Gujarat High Court
Chetankumar Sureshbhai Patel & 2 vs Oil And Natural Gas Corporation Limited ... on 30 June, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/12302/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12302 of 2015
With
SPECIAL CIVIL APPLICATION NO. 12303 of 2015
With
SPECIAL CIVIL APPLICATION NO. 20808 of 2015
With
SPECIAL CIVIL APPLICATION NO. 20828 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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CHETANKUMAR SURESHBHAI PATEL & 2....Petitioner(s)
Versus
OIL AND NATURAL GAS CORPORATION LIMITED & 1....Respondent(s)
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Appearance:
MS VIDHI J BHATT, ADVOCATE for the Petitioner(s) No. 1 - 3
DS AFF.NOT FILED (R) for the Respondent(s) No. 1
MR RAJNI H MEHTA, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 30/06/2016
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COMMON ORAL JUDGMENT
Since the issues raised in all the captioned writ- applications are more or less the same, those were heard analogously and are being disposed of by this common judgment and order.
The writ-applicants before me are serving as contractual employees with the ONGC. Some of the writ-applicants are serving as Dresser-cum-Hospital Attendants/Health Care Attendants and the other as Pharmacists. The details of each of the writ-applicants is as under :
SPECIAL CIVIL APPLICATION NO.12302 OF 2015 Name of the Petitioner Date of Designation No. of Joining years of service till date Chetankumar Sureshbhai 14.8.2008 Dresser-cum-Hospital 8 years Patel Attendant/Health Care Attendant Vipulkumar Govindbhai 14.8.2008 Pharmacist 8 years Patel Hiteshkumar Amrutlal 3.7.2014 Pharmacist 2 years Patel SPECIAL CIVIL APPLICATION NO.12303 OF 2015 Name of the Petitioner Date of Designation No. of Joining years of service till date Mineshbhai Kanubhai 1.1.2002 Dresser-cum-Hospital 14 years Patel Attendant/Health Care Attendant Maheshbhai Jerambhai 1.1.2002 Dresser-cum-Hospital 14 years Ahir Attendant/Health Care Page 2 of 31 HC-NIC Page 2 of 31 Created On Tue Jul 05 01:18:09 IST 2016 C/SCA/12302/2015 JUDGMENT Attendant Dishant Devenkumar 1.1.2002 Pharmacist 14 years Sagar Dharmeshbhai 1.1.2002 Dresser-cum-Hospital 14 years Sureshbhai Patel Attendant/Health Care Attendant SPECIAL CIVIL APPLICATION NO.20808 OF 2015 Name of the Petitioner Date of Designation No. of Joining years of service till date Chhaya Ravindra 17.10.200 Dresser-cum-Hospital 7 years and Bharambe 8 Attendant/Health Care 9 months Attendant Ashok Kantilal Jadav 6.7.2010 Dresser-cum-Hospital 5 years and Attendant/Health Care 11 months Attendant Kishor Dalsukhbhai 9.7.2010 Dresser-cum-Hospital 5 years and Parmar Attendant/Health Care 11 months Attendant Basirkhan Jivankhan 24.7.2012 Dresser-cum-Hospital 3 years and Chauhan Attendant/Health Care 11 months Attendant Vipulkumar Amrutbhai 1.10.2014 Dresser-cum-Hospital 1 year and 9 Parmar Attendant/Health Care months Attendant Ghanshyam Vishnudanji 30.7.2010 Pharmacist 5 years and Gadhavi 11 months Shaikh Mohammad Ilyas 10.8.2011 Pharmacist 4 years and 10 months Resha Maheshchandra 23.7.2012 Pharmacist 3 years and Matad 11 months Yogeshkumar Dahyalal 30.4.2007 Pharmacist 9 years and Modi 2 months Vibha Kantilal Patel 10.8.2010 Pharmacist 5 years and 10 months SPECIAL CIVIL APPLICATION NO.20828 OF 2015 Name of the Petitioner Date of Designation No. of Joining years of service till date Page 3 of 31 HC-NIC Page 3 of 31 Created On Tue Jul 05 01:18:09 IST 2016 C/SCA/12302/2015 JUDGMENT Suresh Dhanjibhai Patel 1.3.2002 Pharmacist 14 years and 3 months The writ-applicants have prayed for the following reliefs :
"A. Your Lordships may be pleased to issue a writ of mandamus commanding or directing the respondent Corporation to consider the case of the petitioners for regularization and grant them all the benefits granted to regular employees in the establishment of the respondent Corporation;
B. Your Lordships may be pleased to declare the action of the respondent Corporation in making the petitioners work on contract basis as violative of petitioner's fundamental rights guaranteed under Articles 14, 16, 21 and 23 of the Constitution;
C. Pending admission and final hearing of the present petition, Your Lordships may be pleased to restrain the respondent Corporation from terminating the services of petitioners or taking any coercive action against them; and D. Your Lordships be pleased to pass any other appropriate order, as deemed fit in the interest of justice."
The case of the writ-applicants may be summarised as under :
The writ-applicants came to be appointed as the Health Care Attendants and Pharmacists respectively in the plant/colony dispensary of the ONGC, Hazira Plant, Surat, on contractual basis. It is the case of the writ-applicants that they all were appointed after a regular recruitment process. It is their case that even advertisements were issued and pursuant Page 4 of 31 HC-NIC Page 4 of 31 Created On Tue Jul 05 01:18:09 IST 2016 C/SCA/12302/2015 JUDGMENT to the advertisements, they all had applied and were appointed. It is the case of the writ-applicants that initially they were appointed for a period of two years on contractual basis and the period of contract was, thereafter, renewed time to time. The contractual period comes to an end today i.e. 30th June 2016. Apprehending termination on expiry of the contractual period, they are here before this Court with these writ-applications.
Mr.Shalin Mehta, the learned senior counsel appearing for the writ-applicants vehemently submitted that the respondent no.1 Corporation is an instrumentality of the 'State' within the meaning of the Article 12 of the Constitution of India and is thus amenable to the writ-jurisdiction of this Court under Article 226 of the Constitution of India. According to the learned counsel, some of his clients have put in about 14 years of service and they are entitled to claim regularization.
Mr.Mehta, the learned senior counsel submitted that the appointment may be on contractual basis, but at the same time, after a full-fledged recruitment process. The counsel would submit that being an instrumentality of the 'State', the prayer for regularization in service ought to have been considered as a model employer.
The learned counsel appearing for the writ-applicants has placed strong reliance on the decision of the Supreme Court in the case of State of Karnataka and others v. Umadevi and others, (2006)4 SCC 1.
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On the other hand, all the writ-applications have been vehemently opposed by Mr.Rajni Mehta and Mr.Ajay Mehta, the learned counsel appearing for the ONGC.
The learned counsel appearing for the ONGC submitted that no case is made out by any of the writ-applicants for regularization in service. They submitted that all the writ- applicants were appointed on contractual basis for a fixed period, and once the contractual period comes to an end, it would be open for the ONGC to relieve them from service. They submitted that mere long service on contractual basis by itself would not confer any legal right on any of the writ- applicants to continue in service or claim regularization.
Mr.Rajni Mehta, the learned counsel submitted that some of the writ-applicants had applied pursuant to the advertisement which was issued in the recent past for the regular recruitment on the posts of Health Care Attendant and they could not even clear the exam. According to him, the law is well-settled that the contractual employees should make way for the regular recruited employees. The learned counsel would submit that the decision of the Supreme Court in the case of Umadevi (supra) would not help the writ-applicants in any manner.
In such circumstances referred to above, Mr.Mehta submitted that there being no merit in any of the writ- applications, they may be rejected. The learned counsel appearing for the ONGC submitted that the writ-applications should be rejected only on the ground that the writ-applicants Page 6 of 31 HC-NIC Page 6 of 31 Created On Tue Jul 05 01:18:09 IST 2016 C/SCA/12302/2015 JUDGMENT have an alternative efficacious remedy under the Industrial Disputes Act, 1947. The learned counsel appearing for the ONGC relied on the following decisions :
1. State of Andhra Pradesh and another v.
Sadanandam and others, AIR 1989 SC 2060;
2. Union of India and others v. S.L.Dutta and another, AIR 1991 SC 363;
3. State of Orissa and others v. Sukanti Mohapatra and others, (1993)2 SCC 486;
4. Secretary, State of Karnataka and others v. Umadevi and others, AIR 2006 SC 1806;
5. Post Master General, Kolkata and others v. Tutu Das (Dutta), (2007)5 SCC 317;
6. M.P.State Coop. Bank Ltd., Bhopal v. Nanuram Yadav and others, (2007)8 SCC 264;
7. State of Orissa and another v. Mamata Mohanty, (2011)2 JT 164.
The learned counsel appearing for the ONGC further submitted that having accepted the nature of appointment, as well as, conditions imposed in the contractual appointment order, the writ-applicants cannot wriggle out of those binding terms and conditions and seek their regularization on the basis of length of contractual service.
Having heard the learned counsel appearing for the Page 7 of 31 HC-NIC Page 7 of 31 Created On Tue Jul 05 01:18:09 IST 2016 C/SCA/12302/2015 JUDGMENT parties and having considered the materials on record, the only question that falls for my consideration is, whether the writ-applicants are entitled to any of the reliefs prayed for in the writ-applications.
Before adverting to the rival submissions canvassed on either side, let me look into the terms and conditions of the contractual appointment. By and large, those are as under :
1. He/She will be paid a consolidated sum of Rs.3500/-
per month as Honorarium. He/She will not be eligible for any other allowance/facilities, incentives as admissible to regular employees of the Corporation.
2. He/She will be posted at any of four ONGC Dispensaries or Plant Dispensary on 14 days ON/OFF shift pattern of duty. Pharmacist posted at our Plant Dispensary on 14 days ON/OFF shift pattern of duty will be provided free accommodation and food while on duty and no other benefit will be extended. ONGC will have no liability during his/her off duty. In the event of posting at Colony dispensaries, the normal working hours are from 0900 hrs to 1300 hrs and from 1730 hrs to 1930 hrs. He/She will be entitled to avail gazetted and other holidays as applicable to dispensary.
3. The period of engagement will be effective from the date of joining to 30.6.2010 and on completion of which the contract automatically stands terminated/may be extended subject to our requirement and performance.
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4. He/She will also attend to cases of emergency, if any, other than working hours. No extra remuneration/ honorarium will be paid for attending to any such emergency cases.
5. The above offer is purely on contract basis and he/she has not right to claim for regularization in ONGC later on, and also he/she shall not be considered for any regular vacancy of pharmacist, if any, to be filled by ONGC, unless he/she applies for the same and found suitable for the same in the normal process of recruitment.
6. The contract will be terminated by giving one month's notice, without assigning any reason from either side at any time and even prior to completion of one month.
7. If the above terms and conditions are acceptable to him/her, he/she should report for duty to I/C Medical Section, ONGC, PO ONGC Nagar, Surat, within five days from the receipt of this memorandum alongwith attested copies of his/her educational qualifications, experience, passport size photographs and two character certificates from Gazetted Officer and Medical certificate from a Civil Surgeon. He/She will be required to execute a contract. No TA/DA is admissible for joining the duties.
Thus, the terms and conditions referred to above make it abundantly clear that the offer of employment was purely on contract basis with a clarification that the candidates will have Page 9 of 31 HC-NIC Page 9 of 31 Created On Tue Jul 05 01:18:09 IST 2016 C/SCA/12302/2015 JUDGMENT no right to claim for regularization in service.
For the purpose of seeking a writ of mandamus, one has to establish the legal right. The petitioners do not have any legal right emanating from any statutory Rules/Regulation. In the absence of any provision for the regularization of contract employees, this Court should not give a direction to the respondents to consider the petitioners for regularization in service.
The Supreme Court has authoritatively ruled that the Courts should not issue directions to the department/ Government Institution or Organizations to regularize the services of an employee. Such a direction and implementation of the same would be violative of Articles 14 and 16 of the Constitution. When the petitioners were offered employment, the advertisement, as well as, the appointment order made it clear that the selection and appointment was on the contract basis. The contract appointment cannot be converted into a regular appointment on the sole ground that the petitioners have continued for more than a decade. Had the respondents notified the selection and appointment for the 'regular recruitment', large scale candidates who were eligible and/or already working elsewhere on contract basis would be denied to compete for selection and appointment. In other words, each and every eligible candidate must know the nature of public appointment. This Court should not give direction to regularize the petitioners' services by way of writ of a mandamus, since the petitioners have not pointed out under which statutory rules they have got the right to seek Page 10 of 31 HC-NIC Page 10 of 31 Created On Tue Jul 05 01:18:09 IST 2016 C/SCA/12302/2015 JUDGMENT regularization. Unless a legal right is vested in a person, the Court should not issue writ of mandamus to the respondents. Mandamus can be issued against a public authority only on its failure to perform mandatory legal duty. If there is no such failure, mandamus would not be issued.
The Supreme Court in the case of Mani Subrat Jain v. State of Haryana, (1977) 1 SCC 486 held as follows :-
"9. The High Court rightly dismissed the petitions. It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do something or to abstain from doing something (See Halsbury's Laws of England 4th Ed. Vol. I, paragraph 122; State of Haryana v. Subash Chander Marwaha & Ors. (1) Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed & Ors. (2) and Ferris Extraordinary Legal Remedies paragraph 198."
In the case of Tirumala Tirupathi Devasthanams vs. K.Jotheeswara Pillai (dead) by LRs and others, (2007)9 SCC 461, it has been held that :
"9. ........... The principles, on which a writ of mandamus can be issued, are well settled and we will refer to only one decision rendered in The Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. vs. Sipahi Singh, AIR 1977 SC 2149, where this Court observed as under :
"A writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation.
The chief function of a writ is to compel
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performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limits of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance."
The decision in Tutu Das (Dutta)'s case (supra), relied upon by the respondent's counsel is relevant to the present case, wherein the Supreme Court has referred to number of judgments including Umadevi's case (supra), to hold that the regularization of daily wagers is not permissible. It is necessary to take note of paragraph 12 of the judgment, which reads as follows :
"12. What was considered to be permissible at a given point of time keeping in view the decisions of this Court which had then been operating in the field, does no longer hold good. Indisputably the situation has completely changed in view of a large number of decisions rendered by this Court in last 15 years or so. It was felt that no appointment should be made contrary to the statutory provisions governing recruitment or the rules framed in that behalf under a statute or the proviso appended to Article 309 of the Constitution of India."
The administration of the States has to be carried on through the agency of large number of persons employed in various services and posts under the States. The services under the State Governments consist of civil services. There is relationship of master and servant between the States and its servants but such relationship is not left to be regulated as a mere contractual relationship in view of the provisions contained in part III of the Constitution (Fundamental Rights) Page 12 of 31 HC-NIC Page 12 of 31 Created On Tue Jul 05 01:18:09 IST 2016 C/SCA/12302/2015 JUDGMENT and part XIV (Articles 309 to 323). Their rights and obligations are all required to be determined by the provisions of statutes and statutory rules which may be framed or altered by the competent authority unilaterally and are not to be determined by consent of both the parties as in the case of contractual relationship. Matters relating to the services include the power to create or abolish the services or posts fixing the strength of a cadre, prescription of powers and duties attached to the post and every matter relating to services including matters relating to recruitment and conditions of service. It is competent for the legislature to provide for all matters relating to the services in exercise of its legislative power. The rules framed under Article 309 have to be strictly confined to recruitment and conditions of services of persons mentioned therein. Under Article 309 the power of legislature to regulate recruitment and conditions of service is wide and includes power to constitute a new cadre by merging certain existing cadres. Subject to the law made by legislature the rule has the same efficacy as that of legislative enactment. This legislative power carries with it the power to amend or alter the rules with retrospective effect. A rule made in exercise of the power under the proviso to Article 309 constitutes law within the meaning of Article 13. For the same reason such rule may be struck down only on such ground as may invalidate a legislative measure, e.g., violation of Articles 14 and 16 and not because the Court considers it to be unreasonable. (vide Shilpa Jindal v. CAT, Chandigarh Bench, Chandigarh, 2016 Law Suit (P&H) 1021).
In Umadevi's case (supra) it was held that the adherence to the rule of equality in Public Employment is a basic feature of our Constitution. The Court would certainly be disabled from Page 13 of 31 HC-NIC Page 13 of 31 Created On Tue Jul 05 01:18:09 IST 2016 C/SCA/12302/2015 JUDGMENT passing an order upholding of Article 14 in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution of India. The Court further rejected the prayer that the adhoc appointees working for long to be considered for regularization as such a course only encourages the State to flout its own rules of recruitment and would confer undue benefits on some at the cost of many waiting to compete.
The next word, which is of utmost importance in deciding the issue in this case, is the meaning of the word 'regularization'. The Constitution Bench in Umadevi's case (supra) has approved the judgments in (1) State of Mysore v. S.V.Narayanappa, (1967)1 SCR 128 (2) R.N.Nanjundappa v. T. Thimmiah & another (1972)1 SCC 409 and (3) B.N.Nagarajan and others v. State of Karnataka & others, (1979)3 SCR 937, where this word has been explained. To understand the concept of regularization, it is necessary to look into these decisions.
In R.N.Nanjundappa's case (supra), the Supreme Court, while considering the rules providing for methods of recruitment by promotion, selection or competitive examination has held as under :
"26. .........regularization cannot be said to be a form of appointment. Counsel on behalf of the respondent contended that regularization would mean conferring the quality of permanence on the appointment whereas Counsel on behalf of the State contended that regularization did not mean permanence but that it was a case of regularization of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is Page 14 of 31 HC-NIC Page 14 of 31 Created On Tue Jul 05 01:18:09 IST 2016 C/SCA/12302/2015 JUDGMENT in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularized. Ratification or regularization is possible of an act, which is within the power and province of the authority, but there has been some noncompliance with procedure or manner, which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."
In B.N. Nagarajan's case (supra), the meaning of the word 'regular' and 'regularization' has been further explained:-
"Firstly, the words 'regular' or 'regularization' do not connote permanence. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to the methodology followed in making the appointments. They cannot be construed so as to convey an idea of the nature of tenure of the appointments. W hen rules framed under Article 309 o f the Constitution of India are in force, no regularization is permissible in exercise of the executive powers of the Government under Art.162 thereof in contravention of the rules........."
A three judge Bench of the Apex Court in A.Umarani v. Registrar of Co-operative Societies and others, (2004)7 SCC 112 dealing with regularization has held as under:
"Regularization, in our considered opinion, is not and cannot be the 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. It is also now well settled that an appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization.
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40. It is equally well settled that those who come by back door should go through that door.
41. Regularization furthermore cannot give permanence to an employee whose services are accused hoc in nature.
45. No regularization is, thus, permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointment have been made in contravention of the statutory rules."
The Constitution Bench in Umadevi's case (supra) dealing with regularization has held as under :
"17. We have already indicated the constitutional scheme of public employment in this country, and the executive, or for that matter the Court, in appropriate cases, would have only the right to regularize an appointment made after following the due procedure, even though a non-fundamental element of that process or procedure has not been followed. This right of the executive and that of the court, would not extend to the executive or the court being in a position to direct that an appointment made in clear violation of the constitutional scheme, and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent.
18. xxx xxx xxx
19. One aspect arises. Obviously, the State is also controlled by economic considerations and financial implications of any public employment. The viability of the department or the instrumentality of the project is also of equal concern for the State. The State works out the scheme taking into consideration the financial implications and the economic aspects. Can the court impose on the State a financial burden of this nature by insisting on regularization or permanence in employment, when those employed temporarily are not needed permanently or regularly? As an example, we can envisage a direction to give permanent employment to all those who are being temporarily or casually employed Page 16 of 31 HC-NIC Page 16 of 31 Created On Tue Jul 05 01:18:09 IST 2016 C/SCA/12302/2015 JUDGMENT in a public sector undertaking. The burden may become so heavy by such a direction that the undertaking itself may collapse under its own weight. It is not as if this had not happened. So, the court ought not to impose a financial burden on the State by such directions, as such directions may turn counter-productive."
Subsequently, the ratio of the Constitution Bench judgment has been followed as reiterated for declining the claim of regularization of services made by the adhoc/temporary/daily wage/casual employment in the cases
(i) Indian Drugs and Pharmaceuticals Ltd. v. Workmen, (2007)1 SCC 408; (ii) Gangadhar Pillai v. Siemens Ltd., (2007)1 SCC 533; (iii) Kendriya Vidyalaya Sangthan v. L.V.Subramanyeshwara and another reported, (2007)5 SCC 326; and (iv) Hindustan Aeronautics Ltd. v. Dan Bahadur Singh and others, reported in (2007)6 SCC 207.
The doubts raised in the UP State Electricity Board v. Pooran Chandra Pandey, (2007)11 SCC 92, on the applicability of Umadevi's case (supra) in a case where regularization is sought for in pursuance of Article 14 of the Constitution or the conflict with the judgment of the seven judges bench in Maneka Gandhi v. Union of India, (1978)1 SCC 248, has also been set at rest in the case of Official Liquidator v. Dayanand and others, (2008) 10 SCC 1.
From the above discussion, it is clear that the law regarding regularization is now well-settled by the decision of the Constitution Bench of the Apex Court in Umadevi's case (supra). The said judgment holds the field and is binding.
What could be deduced from the cited decision is as Page 17 of 31 HC-NIC Page 17 of 31 Created On Tue Jul 05 01:18:09 IST 2016 C/SCA/12302/2015 JUDGMENT under :
(i) Any public employment has to be in terms of the Constitutional scheme.
(ii) Adherence to the rule of equality in public employment is a basic feature of our Constitution.
(iii) Regular appointment must be the rule.
(iv) A regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up.
(v) The appointment should be in terms of relevant rules and after a proper competition among the qualified persons. Otherwise, such appointment would not confer any right on the appointee.
(vi)If a contractual appointment is made, the appointment comes to an end at the end of the contract. The Government or the instrumentality of the State cannot confer any permanency of such employment either by way of regularization or by way of absorption.
(vii) If it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued.
(viii) A temporary employee could not claim to be made permanent on the expiry of his term of appointment.
(ix) Merely because a temporary employee or a casual wage worker is continued for a time being beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength on such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules.
(x) Regularization is not a mode of appointment.Page 18 of 31
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(xi) The Government or the instrumentality of the State cannot regularize the appointment made contrary to the course of selection as envisaged by the relevant rules governing the posts.
(xii) The High Court acting under Article 226 of the Constitution of India should not issue directions for regularization or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme.
(xiii) There should be no further by-passing of the constitutional requirement and regularization or making permanent those not duly appointed as per the constitutional scheme. [vide Shilpa Jindal (supra)] The constitutional principle is, thus, for providing equality of opportunity to all which mandatorily requires that each vacancy must be notified in advance, meaning thereby that the information of the recruitment must be disseminated in a reasonable manner in public domain ensuring maximum participation of all eligible candidates, thereby the right of equal opportunity and merit is effectuated.
The learned counsel appearing for the writ-applicants although contended that his clients were appointed on contract basis with due procedure, like advertisement and selection and in accordance with the constitutional scheme, yet the nature of the appointment is only for contract and it is for a limited period, that too, with the condition that such appointment would be till the regular recruitment is undertaken. Therefore, the contention canvassed on behalf of the writ-applicants that due procedure has been followed while appointing them on the posts is distinguishable for the purpose of regularization.
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In Umadevi's case (supra), the Supreme Court made it clear that, "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 bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme".
In Umadevi's case (supra), there is an exception. General principles against regularization like the employees who have worked for 10 years or more against a sanctioned post without the benefit or protection of the interim order of any Court or Tribunal. Thus, the employee should have been continued in the service voluntarily and without a break of more than 10 years and appointment of such employee should not be illegal even if irregular. Where the appointments are not made or continued against the sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments would be considered to be illegal. However, the employee while possessing the prescribed qualification and was working against the sanctioned post but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. Umadevi's case (supra) casts a duty upon the concerned Government or instrumentality to take the necessary steps to regularize the services of those irregularly appointed employees who had served for more than 10 years without the benefit or protection of any interim orders of Courts or Tribunals as a one-time measure. The said direction was to be set in motion within 6 months from the date of its Page 20 of 31 HC-NIC Page 20 of 31 Created On Tue Jul 05 01:18:09 IST 2016 C/SCA/12302/2015 JUDGMENT decision i.e. w.e.f. 10.4.2006. The true effect of the direction is that all employees who have worked for more than 10 years as on 10.4.2006, the date of decision in Umadevi's case (supra) are entitled to be considered for regularization, if otherwise they are eligible. Unfortunately, the case of the petitioners herein do not fall within the principle laid down by the Supreme Court in the case of Umadevi's case (supra). The conditions stipulated for regularisation would be prior to the date of disposal of Umadevi's case (supra) i.e. 10.4.2006. Consequently, it has no prospective application.
The equality clause enshrined in Article 16 requires that every appointment be made by an open advertisement as to enable all eligible persons to compete on merit. However, the appointment of the petitioners on contract basis was only for a limited period. It is to be understood that a contractual appointment comes to an end at the end of the contract. It is also a term of the contract as well as the law regulating the recruitment of persons on contract basis. Therefore, when such persons are to be recruited into service on permanent basis the law must again be followed i.e. all persons who are eligible be considered for appointment on permanent posts in accordance with the rules of recruitment and all of them should be given an opportunity by inviting applications indicating that selection and appointment to permanent/regular post/vacancy. That is the mandatory policy of Articles 14 and 16 of the Constitution. If the regularization of the petitioners is made, it would be per se illegal and discriminatory as those eligible candidates, who had the requisite merit are denied the right to compete for the subject post. There is no intelligible differentia to treat the petitioners Page 21 of 31 HC-NIC Page 21 of 31 Created On Tue Jul 05 01:18:09 IST 2016 C/SCA/12302/2015 JUDGMENT as a class by itself, so as to exclude other eligible candidates who possess the requisite qualification and other eligibility criteria.
One of the submissions canvassed on behalf of the writ- applicants is that they all have rendered service by now for more than a decade on contract basis and have crossed the age for regular recruitment. In such eventuality, at the most they can seek for relaxation in age as approved by the Supreme Court in Umadevi's case (supra).
I may also refer to a Division Bench decision of this Court in the case of Nareshkumar Manilal Parmar v. ONGC Limited and another (Letters Patent Appeal No.424 of 2001), wherein the Division Bench observed as under :
"In Central Inland Water Transport Corporation Ltd. and Anr. (supra), the Supreme Court had occasion to consider validity of Rule 9(i) of the Central Inland Water Transport Corporation (Service Discipline and Appeals) Rules, 1979. The said rule empowers the Corporation to terminate services of the permanent employees without any reason and by giving notice. While adjudicating the validity of the said rule, the Supreme Court has observed that said rule is void under Section 23 of the Contract Act, as being opposed to public policy and is also ultra vires Article 14 of the Constitution as well as violative of directive, principles contained in Article 39(d) and 41 of the Constitution. Further, the Supreme Court has observed that the principle is that Courts will not enforce and will, when called upon to do so, strike down unfair and unreasonable contract or unfair and unreasonable clause in a contract entered into between the parties who are not equal in bargaining power. In the case before us, we find that the agreement which was executed between the appellant No. 1 and the respondent is neither unfair nor unreasonable in its nature. Looking to the requirements and exigency of the situation, respondent had decided to engage the respondent No.1 as Page 22 of 31 HC-NIC Page 22 of 31 Created On Tue Jul 05 01:18:09 IST 2016 C/SCA/12302/2015 JUDGMENT pharmacist on contractual basis till regular appointment was made. All terms and conditions were mentioned in the advertisement as well as in the letter by which the respondent No.1 was engaged as pharmacist on contractual basis. Consequently, we are of the opinion that the principle laid down by the Supreme Court in the case of Central Inland Water Transport Corporation (supra) cannot be made applicable to the facts of the present case, more particularly in view of the provisions of Section 2(oo)(bb) of the Industrial Disputes Act, 1947.
....If the reliefs claimed in the petition are granted, the consequence would be that the appellant No. 1 who is not selected at regular selection process would get employment as a pharmacist pursuant to the orders of the Court and this simply cannot be done at all in a petition filed under Article 226 of the Constitution. The record does not indicate that the respondent has acted in any unfair manner, more particularly when the appellant No.1 was permitted to appear at regular selection process and during that time, his contractual engagement was extended by period of one year. On over all view of the matter, we are satisfied that no error is committed by the learned single Judge by dismissing the petition filed by the appellants and no ground was made out by the learned counsel for the appellants to warrant our interference with the same in the present appeal. Result is that the appeal is liable to be dismissed."
In Director, Institute of Management Development, U.P. v. Smt.Pushpa Srivastava, AIR 1992 SC 2070, the Supreme Court observed in para 20 to 23 as under :
"20. Because the six months' period was coming to an end on 28th February, 1991, she preferred the writ petition a few days before and prayed for mandamus which was granted by the learned Judge under the impugned judgment. The question is whether the directions are valid in law. To our mind, it is clear that where the appointment is contractual and by efflux of time, the appointment comes to an end, the respondent could have no right to continue in the post. Once this Page 23 of 31 HC-NIC Page 23 of 31 Created On Tue Jul 05 01:18:09 IST 2016 C/SCA/12302/2015 JUDGMENT conclusion is arrived at, what requires to be examined is, in view of the services of the respondent being continued from time to time on 'adhoc' basis for more than a year whether she is entitled to regularisation? The answer should be in the negative. However, reliance is placed by learned counsel on behalf of the respondent on the case in Jacob v. Kerala Water Authority, (1990 (1) Suppl SCR 562: AIR 1990 SC 2228) (supra).
21. This ruling, in our considered view, does not advance the case of the respondent, as it turned on the interpretation of Rule 9(a)(i) of Kerala State and Subordinate Service Rules of 1958. The relevant portion of the judgment is at page 569 (of Suppl SCR)': (at p. 2233 of AIR) which is extracted below.
"The claims made by the employees in this group of cases is contested mainly on the plea that their tenure and service conditions were regulated by Rule 9(a)(i) of the Kerala State and Subordinate Service Rules, 1958 (hereinafter called 'the Rules') which were statutory in character and were, therefore, binding on the Authority as well as the employees. it is contended that the employees belonging to different categories were appointed on different dates by the PHED prior to Ist April, 1984 under this rule and, therefore, their services could only be regulated thereunder."
22. In dealing with this, at page 577 (of 1990 (1) Supp SCR 562) : (at p. 2238 of AIR 1990 SC 2228), the Court observed "If any person who does not possess the requisite qualifications is appointed under the said clause, he will be liable to be replaced by a qualified person. Clause (iii) of Rule 9 states that a person appointed under clause (i) shall, as soon as possible, be replaced by a member of the service or an approved candidate qualified to hold the post. Clause (e) of Rule 9, however, provided for regularisation of service of any person appointed under clause (1) of sub-rule (a) if he had completed continuous service of two years on December 22, Page 24 of 31 HC-NIC Page 24 of 31 Created On Tue Jul 05 01:18:09 IST 2016 C/SCA/12302/2015 JUDGMENT 1973, notwithstanding anything contained in the rules. This is a clear indication that in the past the Government also considered it Just and fair to regularise the services of those who had been in continuous service for two years' period to the cut- off date. The spirit underlying this treatment clearly shows that the Government did not consider it just, fair or reasonable to terminate the services of those who were in employment for a period of two or more years'period to the cut-off date. 'This approach is quite consistent with the spirit of the rule which was intended to be invoked to serve emergent situations which could not brook delay. Such appointments were intended to be stop-gap temporary appointments to serve the stated purpose and not long term ones. The rule was not intended to fill a large number of posts in the service but only those which could not be kept vacant till regular appointments were made in accordance with the rules. But once the appointments continuted for long, the services had to be regularised if the incumbent possessed the requisite qualifications as was done by subrule (e). Such an approach alone would be consistent with the constitutional philosophy adverted to earlier. Even otherwise, the rule must be so interpreted, if the language of the rule permits, as will advance this philosophy of the Constitution. If the rule is so interpreted it seems clear to us that employees who have been working on the establishment since long, and who possess the requisite qualifications for the job as obtaining on the date of their employment, must be allowed to continue on their jobs and their services should be regularised."
23. In the instant case, there is no such rule. The appointment was purely ad hoc and on a contractual basis for a limited period. Therefore, by expiry of the period of six months, the right to remain in the post comes to an end."
In Gridco Ltd. and another v. Sadananada Doloi and others, AIR 2012 SC 729, the Supreme Court observed in para Page 25 of 31 HC-NIC Page 25 of 31 Created On Tue Jul 05 01:18:09 IST 2016 C/SCA/12302/2015 JUDGMENT 26, 27 and 28 as under :
"26. A conspectus of the pronouncements of this court and the development of law over the past few decades thus show that there has been a notable shift from the stated legal position settled in earlier decisions, that termination of a contractual employment in accordance with the terms of the contract was permissible and the employee could claim no protection against such termination even when one of the contracting parties happened to be the State. Remedy for a breach of a contractual condition was also by way of civil action for damages/compensation. With the development of law relating to judicial review of administrative actions, a writ Court can now examine the validity of a termination order passed by public authority. It is no longer open to the authority passing the order to argue that its action being in the realm of contract is not open to judicial review. A writ Court is entitled to judicially review the action and determine whether there was any illegality, perversity, unreasonableness, unfairness or irrationality that would vitiate the action, no matter the action is in the realm of contract. Having said that we must add that judicial review cannot extend to the Court acting as an appellate authority sitting in judgment over the decision. The Court cannot sit in the armchair of the Administrator to decide whether a more reasonable decision or course of action could have been taken in the circumstances. So long as the action taken by the authority is not shown to be vitiated by the infirmities referred to above and so long as the action is not demonstrably in outrageous defiance of logic, the writ Court would do well to respect the decision under challenge.
27. Applying the above principles to the case at hand, we have no hesitation in saying that there is no material to show that there is any unreasonableness, unfairness, perversity or irrationality in the action taken by the Corporation. The Regulations governing the service conditions of the employees of the Corporation, make it clear that officers in the category above E-9 had to be appointed only on contractual basis.
28. It is also evident that the renewal of the contract of Page 26 of 31 HC-NIC Page 26 of 31 Created On Tue Jul 05 01:18:09 IST 2016 C/SCA/12302/2015 JUDGMENT employment depended upon the perception of the management as to the usefulness of the respondent and the need for an incumbent in the position held by him. Both these aspects rested entirely in the discretion of the Corporation. The respondent was in the service of another employer before he chose to accept a contractual employment offered to him by the Corporation which was limited in tenure and terminable by three months' notice on either side. In that view, therefore, there was no element of any unfair treatment or unequal bargaining power between the appellant and the respondent to call for an over-sympathetic or protective approach towards the latter. We need to remind ourselves that in the modern commercial world, executives are engaged on account of their expertise in a particular field and those who are so employed are free to leave or be asked to leave by the employer. Contractual appointments work only if the same are mutually beneficial to both the contracting parties and not otherwise."
Thus, having regard to the nature of the appointment and the position of law as explained by the Supreme Court in various decisions referred to above, it is difficult for this Court to grant any relief in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India.
Mr.Mehta, the learned senior counsel appearing for the petitioners made one last effort by submitting that the services of the petitioners be protected on humanitarian ground. Mr.Mehta submits that this case reflects a sorry state of affairs where none other than the ONGC, on the sheer strength of its bargaining power, has taken the advantage of its position and imposed wholly inequitable and unreasonable conditions of employment on their employees who did not have any other choice but to accept the employment on the terms and conditions offered by the ONGC. According to Mr.Mehta, this Page 27 of 31 HC-NIC Page 27 of 31 Created On Tue Jul 05 01:18:09 IST 2016 C/SCA/12302/2015 JUDGMENT action of the ONGC is violative of Article 14 of the Constitution of India. He invited my attention to the observations of the Supreme Court made in para 88 in the case of the Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly and another, (1986)3 SCC 156, which are as under :
"88. As seen above, apart from judicial decisions, the United States and the United Kingdom have statutorily recognized, at least in certain areas of the law of contracts, that there can be unreasonableness (or lack of fairness, if one prefers that phrase) in a contract or a clause in a contract where there is inequality of bargaining power between the parties although arising out of circumstances not within their control or as a result of situations not of their creation. Other legal systems also permit judicial review of a contractual transaction entered into in similar circumstances. For example, section 138(2) of the German Civil Code provides that a transaction is void "when a person"
exploits "the distressed situation, inexperience, lack of judgmental ability, or grave weakness of will of another to obtain the grant or promise of pecuniary advantages........which are obviously disproportionate to the performance given in return." The position according to the French law is very much the same."
The submission of Mr.Mehta reminds me of the observations made by a Division Bench of the High Court of Himachal Pradesh in the Letters Patent Appeal No.132 of 2014 titled "Dr.Lok Pal v. State of Himachal Pradesh", decided on 18th December 2014. The observations are as under :
"89. Should then our courts not advance with the times? Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by, leaving us floundering in the sloughs of nineteenth-century theories? Should the strong be permitted to push the Page 28 of 31 HC-NIC Page 28 of 31 Created On Tue Jul 05 01:18:09 IST 2016 C/SCA/12302/2015 JUDGMENT weak to the wall? Should they be allowed to ride roughshod over the weak? Should the courts sit back and watch supinely while the strong trample underfoot the rights of the weak? We have a Constitution for our country. Our judges are bound by their oath to "uphold the Constitution and the laws". The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Art.14."
It is true that the Courts will not enforce, and when called upon, should not hesitate to strike down an unfair and unreasonable contract or unfair and unreasonable clause in a contract entered into between the parties who are not equal in the bargaining power. However, it would all depend upon the nature of such a clause in a contract. It is difficult to give an exhaustive list of all bargains of this type.
The Division Bench of the High Court of Himachal Pradesh in Dr.Lok Pal (supra) proceeded further to observe :
"For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to Page 29 of 31 HC-NIC Page 29 of 31 Created On Tue Jul 05 01:18:09 IST 2016 C/SCA/12302/2015 JUDGMENT accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infra-structural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its, own facts and circumstances."
I may only say that although I have all the sympathies for the petitioners whose period of contract is going to come to an end today, yet, as a Judge, I have my own limitations. The matters in the Court of Law should not be decided only on sympathy and sentiments. At times, the law may appear and prove to be very harsh for a common man, more particularly, when it is not able to protect his bread and butter, but still it remains the law, which one and all has to abide and respect.
In the facts and circumstances of the case, the terms of the contract cannot be said to be so unfair and unreasonable, which could be said to be shocking to the conscience of the Court.
It is clarified that in future if any fresh advertisement is issued by the ONGC, then it will be open for the writ-applicants to apply pursuant to the same provided the eligibility criteria stipulated therein is fulfilled. If age is the only factor, then the Page 30 of 31 HC-NIC Page 30 of 31 Created On Tue Jul 05 01:18:09 IST 2016 C/SCA/12302/2015 JUDGMENT ONGC may consider relaxing the same in accordance with the law.
For the foregoing reasons, all the writ-applications fail and are hereby rejected. Rule discharged. Ad-interim order earlier granted stands vacated forthwith.
(J.B.PARDIWALA, J.) MOIN Page 31 of 31 HC-NIC Page 31 of 31 Created On Tue Jul 05 01:18:09 IST 2016