Nidhi Sharma and Others vs State and Others

Y.P. Nargotra, J.—The dispute in this writ petition relates to the regularization of the services of the petitioners appointed on ad hoc, casual

and daily rated basis. The petitioners were appointed as Junior Assistant, Junior Receptionist, etc on fixed term basis in the year 1992, but

continued for years. They are claiming their regularization of service by making them permanent, filed SWP No. 351/1999 in this Court which was

disposed of by order dated 1-9-1999 in the following manner:

It be seen that writ of mandamus to the effect that services of the petitioners shall stand regularized cannot be granted. Only direction which can be

given that respondent-State would consider the claims of the petitioners for regularization. See Hindustan Shipyard Ltd. and Others Vs. Dr. P.

Sambasiva Rao and Dr. S. Prasada Rao, .

In view of the above, following directions are given:

(i) Let the appropriate steps be taken as early as possible preferably within a period of three months. The period of three months would begin from

the date copy of order passed by this Court alongwith copy of the writ petition and its annexures are made available by the petitioners to the

concerned authorities. If for any practical reasons, it is not possible to take a decision within aforementioned period, respondent-authorities would

be at liberty to seek extension of time. But in that eventuality they would have to explain each and every day's delay;

(ii) That the claim of the petitioner for monetary benefits be also considered within the aforementioned period. In case the monetary claims are due

and these are not settled within the stipulated period then the petitioners would be entitled to the interest. The rate of interest would be 12%.

(iii) During the period the matter is under consideration with the respondent-authorities they would maintain status quo with regard to the service

condition of the petitioners. In case any adverse order is passed that be kept in abeyance for a period of four weeks.

Those employees who have completed seven years of service, their claims for regularization be considered immediately and those employees who

yet to complete this tenure, their claims be considered as and when they completed seven years of their services.

It appears that the claim of the petitioners for regularization was considered and rejected by the respondents by order dated 13-10-2000. Being

aggrieved of the rejection of their claims, the petitioners have once again approached this Court through the present writ petition. The case of the

petitioners as projected in the writ petition is that they have put in 8 years of service at various posts in Govt. Medical College, Jammu and as such

were entitled to regularization. However, the respondents have by order dated 13-10-2000 addressed to the Principal, Government Medical

College, Jammu declined to regularize the services of the petitioners and instead decided to refer the posts to the J&K Service Selection

Recruitment Board. The petitioners have therefore, prayed for issuance of an appropriate writ, direction or order in the nature of writ of certiorari

quashing communication No. ME/NG/51/2000 dated 13-10-2000 issued by the respondents, with a further direction for commanding the

respondents to declare the petitioners as regularized with effect from the date of their initial appointment and to grant them all consequential

retrospective benefits.

The stand of the respondents set up in the reply is that the petitioners have been appointed on fixed term basis so their appointments have come

to an end by efflux of time. It has further been submitted that as the initial appointment of the petitioners was not in accordance with rules,

therefore, they cannot be regularized in violation of the recruitment rules. The posts held by the petitioners are entry-level posts, which are required

to be filled up by the J&K Service Selection Board after advertising the same and inviting applications from all eligible candidates.

The question arising for determination in the case is 'Whether an employee appointed on adhoc basis without undergoing regular selection

process has any legal right for being made permanent by regularization of his service?'

The question in issue is no longer res-integra. The Constitution Bench of the Hon'ble Supreme Court in case Secretary, State of Karnataka and

Others Vs. Umadevi and Others, , has firmly settled the law by observing as follows:

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 un-equals are not treated as

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 a 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, some times this process is not adhered to and the constitutional scheme of public employment is bypassed. 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 Commissions 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 complete 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 the courts, seeking directions to make them

permanent in their posts and to prevent regular recruitment to the posts concerned. The 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. Whether the wide powers under Article 226 of the Constitution are 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 the 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 the High Courts in the scheme of things and their wide powers under Article 226 of the Constitution 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.

Their Lordships have further observed

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 requirement 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 adhoc

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, regularizations, 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 the 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 cause 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.

From the observations made above by the Apex Court it has now been firmly settled that a person appointed on adhoc or contractual basis has

no legal right to seek his regularization or permanent absorption or permanent continuance, may be on the strength of his continuation on the

strength of Court order, if the original appointment has not been made by following the due process of selection. In the present case admittedly the

petitioners have not been appointed by following a regular selection process. The posts held by them have not been advertised nor an opportunity

to similarly placed and qualified persons for competing for the posts has been provided. They are continuing to hold the posts despite the rejection

of their claims for regularization on the strength of the interim direction issued by this Court, which does not create any legal right in them for their

regularization or for their permanent absorption or continuance in service.

The contention of Mr. Anil Sethi, learned Counsel for the petitioner is that during the pendency of this writ petition while the petitioners were

continuing in service on the strength of the Court order the Government passed Government order No. 1285-GAD of 2002 dated 6-11-2001 by

which a right for regularization was created in favour of those adhoc employees, who have completed seven years of their service, So according to

Mr. Sethi, the petitioners became entitled to regularization in terms of the said Government order as they were continuing in service as adhoc

employees, though on the strength of the Court orders. The operative portion of the said Government order reads:

Now, therefore, it is hereby ordered that all adhoc appointees to non-gazetted posts recruited from time to time beyond 29-12-1998 till the date

of issue of the order who are still in service be considered for regularization after completing seven years of continuous service from the date of

appointment dispensing with reference of posts held by them to service selection Board subject to the following conditions, that:

X X X X

The scope of the above order was considered by this Court in case Thomas Masih v. State of J&K and Ors. 2004 (1) SLJ 2. It was observed:

From a bare reading of the aforesaid Government order it becomes clear that it related only to those of the ad hoc appointees to non-gazetted

posts who were 'recruited' assumes importance. Recruitment is a process by which an eligible person is appointed to a public post. It is the first

process leading to eventual appointment in a service. To recruit connotes to enlist or to appoint an eligible and suitable person by a due process of

selection, in an open competition. The word 'recruit' embraces the broad principle of ensuring equality of opportunity in the matter of employment

to public services and obtaining the services of the most meritorious candidates. A recruit does not include a backdoor entrant.

The interpretation of the Government order by this Court is clearly in line with the ratio of Umadevi's case (Supra). The petitioners in the present

case being not have been appointed by following the due process of selection, therefore, are not covered by Government order dated 6-11-2001.

Even otherwise they cannot claim the benefit of the said order at this stage. Their right which they may have possessed on the date their claim for

regularization was considered is to be taken into account i.e. on 13-10-2000 and on that date the Government order dated 6-11-2001 was not in

existence. In 2001 they were continuing only on the strength of the Court order and therefore, could not be said to have been continued by the

Government, so as to become eligible for consideration under the Government order dated 6-11 -2001. This apart the Govt. order No. 1285-

GAD of 2001 dated 6-11-2001 stand already rescinded by the Government Order No. 168-GAD of 2004 dated 9-2-2004 as follows:

Now, therefore, in suppression of Government order No. 1285-GAD of 2001 dated 6-11-2001 it is hereby ordered as under:

(i) All adhoc appointments made after 28-7-1989 onwards and which continued in service till the date of issue of this order shall be converted into

contractual appointments w.e.f. 1st February, 2004 and these contractual appointments shall subsist till 31st December 2004 or till selection

against these posts are made by the concerned selection agencies whichever be earlier;

(ii) The contractual appointees, referred to in sub para (i) above shall be required to execute an agreement in accordance with the format

appended to the Jammu and Kashmir Contractual appointment Rules (notified vide SRO No. 255 dated 5th August 2003) with the concerned

Drawing and Disbursing Officer upto 25th February, 2004. Copies of the agreements shall be sent by the concerned drawing and Disbursing

Officer to the General Administration Department by or before 5th March, 2004;

(iii) If any adhocee/contractual appointee referred to in this order fails to execute agreement in accordance with sub para (ii) he shall cease to be in

the employment of the Government;

(iv) All posts held by the adhocees shall be referred by the concerned Administrative Departments to the competent selection agencies by or

before 29th February, 2004, if such posts have not already been referred to the selection agencies, for selection in accordance with the rules.

(v) The selection agencies shall consider the eligible candidates including the adhocees/contractual appointees referred to in this order as may apply

before such selection agencies in accordance with the recruitment and reservation rules. Such of the adhocees/contractual appointees, who may

have crossed the upper age limit prescribed for Government Service and who may apply before the selection agencies shall also be considered by

such selection agencies and their upper age limit shall be deemed to have been relaxed to the extent required for this purpose.

(vi) A separate mechanism for selection of candidates against class IV posts held by the adhocees shall be put in place orders for which will be

issued by the general Administration Department separately;

(vii) Salary shall be released in favour of all adhocees subject to verification of attendance with the period they have worked by the controlling

officers;

(viii) The adhocees whose appointment would now be on contract shall be paid a consolidated salary equal to the minimum of the scale attached to

the post held by them with effect from 1st February, 2004;

(ix) Such of the adhocees whose particulars are not submitted to the General Administration Department, in the proforma forwarded to the

Departments vide General Administration Departments letter No. GAD (Adm) 260/2003 dated 5th September, 2003 (copy enclosed) by or

before 29th February, 2004 shall also be deemed to be out of employment and would forfeit the dispensation of upper age relaxation for purposes

of consideration for selection by the selection agencies. The Drawing and Disbursing Officers of the Department concerned shall be responsible for

conveying the requisite particulars to the General Administration Department by the afore-said date.

The petitioners are not even covered by this Government order No. 168-GAD of 2004. They therefore, cannot claim any benefit there-under for

the reason that they were not continuing in service on adhoc basis by the Government but were continuing on the strength of the Court orders.

Their continuance on the strength of the Court orders cannot confer any right upon them.

However, Mr. Sethi, contends that the validity of the Government order dated 9-2-2004 became the subject matter of dispute in Thamas

Masih v. State of Jammu and Kashmir 2004 (1) SLJ 1 J&K and the learned Single Judge of this Court while up-holding the impugned order

disposed of the petitions with the following directions:

that the words 'candidates, including the' appearing in the opening sentence of Clause (v) under paragraph 12 of the impugned order shall be

deemed to have been deleted as quashed. The selections from amongst the eligible adhocees, who may apply shall be made strictly on the basis of

merit and suitability in accordance with the rules without being influenced by the fact of the adhocees having been previously appointed or

continued on ad hoc basis or on contractual basis.

After the selection process in terms of Clause (v) of the order is completed, the remaining posts required to be filled up shall immediately be

advertised in normal course under the Recruitment Rules;

it is likely that, on account of the filing of these petitions before this Court and their pendency, or for any other reason, some of the

adhocees/contractual appointees might not have executed the required agreements. The Government shall appropriately extend the dates of

execution of each agreements by all such categories of adhocees and the other relevant dates for submission of the requisite particulars to the

General Administration Department by the concerned Drawing and Disbursing Officers as provided in various clauses of the order;

in any case, the selection process as envisaged by Clause (v) referred to above shall be completed within five months from the date of this

judgment and the remaining posts shall immediately there-after be put to open selection by the respective Selection Agencies according to

Recruitment Rules.

while framing the scheme for selection of Class IV adhocee/contractual appointees, the Government shall take note of the observations and

directions made hereinabove.

in future the Government and its various functionaries shall ensure that no ad hoc appointment is made dehors appointment is made dehors Rule

14 of the Classification, Control and Appeal Rules, 1956 and in no case such arrangements are continued beyond the prescribed period of nine

months. In the event any authority continues an ad hoc appointee beyond nine months, the wages to be paid to the adhocee beyond the period of

nine months shall be recoverable from the person of that authority.

Mr. Sethi, learned Counsel for the petitioners further contends that the judgment of the learned Single Judge rendered in Thomas Masih's case

became the subject matter of Letters Patents Appeals which have been referred by the Division Bench to the Full Bench. Thus, according to Mr.

Sethi, the validity of the Government order of 2003 is still subjudice before the learned Full Bench and in case the said order comes to be set

aside, it would result in revival of Government Order No. 1285-GAD dated 6-11-2001 and in that event the petitioners would become entitled to

the regularization of their services. He submits that therefore, it would be appropriate that this case should be made to lie over until Full Bench

decided the case.

In my considered opinion, there is no merit in this contention of the learned Counsel for the petitioner also. As already stated the petitioners are

not covered by the Govt. order of 2001 so even if the Govt. order of 2002 comes to be set aside, the petitioners would not be entitled to any

benefit. However, it may be pointed out here that while hearing the LPAs No. 70/2004, 84/2004, 89/2004, 90/2004 directed against the

judgment of the learned Single Judge rendered in Thomas Masih's case (Supra), a learned Division Bench of this Court in its order dated 6-8-

2004 observed as under:

The point for consideration in this bunch of cases inter alia is whether the learned Single Judge was correct in limiting the zone of consideration to

adhocees/contractual appointees alone, or all eligible candidates at large, including the adhocees/contractual appointees, should be considered by

the selection agency. Such a view has been taken by another learned Single Judge of this Court giving rise to Letters Patent Appeal Nos

181/2002, 187/2002 and 8/2003.

List these Letters Patent Appeals alongwith Letters Patent Appeal Nos. 181/2002, 187/2002 and 8/2003.

Learned Division Bench there-after by its order dated 14-9-2004 observed as follows:

When the hearing of these cases was taken up our attention was drawn to the order dated 19-7-2004 in LPA(SW) No. 104/2004 Shafiqa Begum

v. State and Ors. and other analogous appeals whereby the appeals arising from the judgment in the case titled Thomas Masih and Ors. v. State of

J&K giving rise to some of the appeals before us, were dismissed and the judgment of learned Single Judge was upheld. Though the said order

does not cover the points which are sought to be canvassed in these appeals as indicated in course of hearing earlier, we are of the view that it

would be in the fitness of things that the appellants' cases are heard by a larger bench.

Pursuant to the above direction the matter is pending consideration before the Full Bench.

Pendency of the appeals in the Full Bench can have no bearing on the point in issue in the present case. Therefore, the prayer of the learned

Counsel for the petitioner that this case should lie over till the Full Bench decided the matter is without any merit.

The case of the petitioners is fully covered by the judgment of the Hon'ble Supreme Court rendered in Umadevi's case (Supra) and in view of

the law laid down in the said case by the Hon'ble Supreme Court, the writ petition of the petitioners has no merit. Accordingly same is dismissed

alongwith the connected CMPs. The interim direction issued shall stand vacated. The vacancies becoming available on being vacated by the

petitioners, shall be referred for regular selection to the appropriate selection agency within a period of three weeks.

In the event of posts being advertised by the selection agency, the petitioners shall be entitled to compete for the same if otherwise eligible

under the recruitment rules for the said posts and in case any of them has crossed the upper age limit prescribed for the Government Service, the

same shall be deemed to have been relaxed to the extent required for the purpose as after all if the respondents had resorted to the regular

selection instead of continuing with the adhocism, the petitioners would have been eligible to apply being within the upper age limit.

Interim direction shall stand vacated.

Before parting with this judgment it may be observed that the copy of the order impugned dated 13-10-2000, the validity of which was

questioned in this writ petition has not been placed on record by the petitioners who claim that they had not been able to get the same. The learned

Counsel for the respondents was directed to produce the same but she has also failed to produce the same on the record of the writ petition.

Therefore, going by the pleadings of the parties, the said order has been deemed to have been issued for rejecting the claim of the petitioners as

claimed by them in the writ petition.