Ved Prakash & Others vs Union Of India & Others

R. N. Singh, Member (J)

The brief facts leading to the present OA are that in pursuance of advertisement issued by the respondent no.3 and after facing the due selection

process, the applicants were appointed under the respondents w.e.f. 1.9.2017 on contract basis to the posts of Prosthetist & Orthotist (applicant nos.1

and 2) and Clinical Psychologist (applicant no.3). They have been continuing as such since then. Learned counsel for the applicants submits that the

applicants have been continuing without any interim order granted by any Court of Law for more than 10 years and in view of law laid down by the

Hon’ble Apex Court in the case of Secretary, State of Karnataka and others vs. Uma Devi and others, 2006 (4) SCC 1, the applicants are

eligible and entitled to be considered for regularization.

Shri Reen, learned counsel for the applicants, submits that in view of law laid down by the Hon’ble Apex Court in Uma Devi’s case

(supra), the respondents have themselves issued Office Memorandum No.49019/1/2006-Estt n© dated 11.12.2006 (Annexure A23), which reads as

under:-

“Subject: Regularisation of qualified workers appointed against sanctioned posts in irregular manner.

The undersigned is directed to say that the instructions for engagement of casual workers enunciated in this Department's OM No. 49014/2/86 Estt.

(C) dated 7th June, 1988 as amplified from time to time, inter-alia provided that casual workers and persons on daily wages should not be recruited for

work of regular nature. They could be engaged only for work of casual or seasonal or intermittent nature, or for work which is not of full time nature

for which regular post can not be created. Attention is also invited to this Department's OM No. 28036/1/2001- Estt. ( D) dated 23rd July, 2001

wherein it was provided that no appointment shall be made on ad hoc basis by direct recruitment from open market.

A Constitution bench of the Supreme Court in civil appeal No. 3595-3612/1999 etc. in the case of Secretary State of Karnataka and Ors. Vs. Uma

Devi and others has reiterated that any public appointment has to be in terms of the Constitutional scheme. However, the Supreme Court in para 44 of

the aforesaid judgement dated 10.4.2006 has directed that 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 are duly qualified persons in terms of the statutory recruitment rules

for the post and who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or tribunals. The Apex Court

has clarified that if such appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be

regularized.

Accordingly the copy of the above judgement is forwarded to all Ministries/Departments for implementation of the aforesaid direction of the

Supreme Court.â€​

In the aforesaid background, the applicants have prayed for the following reliefs:-

“(i) declare the action of respondents in not considering the case of the applicants for regularization as illegal and arbitrary;

(ii) direct the respondents to consider the case of the applicants for regularization w.e.f. the due date and confer all consequential benefits arising out

of regularization.

(iii) May also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice;

(iv) award costs of the proceedings and;

(v) pass any other order/direction which this Hon’ble Tribunal deem fit and proper in favour of the applicants and against the respondents in the

facts and circumstances of the case.â€​

In response to the notice issued by this Tribunal, the respondents have filed their reply. Learned counsel for the respondents does not dispute

engagement of the applicants as aforesaid. However, he submits that respondents cannot regularize their services in violation of any rule. However,

learned counsel for the respondents submits that there will be no difficulty at the end of the respondents to consider the claim of the applicants in

accordance with the aforesaid OM issued by the DOP&T dated 11.12.2006 (Annexure A23).

Shri Reen, learned counsel for the applicants, submits that the applicants shall be satisfied if the present OA is disposed of with direction to the

respondents to consider the claim of the applicants keeping in view the OM No.49019/1/206-Estt © dated 11.12.2006 (Annexure A23) issued by the

DOP&T and to dispose of the same by passing a reasoned and speaking order in a time bound manner. To such request of learned counsel for the

respondents does not have any objection.

In view of the aforesaid, without going into the merit of the claim of the applicants, we dispose of the present OA with direction to the respondents

to consider the claim of the applicants in view of the OM No.49019/1/206-Estt © dated 11.12.2006 (Annexure A23) issued by the DOP&T and to

dispose of the same by passing a reasoned and speaking order as expeditiously as possible and in any case within 12 weeks of receipt of a copy of this

Order.

The OA is disposed of in the aforesaid terms. MA also stands disposed of accordingly. No costs.