1 IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No.292 of 2015 The [ENTITY], through its Vice President Kuldip Nonia having its office at Rai P.O. and P.S. Khelari, District-Ranchi (Jharkhand) Appellant Versus The [ENTITY], P.O. & P.S. Chatra, District-Chatra (Jharkhand) Respondent
CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE AMITAV K. GUPTA
For the Appellants : Mr. [ENTITY], Advocate For the Respondent : Mr. [ENTITY], Advocate Ms. [ENTITY], Advocate [SECTION]/Dated 28th June, 2018 Oral Order: Per: [ENTITY], A.C.J:
1. This Letters Patent Appeal has been preferred by the appellant (original petitioner) whose writ petition being [CASE NUMBER] was dismissed by the learned Single Judge vide judgment and order dated 30th March, 2015 and hence, the appellant (original petitioner) has preferred this Letters Patent Appeal.
2. Prayer for regularisation into the services of the respondent-Public Sector Undertaking was not accepted by the Central Government Industrial Tribunal No.-II, Dhanbad in [CASE NUMBER]. The award was passed by the Central Government Industrial Tribunal No.-II, Dhanbad on 15th March, 2013 which was upheld by the learned Single Judge in the writ petition being [CASE NUMBER] dated 30 th March, 2015 and hence, the appellant (original petitioner) has preferred this Letters Patent Appeal.
3. Having heard counsels for both the sides and looking to the facts and circumstances of the case, it appears that the terms of reference under [SECTION] of the [ACT] in all the three references was for regularisation of the services of the members of this appellant.
4. The main contention raised by the counsel for the appellant is that the employees of the contractor who were working since several years for the respondent-management ought to have been regularised by the Industrial Tribunal. This aspect of the matter has not been properly appreciated by the learned Single Judge, and hence, the judgment and order delivered by the learned Single Judge deserved to be quashed and set aside.
5. We are not accepting this contention mainly for the reason that they were the employees of the contractor and even if these persons have worked for 240 days or more, they are not entitled for regularisation. There was no direct supervision and control of the management upon the employees of the contractor.
6. The test to be applied in such type of cases is supervision and control and not the payment of salary nor the maintenance of the attendance register etc. It ought to be kept in mind that maintenance of attendance register is not a test to be applied for regularisation. Even if such type of registers are being maintained by the respondent, the same are maintained only for payment of money to the contractor, for monitoring the work done by contractor and the time consumed by him and nothing beyond that.
7. In the case of [PRECEDENT] Hon'ble the Supreme Court has held as under:
"5. We are unable to uphold the order of the High Court. There were no sanctioned posts in existence to which they could be said to have been appointed. The assignment was an ad hoc one which anticipatedly spent itself out. It is difficult to envisage for them the status of workmen on the analogy of the provisions of the [ACT], [SECTION]47, importing the incidents of completion of 240 days' work. The legal consequences that flow from work for that duration under the [ACT], [SECTION]47, are entirely different from what, by way of implication, is attributed to the present situation by way of analogy. The completion of 240 days' work does not, under that law import the right to regularisation. It merely imposes certain obligations on the employer at the time of termination of the service. It is not appropriate to import and apply that analogy, in an extended or enlarged form here."
(emphasis supplied)
8. In the case of [PRECEDENT] Hon'ble the Supreme Court has held as under:
"17. It is now well settled that only because a person had been working for more than 240 days, he does not derive any legal right to be regularised in service. (See [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT].)"
(emphasis supplied)
9. In the case of [PRECEDENT] Hon'ble the Supreme Court has held as under:
"18. The next question which requires consideration is whether completion of 240 days in a year confers any right on an employee or workman to claim regularisation in service. In [PRECEDENT] it was held that the completion of 240 days' work does not confer the right to regularisation under the [ACT]. It merely imposes certain obligations on the employer at the time of termination of the services. In [PRECEDENT] (para 17) after referring to several earlier decisions it has been reiterated that it is well settled that only because a person had been working for more than 240 days, he does not derive any legal right to be regularised in service. This view has been reiterated in [PRECEDENT] The same question has been examined in considerable detail with reference to an employee working in a government company in [PRECEDENT] and paras 34 and 35 of the Report are being reproduced below: (SCC p. 426) "34. Thus, it is well settled that there is no right vested in any daily wager to seek regularisation. Regularisation can only be done in accordance with the rules and not dehors the rules. In the case of [PRECEDENT] this Court held that there can be no regularisation dehors the rules. The same view was taken in [PRECEDENT] and [PRECEDENT]. The direction issued by the Services Tribunal for regularising the services of persons who had not been appointed on regular basis in accordance with the rules was set aside although the petitioner had been working regularly for a long time.
35. In [PRECEDENT] it was held that ad hoc appointment does not give any right for regularisation as regularisation is governed by the statutory rules."
(emphasis supplied)
10. In view of the aforesaid decisions, even if the workers of the contractor have worked for more than 240 days, they cannot be regularised into the services of the principal employer. At the most, they can be regularised into the services of the contractor and not with the principal employer. This distinction has been properly appreciated by the Industrial Tribunal as well as by the learned Single Judge.
11. It appears that this appellant "is a chance taking petitioner." Admittedly, the workers of the contractors, even if they have worked for more than 240 days, they are never entitled for any regularisation into the services of the principal employer. Who is maintaining the attendance register need not to be looked into which is heavily argued by the learned counsel for the appellant.
12. Learned counsel appearing for the appellant has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of [PRECEDENT].
This judgment is of no help to the present appellant. On the contrary it helps the respondent. 240 days is not a magical bond which convert workers of the contractor into regular workmen of the principal employer. Work of 240 days or more than 240 days by the workers of the contractor have nothing to do with, the regularisation of their services with the principal employer. If such type of back door entrants are allowed, it will tantamount to [SECTION] and [SECTION] of the [ACT] for getting public employment. Things which cannot be done directly can never be done indirectly. The respondent is a public sector undertaking. For getting public employment, public at large must be given an opportunity to compete for the public post. Public advertisement is must. If these type of contractor's employees are allowed to be regularised, in the employment in public undertakings, they will get public posts, without advertisement.
13. In the case of [PRECEDENT] Hon'ble the Supreme Court has held as under:
"9. In view of the foregoing discussion, we have no option but to hold that if an appointment is made in infraction of the recruitment rules, the same would be violative of [SECTION] and [SECTION] of the [ACT] and being nullity would be liable to be cancelled. "
(emphasis supplied)
14. In the case of [PRECEDENT] Hon'ble the Supreme Court has held as under:
"13. Applying the test laid down by this Court in [ENTITY] (3) case and the cases referred to above, to the case at hand, there is no gainsaying that the appointments of the appellants as Primary Health Workers were totally illegal and violative of [SECTION] and [SECTION] of the [ACT] which guarantee equality of opportunity to all those who were otherwise eligible for such appointments. The Chief Medical Officer who had made the appointments was not vested with the power to do so nor were the claims of other candidates eligible for appointments against the posts to which the appellants were appointed, considered. Surprisingly, the appointments had come by way of absorption of the appellants who were working as Voluntary Health Workers on a monthly honorarium of Rs 50 only.
14. The High Court has, in our opinion, correctly held that there was no cadre of Voluntary Health Workers who were working on an honorarium in State-run dispensaries. The very nature of the appointment given to the appellants as Voluntary Health Workers was honorary in nature which entitled them to the payment of not more than Rs 50 per month. It is difficult to appreciate how the Chief Medical Officer could have regularised/absorbed such Voluntary Health Workers doing honorary service against the post of Primary Health Workers which carried a regular pay scale and which could be filled only in accordance with the procedure prescribed for that purpose. The appointment of the appellants against the said posts was thus manifestly illegal and wholly undeserved to say the least. Inasmuch as these appointments came to be cancelled pursuant to the said directions no matter nearly a decade and a half later the termination could not be said to be illegal so as to warrant interference of a writ court for reinstatement of those illegally appointed. The High Court was, in that view of the matter, justified in declining interference with the order of cancellation and dismissing the writ petitions."
(emphasis supplied)
15. In the case of [PRECEDENT] Hon'ble the Supreme Court has held as under:
"10. The order of appointment, in the present case, is as follows:
"In the light of the order passed by the Inspector General of Police, Criminal Investigation Department, Bihar, Patna, vide his Letter No. 6/86 F3 Shri [ENTITY], s/o Shri [ENTITY] of Village Haraji, PO Haraji, PS Dimbara, District Chhapra was appointed as Constable temporarily from 14-1-[SECTION]88 afternoon on the condition that his previous character found satisfactory and as and when necessary, his service shall be terminated without assigning any reason or show cause. His pay scale shall be Rs 425-10,565 EB-10-605 with the basic pay of Rs
425. He has been allotted CT No. 390."
It is clear from the above order that the appointment has been given only on the asking of the Inspector General of Police. There is nothing to show that any advertisement was issued giving opportunity to all eligible candidates to compete or any selection process was undertaken before appointment of the respondent.
11. In [PRECEDENT], it was observed as under:
(SCC pp. 451-52, paras 35-36) "Appointment/employment without advertisement
35. At one time this Court had been of the view that calling the names from employment exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, came to the conclusion that 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.
Even if the names of candidates are requisitioned from employment exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in radio and television as merely calling the names from the employment exchange does not meet the requirement of the said article of the [ACT]. ([PRECEDENT]., [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT].)
36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the noticeboard, etc. that will not meet the requirement of [SECTION] and [SECTION] of the [ACT]. Such a course violates the mandates of [SECTION] and [SECTION] of the [ACT] as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in [SECTION] requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit."
12. No contrary view of this Court has been cited on behalf of the respondent. Moreover, another Division Bench of the same High Court has upheld termination in similar matter as noted earlier against which SLP has been dismissed by this Court as mentioned earlier.
13. Accordingly, it has to be held that in the absence of any advertisement or selection process, the appointment of the respondent is not protected and could be validly terminated. The learned Single Judge was justified in dismissing the writ petition while the Division Bench erred in interfering with the same."
(emphasis supplied)
[SECTION]. In the case of [PRECEDENT] Hon'ble the Supreme Court has held as under:
"6. [SECTION] of the [ACT] provides for equality of opportunity. It forms the cornerstone of our [ACT].
7. In [PRECEDENT], the doctrine of basic features has been explained by this Court as under: (SCC p. 108, para 141) "141. The doctrine of basic structure contemplates that there are certain parts or aspects of the [ACT] including [SECTION], [SECTION] read with [SECTION] and [SECTION] which constitute the core values which if allowed to be abrogated would change completely the nature of the [ACT]. Exclusion of fundamental rights would result in nullification of the basic structure doctrine, the object of which is to protect basic features of the [ACT] as indicated by the synoptic view of the rights in [SECTION]."
8. As [SECTION] is an integral part of our system, each and every State action is to be tested on the touchstone of equality. Any appointment made in violation of mandate of [SECTION] and [SECTION] of the [ACT] is not only irregular but also illegal and cannot be sustained in view of the judgments rendered by this Court in [PRECEDENT]., [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT].
xxx xxx xxx
11. In [PRECEDENT] this Court held: (SCC p. 490, para 12) "12. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial, through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under [SECTION] of the [ACT]."
(emphasis supplied)
12. The principles to be adopted in the matter of public appointments have been formulated by this Court in M.P. State Coop. Bank Ltd. v. Nanuram Yadav as under: (SCC pp. 274-75, para 24) "(1) The appointments made without following the appropriate procedure under the rules/government circulars and without advertisement or inviting applications from the open market would amount to breach of [SECTION] and [SECTION] of the [ACT]. (2) Regularisation cannot be a mode of appointment. (3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation.
(4) Those who come by back door should go through that door. (5) No regularisation is permissible in exercise of the statutory power conferred under [SECTION] of the [ACT] if the appointments have been made in contravention of the statutory rules.
(6) The court should not exercise its jurisdiction on misplaced sympathy.
(7) If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection.
(8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside."
13. A similar view has been reiterated by the [ACT] Bench of this Court in State of Karnataka v. [ENTITY] (3), observing that any appointment made in violation of the statutory rules as also in violation of [SECTION] and [SECTION] of the [ACT] would be a nullity. "Adherence to [SECTION] and [SECTION] of the [ACT] is a must in the process of public employment." The Court further rejected the prayer that ad hoc appointees working for long be considered for regularisation as such a course only encourages the State to flout its own rules and would confer undue benefits on some at the cost of many waiting to compete."
(emphasis supplied)
17. In view of the aforesaid decisions, without there being any public advertisement and without giving an opportunity to the public at large to compete for the post in question, no public employment could have been given to anyone. If the contractor's employees are regularised into the services of the public sector, it will tantamount to regularisation of services, of back door entrants without there being any public advertisement. These aspects of the matters have been properly appreciated by the learned Single Judge while deciding the writ petition being [CASE NUMBER] dated 30 th March, 2015.
18. There is no substance in this Letters Patent Appeal and accordingly this Letters Patent Appeal is, hereby, dismissed with a cost of Rs.15000/- (rupees fifteen thousand) which will be deposited by the appellant (original petitioner) before the Secretary, Department of Women & Child Development and Social Welfare, Government of Jharkhand, Ranchi towards Juvenile Justice Fund. This amount will be deposited in the Bank Account No.3734498462-5, Jharkhand Juvenile Justice Fund, State Bank of India, Project Bhawan, Hatia, Ranchi, either by cheque or bank draft, within a period of six weeks from today. This amount shall be utilised for the welfare of the juveniles, as per the duties assigned to the State under the [ACT].
[SECTION]. Copy of this order will be sent to:
(a) the Secretary, Department of Women & Child Development and Social Welfare, Government of Jharkhand, Ranchi;
(b) the Member Secretary, Jharkhand State Legal Services Authority, Nyay Sadan, Doranda, Ranchi.
20. This Letters Patent Appeal is, hereby, dismissed with cost.
([ENTITY], A.C.J.) ([ENTITY], J.) [ENTITY]