Rajendra Kumar Sharma v. University of Delhi & Anr

12. It is submitted on behalf of the respondent no. 1 that the prayer seeking regularisation of services cannot be allowed since the petitioner did not work on a permanent/sanctioned post and was not appointed by going through a formal selection process. The learned counsel placed reliance upon the judgment passed in Secy., State of Karnataka v. Umadevi, (2006) 4 SCC 1, to support his arguments.

13. It is further submitted that the petitioner could not claim regularisation of services as a matter of right. Moreover, the appointment letter of the petitioner dated 8th September 2005 also categorically mentioned that the post of Junior Laboratory Assistant shall subsist only till the post of Laboratory Assistant continues.

14. It is submitted that since there is nothing that has been prayed on behalf of the petitioner that accrues to him and may be granted by this Court, the instant petition is liable to be dismissed.

15. Heard the learned counsel for the parties and perused the record.

16. The petitioner, by way of the instant petition, is seeking regularisation of his services as well as consequential benefits which may accrue thereto. The petitioner superannuated in the year 2015 and as such the limited consideration before this Court is for the consequential benefits which may accrue in favour of the petitioner if the decision is made in his favour to the extent of regularisation of his services.

17. The petitioner served at the respondent University, for the then newly introduced Course, from the year 1993 till 2015, i.e., till the day of his superannuation. Vide Office Order No. 30 dated 25th June 1992, the competent authority of the respondent no. 1 approved and created the posts, including that of the Junior Laboratory Assistant, for the limited purpose of employment qua the Course in question. The relevant portion of the Office Order dated 25th June 1992 is reproduced herein: “The following temporary posts have been created for the Agrochemical & Pest Management for a period of six months:scale of Pay

1. Jr. Lab. Assistant -One Rs 975-1540

2. Lab Attendant -One Rs. 800-1150

3. P.T. Safai Karamchari -One @Rs.500/-P.N. (fixed)

4. Mali -One Rs. 750-940 The expenditure on this account will be met out of the provision made for “Salaries for temporary/Seasonal Staff” under Major Head of A/o 4- A- Faculty of Science Sub-Head- (V) M.Sc. Course in Agro Chemicals & Pest Management.”

18. The contents of the Office Order, at the very outset, make it unequivocally clear that the intent and purpose of creating the aforesaid posts was to accommodate the requirement of personnel/staff in the newly introduced Course. As per the Officer Order, the seven posts listed were ‘temporary posts’ created for a limited period of six months and limited purpose for the concerned Course. Even with respect to the expenditure to be disbursed in favour of the posts created, the Office Order clearly stipulated that the same was to be accommodated from the provision made for „Salaries for temporary/Seasonal Staff‟, which signifies the intent to treat the persons to be appointed to the posts at par with temporary/seasonal staff.

19. Further, the nature and extent of the employment and appointment of the petitioner can also be gathered from his letter of appointment dated 4th October 1993, the relevant contents whereof are reproduced hereunder: “With reference to your letter dated 24.8.1993, 26.8.93 & 30.8.1993, I am to convey ex-post-facto approval to the following ad-hoc arrangements of the Laboratory Staff against the posts created vide Office Order No. 31 dated 22.7.1993:- ***** iii) Ad-hoc appointment of Shri Rajendra Kumar Sharma as Junior Laboratory Assistant on Rs. 975/p.m. in the pay scale of Rs. 975-1540 w.e.f. 1.1.1993 to 30.6.1993. ….”

20. The aforesaid appointment letter also makes it clear that the appointment of the petitioner as the Junior Laboratory Assistant was made on an „ad hoc‟ arrangement for a specific period, towards the posts specifically created for the Course of M.Sc. for Agro-Chemicals & Pest Management. At the first instance, there is nothing in the contents of the appointment letter that suggests that the post for which the petitioner was appointed was a permanent post or was a part of a regular Course or curriculum.

21. To this effect, the Hon’ble Supreme Court while passing the landmark judgment of Umadevi (Supra) has settled the position of law qua regularisation of services. The relevant paragraphs of the judgment are reproduced hereunder for proper appreciation of the law laid down as well as for the proper adjudication of the case at hand.

17. We have already indicated the constitutional scheme of public employment in this country, and the executive, or for that matter the court, in appropriate cases, would have only the right to regularise an appointment made after 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 or can be directed to be treated as permanent.

19. One aspect arises. Obviously, the State is also controlled by economic considerations and financial implications of any public employment. The viability of the department or the instrumentality of the project is also of equal concern for the State. The State works out the scheme taking into consideration the financial implications and the economic aspects. Can the court impose on the State a financial burden of this nature by insisting on regularisation or permanence in employment, when those employed temporarily are not needed permanently or regularly? As an example, we can envisage a direction to give permanent employment to all those who are being temporarily or casually employed in a public sector undertaking. The burden may become so heavy by such a direction that the undertaking itself may collapse under its own weight. It is not as if this had not happened. So, the court ought not to impose a financial burden on the State by such directions, as such directions may turn counterproductive.

28. In Director, Institute of Management Development, U.P. v. Pushpa Srivastava [(1992) 4 SCC 33: 1992 SCC (L&S) 767: (1992) 21 ATC 377: (1992) 3 SCR 712] this Court held that since the appointment was on purely contractual and ad hoc basis on consolidated pay for a fixed period and terminable without notice, when the appointment came to an end by efflux of time, the appointee had no right to continue in the post and to claim regularisation in service in the absence of any rule providing for regularisation after the period of service. A limited relief of directing that the appointee be permitted on sympathetic consideration to be continued in service till the end of the calendar year concerned was issued. This Court noticed that when the appointment was purely on ad hoc and contractual basis for a limited period, on the expiry of the period, the right to remain in the post came to an end. This Court stated that the view they were taking was the only view possible and set aside the judgment of the High Court which had given relief to the appointee.

29. In Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra [(2005) 5 SCC 122: 2005 SCC (L&S) 628: AIR 1994 SC 1638] a three-Judge Bench of this Court held that ad hoc appointees/temporary employees engaged on ad hoc basis and paid on piecerate basis for certain clerical work and discontinued on completion of their task, were not entitled to reinstatement or regularisation of their services even if their working period ranged from one to two years. This decision indicates that if the engagement was made in a particular work or in connection with particular project, on completion of that work or of that project, those who were temporarily engaged or employed in that work or project could not claim any right to continue in service and the High Court cannot direct that they be continued or absorbed elsewhere.

43. 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 requirements 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 ad hoc 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, regularisation, 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 caused 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.

45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain—not at arm's length—since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment 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. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has 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 when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.

47. 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 recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.

49. It is contended that the State action in not regularising the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.”

22. Undisputedly, regularisation of services or permanence of employment may not be claimed as a matter of right, especially before Courts. In the absence of a rule or scheme providing for a right to be considered for regularisation or permanence, a right or entitlement does not arise in favour of a person appointed on contractual, temporary or ad hoc arrangement.

23. It is also not proper for the Court to direct absorption in services, considering the implications, including financial, a direction of this nature may have upon the instrumentality or department. Moreover, the considerations of equity and sympathy also have a limited role to play in such cases, since, a decision, order or direction based solely on sympathetic and sentimental grounds may result in perpetuating illegalities.

24. As discussed in the foregoing paragraphs, the petitioner was initially appointed on ad-hoc basis for the temporary post created for a limited period of six months, and thereafter was made a temporary employee. Since, the post in question itself was not a permanent sanctioned post, in terms of the facts and circumstances of the case as well as the observations and directions of the Hon’ble Supreme Court, there was neither any vested right that existed in favour of the petitioner to have his services regularised nor was there any obligation or liability on the respondents to allow the regularisation of services on the grounds raised on behalf of the petitioner, or for the reason that the petitioner had served the respondent University for a considerable period of time. Moreover, upon the representations of the petitioner to the respondent no.1 for regularisation of services, the respondent no.1 took appropriate and adequate action, subsequent to which the petitioner was also made temporary from ad hoc.

25. Furthermore, the petitioner being a contractual/ad hoc employee may not claim regularisation of services as a matter of right, since, he had entered the employment being completely aware of the nature of his employment and as such continuation of services beyond the period of time stipulated in his initial contract shall also not affect the decision made by the respondent or by this Court.

26. Therefore, considering the entirety of the matter, the facts, circumstances, the submissions made on behalf of the parties as well as the law laid down, this Court is of the considered view that there is no right vested in the petitioner with regard to regularisation of services. Moreover, the power of judicial review in such matters is also limited as discussed in the foregoing paragraphs.

27. Accordingly, in view of the above facts, circumstances, the instant petition stands dismissed for being devoid of merit.

28. Pending applications, if any, also stand dismissed.

29. The order be uploaded on the website forthwith.