1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 26TH DAY OF OCTOBER 2018 PRESENT THE HON'BLE MRS. JUSTICE S.SUJATHA AND THE HON'BLE MR. JUSTICE [ENTITY] WRIT PETITION No.207385/2015 (S-CAT) BETWEEN: DHEERU NAYAK S/O GOVINDAPPA AGE: 41 YEARS O/O. THE NATIONAL SAMPLE SURVEY ORGANISATION (FOD) MINISTRY OF STATISTICS AND PROGRAMME IMPLEMENTATION SRO GULBARGA, PLOT NO.30, SIR PATIL BUILDING, CIB COLONY, BEHIND CENTRAL BUS STAND, GULBARGA, R/AT C/O: VITTAL JADAV SHANTHI NAGAR, OPP. TO CENTRAL BUS STAND, GULBARGA. PETITIONER (BY SRI.G.G.CHAGASHETTI, ADVOCATE) 2 AND: 1. THE UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF STATISTICS AND PROGRAMME IMPLEMENTATION AND NATIONAL SAMPLE SURVEY OFFICE (FIELD OPERATIONS DIVISION) R.K. PURAM, NEW DELHI-110 001. 2. THE DEPUTY DIRECTOR GENERAL NATIONAL SAMPLE SURVEY ORGANISATION (FIELD OPERATIONS DIVISION) MINISTRY OF STATISTICS AND PROGAMME IMPLEMENTATION 2ND FLOOR, SRINATH COMPLEX, NEW COTTON MARKET HUBLI-580029. 3. THE DIRECTOR MINISTRY OF STATISTICS AND PROGRAMME IMPLEMENTATION NATIONAL SAMPLE SURVEY ORGANISATION (FOD) SRO GULBARGA, PLOT NO.30, SRI.PATIL BUILDING CIB COLONY, BEHIND CENTRAL BUS STAND GULBARGA-585 101. RESPONDENTS (BY SMT.HEMA.L.K., ADVOCATE FOR R1 & 2 RESPONDENT NO.3 SERVED) 3 THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS RELATING TO THE IMPUGNED ORDER DATED 20.11.2015 MADE IN O.A.NO.205/2013 VIDE ANNEXURE-C, PERUSE THE SAME AND SET-ASIDE THE SAID ORDER AND RESTORE THE ORDER DATED 17.06.2013 MADE IN O.A.NO.205/2013 AND TO CONTINUE THE SERVICES OF THE PETITIONER IN THE POST HELD BY HIM AND PROVIDE HIM AGE-RELAXATION HAVING REGARD TO HIS INITIAL APPOINTMENT AND EXTEND ALL SERVICE-BENEFITS ON PAR WITH OTHER CONTRACT EMPLOYEES WORKING IN THE SAME POST UNTIL A REGULAR RECRUITMENT IS MADE BY THE STAFF SELECTION COMMISSION TO THE SAID POSTS AND ETC.,. THIS PETITION HAVING BEEN HEARD, RESERVED FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, [ENTITY] J., MADE THE FOLLOWING :- 4 ORDER
In this petition, the petitioner is assailing the order dated 20.11.2015 passed in [CASE NUMBER] vide Annexure-C and further seeking to restore the order dated 17.06.2013 vide Annexure-A passed in [CASE NUMBER] by the Central Administrative Tribunal Bangalore Bench ('Tribunal' for short).
2. The [CASE NUMBER] was filed by the petitioner herein against issuance of Advertisement for the post of Field Investigator published in Samyukta Karnataka on 09.01.2013 on contract basis for a period of nine months from 01.04.2013 and also against the office memorandum in No.2(1)Rect.F1/KTK(N)2012-13 dated 21.12.2012 indicating that, the contract of engagement would be over on 31.03.2013, issued by the respondent No.2, so far it relates to the applicant.
3. We have heard the learned counsel Sri.[ENTITY], for the petitioner and Smt.[ENTITY], the learned counsel appearing for the respondents.
4. It is the case of the petitioner that, he was appointed as Field Investigator with effect from 09.06.2010 and he has been working in the office of respondent No.3 coming under department of respondent No.2 and continued for the period of one year. Again the contract extended initially after 30.06.2012 and thereafter up to 31.03.2013. Thus the petitioner had rendered nearly 03 years of service and initial recruitment having been made after a public notification, the recruitment has been made as per the Cadre and Recruitment Rules and after complying with the [SECTION] and [SECTION] of the [ACT]. The respondent No.3 issued another notification in the year 2013 to fill up the same posts held by the petitioner and others again on contract basis. Though the petitioner belonged to SC/ST and also had put nearly 03 years of service as on that date, he was not considered for renewal of contract appointment on the ground that, the age for fresh appointment which was earlier 40 in respect of SC/ST and OBC has been subsequently reduced in the latest notification fixing the maximum age- limit to 30 years subject to a relaxation to the extent of number of years of service as also the General Circular of age-relaxation in Central Government Appointment for SC/ST. The petitioner was thus not selected in the said recruitment and there was threat of termination from 01.04.2013.
5. The petitioner filed [CASE NUMBER] before the Tribunal seeking direction to set-aside the advertisement dated 09.01.2013 as it contravenes the original notification where the age-limit was up to the age of 40 years. The petitioner had also sought for considering his case for regularization.
6. The Tribunal initially by its order dated 17.06.2013 allowed the [CASE NUMBER] filed by the petitioner holding that, the matter is covered by its earlier order passed in [CASE NUMBER] dated 01.04.2013 and further holding that, the applicant/petitioner is also entitled for the same benefit to the extent as has been allowed in [CASE NUMBER].
7. The respondents herein filed Review Application in [CASE NUMBER] to recall/review the aforesaid order dated 17.06.2013 passed by the Tribunal.
8. The Tribunal by its order dated 15.09.2015 allowed the said [CASE NUMBER] and recalled the order passed in [CASE NUMBER] dated 17.06.2013 and passed fresh orders dated 20.11.2015 thereby dismissing the original application, observing that, the applicant would be entitled to remuneration for the period beyond 01.03.2013 since he continued in the service of the respondents by virtue of the stay order.
9. The learned counsel for the petitioner would contend that, the original application in [CASE NUMBER] was initially allowed by the Tribunal following the judgment passed in [CASE NUMBER] dated 01.04.2013 and there was no error apparent on the face of the order so as to review the said order and for dismissing the application. He submits that, initially appointment was against the sanctioned post of Field Investigators and persons appointed along with petitioner and even later have been continued in service on contract basis. Hence, he submits that, even though the petitioner has not put in 10 years of service on contract basis, he could not have been denied the benefit of continuation in service. He further submits that, the petitioner is a person belonging to SC/ST category and he had served three years in the department already. Therefore, age should have been relaxed, because latest notification issued on 09.01.2013, the age limit was fixed as 21 to 30 years. He was initially appointed in the year 2010 and in pursuance of notification dated 28.05.2010, age was relaxable up to 40 years. Therefore, the petitioner being within the age-limit had been appointed and the said appointment was no way in violation of any recruitment rules. The present action taken is discriminatory and arbitrary. Accordingly, he seeks to set-aside the impugned order passed by the Tribunal.
10. Per contra, the learned counsel for the respondents would contend that, initially the Tribunal by its order dated 17.06.2013 allowed the [CASE NUMBER] on the ground that, the matter was covered by its earlier order dated 01.04.2013 passed in [CASE NUMBER]. However, on a review application filed by the respondents, the earlier order was set-aside by placing reliance on the observations of the Hon'ble Apex Court in [ENTITY]'s case, reported in [PRECEDENT]. The learned counsel for the respondents further contended that, contractual staff cannot be engaged against any sanctioned posts which are to be filled by observing the process of selection as envisaged by the constitutional scheme. But to meet the required commitments of the office to complete the assignments within the time, the persons with designation field investigators have been engaged on a fixed remuneration but not on any fixed scale. The engagement of field investigators could be done only for a shorter period against the work for which they were engaged. The position of appointing the candidates for regular vacancies is to be reviewed assessing the requirement of further engagement on contractual basis. A fresh process of engaging the field investigators is taken up by providing equal opportunity to all, through a prescribed procedure. The learned counsel would further contend that, the implementation of order in [CASE NUMBER] does not apply in the present case and Tribunal after appreciating the grounds raised in the review application has rightly dismissed his application, since the appointee has no right to continue in the post. The fact that, even after expiry of original period the services are continued on ad hoc basis from time to time would not confer any such right. Therefore, the learned counsel submits that, there can be no regularization of contractual employee after his services are terminated upon expiry of contract.
11. It is not in dispute that the petitioner was appointed as Field Investigator on contract basis on a consolidated salary vide office memorandum dated 28.05.2010 and after appointing and having engaged as Field Investigator, the petitioner was deployed for the said purpose. Further the respondents issued official memorandum extending the period of engagement up to 31.03.2013. However, an advertisement was issued by respondent No.2 calling for application for the post of field investigator purely on contract basis for the period from 01.04.2013, for maximum of 9 months starting from 01.04.2013, with consolidated remuneration of Rs.15,000/- per month, which was challenged by the petitioner before the Tribunal in [CASE NUMBER]. As noted supra, the Tribunal initially allowed the said [CASE NUMBER], holding that the matter is covered by its earlier order passed in [CASE NUMBER], however, on a review application filed by the respondents in [CASE NUMBER], the earlier order was recalled and by a fresh order, [CASE NUMBER] filed by the petitioner was dismissed.
12. The Tribunal while dismissing the [CASE NUMBER], afresh, placed reliance on the judgment of the Hon'ble Apex Court in [ENTITY]'s case at Para No.45, which reads as under:-
"While directing that appointments, temporary or casual be regularized or made permanent, courts are swayed by the fact that the concerned person 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 eyes open. 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 whether 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 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
13. Further observed that, where the appointment is contractual and comes to an end by efflux of time, the appointee has no right to continue in the post; the fact that even after the expiry of the original period the services are continued on an ad hoc basis from time to time would not confer any such right either. There can be no regularization of a contractual employee after his services are terminated upon expiry of contract.
14. It is not in dispute that, in the present case the respondents have issued impugned advertisement vide Annexure-A9 calling for appointment of field investigators on purely contract basis.
15. In the case of State of Haryana and others /vs/ [ENTITY] and others, reported in (1992) 4 SCC 118, at Para.No.45 to 49 the Hon'ble Apex Court has held as under:-
45. The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee.
46. Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
47. Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of [SECTION] should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.
48. An unqualified person ought to be appointed only when qualified persons are not available through the above processes.
49. If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.
16. In the aforesaid decision, it is made clear that, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
17. The above observations of the Hon'ble Apex Court in [ENTITY] case (supra) is reiterated in [ENTITY]'s case at Para No.25. In Para No.26, in the case of [ENTITY]'s (supra) the constitution bench only disagreed with that direction of [ENTITY] and other case (supra) which requires regularization of ad hoc or temporary or casual employee, which reads as under:-
"26. With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent-the distinction between regularization and making permanent, was not emphasized here-can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in para 50 (of SCC) of [ENTITY] is to some extent inconsistent with the conclusion in para 45 (of SCC) therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognized in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent.
18. However, it is reiterated that, an ad hoc or temporary employee should not be replaced by any other ad hoc or temporary employee, which is to avoid arbitrary action on the part of the appointing authority.
19. The High Court of Delhi, in the case of [PRECEDENT] in [CASE NUMBER] decided on 20.01.2015, at Para No.3 of the judgment while following the judgment of the Hon'ble Apex Court in [ENTITY]'s case and [ENTITY] case has observed as under :-
3. The ratio and spirit of the judgments of the Supreme Court in the cases of [ENTITY] and others (supra) and [ENTITY] (supra) has been applied and reiterated by the Supreme Court in the judgment in the case of [PRECEDENT] and which states that a person who is employed under the scheme has to continue in the employment till the continuation of the scheme and such a person's services cannot come to an end/terminated before the expiry of the scheme except of course on disciplinary grounds or unsatisfactory services or medical grounds or attaining the normal age of retirement. Paras 17 and 18 of the judgment in the case of [ENTITY] and Another (supra) are relevant and the same read as under:-
"17. When the ad hoc appointment is under a scheme and is in accordance with the selection process prescribed by the scheme, there is no reason why those appointed under the scheme should not be continued as long as the scheme continues. Ad-hoc appointments under schemes are normally co-terminus with the scheme (subject of course to earlier termination either on medical or disciplinary grounds, or for unsatisfactory service or on attainment of normal age of retirement). Irrespective of the length of their ad hoc service or the scheme, they will not be entitled to regularization nor to the security of tenure and service benefits available to the regular employees. In this background, particularly in view of the continuing Scheme, the ex-serviceman employed after undergoing selection process, need not be subjected to the agony, anxiety, humiliation and vicissitudes of annual termination and re-engagement, merely because their appointment is termed as ad hoc appointments.
"18. We are therefore of the view that the learned Single Judge was justified in observing that the process of termination and re- appointment every year should be avoided and the appellants should be continued as long as the Scheme continues, but purely on ad hoc and temporary basis, co-terminus with the scheme. The Circular dated 17.03.1995 directing artificial breaks by annual terminations followed by fresh appointment, being contrary to the PIF Additional Scheme and contrary to the principles of service jurisprudence, is liable to be is quashed".
20. In view of the above, even the case of the petitioner herein, clearly falls within the ratio of judgments of Hon'ble Apex Court in the case of [ENTITY] case and [ENTITY]'s case (supra). Since, one contractual employee cannot be replaced by the other contractual employee, which action shows arbitrariness on the part of the respondents as observed in the aforesaid judgments. The petitioner was within the age limit when he was initially appointed and the said appointment was in no way violative of any recruitment rules. Fixing the age limit in the fresh advertisement, has deprived the petitioner to compete with other applicants which may not be fair and consistent with the requirements of [SECTION], in the present case. In that view of the matter, we proceed to pass the following;
ORDER (i) Writ petition is allowed. (ii) The impugned order dated 20.11.2015 passed by the Central Administrative Tribunal, Bangalore in
[CASE NUMBER], vide Annexure-C is hereby quashed.
(iii) The respondents shall consider the case of the petitioner for regularization of service and take appropriate decision in accordance with law. Till then, the petitioner shall not be terminated.
No order as to costs.
JUDGE Sd/-
JUDGE [ENTITY]