Karnataka High Court
Raamaakrishna S/O Venkappa Naik vs Karnataka Power Corporation Ltd on 24 September, 2024
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
-1-
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 24TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
WRIT PETITION NO.106025 OF 2023 (S-REG)
BETWEEN:
1. RAMAKRISHNA S/O. VENKAPPA NAIK,
AGE: 40 YEARS, OCC: STAFF NURSE,
R/O: K.H.E.P. HOSPITAL,
KARNATAKA HYDRO ELECTRIC PROJECT
AMBIKANAGAR, TQ: DANDELI,
DIST: UTTARA KANNADA,
R/O: QUARTER NO.18/2, 6TH TYPE
1ST COLONY, AMBIKANAGAR, DANDELI,
DIST: UTTARA KANNADA - 581 363.
2. TANUJA W/O. UMESH NAIK D/O. NARASIMHA NAIK,
AGE: 44 YEARS, OCC:STAFF NURSE,
R/O: K.H.E.P. HOSPITAL, KARNATAKA HYDRO
ELECTRIC PROJECT AMBIKANAGAR,
TQ: DANDELI, DIST: UTTARA KANNADA,
R/O: QUARTER NO.22/2, 6TH TYPE
1ST COLONY, AMBIKANAGAR, DANDELI
Digitally signed by
CHANDRASHEKAR
DIST: UTTARA KANNADA - 581 363.
LAXMAN
KATTIMANI
Location: High
Court of Karnataka
3. KAMALA D/O. SURESH NAIK W/O. ARUN NAIK,
AGE: 35 YEARS, OCC: STAFF NURSE,
R/O: K.H.E.P. HOSPITAL, GANESHGUDI,
TQ: DANDELI, DIST: UTTARA KANNADA,
R/O: QUARTER NO.16/1, 6TH TYPE,
1ST COLONY, AMBIKANAGAR, DANDELI,
DIST: UTTARA KANNADA - 581 363.
4. MANGALA D/O. DATTATREYA NAIK
W/O. RAVIRAJ NAIK,
AGE: 34 YEARS, OCC: STAFF NURSE,
R/O: K.H.E.P. HOSPITAL,
KARNATAKA HYDRO ELECTRIC PROJECT
AMBIKANAGAR, TQ: DANDELI,
DIST: UTTARA KANNADA,
-2-
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
R/O: QUARTER NO. 6/1, 6TH TYPE
1ST COLONY, AMBIKANAGAR, DANDELI
DIST: UTTARA KANNADA - 581 363.
5. VINAYA KINI D/O. SHASHIKANT KINI
W/O. SHAILESH SAMANT,
AGE: 41 YEARS, OCC:STAFF NURSE,
R/O: K.H.E.P. HOSPITAL, GANESHGUDI,
TQ: DANDELI, DIST: UTTARA KANNADA,
R/O: QUARTER NO. 24/1, 6TH TYPE
2ND CROSS, GANESHGUDI, DANDELI,
DIST: UTTARA KANNADA - 581 363.
6. MEENAKSHI W/O. MITHUN NETREKAR
D/O. ACHITRAPPA METRI,
AGE: 35 YEARS, OCC: STAFF NURSE,
R/O: K.H.E.P. HOSPITAL,
KARNATAKA HYDRO ELECTRIC PROJECT
AMBIKANAGAR, TQ: DANDELI,
DIST: UTTARA KANNADA,
R/O: QUARTER NO. 4/1, 6TH TYPE,
1ST COLONY, AMBIKANAGAR, DANDELI,
DIST: UTTARA KANNADA - 581 363.
7. SULAKSHA D/O. BABU MAHALSEKAR,
AGE: 41 YEARS, OCC:STAFF NURSE,
R/O: K.H.E.P. HOSPITAL, GANESHGUDI,
TQ: DANDELI, DIST: UTTARA KANNADA,
R/O: QUARTER NO. 7/13, 7TH TYPE,
5TH CROSS,GANESHGUDI, DANDELI,
DIST: UTTARA KANNADA - 581 363.
8. JYOTI PATTAN W/O. ARUN BABURAVKAR,
AGE: YEARS, OCC:STAFF NURSE,
R/O: K.H.E.P. HOSPITAL, GANESHGUDI,
TQ: DANDELI, DIST: UTTARA KANNADA,
R/O: QUARTER NO. 36/1, 6TH TYPE,
1ST LINE,GANESHGUDI, DANDELI
DIST: UTTARA KANNADA - 581 363.
...PETITIONERS
(BY SRI J.S.SHETTY, ADVOCATE)
AND:
1. KARNATAKA POWER CORPORATION LTD.,
HEAD OFFICE, NO. 82, SHAKTIBHAVAN
RACE COURSE ROAD, BENGALURU - 560 001,
BY ITS MANAGING DIRECTOR.
-3-
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
2. DIRECTOR (HR) KPCL,
HEAD OFFICE, NO.82 SHAKTIBHAVAN
RACE COURSE ROAD, BENGALURU - 560 001.
3. ASSISTANT GENERAL MANAGER,
(HRD) A, KPCL, AMBIKANAGAR, DANDELI,
DIST: UTTARA KANNADA - 581 363.
4. MEDICAL OFFICER,
K.H.E.P. HOSPITAL,
AMBIKANAGAR AND INCHARGE MEDICAL
OFFICER OF K.H.E.P. HOSPITAL,
GANESH GUDI AND KADRA
KARNATAKA POWER CORPORATION LTD.,
AMBIKANAGAR, DANDELI,
DIST: UTTARA KANNADA - 581 363.
5. SRI RAJU,
ASSISTANT GENERAL MANAGER,
HRD, A, KPCL, AMBIKANAGAR,
DANDELI, DIST: UTTARA KANNADA-581 363.
6. ANAND MURAGANUR,
AGE: MAJOR, OCC: STAFF NURSE,
R/O: AMBIKANAGAR, DANDELI,
DIST: UTTARA KANNADA - 581 363.
7. SHWETA ANIL KANCHARKAR,
AGE: MAJOR, OCC: STAFF NURSE,
R/O: AMBIKANAGAR, DANDELI,
DIST: UTTARA KANNADA-581 363.
8. KAVITA PARASHURAM GOUDA,
AGE: MAJOR, OCC: STAFF NURSE,
R/O: AMBIKANAGAR, DANDELI,
DIST: UTTARA KANNADA-581 363.
9. ARUN S. RANE,
AGE: MAJOR, OCC: STAFF NURSE,
R/O: AMBIKANAGAR, DANDELI,
DIST: UTTARA KANNADA-581 363.
10. ANITA UDAY NAYAK,
AGE: MAJOR, OCC: STAFF NURSE,
R/O: AMBIKANAGAR, DANDELI,
DIST: UTTARA KANNADA-581 363.
11. MAMATA SANDIP GOUDA,
AGE: MAJOR, OCC: STAFF NURSE,
R/O: AMBIKANAGAR, DANDELI,
-4-
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
DIST: UTTARA KANNADA-581 363.
12. VINITA VAZ,
AGE: MAJOR, OCC: STAFF NURSE,
R/O: AMBIKANAGAR, DANDELI,
DIST: UTTARA KANNADA-581 363.
13. KEERTI T. NAIK,
AGE: MAJOR, OCC: STAFF NURSE,
R/O: AMBIKANAGAR, DANDELI,
DIST: UTTARA KANNADA-581 363.
14. BHAVANA V.V.,
AGE: MAJOR, OCC: STAFF NURSE,
R/O: AMBIKANAGAR, DANDELI,
DIST: UTTARA KANNADA-581 363.
15. SHASHIKALA GAJANAN NAIK,
AGE: MAJOR, OCC: STAFF NURSE,
R/O: AMBIKANAGAR, DANDELI,
DIST: UTTARA KANNADA-581 363.
16. RAVIKUMAR,
AGE: MAJOR, OCC: STAFF NURSE,
R/O: AMBIKANAGAR, DANDELI,
DIST: UTTARA KANNADA-581 363.
17. ANJALI NETREKAR,
AGE: MAJOR, OCC: STAFF NURSE,
R/O: AMBIKANAGAR, DANDELI,
DIST: UTTARA KANNADA-581 363.
18. NEETA NILEKANI,
AGE: MAJOR, OCC: STAFF NURSE,
R/O: AMBIKANAGAR, DANDELI,
DIST: UTTARA KANNADA-581 363.
19. SARITA NARAYAN MADAR,
AGE: MAJOR, OCC: STAFF NURSE,
R/O: AMBIKANAGAR, DANDELI,
DIST: UTTARA KANNADA-581 363.
20. CHIEF ENGINEER,
KARNATAKA POWER CORPORATION LTD.,
AMBIKA NAGAR, DANDELI,
DIST: UTTARA KANNADA-581 363.
...RESPONDENTS
(BY SRI PRAMOD NAIR, SENIOR COUNSEL FOR
SRI MRTYUNJAYA S. HALLIKER, ADVOCATE FOR R1 TO R5 AND R20;
-5-
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
SRI PRAVEEN P. TARIKAR, ADVOCATE FOR R9, R10, R13 AND R14;
R6, R7 AND R12 ARE HELD SUFFICIENT;
R8, R11, R15, R16, R17 R18, R19 ARE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH SELECTION
LIST PUBLISHED BY RESPONDENT NO.2DIRECTOR (HR), NO.A.P.C
1678, DATED 25/2709-2023 FOR POST OF STAFF NURSE OF KHEP,
HOSPITAL, AMBIKANAGAR, GANESHGUDI AND KADRA ON
TEMPORARY CONTRACTUAL BASIS FOR 11 MONTHS AND TO DIRECT
RESPONDENTS NO.1 TO 4 AUTHORITIES TO CONTINUE SERVICE OF
PETITIONERS TILL REGULAR APPOINTMENT HAS BEEN MADE TO
SAID POST HELD BY PETITIONERS AND ALSO TO DIRECT
RESPONDENTS AUTHORITIES TO MAKE APPROPRIATE RULES FOR
ABSORPTION OR GIVE WEIGHTAGE MARKS AND AGE RELAXATION
FOR THE SERVICE RENDERED BY THE PETITIONERS IN THE SAID
HOSPITALS, BY CONSIDERING THE REPRESENTATION DATED
01.10.2023, MADE BY THE PETITIONERS TO THE FIRST
RESPONDENT. FURTHER TO DIRECT THE RESPONDENTS
REGULARIZE THE SERVICE OF PETITIONER AND ALSO TO GRANT ALL
THE CONSEQUENTIAL RELIEF IN FAVOUR OF THE PETITIONERS AND
ETC., IN THE INTEREST OF JUSTICE AND EQUITY.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 19.09.2024 COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY THE COURT, MADE THE FOLLOWING:
-6-
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
CAV ORDER
Challenging Selection List dated 25/27.09.2023 issued by
respondent no.2 at Annexure-A; and seeking for direction to
respondents no.1 to 4 to continue service of petitioners till
regular appointments are made to posts held by them; for
directing respondents to frame rules for absorption or give
weightage marks/age relaxation for service rendered by
petitioners, by considering their representation to respondent
no.1 at Annexure-P dated 01.10.2023 and for direction to
regularize service of petitioners, grant all consequential reliefs
etc., this writ petition is filed.
2. Sri J.S.Shetty, learned counsel for petitioners
submitted, petitioners no.1, 2, 4 and 6 were working as nurses
in K.H.E.P. Hospital, Ambikanagar, while petitioners no.3, 5, 7
and 8 as staff nurses in K.H.E.P. Hospital, Ganeshgudi. It was
submitted, though their appointment was
temporary/contractual basis for a period of 11 months, but they
continued till date. It was submitted, petitioner no.1 appointed
on 13.08.2015 had more than 8 and half years experience;
while petitioner no.2 appointed on 10.12.2018 had completed 5
years. Similarly petitioner no.3 appointed on 25.07.2015
-7-
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
completed 7 and half years, petitioner no.4 appointed on
11.12.2018 had put in 6 years, petitioner no.5 appointed on
29.12.2019 completed 4 years, petitioner no.6 appointed on
12.12.2018 completed 5 years and petitioner no.8 appointed on
29.12.2019 completed 4 years of service. It was submitted,
same was without any change in service conditions. It was
submitted, prior to said appointment, they had worked in other
hospitals.
3. It was submitted, petitioners had worked tirelessly
during prevalence of COVID-19 Pandemic and received letters
of appreciation as per Annexures-L, L1 to L26. It was
submitted, after transfer of respondent no.5 from Raichur as
Assistant General Manager, H.R.D., KPCL, Ambikanagar, he
intended to appoint persons of his choice. Accordingly, he
issued recruitment notification at Annexure-N dated 13.06.2023
calling for applications from eligible candidates. It was
submitted, said appointment was stated to be for 11 months on
contractual basis.
4. It was evident that respondents intended to replace
one set of temporary employees with another set without any
justification. It was submitted, even selection process was
riddled with various irregularities. It was submitted, in affidavit
-8-
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
filed by respondent no.5 on 25.01.2024, it was stated, final
selection list was prepared on basis of qualifying examination
marks and five years experience, but candidate at Sl.no.11,
namely Sri Ravikumar (respondent no.16) had acquired basic
educational qualification not more than two years prior to
notification. Therefore, his name was included in final selection
list by falsely showing experience of five years.
5. It was further submitted, petitioners had not yet
completed contractual period of service and respondents had
sought to terminate their services during currency of contract
without issuing any notice, which would be illegal. It was
submitted, petitioners had worked on extremely humble wages
and were provided residential quarters, wherein, they had
shifted their families. Premature and arbitrary termination of
services, would affect not only petitioners but also impose
hardship on family members who would be displaced. It was
submitted, repeated renewal/extension of their services had
given rise to legitimate expectation that their services would be
continued and regularized as need for providing health services
was perennial in nature. Despite said fact, respondents had not
taken any action for making regular appointments to provide
health services. On other hand, without justification resorted to
-9-
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
once again make temporary appointment. Under above
circumstances, petitioners had sought, not only for continuation
of their services till regular appointments were made, but also
for regularization of their services.
6. It was further submitted, this Court on 03.10.2023
granted interim order against petitioners being relieved from
services. Though they were actually relieved until then,
respondents claimed to have relieved them on 02.10.2023, to
circumvent interim order. It was alleged, same was at behest of
respondent no.5, who intended to appoint persons of his
choice. Therefore, issuance of impugned notification suffered
from malafide and liable to be quashed.
7. On other hand, Sri Pramod Nair, learned Senior
Counsel appearing for Sri Mrutyunjaya S.Hallikeri advocate for
respondents no.1 to 5 and 20, and Sri Praveen P.Tarikar
learned counsel for respondent no.9, 10, 13 and 14 sought to
oppose writ petition.
8. At outset learned Senior counsel submitted,
recruitment notification at Annexure-N was given wide publicity
evidenced by receipt of large number of applications (166 in
number). It was submitted, each of petitioners had filed
- 10 -
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
application in response thereto and only after failing in selection
process, challenged selection, which would be barred by
principle of estoppel. It was submitted, in view of specific
observations by Hon'ble Supreme Court in paragraphs no.45
and 47 in case of Secretary, State of Karnataka and Ors. v.
Umadevi and Ors. (3) reported in 2006 (4) SCC 1,
petitioners' prayer for regularization of their services or claims
based on legitimate expectations as well as on ground of
replacement of one temporary employee with another would
require to be rejected. It was submitted, prayer for
regularization, would untenable without challenge of
recruitment notification at Annexure-N.
9. It was submitted, core business of respondents -
KPCL was power generation and it did not have any experience
or expertise in establishing and running hospitals/clinics.
Establishment of clinic/hospital was in exigencies and
requirement of staff nurses would vary from year to year. It
was submitted, there were no sanctioned posts of staff nurses.
Same would bar any relief being granted to petitioners.
10. It was submitted, though selection was sought to
be assailed on ground of adoption of five years of experience
criteria without notifying same in recruitment notification,
- 11 -
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
admittedly each of petitioners had such experience and their
applications were not rejected on said ground. Their
candidature was duly considered and selection list at Annexure-
A was prepared on merit. It was lastly submitted, during course
of pendency of present writ petition, management had taken a
decision to discontinue contractual appointments altogether and
to outsource running of hospital to agency having expertise in
said field.
11. In support of submissions, learned Senior Counsel
relied on decision of Hon'ble Supreme Court in case of State
of Karnataka v. Umadevi (3), reported in (2006) 4 SCC 1 as
follows :
"45. While directing that appointments, temporary or
casual, be regularized or made permanent, the courts are
swayed by the fact that the person concerned has worked for
some time and in some cases for a considerable length of
time. It is not as if the person who accepts an engagement
either temporary or casual in nature, is not aware of the
nature of his employment. He accepts the employment with
open eyes. It may be true that he is not in a position to
bargain--not at arm's length--since he might have been
searching for some employment so as to eke out his
livelihood and accepts whatever he gets. But on that ground
alone, it would not be appropriate to jettison the
constitutional scheme of appointment and to take the view
that a person who has temporarily or casually got employed
should be directed to be continued permanently. By doing so,
it will be creating another mode of public appointment which
is not permissible. If the court were to void a contractual
employment of this nature on the ground that the parties
were not having equal bargaining power, that too would not
- 12 -
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
enable the court to grant any relief to that employee. A total
embargo on such casual or temporary employment is not
possible, given the exigencies of administration and if
imposed, would only mean that some people who at least get
employment temporarily, contractually or casually, would not
be getting even that employment when securing of such
employment brings at least some succour to them. After all,
innumerable citizens of our vast country are in search of
employment and one is not compelled to accept a casual or
temporary employment if one is not inclined to go in for such
an employment. It is in that context that one has to proceed
on the basis that the employment was accepted fully
knowing the nature of it and the consequences flowing from
it. In other words, even while accepting the employment, the
person concerned knows the nature of his employment. It is
not an appointment to a post in the real sense of the term.
The claim acquired by him in the post in which he is
temporarily employed or the interest in that post cannot be
considered to be of such a magnitude as to enable the giving
up of the procedure established, for making regular
appointments to available posts in the services of the State.
The argument that since one has been working for some time
in the post, it will not be just to discontinue him, even
though he was aware of the nature of the employment when
he first took it up, is not one that would enable the
jettisoning of the procedure established by law for public
employment and would have to fail when tested on the
touchstone of constitutionality and equality of opportunity
enshrined in Article 14 of the Constitution.
47. When a person enters a temporary employment or
gets engagement as a contractual or casual worker and the
engagement is not based on a proper selection as recognised
by the relevant rules or procedure, he is aware of the
consequences of the appointment being temporary, casual or
contractual in nature. Such a person cannot invoke the
theory of legitimate expectation for being confirmed in the
post when an appointment to the post could be made only by
following a proper procedure for selection and in cases
concerned, in consultation with the Public Service
Commission. Therefore, the theory of legitimate expectation
cannot be successfully advanced by temporary, contractual
or casual employees. It cannot also be held that the State
has held out any promise while engaging these persons
either to continue them where they are or to make them
permanent. The State cannot constitutionally make such a
- 13 -
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
promise. It is also obvious that the theory cannot be invoked
to seek a positive relief of being made permanent in the
post."
12. Reliance was also placed on decision in case of
Joginder Singh v. Union of India, reported in 2015 SCC
OnLine P&H 9348, wherein it was held as follows:
"6. From a perusal of the above terms and conditions
governing the services of the petitioners, it is clear that all
appointments were initially to be for a period of 12 months.
However, as per clause 2, the services were renewable for a
further period of 12 months at a time up to attainment of the
maximum age, as prescribed in Appendix-A attached to the
Scheme dated 22.09.2003 (as amended from time to time).
As per clause 2 of the Agreement, the renewal in the period
of service was subject to only two riders i.e. good
performance and existence of work which would require the
services of the appointed person.
..................
10. So far as petitioners no. 2 to 4 are concerned,
learned counsel for the petitioners submitted that contractual
employees like the petitioners cannot be replaced by another
set of contractual employees. The petitioners further allege
mala fide on the part of respondent no. 5, who was their
Officer Incharge. It is submitted that respondent no. 5 falsely
and for mala fide reasons, issued letters to the petitioners
pointing out acts of omission and commission on their part
and asking them to improve their working. It is further the
case of the petitioners that respondent no. 5, in connivance
with respondent no. 4 – the Staff Commander, in order to
wreck vengeance against the petitioners, did not renew their
services.
………………..
12. The terms of the Scheme, under which the
petitioners have been appointed and the Agreement of
service entered into between the parties bind them,
especially when the same remains unchallenged by either
side. Clause 2 of the Agreement of service, as reproduced
above, clearly stipulates that the services of all the
appointees like the petitioners, initially appointed for a period
of 12 months, could be renewed, subject to good
– 14 –
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
performance and existence of work warranting such
extension. The record of the case shows that the petitioners’
work and conduct has not been up to the mark. The record
further reveals that the petitioners were put to adequate
notice with regard to their poor performance on several
occasions, but to no avail. The streak of bad performance
continued. Resultantly, the petitioners had not been granted
renewal in the period of their service. This is as per the
Scheme under which they had been appointed and the
Agreement of service which binds them.
………………….
15. Learned counsel for the petitioners have
strenuously urged before me that the petitioners, who were
contractual employees, could not be replaced by another set
of contractual employees. To support their submission, they
have relied upon several judgments of the Apex Court, this
Court, as also other High Courts. In the case in hand, the
posts in question are contractual in nature and as per
the Scheme, are required to be filled up only on
contractual basis. This part of the Scheme is not under
challenge by the petitioners. That being so, posts,
which are contractual in nature, would necessarily be
filled up through employees, to be appointed on
contract. The judgments cited by the counsel for the
petitioners pertain to posts, which are regular in
nature, wherein directions have been issued not to
replace employees appointed on contract basis by
another set of contractual employees till regular
appointments are made. In view of the facts of the
case in hand, this situation could not arise herein.”
13. Likewise, relied on decision of Punjab and Haryana
High Court in case of Ex.Hav. Jaspal Singh and others v
Union of India and others (LPA No.1205 of 2015) for
proposition that non-grant of renewal of engagement on
contractual basis, would not be termination of services and
could not be challenged on ground of violation of principles of
natural justice.
– 15 –
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
14. Reference was placed on decision in case of Mohit
Dahiya v Delhi Pollution Control Committee reported in
2020 SCC Online Del 2710, wherein it was held as follows:
“20. The matter can be looked at from another
perspective. The second Vacancy Notice also throws
light on the nature of the post involved and it is
evident that the posts of Trainee are purely temporary
in nature and the scheme envisages the filling up of
the posts by Trainees and replaced only by Trainee. In
this background the Petitioner cannot have any
grievance once his engagement comes to an end by
efflux of time, more particularly, when the policy is not
under challenge. In this context, I may refer to a judgment
of the Kerala High Court in Resmi R.S. v. Government of
India, Represented By Secretary to Government, Department
of Women And Child Development, 2019 SCC OnLine Ker
2649 wherein the Petitioners were working in different posts
in the District Child Protection Units in various districts in the
State and challenged the move to terminate their services to
induct another set of contract employees. Reliance was
placed on Piara Singh (supra). The Court delved into the
scheme of their appointment and came to a conclusion that
the very scheme provided that the appointment of the staff
was on contract basis and with a limited tenure. The reasons
for opting the specific method of engagement was mentioned
in the guidelines therein. The Government had taken a
categorical stand, being the proponent of the scheme, that it
was a deliberate decision to appoint the staff only on contract
basis keeping the objective of the scheme in mind. In this
background, the decision not to extend the contract of the
employees once recruited beyond the period or extended
period for which they were recruited was sought to be
justified. The Court held as follows:
“7. I have considered the contentions advanced. Reliance
has been placed by the learned counsel for the petitioners
on the decisions of the Apex Court and of this Court to
contend that one set of temporary employees are not
liable to be substituted by another set which would result
in arbitrary exercise of power. However, in the instant
case, the very scheme provides that appointment of staff
is to be made on a contract basis and with a limited
– 16 –
NC: 2024:KHC-D:13675
WP No. 106025 of 2023tenure. The reasons for opting for such a method of
engagement of staff are also specified in Ext. R 1(b)
guidelines. The Central Government, who is the proponent
of the scheme has also filed a statement stating that it
was a deliberate decision to appoint staff in the scheme
only on contract basis and this was intended with the best
interests of the scheme in mind. It is stated that the
process for recruitment and employment of staff is to be
carried out by the Director, ICPS of the State in
consultation with the State Principal Secretary/Secretary,
Department of Women and Child Development at State
level. The District level staff is recruited by the concerned
District Magistrate. It is stated that in the instant case, the
decisions had been taken not to extend the contract of the
employees once recruited beyond the period or the
extended period for which they had been recruited.
8. Having considered the contentions of the parties and
having gone through the decisions of the Apex Court, I am
of the opinion that in the specific nature of the scheme as
also the appointments made and the intentions sought to
be achieved, the petitioners who were engaged on short
term contract basis would have absolutely no right to
contend that their services are not liable to be terminated
and that they are entitled to continue beyond the period of
contract.
9. This Court in its judgment in W.P. (C) No. 22402 of
2018 and connected cases has considered the claim of
persons appointed under the Mahatma Gandhi National
Rural Employment Guarantee Scheme (MGNREGS) and
has held, after referring to all the judgments including the
once relied on by the learned counsel for the petitioners in
the instant case, that contractual employees under a
Scheme can have no right to claim that they are entitled
to continue in service after the agreed term of contract is
over. In the instant cases as well, it is not in dispute
before me that the term of contract in respect of the
employees has expired. The decisions of the Apex Court
relied on do not apply to the situation on hand.”
21. Likewise, in the case of Joginder Singh v. Union of
India, 2015 SCC OnLine P&H 9348, the High Court of Punjab
and Haryana held as follows:
– 17 –
NC: 2024:KHC-D:13675
WP No. 106025 of 2023“15. Learned counsel for the petitioners have strenuously
urged before me that the petitioners, who were
contractual employees, could not be replaced by another
set of contractual employees. To support their submission,
they have relied upon several judgments of the Apex
Court, this Court, as also other High Courts. In the case in
hand, the posts in question are contractual in nature and
as per the Scheme, are required to be filled up only on
contractual basis. This part of the Scheme is not under
challenge by the petitioners. That being so, posts, which
are contractual in nature, would necessarily be filled up
through employees, to be appointed on contract. The
judgments cited by the counsel for the petitioners pertain
to posts, which are regular in nature, wherein directions
have been issued not to replace employees appointed on
contract basis by another set of contractual employees till
regular appointments are made. In view of the facts of the
case in hand, this situation could not arise herein.”
22. In view of the policy of the Respondent and the
nature of appointment of the Petitioner and persuaded by the
judgments referred to above, this Court is of the opinion that
the Petitioner cannot claim any right to continue as the
Trainee Engineer beyond the period of three years which was
the maximum period of engagement envisaged in the Policy.
There is admittedly no challenge to the Policy and rather the
appointment itself was under the terms of the said Policy.
23. Petitioner had lastly contended that even if his
services cannot be directed to be continued further, a
direction be issued to the Respondent to permit him to apply
afresh and he be considered along with the other candidates
under the Vacancy Notice dated 13.03.2020. The said relief
cannot be granted to the Petitioner in view of the stand of
the Respondent that the engagements are purely for the
purpose of training and not to grant any employment and
therefore, the Policy does not envisage the same Trainees
being appointed repeatedly as fresh graduates have to be
given an opportunity to train themselves and gain
experience.”
– 18 –
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
15. Likewise, reliance was placed on decision in case of
Vidyavardhaka Sangha v. Y.D. Deshpande, reported in
(2006) 12 SCC 482, wherein it was held as follows:
“4. It is now well-settled principle of law that the
appointment made on probation/ad hoc basis for a specific
period of time comes to an end by efflux of time and the
person holding such post can have no right to continue on
the post. In the instant case as noticed above, the respective
respondents have accepted the appointment including the
terms and conditions stipulated in the appointment orders
and joined the posts in question and continued on the said
posts for some years. The respondents having accepted the
terms and conditions stipulated in the appointment order and
allowed the period for which they were appointed to have
been elapsed by efflux of time, they are not now permitted to
turn their back and say that their appointments could not be
terminated on the basis of their appointment letters nor they
could be treated as temporary employees or on contract
basis. The submission made by the learned counsel for the
respondents to the said effect has no merit and is, therefore,
liable to be rejected. It is also well-settled law by several
other decisions of this Court that appointment on ad
hoc basis/temporary basis comes to an end by efflux
of time and persons holding such post have no right to
continue on the post and ask for regularisation, etc.”
16. And on decision in case of Institute of
Management Development, U.P. v. Pushpa Srivastava,
reported in (1992) 4 SCC 33, wherein it was held:
“4. The respondent was first appointed in the appellant-
Institute as a Research Executive on a consolidated fixed
compensation of Rs 1,260 per month on contract basis for a
period of three months. It was specifically stated in the order
that it was purely on ad hoc basis, liable for termination
without any notice on either side.
– 19 –
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
19. The following are clear from the above order:
(i) The respondent was appointed on a contractual
basis.
(ii) The post was to carry a consolidated pay of Rs 2400
per month.
(iii) The duration of appointment was six months from
the date of the respondent joining charge.
(iv) It is purely on ad hoc basis.
(v) It is terminable without any notice.
20. Because the six months’ period was coming to an
end on February 28, 1991, she preferred the writ petition a
few days before and prayed for mandamus which was
granted by the learned Judge under the impugned judgment.
The question is whether the directions are valid in law. To
our mind, it is clear that where the appointment is
contractual and by efflux of time, the appointment
comes to an end, the respondent could have no right to
continue in the post. Once this conclusion is arrived at,
what requires to be examined is, in view of the
services of the respondent being continued from time
to time on ‘ad hoc’ basis for more than a year whether
she is entitled to regularisation? The answer should be
in the negative. ……”
17. In reply, learned counsel for petitioner relied on
decision of Hon’ble Supreme Court in case of Manish Gupta v.
Jan Bhagidari Samiti, reported in (2022) 15 SCC 540,
wherein it held as follows:
“13. A perusal of the advertisement dated 24-6-2016
issued by the Principal, Government Kamla Raja Girls Post
Graduate Autonomous College, Gwalior, which is at Annexure
P-2 of the appeal paperbook and the advertisement dated 2-
7-2016 issued by the Principal, SMS Government Model
Science College, Gwalior, M.P., which is at Annexure P-3 of
the appeal paperbook, would show that the appointments
were to be made after the candidates had gone through due
selection procedure. Though Shri Nataraj, learned ASG has
– 20 –
NC: 2024:KHC-D:13675
WP No. 106025 of 2023strenuously urged that the appointments of the appellants
were as guest lecturers and not as ad hoc employees, from
the nature of the advertisements, it could clearly be seen
that the appellants were appointed on ad hoc basis. It is a
settled principle of law that an ad hoc employee
cannot be replaced by another ad hoc employee and he
can be replaced only by another candidate who is
regularly appointed by following a regular procedure
prescribed. Reliance in this respect can be placed on the
judgment of this Court in Rattan Lal v. State of
Haryana [Rattan Lal v. State of Haryana, (1985) 4 SCC 43:
1985 SCC (L&S) 938] and on the order of this Court
in Hargurpratap Singh v. State of Punjab [Hargurpratap
Singh v. State of Punjab, (2007) 13 SCC 292: (2008) 2 SCC
(L&S) 618].”
18. Reference was also made to ratio in case of
Mahanadi Coalfields Ltd. v. Brajrajnagar Coal Mines
Workers’ Union, reported in 2024 SCC OnLine SC 270, as
follows:
“27. We are also not impressed with the artificial
distinction which the appellant sought to bring about
between the 19 workers who were regularized and the
13 workers who were left out. The evidence on record
discloses that, of the total 32 workmen, 19 workers worked
in the bunker, 6 worked in the Coal Handling Plant, and 7
worked on the railway siding. However, of the 19 workers
who were regularized, 16 worked in the bunker, and 3
worked in the Coal Handling Plant. However, 3 workers from
the same bunker, 3 workers from the same Coal Handling
Plant and again 7 workers from the same railway siding were
not regularized. A tabulated representation of the above
description is as follows:
Site of work No. of workers No. of workers No. of workers
executed regularized not regularized
works
Bunker 19 16 3
Coal Handling
6 3 3
Plant
– 21 –
NC: 2024:KHC-D:13675
WP No. 106025 of 2023Railway Siding 7 – 7
Total: 32 19 13
28. The above-referred facts speak for themselves, and
that is the reason why the Tribunal has come to a conclusion
that the denial of regularization of the 13 workmen is wholly
unjustified. As stated previously, we do not find any grounds
in the artificial distinction asserted by the appellant.
However, as the case was argued at length we thought it
appropriate to give reasons for rejecting the appeals. What
we have referred to hereinabove are all findings of fact by
the Tribunal as affirmed by the High Court. In view of the
concurrent findings of fact on the issue of nature of
work, the continuing nature of work, continuous
working of the workmen, we are of the opinion that
there is no merit in the appeals filed by the appellant.”
19. He also relied on decision of Hon’ble Supreme Court
in case of Sheo Narain Nagar v. State of U.P., reported in
(2018) 13 SCC 432, holding as follows:
“9. The High Court dismissed the writ application relying
on the decision in Umadevi (3) [State of Karnataka v.
Umadevi (3), (2006) 4 SCC 1: 2006 SCC (L&S) 753]. But the
appellants were employed basically in the year 1993; they
had rendered service for three years, when they were offered
the service on contract basis; it was not the case of back
door entry; and there were no Rules in place for offering
such kind of appointment. Thus, the appointment could not
be said to be illegal and in contravention of Rules, as there
were no such Rules available at the relevant point of time,
when their temporary status was conferred w.e.f. 2-10-2002.
The appellants were required to be appointed on regular
basis as a one-time measure, as laid down in para 53
of Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4
SCC 1: 2006 SCC (L&S) 753]. Since the appellants had
completed 10 years of service and temporary status had
been given by the respondents with retrospective effect from
2-10-2002, we direct that the services of the appellants be
regularised from the said date i.e. 2-10-2002, consequential
– 22 –
NC: 2024:KHC-D:13675
WP No. 106025 of 2023benefits and the arrears of pay also to be paid to the
appellants within a period of three months from today.
10. Impugned judgment and order [Sheo Narain
Nagar v. State of U.P., 2014 SCC OnLine All 16492] and also
order terminating the services are hereby quashed. The
appeal is, accordingly, allowed. Pending application, stands
disposed of.”
20. In support of his contention that Courts could
interfere even with policy decisions of State if it was arbitrary
and irrational, reliance was placed on decision of Allahabad
High Court in case of Kalamuddin and others v. State of U.P
and others (W.A.no.3451/2022, DD: 27.03.2023).
21. Likewise, in support of submission that there would
be no absolute bar against participant challenging selection,
following observations in case of Meeta Sahai v. State of
Bihar, reported in (2019) 20 SCC 17, were referred to:
“15. Furthermore, before beginning analysis of the
legal issues involved, it is necessary to first address the
preliminary issue. The maintainability of the very challenge
by the appellant has been questioned on the ground that she
having partaken in the selection process cannot later
challenge it due to mere failure in selection. The counsel for
the respondents relied upon a catena of decisions of this
Court to substantiate his objection.
16. It is well settled that the principle of estoppel
prevents a candidate from challenging the selection process
after having failed in it as iterated by this Court in a plethora
of judgments including Manish Kumar Shahi v. State of
Bihar [Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC
– 23 –
NC: 2024:KHC-D:13675
WP No. 106025 of 2023576: (2011) 1 SCC (L&S) 256] , observing as follows: (SCC
p. 584, para 16)“16. We also agree with the High Court [Manish Kumar
Shahi v. State of Bihar, 2008 SCC OnLine Pat 321:
(2008) 4 PLJR 93] that after having taken part in the
process of selection knowing fully well that more than
19% marks have been earmarked for viva voce test,
the appellant is not entitled to challenge the criteria or
process of selection. Surely, if the appellant’s name had
appeared in the merit list, he would not have even
dreamed of challenging the selection. The [appellant]
invoked jurisdiction of the High Court under Article 226
of the Constitution of India only after he found that his
name does not figure in the merit list prepared by the
Commission. This conduct of the appellant clearly
disentitles him from questioning the selection and the
High Court did not commit any error by refusing to
entertain the writ petition.”
[See also: Madan Lal v. State of J&K, (1995) 3 SCC 486 :
1995 SCC (L&S) 712, Marripati Nagaraja v. State of A.P.,
(2007) 11 SCC 522 : (2008) 1 SCC (L&S) 68, Dhananjay
Malik v. State of Uttaranchal, (2008) 4 SCC 171 : (2008) 1
SCC (L&S) 1005 and K.A. Nagamani v. Indian Airlines,
(2009) 5 SCC 515 : (2009) 2 SCC (L&S) 57]The underlying objective of this principle is to prevent
candidates from trying another shot at consideration, and to
avoid an impasse wherein every disgruntled candidate,
having failed the selection, challenges it in the hope of
getting a second chance.
17. However, we must differentiate from this principle
insofar as the candidate by agreeing to participate in the
selection process only accepts the prescribed procedure and
not the illegality in it. In a situation where a candidate
alleges misconstruction of statutory rules and
discriminating consequences arising therefrom, the
same cannot be condoned merely because a candidate
has partaken in it. The constitutional scheme is sacrosanct
and its violation in any manner is impermissible. In fact, a
candidate may not have locus to assail the incurable illegality
or derogation of the provisions of the Constitution, unless
he/she participates in the selection process.”
– 24 –
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
22. And relying on decision of this Court in case of
Umesha T.N and others v. State of Karnataka and Ors.
(W.P.No.19588/2023, DD 09.05.2024), it was lastly contended,
even in case, direction for reinstatement could not be granted;
relief of payment of compensation, could be granted.
23. Heard learned counsel and perused writ petition
records.
24. From above, it is seen petitioners appointed on
contractual basis for fixed period have sought prayers for
quashing selection list; for direction to continue their services
till regular appointments; for directing respondent-employer to
frame rules providing weightage on basis of experience and for
regularization of their services etc. Petitions are opposed
mainly on ground of principle of estoppel having accepted
appointment on contractual basis for limited term, estoppel
against challenging selection after having participated in
selection process, bar against grant of directions for
regularization in view of decision in Umadevi’s case (supra)
and no right to seek continuation in view of lack of sanctioned
post.
– 25 –
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
25. Insofar as contention about petitioners having
participated in selection process and bar against challenging
selection process, there cannot be dispute about proposition of
law that participant in selection process would be barred from
challenging selection process, in view of ratio in Madras
Institute of Development Studies v. K.
Sivasubramaniyan, reported in (2016) 1 SCC 454, but, in
instant case, petitioners are not claiming to be aggrieved by
any condition in selection notification. As rightly contended,
petitioners allege irregularities/illegalities in selection process
wherein persons especially respondent no.16 who would not be
qualified as per conditions mentioned in selection notification
being selected.
26. Further, in their statement of objections,
respondents no.1 to 5 have stated that selection list was
prepared by adopting additional condition of 5 years
experience. Perusal of recruitment notification at Annexure-N
reveals that said condition was not notified. In light of specific
contention that candidates whose names notified in Annexure-
A, did not meet said requirement, specifically show in case of
respondent no.16 whose name is mentioned at Sl.no.11 which
has not been seriously controverted by respondents no.1 to 5
– 26 –
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
would require to be examined by them. Therefore, petitioners’
case would fall within distinguishing circumstances mentioned
in Meeta Sahai’s case (supra).
27. Insofar as adoption of additional criteria for
selection than notified, said issue would be squarely covered by
decision in case of Hon’ble Supreme Court in case of K.
Manjusree v. State of A.P., reported in (2008) 3 SCC 512:
“27. But what could not have been done was the second
change, by introduction of the criterion of minimum marks
for the interview. The minimum marks for interview had
never been adopted by the Andhra Pradesh High Court
earlier for selection of District & Sessions Judges, (Grade II).
In regard to the present selection, the Administrative
Committee merely adopted the previous procedure in vogue.
The previous procedure as stated above was to apply
minimum marks only for written examination and not for the
oral examination. We have referred to the proper
interpretation of the earlier Resolutions dated 24-7-2001 and
21-2-2002 and held that what was adopted on 30-11-2004
was only minimum marks for written examination and not for
the interviews. Therefore, introduction of the requirement of
minimum marks for interview, after the entire selection
process (consisting of written examination and interview)
was completed, would amount to changing the rules of the
game after the game was played which is clearly
impermissible. We are fortified in this view by several
decisions of this Court. It is sufficient to refer to three of
them — P.K. Ramachandra Iyer v. Union of India [(1984) 2
SCC 141: 1984 SCC (L&S) 214], Umesh Chandra
Shukla v. Union of India [(1985) 3 SCC 721: 1985 SCC (L&S)
919] and Durgacharan Misra v. State of Orissa [(1987) 4
SCC 646: 1988 SCC (L&S) 36: (1987) 5 ATC 148].
28. In Ramachandra Iyer [(1984) 2 SCC 141 : 1984
SCC (L&S) 214] this Court was considering the validity of a
selection process under the ICAR Rules, 1977 which provided
for minimum marks only in the written examination and did
– 27 –
NC: 2024:KHC-D:13675
WP No. 106025 of 2023not envisage obtaining minimum marks in the interview. But
the Recruitment Board (ASRB) prescribed a further
qualification of obtaining minimum marks in the interview
also. This Court observed that the power to prescribe
minimum marks in the interview should be explicit and
cannot be read by implication for the obvious reason that
such deviation from the Rules is likely to cause irreparable
and irreversible harm. This Court held that as there was no
power under the Rules for the Selection Board to prescribe
the additional qualification of securing minimum marks in the
interview, the restriction was impermissible and had a direct
impact on the merit list because the merit list was to be
prepared according to the aggregate marks obtained by the
candidates at written test and interview. This Court
observed: (SCC p. 181, para 44)“44. … Once an additional qualification of
obtaining minimum marks at the viva voce test is
adhered to, a candidate who may figure high up in
the merit list was likely to be rejected on the
ground that he has not obtained minimum
qualifying marks at viva voce test. To illustrate, a
candidate who has obtained 400 marks at the
written test and obtained 38 marks at the viva
voce test, if considered on the aggregate of marks
being 438 was likely to come within the zone of
selection, but would be eliminated by ASRB on the
ground that he has not obtained qualifying marks
at viva voce test. This was impermissible and
contrary to Rules and the merit list prepared in
contravention of Rules cannot be sustained.”
29. In Umesh Chandra [(1985) 3 SCC 721 : 1985 SCC
(L&S) 919] the scope of the Delhi Judicial Service Rules,
1970 came up for consideration. The Rules provided that
those who secured the prescribed minimum qualifying marks
in the written examination will be called for viva voce; and
that the marks obtained in the viva voce shall be added to
the marks obtained in the written test and the candidate’s
ranking shall depend on the aggregate of both. 27 candidates
were found eligible to appear for viva voce on the basis of
their having secured the minimum prescribed marks in the
written examination. The final list was therefore, expected to
be prepared by merely adding the viva voce marks to the
written examination marks in regard to those 27 candidates.
But the final list that was prepared contained some new
– 28 –
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
names which were not in the list of 27 candidates who
passed the written examination. Some names were omitted
from the list of 27 candidates who passed the written
examination.
30. It was found that the Selection Committee had
moderated the written examination marks by an addition of
2% for all the candidates, as a result of which some
candidates who did not get through the written examination,
became eligible for viva voce and came into the list.
Secondly, the Selection Committee prescribed for selection, a
minimum aggregate of 600 marks in the written examination
and viva voce which was not provided in the Rules and that
resulted in some of the names in the list of 27 candidates
being omitted. This Court held neither was permissible.
Dealing with the prescription of minimum 600 marks in the
aggregate this Court observed: (Umesh Chandra
case [(1985) 3 SCC 721 : 1985 SCC (L&S) 919] , SCC pp.
735-36, para 14)
“14. … There is no power reserved under Rule 18 of the
Rules for the High Court to fix its own minimum marks
in order to include candidates in the final list. It is
stated in Para 7 of the counter-affidavit filed in Writ
Petition No. 4363 of 1985 that the Selection Committee
has inherent power to select candidates who according
to it are suitable for appointment by prescribing the
minimum marks which a candidate should obtain in the
aggregate in order to get into the Delhi Judicial Service.
… But on going through the Rules, we are of the view
that no fresh disqualification or bar may be created by
the High Court or the Selection Committee merely on
the basis of the marks obtained at the examination
because Clause (6) of the Appendix itself has laid down
the minimum marks which a candidate should obtain in
the written papers or in the aggregate in order to
qualify himself to become a member of the Judicial
Service. The prescription of the minimum of 600 marks
in the aggregate by the Selection Committee as an
additional requirement which the candidate has to
satisfy amounts to an amendment of what is prescribed
by Clause (6) of the Appendix. … We are of the view
that the Selection Committee has no power to prescribe
the minimum marks which a candidate should obtain in
the aggregate different from the minimum already
prescribed by the Rules in its Appendix. We are,
– 29 –
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
therefore, of the view that the exclusion of the names
of certain candidates, who had not secured 600 marks
in the aggregate including marks obtained at the viva
voce test from the list prepared under Rule 18 of the
Rules is not legal.”
31. In Durgacharan Misra [(1987) 4 SCC 646 : 1988
SCC (L&S) 36 : (1987) 5 ATC 148] this Court was
considering the selection under the Orissa Service Rules
which did not prescribe any minimum qualifying marks to be
secured in viva voce for selection of Munsifs. The Rules
merely required that after the viva voce test the State Public
Service Commission shall add the marks of the viva voce test
to the marks in the written test. But the State Public Service
Commission which was the selecting authority prescribed
minimum qualifying marks for the viva voce test also. This
Court held that the Commission had no power to prescribe
the minimum standard at viva voce test for determining the
suitability of candidates for appointment of Munsifs.
32. In Maharashtra SRTC v. Rajendra Bhimrao
Mandve [(2001) 10 SCC 51 : 2002 SCC (L&S) 720] this Court
observed that “the rules of the game, meaning thereby, that
the criteria for selection cannot be altered by the authorities
concerned in the middle or after the process of selection has
commenced”. In this case the position is much more serious.
Here, not only the rules of the game were changed, but they
were changed after the game had been played and the
results of the game were being awaited. That is unacceptable
and impermissible.
33. The Resolution dated 30-11-2004 merely adopted
the procedure prescribed earlier. The previous procedure was
not to have any minimum marks for interview. Therefore,
extending the minimum marks prescribed for written
examination, to interviews, in the selection process is
impermissible. We may clarify that prescription of minimum
marks for any interview is not illegal. We have no doubt that
the authority making rules regulating the selection, can
prescribe by rules, the minimum marks both for written
examination and interviews, or prescribe minimum marks for
written examination but not for interview, or may not
prescribe any minimum marks for either written examination
or interview. Where the rules do not prescribe any
procedure, the Selection Committee may also prescribe
– 30 –
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
the minimum marks, as stated above. But if the
Selection Committee wants to prescribe minimum
marks for interview, it should do so before the
commencement of selection process. If the Selection
Committee prescribed minimum marks only for the
written examination, before the commencement of
selection process, it cannot either during the selection
process or after the selection process, add an
additional requirement that the candidates should also
secure minimum marks in the interview. What we have
found to be illegal, is changing the criteria after
completion of the selection process, when the entire
selection proceeded on the basis that there will be no
minimum marks for the interview.”
28. Consequently, as held in case of P.K.
Ramachandra Iyer v. Union of India, reported in (1984) 2
SCC 141, referred to in above decision, selection list prepared
in pursuance of illegal selection process cannot be saved.
Hence, impugned selection list at Annexure-A, cannot be
sustained.
29. Insofar as prayer for regularization and for
continuation till regular appointments are made, decision in
Umadevi’s case (supra) especially in view of uncontroverted
assertion of respondents that petitioners’ appointments were
not against any sanctioned posts, without establishing
satisfaction with three conditions mentioned in paragraph 53 of
Umadevi’s case (supra), prayer for regularization would be
untenable.
– 31 –
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
30. However reasons assigned by official respondents
for making ad hoc/contractual arrangements requires to be
examined. There are various devices/strategies and arguments
adopted by managements to avoid compliances with welfare
schemes.
31. Though there is no dispute about core business of
respondents no.1 to 5 being generation of power and not
establishment/management of hospital/clinics, but said
measure was undertaken to ensure health of their staff,
perhaps as location of power generation units were away from
townships and in remote areas. Duty to take care of health
requirements would be incidental to if not part of main object of
employer. Therefore, said requirement would co-exist with
employment and as such, perennial in nature. However,
respondents no.1 to 5 and 20 as employer/management would
be entitled to take policy decision about manner of providing
for such need.
32. While faced with similar contentions, Hon’ble
Supreme Court expressed need for piercing corporate veil
behind same, with following observations in case of
Hussainbhai v. Alath Factory Thezhilali Union, reported in
(1978) 4 SCC 257:
– 32 –
NC: 2024:KHC-D:13675
WP No. 106025 of 2023“4. This argument is impeccable in laissez
faire economics “red in tooth and claw” and under the
Contract Act rooted in English Common Law. But the human
gap of a century yawns between this strict doctrine and
industrial jurisprudence. The source and strength of the
industrial branch of Third World Jurisprudence is social
justice proclaimed in the Preamble to the Constitution. This
Court in Ganesh Beedi case [(1974) 4 SCC 43: 1974 SCC
(L&S) 204: (1974) 1 LLJ 367] has raised on British and
American rulings to hold that mere contracts are not decisive
and the complex of considerations relevant to the
relationship is different. Indian Justice, beyond Atlantic
liberalism, has a rule of law which runs to the aid of the Rule
of life. And life, in conditions of poverty aplenty, is livelihood,
and livelihood is work with wages. Raw societal realities, not
fine-spun legal niceties, not competitive market economics
but complex protective principles, shape the law when the
weaker, working class sector needs succour for livelihood
through labour. The conceptual confusion between the
classical law of contracts and the special branch of law
sensitive to exploitative situations accounts for the
submission that the High Court is in error in its holding
against the petitioner.
5. The true test may, with brevity, be indicated once
again. Where a worker or group of workers labours to
produce goods or services and these goods or services are
for the business of another, that other is, in fact, the
employer. He has economic control over the workers’
subsistence, skill, and continued employment. If he, for any
reason, chokes off, the worker is, virtually, laid off. The
presence of intermediate contractors with whom alone the
workers have immediate or direct relationship ex contractu is
of no consequence when, on lifting the veil or looking at the
conspectus of factors governing employment, we discern the
naked truth, though draped in different perfect paper
arrangement, that the real employer is the Management, not
the immediate contractor. Myriad devices, half-hidden in fold
after fold of legal form depending on the degree of
concealment needed, the type of industry, the local
conditions and the like may be resorted to when labour
legislation casts welfare obligations on the real employer,
based on Articles 38, 39, 42, 43 and 43-A of the
Constitution. The court must be astute to avoid the
mischief and achieve the purpose of the law and not be
misled by the maya of legal appearances.
– 33 –
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
6. If the livelihood of the workmen substantially
depends on labour rendered to produce goods and services
for the benefit and satisfaction of an enterprise, the absence
of direct relationship or the presence of dubious
intermediaries or the make-believe trappings of detachment
from the Management cannot snap the real life-bond. The
story may vary but the inference defies ingenuity. The
liability cannot be shaken off.”
33. Thus, as long as respondents no.1 to 5 and 20
decide to continue present manner of serving said need, as
held in Sheo Narain Nagar, Manish Gupta and Mahanadi
Coalfields Ltd. cases (supra), claims of petitioners for
continuation until regular appointments are made would require
consideration.
34. Insofar as prayer for framing rules providing for
weightage to petitioners on basis of their service experience,
it is seen same would be in nature of direction to legislate.
As held by Hon’ble Supreme Court in case of State of
Jammu and Kashmir v. A.R.Zakki and Ors reported in
AIR 1992 SC 1546, prayer for direction to legislate would
not be tenable. Said prayer is accordingly rejected.
35. At same time, it would be apposite to clarify that
petitioner’s claim for continuation cannot be absolute. In case,
as stated by learned counsel for respondents no.1 to 5 and 20
– 34 –
NC: 2024:KHC-D:13675
WP No. 106025 of 2023
that said respondents may outsource provision of healthcare to
its employees in toto, same cannot be challenged or opposed
by petitioners. In such case, they would be entitled to claim
retrenchment compensation by relying upon Umesha T.N’s
case (supra).
In terms of above, writ petition is disposed of.
Sd/-
(RAVI V.HOSMANI)
JUDGE
EM,AM
CT-ASC
List No.: 1 Sl No.: 51