Sanjay Singh Kushwah vs Resident Commissioner, MP Bhawan, Govt. of MP and Others

Hima Kohli, J.—The petitioner has filed the present writ petition seeking quashing/cancellation of advertisement dated 1st June, 2006 issued

by the respondents and also seeking a direction to the respondents to allow the petitioner to continue at the post of Sub-Engineer

(Electrical/Mechanical) in Madhya Pradesh Bhawan, New Delhi and for regularization of his services w.e.f. 5th July, 1997.

The facts relevant for disposing of the present petition are as follows. In 1997, the Principal Resident Commissioner, M.P. Bhawan,

Government of Madhya Pradesh, issued an advertisement in the Employment News inviting applications for recruitment to the post of Sub-

Engineer (Elec./Mech.) on contract basis. It was specifically mentioned in the said advertisement that the appointment is on contract basis for 2

years, but will be extendable up to 60 years of age. The petitioner being a diploma holder in Electrical Engineering, applied for the said post. On

23rd June, 1997, a duly constituted selection committee conducted the interviews and the petitioner was selected for the said post.

On 1st July, 1997, an appointment letter was issued to the petitioner for appointment on contract basis for two years to the post of Sub-

Engineer (Elec./Mech) at a consolidated pay of Rs. 5000/- per month. On 27th October, 1999, a fresh contract of appointment was issued in

favor of the petitioner and the same was similarly extended thereafter also, the last extension being w.e.f 2nd January, 2006 to 30th June, 2006.

On 1st June, 2006, respondent No. 2 issued an advertisement inviting tenders from reputed manpower providing agencies for recruitment,

amongst others, to the post of Sub-Engineer (Mech./Civil), by outsourcing the same on contract basis. The petitioner seeks to assail and impugn

the abovementioned advertisement in the present petition, and the petitioner claims that having worked in the post of the Sub-Engineer

(Elec./Mech.) for 9 years, he is entitled to continue in service and his services ought to be regularized w.e.f. 5th July, 1997, the date he joined his

service, pursuant to the letter of appointment dated 1.6.1997.

Learned Counsel for the petitioner submitted that the initial entry of the petitioner was legal and, Therefore, his appointment can be regularized.

Learned Counsel for the petitioner further submitted that any appointment made in public sector must comply with the mandate of Article 14 and

Article 16(1) of the Constitution of India. The petitioner further sought to invoke the doctrine of legitimate expectation. He stated that by order

dated 18th October, 1999, the Government of Madhya Pradesh had asked for the comments of the Principal Resident Commissioner regarding

the regularization of the petitioner, in reply to which, the Additional Commissioner by his letter dated 29th October, 1999, stated that since the

petitioner belongs to the general category, and a ban has been imposed on recruiting candidates from the said category, the case of petitioner

would be considered as and when the ban is lifted. The petitioner stated, that thereafter he made several representations dated 27th August 2001,

1st May, 2003 and 15th October, 2004 for regularization of his services, but to no effect. The petitioner also sought to invoke the doctrine of

legitimate expectation and claimed violations of Articles 14 and 16 of the Constitution of India, on the ground that as the work in which he was

engaged was of perennial nature, Therefore, he ought to have been continued in service and his services ought to have been regularized w.e.f.

05.7.1997.

In support of his contention, learned Counsel for the petitioner placed reliance on the judgment of the Constitution Bench of the Supreme Court

in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, and Mineral Exploration Corporation Employees'' Union Vs.

Mineral Exploration Corporation Limited and Another, . He relied upon to paras 25 & 53 of the judgment in the case of Umadevi (supra) wherein

the Court has considered the judgment rendered in the case of State of Haryana and others Vs. Piara Singh and others etc. etc., . The said paras

read as under:

25...49. If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for

regularization provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run

counter to the reservation policy of the State.

One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V.

Narayanappa (supra), R.N. Nanjundappa (supra), and B.N. Nagarajan (supra), and referred to in paragraph 15 above, of duly qualified persons

in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the

intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on

merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of

India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly

appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should

further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary

employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that

regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of

the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.

Learned Counsel for the petitioner also relied on para 31 of Umadevi (supra), wherein the Court considered an earlier judgment in the case of

Ashwani Kumar and Others Vs. State of Bihar and Others, . This judgment in effect states that one precondition for regularization of employees is

that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing

such entry.

Learned Counsel for the respondents submitted that the petitioner was appointed as a contractual employee and not against any permanent or

sanctioned post. In support of this, he relied on the appointment letter of the petitioner dated 1.7.1997, wherein it was clearly stated that his

employment is contractual, for a period of two years, that during the period of the contract, a consolidated pay of Rs. 5,000/- per month shall be

payable, that apart from the consolidated pay he shall not be entitled to any other special pay, dearness allowance, city subsistence allowance,

house rent allowance etc., and that he shall be entitled to medical facilities alike a Government employee and shall be entitled to leave alike a

temporary employee. Clause 5 of the letter of appointment also states that the contract can be brought to an end by either party by giving one

month''s prior notice or by payment of one month''s salary in lieu thereof. On the basis of the aforesaid clauses of the appointment letter, learned

Counsel for the respondents contended that the appointment of the petitioner was purely contractual and that he was not appointed as per any

statute, and, Therefore, was not a Government servant. He also submitted that the contract of the petitioner was extended from time to time right

up to 30.6.2006 on the same terms and conditions, and that the post of Sub-Engineer (Elec./Mech.) was not a duly sanctioned or permanent post.

It was vehemently denied by counsel for the respondent that the petitioner was entitled to invoke the doctrine of legitimate expectation. It was

submitted that since the post held by the petitioner was not a sanctioned post but only a contractual appointment, the question of legitimate

expectation does not arise.

Learned Counsel for the respondents also stated that the respondents issued a tender wherein applications for outsourcing of different categories

of manpower on contract basis were invited from reputed manpower providing agencies. It was submitted that this was done pursuant to internal

administrative exigencies, which included considerations of efficiency of service and economy arrangements of the respondents, which is well within

the domain of the respondent.

In this regard, learned Counsel for the respondents placed reliance on a judgment of the Supreme Court in the case of Union Public Service

Commission Vs. Girish Jayanti Lal Vaghela and Others, , wherein the Court, while dealing with a case of short term contractual appointment, held

that employment under government was matter of status and not based on contract. Hence, as the respondent therein was appointed on contract

basis, he was held not to be a government servant to be eligible for any relaxation in upper age limit.

I have heard the rival contentions of the parties and have gone through the material placed on the record as also the judgments relied upon by

the parties.

It is a common case of both the parties that the petitioner was appointed on a contract basis for a period of two years, vide appointment letter

dated 01.7.1997, which appointment was extended from time to time, the last extension being up to 30.6.2006. A bare perusal of the terms and

conditions of appointment as contained in the appointment letter of the petitioner makes it abundantly clear that his appointment was contractual in

nature. During the period of contract, he was entitled to receive consolidated payment on a monthly basis, he was not entitled to any other special

pay, D.A., city subsistence allowance, HRA etc., and that the contract could be brought to an end by either party by giving one month''s prior

notice or by giving one month''s salary in lieu thereof. Thus, the only conclusion that can be arrived at is that the appointment of the petitioner was

on a purely contractual basis. Merely because the petitioner was appointed pursuant to an advertisement issued by the respondent would not

confer upon him any special right for being continued in service and for his services to be regularized from the date of his joining the respondent

pursuant to the letter of appointment dated 01.6.1997.

To test the applicability of the judgment of the Supreme Court in Uma Devi''s case (supra) to the facts of the present case, it is necessary to

examine, if the basic precondition is fulfilled, i.e., whether the petitioner was appointed against an available sanctioned vacancy or not. On a bare

perusal of the judgments relied upon by the parties, it would be clear that to claim any relief of regularization on the basis of the judgment rendered

by the Supreme Court in the case of Umadevi (supra), two conditions have to be fulfilled, the first condition being ten years of service or more, and

the second condition being that such irregularly appointed employees should have been working in duly sanctioned posts. In the case in hand,

however, none of the two conditions are satisfied. Admittedly, the petitioner has been working for 9 years only in the post of Sub-engineer

(Elec./Mech.), and also as the post held by the petitioner was not against a regular sanctioned vacancy, but was merely a temporary contractual

appointment.

In view of the law laid down in Umadevi (supra) and the various judgments that have followed thereafter, vide (i) Mineral Exploration

Corporation Employees'' Union Vs. Mineral Exploration Corporation Limited and Another, , (ii) Municipal Corporation, Jabalpur Vs. Om

Prakash Dubey, , and (iii) Indian Drugs and Pharmaceuticals Ltd. Vs. Workman, Indian Drugs and Pharmaceuticals Ltd., , the position in this

regard has now crystallized. This Court, while acting under Article 226 of the Constitution of India ought not to ordinarily issue directions for

absorption, regularization, or permanent continuance unless the recruitment itself was made in consonance with the constitutional scheme.

Considering the fact that the petitioner was only under a contractual employment of the respondent No. 2 and a survey of the established law in

this regard shows that the appointments made without following due process or the rules of appointment do not confer any right on the appointees

and the court cannot direct their absorption, regularization, re-engagement or making them permanent, the petitioner cannot be directed to be

regularized to the post of Sub-Engineer (Elec./Mech.).

In the case of Mineral Exploration Employees Union (supra), the Supreme Court only remitted the matter back to the tribunal to decide the

claims of the workmen strictly in accordance with and in compliance with all directions given in Umadevi''s case and in particular, para 53 and 12

of the said judgment.

Reliance has wrongly been placed by the learned Counsel for the petitioner on para 25 in the case of Umadevi (supra) because in the very next

para, the Court clarified the law laid down in Piara Singh (supra) and categorically held as under:

26.... With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognized

in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees

engaged without following the regular recruitment procedure should be made permanent.

Counsel for the petitioner sought to distinguish the case reported at R.K. Parvatharaj Gupta Vs. K.C. Jayadeva Reddy, , and relied upon by

the learned Counsel for the respondent from the present case on the ground that in that case, the question that arose for consideration was with

regard to relaxation of upper age limit of the government servants to apply for the regular post of Drug Inspector, at which post the respondent

therein had already been working on a contractual basis. He stated that in the present case, the impugned advertisement was not for a regular post

and did not pertain to a regularly selected candidate. There is no force in the argument of the learned Counsel for the petitioner. The distinction

sought to be drawn by him is illusionary and the law laid down in the aforesaid case is squarely applicable to the facts of the present case, in view

of which the petitioner cannot be said to be a government servant.

There is no merit in the arguments put forward by the petitioner that the doctrine of legitimate expectation has come into play as from the

material on record, it is clearly established that the appointment of the petitioner was contractual in nature, extendable up to 60 years of age, and

the same was not an appointment against a duly sanctioned vacant post. There is no violation of Articles 16 or 14 of the Constitution of India in not

regularizing the services of the petitioner, or in issuing a fresh advertisement for appointment to the post of Sub-Engineer (Mech./Civil). There is

also no basis to invoke the doctrine of legitimate expectation, as the petitioner accepted his appointment with open eyes and ought to have been

well aware of the consequences of the contractual nature of his services.

The last submission of the learned Counsel for the petitioner that the petitioner has attained 34 years of age and is now age-barred from

seeking any employment with the government, by itself cannot be a ground for granting any relief to the petitioner.

In light of the above discussion, the writ petition is dismissed as being devoid of merits.

The parties are left to bear their own costs.