JUDGMENT
Sanjiv Khanna, J.
1. The present writ petition has been filed by Mrs. Shashi Kala and 10 others for setting aside and quashing the order dated 20th May, 2005 passed by learned Central Administrative Tribunal in OA. No. 47/2004 titled Mrs. Shashi Kala and Ors. v. Union of India and Ors. By the impugned order the learned Tribunal has dismissed the aforesaid OA filed by the petitioners and, inter alia, held that the said OA was barred by principles of constructive res judicata as the petitioners had asked for the same relief in OA No. 228/2000 which was filed by Malaria Research Centre Employees Welfare Association (Regd.) and Anr. v. Research Centre and Ors. The learned Tribunal has also held that the petitioners cannot place reliance upon the order of the Supreme Court dated 14th August, 1987 as the contempt petition filed by the petitioners was dismissed by the Supreme Court by its order dated 12th November, 1997.
2. Learned counsel for the petitioner argued that the Tribunal has wrongly held that the principles of constructive res judicata was applicable. OA No. 228/2000 was filed by Malaria Research Centre Employees Welfare Association (Regd.) for direction to the Malaria Research Centre and Indian Council for Medical Research on behalf of 57 employees stationed in Delhi and 44 employees stationed in U.P. who were aggrieved as they were not being paid the same pay being paid to regular employees by invoking the principle of ‘equal pay for equal work’. It was further argued that the matter had earlier been examined by the Supreme Court in Writ Petition Nos. 5856-57/1985 titled I.C.M.R. Malaria Project Workers Association v. Union of India and Ors. and by orders dated 8th April, 1987 and 14th August, 1987 it was held that the respondents were liable to regularise the services of the petitioners. He also relied upon earlier order dated 11th April, 2002 in OA No. 2049/2001 titled Mrs. N.K. Ammini and 3 Ors. v. Union of India and Ors. Reference was also made to the affidavit filed by the Union of India and the National Institute of Communicable Diseases, respondent Nos. 1 and 3 before the Tribunal. In particular reliance was placed upon paragraphs 1 and 3 of the said affidavit in which it is stated that it was the responsibility of Malaria Research Centre/Indian Council for Medical Research to extend the benefit of the judgment of the Supreme Court dated 14th August, 1987 to the petitioners herein along with continuity of past service.
3. Unfortunately, there was no effective assistance on behalf of respondent Nos. 2 and 4 at the time of hearing of the present matter. This was in spite of the fact that advance copy of the present writ petition was duly served upon them.
4. The facts relevant for adjudication of present controversy are that the petitioners were earlier working with National Institute of Communicable Diseases. It appears that in the year 1985, a writ petition was filed by ICMR Project Workers Association against Union of India and others and vide order dated 8th April, 1987 the respondents were directed by the Supreme Court to prepare scheme for absorption of the 72 employees. However, ultimately the said writ petition was disposed of without any directions in this regard vide an order dated 14th August, 1997 which reads as under:-
In the counter affidavit the respondents have assured us that the petitioners will be absorbed in suitable posts. We accept the assurance and give a direction that the petitioners will also be entitled to continuity of service from the date of their initial employment.
5. Bare perusal of the said order shows that the writ petition was disposed of on the assurance given in the counter affidavit that the petitioners therein will be absorbed in suitable posts, which was accepted by the Supreme Court and direction was given that the petitioners will be entitled to continuity of service from the date of initial employment. The court did not give any direction to formulate any policy and or direct regularisation.
6. Moreover, learned counsel for the petitioners admitted before us that during the pendency of the writ petition Nos. 5856-57/1985 before the Supreme Court, the petitioners herein had started working as employees with Malaria Research Centre under the Indian Council for Medical Research. They, therefore, ceased to be the employees of National Institute of Communicable Diseases. Malaria Research Centre was not a party in Civil Writ Nos. 5856-57/1985 before the Supreme Court. It cannot, therefore, be construed that the order dated 14th August, 1987 made by the Supreme Court was passed on the basis of an assurance given by Malaria Research Centre which was accepted by the Supreme Court.
7. Further, we also find that the ICMR Malaria Projects Workers Association filed contempt proceedings before the Supreme Court by moving two applications. The said Contempt Petitions were dismissed by orders dated 12th November, 1997 and 2nd March, 1998. The Supreme Court, therefore, was clearly of the view that the earlier order dated 14th August, 1997 was not applicable to the petitioners and no direction was given for regularisation of the petitioners.
8. Moreover, we find that the petitioners herein had filed another OA being OA No. 2944/2003 titled Mrs. Shashi Kal and Ors. v. Union of India and Ors. Reliance in this OA was placed upon the order passed by the Supreme Court dated 14th August, 1987 in Civil Writ Petition Nos. 5856-57/1985 and on the basis of the order passed by the Supreme Court, regularisation of the services of the petitioners along with the consequential benefits was prayed for. This petition was disposed of vide an order dated 5th December, 2003 with a direction that the petitioners therein should file an appropriate application, if permitted in law, before the Supreme Court as the petitioners basically seek implementation of the order dated 14th August, 1987 passed by the Supreme Court.
9. The petitioners herein have accepted the order dated 5th December, 2003 and no writ petition was filed against the said order. Therefore, in case the petitioners seek to rely upon and claim that they are covered by the order of the Supreme Court dated 14th August, 1987, then the appropriate remedy available to them is to approach the Supreme Court. They cannot not now rely upon the order passed by the Supreme Court in Civil Writ Nos. 5856-57/1985 dated 14th August, 1987 to claim relief from the Tribunal or from this Court. The petitioners, it appears did not approach the Supreme Court in spite of order dated 5th December, 2003 as the contempt petitions filed by them were earlier dismissed vide orders dated 12th November, 1997 and 2nd March, 1998. It may be mentioned here that the order passed by the Tribunal in OA No. 2049/2004 decided on 11th April, 2002 titled Mrs. Ammini and 3 Ors. v. Union of India and Ors. was very much before the Tribunal when OA No. 2944/2003 was disposed of vide order dated 5th December, 2003. The petitioners cannot after order dated 5th December, 2003 in OA No. 2944/2003 again file and plead relief solely on the assurance or direction given by the Supreme Court in its order dated 14th August, 1987.
10. It is also admitted by the petitioners herein that they are members of the Malaria Research Centre Employees Welfare Association (Regd.) and it is also accepted that the said association had filed OA No. 228/2000. In this OA a prayer was made that the members of the said association were being discriminated as they were doing the same work as regular employees but were being denied equal wages. Reliance was placed upon the principle of ‘equal pay for equal work’. The said association had specifically questioned payment of consolidated salary to the employees of the association. The said OA was disposed of with the observation that the employees may make representation to the authorities for granting them pay and allowances and financial benefits at par with the regular employees in the same project. Authorities were directed to consider their representation within a reasonable period and pass a speaking and reasoned order.
11. We have also examined the original OA No. 47/2004 In the said application the relief prayed for by the petitioners were as under:-
(a) to direct the respondents to absorb the applicants in service from the date of their initial appointment and also to grant all the consequential benefits.
(b) To direct the respondent(s) to grant to the applicants the benefit of Hon’ble Tribunal’s order dated 11.04.2003 passed in OA No. 2049/2001 since they are similarly placed as those applicants in OA No. 2049/2001.
(c) To grant suitable cost of litigation in favor of the applicants and against the respondent(s).
12. As far as the relief ‘B’ is concerned, this aspect has been examined above and we do not think that the present case can be decided solely on the basis of parity and the order of the Tribunal passed in OA No. 2049/2001 dated 11th April, 2003 as the said prayer stands virtually rejected by the earlier order dated 5th December, 2003 passed in OA No. 2944/2003 titled Mrs. Shashi Kala and Ors. v. Union of India and Ors. The said order has become final and binding and has not been challenged by the petitioners.
13. As far as prayer No. A is concerned, we have examined it on merits. In this regard we may also state that as highlighted above, this prayer now made is virtually the same as the prayer which was earlier made by Malaria Research Centre Employees Welfare Association (Regd.) in OA No. 228/2000. In the said OA the only direction given was that the services of the members of the said association shall not be interfered with except in accordance with law till such time the project continued. The prayer for regularisation of services was rejected on the ground that till the establishment itself is made permanent by the Government, no such direction can be issued. With regard to parity of pay to regular employees, the employees association was required to make a comprehensive representation to the concerned authorities who were required to pass a speaking and reasoned order.
14. We have also gone through the original application being OA No. 47/2004 The petitioners therein have made no grievance whatsoever that there is no compliance of the direction with regard to consideration of representation and passing of a speaking and reasoned order by the authorities. There is also no prayer or contention that the petitioners were entitled to ‘equal pay for equal work’ or the same pay scale be granted as regular employees. We need not, therefore, dwell on this aspect.
15. The next question which arises is whether the petitioners are entitled to regularisation in view of the fact that they have been working in the Malaria Research Institute under the Indian Council for Medical Research since 1986-97. This issue to our mind stands concluded by the judgment of the Supreme Court in the case of Chanchal Goel (Dr.) v. State of Rajasthan, . In this case the Supreme Court has examined extensively the case law on the subject of temporary and ad hoc appointments and right to regulation. The doctrine of ‘legitimate expectation’ was also referred to and its applicability in cases like the present one was examined. The relevant extracts from the judgment is as under:-
6. There is no scope of regularization unless the appointment was on regular basis. Considerable emphasis has been laid down by the appellant to the position that even for temporary appointment there was a selection. That is really of no consequence. Another plea of the appellant needs to be noted. With reference to the extension granted it was contended that a presumption of the Service Commissions concurrence can be drawn, when extensions were granted from time to time. This plea is without any substance. As noted above, there is no scope for drawing a presumption about such concurrence in terms of sub-rule (2) of Rule 27. After one year, currency of appointment is lost. The extension orders operated only during the period of effectiveness.
7. The decisions relied upon by the learned counsel for the appellant were rendered in different factual background. A decision is an authority for what it decides and not for what could be inferred from the conclusion.
8. Unless the initial recruitment is regularized through a prescribed agency, there is no scope for a demand for regularization. It is true that an ad hoc appointee cannot be replaced by another ad hoc appointee; only a legally selected candidate can replace the ad hoc or temporary appointee. In this case it was clearly stipulated in the initial order of appointment that the appellant was required to make room once a candidate selected by the Service Commission is available.
9. x x x
10. In J and K Public Service Commission v. Dr Narinder Mohan it was, inter alia, observed that it cannot be laid down as a general rule that in every category of ad hoc appointment if the ad hoc appointee continued for a longer period, rules of recruitment should be relaxed and the appointment by regularization be made. In the said case in para 11 the position was summed up as under: (SCC pp. 640-41, para 11)
11. This Court in A.K. Jain (Dr) v. Union of India gave directions under Article 142 to regularize the services of the ad hoc doctors appointed on or before 1-10-1984. It is a direction under Article 142 on the peculiar facts and circumstances therein. Therefore, the High Court is not right in placing reliance on the judgment as a ratio to give the direction to the PSC to consider the cases of the respondents. Article 142 power is confided only to this Court. The ratio in P.P.C. Rawani (Dr) v. Union of India is also not an authority under Article 141. Therein the orders issued by this Court under Article 32 of the Constitution to regularize the ad hoc appointments had become final. When contempt petition was filed for non-implementation, the Union had come forward with an application expressing its difficulty to give effect to the orders of this Court. In that behalf, while appreciating the difficulties expressed by the Union in implementation, this Court gave further direction to implement the order issued under Article 32 of the Constitution. Therefore, it is more in the nature of an execution and not a ratio under Article 141. In Union of India v. Dr Gyan Prakash Singh this Court by a Bench of three Judges considered the effect of the order in A.K. Jain case and held that the doctors appointed on ad hoc basis and taken charge after 1-10-1984 have no automatic right for confirmation and they have to take their chance by appearing before the PSC for recruitment. In H.C. Puttaswamy v. Honble Chief Justice of Karnataka High Court this Court while holding that the appointment to the posts of clerk etc. in the subordinate courts in Karnataka State without consultation of the PSC are not valid appointments, exercising the power under Article 142, directed that their appointments as a regular, on humanitarian grounds, since they have put in more than 10 years service. It is to be noted that the recruitment was only for clerical grade (Class III post) and it is not a ratio under Article 141. In State of Haryana v. Piara Singh this Court noted that the normal rule is recruitment through the prescribed agency but due to administrative exigencies, an ad hoc or temporary appointment may be made. In such a situation, this Court held that efforts should always be made to replace such ad hoc or temporary employees by regularly selected employees, as early as possible. The temporary employees also would get liberty to compete along with others for regular selection but if he is not selected, he must give way to the regularly selected candidates. Appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc or temporary employee. Ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee. He must be replaced only by regularly selected employee. The ad hoc appointment should not be a device to circumvent the rule of reservation. If a temporary or ad hoc employee continued for a fairly long spell, the authorities must consider his case for regularization 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. It is to be remembered that in that case, the appointments are only to Class III or Class IV posts and the selection made was by subordinate selection committee. Therefore, this Court did not appear to have intended to lay down as a general rule that in every category of ad hoc appointment, if the ad hoc appointee continued for long period, the rules of recruitment should be relaxed and the appointment by regularization be made. Thus considered, we have no hesitation to hold that the direction of the Division Bench is clearly illegal and the learned Single Judge is right in directing the State Government to notify the vacancies to the PSC and the PSC should advertise and make recruitment of the candidates in accordance with the rules.
11. In Union of India v. Harish Balkrishna Mahajan the position was again reiterated with reference to Dr Narain case. Therefore, the challenge to the order of dismissal on the ground of long continuance as ad hoc/temporary employee is without substance.
23. On the facts of the case delineated above, the principle of legitimate expectation has no application. It has not been shown as to how any act was done by the authorities which created an impression that the conditions attached in the original appointment order were waived. Mere continuance does not imply such waiver. No legitimate expectation can be founded on such unfounded impressions. It was not even indicated as to who, if any, and with what authority created such impression. No waiver which would be against requisite compliances can be countenanced. Whether an expectation exists is, self-evidently, a question of fact. Clear statutory words override any expectation, however founded. (See R. v. Director of Public Prosecutions, ex p Kebilene.)
16. It has not been argued or contended before us that the petitioners were appointed by a regular selection process or their services were liable to be regularised in terms of any policy, rules or regulations. Regularisation can only be permitted if the petitioners were appointed after regular and proper selection procedure after competing with others. Persons appointed through back door, though may invoke sympathy as they have worked for some length of time, cannot be directed to be regularised by this Court by putting a stamp of approval on such appointments. The petitioners, however, may in terms of the directions already issued in OA No. 288/2000 titled Malaria Research Centre Employees Welfare Association (Regd.) make a representation, and if already made, the respondent should decide the same by passing a reasoned and speaking order.
17. In view of the above findings, we find no merit in these writ petitions and the same are dismissed. However, we make it clear that the petitioners shall only be replaced by regularly selected employees selected in accordance with the recruitment rules and not by ad hoc/temporary or casual labourers. Further the petitioners will have right to compete along with others for regular selection and if required, they shall be granted age relaxation and due weightage will also be given to the fact that they have worked for considerably long period with the respondent. The respondent shall also abide by the principle last to come first to go. However, in view of the facts and circumstances of the case, we do not pass any order as to costs.