Allahabad High Court
Greater Noida Industrial Development ... vs Surendra Kumar & Others on 29 October, 2013
Bench: Rajes Kumar, M. C. Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Case :- WRIT - A No. - 65789 of 2011 Petitioner :- Greater Noida Industrial Development Authority & Another Respondent :- Surendra Kumar & Others Counsel for Petitioner :- Ramendra Pratap Singh,Nisheeth Yadav Counsel for Respondent :- Amit Krishan,A. Kumar,S.C. ****** Hon'ble Rajes Kumar,J.
Hon'ble M. C. Tripathi,J.
(Delivered by Hon'ble Rajes Kumar, J.) Heard Sri Nisheeth Yadav, learned counsel for the petitioner and Sri R.B. Singhal, learned Senior Advocate, assisted by Sri Amit Krishan, appearing on behalf of the respondents.
By means of the present petition, the petitioners have challenged the order dated 23rd June, 2011, passed by the State Public Services Tribunal, in Claim Petition No. 174 of 2011, by which the Tribunal has directed to consider the regularisation of the services of the respondents with effect from the date of existence of the vacancies, that is, 20th November, 2002, in accordance with the judgment of the High Court and also to grant all the consequential benefits arising out of it.
The brief facts, giving rise to the controversy involved in the present writ petition, are that the respondents were appointed as the Assistant Managers in the Greater NOIDA Industrial Development Authority on contractual basis initially for a period of 89 days. It is not clear from the pleadings whether the respondents have been engaged on the contractual basis pursuant to any advertisement, by following the proper procedure or not. It appears that the appointments of the respondents were not made against sanctioned vacant posts. However, their engagements have been subsequently extended from time to time with some break. It is informed that the initial engagements of the respondents were made on 23rd November, 1994.
The petitioner no.1, published an advertisement dated 20th November, 2002, inviting application for engagement on the post of Assistant Manager (Civil). The respondent no.1, who has been been engaged on the contractual basis, filed the writ petition, being Writ Petition No. 54072 of 2002, seeking the following reliefs:
"(i) issue a writ, order or direction in the nature of certiorari quashing the Advertisement/Notification dated 20.11.2002 (Annexure No.1 to this writ petition) as published in Hindi Daily Amar Ujala and Dainik Jagran, issued under the signature of Dy. Chief Executive Officer, Greater Noida Industrial Development Authority in so far as the post of Assistant Managers (Civil) are concerned.
(ii) issue a writ, order or direction in the nature of mandamus directing the respondent authorities to regularize the service of the petitioner on the post of Greater Noida Industrial Development Authority within the period to be specified by this Hon'ble Court.
(iii) issue a writ, order or direction in the nature of mandamus directing the respondent authorities to pay the petitioner his regular monthly salary in the pay scale of Rs.5000-8000 for the post of Assistant Manager (Civil) including arrear of salary w.e.f. The date of his initial appointment.
(iv) issue any other writ, order or direction which this Hon'ble Court deems fit and proper in the circumstances of the case.
(v)award the costs of the petition to the petitioner."
The petitioners contested the reliefs claimed by the respondent no.1 on the ground that the petitioner was engaged on the contractual basis under the terms and conditions and he had no right whatsoever to claim regularisation of his services. The counter affidavit filed by the petitioners is Annexure-1 to the present writ petition. It appears that some similarly situated persons have also filed the writ petitions. All such writ petitions have been connected alongwith the Writ Petition No. 54072 of 2002 and have been decided finally by the learned Single Judge vide order dated 28th September, 2005. While deciding the writ petitions, the learned Single Judge has observed as under:
"There is another aspect of the matter. The petitioner has been working since 1993 continuously, except for the artificial break of a day or two. In view of the long period of service rendered by the petitioner, and in view of the fact, that there was a requirement of work, it has assumed a certain kind of permanency. Further, in view of the fact that in the past, the authority had regularised the services of the contract employees, the petitioner acquired a legitimate expectation for the regularisation of their services on the vacant post existing in the department.
In view of the aforesaid, the petitioner has made out a valid claim for the regularisation of his services as per the regularisation rules. Since similarly situated persons have been regularised, the same treatment is to be given to the petitioner. The respondents cannot adopt different standards for similarly situated persons, as that would not only be arbitrary, but also discriminatory.
Consequently, the writ petition succeeds and is allowed with costs. The respondents are directed to consider the claim of the petitioner for the regularisation of his services on the existing vacancy within three months from the date of the receipt of this judgment before the authority concerned. The existing vacancies would be filled up from the contract employees as per the regularisation rules and only thereafter, if any, vacancy still exists, the same would be filled up through direct recruitment after inviting applications through a fresh advertisement. The advertisement dated 20.11.2002 is accordingly quashed."
Against the said order of the learned Single Judge, the petitioners filed Special Appeal, being Special Appeal No. 1432 of 2005. The Special Appeal has been entertained on 5th December, 2005, by a Division Bench, consisting of Hon'ble Dr. Justice B.S.Chauhan (As His Lordship then was) and Hon'ble Mr. Justice Dilip Gupta and following interim order was passed.
"Hon'ble Dr. B.S. Chauhan, J.
Hon'ble Dilip Gupta, J.
This Special Appeal deals with the issue of regularization, wherein in State of Haryana & Ors Vs. Piera Singh & Ors., AIR 1992 SC 2130 it has been observed by the Hon'ble Supreme Court that any person who had been appointed by a procedure not in consonance with the requirements of Article 14 and 16 of the Constitution cannot seek regularization. This view has been reiterated time and again including the recent judgment in A. Umarani Vs. Registrar, Co-operative Societies & Ors, (2004) 7 SCC 112 followed in (2004) 8 SCC 262 and also in the case reported in Mahendra L. Jain & Ors., 2005 (1) SCC 639, and in Dhampur Sugar Mills Ltd. vs. Bhola Singh 2005 (2) SCC 470.
In this instant case there is no pleading that the appointment of the respondent employee had ever been made by advertising the vacancy or after meeting the requirement of Articles 14 and 16 of the Constitution.
At this stage Sri Aditya Kumar Singh, learned Counsel for the respondent prays for time to file an affidavit explaining under what manner and under what circumstances he had made the application to seek employment on contract basis from Greater NOIDA.
List on 21st December, 2005.
Meanwhile status quo as on date regarding the status of the employment shall be maintained."
Date: 05.12.2005 Sd/- Dr. B.S. Chauhan, J.
Sd/- Dilip Gupta, J."
The Special Appeal No. 1432 of 2005 was finally disposed of on 13th January, 2010 with following directions:
"This special appeal is disposed of with the direction to Greater Noida Industrial Development Authority to take a final decision in pursuance of the policy framed by it for regularization of 27 employees which have been approved by the State Government on 5.3.2008 within the period of three months from the date a certified copy of this order is produced before the Chief Executive Officer. The Chief Executive Officer in compliance of the direction of the order dated 25.9.2005 shall fill the existing vacancy by contract employees as per the policy decision taken by the State Government and thereafter if any vacancy remains the appellant shall publish fresh advertisement."
In paragraph xi of the writ petition, it is stated that during the pendency of the writ petition, a scheme for regularisation of the contractual employees had been formulated whereunder, a policy was framed regarding regularisation of 27 numbers of contractual employees, who had been engaged initially for a period of 89 days, but had continued on contractual establishment for some time. Under this policy, it was decided that 60% of the vacancy shall be filled up from the said 27 contractual employees, while the remaining 40% of the vacancy shall be filled up by direct recruitment. It was also decided that the seniority of the persons whose services would be regularised under this policy would be counted from the date of submission of the joining report. Copy of the policy is Annexure-3 to the writ petition. The said policy was sent to the State Government vide letter dated 31st July, 2006. The State Government vide letter dated 5th March, 2008 has approved the decision taken by the petitioners for regularisation of 27 employees, who have been engaged on contractual basis initially for a period of 89 days and directed the petitioner to take necessary action in this regard. Copy of the policy of regularisation is Annexure-III to the writ petition, which reads as follows:
xzsVj uks,Mk vkS|ksfxd fodkl izkf/kdj.k esa 89 fnuksa dh lafonk ij dk;Zjr 27 vf/kdkfj;ksa ,oa deZpkfj;ksa ds fu;ferhdj.k gsrq izLrkfor uhfr 1- 89 fnuksa dh lafonk ij dk;Zjr vf/kdkfj;ksa ,oa deZpkfj;ksa dh U;wure lsok vof/k 3 o"kZ j[kh tk;sxh vFkkZr izkf/kdj.k esa mDr vf/kdkjh@deZpkjh }kjk U;wure 3 o"kZ dh lafonk vof/k ij dk;Z fd;k x;k gksA blls de vof/k dh lsok vof/k ij f'kfFkyrk iznku djus dk vf/kdkj eq[; dk;Zikyd vf/kdkjh esa fufgr gksxkA 2- 89 fnuksa dh lafonk ij dk;Zjr vf/kdkjh ,oa deZpkjh lafonk ij fu;qfDr ds le; in dh U;wure 'kSf{kd@rduhdh vgZrk,sa iw.kZ djrs gksA 3- 89 fnuksa dh lafonk ij dk;Zjr vf/kdkjh ,oa deZpkjh ds fu;ferhdj.k gsrq izLrko ij rHkh fopkj fd;k tk;sxk tc in fjDr gks] ftlds lkis{k fu;ferhdj.k fd;k tkuk gS rFkk deZpkjh@vf/kdkjh in ls lacaf/kr U;wure vgZrk,sa iw.kZ djrs gksA 4- 89 fnuksa dh lafonk ij dk;Zjr vf/kdkfj;ksa ,oa deZpkfj;ksa ds fdlh Hkh laoxZ esa fu;ferhdj.k ml laoxZ esa lh/kh HkrhZ gsrq fjDr@foKkfir inksa dk 60 izfr'kr lafonk ij dk;Zjr deZpkfj;ksa gsrq vkjf{kr j[kk tk; rFkk 'ks"k 40 izfr'kr ij lh/kh HkrhZ dh tk;sxhA 5- 89 fnuksa dh lafonk ij dk;Zjr vf/kdkfj;ksa ,oa deZpkfj;ksa dk fu;ferhdj.k ml laoxZ esa lafonk ij fu;qfDr dh ofj"Brk ds vk/kkj ij fd;k tk;sxkA 6- 89 fnuksa dh lafonk ij dk;Zjr vf/kdkfj;ksa ,oa deZpkfj;ksa dk ;fn fu;ferhdj.k fd;k tkrk gS rks fu;fer deZpkjh dh ofj"Brk ml laoxZ esa U;wure gksxh vFkkZr~ fu;fer deZpkjh@vf/kdkjh dh ofj"Brk vius laoxZ esa fu;ferhdj.k ds ckn ;ksxnku vk[;k dh frfFk ls ekuh tk;sxhA 7- 89 fnuksa dh lafonk ij dk;Zjr 27 vf/kdkfj;ksa ,oa deZpkfj;ksa esa ls ftu vf/kdkjh@deZpkfj;ksa ds in uke l`ftr ugh gS ¼mnkgj.kr;k VsyhQksu vkijsVj] lqijokbZtj] fjdkMZ dhij ,oa gsYij½ mu vf/kdkfj;ksa@deZpkfj;ksa dh U;wure vgZrk,sa fu/kkZfjr djrs gq, mudks izkIr lesfdr osrueku ds lekukUrj vU; l`ftr in ij fu;ferhdj.k ij fopkj fd;k tk;sxk rkfd mudh inksUufr dSMj LVªDpj ds vuq:i fu/kkZfjr lksikuksa ds vuqlkj gksrh jghA vfirq muds dk;Z dh izd`fr muds ewy in ds vuqlkj gh jgsxhA 8- 89 fnuksa dh lafonk ij dk;Zjr 27 vf/kdkfj;ksa ,oa deZpkfj;ksa esa ls ;fn fdlh vf/kdkjh@deZpkjh ds }kjk viuh lsok vof/k esa dksbZ nqjkpj.k (Misconduct) fd;k tkrk gS rks fu;ferhdj.k gsrq bl rjg ds izdj.kksa esa eq[; dk;Zikyd vf/kdkjh@fu;qfDr vf/kdkjh dk fu.kZ; vfUre gksxkA 9- 89 fnuksa dh lafonk ij dk;Zjr 27 vf/kdkfj;ksa@deZpkfj;ksa esa ls ftu vf/kdkfj;ksa ,oa deZpkfj;ksa ds in Lohd`r@fjDr ugh gS] mUgs in l`ftr gksus rd 89 fnuksa ij iwoZ dh HkkWfr gh 89 fnuksa dh lafonk ij gh lsok esa j[kk tk;sxkA 10- 89 fnuksa dh lafonk ij dk;Zjr vf/kdkfj;ksa ,oa deZpkfj;ksa ds fu;ferhdj.k gsrq miyC/k inksa ij fu;ferhdj.k mijkUr gh fu;qfDr izfdz;k ds vUrxZr fu;qfDr dh tk;sxh vFkkZr dqy fjDr 5 inksa esa ls 60 izfr'kr dksVk lafonk dfeZ;ksa ds fu;ferhdj.k ds mijkUr 2 inksa ij foKkiu ds }kjk p;u izfdz;k iw.kZ dh tk;sxhA 11- 89 fnuksa dh lafonk ij dk;Zjr 27 vf/kdkfj;ksa ,oa deZpkfj;ksa ds fu;ferhdj.k gsrq fu/kkZfjr 60@40 dk izfr'kr 01 o 02 inksa ij fuEukuqlkj ykxw gksxk
(i) ,n in gksus ij og in 89 fnuksa dh lafonk ij dk;Zjr vf/kdkfj;ksa@deZpkfj;ksa esa ls Hkjk tk;sxk vFkkZr 01 in fjDr gksus ij mldh iwfrZ lafonk ij dk;Zjr vf/kdkjh@deZpkjh ls gh gksxhA
(ii) nks in gksus ij 89 fnuksa dh lafonk ij dk;Zjr vf/kdkfj;ksa@deZpkfj;ksa esa ls 01 in lafonk ij dk;Zjr vf/kdkjh@deZpkjh ls fu;fer gksxk ,oa 'ks"k 01 in ij lh/kh HkrhZ dh tk;sxhA
(iii) nks ls vf/kd in gksus ij 60 izfr'kr lafonk ij dk;Zjr vf/kdkfj;ksa@deZpkfj;ksa ls ,oa 40 izfr'kr lh/kh HkrhZ ls Hkjs tk;sxsA By the letter dated 5.3.2008 issued by the under Secretary that the aforesaid policy has been approved by the Government. The contents of the letter are as follows:
la[;k&lh-,e- 53@77&4&08&262u&91 izs"kd] dkth ,e-,- eqtrck] vuq lfpo] mRrj izns'k] 'kkluA lsok esa] eq[; dk;Zikyd vf/kdkjh] xzsVj ukS,Mk] xkSrecq) uxjA vkS|ksfxd fodkl vuqHkkx&4 y[kuÅ% fnukad 05 ekpZ 2008 fo"k;% xzsVj ukS,Mk izkf/kdj.k esa lafonk ij dk;Zjr 27 deZpkfj;ksa ds fu;ferhdj.k ds laca/k esaA egksn;] d`i;k mi;qZDr fo"k;d vius i=kad%& xzs-ukS-@eq-dk-v-@dkfeZd@2006@1755 fnukad 31-07-07 dk lanHkZ xzg.k djus dk d"V djsa ftlds }kjk izkf/kdj.k esa 89 fnuksa dh lafonk ij dk;Zjr 27 deZpkfj;ksa ds fu;ferhdj.k gsrq uhfr cukrs gq, bl laca/k esa ek0 mPp U;k;ky; esa nkf[ky ;kfpdkvksa esa mDr uhfr dks lekfgr djrs gq, izkf/kdj.k dh vksj ls izfr'kiFk i= nkf[ky fd;s tkus dk mYys[k djrs gq, izLrkfor uhfr ij Lohd`fr iznku fd;s tkus dk vuqjks/k fd;k x;k gSA 2- bl laca/k esa eq>s ;g dgus dk funs'k gqvk gS fd 'kklu }kjk 89 fnuksa dh lafonk ij dk;Zjr 27 dfeZ;ksa ds fu;ferhdj.k ds laca/k esa xzsVj ukS,Mk }kjk izLrkfor uhfr ij xzsVj ukS,Mk izkf/kdj.k Lrj ij fu.kZ; ysus dh Lohd`fr iznku dh tkrh gSA vr,o vuqjks/k gS fd izdj.k esa fu.kZ; ysdj vxzsrj dk;Zokgh lqfuf'pr djsa rFkk d`r dk;Zokgh ls 'kklu dks Hkh voxr djkus dk d"V djsaA Hkonh;] g0 viBuh;
¼dkth ,e-,- eqtrck½ vuq lfpo^^ It is informed that by the appointment letter dated 6th August, 2010, all the 27 contractual employees have been appointed on the post of Assistant Manager (Pariyojana Civil). The contents of one of the appointment letters, in the case of Surendra Kumar, reads as follows:
xzsVj ukS,Mk vkS|ksfxd fodkl izkf/kdj.k] 169] fprou ,LVsV] lSDVj&xkek&2 xzsVj ukS,Mk flVhA i=kad%&xzs-uks-@dkfeZd@fu;q0@2010@32033 fnukad 6-8-2010 fu;qfDr vkns'k xzsVj ukS,Mk vkS|ksfxd fodkl izkf/kdj.k esa lgk;d izca/kd ¼ifj;kstuk&flfoy½ ds in ij osru cS.M&2] :0 9300&34800] xzsM osru&4200 ij Jh lqjsUnz dqekj iq= Jh gj xksfoUn flag dh fu;qfDr dh tkrh gSA Jh lqjsUnz dqekj dks osru ds vfrfjDr fu;ekuqlkj egxkWbZ HkRrk ,oa vU; HkRrs Hkh ns; gksxasA fu;qfDr dh lsok 'krsZa fuEu izdkj gS%& 1- vkidh lsok,sa vLFkk;h gksxh rFkk ijhoh{kk vof/k ,d o"kZ gksxh] ftldh vof/k ,d o"kZ vkSj c 2- vkidh lsok,sa izkf/kdj.k }kjk le;≤ ij izpfyr fu;eksa ,oa mi fu;eksa ds v/khu gksxhA 3- vkidk eq[;ky; izkf/kdj.k dk eq[;ky; jgsxk rFkk vkidk LFkkukUrj.k fdlh Hkh LFkku ij fd;k tk ldrk gSA 4- vkidks ,sls vf/kdkjh@i;Zos{kd ds v/khu@ekxZn'kZu esa dk;Z djuk gksxk] ftls izkf/kdj.k le;≤ ij funsZf'kr djsaA vkidks ,sls vf/kdkjh@i;Zos{kd ftlds v/khu vkidh rSukrh dh xbZ gS] ds }kjk le;≤ ij lkSais x;s dk;ksZa@mRrjnkf;Roksa dk fuoZgu fu"BkiwoZd djuk gksxkA 5- izkf/kdj.k esa ;ksxnku djrs le; fdlh ljdkjh vLirky@fMLisUljh ds fpfdRlk vf/kdkjh@bapktZ ls viuk 'kkjhfjd LoLFkrk izek.k i= izLrqr djuk gksxkA 6- ;ksxnku nsrs le; vius {ks= ds mi ftykf/kdkjh@{ks=kf/kdkjh ¼iqfyl½] rglhynkj [k.M fodkl vf/kdkjh vFkok m0iz0 'kklu ds la;qDr lfpo Lrj ds vf/kdkjh esa ls fdUgh nks vf/kdkfj;ksa ls pfj= izek.k&i= rFkk lkFk esa 'kSf{kd ;ksX;rk izek.k&i=] rFkk vk;q laca/kh izek.k&i= dh lR;kfir izfrfyfi;kW izLrqr djuh gksxhA ;fn vki igys ls gh fdlh foHkkx esa dk;Zjr gS] rks ml foHkkx ls dk;ZeqfDr dk vkns'k izLrqr djuk gksxkA 7- ;fn vki vuqlwfpr tkfr@tutkfr@fiNM+h tkfr ls lacaf/kr gS vFkok LorU=rk lsukuh ds vkfJr@HkwriwoZ lSfud@fodykax gS] rks bl vk'k; dk l{ke vf/kdkjh }kjk iznRr izek.k&i= rFkk mldh lR;kfir izfrfyfi;kW ;ksxnku ds le; izLrqr djuh gksxhA 8- vkidh fu;qfDr iqfyl }kjk vkids pfj= ,oa iwoZo`Rr ds lUrks"ktud lR;kiu ij fuHkZj gSA ;fn iqfyl }kjk dksbZ izfrdwy lwpuk nh tkrh gS rks vkidh fu;qfDr rRdky izHkko ls lekIr dj nh tk;sxh vkSj vkidks nh xbZ /kujkf'k ;fn dksbZ gks] C;kt lfgr izkf/kdj.k esa okfil djuh gksxhA 9- ;fn vkids }kjk dksbZ ?kks"k.kk ;k izLrqr dh xbZ [email protected]&i= ckn esa QthZ ;k tkyh ik;k tkrk gS ;k vkosnu djrs le; ;fn vkius tku cw>dj ,sls rF;ksa dks fNik;k gS tks vU;Fkk vkidh fu;qfDr ij izfrdwy izHkko Mkyrs gS rks vkidh lsok,sa lekIr dh tk ldrh gS vkSj vkids fo:) ,slh dksbZ dk;Zokgh] ftlds izkf/kdkj.k mfpr le>s] dh tk ldrh gSA ;fn mijksDr lsok 'krsZsa Lohdkj gks rks bl izkf/kdj.k esa viuk ;ksxnku fnukad 21-8-2010 rd vo'; ns nas vU;Fkk fu;qfDr j) eku fy;k tk;sxkA bl izkf/kdj.k esa ;ksxnku nsus ds laca/k esa vkidks ;k=k HkRrk vFkok vU; HkRrk ns; ugh gksxkA g0 viBuh;
¼jek je.k½ eq[; dk;Zikyd vf/kdkjh izfrfyfi& 1- Jh lqjsUnz dqekj iq= Jh gj&xksfoUn flag] fuoklh&xzke fpVgsjk] nknjh] ftyk&xkSrecq)uxj] m0iz0A 2- leLr foHkkxk/;{k] xzsVj ukS,MkA 3- ofj"B izca/kd ¼flLVe½] xzsVj ukS,MkA 4- izca/kd ¼fof/k½@ izkf/kdj.k vf/koDrk] mPp U;k;ky;] bykgkckn dks fjV ;kfpdk la[;k%& 1432@2005 esa ikfjr vkns'k fnukad 13-01-2010 ds vuqikyu esa lwpukFkZ ,oa dk;Zokgh gsrqA g0 viBuh;
¼izeksn pUnz xqIrk½ mi eq[; dk;Zikyd vf/kdkjh Against the said appointment letter, dated 6th August, 2010, the respondents filed the Claim Petition No. 174 of 2011 before the State Services Tribunal with the request to modify the said order, which relates to the fresh appointment, with the further direction to regularise services of respondents from the date of existence of vacancy with all consequential benefits, in accordance with the judgment of the High Court. The Bench of the Tribunal disposed of the claim petition by the impugned order dated 23rd June, 2011, with the following direction:
"In view of above discussions, the claim petition is allowed. The Opposite Parties are directed to consider the regularization of the services of the petitioners w.e.f. The date of existence of vacancy i.e. 20.11.02 in accordance with the judgment of the Hon'ble High Court and also grant them all consequential service benefits arising out of it. Compliance of the orders be made within a period of eight weeks from the date of production of certified copy of this order."
The order passed by the State Services Tribunal is being challenged by means of the present petition.
Learned counsel for the petitioners submitted that the services of the respondents could not be regularised inasmuch as the respondents were engaged on the contractual basis. Further in view of the decision taken by the petitioners, the respondents have been given fresh appointments vide appointment letters dated 6th August, 2010. It is also submitted that there is no question of giving fresh appointments to the respondents from the date of occurrence of vacancy, i.e., 20.11.2002. The appointment of respondents cannot be with retrospective effect. He submitted that learned Single Judge in his order, dated 28th September, 2005, has observed that the petitioner had made out a valid claim for the regularisation of his services as per regularisation rule while there was no regularisation rule in existence. Even today, there is no such rule. He submitted that the respondents' services have not been regularised, but fresh appointments have been made vide appointment letters dated 6th August, 2011 to all the 27 contractual employees.
Learned counsel for the respondents submitted that in pursuance of the order of learned Single Judge, dated 28th September, 2005, passed in Writ Petition No. 54072 of 2002, and in view of the order dated 13th January, 2010, passed in Special Appeal No.1432 of 2005, the respondents are entitled for regularisation of their services from the date of the existence of the vacancy, while they have been given fresh appointments on 6th August, 2010. He submitted that the seniority of the respondents has to be counted from the date of the vacancy.
Having heard learned counsel for the petitioners and the learned counsel for the respondents, I have gone through the materials available on records.
The petitioner no.1 is constituted as the Development Authority under the provisions of the Uttar Pradesh Industrial Development Act, 1976 (UP Act No.6 of 1976) (hereinafter in short referred as the 'Act'). Under Section 19 of the of the Act, the Greater NOIDA Industrial Development Authority Services Regulations, 1993 has been framed (in Short referred to as the 'Regulations, 1993'). Chapter II of the Regulations, 1993 provides for the appointment of the employees and the general conditions of the recruitments. Regulation 4 provides power to appointment employees, which reads as under:
"4. Power to Appoint employee- (1) Subject to such general control and restrictions, if any, as may be imposed by the State Government, the Authority, ma, for the performance of the functions, appoint employees of the following categories.-
(a) Regular employees.
(b) Temporary employees.
(c) Contractual employees.
(d) Officers or employees, whose services are obtained by the Authority on deputation from any Government or other organisation.
(2) In addition to the employees referred to in sub regulation (1), the Authority, or the Chief Executive Officer, if so empowered by the Authority in that behalf, may whenever the exigencies of the situation so require, employ or engage such number of persons on daily or weekly wages as may be necessary.
(3) For the removal of doubts it is hereby declared that any person employed or engaged on daily or weekly wages in terms of such regularisation (2) shall not be deemed to be an employee of any category under these regularisation."
Regulation 23 of the Rules of 1993 deals with the seniority of the employees, which reads as under:
"23. Seniority.- (a) The caderwise gradation list of all the employees of the Authority shall be maintained for determining the inter se seniority of employees within the cadre in accordance with such instructions of the Chief Executive Officer as he may issue, from time to time. The Chief Executive Officer may order that the gradation list for any particular category shall be prepared for the Authority as a whole.
(b) The seniority of persons in any cadre shall be determined from the date of order of substantive appointment and if two or more persons are appointed together, by the order in which their names are arranged in the list prepared as a result of selection:
Provided that where appointments are to be made both by direct recruitment and by promotion simultaneously in any cadre, a combined list shall be prepared by taking the names of candidates from the relevant list in relation to such cadre, so however, that the prescribed percentage is maintained, the first name in the list being of the person appointed by promotion and the second name being of the person appointed by direct recruitment or other source, as the case may be, and so on, and the seniority shall be fixed according to the order in which the names find place in the list so prepared.
(c) Where appointment by promotion has been made as a result of one selection the inter seniority shall be the same as it was in the lower grade from which the promotion is made."
It would be appropriate to refer Paragraph 54 of the Constitution Bench decision of the Apex Court in the case of Secretary, State of Karnataka v. Uma Devi, reported in (2006) 4 SCC, page 1, which reads as follows:
"54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents."
In view of the aforesaid observation of the Constitution Bench of the Apex Court, any decisions or directions given by the Courts, which are counter to the principles laid down by the Apex Court in the case of Secretary, State of Karnataka v. Uma Devi (supra) will stand denuded on their status as precedent.
In view of the above, we may examine subsequently whether the direction given by the learned Single Judge, in Writ Petition No. 54072 of 2002, Surendra Kumar v. Greater NOIDA, and the directions given by the Division Bench in Special Appeal No. 1432 of 2005, Greater NOIDA v. Surendra Kumar, run counter to the principles laid down by the Apex Court in the case of Secretary, State of Karnataka v. Uma Devi (supra).
At this stage, it would be appropriate to refer, the principles laid down by the Apex Court in the case of Secretary, State of Karnataka v. Uma Devi (supra). Relevant paragraphs of the judgment of the Apex Court are being reproduced below:
"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.
47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.
49. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.
52. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College [(1962) Supp. 2 SCR 144]. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent."
The Apex Court in the aforesaid case has held that there is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by the Apex Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules.
The Apex Court in the case of Secretary, State of Karnataka v. Uma Devi (supra), has categorically held that if it is a contractual appointment, such appointment comes to an end at the end of the contract. When a person enters into a temporary employment or gets engagement as a contractual or casual labour and his engagement is not based, following the proper selection, as recognized by the relevant rules or procedure prescribed, he is aware of the consequences of such appointment being temporary, casual or contractual in nature and such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
While making aforesaid observations, the Apex Court in paragraph 45 of the aforesaid decision has also cautioned the Courts in issuing the direction to regularise the services or making the services permanent to the contractual, temporary or adhoc employees and observed as under:
"45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.
In view of the above, we are of the view that the directions of the learned Single Judge in the order dated 28th September, 2005 and the directions given by the Division Bench of this Court dated 13th January, 2010, run counter to the principles laid down by the Apex Court in the case of Secretary, State of Karnataka v. Uma Devi (supra) and, therefore, in view of the clarification made in Paragraph 54 of the said judgment, referred hereinabove, the said observations/directions stand denuded on their status as precedents. However, we refrain ourselves in making any further comment on the decisions of the learned Single Judge and the Division Bench inasmuch as the direction given by both the Courts have not been complied with. The direction was for regularisation of the services on the existing vacancies, but the same has not been done by the petitioners and now the same cannot be done in view of the principles laid down by the Apex Court in the case of Secretary, State of Karnataka v. Uma Devi (Supra).
It may be clarified that regularisation of service of daily wager, casual employee and the contractual employee can only be made by rule having a legislative mandate and not by any policy. Perusal of the letter dated 5th March, 2008, issued by the Under Secretary, shows that the Government has granted approval to the policy. No details of any Government Order has been given nor there is any reference of any legislative sanction. Perusal of the policy reveals that there is no reference that whether these 27 contractual employees were engaged by following the selection process. The Apex Court categorically held that any rule of regularisation can be subject to Articles 14 and 16 of the Constitution of India and only those could be regularised who have crossed the process of selection. Therefore, the policy made by the petitioners to regularise 27 contractual employees is dehors Articles 14 and 16 of the Constitution and cannot be implemented and has rightly not been implemented.
Now coming to the question of validity of the appointment letters dated 6th August, 2010 by which the respondents have been appointed and which have been challenged in the Claim Petition before the Tribunal. There is nothing to suggest that the appointment letter/ orders have been issued in pursuance of any selection by following the proper procedure, namely, by issuing advertisement, inviting applications for the post, taking written examination or interview. It is not the case of the respondents that they have been appointed by the appointment letters dated 6th August, 2010 pursuant to any process of selection initiated by the petitioners, which consisted of inviting applications, making selection either by written test or by conducting interview and thereafter any merit list was prepared and they have been issued appointment letters in the order of merit list.
It is not known that under which provision of the law such appointment letters have been issued. No such provision has been shown to us. There cannot be any appointment without undergoing selection process. There cannot be any law, which provides direct appointment, without following proper procedure of selection inconsistent to Articles 14 and 16 of the Constitution of India. Prima facie, it appears that the entire exercise of appointments was the result of manipulation. It is a matter of enquiry which may be undertaken by the appropriate authority.
So far as the Claim Petition filed by the respondents claiming the modification of the order dated 6th August, 2010, with the further direction to the petitioners to regularise the services of the respondents in accordance with the judgment of the High Court is concerned, by filing the Claim Petition, the respondents themselves disputed their fresh appointments and claimed for regularisation of their services. The Tribunal has allowed the Claim Petition and had directed the petitioners to consider the regularisation of the services of the respondents from the date of existences of the vacancies, i.e., 20.11.2002, in accordance with the judgment of the High Court and also grant them all the consequential service benefits arising out of it. As stated above, the direction, given by the Tribunal, is contrary to the law laid down by the Apex Court in the case of Secretary, State of Karnataka v. Uma Devi (supra), referred hereinabove, and the same is liable to be set aside, which is accordingly set aside.
As observed above, the appointment letters dated 6th August, 2010, issued to the respondents, are ex-facie illegal, dehors Articles 14 and 16 of the Constitution of India inasmuch as they have been issued without following the proper procedure of making the appointment, therefore, these appointment letters cannot stand valid on being tested on the principles laid down by the Apex Court in the case of Secretary, State of Karnataka v. Uma Devi (supra).
In view of what has been discussed above, the writ petition succeeds and is allowed. The impugned judgment, dated 23rd June, 2011, passed by the State Public Services Tribunal in Claim Petition No. 174 of 2011 is set aside. The orders dated 6th August, 2010, which have been challenged in the Claim Petition also stand set aside. The petitioners are further directed to initiate proceeding in respect of those cases where the appointments have been made without following the proper procedure in violation of Articles 14 and 16 of the Constitution and the principle laid down in the decision of the Apex Court in the case of Secretary, State of Karnataka v. Uma Devi (Supra).
No order as to cost.
Order Date :- 29.10.2013 bgs/