Judgment:
This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the respondents to consider the claim of the petitioner made in her representation dated 9.2.2012 for regularization of her services in the post of Computer Operator in the respondent University as was done in the cases of all the Technical Staff working in the respondent university.
ORDER
1. The petitioner has filed the present writ petition seeking for a direction to the first respondent university to consider her representation, dated 9.2.2012 for regularization of her services in the post of the Computer Operator in the respondent University as was done in the case of the Technical staff working in the university and to pass appropriate orders.
2.When the matter came up on 2.3.2012, this court directed notice to be issued to the standing counsel for the respondent University Ms.Narmada Sampath for filing counter. Subsequently, a counter affidavit, dated 10.3.2012 was filed on behalf of all the three respondents.
3.In the representation, dated 09.02.2012, a copy of which is enclosed at page 39 to 50 of the typed set, the petitioner claimed that she was a Post Graduate with M.Com Degree. She was also having Post Graduate Diploma in Computer Applications. She had changed her name from S.Valiammal to S.J.Valli. During the year 2005, the university had issued a paper advertisement. She had applied for the post of Project Clerk. She was appointed as a Project Clerk on 2.4.2007 in the department of Experimental Medicine of the University on a temporary basis under the Project. A consolidated pay of Rs.4500/- was given to her. She had served in the project from 2.4.2007 till 31.7.2009. When she was working in the project, she was also informed about the availability of the post of Computer Operator in the department. She was fully qualified for the same. She had sent an application to the Registrar on 5.3.2009. She had received an interview letter asking her to appear on 24.8.2009. She had also attended the interview with all her original certificates. By an order dated 1.9.2009, she was appointed to the post of the Computer Operator in the scale of pay of Rs.5200-20200/- with grade pay of Rs.2400/- per month. Her appointment was for a period of one year from the date of the joining or till the date by which the post has to be filled up by considering the candidates sponsored by the employment exchange.
4.It was further stated that she had joined duty on 3.9.2009. Her services were lent to the Examination Computer Centre of the University. It was informed by a communication dated 10.3.2010 by the Registrar that four vacancies in the post of the Computer Operator following the recruitment method prescribed in the statutes of the university, were to be filled up. After submitting her application, she was under an impression that she will be selected and that it was her legitimate expectation that she will be considered for regular appointment. But, however, she was not considered. Actually she was granted regular pay as could be seen from the fact that health insurance and family benefit fund as well as professional tax were deducted from her salary. But, however, by an order dated 29.8.2010, she was relieved from the services of the university with effect from 2.9.2010. It was stated that on the expiry of the period of appointment, she was relieved from the service.
5.The petitioner, thereafter, contended that the university is an industry within the meaning of Section 2(j) of the Industrial Disputes Act. She is entitled for protection under Chapter V-A of the I.D. Act. She quoted a judgment of the Supreme Court in The State Bank of India Vs. N.Sundara Money reported in AIR 1976 SC 1111 = (1976) 1 SCC 822. She further submitted that her earlier appointment as temporary computer operator was done in accordance with the statutes of the university. Immediately after the petitioner was relieved from service, she had sent a representation dated 05.10.2010 requesting the respondents to consider her for regularization. She also made an application under the RTI Act to the third respondent. The third respondent gave a reply stating that the technical staff in the department who were appointed on temporary basis were confirmed according to the vacant position in the respective department. Even one Dr.Kabilan, who was ousted from service for want of vacancy was subsequently accommodated on considering his representation by the Governing Council. Since her termination after a few years of service is a retrenchment within a meaning of Section 25F of the ID Act, her termination is invalid.
6.Heard Mr.S.Selvathirumurugan, learned counsel for the petitioner and Ms.Narmada Sampath, learned Standing Counsel for the respondents.
7.In the counter affidavit, it was stated that the petitioner was appointed only on temporary basis and the regular appointment for the said post was considered. The petitioner's name was not sponsored. Hence two other persons were selected for the said post by following the rules of reservation. Her representation for regularization was placed before the Governing council in its meeting held on 10.11.2010. In that meeting, the Governing council had resolved not to approve the re-appointment of the petitioner as the computer operator on temporary basis. The case of Dr.N.Kabilan was entirely different. There was shortage of medical persons in the university. The petitioner's service came to be relieved by an order dated 29.8.2010. She did not challenge the order relieving her for all these period including in this writ petition. The I.D. Act do not apply to the university and the petitioner was not a workman within a meaning of Section 2(s) of the ID Act.
8.The petitioner has not spelt out as to why she never challenged the order of relieving her from service dated 29.8.2010. The order of relief itself had stated that the petitioner was relieved from service after the expiry of the period of her temporary appointment. Even in this writ petition, the petitioner only sought for a direction to consider her representation without challenging the order relieving her from service. The petitioner cannot seek for regularization by citing some other department or some other category. The regularization cannot be a mode of recruitment as held by the Supreme Court in Secretary, State of Karnataka v. Umadevi (3) reported in (2006) 4 SCC 1 and in paragraphs 13,26,33,43 and 52, the Supreme Court had observed as follows: 13.What is sought to be pitted against this approach, is the so-called equity arising out of giving of temporary employment or engagement on daily wages and the continuance of such persons in the engaged work for a certain length of time. Such considerations can have only a limited role to play, when every qualified citizen has a right to apply for appointment, the adoption of the concept of rule of law and the scheme of the Constitution for appointment to posts. It cannot also be forgotten that it is not the role of the courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution. The approving of such acts also results in depriving many of their opportunity to compete for public employment. We have, therefore, to consider the question objectively and based on the constitutional and statutory provisions. In this context, we have also to bear in mind the exposition of law by a Constitution Bench in State of Punjab v. Jagdip Singh10. It was held therein: (SCR pp. 971-72)Â In our opinion where a government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give he will not in law be deemed to have been validly appointed to the post or given the particular status.
26.With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent the distinction between regularisation and making permanent, was not emphasised here can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in para 50 (of SCC) of Piara Singh5 is to some extent inconsistent with the conclusion in para 45 (of SCC) therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognised in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent.
33.It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency can an ad hoc appointment be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments 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.
43.Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. 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. The High Courts acting under Article 226 of the Constitution, 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. Merely because an employee had continued under cover of an order of the court, which we have described as litigious employment in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
52.Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahadur (Dr.) v. Governing Body of the Nalanda College34. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.
9.The Supreme Court in Jawaharlal Nehru Technological University v. T. Sumalatha reported in (2003) 10 SCC 405 in paragraph 7 had observed as follows:
7.Can it be said that by virtue of this provision, the State Government assumes the responsibility of absorbing the staff employed in the organizations or establishments with which it has no administrative or financial nexus, merely because an instrumentality of the State is involved in managing it, that too, in a limited sense? The answer could only be in the negative. When the State Government or its instrumentalities have not created the posts on their own and do not bear any part of the financial burden, the question of getting the clearance from the Finance and Planning Department of the Government for the purpose of regularization or absorption does not arise. Viewed from any angle, GO No. 212 would be wholly out of place for those working in the nodal centre which is created and nurtured by the Central Government. It is not within the domain of the State Government or even the University to regulate the staff pattern or the monetary benefits of the staff working therein, without the approval of the Central Government. Therefore, no directions should have been issued to the State Government or to the University to regularize the services of Respondents 1 to 5, if necessary, by creating additional posts.
10.In the present case, at the time she she joined, she was given a clear appointment order that it was on temporary basis and that she is liable to be discharged any time without prior notice and without assigning any reason. Having accepted such an appointment, the petitioner in the absence of any enabling provision, cannot turn around and seek for rgularization without challenging her order of termination.
11.In the statutes framed by the University, an explanation to Statute No.6 relating to the mode of recruitment reads as follows:
Explanation:-Direct recruitment shall be made only by obtaining list of qualified candidates from the Employment Exchange as per Government Ordres in force in this regard. However, if eligible candidates are not available from the Employment Exchange, after obtaining a non-availability certificate from the Employment Exchange, the University shall recruit through advertisement in the Press or through any other mode of recruitment as specified in the Statutes.
12.Under the statutes framed by the University, there is no provision for regularizing a temporary employee and that the mode of recruitment does not contain regularization as the method by which a person can be absorbed into the permanent cadre. In respect of Dr.Kabilan, the respondents have satisfactorily explained the same. But in the case of the other technical staff, the petitioner has not given any details except a vague reply obtained that some technical staff have been absorbed in the respective departments. Insofar as the relief claimed by the petitioner in the writ petition, the court can only consider her claim on the basis of the existing rule position. If some persons have been recruited contrary to rules, that by itself cannot give a cause of action for the petitioner to seek for a similar relief. The reliance placed upon the Hospital Mazdoor Sabha case and N.Sundara Money's case does not help the case of the petitioner in any manner as the challenge here is not that of her termination from temporary service, but the claim is one of regularization.
13.Under these circumstances, this court is refrained from going into the issue and render a finding as to whether the respondent was an industry and the petitioner was the workman within the meaning of the ID Act for the purpose of the case. Accordingly, the writ petition will stand dismissed. No costs. 13.03.2012