Regularisation of contractual employees
Priyanka Arora
(Querist) 06 May 2018
This query is : Resolved
is there any scope of regularisation of contractual doctors working on sanctioned posts for continuously eight years and initial appointment is made as per rules after going through open Competition?
Guest
(Expert) 06 May 2018
Of course, regularisation of employment is possible, if posts are of regular nature and not of short term duration, like in a time bound project.
The first method is by convincing the competent authority by personal pursuance on consideration of long satisfactory service of the doctor. That can be easy and economic method of getting your right without offending the management.
However, if the management is adamant not to regularise the doctors, the second method is legal trial through the competent court of law or the Tribunal, as the case may be, on the ground of exploitation of the talents of the doctors for an indefinite period. But still some quite experienced lawyer in service laws should be preferred to be consulted and the case be discussed threadbare based on all the service documents and the conditions of service, including the Recruitment Rules.
Priyanka Arora
(Querist) 06 May 2018
thank you for your response. we have given representation to our Government for regularisation us. And Government of Uttarakhand has brought a regularisation policy to regularise all the contractual employees working on sanctioned and have completed five years of service which has been quashed by High Court of Uttarakhand stating regularisation as unconstitutional and said that government can frame the regularization policy only once and thereby high court had granted relief to only one particular medical college where no regularisation has been made up till now as the said medical college came into existence after 2009. thereby learned single judge granted relief under the garb of one time measure exception described in 53 para of uma Devi judgement, which I think is really unfounded concept as he ignored the cut off date 10-04-2016
Priyanka Arora
(Querist) 06 May 2018
Can we go for appeal against this order?
Guest
(Expert) 06 May 2018
Your supplementary query reveals that you have not brought forward full facts of the case. Nowhere you have neither stated, who, including yourself, were the parties to the case and against whom the judgment was delivered and when decided. So, from where the question of your appeal crops up?
So, better discuss the whole issue with some local service laws experts by getting all the case related documents examined in detail by him.
R.Ramachandran
(Expert) 06 May 2018
You have to prefer an appeal against the High Court order in the Supreme Court, without wasting time. The appeal has to be preferred within 90 days from the date of the HC Order. The Supreme Court will go for summer vacation from May, 20, 2018. Therefore, please take urgent steps to file the Special Leave Petition in the Supreme Court.
Siddharth Jain
(Expert) 07 May 2018
The constitution of India under Article 136 vests the Supreme Court of India, the apex court of the country, with a special power to grant special leave, to appeal against any judgment or order or decree in any matter or cause, passed or made by any Court/tribunal in the territory of India. It is to be used in case any substantial constitutional question of law is involved, or gross injustice has been done.
So, you'll have to file a Special Leave Petition in Supreme Court against the said order, within 90 days of the said order of the High Court.
In case of delay, you'll have to file a separate application for condonation of delay.
For any other queries feel free to contact me at isidjain1@gmail.com
Regards,
Siddharth Jain, Advocate.
T. Kalaiselvan, Advocate
(Expert) 11 May 2018
the Supreme Court in the case of Umadevi (supra) has made categorical observations that no policy can be framed by the executive for regularization of contractual employees or casual employees inasmuch as public employment can only be done if there are vacancies in the sanctioned posts and duly qualified persons are appointed through an open recruitment process.
Regularisation cannot be a mode of recruitment. To accede to such a proposition would mean the introduction of the new head off appointment in defiance of rules or it might have an effect of setting nought the rules.
Regularisation vs. Permanence: Something that is irregular for want of compliance with one of the element in the process of selection which does not go at the root of the process can be regularised and that it alone can be regularised and granting permanence of employment is a totally different concept and cannot be equated with regularisation.
Right of Regularization with Court and Executive: Executive and the court in appropriate cases would have right to regularise an appointment made after following the due procedure in a scheme of public employment even though the non-fundamental process or procedure is not followed.
Continued Adhoc Appointment: Where a temporary or Adhoc appointment is continued for long the court presumes that there are a need and warrant for regular post.
Adhoc Appointment only in Contingency: The regular recruitment should be insisted upon, only in a contingency, an Adhoc appointment can be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointment to non-available posts should not be taken note of for regularisation. The cases directing regularisation have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment.
No automatic absorption for Temporary Employment: It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules.
It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment do not acquire any right. High Courts acting under article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme.
Dr J C Vashista
(Expert) 11 May 2018
Very well explained and advised by expert Mr. T. Kalaiselvan, nothing more to add.
R.Ramachandran
(Expert) 11 May 2018
Dear Mr. Kalaiselvan,
With due respect. Uma Devi (3) decision by Hon'ble Supreme Court is very categorical that there are two kinds of situations - (i) illegal appointments and (ii) irregular appointments. Illegal appointments are those which are made without there being sanctioned posts. This can never be regularised.
However, in the case of irregular appointments, where the appointments were made against sanctioned posts, but there being some procedural infringements, the same can be regularised. For this they have to formulate a policy of regularisation and regularise the persons accordingly.
In the instant case the querist has very categorially stated that they have been appointed on adhoc basis AGAINST SANCTIONED POSTS, AFTER FOLLOWING THE RULES, AND IN TOUGH COMPETITION. Therefore, the Uma Devi(3) decision will not come in the way of their regularisation.
T. Kalaiselvan, Advocate
(Expert) 11 May 2018
Expert Mr. Ramachandran, with due respects to your esteemed opinion about my comment/opinions, the querist, as you said was appointed on adhoc basis, therefore it can be construed that it was not a regular appointment. The dictionary meaning of adhoc is "created or done for a particular purpose as necessary".
I dont know if the referred case may be applicable to his situation or not but it was just a referral.
He was appointed on a contract basis only. Regularisation of contractual employment cannot be claimed as a right.
There are various citations about this by supreme court.
However we have to look for some loophole so that the querist is benefited especially after having put eight years of continuous service.
The querist is advised to take the assistance of a local service law practising advocate on all such further issues by which he may expect to get some relief or remedy to his cause of concern.
Priyanka Arora
(Querist) 19 May 2018
The issue is that in year 2016 govt of Uttarakhand has framed a regularisation policy for regularising all those contractual employees who have been working for more than Five years on sanctioned posts and have requisite qualifications and eligibility as mentioned in service rules. but that policy is challenged in high court on the ground that government can frame regularisation policy only once as mentioned in Uma Devi para 53 . after framing policy in 2011 , govt is now denuded to again regularise it's employees
Priyanka Arora
(Querist) 19 May 2018
The issue is that in year 2016 govt of Uttarakhand has framed a regularisation policy for regularising all those contractual employees who have been working for more than Five years on sanctioned posts and have requisite qualifications and eligibility as mentioned in service rules. but that policy is challenged in high court on the ground that government can frame regularisation policy only once as mentioned in Uma Devi para 53 . after framing policy in 2011 , govt is now denuded to again regularise it's employees
Priyanka Arora
(Querist) 19 May 2018
The issue is that in year 2016 govt of Uttarakhand has framed a regularisation policy for regularising all those contractual employees who have been working for more than Five years on sanctioned posts and have requisite qualifications and eligibility as mentioned in service rules. but that policy is challenged in high court on the ground that government can frame regularisation policy only once as mentioned in Uma Devi para 53 . after framing policy in 2011 , govt is now denuded to again regularise it's employees
Priyanka Arora
(Querist) 19 May 2018
Not only that bench of single judge granted relief to those departments where regularisation has not been done so far. According to my knowledge one time measure is a mere exception to irregular appointments which continued for 10 years before or on 10-04-2006. But here single judge has granted relief to the employees working in that medical college which itself came into existence after 2009, 3 years after pronouncement of Uma Devi judgement.
Priyanka Arora
(Querist) 19 May 2018
Now the repercussions of the above passed order by single judge is that all those departments which came into existence after 2009 or where no regularisation has been done so far are independently regularising their employees thinking as if regularisation is the power given to govt under 309 to use for once only for a particular department. What should we do now? It is a complete misinterpretation of Uma Devi judgement.
K Rajasekharan
(Expert) 24 May 2018
Uma Devi case, issued by a constitutional bench of the Supreme Court, categorically states that every regularisation of provisionally appointed persons, however long they served in service, is an unacceptable backdoor appointment and therefore unconstitutional in nature.
It provided a deadline of six months since 10th April 2006 to initiate regularisation of employees where there was a post and the appointment was done by some due processes mainly because there were twists and turns in the judgements of various courts on such regularisation prior to that.
After the six month’s deadline, no department or government was expected to regularise provisionally appointed employees. But many executive and judicial authorities including high courts are ignoring the plain declaration of the unconstitutional nature of regularisation of provisional hands and helping such backdoor appointments, in violation of the well settled constitutional principles and judicial practices.
Ms.Usha Kapoor
(Expert) 05 June 2018
If their posts are permanent theycan claim reguarization.
Yes if the post is permanent you may claim a regular employment.
Recent judgment in LIC case has set principles for such regularisation.
You can approach department for regularisation.
On refusal you may challenge such order in Court
Please click Madras Highcourt decision link
https://indiankanoon.org/doc/1638121/
claim regularisation, thus there is no scope of regularisation unless the appointment was on regular basis.
H. Termination in accordance with the terms and conditions of the appointment letter is proper The Apex Court in
Municipal Council, Samrala v. Raj Kumar49, upheld the termination of services of a temporary employee notwithstanding
the fact that the appointment was not for a fixed period and was continued repeatedly.
Similarly in Municipal Council, Samrala v. Sukhwinder Kaur50, it was observed:
7. The respondent, within a span of about 18 months, was appointed thrice and disengaged thrice. As noticed
hereinbefore, she was appointed on a contractual basis. The appointments were temporary ones. She was aware that
her services could be terminated without notice. She accepted the terms and conditions of the said offers of
appointments without any demur.
9. Although there was no fixed period of contract of employment between the employer and the workman concerned
and thus, no question of its renewal on its expiry, but there existed a stipulation in the contract that the Executive Officer
has the power to dismiss her without issuing any notice. (emphasis supplied)
In Vidyavardhaka Sangha v. Y.D. Deshpande51 and State of Rajasthan v. Sarjeet Singh52, continuance despite the
expiry of contract period was held not to be sufficient to confer right to regularisation. In State of Punjab v. Supreet
Rajpal53, the Apex Court set aside the order of the High Court of regularisation dehors the terms and conditions of the
appointment letter and remitted the matter for fresh adjudication.
In Chanchal Goyal (Dr.)54, it was observed that unless the initial recruitment is regularised through a prescribed
agency, there is no scope for a demand for regularisation. In this case it was clearly stipulated in the initial order of
appointment that the workman was required to make room once a candidate selected by the Service Commission was
available, the non-joining of the said candidate was held to be immaterial on the grounds that the appointment itself was
subject to the condition of availability of duly selected candidate, therefore when one candidate did not join, the next in
list would have taken his place. (Also see Gurbachan Lal55, SBI v. Mahatma Mishra56, Karnataka Handloom
Development Corpn. Ltd. v. Mahadeva Laxman Raval57 and Institute of Management Development v. Pushpa
Srivastava58.)
I. Regularisation does not mean conferring permanence Regularisation does not connote conferring permanence
and is meant to cure defects attributable to methodology involved in making the appointments or to condone the
procedural irregularities and judicial process cannot become a mode of making appointments. In R.N. Nanjundappa v. T.
Thimmiah59, the Court explained:
26. … If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution
illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province
of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the
appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to
introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules.
(emphasis supplied)
Also see observations in Umadevi (3) 60 (SCC pp. 24-25, para 16):
16. In B.N. Nagarajan v. State of Karnataka61 this Court clearly held that the words “regular― or “regularisation― do not
connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are
terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to
methodology followed in making the appointments. … We have, therefore, to keep this distinction in mind and proceed on
the basis that only something that is irregular for want of compliance with one of the elements in the process of selection
which does not go to the root of the process, can be regularised and that it alone can be regularised and granting
permanence of employment is a totally different concept and cannot be equated with regularisation. (emphasis supplied)
If a contractual employee puts in long service against a temporary vacancy his services should be regularized. IN this case the contractual employee after putting in some length of service cleared the written test and Interview. I plead his regularization on par with permanent employees.
Guest
(Expert) 05 June 2018
Wasteful efforts of the expert just to complicate the issue! It seems the case law has been referred by the expert without properly going through that and without understanding the crux of the problem. Age old judgment (1992) of 26 years old that too under Industrial Disputes Act applicable on workmen, particularly with reference to the Badli, Temporary and Part time Workmen, is quite irrelevant in this case.
Every case law cannot be made applicable on each type of problem.
