Central Administrative Tribunal - Delhi
Delhi State Contractual Employees ... vs Gnctd on 12 March, 2025
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C-3/Item-1 OA-3837/24 with OA-3841/24
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A./3837/2024
M.A./4445/2024
With
O.A./3841/2024
Reserved on: 12.02.2025
Pronounced on: 12.03.2025
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
O.A./3837/2024
1.Delhi State Contractual Employees' Association
Represented through its Secretary Gulab Rabbani
Aged about 41 years,
S/o Sh. Md. Sultan Rahmani
R/o B-21, Budh Vihar, Mandoli, Delhi-110093
2. Kamal Kant Sharma, aged about 40 years
S/o Shri Satyendra Prakash Sharma,
R/o 757, Janta Flats, GTB Enclave, Dilshad
Garden, Delhi, Working as Group-C Nursing
Officer ...Petitioners
(Through Shri Sanjoy Ghosh, Senior Advocate assisted
by Ms. Filza Moonis, Shri Mohit Garg and Ms.
Monica Kapoor, Advocates)
VERSUS
1. Govt. of NCT of Delhi
Through its Chief Secretary,
A-Wing, 5th Level, Delhi Secretariat,
IP Sachivalaya, New Delhi
2. Principal Secretary,
Department of Health and Family Welfare
(GNCT of Delhi)
9th Level, A-Wing, IP Extension,
Delhi Secretariat, Delhi-110002
3. Directorate of Health Services,
Through its Director School Health Scheme
(GNCT of Delhi), DGD Building, Karkardooma
Delhi-92
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C-3/Item-1 OA-3837/24 with OA-3841/24
4. Delhi Subordinate Services Selection Board
(DSSSB) through its Secretary,
FC-18, Karkardooma Institutional Area,
Delhi-92 ...Respondents
(Through Shri Amit Yadav and Ms. Monika Bhargava,
Advocates)
O.A./3841/2024
1. Ajay Kumar,
S/o Late Shri Vishnu Dev,
R/o H. No.408-A Saini Mohalla
Nangloi, Delhi-110041
2. Lalit Kumar,
S/o Shri Pitamber Singh,
R/o B-156, F-2, Shalimar Garden,
Ex-1-2, Sahibabad Ghaziabad
U.P.-201005
3. Sanjeev Kumar Sharma,
S/o Shri Awadh Bihari Sharma,
R/o WZ-1418, 3rd Floor, Nangal Raya,
New Delhi-110046
4. Rakesh Kumar Mishra,
S/o Shri Onkar Nath Mishra,
R/o H-13, Street No.7,
Raghu Nagar Dabri, Delhi-110045
5. Anoop Kumar
S/o Shri Ram Avtar,
R/o VPO-Karoli, Distt. Revadi
Haryana-123301
6. Sanjiv Kumar,
S/o Shri Ram Krishna Prasad Singh,
R/o B-56, Vali No.1 Ground Floor,
West Vinod Nagar, I.P. Ext.,
Delhi-110092
7. Manas Mutreja
S/o Late Shri Kishan Lal,
R/o L-89 B Second Floor,
Street No.10, Vijay Vihar,
Phase-II, Sector-4, Rohini,
Delhi-110085
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C-3/Item-1 OA-3837/24 with OA-3841/24
8. Balwan Mudgal,
S/o Shri Chet Ram,
R/o VOP Kassar Ramta Pana
H.No.281, Teh. Bahadurgarh
Distt. Jhajjar, Haryana-124507
9. Sunil
S/o Late Shri Jaiveer,
R/o Village Kassar, The. Bahadurgarh
Distt. Jhajjar,
Haryana-124507
10. Umesh
S/o Shri Om Prakash
R/o Village Asaudha (Todran)
Teh. Bahadurgarh, Distt. Jhajjar,
Haryana-124505 ...Petitioners
(Through Shri Sanjoy Ghosh, Senior Advocate assisted
by Ms. Filza Moonis, Shri Mohit Garg and Ms.
Monica Kapoor, Advocates)
VERSUS
1. Govt. of NCT of Delhi
Through its Chief Secretary,
5th Level, A-Wing, Delhi Secretariat,
IP Extension, New Delhi-110002
2. Principal Secretary,
Department of Health and Family Welfare
Govt. of NCT of Delhi
9th Level, A-Wing,
Delhi Secretariat, IP Extension,
New Delhi-110002
3. Directorate of Health Services,
Through its Director
Govt. of NCT of Delhi, F-17, Karkardooma
Delhi-110032
4. Delhi Subordinate Services Selection Board
(DSSSB) through its Secretary,
FC-18, Karkardooma Institutional Area,
Delhi-110092 ...Respondents
(Through Shri Amit Yadav and Ms. Monika Bhargava,
Advocates)
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C-3/Item-1 OA-3837/24 with OA-3841/24
ORDER
Hon'ble Dr. Chhabilendra Roul, Member (A)
1. The Delhi State Contractual Employees Association filed WP(C) No.12117/2023 and Cheriyan Podipaara Chacko & others filed WP(C) 11891/2023 and Ajay Kumar & Others filed WP (C) 12669/2023 before the Delhi High Court in 2023 seeking issuance of a Writ in the nature of Mandamus declaring the impugned circular dated /order dated 24.08.2023 issued by the Deputy Secretary, HR- Paramedical Branch and the Advertisement dated 31.07.2023 and OM dated 11.10.2020 as unjustified, arbitrary, discriminatory and unsustainable in the eyes of law. 1.1 Vide order dated 6.09.2024 in WPC No. 12117/2023 and WPC No. 12669/2023 and CM Application No.49932/2023, the Hon'ble High Court passed the following order:
"Ordinarily, the Court would have directed the Petitioners to withdraw these petitions and approach the Tribunal afresh. However, considering that these writ petitions have been pending before this Court for some time, it would be unfair to direct the Petitioners to file fresh applications and therefore, these writ petitions are transferred to the Central Administrative Tribunal, where they shall be listed before the learned Registrar on 03.10.2024."
The WPCs were converted into OA No.3837 of 2024. Subsequently, Ajay Kumar and others filed OA no. 3841/2024 seeking the following relief: 5
C-3/Item-1 OA-3837/24 with OA-3841/24 "A) issue a Writ in the nature of Mandamus or any appropriate Writ, order or direction setting aside the impugned O.M. No. F.8/279/H&W/Nursing/2016/1463339 dated 11.10.2020 issued by Dy. Secretary (HR-Nursing) of Health & Family Welfare Department with the approval of the respondent no.2, the advertisement dated 31.07.2023 issued by the respondent no.4 and the impugned circular/order No. Fl (1036) HR-
PARA/H&FW/2023/2969-3009 dated 24.08.2023 issued by the Deputy Secretary of HR-PARAMEDICAL Branch with approval of the respondent no.2, all being erroneous, unjustified, arbitrary, discriminatory, and unsustainable in the eyes of law; (B) issue a writ in the nature of Mandamus or any other writ, order or direction, thereby directing the Respondents no. 1 and 2 to declare the petitioner employees as deemed "Regular Appointees/Employees" and consider them for confirmation on the respective posts as held by them since last more than 10 years, on the basis of their service record with all consequential benefits, thereto;
(C) pass any further order/orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case." 1.2 As the issue in both the OAs are same and the applicants in both OAs have basically challenged the OM dated 11.10.2020 vide which the respondents are issuing advertisements for fresh recruitment, the OAs are decided together. With the agreement of the parties, OA No. 3837/2024 is taken as the lead case.
2. Factual Matrix 2.1 The present OA has been filed by the Delhi State Contractual Employees Association. The applicants were employed as para medical staff on contractual basis between 1998 and 2013 at various hospitals, pursuant to an advertisement notification issued by the Government of the National Capital Territory of Delhi (GNCTD). One such notification is at page 32 of the OA, issued by the Medical Superintendent, Deen Dayal 6 C-3/Item-1 OA-3837/24 with OA-3841/24 Upadhyay Hospital, Delhi. The applicants, considering themselves eligible applied for the said position against regular vacancies. Having been appointed, they have continued to serve on a contractual basis to date. There are two sets of identically placed persons, who had approached this Tribunal in 2002 and 2003. Their cases were decided on 27.09.2002 and 14.11.2003, respectively. A review petition preferred by the respondents was dismissed. The respondents challenged the orders passed by the Tribunal before the Hon'ble Delhi High Court in W.P. No. 6798/2002, Sonia Gandhi & ors. Vs. Govt. of NCT of Delhi & ors. and W.P. Nos. 8093-8102/2003. The two writ petitions arising from the orders dated 27.09.2002 and 14.11.2003 were adjudicated by the Hon'ble High Court of Delhi on 06.11.2003. A copy of the decision is placed at page 44 of the OA.
2.2 The issue before the Tribunal, as well as before the Hon'ble High Court of Delhi in the said OAs/WPs, pertained to the entitlement to wages and other benefits, as recorded by the Hon'ble High Court in para 1 of its order. The operative portions of the decision rendered by the Hon'ble High Court in Sonia Gandhi 7 C-3/Item-1 OA-3837/24 with OA-3841/24 (supra) case, specifically paragraphs 22 and 23, are reproduced herein below:
"22. Accordingly, we issue another direction and simultaneously dispose of the two writ petitions. The direction would be that the Government of NCT Delhi would carry out a manpower requirement assessment in all its departments keeping in view the fact that the population in Delhi has crossed 1.7 crore persons. Such number of posts shall be sanctioned as are necessary to provide services to the citizens of Delhi. A one time policy of regularization shall be framed and existing rules pertaining to service in different departments shall be amended. Existing contractual employees shall be considered for appointment to these new posts as per a policy framed.
23. We note that as recent as on October 28, 2013, deciding W.P.(C) No.6260/2013 UPSC Vs. Dr.Akshay Bahadur & Ors., we had taken note of the fact that the Government of NCT of Delhi had tackled the problem of 529 contract appointed Junior Specialists and Doctors by repealing the existing Delhi Health Services (Allopathy) Rules with the Delhi Health Services (Allopathy) Rules, 2009. In the Schedule of Posts, in addition to the existing sanctioned posts 529 posts were added and Rule 6 of the new Rules stipulated that said posts would be treated as on the date of the constitution of the cadre and that 529 contract appointed Junior Specialists and Doctors would be appraised for purposes of their suitability by UPSC and appointment made to the cadre post."
2.3 In compliance of the order dated 06.11.2003 of the Hon'ble High Court, the respondents have issued certain orders. The respondents assailed the order of High Court before the Hon'ble Apex Court by S.L.P No. 31596-31606/2014. After deliberating for some time, the respondents chose to withdraw the SLP. Thereby confirming the decision of High Court of Delhi dated 06.11.2023. As per the dissection of the directions passed by the Hon'ble High Court by the learned 8 C-3/Item-1 OA-3837/24 with OA-3841/24 counsel for the applicants, the following directions were issued to the respondents in the said judgment:
(i) To carry out a manpower requirement assessment for all departments.
(ii) To sanction the necessary number of posts required to provide services to the citizens of Delhi.
(iii) To frame a one-time policy for regularization and, if required, amend the existing recruitment rules.
(iv) To amend the existing recruitment rules to ensure that the existing contractual employees are considered for the newly sanctioned posts as per the formulated policy.
2.4 In pursuance of the decision of the Hon'ble High Court dated 06.11.2013, the respondents came out with a policy dated 11.10.2020 (Page 65). The respondents have issued a circular dated 24.08.2023, whereby the respondents have processed the vacancies held by the applicants to be filled up on regular basis. Thereafter, two sets of employees approached the Hon'ble High Court by filing Writ Petition No. 12117/2023 and Writ Petition No. 12669/2023. The Hon'ble High Court transferred the two writ petitions to the Tribunal. 9 C-3/Item-1 OA-3837/24 with OA-3841/24 Consequently, the two writ petitions were renumbered as OA No. 3837/2024 and OA No. 3841/2024 and are being considered on merits today.
2.5 The relief sought by the applicants in OA No.3837/2024 (leading OA) is as follows:-
"i) Issuance of a Writ in the nature of Mandamus or any appropriate Writ declaring the Impugned circular/order dated 24.08.2023 passed by the Deputy Secretary of HR-PARAMEDICAL Branch In File No. F1(1036) HR-
PARA/H&FW/2023/2969-3009, the advertisement dated 31.07.2023 and O.M. Dated 11.10.2020 as erroneous, unjustified, discriminatory, and unsustainable in the eyes of law;
II) Set aside the impugned decision/order dated 24.08.2023 passed by the Deputy Secretary of HR- PARAMEDICAL Branch in File No. F1(1036) HR- PARA/H&FW/2023/2969-3009 the advertisement dated 31.07.2023 and O.M. Dated 11.10.2020 as being erroneous, unjustified and unsustainable in the eyes of law;
III) Pass any such other or further order as this Hon'ble Court may deem fit and proper in the circumstances of the present case."
3. Submission by Shri Sanjoy Ghosh, learned senior counsel for the applicants:
3.1 Learned Senior Counsel for the applicants in OA No. 3837/2024 fairly submits that Contempt Petitions have been filed by the applicants in WP No. 6798/2002 and WP No. 8093/2002, which are pending consideration before the Hon'ble High Court. The present applicants have sought impleadment in the Contempt Petition, which is also pending consideration.
He clarifies that, as of now, the impleadment 10 C-3/Item-1 OA-3837/24 with OA-3841/24 application has not been decided by the Hon'ble High Court. He submits that, by virtue of the policy dated 11.10.2020, a fresh cause of action has accrued in favor of the applicants, thereby necessitating the filing of the present OA. He contends that both proceedings can be pursued simultaneously; nevertheless, he will take appropriate steps concerning the withdrawal of the impleadment application.
3.2 Proceeding further, learned Senior Counsel draws attention to the decision of the Hon'ble High Court in W.P. No. 12117/2023 and W.P. No. 12669/2023, as reproduced hereinabove and analyzed. He submits that the respondents were directed to frame policy for regularization. However, by virtue of the Office Memorandum dated 11.10.2020, the respondents have merely extended a one-time age relaxation, which implies that the respondents have only provided an opportunity for candidates to participate in the regular selection process, rather than ensuring regularization. He contends that the policy does not entail any provision for regularization and is, therefore, contrary to the intent of the decision in W.P. No. 6798/2002. The existing contractual employees have been continuously engaged since 1998, which constitutes an unduly long period of service without regularization. The 11 C-3/Item-1 OA-3837/24 with OA-3841/24 advertisement placed at page 32 of the OA, would confirm that the appointment of the applicants was against substantive vacancies. He asserts that the nature of the work has remained continuous due to exigencies, established by the fact that the applicants have been retained in service to date. He highlights that the applicants were subjected to a selection process, including a filtration exercise, and were granted contractual employment only after clearing an interview and document verification process. Each of the hospital has issued separate advertisements prescribing a similar selection process, document verification, and medical examination. Additionally, it is established that appointments to one hospital are not inter se transferable to other hospitals and do not count towards any service particulars. Learned Senior Counsel submits, in compliance with the orders passed in the writ petitions, the applicants have been granted the minimum of the basic pay along with other benefits, which are the subject matter of both the OAs and the WP. He submits, while regularization was not specifically an issue before the Hon'ble High Court of Delhi, the Court had directed the respondents to frame a policy. However, instead of framing such a policy, the respondents have only provided age relaxation. 12 C-3/Item-1 OA-3837/24 with OA-3841/24 3.3 In support of his submissions, learned Sr. Counsel draws strength from the decision of the Hon'ble Apex Court in:-
(i) Narendra Kumar Tiwary & Ors. Vs. State of Jharkhand & Ors., Civil Appeal Nos. 7423-29 of 2018, decided on 01.08.2018. Particularly para 10 of the same, which is reproduced as under:-
"10. Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularised unless there is Some valid objection to their regularisation like misconduct, etc."
(ii) Jaggo Vs. Union of India & Ors., SLP (C) No. 5580/2024, dated 20.12.2024. Paras 10, 11, 12 and 26 of the same are reproduced herein:-
"10. Having given careful consideration to the submissions advanced and the material on record, we find that the appellants' long and uninterrupted service, for periods extending well beyond ten years, cannot be brushed aside merely by labelling their initial appointments as part-time or contractual. The essence of their employment must be considered in the light of their sustained contribution, the integral nature of their work, and the fact that no evidence suggests their entry was through any illegal or surreptitious route.
11. The appellants, throughout their tenure, were engaged in performing essential duties that were indispensable to the day-to-day functioning of the offices of the Central Water Commission (CWC). Applicant Nos. 1, 2, and 3, as Safaiwalis, were responsible for maintaining hygiene, cleanliness, and a conducive working environment within the office premises. Their duties involved sweeping, dusting, and cleaning of floors, workstations, and common areas-a set of responsibilities that directly contributed to the basic operational functionality of the CWC. Applicant No. 5, in the role of a Khallasi (with additional functions 13 C-3/Item-1 OA-3837/24 with OA-3841/24 akin to those of a Mali), was entrusted with critical maintenance tasks, including gardening, upkeep of outdoor premises, and ensuring orderly surroundings.
12. Despite being labelled as "part-time workers," the appellants performed these essential tasks on a daily and continuous basis over extensive periods, ranging from over a decade to nearly two decades. Their engagement was not sporadic or temporary in nature; instead, it was recurrent, regular, and akin to the responsibilities typically associated with sanctioned posts. Moreover, the respondents did not engage any other personnel for these tasks during the appellants' tenure, underscoring the indispensable nature of their work.
26. While the judgment in Uma Devi (supra) sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny legitimate claims of long-serving employees. This judgment aimed to distinguish between "illegal" and "irregular" appointments. It categorically held that employees in irregular appointments, who were engaged in duly sanctioned posts and had served continuously for more than ten years, should be considered for regularization as a one-time measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to indiscriminately reject the claims of employees, even in cases where their appointments are not illegal, but merely lack adherence to procedural formalities. Government departments often cite the judgment in Uma Devi (supra) to argue that no vested right to regularization exists for temporary employees, overlooking the judgment's explicit acknowledgment of cases where regularization is appropriate. This selective application distorts the judgment's spirit and purpose, effectively weaponizing it against employees who have rendered indispensable services over decades."
(iii) OA No. 2335/2019 decided on 09.01.2015 wherein relying upon the decision of Hon'ble Apex Court in Jaggo (supra) the benefits have been extended to the applicants therein.
4. Submission by Mr. Amit Yadav, learned counsel for the Respondents :
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C-3/Item-1 OA-3837/24 with OA-3841/24 4.1 Mr. Amit Yadav, learned counsel appearing for the respondents (GNCTD), draws attention to the advertisement issued by Deen Dayal Upadhyay Hospital, placed at page 32 of the O.A. and to the selection process initiated by the DSSSB on behalf of the hospital on 31.07.2023. He submits that, as per the vacancy circular at page 74 for Post Code 46/26 (Laboratory Assistant), certain vacancies are reserved for Physically Handicapped and Ex-Servicemen candidates. He contends that, at the time of appointing the applicants between 1998 and 2013, the hospital did not recognize the reservation for Physically Handicapped and Ex-Servicemen candidates, which is complete violation of the constitutional provisions mandating such reservations. Additionally, while issuing the advertisement, the hospitals have deviated from the RRs that were in force at the relevant time, as the note mentioned in the RRs is not reflected in the advertisement. The column 7 of the RRs as well as the relevant portion of the advertisement are reproduced hereinbelow:-
"Recruitment Rules Column 7 (1) Matriculation/Hr.Sec./Sr.Sec. (10 plus2) with Science.
(ii) Diploma in Medical Labotatory Techniques from a recognized Institution, OR 15 C-3/Item-1 OA-3837/24 with OA-3841/24 10+2 Vocational Courses in Medical Laboratory Technology(MLT) from Schools recognized by State Govt.
Advertisement
1) Matriculation/Hr. Secondary/Sr. Secondary (10+2) science.
2) Diploma in Medical Laboratory Techniques from a recognised Institution. OR 10+2 vocational Courses in MLT from School recognized by State Govt.
Note : The qualifications mentioned at (2) above shall be essential for departmental candidates after 3 years-of the induction of Medical lab. Technique Course." 4.2 Mr. Amit Yadav, learned counsel for the respondents while continuing his arguments makes the following submissions:-
i. That framing of a policy was in the domain of the Executive. The respondents in compliance of the directions of the Hon'ble High Court of Delhi in Sonia Gandhi case have acted and framed the policy. Time and again the policy dated 11.10.2020 has been upheld by the Tribunal and higher forums. Drawing attention to para 5 of the reply (page 4), he submits that the Hon'ble High Court had directed the respondents to carry out the manpower assessment of all the departments and the respondents were obliged to carry out the same, that has been carried out by the respondents. The respondents have created 8014 posts between 06.11.2013 until October, 2017. In light of the policy dated 11.10.2020, similarly placed persons have been extended age relaxation and it has been availed as well. Additionally, since the applicants were part of the organisation for a large number of years, they have been extended coaching so as to enable them to compete with the fresh candidates, who may be better in terms of their educational qualifications vis a vis the experience of the applicants.
(ii) He states that identically placed contractual staff, has availed three opportunities from 2011 onwards, while the applicants have chosen not to participate in the selection exercise undertaken by the DSSSB against 8014 posts created by them. The directions of the Tribunal have been duly complied with and that would include assessment of manpower, creation of certain number of posts and extend one time relaxation in terms of age relaxation so as to enable the applicants to participate in the examination and seek regularisation.16
C-3/Item-1 OA-3837/24 with OA-3841/24
(iii) The applicants were obliged to participate in the fresh selection exercise and compete with the fresh candidates, hence the present applicants are not entitled for regularisation. There are a few petitioners in the O.A. who have availed the benefit extended to the applicants by the policy dated 11.10.2020 and have participated in the selection process conducted by the DSSSB and they have not succeeded. Therefore, they are estopped from challenging the said policy at this stage. He submits, even the unsuccessful candidates have been allowed to continue, nevertheless on contractual basis, since the date the counter reply was filed till today. He adds that the selection process initiated pursuant to notification dated 31.07.2023 is under process. He explains that a similar policy was framed by the respondents on 10.07.2019 and was part of the W.P.(C) No. 9378/2021 and was decided on 02.11.2023. The relevant portion of the same reads as under:-
"In view of above, we do not see any reasons to interfere in the realm of the aforesaid memorandum/policy notified vide OM No.F.19(11)/2015/S- IV/1751-1756 dated June 11, 2019 and OM No.F.19(11)/2015/S-IV/2021- 2025 dated July 10, 2019 by the Govt. of NCT of Delhi and the same do not offend Article 14, 16 or 21 of the Constitution of India."
(iv) The policy dated 11.10.2020 is identical to the policy dated 10.07.2019 except for the fact that it related to the paramedic staff of various hospitals.
(v) He submits that none of the grounds taken in the O.A. would explain that the respondents have violated any provisions of law while framing the policy. The respondents have complied with the directions of the Hon'ble High Court of Delhi in Sonia Gandhi & Ors. Vs. Govt. of Delhi and Ors. in WP© No. 6798/2002 dated 06.11.2013 in letter and spirit.
(vi) The contentions of the applicants, that the policy was a violation of Article 14 and 16 of the Constitution is misplaced rather extending regularisation to the applicants would lead to discrimination to similarly placed persons who belong to the reserved category, that may include physically handicapped persons, SC, SC, ex-servicemen etc.
(vii) He places reliance on the order of the Tribunal in O.A. No. 4582/2018 dated 10.01.2025 titled Chander Prakash Saini & Ors. vs. Ministry of Railways. and the decision of the Hon'ble Apex Court in Union of India Vs. Ilmo Devi and Ors. dated 07.10.2021 in CA No. 5689-90/2021 wherein it has been held that framing of a policy was the domain of the executive and cannot be interfered with by the judiciary. He relies 17 C-3/Item-1 OA-3837/24 with OA-3841/24 upon the common order/judgment of a coordinate bench of this Tribunal in O.A. No. 1789/2020 with batch dated 18.09.2024 wherein identical facts the Tribunal did not interfere.
"10. With respect to the submissions of the learned counsel for the applicants that the Applicants were filtered and selected after the selection process initiated by the respondents against the regular vacancies and discharging their duties since the inception, the contentions, according to us, are misplaced, to clarify, that they never participated against the regular process prescribed under the recruitment rules and neither were they appointed against the regular posts. However, they have continued for a fairly long time. Precisely, for the reason that the Applicants have continued for a long period, they have been extended one time age relaxation in terms of order dated 11.10.2020 passed by the respondents, in compliance of the decision of the Hon'ble High Court of Delhi in matter of Sonia Gandhi & Ors. Vs. GNCTD & Ors. The Applicants were extended the relaxation and allowed to participate in the regular selection process. However, the Applicants have chosen not to respond to the advertisement. The judgment relied upon by the learned counsel for the applicants i.e. Sonia Gandhi & Ors. (Supra) clearly mentions that the respondents were directed to take a policy decision with respect to regularization of the contractual employees. The respondents have taken decision and passed orders on 11.10.2020 as explained above and the Applicants have been extended the benefits of the said decision, this decision has not been challenged in the instant O.A."
(viii) He also relies on the judgment of the Hon'ble Apex Court in State of Haryana Versus Piara Singh and Ors dated 12.08.1992 in CA No. 2979/1992.
"25. Before parting with this case, we think it appropriate to say a few words concerning the issue of regularisation of adhoc/temporary employees in government service.
The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an adhoc or temporary appointment to be made. In such a situation, effort should always be to replace such an adhoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or 18 C-3/Item-1 OA-3837/24 with OA-3841/24 kept in abeyance for the sake of such an adhoc/temporary employee.
Secondly, an adhoc or temporary employee should not be replaced by another adhoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
Thirdly, even where an adhoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.
An unqualified person ought to be appointed only when qualified persons are not available through the above processes.
If for any reason, an adhoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.
The proper course would be that each States prepares a scheme, if one is not already in vogue, for regularisation of such employees consistent with its reservation policy and if a scheme is already framed, the same way be made consistent with our observations herein so as to reduce avoidable litigation in this behalf. If and when such person is regularised he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be.
So far as the work-charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell - say two or three years - a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by 19 C-3/Item-1 OA-3837/24 with OA-3841/24 this court, security of tenure is necessary for an employee to give his best to the job. In this behalf, we do commend the orders of the Government of Haryana (contained in its letter dated 6.4.90 referred to hereinbefore) both in relation to work-charged employees as well as casual labour.
We must also say that the orders issued by the Governments of Punjab and Haryana providing for regularisation of adhoc/temporary employees who have put in two years/one year of service are quite generous and leave no room for any legitimate grievance by any one.
These are but a few observations which we thought it necessary to make, impelled by the facts of this case, and the spate of litigation by such employees. They are not exhaustive nor can they be understood as immutable. Each Government or authority has to devise its own criteria or principles for regularisation having regard to all the relevant circumstances, but while doing so, it should bear in mind the observations made herein."
............ ......... ......... ......... ....... 4.3 Mr. Amit Yadav, learned counsel for the respondents further submits that O.As. were filed in the years 2019 and 2020, and, at the relevant point in time the policy may not be in existence, however, the applicants therein had an opportunity to seek amendment in light of the policy. These OAs were decided in the year 2022, therefore the applicants had an opportunity to place challenge to policy. The O.A. would be barred by constructive res judicata.
5. Rebuttal argument by learned Senior Counsel for the applicants:
5.1 Mr. Sanjoy Ghosh, learned senior counsel submits that the issue involved in the present O.A. is with respect to fundamental rights and the preliminary 20 C-3/Item-1 OA-3837/24 with OA-3841/24 objection raised with respect to resjudicata etc cannot be raised. He draws strength from the decision of the Hon'ble Apex Court in Basheshar Nath Versus Commissioner of Income Tax and Rajasthan and Others dated 19.11.1958 in CA 208/1958 [reported in (1959) 35 ITR 190 : 1658 SCC Online SC 7] "15. Such being the true intent and effect of Article 14 the question arises, can a breach of the obligation imposed on the State be waived by any person? In the face of such an unequivocal admonition administered by the Constitution, which is the supreme law of the land, is it open to the State to disobey the constitutional mandate merely because a person tells the State that it may do so? If the Constitution asks the State as to why the State did not carry out its behest, will it be any answer for the State to make that "true, you directed me not to deny any person equality before the law, but this person said that I could do so, for he had no objection to my doing it". I do not think the State will be in any better position than the position in which Adam found himself when God asked him as to why he had eaten the forbidden fruit and the State's above answer will be as futile as was that of Adam who pleaded that the woman had tempted him and so he ate the forbidden fruit. It seems to us absolutely clear, on the language of Article 14 that it is a command issued by the Constitution to the State as a matter of public policy with a view to implement its object of ensuring the equality of status and opportunity which every welfare State, such as India, is by her Constitution expected to do and no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution. Whatever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State.
16. The learned Attorney-General has relied on various passages in textbooks written by well known and eminent writers e.g. Cooley, Willoughby, Willis and Rottschaefer and on eight American decisions. In considering the statements of law made by American writers and Judges the following observations of Patanjali Sastri, C.J. in State of Travancore-
Cochin v. Bombay Co. Ltd. [(1952) 2 SCC 142 : (1952) SCR 1112, 1120, 1121] should constantly be borne in mind:
"These clauses are widely different in language, scope and purpose and a varying body of doctrines and tests have grown around them interpreting, extending or restricting, from time to time, their operation and application in the context of the expanding American 21 C-3/Item-1 OA-3837/24 with OA-3841/24 commerce and industry, and we are of opinion that not much help can be derived from them in the solution of the problems arising under Article 286 of the Indian Constitution."
(See also State of Bombay v. R.M.D. Chamarbaugwala [1957 SCR 874, 918].) The American authorities cited by the Attorney-General relate to waiver of obligations under a contract, of the deprivation of right to property without due process of law or of the constitutional right to trial by jury and the like. They have no bearing on the question of the waiver of the equal protection clause of the 14th Amendment which, like our Article 14, is a mandate to the State. It is significant that no American decision is forthcoming which upholds the waiver of the breach of that clause. When a case of breach of any of the fundamental rights akin to what are dealt with in the American authorities will come before us it will, then be the time for us to discuss those authorities and to consider their applicability in the matter of the interpretation of the corresponding provisions of our Constitution. For the moment we prefer to confine our observations to a consideration of waiver of the breach of the fundamental right under Article 14.
17. Learned Attorney-General has relied on three decisions of this Court : (1) Laxmanappa Hanumantappa Jamkhandi v. Union of India [(1955) 1 SCR 769] , (2) Dewan Bahadur Seth Gopal Das Mohta v. Union of India [(1955) 1 SCR 773] and (3) Baburao Narayanrao Sanas v. Union of India [(1954) 26 ITR 725] in support of his thesis that a breach of Article 14 may well be waived by a person. In none of those cases, all of which were disposed of on the same day (October 21, 1954) was the question of waiver specifically or seriously discussed. As learned counsel appearing for the intervener points out, the first of the above mentioned cases proceeded on the footing that as Article 265 was not a fundamental right conferred by Part III, it could not be enforced under Article 32. Learned counsel for the intervener further submitted that the decision in the 2nd case mentioned above could also be explained on that basis and on the further ground that proceeding under Article 32 was not intended to be used for obtaining relief against the voluntary action of a person and that appropriate remedy for recovery of money lay in a suit. The decision in the 3rd case proceeded on the same basis and did not carry the matter any further. It is impossible to treat any of those decisions as representing the considered opinion of this Court on the question of waiver of a breach of the fundamental right under Article 14 of the Constitution. Reference was also made by the learned Attorney-General to the decision of a Single Judge of the Allahabad High Court in Subedar v. State [AIR 1957 All 396] where it was held that Article 20(3) conferred merely a privilege and that such privilege could always be waived. It was overlooked that if a person voluntarily answered any question then there was no breach of his fundamental right at all, for the fundamental right is that a person shall not be compelled to incriminate himself. That case, therefore, is not a case of 22 C-3/Item-1 OA-3837/24 with OA-3841/24 waiver at all. The case of Pakhar Singh v. State [AIR 1958 Punj 294] is also, for the same reason, not a case of waiver.
18. The answer to this question depends upon facts which have not been properly investigated. The appeal is against the order of the Income Tax Authorities which order makes no reference to the plea of waiver. Further the filing of the statements of case having been dispensed with, we have not had the benefit of the statement of facts on which this plea is said to be founded. The view taken on Question (1), however, relieves us of the necessity of going into this question.
19. On a consideration of the nature of the fundamental right flowing from Article 14, we have no doubt in our mind that it is not for a citizen or any other person who benefits by reason of its provisions to waive any breach of the obligation on the part of the State. We are, therefore, of the opinion that this appeal should be accepted, the order of the Income Tax Commissioner Delhi dated January 29, 1958 should be set aside and all proceedings now pending for implementation of the order of the Union Government dated July 5, 1954 should be quashed and that the assessee- appellant should get the costs of this appeal.
And the judgment of the Hon'ble High Court of J&K in Mehmooda and Others Versus State of J & K through Commissioner Secretary to Government Industries and Commerce Department dated 29.11.2023 in SWP No. 2126/2018 [reported in 2023 SCC Online J&K 1296] "26. In State of Karnataka v. C. Lalitha, (2006) 2 SCC 747, the Apex Court has held:
"29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently. It is furthermore well settled that the question of seniority should be governed by the rules. It may be true that this Court took notice of the subsequent events, namely, that in the meantime she had also been promoted as Assistant Commissioner which was a Category I post but the direction to create a supernumerary post to adjust her must be held to have been issued only with a view to accommodate her therein as otherwise she might have been reverted and not for the purpose of conferring a benefit to which she was not otherwise entitled to."
27. The Hon'ble Supreme court in State of Uttar Pradesh v. Arvind Kumar Srivastava, (2015) 1 SCC 347 has observed as follows:
"22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more 23 C-3/Item-1 OA-3837/24 with OA-3841/24 emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
22.2. However, this principle is subject to well recognized exceptions in the form of latches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularization and the like. On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."
28. The Supreme Court in case titled Arvind Kumar Srivastava mentioned supra after examining a catena of decisions on the question whether similarly situated government employees should be granted the benefit of an order passed by a Court in another case, had examined the issue in the context of discrimination and equal treatment under Article 14 of the Constitution. Even otherwise also, it is settled preposition of law that, when a particular set of employees is given relief by the court, other identically situated persons shall be treated alike and not doing so would amount to discrimination and will be in violation of Article 14. Thus, to deny similar benefits to the petitioners on the touchstone of what has already been granted to same set of employees and falling in the category of retired employees would tantamount to discrimination and violation of Articles 14 and 16 of the Constitution of India." 5.2 Learned senior counsel submits that the decision in WP(C) No. 9378/2021 may not come in the way of 24 C-3/Item-1 OA-3837/24 with OA-3841/24 the applicants as it came before the decision in SLP 5580/2024, Jaggo Vs. Union of India & Ors by the Apex court and also for the reason that it relates to regularization of additional public prosecutor. In the present case there is a specific judgment of Sonia Gandhi & Ors. Vs. Govt. of Delhi and Ors. in WP© No. 6798/2002 in light of which the respondents have acted. In Sonia Gandhi case the Hon'ble High Court has specifically given a direction that the policy be framed keeping in mind the applicants, who were paramedics. Each of the objections raised by the respondents today have been considered in the Akshay Bahadur case decided by the Hon'ble Delhi High court. With respect to the objection raised by the learned counsel for the respondents that the provisions of reservation have not been adhered to, he submits that there are certain applicants who are part of the association and belong to the reserved categories, they could be accommodated against the reserved vacancies.
6. Submission by Ms.Monica Kapur, learned counsel for the applicants in OA No. 3841 /2024.
6.1 Ms. Monika Kapoor, learned counsel for the applicants in OA No. 3841/2024 draws attention to the prayer clause and submits that the applicants in the O.A. have sought regularisation besides challenging the 25 C-3/Item-1 OA-3837/24 with OA-3841/24 policy dated 11.10.2020. She clarifies that the applicants in O.A. No. 3841/2024 were appointed in pursuance of the advertisement issued in the Hindustan Times.
7. Analysis
7.l from the pleadings in the cases and the submissions by the respective counsels, the following issues are culled out in the instant case:
7.1.1 Is the present OA liable to be dismissed on account of application of principles of Constructive Res Judicata?
7.1.2 Whether the ratio of the judgment of the Apex Court in Jaggo (supra) is applicable in the instant case?
7.1.3 Whether the policy of the Respondents dated 20.11.2020 is not a policy at all in light of the directives issued by the Hon'ble Delhi High Court in Sonia Gandhi case?
7.1.4 Whether the policy of the Respondents dated 20.11.2020 is not a policy at all?
7.2 Mr. Amit Yadav, learned counsel for the Respondents has raised the issue of Constructive Res judicata in his submissions. This issue needs to be addressed first before taking up the subsequent issues.26
C-3/Item-1 OA-3837/24 with OA-3841/24 7.3 Constructive Res Judicata is an integral part of the overarching principle of Res Judicata. Constructive Res Judicata is enshrined under Section 11, particularly Explanation IV and Order 2 Rule 2 of the CPC, 1908. Explanation IV-
Explanation IV.--Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. The principle as contained in Explanation-IV as quoted above stipulates that when a suit filed before a court of competent jurisdiction, all matters directly or substantially connected to the main issue that require adjudication must be brought forth within same suit. Parties are prohibited from filing fresh or separate suits on such issues arising from the same cause of action and involving the same parties. Failure to include the connected issues in the original suit would attract the principle of constructive res judicata. It is presumed that the parties voluntarily relinquished their claim over such omitted matters. Courts are precluded to entertain those issues in subsequent proceedings, reinforcing principle of judicial finality, efficiency and avoidance of multiplicity of litigations.
7.4 There are certain basic elements to attract the principle of Constructive Res judicata. These are: 27
C-3/Item-1 OA-3837/24 with OA-3841/24
a) The parties involved in both proceedings must be the same.
b) The subject matter of the subsequent proceedings should be identical to that of the earlier proceedings.
c) The issue raised in the subsequent proceedings should have been directly and substantially in issue in the earlier proceedings.
d) The earlier proceedings must have resulted in final decision in the matter.
7.5 Mr. Amit Yadav, learned counsel for the respondents referred to the judgment of the Division Bench of the Delhi High Court dated 2.11.2023 in WP(C) No. 9378 of 2021. This Writ petition has been tagged along with WP(C) No. 9539 of 2021, WP(C) No.9671/2021, and WP(C) No. 9806/2021 and a common order has been passed in respect of all the writ petitions. Writ Petition No. 9378/2021 was filed by the petitioners seeking age relaxation for the contractual Asst. Public Prosecutors for the examination/interview conducted by UPSC in September 2021 in pursuance to the Advertisement No.02/2021. The O.A. Nos. 255/2021, 256/2021 and 305/2021 were accordingly preferred by the petitioners before the Tribunal seeking age relaxation which were disposed of vide common 28 C-3/Item-1 OA-3837/24 with OA-3841/24 order dated March 25, 2021. This Tribunal vide this common order disposed of the OAs in the following manner:
"11. We, therefore, dispose of the OAs directing that the Government of NCT of Delhi shall make its stand very clear as to
(a) Whether it wants the UPSC to proceed with the selection of candidates for the posts of APP in accordance with the recruitment rules, as they stand now;
(b) Or whether it proposes to amend the rules by acceding to the request of the applicants and thereby wants to discontinue the ongoing process.
(c) Either way, it shall be decided by the respondents within four weeks from the date of receipt of a copy of this order, strictly in accordance with the relevant provisions of law."
7.5.1 UPSC decided to proceed and issued Notification dated August 05, 2021, whereby examination date was scheduled for September 19, 2021.
7.5.2 Being aggrieved, W.P.(C) No.9378/2021, W.P.(C) No.9539/2021 and W.P.(C) No. 9671/2021 have been preferred by the petitioners, challenging the common order dated March 25, 2021 passed in O.A. Nos.255/2021 (Arun Kumar Mavi & Ors. v. Govt. of NCT of Delhi & Ors.), 256/2021 (Surender Kumar & Ors. v. Govt. of NCT of Delhi & Ors.) and 305/2021 (Dishank Dhawan v. Govt. of NCT of Delhi & Ors.). Subsequently one Neema Noor Mohd. and Mr. Aman Gaurav were impleaded as petitioners in WP(C) No. 9378/2021. One Mr. Shitize Rao was allowed as 29 C-3/Item-1 OA-3837/24 with OA-3841/24 respondent who was opposing any age relaxation to the petitioner in the said examination. Vide an interim order dated 1.09.2021, the petitioners in WP(C) No.9378/2021 were allowed to appear on provisional basis in the aforesaid examination.
7.5.3 In other words, whether the contractual employees were entitled for age relaxation for the recruitment to posts reserved for direct recruitment was issue in these writ petitions. In addition to various judgments of the Apex Court and High Courts, the judgment in WP(C) No.9378/2012 (and other tagged Writs) heavily relied on the OM No.F.19(11)/2015/S- IV/1751-1756 dated June 11, 2019 and Office Memorandum No.F.19(11)/2015/S-IV/2021-2025 dated July 10, 2019 issued by Govt. of NCT of Delhi, relied by the petitioners which provided for relaxation in age limit to contractual employees working under Govt. of NCT of Delhi at the time of regular appointment. After considering the case laws, the Division Bench of the Delhi High Court in WP(C) no.9378/2021 held that:
"In view of above, we do not see any reasons to interfere in the realm of the aforesaid memorandum/policy notified vide OM No.F.19 (11)/2015/S-IV/1751-1756 dated June 11, 2019 and OM No.F.19(11)/2015/S-IV/2021-2025 dated July 10, 2019 by the Govt. of NCT of Delhi and the same do not offend Article 14, 16 or 21 of the Constitution of India."30
C-3/Item-1 OA-3837/24 with OA-3841/24 7.5.4 Now the question arises whether the legitimacy established by the Delhi High Court in the above writ petition precludes raising the legitimacy of similar policy dated 20.11.2020 in another department based on principle of constructive Res Judicta. It is pertinent to analyse the four conditions to be satisfied to attract principle of constructive res judicata as enunciated in paragraph 7.4 above. It is admittedly clear that the Delhi State Contractual Employees Association, the Applicant association was not directly a party in Writ Petition No. 9378/2021 and other tagged writ petitions. It is also not clear whether any of the petitioners in those writ petitions were/are members of this Association. In absence of this clarity, it cannot be said that the parties in those writ petitions and the current set of OAs are identical. In addition, the primary issue in those writ petitions was entitlement of age relaxation for the contractual employees of Delhi Government. In the present OAs, the issue from the pleadings and submissions by the learned counsel for the applicants is not the legitimacy of age relaxation per se but the inadequacy of the policy, which has stopped at granting age relaxation. Hence, the subject matter in the writ petitions and the present OAs are not identical. The third condition is whether the issue raised now could 31 C-3/Item-1 OA-3837/24 with OA-3841/24 have been raised at the time of filing the writ petitions along with WP(C) No.9378/2021. The context in respect of these writ petitions was demanding age relaxation to appear for the recruitment examination and hence, this issue of adequacy of the policy beyond age relaxation could not have been raised. The last condition is that the issues being non-identical and the present issue could not have been raised, the question of finality to the matter in judicial pronouncements does not arise. 7.5.5 In view of the above, we are of the considered view that the principle of constructive res judicata is not attracted in the present case.
7.6. The third issue is whether the policy of the Respondents dated 20.11.2020 is not a policy at all in light of the directives issued by the Hon'ble Delhi High Court in Sonia Gandhi (supra) case. The learned senior Counsel has emphatically averred that the respondents were bound to give effect to the judgment of the Hon'ble Delhi High Court in Sonia Gandhi (supra) case. Quoting Paragraph 22 and 23 of the said judgment, the learned counsel has delineated the core elements of the judgment in the form of directives to the Delhi Government, the present Respondents, as outlined in paragraph 2.2 above. The moot question is if the respondents did not comply with the specific directions 32 C-3/Item-1 OA-3837/24 with OA-3841/24 of the Hon'ble Delhi High Court in order dated 6.11.2013, the remedy lies in filing contempt petition or execution application to get the order implemented. But a Fresh OA cannot be taken as a substitute for contempt petition nor an execution petition to get the orders implemented. Hence, this Tribunal is unable to accept the averment by the learned senior counsel that the policy dated 20.11.2020 is not as per the specific direction given by the Delhi High Court in Sonia Gandhi (supra) case and hence it is not tenable. This Tribunal is willing to adjudicate the legitimacy of the policy dated 20.11.2020, irrespective of the judgment in Sonia Gandhi (supra) case. However, we do intend to appreciate the spirit of the judgment in the said case. 7.7 To adjudicate the fourth issue we need to analyze whether the Policy dated 20.11.2020 is bad in law based on constitutional and statutory provisions pertaining to the issue at hand. The pleadings by the applicants in the instant case and the submission by the learned senior counsel on their behalf point out that not only the respondents could grant age relaxation, they should have gone further to regularize the contractual employees under various departments including the medical staff (for whom the Association has filed the present OAs) in light of spirit of the 33 C-3/Item-1 OA-3837/24 with OA-3841/24 judgment of the Delhi High court in Sonia Gandhi (supra) and the latest judgment of the Apex Court in Jaggo (supra) and the policy of 20.11.2020 should have been a plain regularization policy in respect of contractual employees of the Delhi Government, particularly the medical staff in various establishments. Hence, the policy falls short of the essence of these judgments.
8. The petitioners/ applicants in the OA have not sought regularization in their petitions/converted OAs. Hence, this Tribunal is unable to adjudicate the issue whether the applicants deserve to be regularized in the respective posts. Secondly, policy is the domain of the executive. The judicial authorities, except when a particular policy infringes upon the constutional/ statutory provision, cannot interfere in the respect of the specific contours of the policy. The learned counsel for the applicants has not brought to our notice violation of any constitutional or statutory provision in respect of the applicants qua the impugned policy. Hence, we cannot hold the policy dated 20.11.2020 as illegal. Moreover, as it has been rightly argued by the learned counsel for the respondents, that some members of the Applicant association have already taken benefit of the said policy, demanding 34 C-3/Item-1 OA-3837/24 with OA-3841/24 implementation of the provisions of similar policy issued by the respondents in respect of other departments in 2019.
8.1 Be as it may be, the respondents need to have a relook into the entire gamut of the regularization policy in view of the Apex court judgment in Jaggo (supra) case. It would be better if the respondents consider to have an omnibus policy for the contractual employees across all departments in light of Apex Court judgement in Secretary, State of Karnataka and ors. Vs. Umadevi and ors., AIR 2006 SC 1806 read with the further clarifications furnished by the Apex court in Jaggo (supra) case.
Conclusion:
9. In light of above findings, the present OAs are disposed of in the following manner:
In view of the Apex Court judgment in Jaggo (supra) case, we restrain from passing any order in respect of the Policy dated 20.11.2020 and the subsequent advertisements issued by the respondents in pursuance to that policy. The respondents are directed to consider the suggestion given in paragraph 8.1 above within a time bound manner, preferably within a period 6 35 C-3/Item-1 OA-3837/24 with OA-3841/24 months from the date of receipt of certified copy of this order.
9.1 There is no order as to costs. All pending MAs, if any, are disposed of accordingly.
(Dr. Chhabilendra Roul) (Pratima K. Gupta)
Member (A) Member (J)
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