Source: Bombay High Court 

Why in News? 

A bench of Chief Justice Devendra Kumar Upadhyaya and Justice Amit Borkar held that merely because the initial appointment orders issued to the petitioners mentioned that the appointment was made on contractual basis, it cannot be said that the petitioners’ appointment was not made on regular basis.               

• The Bombay High Court held this in the case of Rakesh Lal Meena and others v. Union of India through the Secretary, Ministry of Home Affairs and Others.

What was the Background of Rakesh Lal Meena and others v. Union of India through the Secretary, Ministry of Home Affairs and Others. Case?  

• A group of nurses filed a petition regarding their employment status. The main issue was that despite being selected through a proper recruitment process, they were treated as contract employees. 
• The recruitment process in 2006 included: 
  • Jobs were advertised in Employment News and local newspapers. 
  • Names were also called from the local Employment Exchange. 
  • 154 candidates appeared for Staff Nurse positions. 
  • A proper Selection Committee was formed with four senior officials. 
• The Selection Committee's decisions were as follows: 
  • Selected 15 candidates for existing vacancies. 
  • Prepared a separate list of 6 candidates for proposed new positions. 
  • Created a waiting list of 16 candidates. 
• The petitioners' situations: 
  • Petitioner 1 was appointed from the waiting list against one of the 15 vacancies. 
  • Petitioners 2, 7, and 8 were appointed from the main select list. 
  • Petitioners 3, 4, 5, and 6 were appointed against the proposed six new posts. 
  • Petitioners 9 and 10 were different - their names weren't in any of the selection committee minutes. 
• The main grievance: 
  • Despite going through proper selection process under Article 309 of the Constitution of India, 1950 (COI).  
  • Despite being selected against regular vacant positions. 
  • They were given only 6-month contracts. 
  • Were paid a fixed salary of Rs.9075 per month. 
  • Their contracts stated they would work "till the post is created and filled up on a regular basis". 
• The petitioners' argument is that since they were selected through proper recruitment channels (advertisements, employment exchange, selection committee), they should be treated as regular employees, not contract workers. 
• The issue to be determined by the Court was whether the initial appointment of the petitioners made as Staff Nurse on the basis of the selection held by the Departmental Selection Committee in its meeting held on 22nd February 2006 is to be treated to be regular appointment or such appointment has to be treated otherwise; that is to say appointment on contract basis. 

What were the Court’s Observations?  

• According to the Goa Government (Directorate of Health Services) Non-Ministerial, Non-Gazetted Class III Recruitment Rules, 1967 Service Rules (Service Rules, 1967) following are the requirements for the post of Staff Nurse: 
  • Job Level: It's a Class-III position (indicating it's a non-gazetted position). 
  • Age Requirement: Candidates must be 35 years old or younger. 
  • Required Qualifications:  
    • Must have an A grade certificate in nursing from a recognized institution. 
    • Must have a certificate in midwifery. 
  • Hiring Process:  
    • Positions are filled through direct recruitment. 
    • No need to consult with UPSC (Union Public Service Commission) for hiring. 
• A precondition for treating an appointment to be regular is that the selection should have been made against the available vacancy in the duly sanctioned post. The Court held that the appointments were made against the clear vacancies in the duly sanctioned posts.   
• In the absence of any clear prescription regarding composition of a Selection Committee in the Service Rules, 1967, it cannot be said that the selection of the petitioners was not made by a duly constituted Selection Committee.  
• Had the Service Rules, 1967 provided any particular composition of the Selection Committee and the composition of the Selection Committee which held its meeting on 22nd February 2006 would not have matched with the composition as provided in the Service Rules, 1967, it could be said that the petitioners were not subjected to the selection process by the duly constituted Selection Committee. However, as already observed above, since Service Rules, 1967 do not prescribe any composition of Selection Committee, as such, we have no hesitation in concluding that appointment of the petitioners was made on the basis of the recommendation made by the Selection Committee which was appropriately constituted. 
• If the regular selection process has been followed in terms of the provisions available in the Service Rules, 1967, merely because initial appointment order of the petitioners described the appointment to be on contract basis, in our considered opinion, it will not render the appointment of the petitioners to be on contract basis or irregular in any manner.  
• In these circumstances, depriving the benefit of regular appointment of the petitioners on the post of Staff Nurse was held by the Court to be wholly arbitrary, unreasonable and illegal.

What are the Goa Government (Directorate of Health Services) Non-Ministerial, Non-Gazetted Class III Recruitment Rules, 1967? 

• The said rules were notified on 2^nd February 1967. 
• These have been framed under the proviso appended to Article 309 of the Constitution of India, 1950 (COI). 
• The Proviso to Article 309 of COI provides that the following can make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article:  
  • President or such other person as he may direct in case of services and posts in connection with the affairs of the Union.  
  • Governor of a State or such other person as he may direct in case of services and posts in connection with the affairs of the State. 
• As per Rule 2 of the Service Rules, 1967, the said service rules apply to the posts specified in column 1 of the Schedule appended thereto. 
• Rule 3 provides that number of posts, classification of posts and scales of pay attached to the posts shall be as specified in column Nos.2 to 4 of the Schedule, according to which cadre strength of the post of Staff Nurse was 164 and the post of Staff Nurse was classified as Class-III (non-ministerial, non-gazetted) post. 
• Rule 4 of the Service Rules, 1967 provides for the method of recruitment to the posts, age limit, qualifications and other matters connected therewith as mentioned in column 5 to 13 of the Schedule. 
• Rule 5 of the Service Rules, 1967 provides that the said Rules shall come into effect from the date of Notification.

When Does the Appointment Classify as a Regular Appointment? 

• Regular Appointment means the employment of a person in an authorized full-time position. 
• A Constitution Bench in the case of State of Punjab v. Bahadur Singh & Ors (2008) held that if it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued.   
• An appointment to qualify as a regular appointment should be made on the basis of selection held by a duly constituted selection committee in terms of the requirement of the recruitment rules.