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Uttarakhand High Court · body

2013 DIGILAW 114 (UTT)

Kamal Karki v. Government of India

2013-03-07

K.J.SENGUPTA

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Judgment : This writ petition has been filed to challenge the advertisement issued by the respondent No. 3 on 9th January, 2013 aiming at to undertake selection process for filling up the post of Field Investigators on temporary and on adhoc basis and also asking for a writ of mandamus directing the respondents not to interfere with the functioning of the petitioners as Field Investigators till the permanent Field Investigators are appointed and pay their salary and other benefits as and when falls due. 2. The fact of the case is that the petitioners and each of them were appointed Field Investigators purely on contractual basis for a period of nine months initially commencing from 20th June, 2011 till 31st March, 2012. They were engaged upon being selected pursuant to the advertisement issued in the year 2011. Thereafter, their engagement was extended from time to time and last extension was granted till 31st March, 2013. 3. Therefore, the petitioners’ engagement was on temporary basis and that too for a limited period. It is not a temporary or casual engagement for unspecified date in order to hold that employee with temporary status. With this status of service, the petitioners challenged the advertisement intending to fill up these 10 out of 13 posts presently held by the petitioners again for a limited period. In the advertisement, it is mentioned that the appointment which would be made after holding selection process, on and from 1st April, 2013. It is thus clear that the period during which the petitioners were to serve were not intended to affect. 4. On the facts narrated above, and upon hearing the learned counsel for the petitioners, I do not find any affectation of right of the petitioners after expiry of 31st March, 2013. The petitioners would have some affectation had the fresh appointment being made covering the contractual period of the petitioners. However, learned counsel for the petitioners taking inspiration from the Supreme Court pronouncement in the case of State of Haryana and others Vs. Piara Singh and others (1992) 4 SCC 118 submits that his clients are having definite right and it emanates from paragraphs 44, 45 and 46 of the said judgment. He submits that paragraph 46 states that the only method of replacement of his clients is regular selection process and they cannot be replaced by any adhoc or temporary employee. Piara Singh and others (1992) 4 SCC 118 submits that his clients are having definite right and it emanates from paragraphs 44, 45 and 46 of the said judgment. He submits that paragraph 46 states that the only method of replacement of his clients is regular selection process and they cannot be replaced by any adhoc or temporary employee. I, therefore, set out paragraphs 44, 45 and 46 of the said pronouncement. “44. Before parting with this case, we think it appropriate to say a few words concerning the issue of regularisation of adhoc/temporary employees in government service. 45. The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an adhoc or temporary appointment to be made. In such a situation, effort should always be to replace such an adhoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an adhoc/temporary employee. 46. Secondly, an adhoc or temporary employee should not be replaced by another adhoc or temporary employee; he must be replaced onlyby a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.” 5. Upon conjoint reading of these paragraphs, I am of the opinion that the Supreme Court has merely laid down certain guidelines for filling up the post by the Government. In my view, these guidelines are directory in nature and cannot be said to be a mandatory as it will appear from the language of paragraph 45 which starts with the words “the normal rule, or course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc / temporary employee by a regularly selected employee as early as possible”. Paragraph 46 has to be read with paragraph 45. Paragraph 46 is not to be understood as being mandatory in nature. If it is so then paragraph 45 become redundant. In such a situation, effort should always be to replace such an ad hoc / temporary employee by a regularly selected employee as early as possible”. Paragraph 46 has to be read with paragraph 45. Paragraph 46 is not to be understood as being mandatory in nature. If it is so then paragraph 45 become redundant. In order to give humanitarian findings, I feel that whenever as far as practicable the Government should made endeavour to recruit on regular basis instead of on adhoc basis all the time to come. 6. The Supreme Court has not ruled out the idea of recruiting on adhoc basis and this is permissible in case of administrative exigency. 7. In my view, the aforesaid directory provision does not create any right for the adhoc appointee to ask for regular selection process. It is for the Government to take decision when such regular selection is to be undertaken but of course on successive occasion adhoc appointment should not be resorted to unless there is administrative exigency. In this case, I notice that instead of 13 posts ten posts are sought to be filled up. Therefore, this less number of filling up of vacancy itself shows financial exigency otherwise the Government would have gone for the appointment for all the posts held by the petitioner. Moreover, this adhoc appointment is not intended to be undertaken to replace the petitioners as after tenure of their services new appointment would be made. Therefore, I am unable to quash the advertisement in question at the instance of the petitioners. So far as second relief is concerned, I cannot direct the Government to allow the petitioners to continue as extension has been granted till 31st March, 2013, and such extension has been accepted by the petitioners till that date without any quarrel. 8. Therefore, the writ petition fails. No order is passed except in the event the Government has not finalised the selection process till today as this Court did not stop the selection process, I direct the respondents to allow the petitioners except the petitioner Nos. 3, 6, 8 and 11 to participate in the selection process and also assess their performance. In the process if one of them is (are) selected, obviously, the appointment shall be made to them (him). 3, 6, 8 and 11 to participate in the selection process and also assess their performance. In the process if one of them is (are) selected, obviously, the appointment shall be made to them (him). I also desire, in future, the Government will take note of guidelines of the Supreme Court and try to follow the same. In terms of the judgment without allowing the petitioners to participate, if it is not finalised as yet, there shall not be any finalization.