On 1st October, a bench of Delhi High Court consisting of Justice V. Kameshwar Rao held that the creation and abolition of posts, formation and structuring/ restructuring of cadres, prescribing the source and mode of recruitment, qualifications and criteria of selection etc., are matters which fall within the exclusive domain of the employer. The Court cannot sit in appeal over the executive decision of the employer and ordain that a particular post or number of posts be created or filled by a particular mode of recruitment.
Facts of the case:
The present petition was filed by the petitioners praying for a writ of certiorari to be issued quashing the advertisement no. EESL/0320/17 dated 15-10-2019 by the Respondent no. 1 i.e. EESL with all its consequences. A further writ of mandamus commanding the Respondent No. l i.e. EESL to absorb the petitioners in regular positions after declaring the results of the interviews held between June 24 and June 26, 2019 and also non-executive petitioners on the basis of ACR.
Contention of the petitioner:
Mr. Prashant Bhushan, learned counsel appearing for the petitioners submitted the following:
- It was submitted that the action of the respondent No.1 to issue a fresh advertisement is untenable as the respondent No.1 was under an obligation to advertise the result of the interviews conducted on June 24, 2019 and June 26, 2019 for the absorption of the Fixed Tenure Employees (FTE) in regular scale and issue appointment letters to them, if selected.
- It was also submitted that it is the legitimate expectation of the petitioners not on the basis of their initial employment as FTE but on the basis of the policy and practice of the respondent No.1 that they shall be absorbed once they complete one year of service in respondent No.1 with satisfactory performance.
- It was further contended that the fact that they appeared in the interview on June 24, 2019 and June 26, 2019 in terms of the Recruitment Policy, the respondent No.1 is required to declare the result.
Contention of the respondent:
The following contention has been submitted by the respondent:
- It was submitted that the petitioners were appointed as FTEs, who were employed in respondent No.1 Company on contractual basis for four and a half years.
- It was submitted that the law is well settled inasmuch as the FTEs or contractual employees cannot claim absorption or regularization as a matter of right.
- Mr. Kapur stated even on equity, no discrimination has been made against the FTEs by declaring them ineligible to participate in the examination held on October 23, 2020.
Observation and judgement of the court:
The following observation has been made by the hon'ble court:
1. Creation and abolition of posts, formation and structuring/ restructuring of cadres, prescribing the source and mode of recruitment, qualifications and criteria of selection etc., are matters which fall within the exclusive domain of the employer.
2. No material has been placed before the Court to show that any promise was made or that any assurance was given by the respondent No.1 for their absorption in regular cadres but this Court is of the view that the doctrine of legitimate expectation would not come into play when the terms of appointment issued to the petitioners, includes Clause 8, as referred to above which is very clear that the petitioners cannot have any claim for regularization or absorption in the regular cadre of the respondent No. 1
In the light of the above it was held that the process evolved by the respondent No.1 is in conformity with Article 14 of the Constitution of India and hence If the prayer, as sought for by the petitioners is allowed, the same would be in violation of Article 14 of the Constitution of India, as persons who may not have worked in the respondent No.1 organization but meeting the provisions of the Recruitment Policy would be denied the right of consideration on the posts in the respondent No.1 organization as the said posts are public posts and every citizen of the Country meeting the eligibility criteria has a right to apply and consider.
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