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| Contractual clauses deprive employees of fairness to be struck down: CAT | | | Early Times Report
JAMMU, Sept 29: "Contractual clauses that deprive employees of fairness can be struck down when there is unequal bargaining power between the State and an individual. The applicant herein had no bargaining power and was compelled to accept repeated extensions on the department's terms. To deny her regularization despite continuous services against a clear vacant would amount to arbitrary and unequal treatment violating Articles 14 and 16 of the Constitution of India.", observed the CAT.
The Central Administrative Tribunal, Jammu Bench, Jammu, comprising Hon'ble Mr Rajinder Singh Dogra (J) & Mr Ram Ram Mohan Johri (A) while pronouncing landmark judgment regarding the rights of the contractual/academic appointments to claim regularization, held that "The origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his/her post or Office, the Government servant acquires a status and his/her rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules. In other words, the legal position of a Government servant is more one of status than of contract. The hall mark of status is attachment to a legal relationship of rights and duties imposed by public law and not by mere agreement of the parties. The legal relationship is something entirely different, something in the nature of status. The rights of the civil servants in this country are guaranteed by the Constitution of India, civil rules and the service conditions."
The applicant - Dr Aditi Sharma, having been engaged as Lecturer in the discipline of Prosthodontics, on contractual/academic arrangement in Indira Gandhi Government Medical College, Jammu, against a clear and available vacancy, which remained unfilled despite being advertised multiple times, including notification dated 08.06.2023 issued by J&K Public Service Commission, sought regularization of her services invoking writ jurisdiction through M/S Dinesh Singh Chauhan, & Ms Damini Singh Chauhan, Advocates. It was argued that since the applicant was appointed against the said post in due compliance to the Recruitment Rules as well as method of Recruitment duly provided in the Advertisement Notification. The applicant having been continuously serving since 2014 without any break, thereby, fulfilling the eligibility criteria for regularization under the J&K Civil Services Special Provision Act, 2010.
The continued engagement of the applicant on contractual basis, without extending consequential benefits of regularization, results in exploitation and violation of her constitutional rights. The State being the model employer, cannot take advantage of the helplessness of educated youth by keeping them in perpetual contractual status, by depriving her of regularization while acting arbitrarily and contrary to the spirit of equality before law.
"The exclusion in Section 3 (b) of the J&K Civil Services Special Provision Act, 2010 cannot be mechanically applied to her case. Once the respondents themselves continued her engagement year after year "till further orders" and "till selection", her appointment ceased to be a mere academic session arrangement. She therefore falls within the class of contractual/consolidated employees protected by Section 5. Having completed seven years, having entered service with the requisite qualifications, having served against a clear vacancy without blemish, the applicant has statutory right for regularization. The respondents were bound to place her case before Empowered Committee under Section 10, which they failed to do", held the Division Bench. Union Territory of J&K through Health & Medical Education Department was represented by Mr Sudesh Mangotra, AAG. |
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