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THE HON'BLE SRI JUSTICE A.V. SESHA SAI
&
THE HON'BLE SRI JUSTICE V. SRINIVAS
W.P. No.32773 OF 2022
JUDGMENT:(per A.V. Sesha Sai, J)
Heard Sri Ravi Chandra Bejjaram, learned counsel
for the petitioner and Sri N. Harinath, learned Deputy
Solicitor General of India for respondents.
Challenge in the present Writ Petition is to the order
dated 28.09.2022 passed by the Central Administrative
Tribunal (hereinafter referred to as "the Tribunal"),
Hyderabad Branch, in O.A.No.650 of 2022.
By way of the aforesaid order, the Tribunal declined
to grant interim relief in favour of the applicant-petitioner
herein and directed the matter to be posted for filing reply
by the respondents.
According to the applicant-petitioner herein, the
respondent-railway authorities issued Notification dated
23.09.2021 for engagement of Physiotherapist on contract
basis for one year subject to continuation of scheme
beyond 31.03.2022 or till filling up of the vacancy by the 2
Railway Board. It is stated that the applicant-petitioner
herein completed Bachelor's in Physiotherapy in the year
2012 and Masters in Physiotherapy in Cardiovascular &
Pulmonary. The respondent-authorities issued
appointment order to the applicant on 19.10.2021
engaging the applicant-petitioner herein upto 31.03.2022.
Thereafter, pursuant to the proceedings of the first
respondent dated 30.06.2022, the respondent authorities
extended the services of the applicant-petitioner herein
upto 30.09.2022 vide proceedings dated 30.06.2022. The
respondent No.3 issued a Tender Notification bearing Bid
Number:GEM/2022/B/2524591, dated 12.09.2022, calling
for tenders from the private agencies for providing
manpower for Physiotherapist specialization in the office of
the 6th respondent for a period of one year.
In the above background, assailing the validity and
legal sustainability of the impugned action of the
respondents, the applicant-petitioner herein approached
the Tribunal, questioning the Notification dated 12.09.2022
and for a consequential direction to the respondents to 3
extend his services till the post is filed up by the Railway
Recruitment Board.
It is submitted by the learned counsel for the
applicant-petitioner herein that the respondent-authorities
resorted to the impugned action by giving complete goby to
the settled principle of law as laid down by the Hon'ble
Apex Court in the cases of Manish Gupta and Ors., V.
President, Jan Bhagidari Samiti and Ors.1 and State
of Haryana and Ors., V. Piara Singh and Ors. 2. In the
case of Piara Singh's case (2nd supra), the Apex Court at
Para No.25 held as follows:
"25. Before parting with this case, we think it appropriate to say a few words concerning the issue of regularization of ad hoc/temporary employees in government service.
The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/ temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld
1 C.A. Nos.3084-3088 of 2022, dt.21.04.2022 2 AIR 1992 SC 2130 4
or kept in abeyance for the sake of such ad hoc/temporary employee.
Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.
An unqualified person ought to be appointed only when qualified persons are not available through the above process.
If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.
The proper course would be that each State prepares a scheme, if one is not already in vogue, for regularization of such employees consistent with its reservation policy and if a scheme is already framed, the same may be made consistent without our observations herein so as to reduce avoidable litigation in this behalf. If and when such person is regularized he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be.
So far the work-charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to 5
their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell - say two or three years - a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularization. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this Court, security of tenure is necessary for an employee to give his best to the job. In this behalf, we do commend the orders of the Government of Haryana (contained in its letter dated 6.4.90 referred to hereinbefore) both in relation work-charged employees as well as casual labour.
We must also say that the orders issued by the Government of Pubjab and Haryana providing for regularization of ad hoc/ temporary employees who have put in two years/ one year of service are quite generous and leave no room for any legitimate grievance by any one.
These are but a few observations which we though it necessary to make, impelled by the facts of this case, and the spate of litigation by such employees. They are not exhaustive nor can they be understood as immutable. Each Government or authority has to devise its own criteria or principles for regularization having regard to all the relevant circumstances, but while do so, it should bear in mind the observations made herein."
In Manish Gupta's case (1st supra), the Hon'ble Apex Court at
Para No.12 held as follows:
"12. A perusal of the advertisement dated 24 th June, 2016 issued by the Principal, Government Kamla Raja Girls Post Graduate Autonomous College, Gwalior, which is at Annexure P-2 of the Appeal Paper Book and the advertisement dated 2nd July, 2016 issued by the Principal, SMS Government Model Science College, Gwalior, M.P., which is at Annexure P-3 of the Appeal Paper Book, would show that the appointments were 6
to be made after the candidates had gone through due selection procedure. Though Shri Nataraj, learned ASG has strenuously urged that the appointments of the Appellants were as guest lecturers and not as ad hoc employees, from the nature of the advertisements, it could clearly be seen that the Appellants were appointed on ad hoc basis. It is a settled principle of law that an ad hoc employee cannot be replaced by another ad hoc employee and he can be replaced only by another candidate who is regularly appointed by following a regular procedure prescribed. Reliance in this respect can be placed on the judgment of this Court in the case of Rattan Lal and Ors. v. State of Haryana and Ors. MANU/sc/0354/1985: (1985)4 SCC 43 and on the order of this Court in the case of Hargurpratap Singh V. State of Punjab and Ors. MANU/SCOR/00045/2003: (2007)13 SCC
292."
It is very much clear from a reading of the order passed
by the Tribunal that though the applicant placed reliance on
Manish Gupta's case (1st supra), the Tribunal observed in
the impugned order that the said Judgment would not be
applicable to the present case as the facts are distinct. It is
very much evident from a reading of the aforesaid Judgment
of the Hon'ble Apex Court that one contract employee cannot
be replaced by another contract employee though it is always
open to fill up the post by taking up regular recruitment
process. In the considered opinion of this Court, prima facie,
the respondents herein did not adhere to the said principle.
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For the aforesaid reasons, the Writ Petition is allowed,
setting aside the order dated 28.09.2022 passed by the
Central Administrative Tribunal, Hyderabad Bench, in
O.A.No.650 of 2022, and consequently, the respondents are
directed to continue the applicant-petitioner herein in service
on the same terms and conditions, pending disposal of the
Original Application. It is also made clear that in the event of
taking up the regular selection process by the respondents
pending Original Application before the Tribunal, this order
will not come in their way. No costs.
Miscellaneous petitions, if any pending in this case,
shall stand closed.
__________________ A.V. SESHA SAI, J
_______________ V. SRINIVAS, J
Date: 10.10.2022
(Issue cc by tomorrow) B/O Ks 8
THE HON'BLE SRI JUSTICE A.V. SESHA SAI & THE HON'BLE SRI JUSTICE V. SRINIVAS
W.P. No.32773 OF 2021 (per A.V. Sesha Sai, J)
Date: 10.10.2022
Ks
