JUDGMENT
K. Ramamoorthy, J.
1. The petitioner has prayed for regularising of his service in the second respondent administration. According to him, he was appointed on 04.12.1991 and his service is continued for the last eight years and now on 17.11.1997 his appointment was further extended for a period ending on 30.11.1997. According to him, his appointment has been continued upto 30.11.1997. According to him, he has been serving in the 2nd respondent organisation for 8 years, his service should be regularised.. In the counter the respondents have stated that the petitioner was appointed on adhoc basis and his services were continued so long it was required and the post become vacant and requires to be filled up by resorting to regular appointment procedure. In para 8 of the counter the position as stated by the respondents is in the following manner:
That the post again which the petitioner was appointed was a post where vacancy was created temporarily. In 1989, the services of Shri M.R. Rao, Sr. Systems Manager were loaned to J&K Govt. for two years. In the absence of Shri Rao, Smt. Lalita Murthy, Research Officer was promoted as Systems Manager temporarily and in the resultant vacancy of Research Officer, Smt. Rama Raghavan, senior most Research Assistant was also promoted as Research Office on temporary basis. This resulted in one post of Research Assistant falling vacant. Since the future of Shri Rao was not certain and in case he reverts to the Council, there will be a chain reaction of reversions and keeping this fact in view, the post of Research Asstt. which can be filled only by direct recruitment was kept vacant. In case the post was filled by advertising, it will not be possible to terminate the services of the person who would join in response to open advertisement.
2. It is also stated in the counter that the petitioner does not satisfy the requirements of the qualification prescribed for the post and, therefore, his services were terminated.
3. The learned senior counsel Mr. Mukul Rohtagi submits that whatever be the nature of the order binding on the employee once he had been in service of the particular employer for number of years his services should be regularised. Only condition could be that he should satisfy the qualification prescribed for the post. The learned Senior counsel accepted that the petitioner would satisfy the qualification prescribed for, he has secured B.Com degree having statistics as a subject in the B.Com Degree. The learned senior counsel referred to the dictum laid down
by the Supreme Court in State of Haryana and Ors. v. Piara Singh and Ors. .
4. The Learned senior counsel placed reliance on the observations of the Supreme Court in para 45 to 49 of the judgment which are as under:
The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation effort should always be to replace such an ad hoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee.
Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
Thirdly, even where an ad hoc or temporary employment is necessitated on
account of exigencies of administration, he should ordinarily be drawn from
the employment exchange unless it cannot brook delay in which case the
pressing cause must be stated on the file. If no candidate is available or is
not sponsored by the employment exchange, some appropriate method
consistent with the requirements of Article 16 should be followed. In other
words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should
be considered fairly.
An unqualified person ought to be appointed only when qualified persons’ are not available through the above processes.
If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the state.
5. Learned Senior counsel submits that the petitioner has served for 7 years and he has very good record of service and for any other employment under Government he has crossed the age limit and he cannot apply. The learned senior counsel also referred to the judgment of the Supreme Court in Bhagwati Prasad v. Delhi State Mineral Development Corporation wherein also the same proposition is reiterated by the Supreme Court.
6. Per contra, Mr. Arun Jaitley, learned Senior counsel for the respondents submits that as pointed out by the respondents in para 8 of the counter affidavit the basis of the appointment was on contract and once the rights had been established on the basis of the contract the petitioner cannot seek to go beyond the terms of employment and claim regularisation on the mere chance of his continuing in service for
some years. The petitioner does not fulfill the requisite qualification as prescribed
for the post. The learned senior counsel referred to the judgment of the Supreme
Court in Director, Institute of Management Development U.P. v. MST. Pushy
Srivastava wherein the Supreme Court has
said:
Because the six months’ period was coming to an end on 28th February 1991, she preferred the writ petition a few days before and prayed for mandates which was granted by the learned Judge under the impugned judgment. The question is whether the directions are valid in law. To our mind, it is clear that where the appointment is contractual and by efflux of time, the appointment comes to an end, the respondent could have no ;right to continue in the post. Once this conclusion is arrived at, what requires to be examined is, in view of the services of the respondent being continued from time to time on ‘ad hoc’ basis for more than a year whether she is entitled to regularisation? The answer should be in the negative. However, reliance is placed by learned counsel on behalf of the respondent on the case in Jacob v. Kerala Water Authority.
7. The learned senior counsel also referred to the judgment of the Supreme Court in P. Ravindar nath and Ors. v. Union Territory of Pondicherry and Ors. and the learned senior counsel relied upon the passage in para 3.
8. As per the documents produced by the petitioner it cannot be disputed that appointment was contractual nature and it was only for a particular period and he entered service on the basis of those orders and he had accepted the terms of employment. The petitioner cannot seek regularisation of the service when he does not satisfy the requirement of the qualification. The qualifications prescribed are given by the petitioner in the petition and also by the respondents and the qualifications prescribed are as under:
i) Master’s Degree in Statistics mathemetics physics or Economics/Commerce (with Statistics) OR Degree in Engineering/Computer Science of a recognised University or equivalent.
ii) Two years experience of an electronic data processing work including one years experience of computer programming/operation;
Two years experience of data processing work or exercise on PC’s.
OR
i) Degree with Statistics as a subject;
ii) Five years’ experience as mentioned in (ii) above.
9. It is admitted by the learned senior counsel for the petitioner that the petitioner possesses a B.Com degree and submitted that in B.Com. he had studied statastics, therefore it should be taken for the purposes of this case that the petitioner had studied statistics as the main subject in the degree course. This is a very untenable argument. The petitioner who have not studied statistics as the main subject in the degree course and had studied it only as an ancillary or subsidiary subject. It cannot be said that he had studied statistics as the main subject in B.Com Degree course. Having regard to the fact the petitioner having entered the service on contractual basis and not being qualified, cannot seek regular appointment in the writ petition, therefore, I do not find any merit in the case, accordingly, the writ petition is dismissed. There shall be no order as to costs.