On 21st June, a bench of Delhi High Court consisting of Justice V. Kameshwar Rao, while dismissing a petition seeking regularization of contractual jobs by Tribal Cooperative Marketing Development Federation On India Limited held that the process that was followed at the time of the appointment of the petitioners on contractual basis was not as per the required procedure to be followed for regular appointment hence their plea for regularization of job cannot be accepted. The court further held that regular appointment has to be in the manner contemplated under recruitment rules.
Facts of the case:
The present petition has been filed by the petitioners praying for a writ of mandamus and other appropriate directions to be issued against the respondent to consider the case for regularization from their very date of initial engagement into the job and afford the petitioners the consequential reliefs, such as pay and allowances, annual increments, leave and leave encashment and other benefits which may be granted in accordance the provisions of the VII Pay Commission recommendations as admissible to the regular employees of the TRIFED, of corresponding post.
Contention of Petitioner:
Mr. Sudarshan Rajan, learned counsel appearing for the petitioners submitted the following:
- It was submitted that the appointment of the petitioners was on regular basis, inasmuch as the post on which the petitioners were appointed are sanctioned posts and follows the process for regular appointment.
- It was also stated that the ACRs of the petitioners were also drawn which is akin to the case of a regular appointee. The contract of the petitioners has been extended after evaluating their performance which was found to be good.
- Further it also contended that even the respondent was making deductions against Provident Fund which is also an attribute showing their regular appointment.
- Mr. Rajan stated that the appointments were made after following the due process, inasmuch as notification, calling applications for appointment, was issued. In fact, it was his submission that the respondent themselves wanted to regularize the petitioners and in that regard they had also taken a legal opinion.
- Even as per DOPT circular of 2013 a person who has rendered continuous service of three years is entitled to regularization.
Contention of respondent:
Mr. Rajesh Gogna, learned CGSC appearing for the respondent would contended the following:
- It was submitted that the petitioners having participated in the selection process pursuant to the advertisement dated November 09, 2019 and being unsuccessful cannot seek regularization. He also stated, the petitioners were aware that, on regular selection, their appointment would be terminated.
- Mr.Gogna also submited that in view of the terms of the advertisement and the letter of appointment issued to the petitioners in the year 2010 / 2011 stipulates that the appointment were contractual till regular appointments are made, thus they are not entitled to regularization.
- He concluded his submissions by reiterating his stance that some of the petitioners having availed opportunity of seeking regular appointment in the respondent organization and being unsuccessful cannot not seek regularization now.
Observation and judgement of court:
The hon'ble bench observed the following:
- Public employment has to be in terms of constitutional scheme which is as per the Recruitment Rules framed by the employer and has to be by giving wide publicity and considering every person who applies for the post and fulfils the eligibility conditions.
- The bench was of the view that the petitioner Nos.1, 4, 5, 6 and 7 having applied pursuant to notification of 2019 for getting a regular appointment and being unsuccessful cannot now seek regularization.
Thus the court held that the petitioners were not entitled to their regularization, hence, the plea of Mr. Rajan that the same must relate back the date of initial appointment cannot be granted.
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