Vikas Sharma And Ors. vs Govt. Of Nct Of Delhi And Ors. ...
2007 Latest Caselaw 1668 Del

JUDGMENT

A.K. Sikri, J.

1. All these petitions involve the same question of law, which is to be decided in identical factual background.

2. The petitioners in all these writ petitions are working as nursing orderlies for a number of years. They were, however, appointed on ad hoc basis in the hospitals under the Government of National Capital Territory of Delhi and are continuing in that capacity since then. They want a declaration of their status of regular employees on the plea that they underwent the proper selection process before they were appointed. The Tribunal vide the impugned orders passed in different applications filed by the petitioners under Section 19 of the Administrative Tribunal Act, have not found favor with their plea. The applications were, however, disposed off with the directions that whenever the next advertisement is issued for making selection on regular basis, these petitioners shall be considered for the post of nursing orderlies in accordance with law. These orders are challenged in these writ petitions. Because of the commonality of the subject matters, all these writ petitions were heard together which are being disposed of by this common judgment.

3. Writ Petition (C) 9524-38/2004 was treated as lead matter, therefore, to appreciate controversy, it would be apposite to scan through the facts appearing in that writ petition. In this writ petition, the impugned order of the Tribunal is dated 17.3.2004 whereby four OA's came to be decided by one common judgment rendered by the Tribunal. The petitioners are working as nursing orderlies since 1999. These petitioners approached the Tribunal in the year 2001 by means of OA No. 1251/2001 claiming regularisation. Vide orders dated 17.5.2001, a Single Bench of the Tribunal disposed of the said OA at the threshold itself, inter alia, observing that before approaching the Tribunal they had not made any representation to the respondents. In any case, they could not make out a convincing case for appointment on regular basis. The Tribunal also observed that they would be entitled to be considered for appointment on daily wage basis in future also, if the respondent decides to appoint nursing orderlies on daily basis in preference to freshers and juniors of the applicants. Thus, the claim of the petitioners for regular appointment was not accepted, but direction was given to the respondents to re-engage the petitioners as nursing orderlies on daily wage basis in preference over their juniors, freshers and outsiders.

4. The petitioners thereafter approached the Tribunal again and filed OA No. 2803/2002. This order was confined to the 10 persons who were applicants in that OA and direction was given to the respondents to favorably consider their case for being regularized against the available vacancies for which advertisement had already been issued in accordance with Rules. It was also clarified that in the event of such regularisation, they would only be treated as fresh appointees along with others who would have responded to the advertisements. The petitioners were still not regularized and they approached the Tribunal for the third time in the year 2003, wherein the Tribunal passed the impugned order which is under challenge before us.

5. It may be noted that the case of the petitioners was that though they had already served the respondents for a long span of time, but still their case for regularization was not considered and even their experience had been totally ignored. The respondents had issued advertisement dated 16.9.2003 inviting applications for filling up more than 300 posts of nursing orderlies in various Government hospitals and the grievance of the petitioners was that they were not even called for interviews and were not considered against those vacancies.

6. The case set up by the respondents on the other hand was that these petitioners were engaged as nursing orderlies for 45 days in the month of June 1999. However, pursuant to orders dated 17.5.2001 in OA No. 1255/2001, they were re-engaged on daily wage basis. It was also pleaded that in accordance with directions dated 10.7.2003 in OA No. 2803/2002 the case of each of the petitioner was required to be considered for regularization against vacancies. The advertisement had already been issued to fill up the posts through a process of selection. Only petitioner No. 2 applied and petitioners No. 1 and 3 to 7 did not apply. Petitioner No. 2 was not selected. After consideration, other petitioners who had applied were selected. After hearing the parties, the Tribunal opined that these persons could only claim a right to be considered, and no right to be appointed could be asserted. It also held that the petitioners could not claim regularization, as according to the Tribunal:

The plea that the applicants were to be regularized the said contention at the threshold requires to be rejected because regularisation can only to be after following the due process of selection.

7. Under the circumstances, the petition was disposed of with the following directions:

For these reasons, we dispose of the present applications holding that in the next advertisement, the applicants who had applied and were not called for the interview, may apply again and they shall be considered for the post of nursing orderlies in accordance with law.

8. The statement of law as expressed by the learned Tribunal in para 16 extracted above, is flowless. In fact, the matter stand conclusively determined by the Supreme Court and all controversies regarding the rights of the casual workers for regularization are put to vest by the Constitution Bench judgment of the Apex Court in State of Karnataka v. Uma Devi and Ors. . The law laid down in the said judgment can be stated in the capsulated form in the following words:

Persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, have been approaching the courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts concerned. The courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. Such an argument fails when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution. 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 who by the very nature of their appointment, do not acquire any right.

It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain 'not at arm's length' since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone it would not be appropriate to jettison the constitutional scheme of appointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so it will be creating another mode of public appointment which is not permissible. If the court were to avoid a contractual employment of the nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it.

9. It is the constitutional duty of the Government to fill the posts on regular basis after following the proper selection procedure in accordance with Rules. However, in spite of the constitutional scheme for employment, there may be occasion when the sovereign state or its instrumentality will have to employ persons in posts which are temporary, on daily wage basis as additional hands or taking them in without following required procedure to discharge duties, in respect of posts that are sanctioned and that are to be filled in terms of the relevant procedure established by the Constitution, or in temporary posts or projects that are not needed permanently. It is the right of the Union or the State Government to make such appointments, engage persons temporarily or on daily wage basis to meet notice of the daily situation. However, such appointment would not confer any right on the appointee. Therefore, if it is a contractual appointment, the appointment comes to an end at the end of the contract. Likewise, if it is an engagement on daily wage or casual basis the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim permanent employment on the expiry of the term of appointment. A regular process of recruitment and appointment has to be resorted to, when regular vacancies in posts at a particular point of time are to be filled up. The filling up of regular vacancies cannot be done in a haphazard manner, or based on patronage or other considerations.

10. The Supreme Court thus brushed aside the contention that it should individualise justice to suit a given situation, in as much as, in the name of individualising justice, it is not possible for the Courts to shut its eyes to the constitutional scheme and the right of the numerous persons as against the few who are before the Court. The Apex Court was candid in observing that the directions issued by it or the High Court under Article 226 directing regularization on the basis of so-called equitable consideration were issued, ignoring the equity for teeming millions of this country seeking employment and seeking fair opportunity for competing for employment. Therefore, such equitable considerations could not be applied in cases of few people coming to the Court ignoring the same equitable consideration for vast majority waiting for employment through proper channels. The Supreme Court categorically held that the constitutional scheme cannot be by passed purportedly by passing such orders and issuing directions for regularization.

11. The Apex Court was of the opinion that merely because a temporary employee or a casual one has continued for some time beyond the term of his appointment, would not entitle him 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 the due process of selection and as envisaged by the relevant Rules. The unequivocal message of the judgment is that there would not be any regularization or appointment on regular basis without following of a regular procedure and backdoor entries through means of appointment on daily wage basis or casual basis initially and then conferring status of regular employee is to be depricated and such persons have no legal right to seek an order of permanence.

12. The petitioners could not dispute the aforesaid statement of law laid down in Uma Devi (Supra). There is no scope of dispute either about the law declared vide the said judgment which is binding on all courts. The Constitution Bench was very specific in stating that the High Courts acting under Article 226 should not ordinarily issue directions for absorption or regularization or permanent continuance unless recruitment itself was made regularly, and in terms of constitutional scheme.

13. The submissions of learned Counsel for the petitioners was that in the present case, the petitioners not only fulfillled the educational qualifications as prescribed for the post of nursing orderlies, they had undergone the regular selection process adopted by the respondent before engaging them, be on daily wage basis. It was thus contended that their cases were not backdoor entries. To butteress the submission, learned Counsel highlighted the following facits of the appointment of the petitioners.

A. In the employment notice which was issued against which the petitioners were appointed, it was mentioned against qualification/experience: 'Middle class with one year working experience'. The petitioner possessed this qualification.

B. Proper employment notice/advertisement was issued and the names of the petitioners were sponsored by the employment exchange.

C. Office order dated 24.3.2004 vide which the petitioners were appointed, though on contract basis clearly mentioned that the appointment was 'as per Recruitment Rules'.

D. The appointment orders were issued by the Medical Superintendent who was the competent authority/appointing authority. The orders were also issued after taking prior approval of Finance Department.

14. It was thus submitted that proper procedure was followed in accordance with Recruitment Rules, before making selection of the petitioners, and only because the petitioners were given appointment on contract basis initially for a period of 189 days, the petitioner were denied regularization. The submissions of the learned Counsel, therefore, was that even as per the ratio of Uma Devi (Supra), the petitioners should have been given regularization, more so when many other similarly situated persons were regularized. Office orders No. 346 dated 26.9.2003 passed by the respondent in compliance with directions contained in the judgment dated 10.7.2003 of the Tribunal in OA No. 2803/2002 has been referred to, as per which 25 persons who were working on daily wage basis were absorbed on regular basis, though it was treated as fresh appointment.

15. Strong reliance was placed by the learned Counsel for the petitioners on the following passage from Uma Devi (Supra):

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.

It was thus argued that since in the present case appointments were made in terms of relevant Rules and after a proper selection process, the petitioners had acquired valuable right.

16. Though it appears from the aforementioned aspects highlighted by the learned Counsel for the petitioner that proper selection procedure was followed, a little deeper scrutiny would negate this arguments of the petitioners. The employment notice which was issued itself made it clear that applications were invited for filling up the temporary vacant posts. Furthermore, the most important aspect is that no selection committee was constituted for this purpose. Learned Counsel for the respondent has pointed out that for appointment on regular basis, the candidates are required to appear before the selection committee which evaluates the candidates for selection to such posts. He also pointed out that the regular selection procedure is undertaken by the Staff Selection Board, and on the recommendation of the Staff Selection Board appointments on regular basis are made which admittedly was not done in the instant case.

17. We also find that the advertisement for regular selection were issued from time to time and those who applied were considered. No doubt some of these were not considered pursuant to advertisement dated 16.9.2003 inviting applications for filling up over 300 posts of nursing orderlies in different Government hospitals. In such a case, the directions which could be given was to consider these applicants by calling them for interviews, whenever the next advertisement is issued. These are precisely the directions given by the Tribunal, and having regard to the judgment in Uma Devi (Supra) we find that the aforesaid directions are without blemish. Mere fulfillling the educational qualifications and other eligibility condition for recruitment to a particular post is not sufficient to confer the status of a regular employee. What is more important is that the proper selection procedure as per the Recruitment Rules is also to be undertaken. As pointed out by the Supreme Court in Uma Devi (Supra), regular recruitment should be insisted upon and the State should not be allowed to depart from this normal Rule. The submission of the learned Counsel for the petitioner, therefore, based on first few lines of para 43 of the judgment in Uma Devi as extracted above cannot be accepted when the entire para 43 is read. The message is loud and clear as can be seen from the subsequent portion of said para 43 which reads:

It 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.

18. It would be of interest to note that the Court in that case was conscious of those cases where appointment could be irregular and the incumbents were continuing to work for a long time. Direction was thus given to the Union as well as State Government and their instrumentality to take steps to regularize as a one time measure the services of such irregularly appointed persons who had worked for 10 years or more in a duly sanctioned post but not under the cover of the orders of the courts or Tribunals. The exact observations of the Court in this behalf as contained in para 53 and 54 of the judgment are as under:

53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarjan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The questions of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further posts ;that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there ;should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.

54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.

19. Unfortunately the petitioners before us do not even meet the aforesaid criteria. The Court is categorical that directions which have been issued by the Courts earlier will not be treated as precedents any longer. Therefore, the directions given by the Tribunal on earlier occasions cannot even be relied upon by the petitioners. The result of the foregoing discussion would be to upheld the order of the Tribunal and dismiss these petitions as devoid of any merits.

There shall, however, be no orders as to costs.