NHRC & Anr. v. SHEENU SAXENA & Ors.

Judgment

1. The petitioner, National Human Right Commission (NHRC), vide its OM dated 16.7.2003, invited applications for appointment of 06 Lower Division Clerks (LDCs) on regular temporary basis. The respondents, amongst others were called pursuant to the applications submitted by them and were subjected to written examination and typing test. A panel of 22 successful candidates from general category and 05 candidates from OBC category was drawn up in the order of merit in February, 2004. Subsequently, temporary vacancies arose in NHRC on account of regular LDCs proceeding on deputation. Since, these were not regular vacancies, efforts were made to fill up these short-term vacancies on deputation basis, but, the selected candidates were not relieved by their parent departments. W.P(C) 1268/2012 Page 1 of 32 Therefore, 09 candidates, including the respondents in this writ petition, who had been included in the panel drawn in February, 2004 were offered appointment on ad-hoc basis. Subsequently, when regular vacancies arose, first 04 out of those 09 persons who were higher in order of merit were regularized against those vacancies. While considering the case of the remaining 05 ad-hoc appointees (respondents in this writ petition) for further extension, OM dated 14.11.2007 issued by Department of Personnel & Training advising against ad-hoc appointments to the extent it was possible, came to the notice of NHRC. The OM stipulated that the Ministries/Departments could grant permission for ad-hoc appointment for one year and further extension of one year at a time upto 02 years could be granted with the approval of the concerned Secretary. Accordingly, the ad-hoc appointment of the respondents, who had completed 03 years of ad-hoc service was not extended beyond 31.8.2010. On the representation made by the respondents, they were re-appointed for a period of 06 months w.e.f. 7.9.2010, purely on ad-hoc basis, with no claim for seniority or regularization on the basis of such appointment. Their term was later extended upto 6.9.2011, vide letter dated

15.9.2011, the respondents were informed that their ad-hoc appointment had not been extended beyond 6.9.2011. W.P(C) 1268/2012 Page 2 of 32

2. The NHRC, in the meanwhile, issued an advertisement to fill up 02 posts of Personal Assistant (PA) and 04 posts of Lower Division Clerk (LDC) on direct recruitment basis. OA No. 3469/2011 was then filed by the respondents seeking a declaration that the action of the petitioner in not allowing them to perform duties w.e.f. 16.9.2011 was illegal. They also sought an order directing NHRC to allow them to perform their normal duties till their regularization was considered by the competent authority. They also sought quashing of the advertisement which NHRC had issued for recruitment from the open market.

3. The Tribunal passed an interim order staying the operation of the letter of NHRC dated 15.9.2011 whereby the respondents were informed that their ad-hoc tenure had not been extended beyond 6.9.2011. Vide impugned order dated

01.2.2012, the Tribunal quashed the order/letter dated 15.09.2011, whereby the respondents were informed that their ad hoc services had not been extended beyond

06.09.2011. The Tribunal also directed NHRC to ensure that the respondents were taken back on ad-hoc service as LDCs. The petitioners before this Court were also directed to consider the respondents for existing regular vacancies of LDCs in unreserved categories. The Tribunal also directed the NHRC to pay back wages to the respondents from the date of their engagement, till they joined in terms of the directions issued by it. W.P(C) 1268/2012 Page 3 of 32

Shri R.V.Sinha, the learned Counsel for the petitioners has assailed the order passed by the Tribunal primarily on the following grounds: a) The appointment of the respondents being purely on ad-hoc basis, such an appointment conferred no right upon the respondents and could be terminated at any time without assigning any reason. b) In view of the decision of the Constitution Bench of the Supreme Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors: AIR 2006 SC 1806, no directions could have been given by the Tribunal for considering the respondents for appointment on regular basis since neither the respondents were in service on the cut-off date laid down by the Constitution Bench, nor had they put in 10 years service, which was the minimum requirement laid down by the Supreme Court regularization, and c) The vacancies which arose post-advertisement dated 16.7.2003 cannot be filled by appointing those, who were empanelled in February, 2004.

5. Ms. Jyoti Singh, the learned senior counsel for the respondents, however, defended the order of the Tribunal on the following grounds: a) The respondents were appointed through regular process of selection prescribed for LDCs, b) 04 persons, who were placed in the panel prepared in February, 2004 have already been regularized by the petitioners, and W.P(C) 1268/2012 Page 4 of 32 c) Having worked continuously for 03 years and considering regularization of some other persons placed in the panel, the respondents had a legitimate expectation of being regularized.

6. We have examined, by way of sample, the appointment letters issued to the respondent Sarita Gusain and Archana Tripathi. It was clearly stated in paras 06 & 07 of the letter that the appointment is purely on ad-hoc basis. In clause 10 of the letter, it was stipulated that since the appointment is purely on ad-hoc basis, the same was liable to be terminated at any time without assigning any reason. It was further stipulated that the appointee will have no right to regularization of services.

7. In Vidyavardhaka Sangha and Anr. Vs. Y.D. Deshpande and Ors. (2006) 12 SCC 482, the Supreme Court observed that the appointment made on probation/ad hoc basis for a specific period of time comes to an end by efflux of time and the person holding such post can have no right to continue on the post. The Court noted that in the case before it, the respondents had continued in employment for some years albeit on the terms and conditions stipulated in the appointment order. The Court was of the view that they cannot now be permitted to turn their back and say that the appointments could not be terminated on the basis of their appointment letters. The Court observed that under Article 141 of the Constitution, the judgment of the Constitution Bench in Secretary, State of W.P(C) 1268/2012 Page 5 of 32 Karnataka and Others, v. Uma Devi and Others: (2006) 4 SCC 1 is binding on all Courts, including the Supreme Court till the same is overruled by a larger Bench.

8. In the case before us, it was clearly stated in the appointment letters issued to the respondents that their appointments were purely on ad-hoc basis and were liable to be terminated at any time, without giving any reasons. It was also made clear to them, in the letter itself, that their appointment on ad-hoc basis will confer no right upon them for regularization of their services. The case before us therefore, is squarely covered by the decision of Supreme Court Vidyavardhaka Sangha (supra). Having accepted the ad-hoc appointment on the condition that it would confer no right on them to seek regularization and it could be terminated at any time, the respondents cannot be allowed to seek regularization on the basis of their ad-hoc appointment. No legal right of the respondents therefore was infringed on account of their ad-hoc appointment not being extended beyond 6.9.2011.

9. It was contended by the learned Senior Counsel for the respondents that since the respondents possessed the prescribed qualifications and were empanelled after they had passed the prescribed test, held in accordance with the rules, their empanelment and subsequent appointment on ad-hoc basis was not illegal and therefore ought to be regularized. She submitted that a distinction has to be made in the appointments which are illegal and therefore incapable of being regularized W.P(C) 1268/2012 Page 6 of 32 and the appointments which are irregular and therefore can be regularized. We, however, find no merit in the contention. In view of the legal proposition enunciated by the Supreme Court in a catena of decisions including Rakhi Ray (infra), Rajkishore Nanda (infra) and Mukul Saikia (infra) appointment of the respondents on regular basis would be violative of Article 14 of the Constitution and would, therefore, be clearly illegal. The respondents could have been appointed only against the vacancies which were notified at the time they were empanelled in February, 2004, but, once the 06 posts of LDCs advertised on

16.7.2003 were filled up, the vacancies arising subsequent to filling up of those 06 advertised posts, could not have been filled up appointing the candidates, who had been placed in the waiting panel. In fact, even the regularization of 04 candidates who were higher to the respondents in the order of merit in the panel drawn in February, 2004 was not in accordance with the law. But, as held by the Supreme Court in Arulmozhi (infra), there can be no equality in illegality and therefore the respondents cannot claim regularization merely because some other persons, who were placed in the same panel in which the respondents were placed, were wrongly regularized. In any case, once OM dated 14.11.2007 has been issued by DoP&T, regularization of the respondents, if directed, would be in breach of the instructions contained in the said OM. Thus, from whatever angle we may examine the matter, the respondents have no case for regularization of their services or for their W.P(C) 1268/2012 Page 7 of 32 appointment on regular basis, on the strength of the panel prepared in February,

10. In Secretary, State of Karnataka and Others, v. Uma Devi and Others: (2006) 4 SCC 1, a Constitution Bench of the Supreme Court, while considering absorption, regularization or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees who had been in service for quite some time, inter alia, recognized the power of the State and its instrumentalities to employ persons in posts which are temporary on daily wages as additional hands or taking them in, without following the required procedure to discharge the duties in respect of the posts that are sanctioned and required to be filled in terms of the relevant procedure and noted that there was nothing in Constitution which prohibits such engagements. The Court was of the view that a total embargo on such employments is not possible, given the exigencies of administration, and if imposed would only mean that some people who at least get employment temporarily, contractually or casually would not be getting even that employment, when securing of such employment brings at least some succour to them. The Court observed that innumerable citizens of our vast country are in search of employment, one is not compelled to accept a casual or temporary employment if he is not inclined to go in for such an employment and it is in that context that one has to proceed on the basis that the employment was accepted fully knowing the W.P(C) 1268/2012 Page 8 of 32 nature and the consequences flowing from it. As regards the argument that since the employee had been working for some time in the post, it will not be just to discontinue him even though he was aware of the nature of the employment, the Court felt that if accepted, this argument would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of the constitutionality and equality of opportunity enshrined under Article 14 of the Constitution. Dealing with the doctrine of legitimate expectation advanced by the employees, the Court observed that 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 relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature and he cannot invoke the theory of legitimate expectation for being confirmed in the post, where appointment could be made only by following a proper procedure for selection. The Court felt that the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees and it cannot be held that the State had held out any promise while engaging these persons either to continue them where they were or to make them permanent. The Court noted that the State cannot constitutionally make such a promise. W.P(C) 1268/2012 Page 9 of 32 It was also noted by the Court that 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. The Court also held that such employees cannot claim a right to be treated at par with those who are regularly employed. The Court also rejected the contention that right to life protected by Article 21 of the Constitution would include the right to employment since acceptance of such a plea would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. The Court, however, noted that there may be cases where irregular appointments of duly qualified persons are made in duly sanctioned vacant posts and the employees continue to work for more than 10 years or more, but without intervention of the order of the Courts or of Tribunals. The Court directed that Union of India, 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 10 years or more in duly sanctioned posts, but not under cover of order of Courts or of Tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that are required to be filled up, in cases where temporary employees or daily wagers are being now employed. The Court directed that the process must be set in motion within six months from the date of its order. The Court clarified that the decisions which run counter to the W.P(C) 1268/2012 Page 10 of 32 principles settled in this decision or in which directions run counter to this decision would stand denuded of their status as precedents.

11. In State of Karnataka and Ors. v. Sri G.V. Chandrashekar: (2009) SCC 342, the respondent before Supreme Court was appointed as a typist on 05.09.1985 and worked for more than 10 years, without break in service. He sought a direction for regularization of his services with all consequential. The Tribunal directed that the question of regularization of his service be examined with reference to the records. The writ petition filed by the State against the order of the Tribunal having been dismissed, the matter was taken by the State to Supreme Court by way of Special Leave. Some other matters, involving similar issue, were also examined by Supreme Court in this case. Relying upon the decision in the case of Uma Devi and Others (supra), the appeal filed by the State was allowed and the order passed by the High Court was set aside.

12. In view of the mandate of law enunciated by the Constitution Bench of the Supreme Court, no employee appointed on daily/casual/ad-hoc basis can seek regularization unless he was appointed against a clear vacant post and he had worked for at least 10 years on the date the decision was rendered in Uma Devi (supra). In the case before us, the respondents were appointed on ad-hoc basis against short term vacancies and not against any vacant posts. The posts against which they were appointed were already occupied by those who were on W.P(C) 1268/2012 Page 11 of 32 deputation. Only the short-term vacancies created by their deputation, were filled up by making ad hoc appointments of the respondents. Moreover, they had put in only about 2 years and 04 months of service when the Supreme Court rendered its decision in Uma Devi (supra) on 10.4.2006. Therefore, they cannot seek regularization of their service and if directed, such a regularization would be in violation of law declared by the Supreme Court in that case.

13. In Rakhi Ray & Ors vs. High Court of Delhi & Ors.: (2010) 2 SCC 637, the Supreme Court, inter-alia, held as under:- “It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated and such a deviation is permissible only after adopting policy decision based on some rational", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, not permissible in law. (Vide Union of India and Ors. v. Ishwar Singh Khatri and Ors. (1992) Supp 3 SCC 84; Gujarat State Deputy Executive Engineers' Association v. State of Gujarat and Ors.: (1994) Supp 2 SCC 591; State of Bihar and Ors. v. The Secretariat Assistant S.E. Union 1986 and Ors. AIR 1994 W.P(C) 1268/2012 Page 12 of 32