Telangana High Court
Gummadadala Venkataramaiah vs The State Of Telangana on 7 June, 2024
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE K. SUJANA
WRIT APPEAL No.713 OF 2022
ALONG WITH I.A.No.4 OF 2022
JUDGMENT:
(per Hon'ble Sri Justice K. Lakshman) Heard Sri M.S Prasad, learned Senior Counsel representing Mr.Srikanth Ch, learned Counsel for the appellants, Sri M.V. Rama Rao, learned Special Government Pleader for Services and Sri C. Haripreet, learned counsel appearing for the un-official respondents.
2. Feeling aggrieved and dissatisfied with the order dated 17.10.2022 passed in W.P.No.13137 of 2022 by the learned Single Judge, the unsuccessful writ petitioners preferred the present intra- court appeal under Clause 15 of Letters Patent.
3. The appellants have filed I.A.No.4 2022 to amend the cause title to the extent of 2nd respondent as 'Telangana State Remote Sensing Application Centre (TRAC) represented by its Director General & Chairman, Secretariat, Hyderabad' instead of 'The Director General & Chairman, Telangana State Remote Sensing Application Centre (TRAC)'.
4. Having satisfied with the reasons and also considering the fact that it is a typographical mistake, the said application is allowed permitting the 2 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 appellants herein to amend the cause title to the extent of 2nd respondent as 'Telangana State Remote Sensing Application Centre (TRAC) represented by its Director General and Chairman, Secretariat, Hyderabad'. Registry is directed to carry out amendments.
5. The writ petitioners have filed the aforesaid writ petition to declare the notification issued by the respondents vide Advt.No. 01/TRAC/2022 dated 07.03.2022, for filling up the positions indicated in the notification on the premise of vacancies arrived, while the petitioners are rendering their services in very similar projects with identical qualifications and are in expectation of regularisation of their services on the verge of longevity of their services with the respondents, as illegal and consequently, to set aside the said notification and to direct the respondents to consider the petitioner's representation dated 25.01.2022 for regularization and absorption into the respondent organization on permanent basis.
6. The appellants herein are the petitioners in W.P. No.13137 of 2022, while the respondents herein were arrayed as such. Therefore, for the sake of convenience, hereinafter the parties will be referred as they were arrayed in W.P. No.13137 of 2022. The writ petitioners filed the aforesaid writ petition contending as follows: 3
KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 i. They have been working in 2nd respondent organization for several years in different positions.
ii. All of them are continuing in the services by way of appointment under notification dated 31.08.2018. As per the general guidelines for selection, interested Remote Sensing and GIS Professionals to the post should identify the post/vacancy for which he/she is eligible, fill the application form provided online and submit the same by uploading the mandatory documents, such as Aadhaar Card, Secondary School Certificate etc. iii. All the writ petitioners have submitted online applications to the 2nd respondent. On receipt of the said applications, 2nd respondent shall constitute a Committee for scrutinizing those applications and short-listing the eligible candidates. Thereafter, interviews will be conducted. The selected candidates will be appointed to hold their respective posts and they are engaged on hire basis.
iv. They have come into agreement with the 2nd respondent. v. All the writ petitioners were selected in the said process. vi. Some of them were selected in the year 2007. 4
KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 vii. Pursuant to the notification issued by the 2nd respondent again in the years 2010, 2012 and 2015, the applications were invited and recruitment was held.
viii. Most of the writ petitioners herein were appointed pursuant to the said notifications and are continuing as on today. ix. Even then, respondents have not issued Identity cards. x. They have not provided social security measures such as gratuity, pension and ESI cards etc., xi. Though the petitioners have been rendering their services continuously in respondent organization, they were given 10 days break in the year 2018 only to deprive the petitioners claiming regularization.
xii. Respondents have been utilizing the services of the petitioners by paying consolidated pay. The appointments given in the projects of the respondent to the petitioners are still existing. xiii. In such case, respondents ought not to have issued fresh notification to fill up the posts in which the petitioners are appointed.5
KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 xiv. Even then, the respondents have issued notification dated
07.03.2022 with a mala fide intention to deprive the writ petitioners in regularizing their services.
xv. They have submitted a representation dated 25.01.2022 to the 2nd respondent seeking to restore their service conditions prevalent prior to 2018, the same is under consideration. Even then, the 2nd respondent had issued the impugned notification dated 07.03.2022 and the same is nothing but an unfair practice and victimization.
xvi. Though the respondents have termed the job roles of the petitioners as 'professional, the jobs of the petitioners are perennial in nature and such jobs are regular jobs. Therefore, respondents have no right to retrench, remove, terminate the jobs of the petitioners and cannot deprive the dignity and right to life of the petitioners by adopting arbitrary methods.
7. Respondents have filed counter opposing the said writ petition contending as follows:
i. Pursuant to the impugned notification dated 07.03.2022, some of the petitioners herein have applied and the same are under consideration.6
KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 ii. The impugned notification dated 07.03.2022 is for engaging services of Remote Sensing and GIS Professionals in different capacities of Scientific Officer, Assistant Scientific Officer, and Scientific Assistant etc., to work for projects sponsored by Central and State Governments commencing from March, 2022 purely on hiring basis.
iii. The petitioners have rendered their services in the 3rd respondent organization pursuant to the notification dated 31.08.2018 relates to different project works and it is no way connected to the previous project works in which the applicants herein are working presently.
iv. At the time of hiring in 2018, the petitioners have entered into an agreement in which it is normally stated that the said hiring of services are valid for a specified period. It is purely contractual work and time-bound and cannot be regularized. v. Clause No.1 of the conditions, the extension of tenure depending on the duration of the project was subject to the satisfactory performance of the professional and the extension will be at the discretion of the competent authority of the organization to complete the allotted project. 7
KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 vi. The term of the employee engaged for the project work was to cease with the project completion i.e., co-terminus with the project for which they are engaged on hire basis pursuant to the notification dated 31.08.2018.
vii. The petitioners have entered into agreement in which it is clearly stated that the said hiring of services is valid for the specified period therein and it is purely the project work, which is time bound, but not employment.
viii. The General guidelines for selection process i.e. Clause Nos.1 to 7 in the agreement entered between the parties are followed. Out of 15 writ petitioners, call letters were already sent to petitioners Nos.7, 9, 14 and 15. The petitioners made a representation dated 25.01.2022 seeking certain social welfare measures.
ix. Regular employees alone are entitled to the said benefits, but not the petitioners herein as they are hired professionals for specific job/project. Similar situated persons have filed W.P.No.5830 of 2019 seeking the said relief and the same was dismissed vide order dated 06.12.2019. Feeling aggrieved by the said order, the writ petitioners therein have preferred 8 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 W.A.No.935 of 2019 and the same was also dismissed on 20.12.2019. No SLP was preferred challenging the same. Therefore, the said order of the learned Single Judge in W.P.No.5830 of 2019 attained finality.
x. The petitioners herein have filed reply to the counter filed by the respondents.
8. On consideration of the said rival contentions, vide impugned order dated 17.10.2022, learned Single Judge, dismissed the said writ petition holding that as the writ petitioners were engaged on contractual basis, they cannot seek regularization. It is a contractual appointment for a period of one year and therefore, they have no right to claim regularization or absorption of their services as a matter of right. It is a project based work and the contract under which they have appointed pursuant to notification dated 31.08.2018 is different to the project to which the impugned notification dated 07.03.2022 issued. The employment of the petitioners is co-terminus with the project and therefore, they cannot seek regularization.
9. Earlier writ petition filed by similar situated persons was dismissed and the said order was confirmed by a Division Bench and no SLP was filed.
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10. Challenging the said order, the unsuccessful writ petitioners preferred the present writ appeal.
11. Sri M.S. Prasad, learned Senior Counsel, appearing for petitioners contended as follows:
i) The Project work of respondent organization is domain/continuous process.
ii) The work is perennial in nature.
iii) Approval of the governing body was not taken while issuing notification dated 07.03.2022 as required under the by-laws of the society which is mandatory.
iv) The petitioners have been working with the respondent organization for more than ten years. 2nd respondent is showing discrimination while engaging or post-engaging employees governing the petitioners.
v) The order in W.P.No.5830 of 2019 was obtained by misrepresentation of the facts.
vi) Writ petitioners cannot be estopped from filing the present writ petition on the ground of dismissal of the said writ petition.10
KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022
vii) The contentions raised by the writ petitioners herein are different.
viii) While issuing impugned notification, respondents did not follow Rule of Reservation.
ix) The representation dated 25.01.2022 submitted by the petitioners herein was not considered.
x) There are complaints against the 3rd respondent, wherein serious allegations were made.
xi) Respondents have altered the eligibility criteria without prior approval of the governing body.
xii) They cannot replace the contractual employees with a contractual employee.
xiii) Without considering the principles laid down by the Hon'ble Supreme Court and without considering the aforesaid aspects, learned Single Judge dismissed the writ petition erroneously.
12. Sri M.V. Rama Rao, learned Special Government pleader for Services would contend as follows:
i. The Telangana State Remote Sensing Application Centre, Hyderabad (TRAC) is not made as a party and 11 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 therefore, the writ petition itself was liable to be dismissed on the said ground itself for non-joinder of proper party.
ii. Writ petitioners cannot file application vide I.A.No.4 of 2022 seeking to implead TRAC as a party in the present writ appeal. Therefore, it is fatal to the present writ appeal.
iii. The work of respondent is a project based and is not perennial.
iv. The writ petitioners were engaged on tenure basis on contract and they have also signed agreements. Therefore, they are not entitled for regularization/ absorption.
v. There is no violation of any provision including by-laws of the society while issuing the impugned notification dated 07.03.2022.
vi. The petitioners having applied pursuant to the said notification dated 07.03.2022 are estopped from filing a writ petition and preferring the present writ appeal. 12
KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 vii. The respondents have appointed 55 employees as on today pursuant to the notification dated 07.03.2022 and they are working.
viii. The employment of the writ petitioners is co-terminus and on completion of work, their employment will cease automatically and they are not entitled for regularization/absorption.
ix. The writ petitioners cannot take advantage of their continuation, beyond the agreed period which is need based.
x. Respondents never adopted discrimination as alleged by the petitioners.
xi. 4 employees who were not selected pursuant to notification dated 31.08.2018 have filed W.P.No.5830 of 2019 and the said writ petition was dismissed. The employees who applied pursuant to the notification dated 31.08.2018 and selected were continued. There is no favour or discrimination as alleged by the petitioners. It is a vague allegation.13
KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 xii. The present project is similar to the earlier project is not correct and the said contention of the petitioners is contrary to the record and is baseless.
xiii. The employees who were engaged on contract basis can apply for selection pursuant to the notification issued by respondent organization from time to time. However, selection is for a specific period and tenure based post. Therefore, they cannot claim regularization or absorption.
xiv. On consideration of the said aspects only, the learned single judge dismissed the said writ petition vide impugned order dated 17.10.2022.
xv. There is no error in the impugned order.
ANALYSIS AND FINDING OF THE COURT:
13. It is not in dispute that 2nd respondent Society was registered vide GO.Ms.No.20, revenue (Regn-II), Dept, dated 18.08.2014 under Telangana State Societies Act, 2001. TRAC is Nodal Agency for providing Remote Sensing and GIS technology application services with the support of ISRO, Department of Space, Government of India to various departments of Central and State Governments and to 14 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 Public and Private organizations. The aims and objects of the said Society are also specifically mentioned in the by-laws.
14. For the purpose of executing the said work/project, the respondents have issued notifications from time to time to engage the services of Remote Sensing and GIS Professionals in different positions viz., Scientific Officer, Assistant Scientific Officer and Scientific Assistant etc. The work for projects was sponsored by Centre and State Governments. The same is purely on hire basis.
15. It is also not in dispute that some of the writ petitioners have been working from 2007 onwards. But it is not in dispute that they have applied for appointment pursuant to the notifications issued by respondents in the year 2007, 2010, 2012 and 2015. The said appointment was purely on contractual and tenure basis i.e. only until completion of the project work for which they were engaged. It is co-
terminus with the project work. They have entered into agreement on the specific terms and conditions mentioned therein.
16. Clause No.4 of the said bipartite agreement entered between the writ petitioners and 2nd respondent/TRAC, it is specifically mentioned that the individuals who have been selected by the TRAC as having the requisite professional skills and resources to perform 15 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 identify responsibilities as mentioned in the annexed job chart and he/she having agreed to render his/her services during the fixed tenure on mutually agreed terms and conditions exclusively to TRAC. Clause No.10 is with regard to the agreement period and it says that the agreement will remain in force for one year from 01.12.2018 and expires on 30.11.2019. Clause No.6 says that they are entitled for fixed consolidated payment. Clause No.12 says that the petitioners herein have agreed that it is an agreement for a fixed period of employment valid for one year and ceases to hold good on completion of the period and there is no commitment on either side to extend the tenure thereafter. They have also agreed that there would not be any modifications of the clauses of agreement during the period it is in force except if mutually agreed upon.
17. Clause No.17 says without any further notice, reference and subject to the clauses mentioned therein, the agreement shall automatically cease to operate by 30.11.2019 and the parties shall be discharged from their respective obligations and liabilities without any intimation or formal communication except for the specific exceptions mentioned in the said agreement. Clause No.23 says that it is a need based hiring of services for a period of one year and does not accrue 16 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 any right to the writ petitioners herein for extension of hiring period irrespective of the performance. Clause No.31 says that the petitioners have no right /power or authority to assume or to create an obligation on behalf of the TRAC unless explicitly authorized by the TRAC. In clause No.32, it is agreed that the agreement is applicable for only a period specified and does not create any obligation to the TRAC or the Government of Telangana to provide permanent employment to the writ petitioners. Clause No.33 says that the writ petitioners confirm the acceptance of the terms of the said agreement by signing and returning to the TRAC on the duplicate. Annexure to the said agreement is job chart for the petitioners.
18. Thus, the writ petitioners on having agreed for the aforesaid terms, signed the bipartite agreement.
19. In the Advt.No.02/TRAC/2018/31.08.2018, 2nd respondent has specifically mentioned that the said notification is for hiring of manpower for a period of 1 to 3 years on consolidated pay. The TRAC intended to hire suitable professionals/manpower for working in the projects in various capacities. The hiring was purely on temporary basis and the professionals/ manpower have no right to seek continuation of their services. The services of the 17 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 professionals/manpower are engaged initially for a period of one year and was to be extended for further period of tenure depending on the duration of the project and subject to performance. The details such as the position, number of vacancies, essential qualification, essential experience, desirable qualifications and experience and job description also are specifically mentioned in the said notification.
20. It is the specific contention of the 2nd respondent that similar notifications were issued earlier in the years 2007, 2010, 2012 and 2015. 2nd respondent had specifically mentioned that the said notification is for hiring Remote Sensing and GIS professionals for executing works of projects taken up by TRAC for a period of 1 to 3 years. The details such as position, vacancies, essential qualification and experience, desirable qualification and experience, job description etc., are specifically mentioned. Therefore, the writ petitioners cannot contend that second respondent cannot replace contract employee with another contract employee. The said contention of the writ petitioners is unsustainable.
21. As discussed supra, the aforesaid notifications were issued for executing works/activities of TRAC, in which nature of job, qualifications, selection process, and tenure etc., are specifically mentioned. The job is for 18 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 a specific period and it is co-terminus with the project work. The selected candidates for the post have to enter into an agreement with the TRAC. In the present case also, the writ petitioners have entered into an agreement with TRAC pursuant to notification dated 31.08.2018 on the specific terms and conditions mentioned therein. Therefore, the writ petitioners cannot contend that the respondent No.2 is trying to replace one contract employee by another contract employee.
22. Though the writ petitioners contend that their job is perennial and continuous, they have not filed any document in proof of the same. Whereas, respondents have filed the aforesaid notifications, nature of work and project details etc. The said facts were specifically mentioned in the notifications issued by 2nd respondent from time to time including the notification dated 31.08.2018 and 07.03.2022.
23. It is also relevant to note that vide order dated 08.11.2022 in the present writ appeal, this Court sought clarifications from learned Govt. Pleader appearing for respondents on the following points:
i. Whether the projects, which are indicated at page No.232 of the writ appeal and also the nature of duties indicated in the job chart, annexed to the agreement, are being still in requirement with the respondents, and if so, the persons who are discharging the duties as on today in the said job chart.19
KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 ii. To furnish the total cadre strength of the contract employees who are working in various projects, and also to clarify whether the present notification was issued with the approval of the governing body, if at all it is required as per the Rules; and iii. To clarify the projects and nature of works indicated in the job chart of all the petitioners on the next date of hearing.
24. Accordingly, the respondents have filed additional counter affidavit and also furnished the said data.
25. In the light of the same, the writ petitioners cannot contend that their work is continuous and perennial in nature.
26. It is contended by Sri M.S.Prasad, learned Senior Counsel appearing for the writ petitioners that the impugned notification dated 07.03.2022 was issued without prior approval of the governing body which is mandatory.
27. In the light of the same, it is relevant to note that Clause No.4 of Document-II of the by-laws of the respondent No.4/TRAC deals with the Functions and Powers of the Governing Body that Governing Body shall exercise all the powers of the 2nd respondent society. It has power to create and abolish the posts. It has power to appoint Director General of the Centre and various scientific, technical, administrative 20 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 and other officers and staff of the society, fix their remuneration and define their duties.
28. By-law No.3.7 of the said by-laws deals with delegation of such administrative and financial powers as it may think proper to the Chairman, the Director General and such other officers of the society as may be considered necessary.
29. It is also relevant to note that pursuant to Clause 18 of the said by-laws, it has framed service rules. Rule 2 of the said Service Rules deals with the applicability of the said rules. It says these rules shall apply to every present employee in the office of TRAC, carries time scale except to the persons deputed from the Departments of State government/autonomous organization/bodies/corporations.
30. Therefore, according to the 2nd respondent, the said Rules are applicable only to the employees, who carry the time scale. However, the impugned notification was issued by the TRAC by following the procedure as per the Service Rules and by-laws. It is the specific contention of the respondents that projects which taken up for execution of works including the projects taken up in the year 2021- 2022 with the approval of the Chairman of the governing body. 21
KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 Therefore, there is no irregularities in issuing the subject notification dated 07.03.2022.
31. Sri M.S. Prasad, learned serious counsel further contended that some of the writ petitioners have been working with the 2nd respondent since last ten years and even though respondents issued the impugned notification dated 07.03.2022 only to deprive the petitioners' absorption/regularization.
32. As discussed supra, the 2nd respondent has issued notifications from time to time for hiring Remote Sensing and GIS professionals for executing works/activities of projects taken up by TRAC. In the subject notification itself, there is specific mention about qualifications, selection process, tenure of the job etc. The employees selected have entered into agreement with second respondent on the specific terms thereon. It is pertinent to note that in the said agreement, there is specific mention about the period of agreement and that it will be on completion of the said term. Therefore, the writ petitioners having agreed for the said terms, now cannot contend that they have been working since last ten years continuously and are entitled for regularization/absorption. 22
KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022
33. The writ petitioners have contended that respondents have shown discrimination, and adopted new methods and are victimizing the petitioners. In fact, the petitioners cannot make such vague allegations and they have to plead and prove the same by producing reliable sure and safe evidence. In the present case, except mere allegation they have not pleaded and proved the same by producing legally acceptable evidence. Therefore, the said contention of the learned counsel for the writ petitioners is unsustainable.
34. Sri M.S.Prasad, learned Senior Counsel also contended that the 2nd respondent has obtained order in W.P.No.5830 of 2019 by misrepresentation. It is relevant to note that the said order dated 06.12.2019 in W.P.No.5830 of 2019 was upheld by a Division Bench vide order dated 20.12.2019 in W.A.No.935 of 2019. No SLP was filed challenging the same and it attained finality. Therefore, the petitioner herein cannot contend that 2nd respondent has obtained the said order by misrepresentation.
35. Learned Senior Counsel also contended that the respondents have not followed the Rule of Reservation while issuing notification dated 07.03.2022. It is the contention of the respondent that the petitioners herein have not pleaded the same in the writ petition. 23
KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 However, the petitioners are entitled to raise and agitate the same at any stage, since it is a legal ground.
36. As discussed supra, the impugned notification dated 07.03.2022 is for the purpose of hiring Remote Sensing and GIS professionals for executing work/activities and project taken up by TRAC and it is co-terminus with the project work for a period of 1 to 3 years. Therefore, the writ petitioners cannot contend that the 2nd respondent has violated the Rule of Reservation while issuing said notification.
37. It is further contended by the writ petitioners that second respondent has issued impugned notification without prior approval of the governing body. The said contention of the writ petitioners is without any basis. In the counter, it is specifically contended that there is no violation of the by-laws and service rules by second respondent while issuing the impugned notification dated 07.03.2022.
38. It is also relevant to note that vide order dated 29.11.2022, in the present appeal, this Court also granted opportunity to the writ petitioners to submit a letter as desired by respondents for payment of salary and they shall also hand over the data and other equipments which are in their custody as desired by the respondents. 24
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39. It is brought to the notice of this Court that out all the 14 petitioners, 11th petitioner has withdrawn the appeal; and as regards the remaining 13 petitioners are concerned, only some of them were re-engaged. It is contended by the learned counsel for the respondents that let the petitioners who were not re-engaged submit a representation to the respondents within one week from that day for consideration of their cases in terms of paragraph No.12 of the impugned order, and upon receipt of such applications from the petitioners, the respondents would consider the same and pass appropriate and upon receipt of such applications from the petitioners, respondents would consider the same and pass appropriate orders thereon in accordance with law by re-examining all their cases afresh, preferably in another week. This Court considered the said submissions and passed an order dated 24.04.2023 accordingly. This Court also observed that the persons who were re-engaged can also submit a representation expressing their difficulties in respect of their re-engagement and upon such representation being made, the respondents shall also consider their cases. Thereafter, respondents have filed counter and additional counter affidavit narrating the entire facts including the details of the projects and engagement of the 25 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 petitioners herein. Therefore, there is no irregularity, committed by the 2nd respondent while issuing the impugned notification dated 07.03.2022. On consideration of the said aspects only, the learned Single Judge dismissed the writ petition filed by the petitioners.
40. In Rajasthan State Roadways Transport Corporation v. Paramjeet Sisngh 1, the Hon'ble Supreme Court held that if there is specific mention about the period of contract, there is no need of communication with regard to contractual period upon expiring of such period to the employee.
41. As discussed supra, in the present case in the agreement itself, there is specific mention about the contract period of one year from 02.12.2018 to 30.11.2019 and the same is mentioned in clause No.10 of the said contract specifically. Therefore, there is no need of informing the writ petitioners about the same by way of issuing communication. However, in the present case, respondents have filed communication along with additional counter affidavit vide Circular No.128/ Admn/TRAC/18.10.2021 wherein it was declared that all the pending works/activities of the projects have been completed and the projects taken up by the TRAC in December, 2018 are closed in all 1 (2019) 6 SCC 250 26 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 respects. Accordingly, the public Remote Sensing and GIS professionals hired for executing works/activities of the projects are also going to get terminated by February, 2022. The governing body of contract in its 23rd meeting held on 28.11.2017 extended tenure of 85 contractual employees in TRAC for an year and there is specific mention about expiration of their term on 31.12.2017. Therefore, even if the contract was extended, it was however, limited to one year period. Subsequent date of ending of their work was also mentioned.
42. In Manish Gupta v. President Jan Bhagidari Samiti2, the Apex Court held that the Adhoc employee can be replaced only with a regular employee who is appointed following the due procedure prescribed and not by other adhoc employee. But in the present case, as discussed supra, 2nd respondent issued impugned notification recruiting employees by replacing the existing employees who are employed on contract basis. In the agreement it is mentioned that the contract is co-terminus of the said project. Therefore, the facts of the said case are quite different to the facts of the present case. 2 (2022) SCC OnLine SC 485 27 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022
43. In E. Ramakrishnan v. State of Kerala 3, the Apex Court held that there can be no regularization de hors the rules as regularization is governed by statutory laws.
44. No doubt, in some decisions the Apex Court has directed regularization of temporary or ad hoc employees, but, it is well settled that a mere direction of the Apex Court without laying down any principle of law is not a precedent. It is only where the Apex Court lays down a principle of law that it will amount to a precedent. Often the Apex Court issues directions without laying down any principle of law, in which case, it is not a precedent. For instance, the Apex Court often directs appointment of someone or regularization of a temporary employee or payment of salary, etc. without laying down any principle of law. This is often done on humanitarian considerations, but this will not operate as a precedent binding on the High Court. For instance, if the Apex Court directs regularization of service of an employee who had put in 3 years' service, this does not mean that all employees who had put in 3 years' service must be regularized. Hence, such a direction is not a precedent. In Municipal 3 1996 INSC 997 28 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 Committee, Amritsar v. Hazara Singh,4 the Apex Court observed that only a statement of law in a decision is binding. In State of Punjab v. Baldev Singh5, the Apex Court observed that everything in a decision is not a precedent. In Delhi Administration v. Manoharlal6, the Apex Court observed that a mere direction without laying down any principle of law is not a precedent. In Divisional Controller, KSRTC v. Mahadeva Shetty 7, the Apex Court observed as follows:
"...The decision ordinarily is a decision on the case before the Court, while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation. The only thing binding as an authority upon a subsequent Judge is the principle, upon which the case was decided...."
45. Regularization of contractual services has been a persistent matter of litigation for several decades now. In this regard, the Apex Court has clarified that the same has to be based on the necessity of the said post and the duration of the service of the employee. The Constitutional Bench 4 [1975] 3 SCR 914 5 (1999) 6 SCC 172 6 2002 CriLJ 4295 7 AIR 2003 SC 4172 29 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 of the Apex Court in Secretary, State of Karnataka. v. Uma Devi 8, laid down the following ratio:
"(I) The questions to be asked before regularization are:-
(a)(i) Was there a sanctioned post (court cannot order creation of posts because finances of the state may go haywire),
(ii) is there a vacancy,
(iii) are the persons qualified persons, and
(iv) are the appointments through regular recruitment process
(b) A court can condone an irregularity in the appointment procedure only if the irregularity does not go to the root of the matter.
(II) For sanctioned posts having vacancies, such posts have to be filled by regular recruitment process of prescribed procedure otherwise, the constitutional mandate flowing from Articles 14, 16, 309, 315, 320 etc is violated.
(III) In case of existence of necessary circumstances the government has a right to appoint contract employees or casual labour or employees for a project, but, such persons form a class in themselves and they cannot claim equality (except possibly for equal pay for equal work) with regular employees who form a separate class. Such temporary employees cannot claim legitimate expectation of absorption regularization as they knew when they were appointed that they were temporary inasmuch as the government did not give and nor could have given an assurance of regularization without the regular recruitment process being followed. Such irregularly appointed persons cannot claim to be regularized alleging violation of Article 21.
Also the equity in favour of the millions who await public employment through the regular recruitment process outweighs the equity in favour of the limited number of irregularly appointed persons who claim regularization.
(IV) Once there are vacancies in sanctioned posts such vacancies cannot be filled in except without regular recruitment process, and thus neither the court nor the executive can frame a scheme 8 2006 (4) SCC 1 30 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 to absorb or regularize persons appointed to such posts without following the regular recruitment process.
(V) At the instance of persons irregularly appointed the process of regular recruitment shall not be stopped. Courts should not pass interim orders to continue employment of such irregularly appointed persons because the same will result in stoppage of recruitment through regular appointment procedure. (VI) If there are sanctioned posts with vacancies, and qualified persons were appointed without a regular recruitment process, then, such persons who when the judgment of lima Devi is passed have worked for over 10 years without court orders, such persons be regularized under schemes to be framed by the concerned organization.
(VII) The aforesaid law which applies to the Union and the States will also apply to all instrumentalities of the State governed by Article 12 of the Constitution".
46. In State of Haryana v. Navneet Verma 9, the Apex Court opined that "Creation and abolition of posts is a matter of government policy and every sovereign government has this power in the interest and necessity of internal administration." and referred to M. Ramanatha Pillai v. State of Kerala 10, Kedar Nath Bahi v. State of Punjab 11, State of Haryana v. Des Raj Sangar 12, Dr. N.C. Singhal v. Union of India 13 and Avas Vikas Sanghathan v. Engineers Association 14, and culled out the following principles with regard to the role of the Court in interfering with Government Policy and their authority;
92007 INSC 1114 10 1973 INSC 150 11 AIR 1972 SC 873 12 1975 INSC 321 13 [1980] 3 SCR 44 14 2006 INSC 185 31 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022
(a) the power to create or abolish a post rests with the Government;
(b) whether a particular post is necessary is a matter depending upon the exigencies of the situation and administrative necessity;
(c) creation and abolition of posts is a matter of government policy and every sovereign government has this power in the interest and necessity of internal administration;
(d) creation, continuance and abolition of posts are all decided by the Government in the interest of administration and general public;
(e) the court would be the least competent in the face of scanty material to decide whether the Government acted honestly in creating a post or refusing to create a post or its decision suffers from mala fides, legal or factual;
(f) as long as the decision to abolish the post is taken in good faith in the absence of material, interference by the court is not warranted.
47. In Divisional Manager, Aravali Golf Club v. Chander Hass 15, the Apex Court also considered the issue relating to creation of post and held:
15. The court cannot direct the creation of posts. Creation and sanction of posts is a prerogative of the executive or legislative authorities and the court cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organisation. This Court has time and again pointed out that the creation of a post is an executive or legislative function and it involves economic factors. Hence the courts cannot take upon themselves the power of creation of a post. Therefore, the directions given by the High Court and the first appellate court to create the posts of tractor driver and regularise the services of the respondents against the said posts cannot be sustained and are hereby set aside.
15
2007 INSC 1240 32 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022
48. In Uma Devi (supra), the Constitutional Bench adverted its attention to financial implications of creation of extra posts and held that the Courts should not pass orders which impose unwarranted burden on the State and its instrumentalities by directing creation of particular number of posts for absorption of employees appointed on ad hoc or temporary basis or as daily wager. In Para 43 of Uma Devi (supra),it is held as follows:
"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. The High Courts acting under Article 226 of the Constitution, 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."33
KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022
49. These observations above clearly indicate that the casual, daily rated, or ad hoc employees, like the respondents in the present appeal, have no right to be continued in service, far less of being regularized and get regular pay.
50. In paragraph 19 of the aforesaid judgment of the Constitutional Bench of Uma Devi (Supra), an important observation has been made about whether the Court can impose financial burden on the State in this manner. Paragraph 19 states as under:
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 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 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 counterproductive.
51. In Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra 16, a three judge bench of the Apex Court held that ad hoc appointees/temporary employees engaged on ad hoc basis and paid on 16 AIR 1994 SC 1638 34 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 piece-rate basis for certain clerical work and discontinued on completion of their task, were not entitled to reinstatement or regularization of their services even if their working period ranged from one to two years. This decision indicates that if the engagement was made in a particular work or in connection with particular project, on completion of that work or of that project, those who were temporarily engaged or employed in that work or project could not claim any right to continue in service and the High Court cannot direct that they be continued or absorbed elsewhere.
52. In Director, Institute of Management Development, U.P. v. Pushpa Srivastava (Smt.) 17, the Apex Court held that since the appointment was on purely contractual and ad hoc basis on consolidated pay for a fixed period and terminable without notice, when the appointment came to an end by efflux of time, the appointee had no right to continue in the post and to claim regularization in service in the absence of any rule providing for regularization after the period of service. A limited relief of directing that the appointee be permitted on sympathetic consideration to be continued in service till the end of the concerned calendar year was issued. The Apex Court 17 1992 (3) SCR 712 35 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 observed that when the appointment was purely on an ad hoc and contractual basis for a limited period, on the expiry of the period, the right to remain in the post came to an end. The Apex Court stated that the view they were taking was the only view possible and set aside the judgment of the High Court which had given relief to the appointee.
53. In Official Liquidator v. Dayanand 18, the shift in the Court's approach became more prominent in A. Umarani v. Registrar, Cooperative Societies 19 decided by a three-Judges Bench of the Apex Court, wherein it was held that the State cannot invoke Article 162 of the Constitution for regularization of the appointments made in violation of the mandatory statutory provisions. In Uma Devi (supra), the Constitutional Bench again considered the question whether the State can frame scheme for regularization of the services of ad-hoc/temporary/daily wager appointed in violation of the doctrine of equality or the one appointed with a clear stipulation that such appointment will not confer any right on the appointee to seek regularization or absorption in the regular cadre and whether the Court can issue mandamus for regularization or absorption of such appointee and answered the same in negative. The Court adverted to the theme of 18 2008 INSC 1234 19 (2004) 7 SCC 112 36 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 constitutionalism in a system established in rule of law, expanded meaning given to the doctrine of equality in general and equality in the matter of employment in particular, multi-facet problems including the one relating to unwarranted fiscal burden on the public exchequer created on account of the directions given by the High Courts and this Court for regularization of the services of persons appointed on purely temporary or ad hoc basis or engaged on daily wages or as casual labourers, referred to about three dozen judgments including R.N. Nanjundappa v. T. Thimmiah 20, Daily Rate Casual Labour v. Union of India 21, Bhagwati Prasad v. Delhi State Mineral Development Corporation22, Dharwad District P.W.D. Literate Daily Wage Employees Association v. State of Karnataka 23, State of Haryana v. Piara Singh24 and State of Punjab v. Surinder Kumar 25 held as follows:
"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 recognised 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 20 1972 INSC 342 21 1987 INSC 293 22 1989 INSC 388 23 1990 INSC 54 24 1992 INSC 201 25 1991 INSC 348 37 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 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.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. .... 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 regularising 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 38 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 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."
54. In summary of the entire pleadings herein, the petitioners herein claim regularization as a matter of fundamental right impinging Articles 14, 16, 19 and 21 of our Constitution, against their employment which was granted on a temporary basis praying to set aside the order passed by the learned Single Judge of this Court. The principal argument canvassed on behalf of the petitioners was that they had been selected by a duly constituted Selection Committee by following procedure of issuing advertisement and inviting applications from all the eligible candidates and they had been working to the satisfaction of the respondents and they were entitled for the regularization and or permanency in the posts in which they were working. On behalf of the State Government, it was submitted that the petitioners herein had no legal right to make the claim for regularization by invoking the extraordinary jurisdiction of the Constitutional Court. It was submitted that the petitioners were contractual employees and they accepted the employment with full 39 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 knowledge that they would not be able to claim regularization or permanency.
55. In Excise Commissioner v. Issac Peter 26, the Apex Court held as follows:
"26. .... Doctrine of fairness or the duty to act fairly and reasonably is a doctrine developed in the administrative law field to ensure the rule of law and to prevent failure of justice where the action is administrative in nature. Just as principles of natural justice ensure fair decision where the function is quasi-judicial, the doctrine of fairness is evolved to ensure fair action where the function is administrative. But it can certainly not be invoked to amend, alter or vary the express terms of the contract between the parties. This is so, even if the contract is governed by statutory provisions, i.e., where it is a statutory contract -- or rather more so."
Taking note of the decision in Shrilekha Vidyarthi v. State of U.P. 27, it was held in the Isaac Peter (supra) as follows:
"26. ....in case of contracts freely entered into with the State, like the present ones, there is no room for invoking the doctrine of fairness and reasonableness against one party to the contract (State), for the purpose of altering or adding to the terms and conditions of the contract, merely because it happens to be the State. In such cases, the mutual rights and liabilities of the parties are governed by the terms of the contracts (which may be statutory in some cases) and the laws relating to contracts. It must be remembered that these contracts are entered into pursuant to public auction, floating of tenders or by negotiation. There is no compulsion on anyone to enter into these contracts. It is voluntary on both sides."
26
(1994) 4 SCC 104 at page 124 27 (1991) 1 SCC 212 40 KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022
56. The Apex Court furthered on the same paragraph of relevance in Isaac Peter (supra) is produced herein, "26. ....It was a case of termination from a post involving public element. It was a case of non-government servant holding a public office, on account of which it was held to be a matter within the public law field. This decision too does not affirm the principle now canvassed by the learned counsel. We are, therefore, of the opinion that in case of contracts freely entered into with the State, like the present ones, there is no room for invoking the doctrine of fairness and reasonableness against one party to the contract (State), for the purpose of altering or adding to the terms and conditions of the contract, merely because it happens to be the State. In such cases, the mutual rights and liabilities of the parties are governed by the terms of the contracts (which may be statutory in some cases) and the laws relating to contracts. It must be remembered that these contracts are entered into pursuant to public auction, floating of tenders or by negotiation. There is no compulsion on anyone to enter into these contracts. It is voluntary on both sides. ..."
57. It is well settled in Manager, RBI, Bangalore v. S. Mani28 that regularization cannot be a mode of appointment. In the aforesaid decision the Apex Court referred to its own earlier decision in Umarani (supra) wherein it was observed that regularization is not and cannot be a mode of recruitment by any State within the meaning of Article 12 of the Constitution of India or anybody or authority governed by a Statutory Act or the Rules framed thereunder.
58. In view of the above observations, we are of the considered opinion that the rules of recruitment cannot be relaxed and the 28 (2005)IILLJ258SC.
41
KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022 Court/Tribunal cannot direct regularization of temporary appointees de hors the rules, nor can it direct continuation of service of a temporary employee (whether called a casual, ad hoc or daily rate employee) or payment of regular salaries to them.
59. No doubt, Article 41 provides for the right to work, but this has been deliberately kept by the founding fathers of our Constitution in the Directive Principles and hence made unenforceable in view of Article 37, because the founding fathers in their wisdom realized that while it was their wish that everyone should be given employment, but the ground realities of our country cannot be overlooked. In our opinion, Article 21 of the Constitution cannot be stretched so far as to mean that everyone must be given a job. The number of available jobs is limited, and hence Courts must take a realistic view of the matter and must exercise self-restraint.
60. As discussed supra, on consideration of the entire material on record, learned Single Judge dismissed the writ petition filed by the writ petitioners. The petitioners - appellants herein failed to make out any case to interfere with the said order. Thus, this appeal is liable to be dismissed.
42
KL, J & SKS, J W.A. No.713 of 2022 along with I.A.No.4 of 2022
61. In the result, I.A.No.4 of 2022 is allowed, whereas, the writ appeal is dismissed.
As a sequel thereto, miscellaneous applications, if any, pending in this writ appeal shall stand closed.
_________________ K. LAKSHMAN, J _________________ K. SUJANA, J 7th June, 2024.
Note: Furnish C.C. of order forthwith.
(B/O.) Vvr