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Judgment
Hon'ble Dr. Sumeet Jerath, Member (A) :
M.A Diary No. 5073/2026 In O.A. No. 585/2024 :-
The present MA has been filed by Ms. Vishakha Rohilla seeking her impleadment as a necessary and affected private respondent in the present OA. The applicant in the M.A. has also sought modification/vacation of the interim order dated 27.04.2024 and consequential directions for declaration of the result of the open competitive examination conducted for the post of House Mother/Matron, Post Code 38/24, pursuant to Advertisement No. 05/2024 dated 05.03.2024.
For the reasons mentioned in the MA, the M.A is partially allowed. Accordingly, the first prayer of the MA applicant (Ms. Vishakha Rohilla) for impleadment as private respondent no. 4 is allowed and she is impleaded as party respondent in the OA. The other prayer made in the MA shall be dealt with while deciding the OA.
O.A. No. 585/2024 and OA No. 1274/2024 :-
Since both the OA Nos. 585/2024 and 1274/2024 have a common question for adjudication hence both of them are decided by a common order. Facts of OA No. 585/2024 being the leading case, are discussed below for better adjudication. This is second round of litigation. The instant OA has been filed by the applicants under section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
“A. To quash the order dated 05.12.2023 passed by the respondents is unsustainable and improper in the eyes of law;
B. To direct the respondents to regularise the services of the petitioners from the date of initial appointment with consequential benefits;
Or
To direct the respondents to regularise the petitioners services in view of Sonia Gandhi & Ors. Vs. GNCTD & Ors., read with Narinder Kumar Tiwari Vs. State of Jharkhand & Ors. (2018) 8 SCC 238 judgement as one time measure;
Or
To direct the respondents to frame a policy for regularisation of the applicants to the post of House Father and Mother;
C. To direct the respondents to make appropriate provisions in the Recruitment Rules for absorption of the applicants to the post of Welfare Officers as done by the respondents in the case of Probation Officers under the orders of the Hon'ble High Court of Delhi in case bearing CWP No. 5681/2014 titled as "Kiran Sharma vs. GNCT of Delhi & Ors."
D. To direct the respondents for granting HRA (House Rent Allowance) and TA (Travelling Allowance) w.e.f. 21.04.2015 when the contractual welfare officers were granted HRA and TA by the respondents along with the arrears as per direction of the Hon'ble CAT vide O.A. No. 2050/2014 titled as "Shashank Singh Tomar & Ors. Vs. Sh. Vijay Kumar Dev & Ors." and O.A. No. 1326/2015 titled as "Dev Raj Singh & Ors. Vs. Sh. Kewal Kumar Sharma & Ors." respectively;
E. To pass any order(s) as deemed fit and proper in the interest of justice.”
The factual matrix of the case as per the counsel for the applicants is that the applicants are 42 in number in respect of the post of House Father and 37 in number in respect of the post of House Mother. It is their case that they were initially engaged during December, 2012 to January, 2013 and have continued to discharge the duties attached to the respective posts for more than ten years. According to the applicants, their appointments were made after issuance of advertisement, consideration of applications and interview by the competent authorities and they were appointed against sanctioned posts. They have asserted that they have continued to discharge their duties satisfactorily and their contractual engagements were extended from time to time by the respondents. The fact that the applicants had initially joined the respondents on contractual basis during December, 2012 to January, 2013 against sanctioned posts was also noticed by the Tribunal while considering their prayer for interim relief. It is further the case of the applicants that despite their long and satisfactory service, the respondents did not take any steps for their regularization. They claimed that they had acquired considerable experience while working on the posts in question and that the duties being performed by them were of a perennial nature. Also continued engagement of persons on contract for more than a decade, against sanctioned posts, amounted to an unfair and impermissible practice of keeping employees temporary for an indefinite period. They also relied upon the Recruitment Rules governing the posts and contended that at the time of their initial engagement, the applicable Recruitment Rules did not contemplate the written examination which is now being insisted upon for regular recruitment. According to them, they possessed the requisite educational qualification and experience at the relevant time and their initial selection was made after inviting applications through advertisement and conducting interviews. They therefore claimed that their initial entry into service could not be characterized as a back-door entry or an appointment made without following any selection process. Further they had rendered more than ten years of continuous service and had become overaged by the passage of time. According to them, if they were now required to compete with fresh candidates in an open competitive examination, their long years of service would become wholly irrelevant and they would effectively lose the opportunity of securing regular appointment on the very posts against which they had been working for several years. The applicants therefore asserted that their long service, experience, satisfactory performance and the fact that they had been working against sanctioned posts entitled them at least to consideration for regularization. The applicants also referred to the action taken by the respondents in other cases relating to contractual employees of the Department of Women and Child Development. In particular, reliance was placed upon the case concerning Protection Officers and upon the decision of the Tribunal in O.A. No. 2332/2002 - Kusum Lata & Ors. vs. Government of NCT of Delhi & Ors., wherein according to the applicants, contractual employees working in the Department had been granted relief of regularization. They contended that similarly situated employees could not be treated differently without any rational basis. They also relied upon the judgment of the Hon’ble Supreme Court in Narender Kumar Tiwari & Ors. vs. State of Jharkhand & Ors., - (2018) 8 SCC 238, as well as other judgments dealing with regularization of employees who had served for long periods. They argued that the judgment in State of Karnataka vs. Uma Devi (3) – (2006) 4 SCC 1, could not be treated as an absolute prohibition against regularization in every case and that employees whose initial appointment was not illegal and who had served for a substantial period against sanctioned posts could still be considered in accordance with law. It was further submitted on behalf of the applicants that their appointment was neither concealed nor made through any private arrangement. Rather, applications had been invited from eligible persons, pursuant to which they participated in the selection process and thereafter they were appointed by the competent authority. The applicants thus maintained that their initial entry was substantially in accordance with the constitutional requirement of fair opportunity and could, at the highest, be termed irregular and not illegal. They also questioned the respondents’ reliance upon the contractual nature of their appointment. It was argued that merely because the appointment letters described the engagement as contractual and stated that such engagement would not confer a right of regular appointment, the respondents could not perpetually continue the applicants on contract against posts which were required on a regular basis. Reliance was placed upon the principles stated by the Hon’ble Supreme Court in Central Inland Water Transport Corporation Ltd. vs. Brojo Nath Ganguly - AIR 1986 SC 1571, and Indian Oil Corporation Ltd. vs. Sh. Niloufer Siddiqui & Ors., - (2015) 16 SCC 125, in support of the contention that an unconscionable contractual condition could not defeat substantive rights. The applicants also relied upon the fact that the Department had, from time to time, extended their contracts on the basis of their performance and had continued to utilize their services for more than a decade. According to them, such conduct of the respondents demonstrated that there was a continuing requirement of the services of House Fathers and House Mothers and that the plea that their engagement was merely a temporary stop-gap arrangement was not genuine. It was further submitted that the respondents themselves had taken administrative steps for increasing the number of posts of House Father/House Mother and had also issued instructions concerning appraisal of contractual employees for extension of their engagements. These circumstances showed that their services were required on a continuing basis and that the respondents could not take advantage of their own failure to make regular recruitment for several years. It was also argued that the applicants had been denied the benefit of regular appointment for reasons attributable entirely to the respondents. Having been continuously retained for more than ten years, the applicants claimed that they had developed a legitimate expectation that their services would be regularized, particularly when they were discharging duties against sanctioned posts and no regular recruitment had been undertaken for a considerable period. The applicants further challenged the Advertisement No. 05/2024 dated 05.03.2024 to the extent that it sought to fill up the very posts against which they were working. It was submitted that permitting the respondents to fill up the posts through fresh recruitment, without first considering the applicants’ claim for regularization, would render the OA infructuous and would cause irreparable prejudice to the applicants. On 27.04.2024, while considering the prayer for interim relief, the Tribunal recorded the submissions of learned Senior Counsel appearing for the applicants that they had been working against the posts since December, 2012/January, 2013, that they had been selected by the competent authority and had continued for more than ten years. The Tribunal also noticed that the very posts on which the applicants were working were included in the advertisement issued by the respondents. In those circumstances, interim protection was granted directing the respondents to maintain status quo regarding the services of the applicants and restraining them from filling up 42 posts of House Father and 37 posts of House Mother, subject to the further directions contained in the said order. Learned counsel appearing for the applicants, therefore, submitted that the applicants had established a strong prima facie case for consideration of their claim for regularization and that the impugned recruitment process ought not to be permitted to defeat their legitimate claim. It was argued that the OA deserved to be allowed by directing the respondents to regularize the applicants with all consequential benefits, or at least to consider their cases for regularization in accordance with the applicable policy and the law laid down by the Hon’ble Supreme Court.
The counsel for the applicants argued assiduously on the following grounds :-
“1.The hon'ble High Court of Delhi vide Order dated 09.10.2019 passed in W.P.(C) No. 214/2015 titled as "GNCTD & Ors. Vs. Kiran Sharma & Ors. in compliance of the said order the respondents have regularised the services of contractual protection officers who though appointed by an advertisement but was not appointed against the sanctioned posts. Whereas in the present case the applicants have been appointed on the basis of advertisement and on sanction posts of House Father and House Mother. True copy of Appointment Letters dated 22.06.2012 of protection officers on contractual basis along with its typed copy is annexed as ANNEXURE-A/22.
2.The rejection order dated 05.12.2023 of the respondents is based on untenable reasoning and against the settled law. The educational qualification in case of regularisation of the employees are scrutinised qua the date of initial appointment and not subsequent dates. The legal aspect of the entire matter is whether the applicants claiming the relief of regularisation fulfils the educational qualification required at the time of their initial appointment or not. The hon'ble Supreme Court in case of Chander Mohan Negi Vs. State of Himachal Pradesh (2020) 5 SCC 732 has clarified the law and directed for regularisation of the teachers even who were lacking the educational qualification required as per Recruitment Rules at the time of initial appointment but has subsequently acquired that educational qualification. In the present case the applicants not only fulfil the required educational qualification at the time of initial appointment but also most of the applicants have subsequently acquired higher degrees.
3.The rejection on the claim of regularisation on the basis that the letter of appointment stipulated no right for regulation clause is not legally tenable as the hon’ble Supreme Court in Case of Central Inland Water Transport Corpn. Ltd. Vs. Brojo Nath Ganguly (1986) 3 SCC 156 which has been followed in case of DTC VS. Mazdoor Congress 1991 Supp (1) SCC 600 has clarified that the arbitrary condition entered in the letter of contract by the State is not binding and the same must be set aside by the court when the issue of regularisation is to be decided. The relevant paragraph is reproduced hereunder:
“89.Should then our courts not advance with the times? Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by, leaving us floundering in the sloughs of nineteenth-century theories? Should the strong be permitted to push the weak to the wall? Should they be allowed to ride roughshod over the weak? Should the courts sit back and watch supinely while the strong trample underfoot the rights of the weak? We have a Constitution for our country. Our judges are bound by their oath to "uphold the Constitution and the laws". The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infra-structural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances."
Even in recent judgment, i.e., Indian Oil Corporation Limited Vs. Nilofer Siddiqui and Others (2015) 16 SCC 125 passed by the hon'ble Supreme Court relying on the case of Central Inland Water Transport Corpn. Ltd. Vs. Brojo Nath Ganguly (1986) 3 SCC 156 made the following statement which is reproduced hereunder:
"32.We agree with the contentions advanced by Mr. Sibal that condition no. 8 of the letter of allotment is unconscionable as it gives IOCL an unfettered right to terminate the distributorship without assigning any reason. In the instant case, respondent no. 2 is far weaker in economic strength and has no bargaining power with IOCL. At the time when the letter of allotment was issued, respondent no. 2 had no other means of livelihood and was dependent on the grant of Indane Gas agency by IOCL for sustenance of himself and family members. The letter of allotment contains standard terms and respondent nos. 2 and 3 had no opportunity to vary the same."
4.The applicants have rendered more than ten years of services on contractual basis pursuant to proper advertisement, sanctioned posts, fulfilling educational qualification. therefore, rightfully entitled to regularisation and also entitled for equal pay for equal work and other such reliefs.
5.The practice of extracting services of permanent nature on contractual basis has been condemned by Hon'ble Supreme Court in case of SLP(C) 23809/2010 "Radha Dubey v. Govt. of NCT of Delhi & Ors." in order dated 16.08.2010 made the following observation that, "We are prime facie of the view that appointment of the person on contract basis for uninterrupted period of ten years amounts to exploitation."
6.The Hon'ble Supreme Court in case of Sheo Narain Nagar & Ors. v. State of Uttar Pradesh & Ors. (2018) 13 SCC 432 has deliberated on the plight of contractual employees in the following words "The spirit of the Uma Devi (supra) has been ignored and conveniently overlooked by various State Governments authorities. We regretfully make the observation that Uma Devi (supra) has not been implemented in the true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularizing the services of incumbents. In heydays of life, they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destitute, there being no provision for pension, retiral benefits etc. There is clear contravention of constitutional provisions and aspirations of downtrodden class.
7.The acts of the respondents are violative of Article 14, 16 and 39(c) of Constitution of India as the applicants are not treated equally regarding their salary and other benefits in comparison to other contractual staffs within the organization and in comparison, to other staffs outside the organization and the regular employees of the organization. The hon'ble Supreme Court in the case of Randir Singh Vs. Union of India AIR 1982 SC 879 held that equal pay for equal work although not expressly declared to be a fundamental right is clearly a constitution goal under Article 14, 16, 39(c) of Constitution of India and can be enforced by the court in cases of unequal scales of pay based on irrational classification. The hon'ble Supreme Court in cases of Daily Casual Labour vs. Union of India 1988 1 SCC 122 held that the doctrine of equal pay for equal work is equally applicable to a temporary or casual employee performing the same duties.
8.The appointment of applicants has taken place in conformity with Article 14 and 16 of the Constitution of India wherein the posts were duly advertised and inter se merit was assessed by a committee comprising of experts. Therefore, the appointment of applicants is not illegal.
9.All parameters of fair recruitment were followed in the recruitment of the applicants and there was no infraction of any rule or statute or constitutional provision in the appointment of applicants.
10.That ideal of every good governance is to secure its employees financially and otherwise to get the better services but in the present case, the respondents are not empathizing with the plight of the applicants.
11.Despite Officer Memorandum dated 13.08.2020 and Circular date 23.09.2020 directing the officials to take steps to regularize the applicants, some officials from the respondents' departments are conspiring to scuttle the process of regularization forever.
12.The State which is indeed a welfare State cannot push its employees in perilous condition by extracting work for almost a decade and then terminating them. The State cannot be permitted to exploit the economically venerable conditions of employees/applicants. On the contrary, the State is duty bound by the virtue of Directive Principles of State Policy to ensure adequate means of livelihood to its citizens and to provide economic justice to its citizens in addition to social and political justice reference may be had of Article 38 and 39 of Constitution of India. Withdrawing the regularisation of the applicants who have rendered service for more than ten years would be a gross economic injustice inflicted by the State which is duty bound to act as welfare State. It is no more res-integra and settled by the intermittent judgement of the hon'ble Supreme Court of India that the provision of Part IV, i.e., Directive Principles of State Policy is not a dead letter or mere a utopian norm is not endeavoured to be followed rather hon'ble Supreme Court of India in case Minerva Mills have raised the status of Directive principle akin to fundamental rights and has commanded to treat Part III and Part IV harmoniously. In paragraph 56 of Minerva Mills Ltd. and Ors. Vs. Union of India and Ors. 1981 SCR (1) 206. The Hon'ble Supreme Court of India held:
"56.The significance of the perception that Parts III and IV together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution is to be traced to a deep understanding of the scheme of the Indian Constitution. Granville Austin's observation brings out the true position that Parts III and IV are like two wheels of a chariot, one no less important than the other. You snap one and the other will lose its efficacy. They are like a twin formula for achieving the social revolution, which is the ideal which the visionary founders of the Constitution set before themselves. In other words, the Indian Constitution is founded on the bedrock of the balance between Parts III and IV. To give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution."
Clause II of Article 41 (DD BASU 14th edition shorter constitution of India): "Job security' is an ingredient of the 'right to work' read in the light of the philosophy of socio-economic justice. Hence Court will see that the Government does not employ casual labour and then to terminate their services after a fairly long time, taking advantage of technical rules. In such a case Court would issue a direction to the Government to regularize such employees."
page 1870 para 3 of DD Basu 14th edition shorter Constitution of India: "The Supreme Court has laid down that in view of the Directives in Part IV of the Constitution, including Art 41, the Government should instead of terminating the services of those ad-hoc employees who are serving for a reasonably long period and possess the requisite qualifications for regular appointments, should be 'regularised' in consultation with the Public Service Commission if necessary."
Therefore, not regularising the applicants after extracting more than ten years of services and giving their posts to private outsourcing agency would be unfair and unjust.
13.In case of Sachin Ambadas Dawale v. The State of Maharashtra (2014) 3 AIR BOMR 11, the ld. Division Bench of the hon'ble Bombay High Court held that the contractual appointees cannot be deprived of the right of regular employment when their entry in the service is not illegal or irregular or through the back door. Paragraph numbers 14, 15, 16, 17, 22 of the said decision are extracted as below:
"14.In the facts of the present case, the Government did not hold selection through MPSC for a period of more than 10 years and selected the Lecturers only through the selection process as provided under the said Government Resolution and the petitioners were duly selected through that process. The respondent - State has extracted the work from the petitioners for years together. Now, by efflux of time and on account of the respondent - State not holding the selection process for years together, many of the petitioners have become over-aged and would not be in a position to participate in the selection process through MPSC. It could be clearly seen that the issue before the Apex Court in case of Secretary, State of Karnataka & Ors. V/s. Umadevi & Ors. (Supra) was pertaining to the appointments which were made clandestinely and without advertisement and the persons were appointed without following due selection process. The facts of the present case are totally different. In the present case the petitioners have been appointed after the posts were advertised, they were selected in a selection process by Committee of Experts duly constituted as per the said Government Resolution. In that view of the matter, the law laid down by the Apex Court in the case of Secretary, State of Karnataka & Ors. V/s. Umadevi & Ors. (supra) would not be applicable to the facts of the present case.
15.The submission of the Government of Maharashtra that whether the posts should be filled in on regular basis or contractual basis is a matter of policy and falls within the domain of the Government of Maharashtra (employer), does not appeal to us. It being an admitted position that the posts, in which these employees have been appointed and continued for a considerable length of time, on contractual basis, are regular and full time posts; the appointments in these posts cannot be at the whims and fancies of the Government of Maharashtra. The State cannot adopt a policy of hire and fire or use and throw.
16.In our view the submissions made on behalf of the respondents relying on the judgment in the case of Secretary, State of Karnataka & Ors. V/s. Umadevi & Ors. (supra) would not be applicable in the facts of the present case. It is undisputed that the posts, in which the petitioners are working, are sanctioned posts. As discussed earlier, the Government of Maharashtra had issued the resolution dated 2nd August, 2003 by which the Selection Committee came to be constituted for the selection of the candidates. The respondents have not disputed that though the petitioners were initially appointed for a fixed term, they are continued in service. It is not disputed that the leave facility is made available by the resolution dated 18th February, 2006 to such employees.
The respondents have stated in their affidavit that the monthly pay to these 34 wp2046.10 employees has been increased. It is not disputed that the petitioners are having the qualifications required for the posts in which they are working. The respondents have not disputed that the appointments for the teaching posts are taken out of the purview of the MPSC as informed by the communication dated 29th March, 2008.
17.The submission on behalf of the respondents relying on the judgment of Secretary, State of Karnataka & Ors. V/s. Umadevi & Ors. (supra) cannot be accepted in the facts of the present case. In above case, the Hon'ble Supreme Court has observed in paragraph 3 of the judgment that the States have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission "or otherwise as per the rules adopted" and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. The Hon'ble Supreme Court has observed that Courts should desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. In the present case though the petitioners are not selected through MPSC, it is undisputed that the petitioners are selected after the procedure for selection is followed and through the duly constituted Selection Committee as constituted by the Government of Maharashtra. The advertisement was issued before the petitioners were selected and all interested candidates had applied for the posts for which the petitioners are selected. Thus, it cannot be said that the petitioners have got the employment through back door entry. It cannot be said that the candidates qualified for the posts were deprived of the opportunity to compete for the selection for the posts in which the petitioners are working.
22.The respondents are directed to regularize the services of such of the petitioners and confer permanency on such petitioners who have completed three years' service with technical breaks. The respondents shall absorb the petitioners within a period of six weeks. Needless to state that the petitioners who are in continuous employment till 15.10.2013 shall be continued in service as regular employees”
14.The applicant’s appointments were appointment where due procedure was followed. So far as the procedure is concerned, the appointment of the applicants took place in the manner which was proper and according to constitutional mandate. The Hon’ble Supreme court in case of Uma Devi while referring to Judgment in case of Union Public Service Commission vs. Girish Jayant Lal Vaghela observed as under:
“THE APPOINTMENT TO ANY POST UNDER THE STATE CAN ONLY BE MADE AFTER A PROPER ADVERTISEMENT HAS BEEN MADE INVITING APPLICATIONS FROM ELIGIBLE CANDIDATE AND HOLDING OF SELECTION BY A BODY OF EXPERTS OR A SPECIALLY CONSTITUTED COMMITTEE WHOSE MEMBERS ARE FAIR AND IMPARTIAL THROUGH A WRITTEN EXAMINATION OR INTERVIEW OR SOME OTHER RATIONAL CRITERIA FOR JUDGING INTER-SE MERIT OF CANDIDATES WHO HAVE APPLIED IN RESPONSE TO ADVERTISEMENT MADE. A REGULAR APPOINTMENT TO A POST UNDER THE STATE OR UNION CANNOT BE MADE WITHOUT ISSUING ADVERTISEMENT IN THE PRESCRIBED MANNER WHICH IN SOME CASES INCLUDE INVITING THE APPLICATIONS FROM THE EMPLOYMENT EXCHANGE WHERE ELIGIBLE CANDIDATE GET THEIR NAMES REGISTERED. ANY REGULAR APPOINTMENT MADE ON A POST UNDER THE STATE OR UNION WITHOUT ISSUING ADVERTISEMENT INVITING APPLICATIONS FROM ELIGIBLE CANDIDATES AND WITHOUT HOLDING A PROPER SELECTION WHERE ALL ELIGIBLE CANDIDATES GET A FAIR CHANCE TO COMPETE WOULD VIOLATE THE GUARANTEE ENSHRINED UNDER ARTICLE 16 OF THE CONSTITUITION OF INDIA."
This definition is further corroborated by M.L.Kesari judgment. Para 5 (ii) of M.L.Kesari Judgement is extracted as below: "5) (II) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular."
15.In case of State of Gujarat and others v. PWD Employees Union and Others (2013) 12 SCC 417. In this case, the Apex Court had expressed considered view that when the process of recruitment is consistent with Articles 14 and 16 of the Constitution of India, the employees are entitled to all the benefits of service including regularisation of service. It has further held that the decision in Uma Devi's case has no application for daily wage employees who are engaged in job which are perennial in nature and whose initial appointments are neither illegal nor irregular.
16.In case of Nihal Singh and Others vs. State of Punjab and Others (2013) 14 SCC 65, the Apex court has emphasized that when the petitioners are appointed in accordance with the constitutional scheme, the judgment in Uma Devi's case does not come in the way of regularisation of their services. When the appellant's appointments are neither illegal nor irregular and when they are appointed against the sanctioned posts, they are entitled to have their services regularised. The hon'ble Supreme Court has observed that the judgment in Secretary, State of Karnataka and Others vs. Umadevi and Others (2006) 4 SCC 1 (hereinafter referred to as 'Umadevi case') cannot become a licence for exploitation by the state and its instrumentalities, further it has come down heavily on the public sector for enjoying the cheap labour over a period of decades.
17.In case of Union Public Service Commission versus Girish Jayanti Lal Vaghela and others reported in 2006 (2) SCALE 115. The Hon'ble Supreme Court has held-
"Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words "employment" or "appointment" cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution. (See B. S. Minhas Vs. Indian Statistical Institute and Others AIR 1984 SC 363)."
18.In case of Shankar Kachchap and Ors v. Drinking Water And Sanitation Writ Petition (C) No. 3382 of 2016. In the above case, the hon'ble High Court has held that temporary/ ad-hoc/ daily wage employees if appointed in a regular manner are entitled to get regularised and their regularisation is not dependent on one time scheme for regularization. They can be regularised anytime by the State if the initial appointment is according to the Constitutional scheme of public employment. Framing one time scheme for regularization is for those ad-hoc/ daily wage/ temporary employees who were irregularly appointed. Paragraph number 10, 11 is extracted as below:
"10.In the first place, it needs to be recorded that claim of the petitioners is for regularisation of their services, but not in terms of the Regularisation Rules of 2015. They are not illegally appointed daily wages workers and by virtue of Award dated 29.06.2005 they must be treated as regularly appointed employees under the respondent State. Onetime scheme floated by the State of Jharkhand vide Notification dated 13.02.2015 is not the only scheme for regularisation. It is also not true that a daily wage worker, though not irregularly appointed, can be regularised only by framing onetime scheme for regularisation. Real import of the decision in Secretary, State of Karnataka and Others vs. Umadevi and Others (2006) 4 SCC 1 (paragraph no. 53) is that minor procedural lapse in appointment should not end in termination of service. It is in the nature of recognition of a right in the ad-hoc/daily wages/temporary employees who were irregularly appointed."
19.Hon'ble Supreme Court in case of "Narinder Kumar Tiwari v. State of Jharkhand & Ors." (2018) 8 SCC 238 has condemned the practice of extracting contractual services for decades and to oust them under one pretext to the other. The Hon'ble SC held that "The purpose and intent of the decision in Umadevi was therefore two-fold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continue with the irregular appointments for almost a decade after the decisions in Umadevi is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregular appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the swords of Damocles over their head. This is precisely what Umadevi and Kesari sought to avoid."
20.In case of Life Insurance Corporation of India and another, etc. v. Kailash Nath and Others, etc. (2008) 1 UPLBEC 472. The hon'ble High Court upheld that Uma Devi (supra) discouraged the tendency of regularisation of the services obtained by the employees following back-door process and logically discarded unfair employment practice and concluded that if the appointments concerned are temporary in nature then either one has to keep the employees for a fixed period or project where work of temporary nature can be seen but cannot be allowed to continue in the garb of temporary work when in effect the work is of permanent nature. Paragraph number 6 is extracted as below:
"6.According to us, there is a big gap between an appointment following a back-door process and an appointment following due process of law. It is true. If the second method of appointment is adopted by an employer and allowed to continue indefinitely without regularisation then it will obviously lead to unfair labour practice. If the persons who were appointed although irregularly under the nomenclature temporary but following the due process of selection and cannot get the benefit of regular employee even after rendering 15 years of services, the LIC being instrumentality of the Union is bound to consider merit of the individual cases. Despite existence of the ratio of Uma Devi (supra), in a case of daily wager of the concerned Forest Department a Division Bench of this Court in 2006 (2) ADJ 232 (All) (DB) (State of U.P. and Ors. v. Mata Deen) relying upon the Supreme Court Judgment reported in (2002) 2 UPLBEC 1595 (State of U.P. and Ors. v. Putti Lal) held that since the daily wager is working in the Forest Department being placed on the similar footing as it has been held in the case of Putti Lai (supra), the State is bound by the order of the Supreme Court and accordingly the appeal was dismissed by upholding the order of the learned Single Judge for the purpose of consideration of representation about the regularisation of service of the petitioner. The Supreme Court dismissed the appeal from such order in limine as reported in 2007 (7) ADJ 413 (SC) (State of U.P. and Ors. v. Mata Deen). Therefore, each and every case has to be guided by its own factual basis keeping on the back of the mind the general principle laid down by the Supreme Court in Uma Devi (supra). The case of the writ petitioners/petitioners stands on a much better footing than the case of Mata Deen (supra). ……….
6.1Against this background, it is necessary to see what is the meaning of "temporary". As per Black's Law Dictionary, Sixth Edition, temporary means, as under:
"Temporary." That which is to last for a limited time only, as distinguished from that which is perpetual, or indefinite, in its duration. Opposite of permanent.
In Law Lexicon, 1997 Edition, meaning of "temporary" is as follows:
Temporary. Lasting or intended to last only for a time. "Temporary" means lasting for a time only; existing or continuing for a limited time; not of long duration; not permanent; transitory; changing; lasting for a short time.
Therefore, temporary lasts for limited period when permanent lasts for unlimited period. But when temporary lasts for unlimited period, it contradicts the province……………………”
21.The decision to make appointment on contractual basis has been taken due to the exigency where there was great need of instructors for proper instructions of the students in the institutions which was necessitated owing to the failure of the Respondents to make timely recruitment of instructors. Therefore, the appointment of Applicants is by no stretch of imagination can be termed to be illegal as the Hon'ble Supreme Court in case Chander Mohan Negi and Ors Vs. State of Himachal Pradesh and others (2020) 5 SCC 732 has held that contractual appointment made pursuant to a policy decision of the government cannot be termed to be illegal.
22.The ld. Central Administrative Tribunal in the case bearing O.A. No.1206/2018 titled as “Shashank Singh Tomar & Ors. Vs. Govt. of NCT of Delhi & Ors.” vide judgement dated 22.12.2023, stated as under,
“8.On perusal of the pleadings on record, we find that the Hon’ble Chief Minister of Delhi while considering the regularization of Protection Officers vide Office Note dated 04.07.2017 had observed as under:
"4.The representation also states that Department of Social Welfare, Women & Child had appointed Protection Officers in the years 2007, 2008 and 2010 and attention is also invited to Hon'ble High court of Delhi Order in the matter WP (C) 5681/2014 titled Kiran Sharma & Ors. Vs. Govt. of NCT of Delhi wherein it has been mentioned that "...the GNCTD shall also indicate steps taken to create regular posts of protection officers under the Protection of women from Domestic Violence Act, 2005, and indicate the appropriate measures that may be taken to absorb the existing protection officers who are discharging the duties and function indicated to them under Section 30, since they are performing the statutory function assigned to them under the said Act..." (copy enclosed).
5.It has also been mentioned that in the case of Protection Officers Department notified Recruitment Rules on 30.3.2016 wherein it has been mentioned in para 7 that "7. Initial Constitution - The incumbent holding the posts of Protection Officer on the date of issue of this notification shall be deemed to have been appointed in accordance with the provisions of these rules provided they are deemed to have fulfilled all the eligibility conditions as specified under the Recruitment Rules to the post and having been declared as eligible by a Screening Committee constituted by the Appointing Authority to the given post. Matter relating to probation and other terms and conditions of the service/post may be determined in accordance with the extent DOP&T guidelines as applicable thereto." (copy enclosed).
6.Similarly, representation has been given by House Father's (Contractual) persons [Copy enclosed].
7.It is directed that as per above said judgment of Hon'ble Courts and as per the recent precedent of Protection Officers, the Welfare officers/Protection Officers and House Father's (Contractual) may be regularized, under the policy of this Government...."
11.CONCLUSION 11.1 In the result, for the foregoing reasons, we quash and set aside the impugned orders/actions of the respondents placed at Annexure A/1 and A/2. We allow the present OA with a direction(s) to the respondents to implement the aforesaid policy decision by regularizing the services of the applicants giving them one time relaxation as done in the case of Probation Officers in terms of the orders of Hon'ble High Court of Delhi in Kiran Sharma (supra). The said exercise shall be completed within a period of three months from the date of receipt of certified copy of this order. The consequential relief(s) shall follow on notional basis and on actual basis upon actual joining."
23.In the case bearing W.P.(C) No. 6798/2002 titled as "Sonia Gandhi & Ors. Vs. GNCTD & Ors." vide judgment dated 06.11.2013, the hon'ble High Court of Delhi gave the following directions which are stated below:
"22.Accordingly, we issue another direction and simultaneously dispose of the two writ petitions. The direction would be that the Government of NCT Delhi would carry out a manpower requirement assessment in all its departments keeping in view the fact that the population in Delhi has crossed 1.7 crore persons. Such number of posts shall be sanctioned as are necessary to provide services to the citizens of Delhi. A one time policy of regularization shall be framed and existing rules pertaining to service in different departments shall be amended. Existing contractual employees shall be considered for appointment to these new posts as per a policy framed. 23. We note that as recent as on October 28, 2013, deciding W.P.(C)No.6260/2013 UPSC Vs. Dr. Akshay Bahadur & Ors., we had taken note of the fact that the Government of NCT of Delhi had tackled the problem of 529 contract appointed Junior Specialists and Doctors by repealing the existing Delhi Health Services (Allopathy) Rules with the Delhi Health Services (Allopathy) Rules, 2009. In the Schedule of Posts, in addition to the existing sanctioned posts 529 posts were added and Rule 6 of the new Rules stipulated that said posts would be treated as on the date of the constitution of the cadre and that 529 contract appointed Junior Specialists and Doctors would be appraised for purposes of their suitability by UPSC and appointment made to the cadre post."
During hearing, the counsel for the applicants handed across the Bar copies of various judicial precedents relied upon by him which are listed below :-
Namita Khare and Another vs. University of Delhi & Others – 2025 SCC OnLine Del 4891;
Jaggo vs. UOI & Ors. – 2024 SCC OnLine SC 3826;
Pawan Sharma & Ors. vs. Govt. of NCT of Delhi (Batch) – W.P (C) No. 2117/2025 and batch dated 10.11.2025 and
UPSC vs. Dr. Akshay Bahadur & Ors. – W.P (c) No. 6260/2013 dated 28.10.2013
The counsel also handed over a copy of the gazetted notification dated 26.10.2007 of the Ministry of Women and Child Development wherein he highlighted para 68 which reads as under :-
“68.Personnel or Staff of a Home xxxxxxx xxxxxxx xxxxxxx
(3)The whole-time staff in a home may consist of Officer-in-charge, Probation Officer (in case of Observation home or Special home), Case Workers (in case of Children's home or shelter home or after care organization), Child Welfare Officers, Counselor, Educator, Vocational Training Instructor, Medical Staff, Administrative staff, Care Takers, house father and house mother, child mentors, volunteers, store keeper, cook, helper, washerman, safai karamchari, gardener as required.”
Per contra, learned counsel appearing for Respondent Nos. 1 and 2, namely the Government of NCT of Delhi and the Department of Women and Child Development opposed the OA and submitted that the entire claim of the applicants proceeds on a fundamental misconception regarding the nature of their engagement. It was submitted that the applicants were never appointed on regular basis. They were engaged purely on contractual basis for a fixed period and their engagement was subject to the terms and conditions contained in their appointment letters. The respondents explained that the Department of Women and Child Development is engaged in welfare activities concerning women and children and runs, inter alia, Children Homes, Observation Homes and other institutions. Due to shortage of staff, contractual House Fathers and House Mothers were engaged as a stop-gap arrangement depending upon the requirements of the Department. The contractual employees were paid remuneration from the normal budgetary grants of the Government. It was submitted that regular employees on the posts of House Father and House Mother are appointed through the prescribed direct recruitment procedure, pursuant to requisition by the Department and recruitment by DSSSB in accordance with the Recruitment Rules. The benefits applicable to regular employees were not available to contractual employees because the latter were appointed only for a fixed period. The appointment letters specifically provided that the contractual engagement was purely temporary and would not confer any right upon the appointees for regular appointment. Learned counsel for the respondents further submitted that the applicants had accepted the terms and conditions of their contractual appointment and had continued to work under successive extensions. Each extension was for a limited period and was subject to the condition that the contractual engagement would come to an end upon appointment of regular incumbents. The respondents also submitted that there was no restriction upon the applicants from applying for other posts or participating in regular recruitment. The counsel for the respondents placed strong reliance upon the Constitution Bench judgment of the Hon’ble Supreme Court in Secretary, State of Karnataka & Ors. vs. Uma Devi (3) & Ors. - (2006) 4 SCC 1. He submitted that a person entering temporary, contractual or casual employment without undergoing the prescribed selection process cannot claim regularization merely on the basis of long continuation. The respondents relied particularly upon the principle that courts cannot direct regularization of persons appointed otherwise than through the constitutionally prescribed method of recruitment and that sanctioned vacancies have to be filled through a regular process of selection. It was further submitted that the Government of NCT of Delhi had, in fact, taken steps pursuant to the law laid down in Uma Devi (supra). A one-time measure concerning contractual employees had been framed vide Office Memorandum dated 11.06.2019 and the respondents had subsequently initiated regular recruitment by issuing the relevant advertisement/requisition to DSSSB. According to the respondents, instead of participating in the recruitment process, the applicants were seeking direct regularization, which was not permissible in law. They specifically disputed the applicants’ contention that their appointment had been made in accordance with the Recruitment Rules. The said rules were applicable to the regular posts contemplated direct recruitment through an All India Open Written Examination to be conducted by DSSSB. The applicants, however, had been engaged contractually on the basis of an interview conducted by the Department. Thus, the mode through which the applicants had entered service was materially different from the mode prescribed for regular appointment. The counsel explained that DSSSB is the designated recruitment agency for direct recruitment to Group ‘C’ and Group ‘B’ (Non-Gazetted) posts under the Government of NCT of Delhi. According to him, regular recruitment involves receipt of requisition from the user department, publication of advertisement, invitation of applications, conduct of the prescribed examination, declaration of result and forwarding of dossiers of successful candidates to the concerned department. Any appointment made directly by a department without following the DSSSB recruitment process could not be treated as a regular appointment. He therefore, submitted that the fact that the applicants had been appointed against sanctioned posts did not by itself confer any right of regularization upon them. A sanctioned post could be filled only in accordance with the applicable Recruitment Rules and the constitutional requirement of equal opportunity. The applicants’ contractual appointment against a sanctioned post could not be equated with regular appointment to that post. As regards the applicants’ reliance upon their long service, the respondents submitted that the contractual engagements had been extended from time to time only because regular recruitment had not yet been completed. At every stage the applicants were aware that their engagement was contractual and would come to an end upon appointment of regular incumbents. The respondents specifically denied that mere continuation for a long period could convert a contractual appointment into a regular appointment. The respondents further submitted that the applicants had been paid remuneration in accordance with the Finance Department’s Office Memorandum dated 20.01.2017, which provided for payment to contractual employees on the basis of the minimum of pay or the first level of the applicable pay matrix plus DA. Thus, the applicants had been duly compensated for the services rendered by them in accordance with the terms applicable to contractual engagements. The respondents also disputed the reliance placed by the applicants upon the judgment concerning Protection Officers. It was submitted that the facts relating to the Protection Officers were materially different because, at the relevant time, there were no Recruitment Rules or sanctioned posts governing their contractual engagement. In contrast, in the present case, the Recruitment Rules for House Father/House Mother were already in existence when the applicants were engaged. Consequently, the applicants could not derive any benefit from the decision concerning Protection Officers. In response to the applicants’ reliance upon Sheo Narain Nagar & Ors. vs. State of Uttar Pradesh & Ors.,- (2018) 13 SCC 432, the respondents submitted that the factual situation in that case was different because the relevant Recruitment Rules were not in existence when the concerned employees were engaged, whereas in the present case the Recruitment Rules existed all along. The respondents further submitted that the applicants’ contractual engagements were entered into voluntarily and with their knowledge of the terms and conditions. The contract was not forced upon them and the applicants had accepted the terms governing their engagement. Therefore, they could not subsequently seek to disregard the very conditions on which their appointments were made. Learned counsel for the respondents further submitted that the applicants’ claim based upon Articles 14 and 16 of the Constitution actually operated against them. If persons appointed through a departmental contractual arrangement were granted regular appointment without undergoing the prescribed open competitive examination, it would deny equal opportunity to all other eligible persons who were entitled to compete for the regular posts. Regularization of a person who had not undergone the prescribed selection process would therefore itself be contrary to Articles 14 and 16 of the Constitution.
To buttress their arguments, the respondents relied upon the judgment of the Hon’ble Supreme Court in Ganesh Digamber Jambhrunkar & Ors. vs. State of Maharashtra & Ors., - SLP (C) No. 2543/2023, decided on 12.09.2023, wherein the Hon’ble Supreme Court declined to recognize a vested right to regularization merely because the employees had worked on contractual basis for a long period. They submitted that the said principle applied squarely to the present case, where the applicants had been working contractually for several years but had never acquired a right to regular appointment. They further submitted that the regular recruitment process had already commenced pursuant to Advertisement No. 05/2024 dated 05.03.2024 vide which applications were invited from eligible candidates for, inter alia, 40 posts of House Father/Matron under Post Code 37/24 and 26 posts of House Mother/Matron under Post Code 38/24. The prescribed qualifications included graduation with specified subjects, and the posts were to be filled through the regular recruitment mechanism. The respondents also pointed out that the advertisement specifically contained a provision for one-time relaxation in the upper age limit for contractual employees of the same department, subject to the conditions prescribed by the Government. The relaxation was available up to the actual period spent as a contractual employee, subject to a maximum of five years and fulfillment of the prescribed condition regarding the number of days worked in the relevant year. Thus, according to them, the applicants had not been deprived of an opportunity to seek regular appointment. Rather, a mechanism had been provided whereby eligible contractual employees could participate in the regular recruitment process with the benefit of the prescribed age relaxation. The applicants, however, sought to bypass that process and claimed regularization merely on the basis of their past contractual service. They added that the Recruitment Rules do not contain any provision for regularization of contractual House Fathers or House Mothers. The Rules had been framed and notified after approval of the competent constitutional authority and provided for direct recruitment. The absence of a regularization provision was significant because regular appointment to a public post could not be ordered dehors the statutory Recruitment Rules. It was also submitted that the respondents had not arbitrarily terminated the services of the applicants. Their contractual engagements continued subject to the terms of their contracts and could cease upon appointment of regular incumbents or in accordance with the contractual conditions. Therefore, the applicants could not claim that the respondents were seeking to remove them on an arbitrary or extraneous ground. They further contended that permitting the applicants to claim the regular posts merely because they had been working there for several years would have the effect of giving preference to persons who had entered through a contractual selection process over candidates who were willing to compete in the prescribed open competitive examination. Such a course, according to the respondents, would be contrary to the constitutional scheme governing public employment. He further submitted that the regular recruitment process could not be interdicted merely because contractual employees were already working against some of the advertised posts. The online applications pursuant to Advertisement No. 05/2024 had commenced on 19.03.2024 and were to remain open till 17.04.2024. A number of eligible candidates had already applied. According to the respondents, stopping the recruitment process would prejudice such candidates and would frustrate the constitutional requirement of filling public posts through an open and transparent selection process. It was also submitted that the applicants had not themselves participated in the regular recruitment process and could not therefore claim an enforceable right over the posts which were required to be filled through direct recruitment. They relied upon the settled principle that a contractual employee has no vested right to continue against a post which is required to be filled through regular selection. The respondents accordingly opposed the prayer for regularization as well as the challenge to Advertisement No. 05/2024. It was submitted that the impugned advertisement was issued in accordance with the applicable Recruitment Rules and was part of a legitimate exercise undertaken by the Government to fill sanctioned vacancies through the prescribed recruitment agency. The respondents finally prayed for dismissal of the OA, contending that none of the reliefs claimed by the applicants was legally sustainable.
The counsel for the respondents handed across the Bar a copy of the decision of the Hon’ble Supreme Court in Rajneesh Kumar Pandey & Ors. vs. UOI & Ors. - W.P (C) No. 132/2016 dated 21.04.2026. Along with the written arguments he also supplied a copy of the judgment of the Hon’ble High Court of Delhi in Kumar Mayank vs. Delhi Technological University & Anr. (Batch) – W.P. (C) No. 10368/2016 and connected cases dated 10.11.2016. We have gone through the written arguments supplied by the respondents as well as the judgments cited by them.
Learned counsel for Respondent No.3, DSSSB, adopted a somewhat different position. The counsel representing DSSSB submitted that the DSSSB is the recruitment agency entrusted with recommending suitable candidates for appointment under the direct recruitment quota to Group ‘B’ Non-Gazetted and Group ‘C’ posts under the Government of NCT of Delhi. The recruitment process at DSSSB commences after receipt of requisition from the concerned user department specifying eligibility conditions, age criteria and applicable relaxations. He submitted that the substantive dispute concerning regularization of the applicants was essentially between the applicants and the Department of Women and Child Development, being the indenting/user department. He therefore, claimed that it was only a pro forma party and had no independent role in deciding the applicants’ claim for regularization. He accordingly prayed that its name be deleted from the array of parties.
The counsel for the applicants filed a rejoinder controverting the submissions of the respondents. He submitted that their recruitment as House Fathers and House Mothers was conducted by the respondents through public newspaper advertisements adhering to the provisions of the Juvenile Justice Act and Rules, along with applicable reservation guidelines. He stated that after clearing interviews and submitting medical and character certificates, they were appointed using the standard contractual recruitment mode existent at the time, which aligned with the 1988 Recruitment Rules that required a 10th pass qualification, two years of experience, and no written examination. He asserted that although the initial contracts of the applicants were for one year, their services had been extended continuously for over a decade based on performance appraisals, with no regular recruitment having been conducted during that period. Consequently, all applicants are now overaged. He argued that their work is perennial in nature rather than a stop-gap arrangement and rejected the notion of "perennially temporary" service, citing judgments that deprecate such practices. They relied on CAT orders and government precedents, including O.A. No. 2332/2002, Kusum Lata & Ors. vs. GNCTD - O.A. No. 1206/2018, Shashank Singh Tomar & Ors. vs. GNCTD, and the regularization of Protection Officers in GNCTD vs. Kiran Sharma. They also referred to the Office Note dated 04.07.2017 issued by the Chief Minister of Delhi directing regularization of contractual House Fathers and Welfare/Protection Officers. In response to the contractual restrictions relied upon by the respondents, the applicants contended that such standard and unconscionable clauses, which restrict an employee from claiming regularization, are legally unenforceable in view of the Supreme Court judgments in Central Inland Water Transport Corporation and Indian Oil Corporation Ltd. vs. Niloufer Siddiqui. The counsel further argued that the entry of the applicants was transparent, legal, and in accordance with the 1988 Recruitment Rules against sanctioned posts (which were increased by 58 posts on July 3, 2014), meaning the principles of State of Karnataka vs. Uma Devi do not bar their regularization. They also refer to Chander Mohan Negi vs. State of Himachal Pradesh to maintain that contractual appointments under policy decisions are not illegal. Regarding qualifications and benefits, the applicants clarified that educational eligibility must be assessed as of the date of initial appointment which they all fulfilled and added that many have since obtained higher qualifications. He contended that they are entitled to benefits like House Rent Allowance (HRA) and Travelling Allowance (TA) at par with regular employees based on Department of Women and Child Development orders following O.A. No. 2050/2014 and O.A. No. 1326/2015. Ultimately, the applicants stated that their vast experience serves the department's best interests and prayed that the respondents' rejection order dated December 5, 2023, be set aside to allow their regularization.
The newly impleaded private respondent no. 4 while praying for vacation of the status quo order dated 27.04.2024 of this Tribunal had argued that she having competed in the Open Competitive Examination held in August 2025 for the post of House Mother/Matron (Post Code 37/24 or 38/24) under Advertisement No. 05/2024, was directly affected because the examination results had been withheld due to the status quo order. It was contended that the status quo had been granted by the Tribunal, misinformed by the original applicants, 16 months prior to the examination without analyzing the complete facts, thereby defeating the rule of law and violating Articles 14, 15, 16, 19, and 21 of the Constitution of India. The counsel representing R-4 argued that the contractual employees (original applicants) were initially engaged as Group-D staff through walk-in arrangements without undergoing a transparent, open competitive selection process. It was highlighted that they neither possessed the requisite qualifications nor appeared in the open examination and thus could not claim permanent regularisation or block appointments made via open competition. Relying on precedents set by the Supreme Court including Madan Singh vs. State of Haryana (2026) and The Municipal Council, Nandyal vs. K. Jayaram (2025), it was submitted that contractual appointments could not override constitutional recruitment schemes, and contractual employees were required to be replaced by regularly selected appointees. It was further maintained that while a status quo might protect against arbitrary termination, it should not prevent regular, merit-based selection, and that open exam candidates possessed a fundamental right to equal opportunity under Article 16. It was asserted that maintaining the status quo had inflicted continuous mental, physical, and financial distress on qualified candidates who had been waiting for over 18 months, whereas vacating it would not prejudice the original applicants who had never appeared in the examination. To support her case, the counsel handed over various documents which we have perused and the same are taken on record. Consequently, he prayed for the vacation of the status quo order, and a direction to Respondent No. 3 (DSSSB) and Respondent No. 2 (DWCD) to publish the examination results and issue appointment letters to the successful candidates without delay.
We have given our thoughtful consideration to the rival submissions; examined the documents on record and perused the relevant judgments of Hon'ble High Courts and Hon'ble Supreme Court. We have observed that the applicants as House Fathers and House Mothers, were appointed in 2012 by a ‘Walk-in-interview’ whose advertisement was not published widely in the press by the Department of Social Welfare. This was therefore not a rigorous selection process giving a level playing field to all the aspirants then and there was scant adherence to Article 16 of the Constitution of India - Equality of opportunity in matters of public employment. Given this background, the case of the applicants to be now continued in service and regularised is considerably weakened and they would be bound by the terms and conditions of their contractual engagement which they had accepted voluntarily with their full knowledge and sweet will. Also we have observed that now the Department of Women and Child has taken over from the Department of Social Welfare and the Department of Women and Child has published the new Recruitment Rules (RRs) in 2022. Under the new RRs these posts of House Father and House Mother have been advertised in 2024; a rigorous and meticulous process was undertaken; examination conducted and the results have been published. The candidates who participated in this examination; and have been successful on merit are now waiting to join on these posts. We have further observed that the applicants before us who want to be regularised never sought to seek any age relaxation from the respondents and compete with the candidates who successfully competed in the examination and are now waiting to join these posts. We have further observed that in the light of the above, the facts and circumstances in the instant OA are peculiar and different from the facts and circumstances of the case discussed in the judgment of Hon'ble High Court of Delhi in WP(C) 2117/2025 - Pawan Sharma and others vs. Govt of NCT of Delhi (supra). Now that the respondents have consciously decided to substitute the old ad hoc system of contractual employment of House Fathers and House Mothers with a more rational system of regular appointments through a rigorous and merit based selection system; completed the whole process now and the new candidates are waiting to be appointed, it would be unfair, indiscreet and not judicious on our part to throw a spanner in the works.
In the light of the above, we are of the considered opinion that the balance of convenience in the instant OA clearly lies with the respondents. The OAs - 585/2024 and 1274/2024 are devoid of merit; deserve to be dismissed and are accordingly dismissed. MAs if any are also disposed of in similar manner. However, there will be no order as to costs.