23 years on, lecturer to turn permanent after Patna High Court says ‘contract’ tag can’t outweigh constitutional right

The order stated that non-consideration of the petitioner’s case for regularisation, especially at this stage, would amount to denial of the legitimate benefits of regularisation and basic service security. Such a course is not expected of a welfare state or its instrumentalities, which are under a constitutional obligation to act fairly and to avoid “exploitative” employment practices, it added.

Over 20 years of service, denial of regularisation

The respondent, Rajesh Kumar, was initially appointed as a faculty member at DNS Regional Institute of Co-operative Management, Patna, in November 2001, on a purely contractual basis. Although his appointment was contractual, records indicated it was made against a vacant sanctioned post and received ex-post-facto approval from the National Council for Co-operative Training (NCCT).

Kumar’s contract was extended 22 times over more than 23 years of unblemished service. Despite failing to qualify in a regular recruitment process in 2011, he was allowed to continue his duties without interruption.

He eventually approached the court seeking regularisation, which a single judge granted in 2024, directing that his service be regularised from his initial appointment date in 2001. The state challenged this order before the division bench.

Institution’s action ‘arbitrary’

• The action of the Institution in engaging the employee during his youth to discharge duties, and thereafter, upon his rendering long and dedicated service, leaving him to fend for himself, particularly when he has attained the age of superannuation, and no further employment opportunities remain, cannot be countenanced in law, the Patna High Court noted.
• Such conduct is not only in complete derogation of the principle of equality enshrined under Article 14 of the Constitution, but also suffers from the vice of arbitrariness and exploitation.
• The highest court of the land has also ruled that denial of consideration for regularisation on account of nomenclature of contractual appointment of the persons who have been working against a sanctioned post for over a decade is wholly unjustified and fails to withstand the scrutiny of Article 14 of the Constitution of India.
• The long continuous service over a considerable period clearly suggests the duty, substantive in nature, akin to permanent employees.

‘Unblemished’ service

Based on facts of the case, the Patna High Court noted that it indicates that the petitioner has been continued on the said post for over a period of more than two decades.

It added that in such circumstances, it reasonably follows that the duties discharged by the petitioner were of a regular and perennial nature and integral to the day-to-day functioning of the institution.

The Patna High Court referred to the Supreme Court’s Constitution Bench judgment in Umadevi, and said that it was observed that since the rule of law forms the core of the Constitution, courts would be precluded from issuing directions that would result in violation of Articles 14 (equality before law) and 16 (equality of opportunity in matters of public employment).

It was held that unless an appointment is made in accordance with the relevant recruitment rules and through a process of open competition amongst eligible candidates, such an appointment would not confer any right upon the appointee, the order stated.

Drawing from the apex court judgment, the Patna High Court said that the Constitution Bench, however, carved out a limited exception by providing for a one-time measure in respect of those employees who had been appointed irregularly and had continued in service for 10 years or more against duly sanctioned posts, without the protection of any interim orders passed by courts or tribunals, and issued directions in that regard.

The bench reiterated the legal positions taken by the apex court in similar cases, and stated that the petitioner, though initially appointed on a contractual basis, was granted ex post facto approval, and his continued engagement on the said post cannot be faulted on the grounds of non-adherence to procedural requirements and a lack of eligibility.

Highlighting that in 2011, the petitioner had participated in the process of regular appointment along with other candidates, but was declared unsuccessful, the Patna High Court said that nevertheless, he was allowed to continue in service for over a considerable period extending for more than two decades, unblemished and without any interruption, and his satisfactory service was consistently acknowledged, which also fortified the petitioner’s case.

The Patna High Court clarified that it is not the case of the respondents that any decision was ever taken to discontinue the petitioner on the ground that his initial appointment was dehors the rules.