Indian Kanoon - Search engine for Indian Law

(emphasis is mine)

5. Supreme Court has further clarified this position in its subsequent judgments in the following cases:-

(i) National Fertilizers Ltd. and Others Vs. Somvir Singh (2006) 5 SCC 493.

(ii) Kendriya Vidyalaya Sangathan and Others Vs. L.V. Subramanyeswara and Another (2007) 5 SCC 326.

(iii) State of Orissa and Another Vs. Mamata Mohanty (2011) 3 SCC

436.

6. In the judgment in the case of Keshav Dutt & Ors. Vs. Delhi Tourism & Transport Corporation Limited and Ors. (2015) 150 DRJ 406, I have referred to the aforesaid three judgments of the Supreme Court which make it clear that if advertisements are issued not for permanent appointment in the regular posts, and advertisements are issued only for contractual appointments or ad hoc appointments or temporary appointments, then persons who are appointed by such appointments cannot be regularized because it would amount to a fraud being played upon the ratio of the judgment of the Supreme Court in the case of Umadevi (supra). The relevant paras of the judgment in the case of Keshav Dutt (supra) are paras 2 to 15 and these paras read as under:-

"14. Petitioners in this case seek appointment as Lab Technicians/Lab Assistants. In the present case, the relief which is claimed by the petitioners of their being regularized cannot be granted because if petitioners are specifically appointed for contractual period in terms of the advertisement which required only contractual employment for 11 months, then, if the petitioners are regularized only because they were appointed against sanctioned posts, the same would be clearly a violation of the ratio of the Constitution Bench judgment in the case of Umadevi (supra) because if the petitioners are directed to be regularized merely because there existed sanctioned posts, although the advertisement and appointments were only and specifically for 11 months only, then what will happen is that by issuing of an advertisement by the respondent no.2 which was only for contractual appointments of a limited period of 11 months, injustice would be caused to dozens or hundreds of other persons who would not have applied to the posts on the ground that the posts are contractual posts only for 11 months and such persons, being the ordinary citizens, who therefore would seek appointment with other employers who would offer permanent posts. If this Court allows regularization of the petitioners, and merely because petitioners are appointed against sanctioned posts, the spirit of the ratio of Umadevi's case (supra) would be violated because then in such cases the authorities of the State instead of making regular appointments to sanctioned posts, will advertise and make contractual appointments to sanctioned posts for specified periods, and thereby play a fraud upon general public being persons who would have applied if the posts were advertised as permanent posts. Thus regularization cannot be granted only because petitioners were appointed against sanctioned posts, once the advertisement and appointments were only for a limited period of just 11 months.

8. A reference to para 22 above in the case of National Fertilizers Ltd. (supra) makes it abundantly clear that the advertisement which should be issued for inviting applications from eligible candidates has to be a proper advertisement and an advertisement in the prescribed manner. In my opinion, appropriate advertisement or advertisement in the prescribed manner necessarily means that advertisement issued for seeking appointment is advertisement for employment in permanent tenure and not an advertisement which seeks appointments to temporary posts or for temporary period in permanent posts or appointments are to be only contractual appointments. Para 22 above in the case of National Fertilizers Ltd. (supra) specifically notes that regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner, and prescribed manner necessarily has to mean that the posts have to be advertised as permanent tenure posts for being filled up, inasmuch as, otherwise multitude of people who would otherwise be eligible to apply, may prefer to skip the employment process thinking that it is only for a temporary period or a contractual period since posts are not for permanent employment. Para 22 above in the case of National Fertilizers Ltd. (supra) makes it clear that appointments made without issuing requisite advertisement would violate the guarantee under Articles 14 and 16 of the Constitution of India.

7. Reliance placed by learned counsel for the petitioners on Rule 25.2 of the Service Rules of the respondent no.3 which provides for contractual appointment of four years with probation of one year and thereafter employees be regularized and hence that petitioners who are contractual employees should be regularized, is a misconceived stand, inasmuch as, Rule 25.2 for confirmation of contractual employees after probation and for a period of four years of service is applicable only if the original advertisement for appointment was for appointment of regular/permanent appointment to regular/permanent posts whereby the original appointment thus would have been for four years contractual period and thereafter there would be entitlement of being regularized. In the present case, however, the advertisements issued, and pursuant to which petitioners were appointed, were only for contractual periods of four years with extensions up to another period of four years, and once the appointments were not appointments for regular/permanent posts, therefore, Rule 25.2 thus cannot help the petitioner. Also, Rule 25.2 cannot be read so as to give regularization to employees appointed in terms of an advertisement only for a contractual period, inasmuch as the Rule 25.2 if is interpreted for regularizing contractual persons, then the such Rule will be violative of the ratio of the judgment of the Supreme Court in the case of Umadevi (supra) as also the four other judgments of the Supreme Court as referred to above including the main judgment in the case of Kumar Mayank (supra) and hence such interpretation of Rule 25.2 will have to be rejected. This argument of the petitioners is therefore rejected.