Regularization of ad-hoc/daily wage employees not appointed under statutory rules is illegal.

The applicants, Shri Anil Kumar and Shri Ravinder Kumar, were initially appointed on an ad-hoc basis as Peons in 2004 after being sponsored by the Employment Exchange and selected by a Departmental Committee.

Their appointments were for 89-day periods, and they were later continued as daily wagers.

The engagement offers explicitly stated that no right to regularization would accrue.

In 2008, the applicants, along with others, filed O.A. No. 473/2008 seeking regularization, alleging that similarly situated persons had been regularized.

This Tribunal, in its Order/Judgment dated November 19, 2008, denied regularization but directed the respondents to consider engaging the applicants on daily wages based on seniority if sufficient work was available, instead of using contractors.

The Delhi High Court upheld this order on March 31, 2009, considering it a "continuing mandamus" for consideration of regularization against future vacancies.

Subsequently, two other applicants from the original OA, Shri Laxman Prasad and Shri Mahesh Chander, who were senior to the applicants, were regularized on June 1, 2009.

The applicants contended that four vacancies for Peons arose by February 10, 2010, due to promotions, and they should have been regularized against the remaining two, as noted by an Administrative Officer on February 18, 2010.

The Department of Personnel & Training (DoP&T) issued an OM on April 30, 2010, merging Group 'D' posts into Group 'C' (Multi Tasking Staff - MTS), stating there would be no further recruitment to Group 'D'.

The applicants filed M.A. No. 2011/2012 for implementation of the 2008 order, which was initially dismissed on limitation grounds by the Tribunal but later restored by the Delhi High Court for adjudication on merits, which held the mandamus to be continuing.

The Tribunal subsequently directed compliance on October 30, 2014.

The respondents, in compliance, issued an order on January 7, 2015 (Annexure A-1).

The applicants challenged the order dated January 7, 2015, in the present O.A.

The respondents argued that the O.A. was barred by limitation, that no regularization right accrued from ad-hoc engagements, and that the Administrative Officer's noting did not create an enforceable right as vacancies had to be filled as per statutory rules and the Group 'D' cadre was abolished by April 30, 2010.

1. Whether the applicants, being ad-hoc/daily wage Group ‘D’ employees, are legally entitled to regularization against alleged vacancies that existed prior to April 30, 2010, in light of their initial non-statutory appointments and the subsequent abolition of the Group ‘D’ cadre?

2. Whether the refusal of the respondents to regularize the applicants' services was arbitrary or violative of Articles 14 and 16 of the Constitution?

The Tribunal primarily applied the principles laid down by the Constitution Bench of the Supreme Court in *Secretary, State of Karnataka v. Uma Devi* (2006) 4 SCC 1, which mandates that public employment must conform to Articles 14 and 16 of the Constitution, and that temporary, ad-hoc, or daily wage employees have no right to regularization unless appointed in terms of statutory recruitment rules, with courts unable to direct regularization contrary to the constitutional scheme.

It emphasized that regularization solely based on long service for those not initially appointed through a proper process is unconstitutional.

The Tribunal also referred to *Shankarsan Dash v. Union of India* (1991) 3 SCC 47, holding that mere existence of a vacancy does not confer an indefeasible right to appointment.

The Tribunal also referred to *State of Bihar v. Upendra Narayan Singh* AIRONLINE 2009 SC 343, stating that an illegality or irregularity in favor of one person does not entitle others to claim parity ("negative equality").

Further, *Sethi Auto Service Station v. DDA* (2009) 1 SCC 180 and *Nareshbhai Bhagubhai v. UOI* (2019) 15 SCC 1 were cited to establish that file notings are internal administrative opinions and do not create enforceable statutory rights unless culminating in a communicated final order.

The applicants' initial engagement was on an ad-hoc basis for 89 days, explicitly stating no right to regularization would accrue, and they were later continued as daily wagers, not against permanent sanctioned posts through statutory recruitment.

Applying the principles from *Uma Devi* (supra), the Tribunal found that the applicants' engagement was not through regular recruitment under Article 309 Rules, and thus, no enforceable legal right to regularization accrued.

The Tribunal rejected the argument that an Administrative Officer's noting dated February 18, 2010, recommending the filling of four posts, created an enforceable right, citing *Sethi Auto Service Station* (supra) and *Nareshbhai Bhagubhai* (supra) that file notings are mere internal administrative opinions and do not constitute a final, executable order unless communicated after approval by the decision-making authority.

The Tribunal noted that the matter was subject to Ministry approval and statutory Recruitment Rules (RRs), which provided for 75% direct recruitment and a reserved vacancy, meaning appointments could not be made *dehors* these RRs.

The Tribunal further observed that the prior Tribunal order of November 19, 2008, expressly stated that "no direction can be given even to consider these applicants for regularization," implying no mandamus for substantive regularization was ever granted—subsequent proceedings only related to implementation aspects.

Crucially, before any crystallized right could arise for the applicants, the DoP&T OM dated April 30, 2010, merged Group ‘D’ posts into Group ‘C’ (MTS), and new recruitment had to be under MTS Rules.

Since the Group ‘D’ cadre itself stood abolished, regularization in a non-existent cadre became legally impermissible.

The Tribunal also addressed the applicants' contention regarding the regularization of two senior colleagues, finding that it did not establish discrimination, as no junior to the applicants was regularized, and applying *State of Bihar v. Upendra Narayan Singh* (supra), observed that Article 14 does not envisage "negative equality".

It held that the mere existence of vacancies, an internal administrative noting, or claims of discrimination against juniors did not create an entitlement to regularization.

The Tribunal affirmed that the abolition of the Group ‘D’ cadre prior to the crystallization of any enforceable right further rendered their claim legally impermissible, consistent with the constitutional scheme of public employment and the ratio of *Uma Devi* (supra).

There was no order as to costs.

The Tribunal also noted its dissatisfaction with the language used by Shri R.S. Meena in the counter-reply but refrained from taking adverse action due to his probable retirement, reminding the respondents of their duty to assist the Tribunal fairly and fully.