NEW
DELHI, JUNE 13, 2006 : THE issue
pertaining to the right of temporary government employees for regular appointment
was settled by the Constitution Bench of Apex Court in a landmark
judgment reported in 2006-HRIOL-07-SC-SERVICE wherein
it was held that temporary employees have no permanency rights. In the
said case, after going through elaborate arguments and analysis thereof, the
Supreme Court held that unless the appointment is in terms of relevant
rules and after a proper competition among qualified persons, the same would
not confer any right on the appointee. It was also held therein that any public
employment has to be in terms of the constitutional scheme. A detailed write
up on the said judgment was carried in the News
N Views Section.
Another similar issue came under the scanner of the Hon'ble Apex Court. This
time around, the Appellant is a public sector undertaking. A policy decision
was taken by the Appellant not to recruit any one in their Marketing Division.
Despite such ban, appointments on contractual basis were made, apparently
at the instance of two officers of the Appellant. Before such appointment the
employment exchange was not intimated about the vacancy in terms of the
provisions of Employment Exchange (Compulsory Notification of Vacancies) Act,
1959. No advertisement for the vacancy was also issued . Writ
Petitions were filed by 52 employees before several High Courts praying for
regularization of their services. Different views were expressed by
different High Courts. The writ petitions filed by S/Shri Somvir Singh, Hansraj
Benewal, Malkiat Singh, Ranjit Singh were allowed directing the Appellant to
regularise the said Respondents and pay them all monetary benefits in terms
of the appointment letters. Aggrieved with the said Order of the High Court,
the public sector undertaking took recourse to the Apex Court.
The
Learned Counsel for the Appellant submitted that the matter relating to regularisation
of services recruited on ad hoc basis is no longer res integra in view of
the recent Constitution Bench decision of the Supreme Court in Secretary,
State of Karnataka and Others vs. Umadevi and Others [2006 (4) SCALE 197]
= [ 2006-HRIOL-07-SC-SERVICE ].
The Learned Counsel for the Respondents, on the other hand, submitted that
the appointments of the Respondents may be irregular but not illegal and view
of the same, the impugned judgments need not be interfered with.
After a detailed examination of the issue, Hon'ble Apex Court interalia held
that
++ The Respondents herein were appointed only on applications made by them.
Admittedly, no advertisement was issued in a newspaper nor the employment exchange
was notified as regard existence of vacancies.
++ When Recruitment Rules are made, the employer would be bound to comply with
the same.
++
Any appointment in violation of such Rules would render them as nullities.
++ It is also well-settled that no recruitment should be permitted to be
made through backdoor .
The
order of ban suggests that if any appointment was to be made due to exigencies
of work, the approval of the Director (Finance) or Managing Director was
to be obtained and the paper routed in respect thereof should be through
the corporate office.
++
The Respondents contend that as at the point of time the Managing Director had
been placed under suspension, the file was placed before the General Manager
(Marketing). The said plea cannot be accepted for more than one reason. If
the regular incumbent or the Managing Director was placed under suspension,
somebody else must be incharge of the said post . Furthermore, the file
be placed before the Director (Finance). The General Manager by no stretch of
imagination could accord approval for appointment.
++
Regularisation is not a mode of appointment . If appointment is made
without following the Rules, the same being a nullity the question of confirmation
of an employee upon the expiry of the purported period of probation would not
arise.
++
The contention of the learned counsel appearing on behalf of the Respondents
that the appointments were irregular and not illegal, cannot be accepted for
more than one reason. They were appointed only on the basis of their applications.
The Recruitment Rules were not followed. Even the Selection Committee had not
been properly constituted. In view of the ban in employment, no recruitment
was permissible in law. The reservation policy adopted by the Appellant had
not been maintained. Even cases of minorities had not been given due consideration.
++It is true that the Respondents had been working for a long time. It may also
be true that they had not been paid wages on a regular scale of pay. But, they
did not hold any post. They were, therefore, not entitled to be paid salary
on a regular scale or pay. Furthermore, only because the Respondents have worked
for some time, the same by itself would not be a ground for directing regularisation
of their services in view of the decision of this Court in Uma Devi (supra).
++The appointments of the Respondents are illegal. They do not, thus, have any
legal right to continue in service.
Before parting :
Though the four respondents were directed to be relieved of their posts the said judgment also had a silver lining
to the dark clouds. The Hon'ble Apex Court was considerate enough to
observe that their cases may be considered for future appointment and age bar,
and age bar, if any, in view of the policy decision of the Appellant itself
may be relaxed to the extent they had worked. With an eye to avoid further
litigation, Apex Court also held that the salary or any remuneration paid to
them, however, may not be recovered.. May be the Appellant will consider
the Respondents for appointment, if the need so arises!!! Or is it a case of
hoping against hope for the Respondents!!! Only time will tell.
(See
2006-HRIOL-11-SC-Service )
