Gujarat High Court
Kirtibhai Lavjibhai Parmar vs Union Of India on 26 July, 2022
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5956 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 6835 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 6989 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 7119 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 16990 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
==========================================================
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
KIRTIBHAI LAVJIBHAI PARMAR
Versus
UNION OF INDIA
==========================================================
Appearance:
MR ASHISH B DESAI(5163) for the Petitioner(s) No. 1 IN SCA NO.5956 OF
2021
MR NISARG TRIVEDI WITH MS ANUGYA JAIN for the Petitioner(s) No.1 IN
SCA NOS. 6835 AND 6989 OF 2021
MR ANIL C THAKORE WITH MR CHANDRAKANT J PATEL for the
Petitioner(s) No.1 in SCA NOS. 7119 & 16990 OF 2021
MR DG SHUKLA(1998) for the Respondent(s) No. 2,3,4
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C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022
MR HARSHEEL D SHUKLA(6158) for the Respondent(s) No. 2,3,4
NOTICE UNSERVED for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 25-26/07/2022
COMMON ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI) Rule. Learned advocate Mr. Shukla, waives service of notice of rule on behalf of the respondent Nos. 2 to 4.
1. All these three petitions contain similar question of fact and law and therefore, being decided by the common judgment.
2. The facts are drawn from the Special Civil Application No. 5956 of 2021 for the purpose of adjudication.
3. These are the petitions preferred under Article 226 of the Constitution of India challenging the order dated 24.9.2020 in Original Application No. 396 of 2019 by Central Administrative Tribunal, Ahmadabad ("CAT" for short). The Tribunal rejected the petition for issuance of direction against the letter of National Institute of Design dated 11.7.2019, whereby the petitioner is terminated Page 2 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 with effect from 30.9.2019 without affording any opportunity of representation to the petitioner in the following factual background.
3.1 The respondent No.1 published an advertisement, inviting for "Recruitment of Project Executives for NID-
MSME Design Clinic Scheme" on 5.7.2010. The respondent No.1 had designed the project executives for assisting the project head in various implementation activities of the project. The preference was to the post graduates of MBA / graduates in Engineering having 2 to 3 years experience in marketing field and those who have willing to travel extensively for project work. The petitioner applied for the said recruitment and his interview was conducted on 22.7.2010 and 23.7.2010 at Design Clinic Scheme for MSMEs, National Institute of India, Paldi.
3.2 The selection was made and appointment letter also was received on 27.7.2010. That also gives the details of the tasks and the responsibility as well as his Page 3 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 remuneration etc. 3.3 This appointment for a fixed term initially had been extended on 14.2.2011 for a further period of 6 months from 27.1.2011 on the same terms and conditions, as specified in the appointment letter. By different letters till 30.9.2014, such extension claimed and the pay scale also was increased of the petitioner. The petitioner has been paid all the benefits, as were being paid to the regular employee.
3.4 It is averred by the petitioner that on 28.10.2014, further extension has been received and his salary also had been increased and he was re-designated as Project Officer for the period of one year starting from 1.10.2014.
The contract was extended again on 31.3.2016 with further increase in the pay. All benefits were also paid as were been paid to the regular employee.
3.5 The promotion also was given to him on 3.11.2016 to the post of Project Officer and this was for the period of 3 Page 4 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 years from 1.4.2016. He was given along with the appointment letter on 18.11.2016, the general service rules which has no clause for termination and appeal thereof. In short it is a case of the petitioner that his service had continued for the past 9 years and two months with N.I.D. where he had been given the pay as per the pay slip which included the benefit of contribution provident fund, dearness allowance, house rent allowance, food grain allowance and also the benefit of 7 th pay commission as given to the regularly appointed persons for similar work.
3.6 It is a say of the petitioner that he had agreed to be in different departments and inter department transfer had also happened within the main campus.
3.7 However, to the shock and dismay of the petitioner, as averred, his appointment was terminated giving the reason that DCS-MSME project had been concluded w.e.f.
30.9.2019.
Page 5 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 3.8 The appeal came to be filed to the Director, as per clause 4.13 of the Service Rules Regulations and Delegation of Administrative and Financial Powers of NID, Paldi.
3.9 Reminder also was sent for the appeal and the representation made to the Director. A communication was sent to the Standing Committee of the Governing Council. Neither the Director nor Standing Committee of the Government Council had replied. Therefore, the petitioner had approached the Central Administrative Tribunal by preferring the Original Application No. 396 of 2019. After availing opportunities to both the sides, the application of the petitioner has been rejected.
3.10 This is a serious grievance on the part of the petitioner. According to him, this is violative of equality principle and amounts to serious discrimination against the same class of employees, whose work conditions and all other benefits are same.
Page 6 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 3.11 It is further say of the petitioner that in case of Shri Vimal Nair, whose service also periodically extended has been regularized, which is indicative of the fact that the things were happening at the whims and fancies of the respondent authorities. He has also averred that the respondents' action of regularizing one Purander Dutta in 2016, who was also appointed without any advertisement and working with the petitioner in the very project till 2016 is, an action which has ex-facie discriminatory and bad in law.
3.12 Therefore, the urge is made for quashing and setting aside the order of the CAT dated 24.9.2020 in Original Application No. 396 of 2019 with a further request to quash and set aside the communication dated 11.7.2019 and to reinstate the petitioner with full backwages.
3.13 Upon issuance of notice, on behalf of the respondent Nos. 2 to 4, the Registrar of the institute - NID has filed affidavit-in-reply. The respondent No.3 is the Director / Chairman and respondent No. 4 is the Secretary and Page 7 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 Head, General Administration of the respondent institute.
3.14 All averments are denied emphatically. The maintainability of the petition also has been questioned.
Another grievance raised is that the petitioner has not joined all the candidates against whom, the allegations of favoritism are made. There are highly disputed questions of facts involved in the petitions and therefore, they cannot be decided by way of an affidavit.
3.15 It is say of the Registrar that the institute is one of the multi disciplinary institute in the field of Design Education and Research and it functions as an autonomous body under the Department of Promotion of Industry and Internal Trade, Ministry of Commerce and Industry, Government of India. It has been declared as an "Institution of National Importance" by the Act of parliament by virtue of National Institutes Designs Act, 2014. This institute undertakes several projects on behalf of the Government, Semi-Government and private entities at national and international level. The respondent Page 8 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 institute also recruited some employees through advertisement specifically for a particular project called MSME Design Clinic Scheme, funded by the Ministry of MSME and the object of the project was to provide support and design expertise and design awareness as a remedial solution for creating a competitive advantage of the Country and for improving the competitiveness. It is a single coordinating body/nodal agency for implementation of the Design for clinic scheme for increasing the manufacturing competitiveness of micro and small enterprises across the Country. Its aim is to reach out to MSMEs by providing hand holding support, designed expertise and financial assistant through various activities. It is specifically contended that since the project was closed w.e.f. 31.7.2019 by the Central Government, termination has come. The advertisement itself has been quite clear that the appointment was purely on a contractual basis and not on a regular or sanctioned posts.
3.16 It is undisputed that the appointment of the Page 9 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 petitioner was vide letter of appointment dated 29.7.2010 as Project Executive for a period of 3 months for the MSME Design Clinic Schemes Project. It is clearly mentioned therein that this is a project based contract appointment and it does not establish any relationship of the employer and employee between the institute and the petitioner. He would also have no right to claim permanency and unless extended, the relationship would come to an end. There was no appointment on the sanctioned posts and as per the policy of the institute, he was paid the pay-scale.
3.17 The averments with regard to making some other persons permanent, it is specific case of the respondent that they were made permanent on regular sanctioned posts of the institute through separate advertisement and separate recruitment/selection process and only on need base, they were attached to MSME-DCS project and they were neither appointed under MSME-DCS project nor through its advertisement and selection process. Relying on various decisions of the Apex Court, it is urged that Page 10 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 the project based appointment is purely contractual appointment and its termination cannot be questioned before the Court of law and even if challenge to the order of the CAT is not to be interfered with. An Affidavit-in-
Rejoinder is filed by the petitioner which may not require any further dilation.
4. We have heard extensively learned advocate Mr. Ashish B. Desai for the petitioner in Special Civil Application No.5956 of 2021, Mr. Nisarg Trivedi with Ms. Anugya Jain for the petitioner in Special Civil Application No.6835 and 6989 of 2021, learned advocates Mr. Anil C. Thakor with Mr. Chandrakant J. Patel for the petitioner in Special Civil Application No.7119 of 2021 and Special Civil Application No.16990 of 2021 and learned advocate Mr. D.G. Shukla, for the respondent Nos. 2 to 4 in all the petitions. Along the line of the memo of the petitions, they have argued extensively and urged this Court that the CAT has not appreciated the factual matrix and also the law point on the subject. The practice adopted by the respondent also being discriminated warrants Page 11 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 interference.
5. Following are the decisions, which are sought to be relied upon;
Secretary, State of Karnataka & Ors vs. Umadevi & Ors, (2006) 4 SCC 1 Dharwad Distt. P.W.D. vs. State of Karntaka and others reported in 1990 (2) SCC 396 State of Karnataka and others vs. M.L. Kesari and others reported in (2010) 9 SCC 247 Yogesh Mahajan vs. Professor R.c. Deka, Director, All India Institute of Medical Science reported in (2018) 3 SCC 218
6. Per contra, learned advocate Mr. D.G. Shukla appearing for the N.I.D. has earnestly urged this Court that if there is any appointment made on a contractual basis without any sanctioned post, no person can insist on being continued on the same. Those, who had been allowed to be made permanent, though they were appointed against some other posts, they were the Page 12 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 sanctioned posts and, hence, both cannot be equated.
N.I.D. being a premiere institute, there is no reason for it to discriminate. So long as there was requirement under the different projects, the hiring had been done. It is not being disputed that from time to time, there had been an extension of term, but, on every occasion such procedure has been transparent and hence, he has urged that the decisions of the Apex Court rendered in case of Umadevi (Supra) shall need to be borne in mind while considering the order of the CAT.
7. At the outset, we have considered the order of CAT, which has impugned in the present petitions, where the Tribunal has taken note of the fact that the Project Executives / Project Officers namely Ravinder Jumani, Vijith Kurian, Ankita Gajjar, Purandar Datta and Mr. Vimal Nair were appointed against the sanctioned posts and they were temporarily deputed for MSME project, whereas the present petitioner was appointed on contractual basis for fixed tenure under the MSME project and not against any sanctioned post. On the Page 13 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 ground that the petitioner's engagement as Project Officer was for a limited purpose and not against the sanctioned post, the prefix tenure can be at the best extended till the completion of MSME project. He had been communicated of completion of the project and no further possibility of any extension.
8. The Tribunal held in certain terms that in grant of extension from time to time of his temporary engagement and even allowing the salary and allowances, at part with regular employees would not allow his continuation even after completion of MSME project, in absence of any grant of right flowing from any particular statute or rules.
9. It also further noted that there is a total satisfaction recorded by the respondent with regard to the skill and work of the petitioner. Therefore, suggesting the possibility of engaging them for the future project, it has not entertained the petition. While so doing, the reference has also made of decision of the Apex Court rendered in case of Umadevi (supra) .
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10. Before the Apex Court, the respondents were temporarily engaged, as daily wagers in the commercial taxes department in some of the districts of State of Karnataka, who claimed that they worked in the department for more than 10 years and therefore, they were entitled to be made permanent employees of the department and were also entitled to all the benefits of the department of regular employees. They were engaged for the first time in the years 1985 / 1986 and though the Director of commercial taxes recommended their absorption, the government did not exceed to such recommendation and therefore, they approached administrative tribunal in the year 1997 and the Tribunal rejected their claim. The respondents therefore, approached the High Court of Karnataka, challenging the decision of the administrative tribunal. The High Court allowed the petitions and ordered that they were entitled to wages equal to the salary and allowances that were being paid to the regular employees of their cadre in Page 15 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 government services, with effect from the date from which, they were respectively appointed. The High Court also issued a command to the State to consider their cases for regularization within a period of four months. A scheme was framed pursuant to such directions and they were appointed entitling them for regularization from the very inception. This had opened Pandora's box and many other who were casually engaged and the daily rated workers, approached the High Court with writ petitions under Article 226, seeking a direction for regularization of all the daily wagers, engaged by the government of Karnataka and its local bodies. Learned Single Judge disposed of the writ petitions by granting permission to the petitioners to approach their employers for absorption and regularization of their services by making appropriate representations.
11. The State of Karnataka filed appeals against the decision of the learned Single Judge and Division Bench allowed the appeals holding that these employees were not entitled to the benefit of scheme framed by the Court Page 16 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 in Dharwad Distt. P.W.D. (supra) case. Aggrieved by this decision the members of the association filed the appeal before the Apex Court. The reference was made before the Court of the decision rendered in case of Secretary, State of Karnataka vs. Umadevi (1). The Apex Court had noticed in the matter of regularization of adhoc employees that there were conflicting decisions by three Judge Benche and by two Judge Benche and hence, the question was required to be considered by a larger bench. The three Judge Bench was of the opinion that the constitution bench was needed to be formed for considering the issue, touching the larger interest and hence, the constitution bench decided this matter, whereby the Court held that the wide powers under Article 226 are not intended to be used for issuance of such directions as, that would surely to defeat the concept of social justice, equal opportunity for all and the constitution scheme of public employment. The Apex Court also further held that it is required not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. As equity cannot be Page 17 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 for the handful of people, who have approached the Court with a claim by ignoring the equity for the teeming millions seeking employment in a fair opportunity for competing for employment. The Court also must be careful in ensuring that they do not interfere unduly with the economic / financial arrangement of the affairs of the State or its instrumentalities. Some of the findings and observations of the Court, profitably are required to be reproduced, which are as follow;
"26. With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent
-- the distinction between regularization and making permanent, was not emphasized here -- can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in paragraph 50 of Piara Singh (supra) are to some extent inconsistent with the conclusion in paragraph 45 therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognized in the earlier part of the decision. Really, it cannot be said Page 18 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent.
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 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 Page 19 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 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.
28. In Director, Institute of Management Development, U.P. Vs. Pushpa Srivastava this Court held that since the appointment was on purely contractual and ad hoc basis on consolidated pay for a fixed period and terminable without notice, when the appointment came to an end by efflux of time, the appointee had 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. A limited relief of directing that the appointee be permitted on sympathetic consideration to be continued in service till the end of the concerned calendar year was issued. This Court noticed that when the appointment was purely on ad hoc and contractual basis for a limited period, on the expiry of the period, the right to remain in the post came to an end. This Court stated that the view they were taking was the only view possible and set aside the judgment of the High Court which had given relief to the appointee.
29. In Madhyamik Shiksha Parishad, U.P. Vs. Anil Kumar Mishra a three judge bench of this Court held that ad Page 20 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 hoc appointees/temporary employees engaged on ad hoc basis and paid on piece-rate basis for certain clerical work and discontinued on completion of their task, were not entitled to reinstatement or regularization of their services even if their working period ranged from one to two years. This decision indicates that if the engagement was made in a particular work or in connection with particular project, on completion of that work or of that project, those who were temporarily engaged or employed in that work or project could not claim any right to continue in service and the High Court cannot direct that they be continued or absorbed elsewhere.
30. In State of Himachal Pradesh Vs. Suresh Kumar Verma a three Judge Bench of this Court held that a person appointed on daily wage basis was not an appointee to a post according to Rules. On his termination, on the project employing him coming to an end, the Court could not issue a direction to re-engage him in any other work or appoint him against existing vacancies. This Court said: (SCC p.563, para2) "It is settled law that having made rules of recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of the candidates made as per recruitment rules and appointments shall be made accordingly. From the date of discharging the duties attached to the post the incumbent becomes a member of the services. Appointment on daily wage basis is not an appointment to a post according to the Rules."Page 21 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022
C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 Their Lordships cautioned that if directions are given to re-engage such persons in any other work or appoint them against existing vacancies, "the judicial process would become another mode of recruitment dehors the rules."
31. In Ashwani Kumar and others Vs. State of Bihar this Court was considering the validity of confirmation of the irregularly employed. It was stated: (SCC p.17. para 13) "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 : (SCC pp.18-19, para 14) "14. 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 Page 22 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 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 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 Page 23 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 established rules and regulations governing such recruitment."
32. The Court noticed that in that case all constitutional requirements were thrown to the wind while making the appointments. It was stated: (SCC pp.19-20, para 14) "On the contrary all efforts were made to bypass the recruitment procedure known to law which resulted in clear violation of Articles 14 and 16(1) of the Constitution of India, both at the initial stage as well as at the stage of confirmation of these illegal entrants. The so called regularizations and confirmations could not be relied on as shields to cover up initial illegal and void actions or to perpetuate the corrupt methods by which these 6000 initial entrants were drafted in the scheme."
33. It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency an ad hoc appointment can be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularization. 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.
34. In A. Umarani Vs. Registrar, Cooperative Societies a three judge bench made a survey of the authorities and Page 24 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 held that when appointments were made in contravention of mandatory provisions of the Act and statutory rules framed thereunder and by ignoring essential qualifications, the appointments would be illegal and cannot be regularized by the State. The State could not invoke its power under Article 162 of the Constitution to regularize such appointments. This Court also held that regularization is not and cannot be a mode of recruitment by any State within the meaning of Article 12 of the Constitution of India or any body or authority governed by a statutory Act or the Rules framed thereunder. Regularization furthermore cannot give permanence to an employee whose services are ad hoc in nature. It was also held that the fact that some persons had been working for a long time would not mean that they had acquired a right for regularization.
35. Incidentally, the Bench also referred to the nature of the orders to be passed in exercise of this Court's jurisdiction under Article 142 of the Constitution. This Court stated that jurisdiction under Article 142 of the Constitution could not be exercised on misplaced sympathy. This Court quoted with approval the observations of Farewell, L.J. in Latham vs. Richard Johnson & Nephew Ltd. (AIR ER p.123 E)"
"We must be very careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will o' the wisp to take as a guide in the search for legal principles."Page 25 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022
C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022
36. This Court also quoted with approval (at SCC p.131, para 69) the observations of this Court in Teri Oat Estates (P) Ltd. Vs. U.T., Chandigarh to the effect: (SCC p. 144, para 36) "36. We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court ordinarily would not pass an order which would be in contravention of a statutory provision."
This decision kept in mind the distinction between 'regularization' and 'permanency' and laid down that regularization is not and cannot be the mode of recruitment by any State. It also held that regularization cannot give permanence to an employee whose services are ad hoc in nature.
37. It is not necessary to multiply authorities on this aspect. It is only necessary to refer to one or two of the recent decisions in this context. In State of U.P. vs. Niraj Awasthi and others this Court after referring to a number of prior decisions held that there was no power in the State under Art. 162 of the Constitution of India to make appointments and even if there was any such power, no appointment could be made in contravention of statutory rules. This Court also held that past alleged regularisation or appointment does not connote entitlement to further regularization or appointment. It Page 26 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 was further held that the High Court has no jurisdiction to frame a scheme by itself or direct the framing of a scheme for regularization. This view was reiterated in 2006 (State of Karnataka vs. KGSD Canteen Employees Welfare Assn.
38. In Union Public Service Commission Vs. Girish Jayanti Lal Vaghela this Court answered the question, who was a Government servant and stated: (SCC p.490, para 12) "12. Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters 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 has been made inviting 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 candidates who have applied in response to the advertisement made. A regular appointment to a post under the Page 27 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution (See B.S. Minhas Vs. Indian Statistical Institute)."
39. There have been decisions which have taken the cue from the Dharwad (supra) case and given directions for regularization, absorption or making permanent, employees engaged or appointed without following the due process or the rules for appointment. The philosophy behind this approach is seen set out in the recent decision in The Workmen of Bhurkunda Colliery of M/s Central Coalfields Ltd. Vs. The Management of Bhurkunda Colliery of M/s Central Coalfields Ltd. though the legality or validity of such an approach has not been independently examined. But on a survey of authorities, the predominant view is seen to be that such appointments did not confer any right on the appointees and that the Court cannot direct their absorption or regularization or re-engagement or making them permanent.
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40. At this stage, it is relevant to notice two aspects. In Kesavananda Bharati Vs. State of Kerala 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 . 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: (Indra Sawhney case, SCC p.202, paras 64-65) "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 Page 29 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 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.
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."
41. In the earlier decision in Indra Sawhney Vs. Union of India [1992 Supp. (2) S.C.R. 454), B.P. Jeevan Reddy, J. speaking for the majority, while acknowledging that equality and equal opportunity is a basic feature of our Constitution, has explained the exultant position of Articles 14 and 16 of the Constitution of India in the scheme of things. His Lordship stated: (SCC pp. 633-34, paras 644-45) "644(6). The significance attached by the founding fathers to the right to equality is evident not only from the fact that they employed both the expressions 'equality before the law' and 'equal protection of the laws' in Article 14 but proceeded further to state the same rule in positive and affirmative terms in Articles 15 to 18 644 (7). Inasmuch as public employment always gave a certain status and power --- it has always Page 30 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 been the repository of State power ---besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article 16. Clause (1), expressly declares that in the matter of public employment or appointment to any office under the state, citizens of this country shall have equal opportunity while clause (2) declares that no citizen shall be discriminated in the said matter on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. At the same time, care was taken to, declare in clause (4) that nothing in the said Article shall prevent the state from making any provision for reservation of appointments or posts in favour of any backward class of citizen which in the opinion of the state, is not adequately represented in the services under the state.."(See paragraphs 6 and 7 in SCR pp. 544 and 545) These binding decisions are clear imperatives that adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment.
42. While answering an objection to the locus standi of the Writ Petitioners in challenging the repeated issue of an ordinance by the Governor of Bihar, the exalted position of rule of law in the scheme of things was emphasized, Chief Justice Bhagwati, speaking on behalf of the Constitution Bench in Dr. D.C. Wadhwa & Ors. Vs. State of Bihar stated: (SCC p.384, para 3) Page 31 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 "The rule of law constitutes the core of our Constitution of India and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the Executive or any other authority should be within the constitutional limitations and if any practice is adopted by the Executive which is in flagrant and systematic violation of its constitutional limitations, petitioner No. 1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice."
43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the 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 Page 32 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 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. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular Page 33 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 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.
45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. 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 eyes open. 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 a 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. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee.
Page 34 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.
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47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he 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 when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
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 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 Page 36 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 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."
12. In case of State of Karnataka and others vs. M.L. Kesari (supra) taking clue from the exception contained in paragraph No. 53 of Umadevi (3) case (supra) for regularization of irregular appointment as one time measure, the Apex Court clarified in this case that there are two mandatory and cumulative preconditions for this.
It has held that the appointments of qualified persons Page 37 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 made against the sanctioned posts without following process of open competition are irregular appointments.
As against that, the appointment made not against the sanctioned post or appointments of unqualified persons, are illegal appointments. Only irregular appointees are entitled to regularization in terms of paragraph No. 53 of Umadevi (3) case. The Court also explained the irregular and illegal appointments, as follow;
"6. This Court in Umadevi (3) further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. This Court however made one exception to the above position and the same is extracted below (SCC p.42, para 53):
"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 regularization of the services of such employees may have to be considered on Page 38 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 merits in the light of the principles settled by this Court in the cases abovereferred 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 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. ...."
(emphasis in original)
7. It is evident from the above that there is an exception to the general principles against `regularization' enunciated in Umadevi(3) if the following conditions are fulfilled :
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.Page 39 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022
C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.
8. Umadevi (3) casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi (3) directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006).
9. The term `one-time measure' has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (3) each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and Page 40 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 possess the requisite qualification for the post and if so, regularize their services.
10. At the end of six months from the date of decision in Umadevi (3) cases of several daily-wage/ad-hoc/casual employees were still pending before Courts.
Consequently, several departments and instrumentalities did not commence the one-time regularization process. On the other hand, some
Government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of Para 53 of the decision in Umadevi (3) will not lose their right to be considered for regularization, merely because the one-time exercise was completed without considering their cases, or because the six month period mentioned in para 53 of Umadevi (3) has expired. The one-time exercise should consider all daily-wage/adhoc/those employees who had put in 10 years of continuous service as on 10.4.2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one- time exercise in terms of para 53 of Umadevi, but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi(3), the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one time exercise will be concluded only when all the Page 41 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 employees who are entitled to be considered in terms of Para 53 of Umadevi(3), are so considered.
11. The object behind the said direction in para 53 of Umadevi(3) is two- fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi(3) was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad-hoc/casual for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 [the date of decision in Umadevi(3)] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi(3) or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi(3) as a one-time measure."
13. It is thus made quite clear that those of the employees, who were working continuously without the Page 42 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 Court's order for the period of 10 years, as a one time measures would not loose their chance to be continued in the service, provided they fulfill these two mandatory conditions that the person must have worked for 10 years or more on a duly sanctioned post without the benefit of protection of interim order of any Court or Tribunal and the appointment of such employee should not be illegal, even if he regular. The appointment, if are not made or continued against sanctioned post or where the persons appointed do not possess the prescribed minimum qualifications, the Court has held the same to be the appointments, which are illegal. However, the persons who were employed, possessed the prescribed qualification and were working without undergoing the process of open competitive selection, such appointments are considered to be irregular.
14. The Apex Court in case of Yogesh Mahajan (supra) considered non-renewal of contract and absence of any non-renewal of the contract of services of the petitioner appointed as Technical Assistant on contract Page 43 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 basis. The petitioner, who appeared in-person, was engaged on a contract basis as a Technical Assistant (ENT) in All India Institute of Medical Science. The initial contract was for a period of three months, but, it was renewed from time to time without any artificial break on a quarterly or a six monthly basis. The services of petitioner were taken on contract basis without following any laid-down procedure and without adherence to any rules. They were finally extended for the period of six months. When it was not renewed, he approached the Principal Bench of the Central Administrative Tribunal by preferring the Original Application. The prayer was to the effect that the order passed by the All India Institute of Medical Science declining to extent its contract was required to be quashed. This prayer was denied by the Tribunal, on the ground that it had no right to an extension of his service and he had no right to be regularized as a Technical Assistant, since his appointment on contractual basis was made without following any laid-down procedure and without following any rule. The Review Petition also was dismissed and Page 44 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 therefore, he preferred Writ Petition before Delhi High Court. When Delhi High Court dismissed the petition, he approached the Apex Court, which held that it is a settled law that no contractual employee has a right to have his or her contract renewed from time to time. It was an agreement before the Central Administrative Tribunal and the High Court that the petitioner was unable to show any statutory or other right to have his contract extended beyond the period. At the best, he could claim that the authority concerned should consider extending his contract. The Apex Court also agreed with the benefits rendered in the decision of Umadevi (3) to hold that there was nothing to indicate that the appointment of the petitioner on a contractual basis or on adhoc basis was in accordance with any regular procedure or by following necessary rules. Relevant findings of the judgment read as follow:
"6. It is settled law that no contract employee has a right to have his or her contract renewed from time to time. That being so, we are in agreement with the Central Administrative Tribunal and the High Court that the petitioner was unable to show any statutory or other right to have his contract extended beyond 30th June, Page 45 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 2010. At best, the petitioner could claim that the concerned authorities should consider extending his contract. We find that in fact due consideration was given to this and in spite of a favourable recommendation having been made, the All India Institute of Medical Sciences did not find it appropriate or necessary to continue with his services on a contractual basis. We do not find any arbitrariness in the view taken by the concerned authorities and therefore reject this contention of the petitioner.
7. We are also in agreement with the view expressed by the Central Administrative Tribunal and the High Court that the petitioner is not entitled to the benefit of the decision of this Court in Uma Devi. There is nothing on record to indicate that the appointment of the petitioner on a contractual basis or on an ad hoc basis was made in accordance with any regular procedure or by following the necessary rules. That being so, no right accrues in favour of the petitioner for regularisation of his services. The decision in Uma Devi does not advance the case of the petitioner.
8. Insofar as the final submission of the petitioner to the effect that some persons were appointed as Technical Assistant (ENT) in May 2016 is concerned, we are of the view that the events of 2016 cannot relate back to the events of 2010 when a decision was taken by the All India Institute of Medical Sciences not to extend the contract of the petitioner. The situation appears to have Page 46 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 changed over the last six years and the petitioner cannot take any advantage of the changed situation. There is no material on record to indicate what caused the change in circumstances, and merely because there was a change in circumstances, does not mean that the petitioner is entitled to any benefit. On the other hand, it might have been more appropriate for the petitioner to have participated in the walk-in interview so that he could also be considered for appointment as Technical Assistant (ENT), but he chose not to do so."
15. In the instant case, the facts are undisputed that the respondent institute had employed through advertisement for a particular project called MSME design clinic scheme funded by Ministry of MSME with an object that it provides a support and expertise for creating a competitive advantage and a single coordinating nodal agency is also appointed by the respondent for implementation of the design clinic scheme for increasing the manufacturing competitiveness of micro and small enterprises across the Country. The scheme's aim is to provide hand holding support, designed expertise and financial assistant through various activities. According to the respondent, the Page 47 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 project was closed by the Central Government w.e.f.
31.7.2019. According to the petitioner the respondent has stopped taking the funds from the Central Government otherwise, this project has been continued by the Central Government.
16. We shall not enter into that debate. The fact remains that at the end of the respondent, the project has been closed. It has also not in dispute that the petitioner was not appointed on any sanctioned post of the respondent institute. The pay scale had been given to the petitioner as per the policy of the respondent. However, initial appointment was not on any regular sanctioned post. Yet another question that would arise as to whether this was by an public advertisement an open policy that such appointment was made or this was an backdoor entry. It is not in dispute that by a public advertisement, the petitioner has been selected and it was not a case of a backdoor entry.
17. The insistence on the part of the petitioner is to Page 48 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 regularize, as the continuation of the petitioner with the respondent is nearly 9 years without any stay granted by any Court. They have also banked upon regularization of the some of the other employees of some of the departments, who have been named in their petition.
18. We notice that the respondent has not denied this factum of regularizing the service of some of the employees however, with a specific denial that they had been selected initially for any MSME project. They, according to the respondent had been selected on sanctioned posts and their appointment from the very beginning had been on a sanctioned post where they were later on regularized.
19. We had called for the original file for the perusal, as in the petition, original application as well as in the affidavit-in-rejoinder, there had been a specific averments on the part of the petitioner that those of them who have been regularized, have enjoyed the positive discriminatory benevolence of the respondent. Their serious grievance of discriminating the present petitioner vis a vis those who have been regularized was also a Page 49 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 matter of concern for the Court and therefore, it had chosen to undertake that detailed exercise. It had been noticed that none of the employees was regularized on a post which was not sanctioned from the beginning.
Therefore, employing the ratio laid down by the Apex Court in case of M.L. Kesari (supra), the appointment when is being made, if it is not on a sanctioned post or if the person does not possess the requisite qualification, such appointment cannot be regularized. It is held by the Apex Court as illegal appointment, when it comes to considering the claim of regularization.
20. In the instant case, we may not go to that extent of saying that on this post, there had been an illegal appointment. We also are quite conscious that here are the litigants who contributed qualitatively to the growth of institute and their contribution has been appreciated by the very factom of their continuity without any need of external forces or by any Court order and yet, we may not in exercise of an extra-ordinary jurisdiction direct the institute by way of writ of mandamus to regularize in absence of availability of sanctioned post. This trend of Page 50 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022 C/SCA/5956/2021 JUDGMENT DATED: 26/07/2022 using expertise in the field for a protracted period and also giving them regular pay scale, without verifying the post although is not a very desirable proposition.
However, the petitioners all throughout are not kept in dark and they naturally would have hope to be absorbed.
In our opinion, law since is not substantiating their claim, we deny the prayers sought for.
21. For the foregoing reasons, we are of the opinion that present petitions do not deserve to be entertained.
However, at the same time, we recommend the use of the talent of these petitioners, as when needed by the respondent, without even holding against them, the factum of litigation which they have pursued, as everyone would have an aspiration to be continued on a regular post and it is also constitutionally and legally permissible for a person to take legal recourse to establish his/her right.
22. Accordingly, present petitions are hereby dismissed.
Rule is discharged.
(SONIA GOKANI, J) SURESH SOLANKI (HEMANT M. PRACHCHHAK,J) Page 51 of 51 Downloaded on : Sat Dec 24 22:00:11 IST 2022