Om Prakash Shukla, J.

1. Heard Shri Anupam Verma and Shri Pramod Kumar Bajaj, learned Counsel for the petitioner and Shri Anurag Srivastava and Shri Yogesh Chandra Bhatt, learned Counsel for the respondents.

2. Petitioner is aggrieved by the judgment and order dated 25.02.2020 passed in Original Application No. 485 of 2018 and the order dated 21.07.2020 passed in Review Application No. 4 of 2020 by the Central Administrative Tribunal, Lucknow Bench, Lucknow (hereinafter referred to as the ‘Tribunal’), whereby both, Original Application (O.A.) No. 485/2018 as well as the Review Application No. 04/2020 filed by the petitioner, have been dismissed.

A. The case before the Tribunal.

3. The petitioner claimed to be appointed as a Telephone Operator with effect from 06.08.2008 on contractual basis with the “Indira Gandhi Rashtriya Uran Akademi” (hereinafter referred to as “IGRUA”) vide letter dated 05.08.2008. As per the case of the petitioner, the term of the contract was extended from time to time and the last such extension was granted to the petitioner vide letter dated 26.05.2016, which provided the contractual term of employment till 31.12.2016.

4. The petitioner alleged that her services were discontinued in an arbitrary manner on and from 01.01.2017, while another employee similarly circumstanced, namely, Smt. Vidya was retained as a Telephone Operator although she had been earlier engaged to work as an Assistant Librarian. Thus, the petitioner claimed that since she had been working for more than 10 years as a Telephone Operator with the respondent-IGRUA and as such she was entitled to be regularized and, thus, claimed the following relief in the original Application filed before the Tribunal; to quote :-

“i. To quash letter No. IGRUA:PF: 2016-17:238 dated 26 May 16 (Annexure no. 1, page 35) vide which the services of the applicant has not been regularized even after continuous service of more than 10 years and meeting all conditions of para 53 of case of Umadevi (supra).

ii. To direct respondents to regularise services of the applicant as per the law laid down by Hon’ble Supreme Court in Uma Devi (supra 2006), M.L. Kesari (supra 2010) and Shiv Narayan Nagar (supra 2017) as applicant meeting all the requirements of Para 53 of Umadevi (supra) with all consequential benefits.

iii. To direct respondents to permit applicant to continue her services and to pay salary and all other allowance etc. as applicable for the period connecting from Jan 2017 (date of discontinuation of service) to date of joining consequent to the order passed by this Hon’ble Court.

iv. To issue any other order or direction which this Hon’ble Court may deem, just and proper in the nature & circumstances of the case as the applicant had to face irreparable personal/professional/social/ financial loss due to acts to respondents through incompetent authority on the dignity of the applicant.

v. To pass any such other order or direction which is just in the present circumstances of the case.

vi. Allow the cost of this application to the applicant.”

5. Obviously the aforesaid prayers were contested by the respondents, who also filed their reply stating that the discontinuation of the service was as per the engagement letter issued to the petitioner and they also raised the issue relating to limitation as is applicable under Section 21 of the Administrative Tribunal Act, 1985. The Tribunal after recording the submission of the parties, vide paragraph 9 of the impugned judgment, enumerated the following key issues for consideration; to quote :-

“i. Whether or not the services of the applicant have been discontinued as per terms and conditions of engagement;

ii. That whether the OA is liable to be dismissed on grounds of being at variance with the liberty granted in the OA 33/2018 by this Tribunal vide order dated 18.09.2018;

iii. That whether the OA is liable to be dismissed on grounds of lack of addressing the delay in filing of the OA itself qua the impugned order/letter;

iv. That whether the services of the applicant ought to have been regularised as prayed in the O.A moreso, can any regularization prayer be considered by this Tribunal without submission of any application by the applicant in this regard before the authorities concerned/respondents earlier.”

6. The Tribunal examining the material facts of records, returned a finding that the challenge to the disengagement of the petitioner could not stand the legal scrutiny as far as the first issue was concerned. Similarly, as far as the second issue was concerned, the Tribunal found the prayer of the petitioner seeking quashing of the letter dated 26.05.2016 to be at variance with the liberty granted to her in earlier round of application filed before the Tribunal and held that the OA was barred by limitation.

7. The Tribunal on merits of the case, found that the petitioner was not able to demonstrate any letter/representation sent to the respondents claiming regularization, which was mandatory before making a prayer to the Tribunal as per the rules. As far as the applicability of paragraph-53 of the judgment rendered by the Hon’ble Supreme Court in the case of State of Karnataka and Others Vs. Uma Devi reported in (2006) 4 SCC 1, the Tribunal found that the said judgment provided for only one time measure for regularizing the services of those who were on roll in the year 2006 and who had put in 10 years of service as on 10.04.2006, which was not the case of the petitioner. The Tribunal also held that the petitioner was not a regular employee of IGRAU, nor was there any claim of she having been replaced by another fresh contractual employee. Thus, the OA filed by the petitioner was found to be without any merit and as such was dismissed vide the impugned order dated 25.02.2020.

8. The petitioner thereafter preferred a review application seeking review of the impugned order (supra), wherein the Tribunal found that by the time, the OA was filed or the writ petition was filed, the petitioner was not continuing on contractual basis and as such it was held that the judgment of State of Haryana and others vs Piara Singh and Ors. reported in AIR 1992 SC 2130 to be not applicable to the facts of the case. The Tribunal also distinguished the judgment of Uma Devi (supra) on facts of the present case and dismissed the review application vide an order dated 21.07.2020.

B. Submission of the Petitioner.

9. Shri Anupam Verma, learned counsel for the petitioner sought to challenge both the impugned orders passed by the Tribunal on various grounds. Additionally, the learned Counsel also sought to challenge order/letter dated 26.12.2016 before this court, on the ground that the same was issued by a person holding a post, which was never created by IGRAU or approved by the Government. The learned counsel vociferously contended that the judgment passed by the Hon’ble Supreme Court in Piara Singh (supra) although referred by him before the Tribunal was not considered and was left out in the final impugned judgment. The learned Counsel sought to justify that there was no delay in filing the OA as apparently this court had relegated the parties before the Tribunal and although this court had granted some interim relief in favour of the petitioner, however, the Tribunal did not consider the same. It was further contended that inspite of direction passed by this court to decide the case on merits, the Tribunal has not decided the same and has considered irrelevant submission of the respondents, while the petitioner claimed for regularization of her service as per the settled proposition of law as laid down in para-53 of the Apex Court judgment in the case of Uma Devi (supra) had not been considered and followed by the Tribunal.

10. On facts, the learned counsel highlighted that the petitioner was rendering her service to the respondent since 1998 as “Telephone Operator” on daily wages basis and subsequently on contractual basis since 2008. It was submitted that although the service of the petitioner was unblemished and she had been continuously working for more than 10 years and the case of the petitioner was a fit case for regularization, however, her services were abruptly brought to an end on 31.12.2016. Blaming the respondent for inordinate delay in filing the counter and thereafter being relegated to the Tribunal, the learned Counsel has sought to rely on a chart incorporated in the writ petition itself to demonstrate that she had been a victim of vexatious proceedings, although she had been diligently pursuing her grievances, since December 2016.

11. The learned counsel, on merits, sought to agitate that reinstatement of another contractual employee in place of the petitioner (contractual employee) was in the teeth of the judgment in the case of Piara Singh (supra). Further, since the petitioner had been continuously working for the last 10 years without any order of the Court on a sanctioned post, her service ought to have been regularized as per law laid down in para-53 of the Uma Devi (supra) and clarified in State of Karnatka Vs. M.L. Kesari : (2010) 9 SCC 247 and Narender Kumar Tiwari Vs. State of Jharkhand : (2018) 8 SCC 238. The learned Counsel also relied on the case of State of West Bengal Vs. Minimum wages Inspector : (2010) 2 SCC 425 to buttress his submission that the petitioner had worked on sanctioned post having qualification for that post and she carried all the functions and responsibilities of that post continuously for 10 years or more and, therefore, the petitioner was entitled for emoluments of the said post of telephone operator as per law.

12. The fulcrum of the argument of the learned counsel for the petitioner is that the Tribunal has expressed its inability in reviewing the impugned order on the basis of the judgment of Piara Singh (Supra) and Uma Devi (Supra) and as such this court is being persuaded to exercise its power of judicial review to consider both the said judgments to the facts of the present case and grant reliefs accordingly.

C. Submission of the Respondents.

13. On facts, the respondents controverted the arguments made on behalf of the petitioner by submitting that the petitioner was engaged as daily wager as “Telephone Operator” during the period from 15.08.1998 to 30.04.2001. However, in view of the intermittent nature of the work, the petitioner was again engaged after a gap of four years for the period from 01.6.2005 to 05.08.2008 on daily wage basis and on contractual basis with effect from 06.08.2008, which was extended periodically from time to time for a period of six months at a time and ultimately the same came to an end on 31.12.2016. The respondents denied having engaged the petitioner on a regular post and relied on the letter dated 05.08.2008 to refer to the terms & conditions of engagement.

14. Shri Anurag Srivastava, learned counsel elaborating further on facts submitted that vide letter dated 06.08.2005, three persons were engaged on contractual basis on the post of “Telephone Operator”, in which the petitioner secured third position and in the said three cases, the respondent had been extending the term of appointment after expiry of six months. He submits that during the process of diversification of activities in the aftermath of the EPABX automation, Mrs. Vidya V, one of the Telephone Operator’s amongst the three, was transferred from Telephone Operator’s job to work in Library vide office order dated 13.10.2009. The learned Counsel also referred to a letter dated 25.10.2016 issued by the Chief Engineer of the respondent relating to man power planning, wherein the Chief Engineer had recommended for requirement of one Telephone Operator in place of three Telephone Operators, pursuant to the modernization and upgrading of the EPABX system. It is the case of the respondent that pursuant to complete automation and there being requirement of only one Telephone Operator, the three available contractual Telephone Operators were assessed for their comparative performance, wherein the petitioner was found to be last. The respondent, thus, retained one Mrs. Indu Jain as Telephone Operator on the basis of merit in performance and who, thereafter, had been allocated the clerical work in Dak Dispatch Section with the reduced work of Telephone Operator. It was in this background that the Manager-HR based on the appraisal of the three operators, communicated vide letter dated 26.12.2016 to the petitioner about her forthcoming expiry of contract on 31.12.2016. The respondents have contended that only one manpower was required for the work of Telephone Operator, which was being performed by two till 31.12.2016 and later on, by the end of 2017, no manpower was required as Telephone Operator and even the said Mrs. Indu Jain has been re-designated as Assistant to perform clerical job in 2018 and presently there is no Telephone Operator working in IGRAU.

15. Explaining the journey of the present lis before this Court, the learned counsel has submitted that in the first round of litigation, the petitioner had challenged the letter dated 26.12.2016 before this Court vide Writ Petition No. 2817 of 2017, wherein this Court vide an order dated 08.02.2017 had directed that no fresh recruitment on the post of Telephone Operator shall be made by the respondents, however, later the said writ petition was disposed on 10.10.2018 on the ground of alternate remedy and parties were relegated to the Tribunal. Before the Tribunal, the petitioner, initially filed OA No. 33/2018, however, the same was withdrawn and thereafter another OA No. 485 of 2018 was filed, which initially although was reserved for interim relief, but the same was dismissed finally on the ground of limitation and merits vide an order dated 24.01.2019. On review being filed by the petitioner, the same was allowed by the Tribunal vide an order dated 20.08.2019. The respondents were not happy with the said order of review by the Tribunal and approached this Court by filing Writ Petition No. 25332/2019, which was dismissed by this Court vide an order dated 06.01.2020 with a direction to the Tribunal to decide the pending OA after providing proper opportunity to the parties in an expeditious manner.

16. On merits, the learned counsel has supported the impugned judgment passed by the Tribunal to be perfectly valid and in accordance with law. It has been submitted that the letter dated 26.12.2016, which has been sought to be challenged by the petitioner is not an order, which intends to terminate the service of the petitioner. According to him, the said letter merely is an intimation that the contract period was expiring on 31.12.2016 and the challenge as such to the said letter was wholly improper. It has been contended that frivolous grounds are being adopted by the petitioner, aimed at pushing the administration into accepting her continuation of contractual appointment. It has also been submitted that the letter dated 26.12.2016 was issued with an advice to obtain clearance from the department at the earliest and submit the same to the finance department, which would enable the respondent to clear the petitioner’s dues. It has also been contended that the post of Manager-HR is already approved by the steering committee and ratified by the Government of India.

17. The learned Counsel has emphatically tried to drive home the point that the petitioner had not been replaced by any other contractual employee, hence the judgment of Piara Singh (Supra) is not applicable to the facts of the present case and as such the contention of the petitioner was misleading to that extent. In any case, it was a case of non-renewal of term of a contractual employee due to reduced manpower requirement owing to automation of EPABX system and not a case of replacement by another contractual employee. No fresh recruitment on the post of Telephone Operator was made by the respondent ever after due to abolishment of the post of Telephone Operator.

18. The learned Counsel for the respondent has repelled the argument of the petitioner for regularization on the basis of Uma Devi (Supra) on the ground that the Tribunal has given a specific finding that the same was not applicable to the facts of the present case. He further submits that even an OM dated 07.10.2020 was issued by the Ministry of Personnel, PG & Pensions, Department of Personnel & Training, wherein it has been clarified that regularization of qualified workers appointed against sanctioned post as per Uma Devi (Supra) was only a one time exercise and it was only applicable to those employee who had put 10 years of continuous service as on 10.04.2006, which is not the present case. The respondent has also tried to refute the contention of entitlement of emoluments as a regular employee by the petitioner on the ground that the work of telephone operator was intermittent in nature and her services were engaged only in the exigency of work. The learned Counsel referring to paragraph-44 of the Uma Devi (Supra), has submitted that the petitioner had only joined as a contractual employee on 06.08.2008, whereas the cut-off date as per the said judgment was atleast 10 years of contractual service till 10.04.2006 to be applicable.

19. The learned Counsel has also submitted that while the petitioner was engaged by the respondent on contract, there was no order issued by the Ministry of Civil Aviation, the administrative ministry, to regularize the services of employees engaged on contractual basis in IGRAU after having been continuously engaged for a specific period of time. The Ld. Counsel has reiterated that the findings and observation of non-applicability of Piara Singh (Supra) and Uma Devi (Supra) by the Tribunal was a correct view. Further, he supported the findings of the Tribunal on limitation and submitted assertively that the Tribunal did not overrule any decision of the Apex Court, rather the Tribunal on the basis of material on records returned a finding that the judgments cited by the petitioner before the Tribunal were not relevant to the context and even on merits the petitioner was not entitled for any relief. Thus, he has prayed for dismissal of the present writ petition.

D. Discussion and Findings.

20. Having heard the learned counsel for the parties at length and after perusal of material on records, this Court is of the view that the facts of the case lie in a narrow compass. Undisputedly, the petitioner was appointed as a Telephone Operator with effect from 06.08.2008 on contractual basis with IGRUA vide a letter dated 05.08.2008. The said letter mentions that the contractual appointment would be valid for a period of six months and would automatically lapse on completion of six months. The petitioner had continued to be employed on contractual basis by the respondent and the last extension was granted by the respondent vide letter/order dated 26.05.2016, extending the contractual duration of employment till 31.12.2016.

21. This Court finds that it is the aforesaid extension letter dated 26.05.2016, which had been sought to be challenged by the petitioner before the Tribunal in the OA leading to the instant impugned order. It is rather absurd as to how the petitioner could have challenged the said extension letter, which merely tends to extend the contractual term of the petitioner till 31.12.2016. The petitioner neither before this court nor before the Tribunal could explain as to which part of the said letter is unsustainable or as to how the petitioner is aggrieved by the issuance of the said impugned letter. Further, it seems the petitioner herself is not clear as to what is her grievance or her right under the prevailing law as apparently in the first round of litigation, wherein she was relegated to the Tribunal by this court, the petitioner had filed an OA No. 33/2018 challenging the order dated 26.12.2016 issued by the Manager-HR intimating her about the expiry of her contractual employment on 31.12.2016, although the said letter dated 26.12.2016 was merely relating to obtaining clearances from all department/ section, so as to enable the petitioner for timely clear her dues.

22. being letter dated 26.05.2016 granting extension to the petitioner was sought to be challenged. It was in this background that the Tribunal found the prayer of the petitioner seeking quashing of the letter dated 26.05.2016 to be at variance with the liberty granted to her in earlier round of litigation/application filed before the Tribunal. Thus, the impugning the letter dated 26.05.2016 was not found appropriate by the Tribunal and moreover, the Tribunal also returned a finding that the OA filed by the petitioner was delayed, for the reason of having filed after the limitation period and since there was no condonation of delay application in terms of Section 21(3) of the Administrative Tribunal Act, inspite of an earlier order dated 24.01.2019 passed by the Tribunal dismissing the OA. Thus, the Tribunal in the impugned order also held that the OA was not under limitation.

23. This Court finds the reasoning of the Tribunal was apt in the given facts & circumstances for dismissing the Application on limitation, however, this court could not be held back any further with the said observation on limitation as pertinently the Tribunal had also dealt in detail on the merits of the present case and has even dismissed the OA on merits.

24. The Tribunal on merits of the case, found that the petitioner was not able to demonstrate any letter/representation sent to the respondents claiming regularization, which was mandatory before making a prayer to the Tribunal as per the rules. This court also finds that the petitioner in the absence of any such representation, had been seeking to challenge various letters, which merely were issued either in the nature of granting extension of contractual engagement or intimating that the contractual engagement was coming to an end on a particular date. In any case, a challenge premised on letter dated 25.05.2016 or 26.12.2016, does not take the case of the petitioner anywhere as these letters neither have created any right nor extinguished any right of the petitioner.

25. However, it is seen that the petitioner, dehors the representation has also claimed regularization by citing various judgments including State of Karnataka & Ors. Vs Uma Devi (supra), State of Karnatka Vs M.L. Kesari (supra) and Narender Kumar Tiwari Vs State of Jharkhand (supra).

26. This Court finds it profitable to note that the Tribunal after analysing the contents of the appointment letter as well as the letter of extension, arrived at a decision that the engagement of the petitioner was purely contractual. The Tribunal has returned a categorical finding that vide a letter dated 26.05.2016, it was informed to the petitioner that her extension would be only uptill 31.12.2016 and finally vide letter dated 26.12.2016, she was informed about the forthcoming expiry of the contract period on 31.12.2016 and thus it was concluded that the petitioner was engaged only on contractual basis. The Tribunal also returned a finding that the claim of the petitioner to have been appointed on a regular post was not adequately substantiated. Even before this Court, there has been no argument on the part of the petitioner as to whether the petitioner was at all appointed on a regular sanctioned post.

27. On the contrary, this Court finds that (i) the appointment of the petitioner was on fixed term basis; (ii) each extension was covered under a specific written order, which prescribed a date of coming to end of the said extension; (iii) after completion of period envisaged in the order of appointment, unless there was extension, the engagement would come to an end; and (iv) The term of employment of the petitioner came to end on 31.12.2016. Thus, from the facts it seems that there was no termination of the service of the petitioner rather it was a case of not giving any further extension of the period of engagement to the petitioner. Now, therefore the question would arise as to whether the petitioner was entitled for her extension of engagement in the peculiar facts of this case, wherein it has come on record that the post of “Telephone Operator” came to an end in a phased manner due to advancement of technology. The answer would be in negative. However, it has been pleaded by the petitioner that she had been engaged for the said employment for the last more than ten years. This courts finds that even a series of extension given to a contractual employee does not change the status of the said employee. The Apex Court in the case of Karnataka Handloom Development Corporation Ltd. v. Sri Mahadeva Laxman Raval: (2006) 13 SCC 15, although has considered the issue of retrenchment under the Industrial Dispute Act, wherein for availing retrenchment compensation a continuous engagement of 240 days has been prescribed under law, the Hon’ble Apex court recorded its reasoning at paragraph 18 as follows:

“We have perused all the appointment letters dated 14.01.1991, 24.02.1992, 10.02.1993, 03.03.1993 and 30.11.1993 produced by the respondent as annexures which consistently and categorically state that the respondent's appointment with the Corporation was purely contractual for a fixed period. The respondent was engaged only under the Vishwa programme scheme which is not in existence. Now the scheme came to an end during August, 1994 the respondent was also not governed by any service rules of the Corporation. The Corporation put an end to the contract w.e.f. 31.08.1993 which, in our opinion, cannot be termed as dismissal from service. Even assuming that the respondent had worked 240 days continuously he, in our opinion, cannot claim that his services should be continued because the number of 240 days does not apply to the respondent inasmuch as his services were purely contractual. The termination of his contract, in our view, does not amount to retrenchment and, therefore, it does not attract compliance of Section 25F of the I.D. Act at all.”

(Emphasis Supplied)

28. This court has already perused the terms and conditions of appointment of the petitioner. Further, in all the orders of engagement specific periods and the amount of honorarium also has been mentioned. Although, the petitioner had been engaged for a considerable period of time, her status of being in contractual engagement does not change. This court cannot be oblivious to the fact that it is settled law that even if a Scheme has been in operation for some decades or that the employee concerned has continued on ad hoc basis for decades, it would not entitle the employee to seek permanency or regularisation. In Mohd. Abdul Kadir v. DGP : (2009) 6 SCC 611, the Hon’ble Supreme Court observed as under :-

“15. On completion of the project or discontinuance of the scheme, those who were engaged with reference to or in connection with such project or scheme cannot claim any right to continue in service, nor seek regularisation in some other project or service.”

29. However, the point being sought to be agitated by the petitioner is as to whether such contractual appointment made periodically over a period would entitle the petitioner for regularization in view of the judgment passed by the Apex Court in Uma Devi’s case (supra). The learned counsel has assertively relied on paragraph53 of the Judgment. This Court before considering paragraph-53 of the Uma Devi’s case (supra) would like to refer to paras-47 and 49 of the judgment along with the said paragraph-53, wherein the Constitutional Bench observed as follows :-

“47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.”

49. It is contended that the State action in not regularising the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.

53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.”

(Emphasis added)

30. Apparently, it is not the dictum of the Hon'ble Supreme Court to regularise the irregular or illegal appointment. Thus, picking up one sentence from one judgment or picking up some observation from one judgment of the Hon'ble Supreme Court, benefit of regularisation or permanent absorption cannot be granted in violation of the letter, spirit and the intention of the judgment of the Constitutional Bench of the Hon'ble Supreme Court of India in Uma Devi’s case (Supra). Moreover, it goes without saying that, judgment of a Constitution Bench of Apex Court laying down the law within the meaning of Article 141 of the Constitution of India must be read in its entirely for the purpose of finding out the ratio laid down therein. The Constitution Bench, in no uncertain terms, based its decision on the touchstone of the ‘equality clause’ contained in Articles 14 and 16 of the Constitution of India. Emphasis has been laid at more than one places for making appointments only upon giving an opportunity to all concerned and as per the constitutional scheme, appointment through back-door has been held to be constitutionally impermissible.

31. This Court finds that even if the petitioner had been engaged on contractual basis for over ten years, the petitioner would still not have any claim for regularization, in case the contractual appointment was not made as per the constitutional scheme. The case of the petitioner would also not come within the exception as prescribed by Uma Devi’s case (supra) in paragraph 53 of the judgment, inasmuch as, the petitioner was not in service for the required period before the said decision. In the present case, the earliest contractual engagement of the petitioner was on 06.08.2008 and the Constitutional Bench judgment of Apex Court in Uma Devi’s case (supra) was pronounced on 10.04.2006, by which time, the petitioner would not have completed the ten years services as mandated in the said judgment. Further, Uma Devi’s case (supra) was a one-time measure propounded by the Hon’ble Supreme Court. Moreover, on the application of the Uma Devi’s Judgment, it will not be out of place to refer to the judgment rendered by the Apex Court in the case of State of Karnataka and others v. M.L. Kesari and others (supra). In M.L. Kesari’s Case (Supra), the exception as carved out by para-53 of Uma Devi's case (supra) as also to the circumstances under which such persons were to be considered, the position of law was clarified. The Apex Court clarifying Uma Devi’s case (supra) held in paragraphs-6, 7 & 8 of the judgment which are relevant to the context :-

"6. This Court in Umadevi further held that a temporary, contractual, casual or a dailywage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. This Court however made one exception to the above position and the same is extracted below: (SCC p. 42, para 53).

"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore v. S.V. Narayanappa, AIR (1967) SC 1071, R.N. Nanjundappa v. T. Thimmiah, (1972) 1 SCC 409 and B.N. Nagarajan v. State of Karnataka ,(1979) 4 SCC 507 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work fourteen years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked fourteen years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date.”

7. It is evident from the above that there is an exception to the general principles against "regularisation" enunciated in Umadevi, if the following conditions are fulfilled:

(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.

(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.

8. Umadevi casts a duty upon the concerned Government or instrumentality concerned, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a onetime measure. Umadevi directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10-4-2006)."

(Emphasis Supplied)

32. In any case, the Hon’ble Apex Court in State of Rajasthan & Ors. v. Daya Lal & Ors.: AIR 2011 SC 1193 was considering the scope of regularisation of irregular or part-time appointments in all possible eventualities and laid down well-settled principles relating to regularisation after noting various judgments including Uma Devi (Supra) in the following manner :-

“6. We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals:

(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.

(ii) Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be `litigious employment'. Even temporary, ad hoc or daily- wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.

(iii) Even where a scheme is formulated for regularization with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates.

(iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.

(v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.

(See : Secretary, State of Karnataka vs. Uma Devi - 2006 (4) SCC 1, M. Raja vs. CEERI Educational Society, Pilani - 2006 (12) SCC 636, S.C. Chandra vs. State of Jharkhand - 2007 (8) SCC 279, Kurukshetra Central Co- operative Bank Ltd vs. Mehar Chand - 2007 (15) SCC 680, and Official Liquidator vs. Dayanand - 2008 (10 SCC 1)"

33. Thus, it can be safely concluded that the law is no more res integra relating to regularization, inasmuch as, it is clear that the High Courts, in exercising power under Article 226 of the Constitution would not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. In the present case, the petitioner has failed to show that she had been appointed pursuant to a regular recruitment process or against a sanctioned post.

34. The other judgments as relied by the learned Counsel for the petitioner are easily distinguishable from the present case, more particularly the judgment of Narendra Kumar Tiwari and others v. State of Jharkhand and others (supra) as in the said case, the Apex Court while taking note of the fact that the State of Jharkhand came into existence only on 15.11.2000, held that the Regularization Rules must be given a pragmatic interpretation, and if the candidates had completed 10 years of service on the date of promulgation of the Regularization Rules, they ought to be given the benefit of service rendered by them. In the opinion of this court, the ratio of the said decision cannot be made applicable in the present case, first & foremost there are no Regularization Rules of the IGRAU and accordingly, there is no question of completion of 10 years of service on promulgation of such rules. The applicant cannot escape the criteria laid down in Uma Devi (Supra), wherein it has been categorically held that a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It was also clarified in the said judgment 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. Further, the Apex Court went on to hold in clear and unequivocal terms that High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme.

35. Thus, the case of the petitioner falls short of the exceptions as prescribed by Uma Devi’s case (supra) or liable for consideration by the application of the judgment of M.L. Kesari (supra), as the petitioner has attained no vested right for the claim of regularization, nor can a direction be sought from this Court for consideration of the same. In any case, there was no order or scheme issued by the Ministry of Civil Aviation, the administrative ministry of the respondent, to regularize the services of employees engaged on contractual basis in IGRAU after having been continuously engaged for a specific period. In any case, the learned Counsel for the respondent is right in placing reliance on the OM dated 07.10.2020, which was issued by the Ministry of Personnel, PG & Pensions, Department of Personnel & Training, wherein it has been clarified that regularization of qualified workers appointed against sanctioned post as per Uma Devi (Supra) judgment was only a one time exercise and it was only applicable to those employee who had put 10 years of continuous service as on 10.04.2006, which is not the present case.

36. Therefore, such regularization, if granted would fall foul of the law laid down by the Hon’ble Supreme Court in the case of State of Karnataka v. Uma Devi (supra).

37. The learned Counsel for the petitioner has also relied on the judgment passed by the Apex Court in State of West Bengal & another v. West Bengal Minimum Wages Inspectors Association & others (supra), wherein it was held that evaluation of duties and responsibilities of different posts and determination of the pay scales applicable to such posts and determination of parity in duties and responsibilities are complex Executive functions, to be carried out by expert bodies. In that case, it was held that granting parity in pay scale depends upon comparative job evaluation and equation of posts and the burden to prove disparity is on the employee’s claiming parity. It was held by the Apex Courts, that court should approach such matters with restraint and interfere only if they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to any particular section of employees. Even this judgment does not come to the rescue of the petitioner.

38. Further, it is available on record that the petitioner was not only the one who had been dis-engaged and apparently the non-extension of contractual engagement was for other cogent reasons, including that of non-requirement of three telephone operators in the wake of technological advancement in telecom division and as such the engagement of the petitioner was discontinued on the basis of comparable merits/performance amongst the three operators, wherein the petitioner stood at the third position. This Court is in agreement with the finding of the Tribunal, which has noted the factum of letter dated 25.10.2016 written by Chief Engineer of the respondent relating to the requirement of only one Telephone Operator in place of three due to the modernisation of the telecom division of the respondent. Thus, the petitioner was not replaced by another contractual employee and in any case, there was no need for replacement of the petitioner as the work of Telephone Operator due to the advancement of technology had lost requirement. Automated EPABX and extensive use of own mobile phones by officials/flying cadets was also one of the reasons of loss of need of Telephone Operators as contended by the respondents. Hence, in our considered view, the petitioner had been working on contract basis extendable from time to time which was extended time to time on need basis. As the respondents felt that the work load is decreased by way of development of technology and only one person is sufficient to work as a Telephone Operator, hence, they decided to discontinue the services of the petitioner on comparable basis. Thus, the present case is not a case, wherein any contractual employee has been sought to be replaced by another contractual employee and as such the judgment of the Apex Court in State of Haryana & Ors Vs Piara Singh & Ors. (supra), also does not come to any rescue to the petitioner.

39. The petitioner had earlier filed an OA No. 33/2018 challenging the order dated 26.12.2016 issued by the Manager-HR intimating her about the expiry of her contractual employment on 31.12.2016 and obtaining clearances from all department/ section, so as to enable her to clear her dues. The said OA was dismissed as withdrawn by the Tribunal, with a liberty to file a fresh OA on the same cause of action. However, while filing fresh OA No. 485/2018, apparently the aforesaid order dated 26.12.2016 was not challenged by the petitioner. The petitioner sought to challenge the said order dated 26.12.2016 before this Court yet again, which cannot be allowed as a Court for first instance as this Court is exercising its power of judicial review of the order of the Tribunal.

40. As a sequel to the above discussion, this Court holds that impugned orders passed by the Tribunal do not suffer from any infirmity.

E. Conclusion.

41. Thus, for all the aforesaid reasons, this Court finds that the instant writ petition is devoid of merit and as such, is, accordingly, dismissed.

42. Recently, the Hon’ble Supreme Court was considering the issue of regularizing contractual employees of Delhi University and for that reason a special examination was to be conducted for these contractual employees only, which was allowed by the Delhi High Court. However, on appeal, the Hon’ble Supreme Court finding fault in the said process in regularising the contractual employee held in paragraph-12 of the judgment passed in University of Delhi Vs Delhi University Contract Employees Union & Ors.: 2021 SCC Online SC 256, as follows :-

12. It is true that, as on the day when the judgment in Umadevi was delivered by this Court, the contract employees had put in just about 3 to 4 years of service. But, as of now, most of them have completed more than 10 years of service on contract basis. Though the benefit of regularization cannot be granted, a window of opportunity must be given to them to compete with the available talent through public advertisement. A separate and exclusive test meant only for the contract employees will not be an answer as that would confine the zone of consideration to contract employees themselves. The modality suggested by the University, on the other hand, will give them adequate chance and benefit to appear in the ensuing selection.”

(Emphasis Supplied)

43. Thus, before parting with the records, this Court observes that in the event, the said post or any post commensurate to the qualification and skill as currently borne by the petitioner is advertised, the respondents may allow the petitioner to participate in the regular selection process by relaxing her age as one-time measure in the interest of justice.

44. In the facts of the present case, there shall be no order as to cost.