Lok Pal Singh, J
1. Since common question of law and fact is involved in the aforementioned writ petitions, therefore, the same are taken up together and are being
decided by this common judgment for the sake of brevity and convenience.
2) Writ petition no. 4359 (S/S) of 2018 shall be the leading case.
3) Brief facts of the case are that petitioners in response to an advertisement issued by respondent no. 2 for filing up the posts of Group ‘A’ and
‘B’ on contractual basis applied for the post of Office Assistant (N.S.). The essential qualification for said post was (i) a degree from
recognized University (ii) proficiency in computer application and (iii) Data Entry Speed Test (DEST) at 8000 key depression per hour on computer.
Apart from the aforesaid, the respondent no. 2 had further sought for 5 years experience in this field in a reputed organization. The salary provided
was Rs.26,000/- per month (consolidated basis). The selection process included a written test. The petitioners appeared in the written test and also
appeared for interview. After the written test and interview result was declared on 30.01.2015, petitioners’ name appeared at sl. No. 14, serial no.
10 and serial no. 22 respectively. Petitioners then joined on the post of Office Assistant (NS) in January / February, 2015. The Assistant Secretary,
Ministry of Health and Family Welfare vide his communication dated 28.08.2018 has provided that the Department Related Standing Committee on
Health and Family Welfare reviewed the progress of AIIMS (including the respondent no. 2 herein) on 28.08.2018 and asked the respondent no. 2 to
provide details as to what preference can be extended to contractual staff in regular recruitment and whether they can be regularized. Petitioners
have not been able to procure the response of respondent no. 2 on the said query / questionnaire of the respondent no. 1.
4) Advertisement has now been issued in the month of September 2018, wherein respondent no. 2 again has advertised the post of Office Assistant
(N.S.), wherein again the minimum age has been kept as 21-30 years, while the salary provided for the said post has been fixed as Level 6 (Rs.35400
â€" Rs.112400), Rs. 9300-34800 with Grade Pay of Rs.4200/- (Group B). It is stated in the writ petition that as of now total sanctioned posts of Office
Assistant (N.S.) in the department as per departmental structure are 58 and there is availability of work for all 58 posts on which there are 32 regular
incumbents and as such there are still 26 posts vacant against which the petitioners can be regularized. It is also stated in the writ petition that in
consideration of the petitioners’ efficient and satisfactory services, the salary of the petitioners has undergone upgradation by the respondent no. 2
from time to time. The original consolidated salary of Rs.26,000/- was first enhanced w.e.f. April 2016 to Rs.34,500/- and subsequently again w.e.f.
April 2017, the salary of the petitioners has again been enhanced to Rs.37,950/-.
5) It is stated that respondent no. 2 and 3 in every 11 months issues extension of service of the petitioners with an artificial break of only one or two
days. However, the said deliberate attempt would not overshadow the petitioners’ continuous, efficient services for about 4 years which have
been acknowledged by respondents by providing financial upgradation to the petitioners. It is alleged that the work and duties and length of working
hours of the petitioners are identical to that of regular incumbent and they perform various duties of the respondent no. 2, therefore, petitioners are
entitled for minimum salary as paid to regular incumbents on the principle of equal pay for equal work.
6) It is further alleged in the writ petition that respondents are deliberately not extending the contracts of certain employees, while at the same time
they are recruiting new incumbents on the selfsame posts by way of outsourcing. It is settled law that contractual employees cannot be replaced by
contractual employees and Director, AIIMS Rishikesh, is replacing such employees, who have been engaged after due written examination and
interview, by such employees of outsourcing only by interview, which cannot be said to be justified.
7) It is also alleged that the petitioners have now not been issued an extension letter for the month of December onwards, however, the petitioners are
regularly discharging their duties and functions as Office Assistant (N.S.) without any default on their part. The petitioners are under constant threat
that their services can be discontinued from any date. It is also stated that petitioners apprehending any coercive measures like termination of their
services have already represented to the respondents to regularize their services vide their representation dated 18.12.2018. Lastly, it is alleged that
despite several representations made before the authority concerned from time to time for regularizing the services of the petitioners and for grant of
benefit of equal pay for equal work, the respondents have not paid any heed till now.
8) It is stated in the writ petition that till 19.12.2018 the petitioners’ bio-metric attendance was duly recorded in the respondent no. 2 Institute.
Thereafter, the petitioners, including petitioners of connected writ petitions, were orally directed on 21.12.2018 not to work after the said date and
have orally been made to understand that their services have been terminated. The petitioners have also not been paid salary for the period 01.12.2018
upto 19.12.2018 by the respondents while their bio-metric attendance is present with respondent no. 2 upto 19.12.2018. Hence, aforementioned writ
petitions.
9) Respondent nos. 2 and 3 filed their counter affidavit stating that AIIMS Rishikesh is an institute of National importance, constituted by an Act of
Parliament. It is also stated in the counter affidavit that the main controversy involved is whether the petitioners were appointed on sanctioned posts
on regular basis, or not? It is averred that although the petitioners were appointed on contractual basis but they have claimed that their services be
regularized, which is totally misconceived contention of the petitioners have no right accrue in their favour to seek regularization upon a post on which
they were appointed on contractual basis and that too for a fixed term of 11 months, which was extended after the expiry of duration specified.
Therefore, their engagement was only a contractual appointment and purely a ‘stop gap arrangement’. It was specifically mentioned in the
conditions of appointment, in the advertisement issued on 05.03.2014 that the said recruitment is purely on contractual basis and for a stipulated period.
It is also averred that petitioners accepted the terms and conditions of said offers of appointment without any demur. Denying the fact that the
services of the petitioners were discontinued by an oral order of Institute, it is averred that the petitioners have not approached the Court with clean
hands. The terms of the petitioners was extended for a period of 11 months, but after expiry of their respective terms on 30.11.2018, the term of
engagement of all petitioners came to an end and the contract was not renewed thereafter. There was no contractual requirement to give any notice
as term of contract ended automatically on stipulated and mutually agreed date, i.e., 31.11.2018. It is stated in the counter affidavit that the AIIMS
Rishikesh is working in tandem with governing laws and applicable rules and regulations of India.
10) It is further stated that as per the guidelines of PMO and DoPT, it has been emphasized that recruitment should be made on merit basis through
transparent, online process leading to less Government and more Governance. AIIMS Rishikesh is a Central Institute that has to obey DoPT rules
without any exception. Accordingly, AIIMS Rishikesh has already started regular appointments for various posts through written examination inline
with Central Government recruitment rules as per instructions of Ministry of Health & Family Welfare, Government of India. All posts which are
being filled by joining of successful candidates in such written exams on all India basis is causing culmination of services of related outsourced /
contractual staff.
11) Heard learned counsel for the parties and perused the documents available on record.
12) Learned counsel for the petitioner would urge that there are total 58 sanctioned posts of Office Assistant (N.S.) in the department, on which there
are 32 regular incumbents and 26 posts are still lying vacant. He would also urge that in 3 of the 26 vacant posts of Office Assistant (N.S.) the
services of the petitioners can be continued as per the condition in the advertisement that till the filing of the posts by regular candidates the
petitioners’ services would be continued. It is contended that the work and duties and length of working hours of the petitioners are quantitatively
and qualitatively same as regular incumbent and the petitioners perform various duties of the respondent no. 2, therefore, petitioners are entitled for
minimum salary as paid to regular incumbent on the principle of ‘Equal Pay for Equal Work’.
13) Learned counsel for the petitioners drew attention of this Court towards a judgment rendered by Hon’ble Apex Court in Sheo Narain Nagar
and others Vs State of Uttar Pradesh and another, (2018) 13 SCC 432 ,wherein the Hon’ble Supreme Court while interpreting the seminal
decision of Hon’ble Apex Court in the case of “State of Karnataka Vs Umadevi, (2006) 4 SCC 1, has observed thus:
“7. When we consider the prevailing scenario, it is painful to note that the decision in Umadevi (supra) has not been properly understood and rather
wrongly applied in various State Governments. We have called for the data in the instant case to ensure as to how many employees were working on
contract basis or ad hoc basis or daily-wage basis in different State departments. We can take judicial notice that widely aforesaid practice is being
continued. Though this Court has emphasized that incumbents should be appointed on regular basis as per rules but new devise of making appointment
on contract basis has been adopted, employment is offered on daily-wage basis etc. in exploitative forms. This situation was not envisaged by
Umadevi. The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the
available pay scale. That spirit of the Umadevi has been ignored and conveniently overlooked by various State Governments / authorities. We
regretfully make the observation that Umadevi has not been followed in its pith and substance. It is being used only as a tool for the regularizing the
services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Article 14, 16
read with Article 34(1)(d) of the Constitution of India as if they have no constitutional protection as envisaged in D.S. Nakara Vs Union of India,
(1983) SCC 305, from cradle to grave. In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in
old age they are going on to be destituted, there being no provision for pension, retrial benefits etc. There is clear contravention of constitutional
provisions and aspiration of downtrodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with
arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really
implement the ideology of Umadevi. Thus, the time has come to stop the situation where Umadevi can be permitted to be flouted, whereas, this Court
has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas Umadevi laid down that there
should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on
payment of paltry system on contract / ad hoc basis or otherwise. This kind of action is not permissible when we consider the pith and substance of
true spirit of Umadevi.â€
14) Per contra, learned Senior Counsel appearing on behalf of respondents Union of India would urge that there was a contractual right as regards the
condition of appointment applicable to the petitioners at the time they were engaged with respondent no. 2 Institute. He would further urge that
petitioners have no right to seek regularization upon a post on which they were appointed on contractual basis and that too for a fixed term of 11
months, which was extended after the expiry of term of 11 months. The engagement of the petitioners was only a contractual appointment and purely
a ‘stop gap arrangement’. The conditions of appointment provided in the advertisement issued on 05.03.2014 clearly stipulates that the said
recruitment is purely on contractual basis and for a stipulated period. Petitioners themselves accepted the terms and conditions of said offers of
appointment without raising any objection at the relevant point of time. Learned Senior Counsel for the respondents would urge that the relationship
between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something
entirely different something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties.
15) To buttress his argument, learned Senior Counsel laid emphasis to the principle of law laid down by Hon’ble Apex Court in Renu and others
Vs District and Sessions Judge, Tis Hazari and another, (2014) 15 SCC 731. Relevant portion of Paragraph 7 of the said judgment is reproduced
hereunder:
“7. …We are unable to persuade ourselves to agree with the learned counsel for the petitioners that the petitioners may be permitted to join and
work for at least 89 days, the period for which they were appointed. It is trite law that unless an aggrieved party has an enforceable legal right under a
statute or rule, a mandamus cannot be issued to an authority to do something. It is hard to believe that the petitioners were not aware of the manner in
which they were selected and appointed within a span of a few days……â€
(emphasis supplied)
16) Learned counsel for the petitioners would submit that the respondent authorities be directed to consider engaging the petitioners in case there is
requirement, till the posts are filled in accordance with law.
17) Indisputably, the petitioners were engaged on contractual basis for stipulated period which was extended from time to time, but the fact remains
that their appointment is purely on contractual basis. Further, no rules of regularization have been laid by the respondents.
Unless there is a policy for regularization, this Court is unable to issue directions to the respondents to regularize the services of the petitioners.
18) Article 14 of the Constitution of India gives a right to equal among equals, whereof Article 16 of the Constitution of India gives an equality of
opportunity in matters of public employment. Though, in the present case, contractual appointments were made by inviting applications from the
eligible candidates through advertisement, but for regular selection the requirement is that a full fledged advertisement should be published so that
every aspirant can apply against the posts advertised as per his / her eligibility. The same cannot be restricted to the petitioners by giving regularization
in absence of any rules made therefor. Thus, the petitioners are not entitled for regularization of their services. The petitioners were appointed on
contractual basis on fixed remuneration which has been enhanced by the respondents from time to time, but they cannot be treated / considered equal
to those who were regularly appointed in the department as the criteria of their appointment and the nature of the work assigned to them is entirely
different. Therefore, the petitioners are also not entitled for the same salary as paid to the regular employees on the principle of ‘Equal Pay for
Equal Work’.
19) In view of the foregoing discussion and having considered the dictum of Hon’ble Apex Court in the case of Renu and others Vs District and
Sessions Judge, Tis Hazari and another, (2014) 15 SCC 731, this Court is of the opinion that the petitioners are not entitled to the relief of
regularization of their services as they were engaged purely on contractual basis that too for a stipulated period.
20) Accordingly, the aforementioned writ petitions stand disposed of with the direction to respondent no. 2 to consider and grant age relaxation to
those petitioners who were otherwise eligible on the date of their induction on contractual appointment and they shall be granted age relaxation for the
period they have worked with respondent no. 2 Institute. However, it is made clear that no interference is being made in the ongoing recruitment
process. The petitioners would be at liberty to apply against the posts advertised for which the appointment process has already commenced by
respondent no. 2 as per their eligibility. In case, the petitioners apply against the posts on which they were earlier discharging their duties, the
respondents shall consider their candidature, as per Rules, and their candidature shall not be rejected for their being overage. Interim order dated
11.02.2019, passed in WPSS no. 4359 of 2018, stands vacated. No order as to costs.
