# S. Sunanda v. Chairman, Indira Gandhi Rashtriya Uran Akademi, New Delhi & Ors

- **Citation:** (2023) 4 ILRA 193
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-13
- **Case number:** Writ-A No. 9347 of 2021
- **Bench:** Devendra Kumar Upadhyaya, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/s-sunanda-v-chairman-indira-gandhi-rashtriya-uran-akademi-new-delhi-ors-50093
- **Pages:** 17

## Headnote

194 INDIAN LAW REPORTS ALLAHABAD SERIES
Service Law-Constitution of India, 1950-
Article
226-Writ
petition
challenging
disengagement
&
non
extension
of
contract of the petitioner working on
contractual basis-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-Engagement only
on
contractual
basis-There
was
no
termination of the service of the petitioner
rather it was a case of not giving any
further
extension-Even
a
series
of
extension given to a contractual employee
does not change the status of the said
employee-High Courts in exercising power
u/Art. 226 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. (Para
24, 27, 28, 33)

Writ petition dismissed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,985 of 58,351. This is a partial read: ask again with offset=39985 for what follows._

4 All. S. Sunanda Vs. Chairman, Indira Gandhi Rashtriya Udan Akademi, New Delhi & Ors.
193

15. In view thereof, it is evident that
the review of put off duty of an employee
in the first instance has to be considered by
the Superior Authority, after lapse of the
stipulated
time
upon
a
report.
The
revocation of suspension / put off duty of
an employee is not automatic after lapse of
a stipulated time.

16. On specific query, learned counsel
for the respondent is unable to show from
either the Rules or the guidelines that after
expiry of 120 days there is automatic
cessation of put off duty. Rather, the
guidelines mandate review of the order on
merit by a Superior Authority.

17. In the circumstances, in our
opinion, the learned Tribunal committed an
error in usurping upon itself the power of a
Superior Authority, thereby, setting aside
the impugned orders placing the respondent
on put off duty. The reasonable course
open to the Tribunal was that it should have
remitted the matter to the concerned
Superior Authority to take a decision
having regard to the charge against the
respondent / original applicant pertaining to
fraud and embezzlement of deposits of the
depositors.

18. Learned Tribunal also committed
an error in mechanically applying the ratio
of the judgement rendered in Ajay Kumar
Chaudhary (supra). On perusal of the
authority, it transpires that the employee
therein was placed under suspension and
the suspension continued for a prolonged
period for several years due to pendency of
C.B.I. Inquiry. The facts arising therein are
altogether in a different context and are not
applicable to the facts of the present case.

19. For the reason stated herein, we
are unable to persuade ourselves to accept
the opinion rendered by the learned
Tribunal. Accordingly, the writ petition
succeeds and is allowed. The impugned
order dated 01 August, 2022 is set aside
and quashed.

20. The matter is remitted to the
competent Superior Authority to review the
put off duty / suspension of the respondent
/ original applicant in the light of the
guidelines.
It
is
expected
that
an
appropriate
order
shall
be
passed
expeditiously preferably within six weeks
from the date of filing certified copy of this
order,
provided
there
is
no
other
impediment.

21. It is clarified that we have not
expressed any opinion on the rival
contentions and merit of the pending
disciplinary
proceedings
against
the
original applicant.
----------

(2023) 4 ILRA 193
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.04.2023

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-A No. 9347 of 2021

S. Sunanda ...Petitioner
Versus
Chairman, Indira Gandhi Rashtriya Uran
Akademi, New Delhi & Ors. ...Respondents

Counsel for the Petitioner:
Anupam Verma, Capt. Pramod Kumar Bajaj

Counsel for the Respondents:
Yogesh Chandra Bhatt, Anurag Srivastava
194 INDIAN LAW REPORTS ALLAHABAD SERIES
Service Law-Constitution of India, 1950-
Article
226-Writ
petition
challenging
disengagement
&
non
extension
of
contract of the petitioner working on
contractual basis-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-Engagement only
on
contractual
basis-There
was
no
termination of the service of the petitioner
rather it was a case of not giving any
further
extension-Even
a
series
of
extension given to a contractual employee
does not change the status of the said
employee-High Courts in exercising power
u/Art. 226 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. (Para
24, 27, 28, 33)

Writ petition dismissed. (E-15)

List of Cases cited:

1. St. of Karn. & ors. Vs Uma Devi reported in
(2006) 4 SCC 1

2. St. of Har. & ors. Vs Piara Singh and Ors. AIR
1992 SC 2130

3. St. of Kar. Vs M.L. Kesari : (2010) 9 SCC 247

4. Narender Kumar Tiwari Vs St. of Jharkhand :
(2018) 8 SCC 238

5. St. of West Bengal Vs Minimum wages
Inspector : (2010) 2 SCC 425

6.
Karnataka
Handloom
Development
Corporation Ltd. Vs Sri Mahadeva Laxman
Raval: (2006) 13 SCC 15

7. Mohd. Abdul Kadir Vs DGP : (2009) 6 SCC 611

8. St. of Rajasthan & ors. Vs Daya Lal & ors.:
AIR 2011 SC 1193
9. University of Delhi Vs Delhi University
Contract Employees Union & ors.: 2021 SCC
Online SC 256

(Delivered by Hon'ble 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
4 All. S. Sunanda Vs. Chairman, Indira Gandhi Rashtriya Udan Akademi, New Delhi & Ors.
195
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
196 INDIAN LAW REPORTS ALLAHABAD SERIES
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
4 All. S. Sunanda Vs. Chairman, Indira Gandhi Rashtriya Udan Akademi, New Delhi & Ors.
197
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
198 INDIAN LAW REPORTS ALLAHABAD SERIES
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 redesignated 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
4 All. S. Sunanda Vs. Chairman, Indira Gandhi Rashtriya Udan Akademi, New Delhi & Ors.
199
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 paragraph44 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
200 INDIAN LAW REPORTS ALLAHABAD SERIES
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. As per records, the OA No.
33/2018, filed in the first round of ligation
was dismissed as withdrawn by the
petitioner, with a liberty to file a fresh OA
on the same cause of action. However, the
petitioner, while filing fresh OA No.
485/2018, did not impugned/challenge
order dated 26.12.2016 and some other
letter;
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
4 All. S. Sunanda Vs. Chairman, Indira Gandhi Rashtriya Udan Akademi, New Delhi & Ors.
201
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:
202 INDIAN LAW REPORTS ALLAHABAD SERIES

"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
paragraph-53 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
4 All. S. Sunanda Vs. Chairman, Indira Gandhi Rashtriya Udan Akademi, New Delhi & Ors.
203
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
204 INDIAN LAW REPORTS ALLAHABAD SERIES
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.