Constitution confers an equal right upon all the qualified individuals to seek employment to public offices through Articles 14, 16 and 309: The High Court of Delhi
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 is necessary 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. The aforementioned has been laid down by the Apex Court in the case of Secretary, State of Karnataka &amp; Ors. v. Uma Devi &amp; Ors.; (2006) 4 SCC 1 has laid the premise by the Delhi High Court to be followed in the case of Saroj Kumar Nayak &amp; Ors v. Tribal Cooperative Marketing Development Federation on India Limited [W.P.(C) 5453/2020, CM Nos. 19659/2020 &amp; 340/2021] which was decided by a single judge bench comprising Justice V. Kameswarrao on 21st June 2021. The facts of the case are as follows. The petitioners were appointed as senior assistants and junior assistants. Though, the appointments were with the nomenclature “on contract basis” but for all purposes it was a regular appointment except the fact that the remuneration that is being paid, is not that of a regular appointee. In 2019, the respondent gave an advertisement to fill up various posts on direct recruitment basis. It is their case that as they are eligible and have been performing their duties sincerely / diligently hence are entitled to be regularized on the posts on which they are working. It was also stated that an advertisement had been issued on November 15, 2019 against which petitioner Nos.1, 4, 5, 6 and 7 had applied for the posts of Deputy Manager, Senior Accountant and Sales Executive. Consequent upon completion of all the procedure, the final result of the direct recruitment process and Computer Based Tests (‘CBT’ for short) were announced on March 23, 2021, wherein it was found except Deepak Kumar who has been shortlisted in the waiting list category for the post of Sales Executive, none of the other petitioners are successful in the selection process. The counsels from both the sides relied on several judgments to prove their side of the contention.
IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: June 21 2021 W.P.(C) 5453 2020 CM Nos. 19659 2020 & 340 2021 SAROJ KUMAR NAYAK & ORS. Petitioners Through: Mr. Sudarshan Rajan Adv. with Mr. Hitain Bajaj Adv. TRIBAL COOPERATIVE MARKETING DEVELOPMENT FEDERATION ON INDIA LIMITED HON BLE MR. JUSTICE V. KAMESWAR RAO Through: Mr. Rajesh Gogna CGSC Respondent V. KAMESWAR RAO J.The present petition has been filed by eight persons with the following prayers: “In view of the facts narrated and grounds set out in this writ petition it is most respectfully prayed that this Hon’ble Court may be graciously pleased to a) call for the relevant records relating to the contractual employment of the petitioners herein as also relevant records leading to the issue of the notification dated 09 11 2019and other kindred records leading to the issue of order dated 23 07 2020and examine the extent of injustice meted to the petitioners in W.P.(C) 5453 2020 Page 1 21 b) issue a writ in the nature mandamus or any other suitable writ or direction or order directing the respondents to consider the case for regularization from the very date of initial engagement and afford the petitioners the consequential reliefs such as pay and allowances annual increments leave and leave encashment and other benefits which may be granted in accordance the provisions of the VII Pay Commission recommendations as admissible to the regular employees of the TRIFED of corresponding This Hon’ble Court may be pleased to pass such other order or orders as this Hon’ble Court deem fit to meet the ends of justice.” It is the case of the petitioners that their initial engagement on contract basis was in the years 2010 2011 on the post of Assistant Grade Iand Clerkthrough a selection process which is undertaken for making regular appointment. Th eir en gagement was renewed from time to time with artificial breaks. Som e of the petitioners were also given appointment on higher post s. Though the appointments were with the nomenclature “on contract basis” but for all purposes it was a regular appointment except the fact that the remuneration that is being paid is not that of a regular appointee. The cause of action for them to approach t his Court by way of this petition was triggered on the issuance of not ification W.P.(C) 5453 2020 Page 2 21 dated November 09 2019 by the respondent whereby the respondent advertised the filling up various posts on direct recruitment basis. These posts include t hat of Depu t y Man ger Sales Executive Senior Accountant etc. It is t h eir case t h at as they are eligible and have been performing their duties sincerely diligently hence are entitled to be regularized on the posts on which they are working. According to them they now being overage for any job outside the respondent organization the respondent should regularize their services. They have referred to the various representations made by them requesting the authorities in the respondent organization for regu larization of their services. Unfortunately the same have not been replied t o. It is averred in the petition that legal advice was sou ght on t he aspect of regularizing the services of the petitioners wherein it is opined that the petitioners past contractual services could well be reckoned for purposes of seniority and age limit shall not be a bar and precedents are available when in 2012 individuals who h ad temporary status were regularized. A counter affidavit has been filed by the respondent wherein it is stated that the respondent is a Multi State Cooperative Society under the administrative control of the Ministry of Tribal Affairs and is an organization engaged in marketing development of tribal products including t ribal art & craft under the brand name “TRIBES INDIA”. The main mandate of the respondent is t o en h ance t he capability of the tribal community promotion of tribal produ cts and creation of marketing opportunities for them wit h a view t o W.P.(C) 5453 2020 Page 3 21 ensure fair prices for their products and augmenting their in come on a sustainable basis. It is stated that an advertisement was published in the Employment News dated 20 to 26 February 2010 and in the Tribune Himachal Pradesh dated April 23 2011 whereby applications were invited from the eligible candidates for fillin g up the posts of Assistant Grade I and Clerk on contract basis. In furtherance of the said advertisement and receipt of applications a Selection Committee was constituted by the respondent to conduct interviews to shortlist the applicants against the advertised posts. Pursuant thereto in terviews were held and selection was made of the petitioners. Th e pet itioners being contractual employees are being paid salary remuneration consisting of minimum basic wage of the grade post with Dearness Allowance HRA and Transport Allowance in t erms of the norms fixed by the Central Government. It is also stated that an advertisement had been issued on November 15 2019 against which petitioner Nos.1 4 5 6 an d 7 had applied for the posts of Deputy Manager Senior Accountant and Sales Executive. Consequent upon completion of all the procedure the final result of the direct recruitment process and Computer Based Tests were announced on March 23 2021 wherein it was found except Deepak Kumar who has been shortlisted in the waiting list category for t he post of Sales Executive none of the other petitioners are successful in the selection process. It is stated that the petitioners who h ave applied for t h e W.P.(C) 5453 2020 Page 4 21 posts and having participated in the selection process now cannot make a claim for regularization of their services. It is stated t he petition be dismissed. A rejoinder is also filed by the petitioners con troverting the stand of the respondent in its counter affidavit. At the outset Mr. Sudarshan Rajan learned counsel appearing for the petitioners submitted that out of eight petitioners the petitioner Nos.2 and 3 have since resigned and the lis qua them no longer survives. The statement is taken on record. It is the submission of Mr. Rajan that the prayer in the writ petition is for regularization of the petitioners from t he da t e of their initial appointment with consequential benefits. According to him the petitioner Nos.1 to 5 were appointed as Assistant Grade Iand petitioner Nos.6 to 8 were appointed as Clerkwith the respondent organization in the years 2010 and 2011. The appointment of the petitioners was on regular basis inasmuch as the post on which the petitioners were appointed are san ctioned posts and through the process followed for regular appointment. That apart some of the petitioners i.e. petitioner Nos.1 t o 5 h ave also been given promotion for all practical purposes to the post of Senior Assistant in the year 2019. Similarly the petitioner Nos.6 to 8 were practically promoted from the post of Clerk to t h e post of Junior Assistant in the year 2019. He lays st ress on t he fact that the ACRs of the petitioners were also drawn which is akin t o the case of a regular appointee. The contract of the petitioners has W.P.(C) 5453 2020 Page 5 21 been extended after evaluating their performance which was found to be good. He also stated that the petitioners’ service was with Pan India Service liability which otherwise does not exist in the case of contractual employment. Even t he respondent was making deductions against Provident Fund which is also an attribute showing their regular appointment. The fu nctions are being discharged by the petitioners as regular appointees. 12. Mr. Rajan stated that the appointments were m ade aft er following the due process inasmuch as notification calling applications for appointment was issued. Th e pet itioners h ave requisite qualifications except petitioner No.3 who was appointed after giving age relaxation for which provision exists. In fact it is his submission that the respondent themselves wanted to regularize the petitioners and in that regard they had also t aken a legal opinion. Even as per DOPT circular of 2013 a person wh o has rendered continuous service of three years is entitled to regularization. 13. Mr. Rajan stated that the plea of the respondent t hat t he petitioners having applied for various posts under the direct recruitment category and being unsuccessful cannot seek regularization is untenable. In this regard it was his su bmission that the petitioners who had applied against notification for direct recruitment did not apply for the same post on which t hey were appointed on contract basis. Hence their participation in the selection for different posts and not being successful is inconsequential and they cannot be non suited in this petition on that ground. According to Mr. Rajan continued service for nearly W.P.(C) 5453 2020 Page 6 21 a decade without intervention of the Court on the basis of selection under the constitutional scheme and against regular vacancies has resulted in a vested right having accrued in favour of the petitioners for regularization. 14. Mr. Rajan had also stated that provision exists even to absorb temporary status employee. Casual labou rers wh o were appointed even without the due process of selection and have served for 240 days resulting in grant of t em porary st atus h ave been regularized. The case of the petitioners is on stronger footing as they have been appointed by a due process and again st regular vacancies and have put in more than ten years of service. In support of his submissions Mr. Rajan had relied upon the following judgments: B. Nagarajan & Ors. v. State of Mysore3 SCR Dhirendra Chamoli v. State of U.P.1 SCC 637 iii) Direct Recruit Class II Engineering Officers Association v. State of Maharashtra2 SCC 715 iv) N. Suresh Nathan & Anr. v. UOI SuppSCC K.C. Gupta v. Lt. Governor of Delhi 1994 SuppSCC vi) U.P.S.C. v. Alpana2 SCC 723 vii) Bimlesh Tanwar v. State of Haryana5 SCC 604 viii) State of West Bengal v. Manas Kumar Chakraborty 2003) 2 SCC 604 ix) U.P.S.C. v. Girish Jayanthi Lal Vaghela & Ors.2 682 584 408 W.P.(C) 5453 2020 Page 7 21 Secretary State of Karnataka & Ors. v. Uma Devi & SCC 482 Ors. 4 SCC 1 Shailendra Dania v. S.P. Dubey & Ors.5 SCC xii) State of Orissa v. Mamata Mohanty3 SCC 436 xiii) Sheo Narayan Nagar v. State of U.P.13 SCC xiv) Chander Mohan Negi v. State of H.P. 5 SCC 535 432 732 xv) Randhir Singh v. Union of India & Ors. 1 SCC xvi) Anuj Garg & Ors. v. Hotel Association of India & Ors. 618 and 2008) 3 SCC 1. On the other hand Mr. Rajesh Gogna learned CGSC appearing for the respondent would contend that t he pet itioners were engaged by the respondent on various dates relating back t o 2010 11 and their contract was extended from time to time. Mr.Gogna has taken an objection that the shortlisted can didates for appointment pursuant to notification of 2019 are n ecessary parties to the petition as they are going to be adversely affected. He submitted that the petitioners having participated in the selection process pursuant to the advertisement dated November 09 2019 and being unsuccessful cannot seek regularization. He stated the petitioners were aware that on regular selection t heir engagement shall be terminated. On the submission the selected candidates need to be party as their rights shall be affected he has W.P.(C) 5453 2020 Page 8 21 relied on the following judgments: Prabodh Verma & Ors. v. State of U.P. 4 SCC Avtar Singh Hit v. Delhi Gurudwara8 SCC 487 Public Service Commission v. Mamta Bisht 12 251 SCC 204. 16. Mr.Gogna would submit that in view of the t erms of t he advertisement and the letter of appointment issued to the petitioners in the year 2010 2011 which stipulates the appointment as contractual till regular appointments are m ade they are not entitled to regularization. In this regard he has relied upon the judgment in the case of Anil Lamba and Ors. v. Govt. of NCT and Ors. 2017 SCC OnLine Del 7382. According to Mr. Gogna the claim of the petitioners t hat they had legitimate expectation that their contractual appointment may crystallize in regular appointment is against settled posit ion of law and also on facts. In this regard h e h as relied u pon t he judgment in the case of Radhey Shyam & Ors. v. GNCT of Delhi and Ors. 2015 SCC Online Del 6774 and Kumar Mayank v. Delhi Technological University & Anr. 2016DRJ 211. Insofar as the submission of Mr. Rajan that persons wit h temporary status have been regularized and similar benefit must be given to the petitioners is contested by Mr.Gogna as misconceived. According to him the petitioners who were W.P.(C) 5453 2020 Page 9 21 appointed on contractual basis cannot be compared with temporary status employee. According to him the regularization of the temporary status employee is governed by Casual Labourer Sch eme 1993 which stipulates regularization of Casual Labourers in service who were in place as on September 10 1993. He also contests the plea of Mr. Rajan that t he gran t of pay scale wit h DA HRA and filling up of ACR form would depict regular nature of appointment as untenable. He stated no comparison can be made between the contractual employees and the regular employees. He concluded his submissions by reiterating his stance that some of the petitioners having availed opportunity of seeking regular appointment in the respondent organization an d being unsuccessful cannot not seek regularization which sh all be a back door entry in view of the judgment of the Supreme Court in the case of Secretary State of Karnataka & Ors.and Clerk Junior Assistant) on contract a basis. The advertisement pursuant to which they were appointed clearly st ated t hat t he appointment is for a period of two years or till regular W.P.(C) 5453 2020 Page 10 21 appointments are made whichever is earlier. The advertisement also stated that the candidates applying against the advertisement shall be appointed on a contract basis and have no right of absorption or permanent employment. Similar are the provisions in the appointment letters issued to the petitioners. Admittedly the petitioners have not challenged the nature terms of the appointment since their initial appointment and also in this petition. They continued to work on contractual basis for the last ten years. I note similar terms of appointment with regard to the very same respondent had come up for con sideration in a case titled as Jagdish Kumar v. Tribal Cooperative Marketing Development Federation of India Ltd. W.P.(C) 1647 2014 decided on November 10 2014 wherein a Coordin ate Bench of this Court has in para 14 held as under: “14. This Court is of the opinion that having accepted the aforesaid terms and conditions of appointment of his own free will joined the services of the respondent and worked for a year and a half it does not lie in the mouth of the petitioner to challenge the same and that too after the respondent has terminated his services. The terms and conditions of the petitioner’s appointment letter bears out the submission made by learned counsel for the respondent that his appointment was contractual in nature and he was aware of the fact that the said appointment would W.P.(C) 5453 2020 Page 11 21 not confer any right on him for regular appointment to the said post and further that his services could be terminated in case of non compliance of any of the conditions stipulated in the letter.” Emphasis supplied) It is not known as to why the respondent had resorted t o contractual appointment despite the Supreme Court in the case of Secretary State of Karnataka & Ors. has held that public appointment has to be in terms of the constitution al scheme on regular basis and also following the recruitment rules. The appointments made were in violation of the judgment of t h e Supreme Court in Secretary State of Karnataka & Ors.10 SCC 1 as relied on by a Coordin ate Bench of this Court in the judgment of Anil Lambawherein in W.P.(C) 5453 2020 Page 12 21 paragraph 52 has held as under: “52. … In this context we may also mention that though the Official Liquidators appear to have issued advertisements for appointing the company paid staff and made some sort of selection more qualified and meritorious persons must have shunned from applying because they knew that the employment will be for a fixed term on fixed salary and their engagement will come to an end with the conclusion of liquidation proceedings. As a result of this only mediocres must have responded to the advertisements and joined as company paid staff. In this scenario a direction for absorption of all the company paid staff has to be treated as violative of the doctrine of equality enshrined in Articles 14 and 16 of the Constitution.” Emphasis supplied) Having said that Mr. Gogna is also right in contending at least petitioner Nos.1 4 5 6 and 7 havin g applied pu rsuant t o notification of 2019 for getting a regular appointment an d bein g unsuccessful cannot now seek regularization. This I say so because regularization is not a mode of appointment. SCC 161]. Regular appointment has to be in the manner contemplated under the Recruitment Rules. The said petitioners being u nsuccessful cannot now seek a regular appointment under the garb of W.P.(C) 5453 2020 Page 13 21 regularization. The Supreme Court in the case of Hindustan Shipyard Ltd. and Ors. v. Dr. P. Sambasiva Rao and Ors.1996SCC 499 held that regularization has to be as per Recruitment Rules for direct recruitment. The Supreme Court in Secretary State of Karnataka & Ors.held that public employment has t o be in t erms of constitutional scheme which is as per the Recruitment Rules framed by the employer and has to be by givin g wide pu blicity and considering every person who applies for the post and fulfills the eligibility conditions. Insofar as the plea of Mr. Rajan that there is a preceden t available in the respondent organization regularizing the services of the Casual Labourers having attained temporary status h ence the petitioners need to be regularized is not appealing. First ly Casual Labourers are Group D employees whose regularization was effected under the scheme evolved by t he Government of India known as Casual LabourersScheme 1993. From the perusal of the said scheme it is clear that the same is applicable to Group D employees only whereas the petitioners h erein are working on Group C posts hence the said scheme has no applicability. Even I find the prayer of the petitioners in this petition is for their regularization w.e.f. their initial date of en gagement. From t he above discussion it is clear that the petitioners are not entitled t o their regularization hence the plea of Mr. Rajan t h at t he sam e must relate back the date of initial appointment cannot be granted. The Supreme Court in the case of Union of India and W.P.(C) 5453 2020 Page 14 21 Ors. v. Sheela Rani 15 SCC 230 has rejected a similar plea of regularization from a retrospective date. I may also at this stage reproduce paras 43 and 50 of the judgment of the Supreme Court in the case of Secretary State of Karnataka & Ors. supra) as under: “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 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 W.P.(C) 5453 2020 Page 15 21 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. The High Courts acting under Article 226 of the Constitution should not ordinarily issue directions absorption regularisation 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 the 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 W.P.(C) 5453 2020 Page 16 21 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 instrumentalities or instruments to facilitate the bypassing of the constitutional and statutory mandates. 50. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power the action of the State in not making the employees permanent would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features has included Articles 14 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution a set of persons cannot be preferred over a vast majority of people W.P.(C) 5453 2020 Page 17 21 waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour cannot be accepted. After all the employees accepted the employment at their own volition and with eyes open the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality.” One of the plea of Mr. Rajan was also that the petitioners who have applied pursuant to the notification of 2019 was for different posts and hence they need to be considered for regularization on the posts on which they are working as of n ow is also without merit. The respondent had in 2019 issued notification for making appointments on the posts on wh ich t he petitioners are working on contract basis. The petitioners in stead of applying for the posts they are working applied for higher W.P.(C) 5453 2020 Page 18 21 posts and were unsuccessful they cannot now contend t hat t hey should be considered for regularization on the posts on which they are currently working. This argument of Mr. Rajan is an afterthought only realizing that the petitioners are unsuccessful in getting regular appointment pursuant to notification of 2019. Now coming to the judgments referred t o by Mr.Rajan are concerned he has relied upon in B. Nagarajan & Ors. supra) in support of his contention that if the government advertises appointments and the conditions of service of the appointment and makes a selection after advertisement there would be no breach of Articles 15 and 16 of the Con stitution of India because everybody who is eligible in view of the conditions of service would be entitled to be considered by t h e St ate. Th e said judgment has no applicability in the facts of this case. I h ave already held that the process followed by the respondent was n ot similar to the process followed in making regular appointments. For similar reasons the judgment in the case of U.P.S.C. v. Girish Jayanthi Lal Vaghelahas no applicability. On similar proposition Mr. Rajan had relied upon the judgment in the case of State of Orissa t he ju dgment has no applicability to the facts of this case. He h as relied u pon the judgments in the case of N. Suresh Nathan & Anr.K.C. Gupta U.P.S.C. v. Alpana Bimlesh Tanwar State of West Bengal Shailendra Daniaand Sheo Narayan Nagarto contend that if their exists past practice the same has become a ru le an d t he W.P.(C) 5453 2020 Page 19 21 petitioners are entitled to regularization. Suffice to state the plea is contrary to the ratio of the Supreme Court in Secretary State of Karnataka & Ors. wherein it is held that appointments have to be in terms of Constitutional Scheme Recruitment Rules by giving wide publicity and on regular basis. 33. Mr. Rajan has also relied on the judgments in the cases of Randhir Singh and Anuj Gargto argue that equal work should translate to equal pay. Suffice wou ld it be t o state that in light of my conclusions above and the fact that present petition seeks the regularization of t h e petitioners t he abovementioned judgments are not relevant in terms of t h e issu e at hand. He has also relied upon the judgment in the case of Dhirendra Chamoli supra) Direct Recruit Class II Engineering Officersand Chander Mohan Negiin support of his submission that the pet itioners are en titled t o regularization. I am afraid that such a submission cannot be accepted in view of my discussion above based on the ju dgment of the Supreme Court in Secretary State of Karnataka & Ors. supra) and also the fact that the petitioners 1 4 5 6 and 7 having applied for appointment to various posts pursuant to a notification of 2019 and being unsuccessful the reliefs as prayed can n ot be granted. Suffice to state the Judgments relied upon are distinguishable on facts. In view of my discussion above I find the contesting petitioners are not entitled to any relief. There is n o m erit in t he W.P.(C) 5453 2020 Page 20 21 petition the same is dismissed. CM Nos. 19659 2020 & 340 2021 In view of my decision in the writ petition these applications stand dismissed. JUNE 21 2021 aky V. KAMESWAR RAO J W.P.(C) 5453 2020 Page 21 21 