Rajender Prasad vs National Human Rights Commission
2013 Latest Caselaw 1820 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment reserved on   : 15.04.2013
                                    Judgment pronounced on : 23.04.2013

+      LPA 375/2009

       RAJENDER PRASAD                                           ..... Appellant
                              Through:    Mr. Shivanath Mahanta, Advocate.

                   versus

       NATIONAL HUMAN RIGHTS COMMISSION             ..... Respondent
                        Through: Mr. R.V. Sinha and Mr. A.S. Singh,
                                 Advocates.

        CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE V.K. JAIN


V.K. JAIN, J.

1. The appellant before us, having taken voluntary retirement from Army,

applied to the respondent-National Human Rights Commission („NHRC‟) for

appointment to the post of Constable. Vide Office Memorandum dated 30th April,

1996 the appellant was offered appointment on contractual basis on the terms and

conditions stipulated in the said Office Memorandum. One of the conditions

stipulated in the Office Memorandum was that the appointment would be on

contractual basis for a period of one year from the date he assumed charge.

Pursuant to the said Office Memorandum, the appellant joined NHRC on the same

date. The aforesaid employment was followed by subsequent appointment/

extension for the period specified in the order of appointment/extension on the

terms and conditions contained in the appointment letter. One of the conditions

contained in the appointment letter was that the appointment could be terminated

on one month‟s notice on either side. However, the expression used in the order of

appointment was "on re-employment basis". The appellant made representation

seeking regularization of his services, but, vide letter dated 31 st August, 2006 while

regularizing his service till that date, the respondent simultaneously terminated his

services with effect from that very date. His request for appointment as Constable

was rejected vide letter dated 31st September, 2006 on the ground that he did not

fulfill the eligibility criteria for the said post.

2. Being aggrieved from termination of his services, the appellant filed Writ

Petition (Civil) No. 17436/2006. The said petition having been dismissed vide the

impugned order dated 30th May, 2009, the appellant is before us by way of this

appeal.

3. It is not in dispute that at the time the appellant was engaged/appointed for

the first time, the recruitment rules did not provide for recruitment by way of direct

appointment. The rules provided for appointment only by transfer/transfer on

deputation. Therefore, as per the recruitment rules the appellant was not eligible

for appointment to the post on which he was engaged on contractual basis.

4. It was contended by learned counsel for the appellant that though initially the

appellant was appointed on contractual basis, later on the mode of appointment was

altered from contractual basis to re-employment basis. We have perused the

appointment/extension orders issued to the appellant from time to time. It is

evident from a perusal of these orders that despite use of the expression "on re-

employment basis", the engagement of the appellant continued to be on contractual

basis, since a particular term of appointment/extension was fixed in the orders

whereby his services were extended from time to time. In case of re-employment,

there can be no question of any particular terms of employment/engagement being

stipulated in the appointment order, since the regular employment has to expire on

the date of superannuation as prescribed in the rules. Therefore, the use of

expression "on re-employment basis" was nothing but a misnomer in the

appointment/extension orders issued to the appellant from time to time. More

importantly, since the recruitment rules envisaged appointment only on

transfer/transfer on deputation basis there can be no question of re-employment till

the prescribed date of superannuation.

5. Since the appointment of the appellant was on contractual basis, and even

otherwise he was not eligible for regular appointment, no legal right accrued to him

to continue to occupy the post of a Constable after the terms stipulated in the order

of appointment/engagement expired on 31st August, 2006 and the respondent was

entitled, in law, to dispense with his services with effect from that date.

6. In Vidyavardhaka Sangha and Anr. Vs. Y.D. Deshpande and Ors. (2006)

12 SCC 482, the Supreme Court observed that the appointment made on

probation/ad hoc basis for a specific period of time comes to an end by efflux of

time and the person holding such post can have no right to continue on the post.

The Court noted that in the case before it, the respondents had continued in

employment for some years albeit on the terms and conditions stipulated in the

appointment order. The Court was of the view that they cannot now be permitted

to turn their back and say that the appointments could not be terminated on the

basis of their appointment letters. The Court observed that under Article 141 of

the Constitution, the judgment of the Constitution Bench in Secretary, State of

Karnataka and Others, v. Uma Devi and Others: (2006) 4 SCC 1 is binding on all

Courts, including the Supreme Court till the same is overruled by a larger Bench.

7. In the case before us, it was clearly stipulated in the very first appointment

letter issued to the appellant that his appointment could be terminated "on one

month‟s notice on either side". Even otherwise, the appointment being for a

specified period, the same came to an end by afflux of time. The case of the

appellant, therefore, is squarely covered by the decision of the Supreme Court in

Vidyavardhaka Sangha (supra). Having accepted the condition that the

appointment would be for a specified period and could be "terminated by one

month‟s notice on either side" the appellant cannot seek regularization on the basis

of such an appointment. No legal right of the appellant was, therefore, infringed

on account of appointment not being extended beyond 31st August, 2006.

8. It was contended by learned counsel for the appellant that since the appellant

was otherwise eligible for being appointment as a Constable with the respondent

and the Chairperson of NHRC had been authorized (vide order dated 22nd

September, 1997) to frame, amend and relax the recruitment rules, the appointment

of the appellant is capable of being regularized. We find no merit in the aforesaid

contention. Since the recruitment rules, even as on today, do not provide for

recruitment by way of direct appointment, no such direction can be given by the

Court. As regards relaxation of rules, it would be for the competent authority to

take a view on such a request being made to him and no direction for regularization

can be given by the Court in exercise of its writ jurisdiction under Article 226 of

the Constitution.

9. In Uma Devi and Others (supra), a Constitution Bench of the Supreme

Court, while considering absorption, regularization or permanent continuance of

temporary, contractual, casual, daily wage or ad hoc employees who had been in

service for quite some time, inter alia, recognized the power of the State and its

instrumentalities to employ persons in posts which are temporary on daily wages as

additional hands or taking them in, without following the required procedure to

discharge the duties in respect of the posts that are sanctioned and required to be

filled in terms of the relevant procedure and noted that there was nothing in

Constitution which prohibits such engagements. The Court was of the view that a

total embargo on such employments 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. The Court observed that innumerable citizens of our vast country are in

search of employment, one is not compelled to accept a casual or temporary

employment if he is not inclined to go in for such an employment and it is in that

context that one has to proceed on the basis that the employment was accepted

fully knowing the nature and the consequences flowing from it. As regards the

argument that since the employee had been working for some time in the post, it

will not be just to discontinue him even though he was aware of the nature of the

employment, the Court felt that if accepted, this argument would enable the

jettisoning of the procedure established by law for public employment and would

have to fail when tested on the touchstone of the constitutionality and equality of

opportunity enshrined under Article 14 of the Constitution.

Dealing with the doctrine of legitimate expectation advanced by the

employees, the Court observed that 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 recognized by relevant rules or procedure, he is

aware of the consequences of the appointment being temporary, casual or

contractual in nature and he cannot invoke the theory of legitimate expectation for

being confirmed in the post, where appointment could be made only by following a

proper procedure for selection. The Court felt that the theory of legitimate

expectation cannot be successfully advanced by temporary, contractual or casual

employees and it cannot be held that the State had held out any promise while

engaging these persons either to continue them where they were or to make them

permanent. The Court noted that the State cannot constitutionally make such a

promise.

It was also noted by the Court that 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. The Court also held that such

employees cannot claim a right to be treated at par with those who are regularly

employed. The Court also rejected the contention that right to life protected by

Article 21 of the Constitution would include the right to employment since

acceptance of such a plea would lead to the consequence of depriving a large

number of other aspirants of an opportunity to compete for the post or employment.

The Court, however, noted that there may be cases where irregular

appointments of duly qualified persons are made in duly sanctioned vacant posts

and the employees continue to work for more than 10 years or more, but without

intervention of the order of the Courts or of Tribunals. The Court directed that

Union of India, State Governments and their instrumentalities should take steps to

regularize as a one-time measure the services of such irregularly appointed, who

have worked for 10 years or more in duly sanctioned posts, but not under cover of

order of Courts or of Tribunals and should further ensure that regular recruitments

are undertaken to fill those vacant sanctioned posts that are required to be filled up,

in cases where temporary employees or daily wagers are being now employed. The

Court directed that the process must be set in motion within six months from the

date of its order. The Court clarified that the decisions which run counter to the

principles settled in this decision or in which directions run counter to this decision

would stand denuded of their status as precedents.

In the case before us, admittedly, the appellant had not completed ten

years of service on the date when the decision was rendered in Uma Devi

and Others (supra), therefore, no benefit of the said judgment is available to

the appellant.

10. In State of Karnataka and Ors. v. Sri G.V. Chandrashekar: (2009) SCC

342, the respondent before Supreme Court was appointed as a typist on 05.09.1985

and worked for more than 10 years, without break in service. He sought a direction

for regularization of his services with all consequential. The Tribunal directed that

the question of regularization of his service be examined with reference to the

records. The writ petition filed by the State against the order of the Tribunal

having been dismissed, the matter was taken by the State to Supreme Court by way

of Special Leave. Some other matters, involving similar issue, were also examined

by Supreme Court in this case. Relying upon the decision in the case of Uma Devi

and Others (supra), the appeal filed by the State was allowed and the order passed

by the High Court was set aside.

11. Dealing with the doctrine of legitimate expectation invoked by the

respondents, the Court, after referring to its decision in Sethi Auto Service Station

v. DDA : (2009) 1 SCC 180 held that since the terms of the letter of appointment

of the respondents made it clear that the appointments were temporary and would

not confer any right to claim any permanent post in the department and since no

promise of absorption as regular employees had been made to them and in fact no

such promise could be held out in view of the Government OA dated 07.06.1988

which banned employment of persons in regular posts.

12. For the reasons stated hereinabove, we find no merit in the appeal and the

same is hereby dismissed. No orders as to costs.

V.K. JAIN, J.

CHIEF JUSTICE APRIL 23, 2013 AK