1 - Director, National Institute Of Technology (N.I.T.), Raipur, Through Director N.I.T. Raipur, G.E v. 1 - Miss Sandhya Mahadik D/o Late
Case Details
1 2025:CGHC:27592-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WA No. 397 of 2025 1 - Director, National Institute Of Technology (N.I.T.), Raipur, Through Director N.I.T. Raipur, G.E. Road, Raipur, District - Raipur (C.G.) 2 - Registrar National Institute Of Technology (N.I.T.), Raipur, Through Director N.I.T. Raipur, G.E. Road, Raipur, District - Raipur (C.G.) ... Appellant(s) versus 1 - Miss Sandhya Mahadik D/o Late Shri Mahesh Rao Mahadik Aged About 40 Years Occupation - Sports Assistant, Sports Department, N.I.T., Raipur (C.G.), R/o Santoshi Nagar, Boria Road, Near To Shitla Mandir, Tikrapara Thana Area, Raipur, District - Raipur, Chhattisgarh 2 - Union Of India Through Secretary, Ministry Of Human Resource Develop- ment, Shastri Bhawan, Dr. Rajendra Prasad Road, New Delhi ... Respondent(s) For Appellants For Respondent No. 1 For Respondent No. 2 : Mr. Prateek Sharma, Advocate. : Ms. Deepali Pandey, Advocate. : Mr. Ramakant Mishra, Deputy Solicitor General Hon’ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Bibhu Datta Guru, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 25/06/2025
Legal Reasoning
1 Heard Mr. Prateek Sharma, learned counsel for the appellants, Ms. Deepali Pandey, learned counsel for the respondent No. 1/writ petitioner 2 as well as Mr. Ramakant Mishra, learned Deputy Solicitor General for the Union of India/ respondent No. 1. 2 IA No. 2/2025, has been filed seeking condonation of delay of 3 days in filing the appeal. For the reasons stated in the application, delay is condoned and with the consent of learned counsel appearing for the parties, the matter is heard finally. 3 By this appeal under Section 2 sub-section (1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006, the appellant/respondents No. 2 and 3, seek to challenge the order dated 19.02.2025 passed by the learned Single Judge in WPS No. 6326/2023 and other connected
Decision
matters by which the learned Single Judge has allowed the writ petition filed by the writ petitioner (respondent No. 1 herein) wherein the writ petitioner had prayed for regularising her services on the post of Sports Assistant. 4 The facts, in brief, as per the appellants are that the Government Engineering College running by the State under the Technical Education Department was taken over by the National Institute of Technology Raipur (the appellants) and the sanctioned setup of Government Engineering College was mentioned in letter dated 10.11.2005 by Deputy Secretary Directorate of Technical Education (DTE). A total of 140 employees opted for the Appellant-NIT which includes 52 faculty members, 58 non-teaching staff and 30 contingency staff, as per letter dated 23.12.2006 received from Secretary Technical Education, Government of Chhattisgarh. Majority of employees opted for NIT had gone back to State Government service and only 37 non-teaching staff belonging to Group C and D remained with the NIT which was confirmed to the Ministry of Human Resource Department (for short, the HRD), 3 Union of India by letter dated 06.03.2009. But none of the employees came from Government Engineering College. The total number of employees including faculty and non-faculty absorbed in the services of the Appellants were 88 and the same was communicated to the Secretary HRD, Union of India, vide letter dated 20.05.2009. The Statutes under NIT Act 2007 were made and notified on 23.04.2009. 5 Due to immediate requirement to meet the shortage of man power which was adversely affecting the overall working of the appellant-Institute, contract appointments were made by the appellants and walk-in- interview advertisement was issued. Since the set up of appellants after restructuring was not received, therefore, no posts were sanctioned at the time of issuance of advertisement and the no appointments were made against sanctioned posts. Thus none of the contract/daily wager appointments were made against the sanctioned post, nor made in accordance with the NIT recruitment rules, nor in accordance with recruitment process of NIT Raipur and the same was made only as time gap arrangement. However, the qualification prescribed for filling up above posts were in accordance with the rules of the State Government for want of sanctioned set up separately for appellants. On the above basis scrutiny was done and interview was taken thereafter appointments were made on contract basis between 2007 to 2013, however reservation rules and policy were not followed, neither selection committee was constituted as per the Statutes of NIT Raipur. The restructured sanctioned set-up of the appellants was received on 12.06.2012 form the Ministry of HRD, Union of India and the total sanctioned non-teaching posts in above set up is 293 which includes Group A,B,C. After the sanctioned posts set up was sent by the Ministry of HRD Union of India, all the regular appointments were made according 4 to either Model Rules 2012 or Rules 2014 or Rules 2017 or Rules 2019 as the case may be and regular appointments against sanctioned posts were made in accordance with the recruitment rules framed, through advertisement and selection process applying reservation policy by a duly constituted selection. However in view of requirement of manpower some, contract appointments were also made but the same was not made against any sanctioned posts. 6 Mr. Prateek Sharma, learned counsel for the appellants submit that there were no sanctioned posts in the above set up for appointment of highly skilled/semi skilled/unskilled workers to perform duties of certain essential services like Peon, Sweeper, Gardner, Driver, Security Guards, Mason, Carpentar, Plumber, workers in Laboratories/OfÏces etc. therefore these posts were not advertised for selection and appointment of eligible candidates. As the work was so essential that they could not be postponed therefore many persons were engaged as High Skilled/Semi Skilled/Unskilled workers. However, most of them were outsourced like workers of Security, Horticulture, Cleaning and House keeping. Presently total 121 daily wages employees are engaged in work at the appellant-institute and only 34 posts are sanctioned in different heads, but their appointment on daily basis is made without any advertisement or selection process and not against any designation of work, therefore their appointment comes under category of illegal appointment as per the criteria prescribed by the Hon'ble Supreme Court in case of Secretary State of Karnatka Vs Uma Devi {(2006) 4 SCC 1}. 7 Mr. Sharma further submits that before the learned Single Judge, the writ petitioner has pleaded that she was appointed on daily wages basis in the post of Sports Assistant (Skilled) at the appellant-Institute but she 5 has not provided any details with regard to her post, date of appointment etc. and the reason is obvious that the writ petitioner wanted to suppress the fact that she was appointed without any advertisement or selection process on daily basis and not appointed against any sanctioned or vacant post. She has suppressed the fact that in her appointment order on contract basis, in clause 3, it is categorically mentioned that the contract employee will not be entitled for regularization in the service of NIT Raipur, irrespective of the period of employment or number of days in service and the writ petitioner joined the service accepting the above conditions continuously without any demur of protest till date. 8 In the case of the appellants, advertisement for filling the sanctioned posts in which petitioner appeared, was issued in the year 2009. Junior Engineer (02), Senior Laboratory Assistant (06)]. 2011 Junior Engineer (01), Senior Laboratory Assistant (01). Hindi OfÏcer (01), Junior Hindi Translator (01). Hindi Typist (01)), 2014 [Secretary (2), Accountant (03), Superintendent (04) Assistant Registrar (01)). 2015 [Technical Assistant (13), Laboratory Assistant/Work Assistant (32)], 2017 Assistant Registrar [011], 2023 [Student Activity and Sports OfÏcer (01), Superintendent (06), Personal Assistant (01), Senior Technician (10), Stenographer (05), Senior Assistant (06) Junior Assistant (10). Technician (05), OfÏce Attendant (15), Technical Assistant (09), Junior Engineer (02), Pharmacist (01), Assistant Registrar (02)], 2024 [Technical Assistant (02)). The writ petitioner duly participated in the selection process but failed to succeed. Now, through the intervention of the Hon'ble Court, she had sought unwarranted and illegal backdoor entry through filing writ petition for regularization of her service. It is also important to mention here that from above it is also evident that the appellants are not compelling the respondent to work on contract basis 6 but the appellant-Institute has been holding selection process from time to time, providing them opportunity of competing in the open advertisement subject to fulfillment of the eligibility criteria. The writ petitioners were also provided NOC from time to time to apply elsewhere and were also granted one time age relaxation in regular selection process of the appellant-Institute vide advertisement dated 13.07.2023, wherein two contractual employees namely Ms Babıta Dewangan and Mr. Rajendra Kumar Singh were selected and appointed as regular employees. 9 Mr. Sharma submits that the basic principle of contractual appointment is that such appointments are made for a specific duration. Even when extensions are granted, they too are for a fixed and limited period Accordingly, a person appointed on a contractual basis is at all times aware that their engagement is for a specific term, subject to the terms and conditions governing contractual employment. Therefore, after expiry of the fixed contractual period the contractual employee has no right to continue in the said post against which he has been appointed on contract basis. Reliance is placed by Mr. Sharma in the judgment of the Supreme Court in Uma Devi (supra) in which the Hon'ble Supreme Court has held that the contract/ daily wages appointment as back door entry in complete violation of provisions of Constitution of India. It is also held by a Constitution Bench in paragraphs 52, 53 and 54 that no mandamus can be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable right to be permanently absorbed or that the State has a legal duty to make them permanent. The Hon'ble Apex Court has noted that, the executive, or for that matter the Court, in appropriate cases, would have only the right to regularize an appointment made after 7 following the due procedure, even though a non fundamental element of that process or procedure has not been followed. This right of the executive and that of the Court, would not extend to the executive or the Court being in a position to direct that an appointment made in clear violation of the constitutional scheme and the statutory rules made in that behalf, can be treated as permanent of can be directed to be treated as permanent. So far daily wages appointment are concerned in the appellant-Institute, the same were not made in accordance with the rules and made without following any selection process, advertisement, without any designation and not made against any sanctioned posts. Therefore the appointments cannot be regularized in accordance with the decision of the Hon'ble Supreme Court in the case of Uma Devi (supra). Further, against the sanctioned posts of appellant-Institute, regular appointments by following the due selection process as per the extant rules, have been made from time to time. 10 Mr. Sharma, learned counsel for the appellant-Institute submits that the services of the writ petitioner has not been discontinued and she may continue as daily wager for which the appellant-Institute has no objection, however, her services cannot be regularised as her initial appointment itself was illegal. 11 As far as the writ petitioner is concerned, she joined on 29.10.2014, without any designation, without any advertisement or selection process on daily basis and not appointed against any sanctioned or vacant post therefore her services cannot be regularized. It is important to mention here that total 16 posts of OfÏce Assistant is sanctioned for appellant- Institute out of which 15 posts are already filled up by way of regular appointment and only 1 post is lying vacant, whereas 14 persons are appointed on the contract basis in the post of Sports Assistant. The writ 8 petitioner has pleaded selective facts and suppressed the substantial fact. Hence, this appeal deserves to be allowed. 12 On the other hand, Ms. Deepali Pandey, learned counsel for the respondent No. 1 (writ petitioner) submits that the order passed by the learned Single Judge is just and proper warranting no interference. The learned Single Judge has relied on various decisions rendered by the Hon’ble Apex Court, and on the basis of ratio laid down therein, the order under challenge was passed. The writ petitioner has been working with the appellant-Institute for a very long time and as such she was rightly directed to be regularised in service. Hence, this appeal deserves to be dismissed at the threshold. 13 Mr. Ramakant Mishra, learned Deputy Solicitor General appearing for the respondent/Union of India submits that the dispute is mainly between the appellant and the writ petitioners, however, he supports the contentions raised by the learned counsel for the appellants. 14 We have heard learned counsel for the parties, perused the pleadings and documents appended thereto. 15 The case of the writ petitioners before the learned Single Judge was that despite continuing on daily wages for a very long time, the services of the writ petitioners was not regularised and as such, she had prayed for regularisation of her services. It is an admitted position that the writ petitioner was not appointed after due notification of the advertisement on any clear sanctioned vacant post but she was appointed on daily wages basis. When the initial induction of the writ petitioner in the service was on daily wages basis and the conditions of the services itself provided that such employees could be removed at any point of time, then there was no occasion for the learned Single Judge to take a lenient 9 view and order regularisation of their services. Merely because the writ petitioner worked for a long period of about 9 years. The writ petitioner she joined as daily wager on 29.10.2014, without any designation, without any advertisement or selection process and not appointed against any sanctioned or vacant post therefore her services cannot be regularized. 16 In Uma Devi (supra) itself, paragraphs 52, 53 and 54 are relevant, which reads as under: “52. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College [(1962) Supp. 2 SCR 144]. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent. 44. 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 10 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. 45. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.” 17 Recently, the Apex Court, in Vibhuti Shankar Pandey v. State of Madhya Pradesh & Others {(2023) 3 SCC 639}, while dealing with a similar issue wherein the appellant was appointed on daily rated basis in the Water Resources Department, had sought regularisation on the post of Supervisor/Time Keeper. The Apex Court, relying on its earlier decision rendered in Uma Devi (supra), dismissed the appeal holding that the appointment was not made by the competent authority and further the appointment was not made on a sanctioned post. 18 When the writ petitioner never applied against a vacant sanctioned post, 11 nor participated in any competitive examination, then allowing regularisation of her services would amount to granting back door entry. Further, the writ petitioner was granted one time age relaxation for competing in the selection process of the appellant-Institute in respect to the advertisement dated 13.07.2023 wherein two contractual employees were selected and appointed as regular employees. It is the contention of the appellants itself that the appointment on daily wages were made without following any selection process or issuance of any advertisement against any sanctioned post and as such, the order passed by the learned Single Judge granting regularisation in service, is unjust and improper and as such, the order dated 19.02.2025 passed in WPS No. 6326/2023, so far it relates to the regularisation of writ petitioner- Sandhya Mahadik, who was initially appointed on daily wages basis is set aside, to that extent. 19 Resultantly, this appeal stands allowed and WPS No. 6326/2023, is dismissed. Sd/- Sd/- (Bibhu Datta Guru) JUDGE (Ramesh Sinha) CHIEF JUSTICE Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.06.26 20:34:42 +0530