In a recent judgement of the Supreme Court dated 02-7-2015, it
was held that contractual employees cannot seek regularization with
retrospective effect when regularisation policy was not in vogue
Facts of the case: The appellants were initially engaged on
the post of Assistant Manager (Civil) by the respondent No.1–Greater Noida Industrial
Development Authority on contractual basis for a period of 89 days. Initial
appointments of the appellants were not made against any sanctioned posts.
However, their engagement continued from time to time, and the
appellants have been continuously working on the said post. On 20.11.2002, the
respondent authorities published an advertisement for engagement to the posts
of Assistant Manager (Civil). The appellants and similarly situated persons who
have been engaged on contractual basis filed a Writ seeking for a writ of
mandamus directing the respondent-authorities to regularise their services on
the post of Assistant Manager (Civil) and to quash the aforesaid advertisement
dated 20.11.2002. The appellants contended that as they were working
continuously, the respondent authorities instead of issuing a fresh
advertisement should have regularised their services on the said post. By the
judgment dated 28.09.2005, the learned Single Judge allowed the Writ Petition
and quashed the advertisement dated 20.11.2002 and directed the respondent-authorities
to consider the claim of the appellants for regularisation of their services on
the existing vacancies which were directed to be filled up from the existing contractual
employees as per the Regulation/Rules and fresh advertisement could be issued
inviting applications from the general candidates only for remaining vacancies.
Challenging the order of the learned single Judge, respondent authorities filed
Special Appeal before the Division Bench.
Pending adjudication of Writ Petition before the single
Judge, a scheme for regularization of the contractual employees was formulated wherein
a policy was framed regarding regularization of 27 contractual employees who
had been engaged initially for a period of 89 days and continued thereafter.
The State Government, vide its letter dated 05.03.2008, approved the policy
formulated by respondent No.1 for regularization of contractual employees. Pursuant
to the policy decision, the appellants and other similarly situated contractual
employees were appointed on the post of Assistant Manager (Civil) vide appointment
orders dated 06.08.2010.
After joining the said post, the appellants filed a Claim
Petition No. 174 of 2011 before the State Public Services Tribunal, Lucknow
praying for regularization of their services from the date of existence of vacancies,
that is 20.11.2002, the date on which the advertisement was issued, for
appointment to the post of Assistant Manager (Civil) and with all consequential
benefits. The tribunal, vide its judgment dated 23.06.2011, allowed the Claim
Petition and directed the authorities to consider the appellants’ claim for
regularization of their services on the existing vacancies with effect from 20.11.2002.
Aggrieved by the order of the tribunal, the respondent authorities preferred a
writ being Writ Petition
before the High Court. The High Court, vide judgment dated
29.10.2013 relying on the
Constitution Bench decision of this Court in Uma Devi’s case
(supra) allowed the Writ Petition filed by the respondent authorities and
quashed the order dated 23.06.2011 passed by the tribunal granting benefits to the
appellants with retrospective effect. Additionally, the High Court also quashed
the appointments of the appellants dated 06.08.2010 as ex-facie illegal and
directed the authorities to initiate proceedings in respect of illegal
appointments which were made in violation of Articles 14 and 16 of the
Constitution ofIndia.
After considering the facts of the case Supreme Court held
that the Division Bench was not right in setting aside the appointment of the
appellants particularly when nobody challenged the appointment of the
appellants. Since the appointment of the appellants were made pursuant to the
policy of regularization, the High Court was not right in quashing the
appointment of the appellants as the same were never in question before the
High Court. The plea that was raised by the appellants was only to seek regularization
with retrospective effect from 20.11.2002 and the consequential seniority.
The SC further held that the appellants were appointed on
the post of Assistant Manager (Civil) only pursuant to the policy decision of
the respondents for regularisation of contractual employees and thus, the appellants
cannot seek for regularization with retrospective effect from 20.11.2002, that
is when the advertisement was issued, because at that time regularisation
policy was not in vogue. By policy of regularisation, it was intended to give
the benefit only from the date of appointment. The Court cannot read anything
into the policy decision which is plain and unambiguous. Having accepted the
appointment orders dated 6.08.2010 and also joined the post, the appellants
cannot turn round and claim regularisation with retrospective effect.
With this, the judgment of the High Court quashing the appointment
of the appellants vide appointment order dated 06.08.2010 was set aside. Also the
appellants’ plea for regularization with retrospective effect was declined. [Reference:-
Supreme Court decision dated July 2, 2015 in CIVIL APPEAL NO. 4916 OF 2015 SURENDRA
KUMAR & ORS. …APPELLANT (S) V/S GREATER NOIDA INDUSTRIALnDEVELOPMENT
AUTHORITY & ORS. …RESPONDENT (S)]
