Order Of Regularization Cannot Be Passed Based On Continuity Of Service For Longer Period On Contractual Basis- SC
The Supreme Court in a service matter has observed that the order of regularization cannot be passed on the basis of continuity of service for a longer period on a contractual basis, more particularly when a policy decision was taken to avail services of other drivers.
The Bench of Justice MR Shah and Justice MM Sundresh held –
"Merely because respondent No. 1 continued in service for longer period on contractual basis the High Court ought not to have passed the order of regularization more particularly, when a policy decision was taken to avail the services of the driver by the agency/contractor and that the appointment of respondent No. 1 and other similarly situated drivers was not made after any selection procedure."
In this case, the Zila Parishad had issued a communication to the Block Development Officer, Panchayat Samiti requesting for immediate recruitment of ambulance drivers at primary health centers on a contractual basis till the tender process for supplying/providing driver on contract basis is completed. Thereafter, the process was initiated for the same.
Respondent No. 1 was appointed temporarily and on a contract basis as a driver for a period of two months and an agreement was executed between respondent No. 1 and Health Officer, Primary Health Centre agreeing with the terms and conditions of the employment. One of the conditions was that the appointment of candidate is on the contract basis and is exclusively temporary in nature. That another condition was that if at the appointed place appointment of zila parishad driver is done then the appointment of concerned driver will be terminated.
Respondent No. 1 had sought permanency as he had been working for nine years. Thereafter, he approached the High Court by filing a Writ Petition and prayed for regularization and to confer permanency.
In the meantime, an outsourcing agency was appointed and as a result, the appointment of Respondent No. 1 was put to an end.
The High Court after that allowed the Petition and directed the Respondent to continue his work. The Court not only set aside the order of termination though no such prayer was made but also ordered regularization and permanency on the ground that he had been continued in service for more than nine years as a driver without break and/or with artificial break.
Aggrieved, the Zila Parishad approached the Supreme Court.
Counsel A. Karthik appeared for the Appellant while Senior Advocate V. Mohana appeared for Respondent No. 1 before the Court.
The Apex Court while referring to the facts of the case noted that High Court ought not to have set aside the order of termination.
Further, the Bench held, "Merely because respondent No. 1 continued in service for longer period on contractual basis the High Court ought not to have passed the order of regularization more particularly, when a policy decision was taken to avail the services of the driver by the agency/contractor and that the appointment of respondent No. 1 and other similarly situated drivers was not made after any selection procedure. The appointment of respondent No. 1 was purely on stopgap and on contractual basis."
The Court held that High Court had committed a very serious error in ordering regularization and quashing and setting aside the order by which on the contract being awarded to the outsourcing agency, the services of Respondent No. 1 were put to an end.
Thus, the Court set aside and quashed the impugned order of the High Court and allowed the appeal.
Cause Title - Chief Executive Officer, Zila Parishad, Thane & Ors. v. Santosh Tukaram Tiware & Ors.