to condone the irregularity. The right to recruitment by way of regularization, if at all accrues to an employee, is earned only on the basis of length of service rendered on OA 3653/2012 contractual/casual/adhoc basis. Such view is also acknowledged by the Honble Supreme Court in Secretary, State of Karnataka Vs. Uma Devi. Para-53 of the judgment reads as under:-
53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
Thus when we talk of regularization, due credence needs to be given to experience. Even in Rule 6 (2) (ibid) also it has been emphasized that the suitability of the officers appointed on contract/ ad hoc basis was to be assessed by the Commission and due credence was to be given to experience. In fact, the assessment for regularization was to be based on (i) suitability adjudged by the Commission; (ii) requisite educational qualification; and (iii) experience. All the three elements were to be given substantial credence. In the present case, as can be seen from the record, marks have been awarded to bio data and performance in personal talk and no separate marks are allocated to experience. Ignorance of experience in consideration of applicants for their regularization can even be considered as deviation from Rule 6 (2) (ibid). However, as has been viewed hereinabove, the regularization in itself is OA 3653/2012 in relaxation and condonation of the rules, thus mere disregard of a segment of methodology evolved for regularization of irregular act may not be found basis to declare the entire process of regularization of irregularity as irregular or illegal. Nevertheless, those who are denied benefit of the scheme of regularization mentioned in the RRs itself may be declared entitled to such benefit. Thus, we are of the considered view that in view of the specific provision in this regard in Rule 6 (2), the regularization was to be based on suitability adjudged by the duly constituted Committee, experience and requisite educational qualification, due credence ought to have been given to the experience of the applicants in the process of their regularization. Though the 50 marks allocated to bio data could be further bifurcated in the manner that 10 marks were assigned to additional academic qualification, professional training and work experience over and above required experience, but the assignment of only 3 = marks to experience over and above the required experience cannot be considered sufficient in a case where it is not the regular appointment but regularization of such persons who are employed on contract basis or on before a particular date. Such factors need to be reexamined by the Selection Committee. Ex-facie, no weightage has been given by the Department Assessment Board to the record of performance of the candidates, during contractual service. As has been emphasized by the Honble Supreme Court in Hindustan Shipyard Ltd and Ors Vs. Dr.P.Sambasiya Rao etc. (supra), in the process of regularization, the selection Committee should consider the claim of ad hoc/contractual appointee for regularization by taking into account the record of their performance, while they were working on contract basis. At the cost of repetition, para 13 of the judgment is extracted as under:-
OA 3653/201213. The appeals are accordingly allowed to the extent that the direction given by the High Court for regularisation of the respondent-medical officers with effect from April 1, 1986 is set aside. The appellant-corporation is directed to constitute a Selection committee in accordance with the relevant Rules for considering the matter of regularisation of the respondent-medical officers on the post of medical officer. The said Selection Committee shall consider the claim of the respondent-medical officers for such regularisation by applying the criteria laid down for appointment of medical officers on regular basis and it shall also take into account the record of performance of the respondent-medical officers while they were working on ad hoc basis with the appellant-corporation. In case, the respondent-medical officers are found to have crossed the age bar for regular appointment a relaxation should be made in that regard to enable them to be considered for regularisation. This process of selection by the Selection Committee for purpose of regularisation of the respondent-medical officers shall be undertaken and completed within a period of three months. No orders as to costs. .
In the circumstances, we are of the view that apparently the process of regular appointment of the applicants being regularization, due credence should have been given to their experience, work/performance and conduct. The information made available by UPSC to Ms. Aishwarya Bhati, counsel for few applicants vide communication dated 7.09.2004 reads thus:-
No specific parameters fixed in Personal Talk are available on record. However, the assessment of the officers in Personal Talk was decided on the basis of performance in interaction with the officers by the Assessment Boards which include subject Experts. It is thus clear that the assessment of the applicants in personal talk was on the basis of performance in interaction with the officers. Strictly speaking, personal talk in which the applicants participated was not even an interview. The meaning of the term interaction as given in Oxford concise English dictionary is reciprocal action or influence (communication, conduct, interface, dealings, relations). In such process, the Departmental Assessment Board could very well give opportunity to applicants to refer to their work and conduct of past experience as contractual Junior Specialists/GDMOs, as the case may be.OA 3653/2012
15. In view of the aforementioned, OA is disposed of with direction to respondents to assess the candidature of the applicants once again for their regularization keeping in view the record of their performance in DHS as contractual employee, including their experience. Such elements would be given due weightage in interaction or otherwise. Needful should be done as expeditiously as possible preferably within a period of three months from the date of receipt of a copy of this order. Till then contractual appointment of the applicants may not be discontinued. No costs ( A.K.Bhardwaj) ( Manjulika Gautam) Member (J) Member (A) sk