Saturday, September 12, 2009

Ad hoc or casual basis do not have any “vested” right to hold a post - CAT



DHRUBA GHOSH
Barrister, High Court, Calcutta

Q: I have been working in a central government department as a computer operator on a temporary basis for the past five years. Despite having worked for such a long time, my employment has not been regularised. I have recently applied to the department for being absorbed into regular employment. I want to know whether the department is bound to consider my application favourably and, if they reject it, whether I can challenge such decision before the high court.

Name withheld

A: Whereas persons appointed on ad hoc or casual basis do not have any “vested” right to hold a post or to be regularised in service automatically, the law has carved out some significant exceptions to this rule. The state, after all, is expected to function as a “model employer” and cannot follow policies of “ad-hocism” indefinitely, thus in cases where it is proved that the employer has indulged in unfair or unhealthy practice to deny casual workers their claims for permanency (or where they have reneged on its promise to absorb in due course), the courts can, and do, intervene to protect the individual worker on humane considerations.

The actual decision on regularisation depends on many factors such as the permanency of the nature of work involved, the worker’s qualifications and the time period. Many government organisations frame specific rules setting out criteria or conditions for regularisation, which they are bound to follow. Thus the fate of your application will depend on the facts and circumstances of your appointment.

In the event your application is rejected, the proper forum for you to pursue remedy is the Central Administrative Tribunal. Section 14 of the Administrative Tribunal Act, 1985, bestows upon this tribunal the jurisdiction of all courts (except Supreme Court) in relation to conditions of service of persons appointed to public services and to their recruitment to any “civil service” or “civil post”.

A question could arise as to whether casual workers have any locus standi to apply to this tribunal by virtue of the fact that they are by definition neither in civil service nor holding civil posts. But this technical objection has now been laid to rest, as the courts have consistently held that it cannot be denied that most of the ingredients of a “master and servant” relationship exist between the state and the casual worker.

Thus, for all practical purposes, their relationship bears the necessary characteristics of essentially being one of “employment”, including all incidents thereof. And since you are claiming a right to continue employment on a permanent basis, it would be idle to suggest that you cannot apply to the Central Administrative Tribunal. In fact, the jurisdiction clause covers a wide field and there is nothing to suggest that the eligibility criteria ought to receive a narrow interpretation.

Section 28 of the Act reiterates the intention of Parliament to exclude the jurisdiction of the courts (except the Supreme Court) in these matters. However, the Supreme Court, in its decision in L.Chandra Kumar’s case (1997), cast a doubt on the constitutional validity of this section to the extent that it sought to exclude the jurisdiction of the high court under Article 226 / 227. It held that the power of judicial review is an integral part of the basic structure of the Constitution. However, the court made it clear that in matters pertaining to public service, these tribunals continued to act as “the only court of first instance” and observed that it will be not be open for litigants to directly approach the high court by “overlooking” the jurisdiction of the tribunal. Therefore, your must pursue your case before the tribunal first and not the high court.

Source: The Telegraph

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