Delhi High Court Dismisses the Petition and Declares That for Regularization of Services the Appointments Must Be in the Manner Contemplated Under the Recruitment Rules

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Excerpt 

In this case, the Petitioners sought the regularization of their services on the posts on which they were working on a contract basis. The Petitioners were recruited through an advertisement and worked for 10 years in the Respondent Organization. The Court declared that the Regular appointment had to be strictly in the manner contemplated under the Recruitment Rules. And since the same was not present in this case, the Petitioners cannot now seek a regular appointment under the garb of regularization.

Facts of the Case 

In this case, the Petitioners were initially engaged on a contract basis in the years 2010 / 2011 on the post of Assistant Grade-I (now Senior Assistant) and Clerk (now called as Junior Assistant) through a selection process (via advertisement) which was undertaken for making regular appointments. Further, their engagement was renewed from time to time with artificial breaks. Though, the appointments were with the nomenclature “on contract basis” but for all purposes, it was a regular appointment except the fact that the remuneration that was being paid, was not that of a regular appointee. However, the cause of action for the Petitioners to approach this Court was the issuance of a notification dated 09 November 2019 by the Respondent whereby the Respondent advertised the filling up of various posts on direct recruitment basis. It was their case that as they were eligible and had been performing their duties sincerely / diligently, they were entitled to be regularized on the posts on which they were working. It was averred in the petition that legal advice was sought on the aspect of regularizing the services of the Petitioners, wherein it was opined by the Respondent that the main mandate of the Respondent was to enhance the capability of the tribal community; promotion of tribal products and creation of marketing opportunities for them with a view to ensuring fair prices for their products and augmenting their income on a sustainable basis. Thus, the Petitioners filed the present petition. 

Petitioner’s Arguments 

At the outset, Mr Sudarshan Rajan, Learned Counsel submitted that the prayer in the writ petition was for regularization of the Petitioners from the date of their initial appointment with consequential benefits. The appointment of the Petitioners was on a regular basis since the post on which the Petitioners were appointed were sanctioned posts and through the process followed for regular appointment. Further, Mr Sudarshan Rajan laid stress on the ACRs of the Petitioners, the extended contract of the Petitioners, Pan India Service liability which otherwise didn’t exist in the case of contractual employment. Also, the Respondent was making deductions against the Provident Fund which was also an attribute showing their regular appointment.  Hence, the functions were being discharged by the Petitioners as regular appointees. Mr Rajan stated that the appointments were made after following the due process, since notification, calling applications for appointment, was issued.  Even as per the DOPT circular of 2013 a person who had rendered continuous service of three years was entitled to regularization.  In this regard, he submitted that the Petitioners who applied against the notification for direct recruitment did not apply for the same post on which they were appointed on a contract basis. Hence, their participation in the selection for different posts and not being successful was inconsequential and they cannot be non-suited in this petition on that ground.  

Respondent’s Arguments 

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On the other hand, Mr Rajesh Gogna, Learned CGSC appearing for the Respondent contended that the Petitioners were engaged by the Respondent on various dates relating back to 2010-11 and their contract was extended from time to time. He submitted that as the Petitioners participated in the selection process pursuant to the advertisement dated November 09, 2019, and being unsuccessful cannot seek regularization. He stated the Petitioners were aware that, on regular selection, their engagement shall be terminated. On the submission, the selected candidates need to be a party as their rights shall be affected, he relied on some prominent judgments. According to Mr Gogna, the claim of the Petitioners that they had a legitimate expectation that their contractual appointment may crystallize in regular appointment was against the settled position of law and also on facts. In this regard, he relied upon some prominent judgments. Furthermore, the Petitioners who were appointed on a contractual basis cannot be compared with temporary status employees. According to him, the regularization of the temporary status employee was governed by the Casual Labourer, (grant of temporary status and regularization) Scheme, 1993 which stipulated regularization of Casual Labourers in service who were in place as of September 10, 1993. He stated, no comparison can be made between the contractual employees and the regular employees. Hence, he sought the dismissal of the writ petition.

Court’s Observations

The Court heard the Learned Counsels and thereby observed that it was a conceded position that the advertisement, under which the Petitioners were appointed, clearly stated that the appointment was for two years or till regular appointments were made, whichever was earlier. The advertisement also stated that the candidates applying against the advertisement shall be appointed on a contract basis and had no right of absorption or permanent employment. The Petitioner continued to work on a contractual basis for the last ten years. However, it was not known, as to why the Respondent had resorted to contractual appointment despite the Supreme Court in the case of Secretary, State of Karnataka & Ors., held that public appointment had to be in terms of the constitutional scheme, on regular basis, and also following the recruitment rules. The appointments made in this case violated the judgment of the Supreme Court. It was observed that the advertisement itself contemplated its temporary nature. 

Further, the contention of Mr Gogna was observed and held that the Regular appointment had to be in the manner contemplated under the Recruitment Rules. But in this case, as the regularization was not a mode of appointment, the said Petitioners being unsuccessful cannot now seek a regular appointment under the garb of regularization. 

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Moreover, the plea of Mr Rajan that there was a precedent available in the Respondent organization, regularizing the services of the Casual Labourers need to be regularized was not appealing. Because Casual Labourers were Group-D employees whose regularization was affected under the scheme evolved by the Government of India known as Casual Labourers (grant of temporary status and regularization) Scheme, 1993.  From the perusal of the said scheme, it was clear that the same applied to Group-D employees only, whereas the Petitioners herein were working on Group-C posts, hence the said scheme had no applicability.

Likewise, the plea of Mr Rajan referring to the Petitioners who applied according to the notification of 2019 for different posts was also considered without merit. As when the Respondent issued the 2019 notification for making appointments on the posts on which the Petitioners were working on a contract basis. The Petitioners instead of applying for the posts they were working, applied for higher posts and were unsuccessful; they cannot now contend that they should be considered for regularization on the posts on which they were currently working. 

Further, the Court observed the various judgments referred by Mr. Rajan in support of his contention that, if the government advertises appointments and the conditions of service of the appointment and makes a selection after advertisement, there would be no breach of Articles 15 and 16 of the Constitution of India because everybody eligible given the conditions of service would be entitled to be considered by the State. The said judgments had no applicability in the facts of this case. As the process followed by the Respondent was not similar to the process followed in making regular appointments. Suffice to state, the Judgments relied upon were distinguishable on facts.

Court’s Decision 

Based on the above-mentioned observations, the Court concluded that the reliefs as prayed by the Petitioners cannot be granted as the appointments were to be held in terms of Constitutional Scheme; Recruitment Rules; by giving wide publicity and on a regular basis. And the same was not present in the case.

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