Mahendra Singh & Ors. v. Energy Efficiency Services Ltd & Anr

11. Mr. Kapur stated, the basic grievance of the petitioners is that once the process of absorption for selection on regular posts has been completed by respondent No.1, the petitioners are to be mandatorily absorbed as per Rules. A sudden stoppage of entire process of absorption smacks of lack of bonafides, arbitrariness in exercising the discretion, violation of Article 14 of the Constitution. In this regard, he stated that the law is well settled inasmuch as the FTEs or contractual employees cannot claim absorption or regularization as a matter of right. No doubt, the Recruitment Policy for FTEs itself provides for regularization through absorption process but it is not a rule but an exception, that too under business exigencies. Hence, the contention of Mr. Bhushan that they have a right to seek regularization under absorption process, which is being infringed, is contrary to the Recruitment Policy. He stated that based on various complaints made to the Chief Vigilance Officer, wherein, the process of regularization through absorption was challenged, inquiry was conducted by the Vigilance Department and report was submitted to the Board that the said process is against the principles of fair play and equal opportunity to all.

12. According to Mr. Kapur, the object of the Recruitment Policy is to enable the Organization to meet the challenges, attract, W.P.(C) 7797/2020 Page 9 motivate and retain talent from all sectors and create a continuous source of trained professionals for meeting the fast growing needs of the organization in a changing business scenario. He stated that in the above background, the PWC, a consulting agency was engaged to provide inputs on requirement of dynamic and common pool of resources and need of more employees. PWC has opined that the business growth of the respondent No.1 envisages different and new streams, with short life span of projects and foray into both National and International markets. On a comprehensive manpower study, it was revealed that it is crucial for respondent No.1 to empower regional offices and create common pool of resources which focuses on multi-tasking and multi-skilling of employees in the ever dynamic work situation. Hence, the need of open competitive examination is to have skilled manpower and pool, which is also the mandate of law as settled by Supreme in the case of Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors.,

13. Mr. Kapur stated even on equity, no discrimination has been made against the FTEs by declaring them ineligible to participate in the examination held on October 23, 2020. As a matter of fact, the Notification dated October 15, 2019 helped the existing work force, as all the petitioners have participated in the said examination with the exception of one petitioner, who could not participate on account of being unwell. He also stated that in terms of the said Notification, preference was given to the candidates having experience in Public Sector Undertakings. For Internal candidates W.P.(C) 7797/2020 Page 10 including outsourced employees, following relaxation will be considered:- “(i) Age relaxations, subject to fulfillment of other eligibility criteria;

(ii) For technical position, equivalent engineering qualifications;

(iii) For Non-technical positions part time qualification/distance learning courses;”

14. Mr. Kapur contested the submission of Mr. Bhushan that the petitioners were not informed about the stoppage of recruitment through Absorption Policy by stating that the respondent No.1 vide its response dated November 22, 2019 to a consolidated application, has categorically informed that ‘due to administrative reasons, Management decided to go for open recruitment’. Mr. Kapur relied upon the following judgments in support of his submissions:i. Official Liquidator v. Dayanand & Ors. (2008) 10 SCC 1; ii. Dr. Chanchal Goyal (Mrs.) v. State of Rajasthan, (2003) 3 SCC 485; iii. Principal, Mehar Chand Polytechnic & Anr. v. Anu Lamba & Ors., (2006) 7 SCC 161; iv. Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors. (supra); v. Anil Lamba & Ors. v. Govt. of NCT & Ors., (2017) 238 DLT 760.

15. On the judgments relied upon by Mr. Bhushan, Mr. Kapur would submit that those judgments are not applicable in the facts of the present case by stating that in the matter of public employment, government entities are bound by the dictum of the judgment of the Supreme Court in the case of Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors. (supra) and the constitutional provisions, which mandate equal opportunity to all and there can be no W.P.(C) 7797/2020 Page 11 discrimination amongst equals and appointments should be carried out through open recruitment. Moreover, it is a settled position of law that a wrong or an irregularity cannot be perpetuated. He seeks the dismissal of the writ petition.

16. Having heard the learned counsel for the parties, on the limited issue of prayer (b) as reproduced above, the petitioners are, in effect seeking that they may be absorbed in regular positions by declaring the result of the interviews held on June 24, 2019 and June 26, 2019. At the outset, I may state here that the petitioners were initially engaged as FTEs, on contractual basis and they have worked for four and a half years. There is a clear stipulation in their engagement by stating as under:- “Clause 8: You may note that your engagement at EESL is on Fixed Tenure Basis and you will not have any claim whatsoever, for regularization / absorption in the Regular Roles of EESL.”

17. The submissions of Mr. Prashant Bhushan primarily are; (i) the petitioners’ engagement was in terms of the recruitment policy which permits absorption of FTEs in regular scales in exceptional circumstances, subject to proper business justification; (ii) the performance of the petitioners is satisfactory and their PMS is not less than excellent or equivalent; (iii) that the FTEs were absorbed in the years 2016 and 2017 and a similar benefit was sought to be given by the respondent No.1 by calling upon the petitioners to appear for the interview; (iv) unfortunately, for totally arbitrary reasons, result of the interviews has not been declared; (v) even the reliance placed on the note sheet by the respondent No.1 does not W.P.(C) 7797/2020 Page 12 state that the process of absorption initiated by the respondent No.1 in 2019 need to be shelved.

18. On the other hand, Mr. Kapur has highlighted the report submitted by PWC, a consulting agency for providing inputs on recruitment of dynamic and common pool of resource and need for more employees. Surely, the report submitted, does recommend need of open competitive examination to have skilled manpower and pool, which is in conformity with the law laid down by the Supreme Court in Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors. (supra).

19. That apart, I find that some of the petitioners, who were engaged as FTEs, have been engaged either through written test and interview, or only interview, or no written test and interview and the employees sought to be absorbed without facing any written examination but by interview only. This process surely reflects that no homogenous process was evolved for appointing the petitioners as FTEs. That apart, the position of the FTEs being not regular rather temporary, many persons may not have applied for the said position in the past (when the petitioners were appointed). In this regard, I may refer to the judgment of the Supreme Court in the case of Official Liquidator (supra), wherein in para 52, the Supreme Court has held as under:- “52. As mentioned above, while approving the reasons and conclusions recorded by the two High Courts and dismissing the appeals, this Court not only permitted the Government of India to frame a scheme modelled on the 1978 Scheme but also stayed implementation of the orders impugned in the appeal and the one passed W.P.(C) 7797/2020 Page 13 by itself in the transferred writ petition. If the Court intended that all members of the company-paid staff working on the date of judgment i.e. 27-8-1999 [(1999) 8 SCC 560: 2000 SCC (L&S) 74] should be absorbed in the regular cadres against Group C and D posts, then a simple direction to that effect would have been sufficient and there was no occasion to stay the implementation of the orders of the High Courts for six months with liberty to the Government of India to frame a new scheme within the same period. The absence of such a direction shows that the Court was very much conscious of the fact that recruitment to the regular cadres is governed by the rules framed under Article 309 of the Constitution and it would be highly detrimental to public interest to issue direction for wholesale absorption/regularisation of the companypaid staff and thereby abrogate/stultify opportunity of competition to younger generation comprising more meritorious persons who may be waiting for a chance to apply for direct recruitment. Obviously, the Court did not want to sacrifice merit by showing undue sympathy with members of the company-paid staff who joined service with full knowledge about their status, terms and conditions of their employment and the fact that they were to be paid from the company fund and not Consolidated Fund of India. In this context, we may also mention that though the Official Liquidators appear to have issued advertisements for appointing the company-paid staff and made some sort of selection, more qualified and meritorious persons must have shunned from applying because they knew that the employment will be for a fixed term on fixed salary and their engagement will come to an end with the conclusion of liquidation proceedings. As a result of this, only mediocres must have responded to the advertisements and joined as company-paid staff. In this scenario, a direction for absorption of all the company-paid staff has to be treated as violative of the doctrine of equality enshrined in Articles 14 and 16 of the Constitution. W.P.(C) 7797/2020 Page 14 (Emphasis supplied)

20. Even the process of absorption initiated in the year 2019 was only through the interview process, which process cannot be countenanced. The Supreme Court in the case of Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors. (supra) has held that public employment has to be in terms of the constitutional scheme, which is as per the Recruitment Policy framed by the employer and has to be given wide publicity and considering every person, who applies for the post and fulfills the eligibility conditions. It is in conformity with the position of law laid down by the Supreme Court in Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors. (supra) that the respondents have justified issuance of recruitment notice dated October 15, 2019 by not declaring the result of the interviews, which were held on June 24, 2019 and June 26, 2019. I do not see any illegality in the said process. In fact, I find by initiating the process of absorption of the petitioners, the respondent No.1 has sought to overlook / deny consideration to the persons outside the organization for applying to the posts in question, which are admittedly public posts.

21. Further, the fact that all the petitioners except one have applied / participated in the examination pursuant to the recruitment notice dated October 15, 2019 wherein age relaxation was also given to the petitioners, subject to fulfillment of other eligibility criteria and also the fact only nine have qualified the written examination to be called for the interview, the petitioners cannot now seek regularization by way of this writ petition by seeking a direction for declaration of the result of the interviews. This I say W.P.(C) 7797/2020 Page 15 so, in view of the judgment of the Supreme Court in the case of Nagar Mahapalika, Kanpur v. Vibha Shukla (Smt)& Ors., (2007) 15 SCC 161 wherein the Supreme Court held that regularization is not a mode of appointment. Also they having participated in the selection process are estopped from challenging the recruitment notice, (which prayer has been rejected by this court on October 12, 2020 and upheld by the Division Bench). In the case of Madras Institute of Development Studies & Anr. v. K. Sivasubramaniyan & Ors., (2016) 1 SCC 454, wherein the Supreme Court has held as under:- “15. In Dr. G. Sarana vs. University of Lucknow & Ors., (1976) 3 SCC 585, a similar question came for consideration before a three Judges Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Athropology in the University of Lucknow. After having appeared before the Selection Committee but on his failure to get appointed, the petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. Rejecting the contention, the Court held:- “15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee. This view gains strength from a decision of this Court in Manak Lal’s case where in more or less similar circumstances, it was held that the failure of the appellant to take the W.P.(C) 7797/2020 Page 16 identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting: “It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point.” (Emphasis supplied)

22. Even the lone candidate, who could not appear in the examination on the grounds of being unwell, could have also applied against the recruitment notice. Having not done that, he also cannot seek any direction from this Court for declaring the results of the interview held on June 24, 2019 and June 26, 2019 as the very action of the respondent No.1 for absorption is contrary to the law in Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors. (supra) wherein the Supreme Court has in paragraphs 43 and 50 held as under:- “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 W.P.(C) 7797/2020 Page 17 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. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, 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 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. xxxx xxxx xxxx

50. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so W.P.(C) 7797/2020 Page 18 many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality.”

23. Mr. Kapur is justified in relying upon the judgment in the case of Official Liquidator (supra) wherein the Supreme Court held that creation and abolition of posts, formation and structuring/ restructuring of cadres, prescribing the source and mode of recruitment, qualifications and criteria of selection etc., are matters which fall within the exclusive domain of the employer. The Court cannot sit in appeal over the executive decision of the employer and ordain that a particular post or number of posts be created or filled by a particular mode of recruitment. The power of judicial review can be exercised in such matters only if it is shown that the action of W.P.(C) 7797/2020 Page 19 the employer is contrary to any constitutional or statutory provisions or is patently arbitrary or vitiated by malafides.

24. Though reliance was also placed by Mr. Kapur on the same judgment that the FTEs cannot invoke the doctrine of legitimate expectation by referring to the conclusion of the Supreme Court since that no material has been placed before the Court to show that any promise was made or that any assurance was given by the respondent No.1 for their absorption in regular cadres but this Court is of the view that the doctrine of legitimate expectation would not come into play when the terms of appointment issued to the petitioners, includes Clause 8, as referred to above which is very clear that the petitioners cannot have any claim for regularization or absorption in the regular cadre of the respondent No.1 and also in view of the settled law by the Supreme Court in Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors. (supra) of which a reference has been made above that any recruitment has to be made in accordance with the Constitutional Provisions / Recruitment Rules by giving wide publicity and consideration to all persons, who apply, subject to meeting the eligibility conditions. Rather, I find, as stated above, the petitioners were given the benefit of age relaxation. The process evolved by the respondent No.1 is in conformity with Article 14 of the Constitution of India. If the prayer, as sought for by the petitioners is allowed, the same would be in violation of Article 14 of the Constitution of India, as persons who may not have worked in the respondent No.1 organization but meeting the provisions of the Recruitment Policy would be denied the right of consideration on the posts in the respondent No.1 W.P.(C) 7797/2020 Page 20 organization as the said posts are public posts and every citizen of the Country meeting the eligibility criteria has a right to apply and consider.

25. The reliance placed by Mr. Bhushan on the judgment in the case of Shankarsan Dash (supra) is concerned, the said judgment would not be applicable to the facts of this case, more so when the issue in the present case is, whether the petitioners are entitled to regularization by declaring the result of the interviews.

26. Insofar as the judgment in the case of Asha Kaul (supra) is concerned, wherein the Supreme Court has held as under:- “8. It is true that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment State of Haryana v. Subhash Chandra Marwaha A.I.R. 1 973 S.C.2216; M.S, Jain v. State of Haryana A.I.R. 1977 S.C. 276 and State of Kerala v. A. Lakshmikutty A.I.R. 1987 S.C 331 but that is only one aspect of the matter. The other aspect is the obligation of the government to act fairly. The whole exercise cannot be reduced to a farce. Having sent a requisition/request to the commission to select a particular number of candidates for a particular category, in pursuance of which the commission issues a notification, holds a written test, conducts a notification, holds a written test, conducts interviews, prepares a select list and then communicates to the government-the government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. We do not think that any government can adopt such a stand with any justification today. ……”

27. Suffice to state that, in the facts of this case, I have already held that the respondents are justified in not declaring the result of the interviews held on June 24, 2019 and June 26, 2019 and issuing W.P.(C) 7797/2020 Page 21 the recruitment notice on October 15, 2019 against which the petitioners have also applied (except one) and have participated in the process.

28. In view of my discussion above, I do not see any merit with regard to prayer (b) in the petition. The petition is dismissed. No costs.

V. KAMESWAR RAO, J

OCTOBER 01, 2021