Mahadev Prasad & Others vs State Of Uttarakhand & Others

Raghvendra Singh Chauhan, CJ

The appellants have challenged the legality of the order dated 30.10.2021, passed by a learned Single Judge, in Writ Petition (S/S) No.1403 of 2021, whereby the learned Single Judge had dismissed the writ petition.

In the writ petition, the petitioners had raised the following prayers:-

"i. Issue a writ, order or direction in the nature of certiorari for quashing the advertisement dated 27.09.2021 for the posts of Medical Social Worker (Social Worker/Psychiatric Worker) regarding Government Doon Medical College, Dehradun to this extent, on which contractual employees are working in pursuance of the selection process of advertisement dated 14.12.2015 and 16.06.2016.

ii. Issue a writ, order or direction in the nature of mandamus/commanding/directing the respondents not to fill up the posts of Medical Social Worker (Social Worker/Psychiatric Worker) in Government Doon Medical College, Dehradun, on which contractual employees are working in pursuance of the selection process of advertisement dated 14.12.2015 and 16.06.2016 and regularize the petitioners on their respective posts, as per the decision of Cabinet".

Briefly, the facts of the case are that the petitioner No.1 obtained post-graduate degree in Master of Social Work in the year 2012-13 from the Uttarakhand Open University with Second division. The petitioner No.2 obtained post-graduate degree in Master of Sociology (M.A.) in the year 2013-14 from Hemwati Nandan Bahuguna Garhwal University, Srinagar, Uttarakhand. The petitioner No.3 obtained post-graduate degree in Master of Social Work in the year 2009-10 with first division from Hemwati Nandan Bahuguna Garhwal University, Srinagar, Uttarakhand. Therefore, on 19.11.2015, the respondent No.1 issued a Government Order regarding creation of necessary posts to operate Government Doon Medical College, Dehradun for the capacity of 150 trainees. Therefore, by letter dated 22.11.2015, the respondent No.2 sought permission from the respondent No.1 for filling up these posts, and by order dated 09.12.2015, the respondent No.1 informed the respondent No.2 that His Excellency, Governor of Uttarakhand gave his consent to fill up these created posts on contractual basis for a period of three years, or till the regular appointment is made, whichever is earlier on the basis of merit. Thereafter, on 16.06.2016, the respondent No.4, Principal, Government Doon Medical College, issued an advertisement for the remaining posts. In pursuance to the said advertisement, the petitioner No.3 applied for the post of Social Worker in Obstetrics and Gynecology Department. After completing the selection process, the respondent No.4 issued appointment letters to the petitioners. On 09.08.2021, the petitioners and other employees, who were working in Government Doon Medical College, Dehradun against the created posts of non-teaching paramedical and nursing on contractual basis, submitted a representation to the Health Minister, Government of Uttarakhand, and by letter dated 09.08.2021, the Hon'ble Health Minister requested the Secretary, Health Education to initiate proceedings to adjust these employees for regularization. Thereafter, by order dated 19.08.2021, the Joint Secretary, Government of Uttarakhand directed the Director General, Medical Education Department, Government of Uttarakhand to provide a suitable proposal to the State along with its clear recommendation/opinion after initiating proceedings in the matter for one-time measurement for regularization of temporary employees of Government Medical College, Srinagar, and to regularize the non-teaching paramedical and nursing cadre employees after fixing the pay. Thereafter, on 27.09.2021, the respondent No.3 issued an advertisement for appointment of thirty-eight posts of Medical Social Worker (Social Worker/Psychiatric Worker) for Government Medical Colleges of Uttarakhand, out of which eleven posts for Government Doon Medical College, Dehradun. Aggrieved by the same, the petitioners approached this Hon'ble Court by way of filing a writ petition. By order dated 30.10.2021, a learned Single Judge had dismissed the writ petition. Aggrieved by the said order, the petitioners have filed the present special appeal.

Mr. Tapan Singh, the learned counsel for the appellant, has raised the following contentions:-

Firstly, since by letter dated 09.08.2021,the Hon'ble Health Minister had directed the Secretary, Health Education to initiate proceedings to adjust the employees working on contractual basis, and to regularize them, and since the Joint Secretary, Government of Uttarakhand had directed the Director General, Medical Education Department to initiate proceedings as a one-time measurement for regularization of contractual employees, the advertisement dated 27.09.2021 for initiating the regular selection process could not have been issued.

Secondly, relying on Paragraph No.27 of the judgment in the case of Himanshu Joshi & others vs. State of Uttarakhand & others [Writ Petition (S/S) No.154 of 2017], decided by a learned Single Judge, by order dated 17.04.2018, the learned counsel submits that, in fact, the petitioners deserve to be regularized in their services. For, the learned Single Judge had clearly directed that the order dated 17.04.2018 would not restrict the State Government from regularizing their services. Therefore, the option was with the State Government. Hence, the Government should have exercised the said option. According to the learned counsel, these facts have been ignored by the learned Single Judge while passing the impugned order. Therefore, the impugned order deserves to be set-aside.

Heard the learned counsel for the appellant, and perused the impugned order.

The twin issues before the learned Single Judge were:-

i. Whether a contractual employee can seek regularization of his services, or not?

ii. Whether a contractual employee can prevent the holding of regular selection process by the employer, or not?

In the case of State of Karnataka & others v. Umadevi & others, [(2006) 4 SCC 1], the Hon'ble Supreme Court has clearly opined as under:-

"2. Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that unequals are not trated equals. Thus, any public employment has to be in terms of the constitutional scheme.

A sovereign government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages. Going by a law newly enacted, The National Rural Employment Guarantee Act, 2005, the object is to give employment to at least one member of a family for hundred days in an year, on paying wages as fixed under that Act. But, a regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. Regular appointment must be the rule.

But, sometimes this process is not adhered to and the Constitutional scheme of public employment is by-passed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the concerned posts. 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. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution of India. Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for High Courts in the scheme of things and their wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.

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. High Courts acting under Article 226 of the Constitution of India, 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. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.

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 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 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 concerned cases, 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.

It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. 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".

Therefore, the Hon'ble Supreme Court has clearly opined that those who are engaged on contractual basis, they do not have a right of regularization, except under the circumstances mentioned in Paragraph No.53 of the said judgment.

One of the requirements of Paragraph No.53 is that a person has continued to work for ten years or more, but without the intervention of orders of the Courts or of Tribunals. Admittedly, in the present case, the petitioners were appointed in the year 2016. Therefore, they have not completed the requirement of having worked for "ten years or more". Hence, their case does not fall within the ambit of Paragraph No.53 of the case of Umadevi (supra).

It is also a settled principle of law that a contractual employee cannot stop the initiation of a regular selection process. In fact, in the case of Umadevi (supra), and in the cases of State of Tamil Nadu & another v. A. Singamuthu, [(2017) 4 SCC 113], University of Delhi v. Delhi University Contract Employees Union & others, [2021 SCC Online SC 256], and Union of India & others v. Ilmo Devi & another, [2021 SCC Online SC 899], the Hon'ble Supreme Court has repeatedly emphasized that instead of contractual appointment, the appointment must be made through a regular selection process. For, contractual appointments invariably violate Articles 14 and 16 of the Constitution of India. Therefore, the petitioners were not justified in challenging the advertisement dated 27.09.2021. For, by the said advertisement, the respondents were only initiating the regular selection process. Therefore, the learned Single Judge was justified in dismissing the writ petition.

Merely because a recommendation has been made to consider the case of the petitioners for regularization, merely because matter is pending before the State Government, would not restrict the respondents from issuing the advertisement.

Therefore, this Court does not find any illegality or perversity in the impugned order dated 30.10.2021, passed by the learned Single Judge.

This appeal, being devoid of any merit, is, hereby, dismissed.