Quashing regularization of 98 Assistant District Attorneys, P&H HC says tendency of making appointments to public posts through regularization needs to be nipped in the bud

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Read Order: Gurinder Singh and others v. State of Punjab and others

Monika Rahar

Chandigarh, January 28,  2022: The Punjab and Haryana High Court has set aside the State Government’s move of regularizing the services of 98 Assistant District Attorneys in 2013, on the ground that the appointment of the private respondents (ADAs) against public posts was made by a mode not envisaged by the Rules framed under proviso to Article 309 of the Constitution of India

The Court, however, has given the state government the liberty to the respondents to continue as contract employees subject to initiation of the process of direct appointment to the posts within six months.

The Bench of Justice Sudhir Mittal also made a remark of caution by saying that the tendency (of making appointments by regularization to Grade A, B posts) needed to be nipped in the bud so that it is not faced with the day when appointments were made to Group-A posts too through the process of regularization. 

In this case, owing to less availability of Assistant District Attorneys (ADAs), the State Government had invited applications for 98 posts of ADA on a contract basis. The appointment was for one year or till regular recruitment and it was liable to be terminated on completion of contract term unless enhanced. The private respondents were selected and an appointment order (also containing a provision for extension of the contractual period) was issued. 

In 2011, a regularization policy was issued by the Government, according to which, regularization of contractual employees was to be effected from April 2011 or on completion of three years’ service on contract whichever was later. New posts were not to be created for regularization nor any of the conditions of regularization were to be relaxed.

In 2013, the State initiated noting dated April 2,2013 for regularization of the services of the private respondents as was requested by them. Regularization was sought to be made on the basis of the policy of 2011. There were 158 sanctioned posts of ADAs against which only 46 were regularly appointed. The requisition was sent to Punjab Public Service Commission (PPSC) for filling up 86 posts of ADAs in respect of posts occupied by the private respondents on contract. Based on this, the PPSC advertised 80 posts.

The petitioners submitted applications for a regular appointment and while the process of selection was under-way, the order was passed regularizing the services of the private respondents including fourth and fifth respondents. Subsequently, the petitioners were appointed directly vide a 2014 order. The contractual appointees also applied for the selection but were unsuccessful. 

The instant writ petition was filed for quashing orders of regularization of the private respondents. Prayer was made for quashing order whereby the services of the private respondents were confirmed post-regularization as well as for quashing of tentative seniority list issued in 2018.

At the outset the objection to locus standi of the petitioner, as raised by the respondent was addressed by the Court by holding that in the instant case, even though, the writ petitioners were appointed after the regularization of the private respondents, they possessed sufficient interest in the matter of regularization as their advancement in service would be directly and substantially affected by the same. The Court opined that this petition also raised the issue of violence to the Constitution and rights conferred thereby and thus, it would be a travesty of justice to throw out the writ petition at the threshold on the ground of ‘locus standi’. Regarding the legal position of ‘locus standi’, the Court observed that the plain meaning of the phrase is the entitlement of a person to appear before a Court of law. 

Next, addressing the legal position governing regularization, the Court made reference to the case of the Apex Court in Secretary, State of Karnataka and Others v. Uma Devi and Others, 2006 (4) SCC 1, wherein it was held that appointment to public posts through the mode of regularization is to be frowned upon. If the Executive does so, the action is patently illegal, even though, it may have been done in pursuance of a policy framed in this regard.

Then question of the private respondents being regularized against posts occupied by the petitioners was answered negatively by the Court while stating that there was an adequate number of vacancies available as on date of inviting applications for direct appointment. Consequently, the argument that additional posts were created for the purposes of regularization and that there could not have been any regularization against posts consumed by the direct appointees, was rejected.

Further, on the question of whether the action of extension of the policy of 2011 to private respondents was arbitrary, the Court held that that the decision of the Cabinet to extend the applicability of the 2011 policy to the private respondents was within its jurisdiction, but the Court opined that there was no material on record to justify the taking of such an action. Accordingly, it was held to be arbitrary and bad in law. 

Lastly, on the validity of the regularization, the Court opined that on the date of regularization (2013), the Punjab Assistant District Attorneys, Grade-II (Class-III) Service Rules, 1989 (1989 Rules) were repealed by the Punjab Prosecution & Litigation (Group-B) Service Rules, 2010 (2010 Rules). 

The Court observed,“The 2010 Rules provide for 100% appointment through direct recruitment. It is thus, apparent that the Rules framed in exercise of powers conferred by the proviso to Article 309 of the Constitution of India have been violated. The 2010 Rules also show that the service comprises ADAs only and the said posts are Group-B posts. No regularization on Group-B posts is permissible. If at all, regularization can be done only on Group-C or Group-D posts. Casual appointments and appointments on daily-wage basis are made against such posts only and the entire discussion in Uma Devi (supra) is in the context of such employees only.”

Further, reiterating the law laid down in Uma Devi case (supra), the Court stated that neither the Executive nor the Courts can accept a request for appointment on public posts through a mode which is violative of the Constitutional scheme. It has also been held that making an employee permanent is a concept different from that of regularization and no employee can be permanently appointed on a public post except in accordance with the Constitutional scheme. The best available talent must be brought into public service and the fact that the private respondents failed to qualify in the open competition establishes that they are not the best. 

Thus, the Writ petition was allowed. 

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