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
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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:
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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.
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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.
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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.
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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.
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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
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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.
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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
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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.
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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.
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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
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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
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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
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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
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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
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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.
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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
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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.
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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.
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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.
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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.
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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
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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
(2019) 6 SCC 250
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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.
(2022) SCC OnLine SC 485
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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
1996 INSC 997
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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
[1975] 3 SCR 914
(1999) 6 SCC 172
2002 CriLJ 4295
AIR 2003 SC 4172
KL, J & SKS, J
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
2006 (4) SCC 1
KL, J & SKS, J
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;
2007 INSC 1114
1973 INSC 150
AIR 1972 SC 873
1975 INSC 321
[1980] 3 SCR 44
2006 INSC 185
KL, J & SKS, J
(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.
2007 INSC 1240
KL, J & SKS, J
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."
KL, J & SKS, J
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
AIR 1994 SC 1638
KL, J & SKS, J
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
1992 (3) SCR 712
KL, J & SKS, J
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
2008 INSC 1234
(2004) 7 SCC 112
KL, J & SKS, J
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
1972 INSC 342
1987 INSC 293
1989 INSC 388
1990 INSC 54
1992 INSC 201
1991 INSC 348
KL, J & SKS, J
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
KL, J & SKS, J
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
KL, J & SKS, J
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."
(1994) 4 SCC 104 at page 124
(1991) 1 SCC 212
KL, J & SKS, J
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
(2005)IILLJ258SC.
KL, J & SKS, J
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.
KL, J & SKS, J
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
