LOVE GOEL vs National Institute of Entrepreneurship and Small Business Development (NIESBUD) on 3 November 2026

O R D E R

Hon’ble Mr. R.N. Singh, Member (J):

Learned counsels for the parties admit that the issues involved in all the captioned Original Applications (OAs) are identical and the claims made by the applicants in the captioned OAs are also identical and based on common grounds. Thus, with the consent of the learned counsels for the parties, all the captioned OAs have been heard together and are being adjudicated by this common order. The OA No. 4258/2024 has been taken as the lead case for hearing and writing of the present common order.

2. In the OA No. 4258/2024 filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant is seeking the following reliefs: “(a)Quash/set aside the bid process started by issuance of bid document on 25.09.2024 by the respondent no. 1 and/or

(b) Direct the Respondent no. 1 to withdraw any proceedings initiated by it to terminate the service contract of the Applicant with the respondent no. 1. And/or

(c) Direct the Respondent No. 1 to keep the Applicant on the payroll of respondent no. 1 and govern his service by applicable rules and/or (d) Direct the respondent to stop any process initiated by it to place the applicant on the retention list of any other third party selected by the respondent no. 1 and (e) Pass such other order or further orders as this Hon’ble Tribunal deem fit and proper in the facts and circumstances and/or (f) Award cost of the litigation to the applicant.” NEHA SHARMA

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3. Pursuant to notice, respondents have filed counter reply and have opposed the claim of the applicants.

4. We have heard the learned counsels for the parties and have gone through the pleadings on record.

5. Brief undisputed facts of the case are that the applicant was appointed as a Programme Coordinator on contractual basis with the National Institute for Entrepreneurship and Small Business Development (NIESBUD) on 12.07.2012 and has continued to serve the organisation for over twelve years without any break. According to him, his contractual engagement was renewed from time to time, he remained on the payroll of NIESBUD, and he was also extended certain benefits, including employer contributions towards the Employees' Provident Fund, which were subsequently discontinued. He further alleges irregularities in the payment and revision of salary and disparity in the service benefits extended to contractual employees.

6. On 25.09.2024, NIESBUD issued a bid document on the Government e-Marketplace (GeM) portal, inviting tenders for outsourcing manpower through a third-party service provider. The applicant alleges that, under the proposed arrangement, certain existing contractual employees would continue to work for NIESBUD but would be engaged through the successful bidder, thereby removing NEHA SHARMA

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them from NIESBUD's payroll. He apprehends that his contractual engagement would consequently be terminated and transferred to a private agency without notice, reasons or his consent.

7. Learned counsel for the applicant submits that NIESBUD issued an office memorandum dated 11.10.2024 directing contractual employees to attend a performance review meeting scheduled for 17.10.2024. Learned counsel submits that the review was intended to intimidate contractual employees and apprehension of passing of adverse remarks against those seeking legal redress. The applicant submitted a representation against the proposed outsourcing arrangement, but no response was received.

8. Aggrieved by the proposed displacement from NIESBUD's payroll and the alleged arbitrary alteration of his service conditions, the applicant has approached the Tribunal seeking quashing of the bid process initiated on 25.09.2024 and continuation of his engagement on the payroll of NIESBUD.

9. This Tribunal on 27.11.2024, by way of interim relief, directed the respondents not to change the condition of service of the applicant and maintain the status quo, qua the services of the applicant. Such interim order is continuing till date. NEHA SHARMA

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10. Learned counsel for the respondents by referring to the counter- affidavit, contends that the applicant was engaged as a Programme Coordinator purely on a contractual basis and that such engagement does not confer any right to permanent employment. He submits that NIESBUD, being an autonomous body under the administrative control of the Ministry of Skill Development and Entrepreneurship, is required to follow the General Financial Rules, 2017, particularly Rule 149, which mandates procurement of services available on the Government e-Marketplace (GeM). The HR Policy for Contractual Employees was framed in accordance with Government rules and with the approval of the competent authority, and provides for engagement of contractual manpower through an open bidding process on GeM. It is further submitted that the Review Committee, in its meeting dated 06.09.2024, recommended extension of the existing contractual employees, including the applicant, and that his name was accordingly included in the retention clause of the GeM bid issued on 25.09.2024. Thus, learned counsel for the respondents states that the applicant’s services are not being terminated or that the action is not with mala fide intentions. The applicant is being retained through the new GeM arrangement, with enhanced remuneration and provisions for EPFO and EDLI benefits. It is also submitted that the performance review was undertaken only to assess the suitability, performance and requirements of contractual employees, and that a similar review had been conducted earlier in NEHA SHARMA

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2016. The applicant had also previously worked through a private service provider in 2016. The applicant’s representation is under examination. The respondents thus, pray for dismissal of the OA.

11. Learned counsel for the applicant has argued that the applicant was engaged by the respondent no. 1 on contract basis on finding him eligible and suitable for the post of Programme Coordinator and since his initial engagement as such from 12.07.2012, the applicant has been discharging his duties to the satisfaction of the competent authority uninterruptedly. The applicant has been on the rolls of contractual employees of respondent no. 1 being supervised, commanded and paid by respondent no. 1. The contractual engagement of the applicant has all along been extended by respondent no. 1 automatically and now abruptly, the respondents have issued the impugned bid document in order to either replace the applicant by engaging another contractual employee through third party manpower agency and/or to change the condition of service of the applicant and such action of the respondent is not tenable in the eyes of law. He has further argued that the respondent no. 1 issued notice calling upon the applicant and many other contractual employees for review of their work on 17.10.2024 which is in all probability with mala fide intention to get either the applicant’s contractual engagement terminated and/or to change the condition of service of the applicant from that of contractual employee NEHA SHARMA

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of respondent no. 1 to employee of some private manpower agency. Such arbitrary action of the respondents is apparent from the fact that on 17.10.2024, though the respondents conducted the review meeting, however, only a few selected persons were called for such review and in case of the applicant, no such review took place.

12. Learned counsel for the applicant has further argued that such action of the respondents is arbitrary and discriminatory and in violation of the provisions of Article 14, 19 and 21 of the Constitution of India. In support of his claim, the applicant has placed reliance on an order/judgment dated 05.03.2021 of a Co-ordinate Bench of this Tribunal consisting one of us (Hon’ble Sh. R.N. Singh, Member (J)) in OA No. 2112/2020 titled Ashok Kumar and ors. vs. GNCTD and anr.

13. On the other hand, Sh. Kaushik, learned counsel for the respondent no. 1 has argued that the present OA is not sustainable in law in view of the following grounds:-

(i) the applicant’s representation is still under examination of the respondents.

(ii) the applicant was not engaged against a sanctioned post.

(iii) the applicant was not selected through a proper mode of selection. NEHA SHARMA

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(iv) the applicant is not being replaced by another contractual employee and/or a regularly selected person, and

(v) the applicant will be in the retention list of the impugned bid document with more remuneration 13.1. Learned counsel for respondent no. 1 further submits that the order/judgment in the case of Ashok Kumar (supra) relied on behalf of the applicant is of no help as the same has been considered by a Co- ordinate Bench of this Tribunal while passing the common order/judgment dated 07.11.2023 in OA No. 1349/2021 with OA No. 1692/2021 titled Bala Devi and ors. vs. UOI and anr. and in such order/judgment, the Tribunal has held that the judgment in the case of Ashok Kumar (supra) is not a judgment in rem to be applicable across all category of contractual/daily wager/casual labourers and the Union Government has prerogative of adopting the manner of hiring of services of manpower for intermittent work. The introduction of GeM portal and hiring of services of manpower through the GeM portal have not been challenged in any court of law nor it has been set aside by any court. Accordingly, all the Ministries or Departments are bound to hire the services of manpower for intermittent work through GeM portal and such hiring ensures efficiency and economy in providing services to general public through various Ministries and Departments. NEHA SHARMA

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13.2. Learned counsels appearing for the respondent no. 2 in their respective OAs submit that the contesting respondent is only NIESBUD and Union of India is only a proforma party and in this background, learned counsels appearing for the Union of India are adopting the arguments advanced by Sh. Kaushik, learned counsel for respondent no. 1, i.e. NIESBUD.

14. In rejoinder, learned counsel for the applicant has reiterated the arguments already advanced by him in support of the claim of the applicant and has added that the judgment of this Tribunal in Ashok Kumar (supra) is binding inasmuch as the same has attained finality and the same was passed by following the law laid down by the Hon’ble Apex Court in State of Haryana and ors. vs. Piara Singh and ors. reported in 1992 (4) SCC 118 and the order/judgment dated 03.11.2014 of the Hon’ble High Court of Delhi in WP(C) No. 1741/2014 titled Narinder Singh Ahuja and ors. vs. The Secretary, Ministry of Health and Family Welfare and ors. which was further considered and followed by a Co-ordinate Bench of this Tribunal in OA No. 2149/2016 titled Ms. Shikha Jain and ors. vs. Union of India and anr. and these judgments had become final after dismissal of the respective SLPs. He further submits that reliance of the learned counsel for the respondent on the judgment of a Co-ordinate bench of this Tribunal in Bala Devi (supra) is otherwise also misconceived NEHA SHARMA

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inasmuch as the said judgment was challenged by the applicants in the respective Writ Petitions bearing WP(C) No. 6161/2024 and WP(C) No. 6547/2024 and the Hon’ble High Court of Delhi vide order/judgment dated 31.08.2026 allowed the Writ Petitions with directions in favour of the petitioners therein.

15. We have considered the submissions made by the learned counsels for the parties.

16. This Tribunal in the case of Ashok Kumar (supra) had occasion to consider the defence of the respondents that alternative remedy of employment has been made keeping in view the amended provisions of General Finance Rules (GFRs), 2017. However, the Tribunal, keeping in view the law laid down by the Hon’ble Apex Court in Piara Singh (supra) and the Hon’ble High Court in Narinder Singh Ahuja (supra) and also in the case of Ms. Shikha Jain (supra) has held in paragraphs 14 to 17 as under: “14. The Order/Judgment of this Tribunal in Shikha Jain’s case (supra) was challenged by the Union of India before the Hon‟ble High Court of Delhi vide writ Petition (Civil) No.5073/2017 and the Hon‟ble High Court had dismissed the said Writ Petition vide Order/Judgment dated 27.3.2017 (Annexure A/9) and in paragraphs 13 to 15 of the said Order/Judgment, the Hon‟ble Delhi High Court has ruled as under:- “13. The Tribunal has placed reliance on the decision of this Court in Narinder Singh Ahuja and Others Vs. The Secretary, Ministry of Health And Family Welfare & Others, W.P. (C.) No. 1741/2014 decided on 03.11.2014. In paragraph 15 of this decision, the Division Bench held as follows: NEHA SHARMA

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"15. In the opinion of this Court, since the respondents nowhere dispute that there is need for the performance of the work that the petitioners were discharging all along and there is also no dispute that the project and funding (for the project) would continue till 2017, the decision to discontinue the petitioners' engagement is based only on the policy to outsource the contractual employment to a third party. The petitioners are not insisting on regularization, given the nature of the employment or engagement, which is project based. However apart from the decision to "outsource" engagement of contract employment to a third agency, there is no rationale to discontinue the petitioners' contracts. The justification that the employees engaged through the contractor are paid lower wages is arbitrary, because the "outsourced" or outsourcing agency would have to be paid its service charges. The lower wages paid, therefore, is, in effect, because of the charges/fees paid to the contractor/ outsourced agency. The facts of this case clearly reveal that even though the work is to be performed by contractual employees, the reason for discontinuance of the petitioners' employment is not their replacement with regular appointees, but instead, with another set of contractual employees. The state/respondents cannot, in the circumstances of this case, say that discontinuance of such employment cannot be gone into by the Court because the petitioners were aware that their contracts ended.”

14. The aforesaid decision has been relied upon by the Tribunal in the impugned order, since the endeavour of the petitioners is to replace the respondents with an outsourcing agency on contract basis. Learned counsel for the respondents has pointed out that the said decision has been affirmed by the Supreme Court with the dismissal of the Special Leave Petition on 27.03.2015 vide Special Leave Petition (Civil) No.8706/2015. 15. In these circumstances, we find absolutely no merit in this petition. The same is, accordingly, dismissed.”

15. From the law laid down by the Hon‟ble Apex Court in Piara Singh’s case (supra) and that by the Hon‟ble High Court of Delhi in Narinder Singh Ahuja’s case (supra) and Shikha Jain’s case (supra), it is evident that replacement of a contract employee(s) by fresher(s), junior(s) or even a staff from an outsource agency is prohibited. No statutory provision has been brought to our notice by the respondents, which takes away the right of preferential treatment to the daily wager or contractual employees, who are already engaged and are working for continuation on NEHA SHARMA

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contract to junior(s), fresher(s) or the person(s) to be engaged through outsourcing agency to be taken away.

16. In view of the facts as noted hereinabove and law as laid down by the Hon‟ble Supreme Court of India and Hon‟ble High Court of Delhi, referred to hereinabove, we are of the considered view that action of the respondents of not continuing the engagement of the applicants as Driver on contract basis and their action of replacing them by another set of contractual employees through outsourcing is not tenable in the eyes of law.

17. In the result, for the foregoing reasons, the present OA is partly allowed and the respondents are directed to continue the applicants on the same terms and conditions of on contract basis as long as there is work available with the respondents and/or till the vacancies are filled up on regular basis. The respondents are further directed to issue consequential order as expeditiously as possible and in any case within four weeks of receipt of a copy of this Order. No costs.”

17. So far reliance of the learned counsel for respondent no. 1 on the judgment of a Co-ordinate Bench of this Tribunal in Bala Devi (supra) is concerned, we are not required to go into the details for the reason that in the said case, the applicants were part time daily wagers and not contractual employees. Admittedly, the said judgment in the case of Bala Devi (supra) was challenged before the Hon’ble High Court of Delhi in WP(C) No. 6161/2024 and 6547/2024 (supra) and was set aside by the Hon’ble High Court vide order/judgment dated 31.08.2026 with further directions in favour of the petitioners therein in the said Writ Petitions. Further, it has been noted in paragraph 6 of such judgment that the judgment passed by the Hon’ble High Court of Calcutta in W.P.A No. 692/2022 and order/judgment of the Co-ordinate Bench of this Tribunal in Ashok Kumar (supra) are judgments in NEHA SHARMA

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personum. In this background, the common order/judgment dated 31.08.2026 relied upon by the learned counsel for the applicant is a binding precedent for us and in such judgment, the Hon’ble High Court has ruled in paragraphs 14-22 as under: “14. Thus, the judgment of this Court in Pawan Sharma stands affirmatively approved by the Supreme Court, except to the extent of clarifying that the regularized petitioners would not be entitled to seniority over others who may have been regularly appointed in the interregnum.

15. Learned Counsel for the petitioners before us do not seek any such seniority.

16. Pawan Sharma was thereafter followed by this Court in Kalpana Sharma, from which we may reproduce the following paragraphs: “19. From the decisions in Vinod Kumar, Jaggo, Shripal and Dharam Singh, the position which emerges is that a right to regularization arises ipso facto in favour of the employees who were initially employed after open selection against sanctioned vacancies and continued on the posts for long periods of time. These three facts i.e., (i) appointment by open selection,

(ii) appointment against sanctioned vacancies, and (iii) long and continued discharge of duties on the posts to which they were appointed, by themselves entitled them to regularization. In fact, in Jaggo, the Supreme Court even went to the extent of holding that it was not open to the respondents to contend that the appointments were not made against sanctioned vacancies.

20. The only other additional consideration which emerges from the later decisions on the issue is the duties discharged by the employees concerned. If the appointment is against posts which are transient in nature, the entitlement to regularization would be of a somewhat lower degree. If, however, the employees discharge duties which are basic and essential to the functioning of the organization, their right to regularization stands sanctified.

21. In such circumstances, there can be no question of the employees being required to await framing of RRs or any other such eventualities in order to be regularized. Their right to regularization flows as a consequence of long and unblemished service of the establishment consequent on appointment by open selection against sanctioned vacancies, for work which is essential to the functioning of the NEHA SHARMA

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organization. It is not open to the establishment after extracting work from such persons for protracted periods of time to contest their claim to regularization on the ground that RRs were to be framed or that RRs which had been framed after the appointment of the respondents, did not qualify them for regularization.

22. We are not inclined to agree with Ms. Dave's contention that we should await the outcome of the correspondences between the NDMC and the UPSC. In para 4(v) of the writ petition, the NDMC has specifically averred that the UPSC rejected the proposal for regularization mooted by the NDMC consequent on an earlier decision of the Tribunal rendered in OA 3597/2017 on the ground that the appointment of the employees was not in accordance with the RRs and that, therefore, their services could not be regularized merely because they had been serving the Establishment for a long period of time. Reliance was placed by the UPSC for this opinion, on the judgment of the Constitution Bench of the Supreme Court in Uma Devi. The view adopted by the UPSC is in the teeth of the law declared in Jaggo and the decisions which followed it and reiterated the same position. Uma Devi has been considered in all these decisions and the Supreme Court has consistently held that Uma Devi, which was intended to be a beneficial decision, aimed at curbing back door appointment, has been weaponized and used as a tool to continue persons on contractual and ad hoc basis for years at a stretch without regularizing their services. Such a practice not only amounts to unfair labour practice but also violates Article 21 of the Constitution of India. As the UPSC has, in a similar case, refused to recommend regularization of the employees concerned, we are of the opinion that no useful purpose would be served by awaiting the reply of the UPSC even if NDMC has been communicating with the UPSC in that regard.

23. Besides, once the right of the respondents to regularization stands crystalized by, as on date, seven judgments of the Supreme Court, all of which are consistent with each other, it would be a travesty of justice and grossly unfair to the respondents to allow their cases to continue to remain in suspended animation.

24. It is true that in some earlier orders, we had issued notice without disposing of the matters, keeping in mind the fact that against earlier decisions passed by us, appeals had been preferred before the Supreme Court which had issued notice thereon and, in some cases, directed, as an interim measure, that the employees before it in those cases be not removed from the posts which were held by them. In view of the fact that the issue was sub judice before the Supreme Court in NEHA SHARMA

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some cases, we had refrained from passing any final decisions in the writ petitions before us.

25. Ms. Dave predictably draws our attention to this fact.

26. After that, however, the same position had been reiterated by the Supreme Court twice, firstly, in Bhola Nath and thereafter in Pawan Kumar, rendered by two different Division Benches of the Supreme Court. Pawan Sharma expressly reproduces and relies on Jaggo.

27. Once the Supreme Court has made its view thus clear, we, as a Court hierarchically lower on the judicial ladder, are bound to decide the lis before us in terms of the law declared by the Supreme Court.

28. Besides in view of the decisions in Jaggo, Shripal, Dharam Singh, Bhola Nath, Vinod Kumar and Pawan Kumar and the judgment of this Court in Pawan Sharma, we find no error whatsoever in the view adopted by the Tribunal.

29. However, we clarify that the respondents would be entitled to exactly the same benefits which were granted to the petitioners in Pawan Sharma, i.e., to be regularised prospectively with however, the benefit of fixation of pay, seniority and continuity of service from the date of initial appointment but without any back wages.”

17. A Coordinate Bench of this Court has, in Om Prakash Gaur, speaking through the Hon’ble the Chief Justice, followed the decision in Pawan Sharma. The relevant paragraphs from the decision of the Coordinate Bench in Om Prakash Gaur may be reproduced thus: “24. A Division Bench of this Court in Pawan Sharma (supra), referring to Jaggo (supra), Shripal (supra) and Dharam Singh (supra) has held that in the said case since the employees were selected by a process which mirrors regular recruitment and they had worked continuously for several years and have been performing duties essential for the establishment or organisation, hence they were entitled to be regularised. It is to be noticed that in Pawan Sharma (supra) as well the advertisement pursuant to which the employees were initially engaged was for a walk-in interview only, as is the case with the employees in these two appeals. Para 15 of the report in Pawan Sharma (supra) is extracted herein below: “15. To our mind, the present petitions stand covered on facts by the decision in Vinod Kumar, Jaggo, Shripal and Dharam Singh. We have already set out the propositions emerging from the said decisions, and do not deem it necessary to repeat them in extenso. However, some NEHA SHARMA

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principles, which are dispositive of the petitions before us, may be enumerated:

(i) If

(a) the employees are selected by a process which mirrors regular recruitment, by holding selections and interviews, (b) they have worked continuously for several years, and

(c) they are performing duties essential for the establishment or organization, they are entitled to regularization.

(ii) The right to regularization, thus earned, is substantive in nature.

(iii) In such cases, the initial label under which they were recruited, whether part-time, or contractual, or casual, or ad hoc, or temporary, would not matter.

(iv) However, the appointment must not be illegal, mala fide, surreptitious, or “back door”.

(v) In such circumstances, it is not open to the respondents to contend that the posts occupied by the employees were not regular posts. The recurrent nature of the duties performed by the employees necessitated the classification of the posts as regular, irrespective the original label under which the employees may have been appointed. The initial temporary, ad hoc, contractual, or casual, nature of their employment stood transformed, in such cases, “into a scenario demanding fair regularization”.

(vi) The right to regularization would enure, in such cases, even if the posts against which the employees were appointed were not sanctioned posts - though, in the present case, the posts against which the petitioners were appointed were sanctioned.”

25. The Division Bench in Pawan Sharma (supra), has also held that the right of regularisation in such cases would accrue even if the posts against which the employees were initially appointed were not sanctioned posts. The final direction issued in Pawan Sharma (supra) by the Division Bench of this Court is as under: “22. The petitioners are, therefore, directed to be regularized against the posts on which they were originally appointed, irrespective of the labels governing such appointment. They would be entitled to fixation of pay treating them as having been regularly appointed ab initio. They shall also be entitled to all other benefits which would follow, except for back wages.” NEHA SHARMA

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26. In view of the detailed discussion of the entire law regarding entitlement of regularisation of a contractual/adhoc/temporary employee made by the coordinate Bench of this Court in Pawan Sharma (supra), we are of the opinion that having regard to the facts of the instant case as well, the employees are entitled to be considered for regularisation of their services. Their long continuance of service with the University clearly indicates that ever since their initial appointment they have been performing functions and duties, the requirement of which is perennial and accordingly, they are entitled to be regularised in service.

27. The judgment of the Division Bench of this Court in Pawan Sharma (supra), was challenged in Civil Appeal No. 7837/2026, which had arisen out of SLP(C) No. 17550/2026. The said Civil Appeal, vide order dated 14-5-2026 passed by the Supreme Court, has been disposed of, maintaining the order of this Court with a clarification that the employees to be regularised pursuant to the order of this Court shall be placed below those employees who were regularly appointed candidates in the order of seniority. The directions issued for regularising the services of the employees in Pawan Sharma (supra) were, thus, maintained by the Supreme Court.”

18. Legally, therefore, the issue is now crystallised by the above decisions.

19. The petitioners, undisputedly, were employed directly by the IB without any intervening contractor or any GeM portal. Their services were periodically extended for over 20 years with artificial breaks. They were rendering services which were unquestionably routine services required to be rendered on day-to-day basis. The fact that their services were continued for so long clearly indicates that their services were not dispensable. It is nobody’s case that the appointment of the petitioners was illegal or through backdoor or for any ulterior considerations.

20. We are, preambularly, a socialist democracy. Our Constitutional goal of socialism would require us to ensure that the lowest of the low obtains justice, and is not unnecessarily victimised. The petitioners before us are casual labourers and Group D contractual employees who have, without demur or complaint, been serving the IB for decades. Uprooting them from their employment at this stage would go against the very fundamentals of the socialist fabric on which the edifice of our Constitution rests.

21. Following the judgments of this Court in Pawan Sharma and Kalpana Sharma, as well as a recent judgment of the Coordinate Bench of this Court in Om Prakash Gaur, these NEHA SHARMA

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writ petitions are allowed and the impugned orders are quashed and set aside.

22. The petitioners are, therefore, directed to be regularised on the posts held by them. They would be entitled to the benefit of regularisation from the date of their initial appointments which would also include the benefits of pay fixation and the like but would not be entitled to any additional back wages beyond the wages which have already been paid to them. They would also be entitled to parity of pay with others who may be rendering the duties being rendered by them on regular basis. They would, however, not be entitled to any seniority over persons who may be recruited, during the period their services have continued on contract basis, to similar posts on regular basis by the IB.”

18. Furthermore, we had occasion to go through an order/judgment dated 20.02.2026 of the Hon’ble High Court of Kerala at Ernakulam in WP(C) No. 3718/2021 titled Sindhu S. and ors. vs. the State of Kerala and ors. wherein the Hon’ble High Court has ruled in paragraph 5 and 6 as under: “5. Learned counsel for the petitioners relies on the judgment of the Apex Court in Balco Captive Power Plant Mazdoor Sangh and another v. National Thermal Power Corporation and others, (2007) 14 SCC 234, wherein it is held that the Government or its instrumentality cannot alter the conditions of service of its employees and any such alteration causing prejudice cannot be effected without affording an opportunity of pre-decisional hearing and the same would be arbitrary and violative of Article 14 of the Constitution of India. Paragraphs 34 and 35 of the said judgment read as follows: "34. This Court in Pyarchand v. Omkar Laxman (supra) held thus: "A contract of service being thus incapable of transfer 2026:KER:15768 unilaterally, such a transfer of service from one employer to another can only be affected by a tripartite agreement between the employer, the employee and the third party, the effect of which would be to terminate the original contract of service by mutual consent and to make a new contract between the employee and the third party."

35. The Government or its instrumentality cannot alter the conditions of service of its employees and any such alteration NEHA SHARMA

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causing prejudice cannot be effected without affording opportunity of pre decisional hearing and the same would amount to arbitrary and violative of Art.14. As pointed out earlier, in the case on hand, the employees are neither party to tripartite agreement nor they have been heard before changing their service condition. Therefore, the action of the management is violative of Art.14 of the Constitution of India. Similar view has been taken by this Court in H. L. Trehan and Others v. Union of India and Others, 1989 (1) SCC 764. In para 11 of the judgment, this Court observed as under: "11... ... It is now a well established principle of law that there can be no deprivation or curtailment of any existing right, advantage or benefit enjoyed by a Government servant without complying with the rules of natural justice by giving the Government servant concerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudicially affecting the existing conditions of service of a Government servant will offend against the provision of Art.14 of the Constitution. Admittedly, the employees of CORIL were not given an opportunity of hearing or representing their case before the impugned circular was issued by the Board of Directors. The impugned circular cannot, therefore, be sustained as it offends against the rules of natural 2026:KER:15768 justice.'" Petitioners also rely on the judgment in H.L.Trehan and others v. Union of India and others, (1989) 1 SCC 764, wherein the Apex Court held that there cannot be any deprivation or curtailment of any existing right, advantage or benefit enjoyed by a Government servant without complying with the rules of natural justice by giving the Government servant concerned an opportunity of being heard. Paragraph 11 of the said judgment reads as follows: "11. One of the contentions that was urged by the respondents Nos. 1 to 4 before the High Court at the hearing of the writ petition, as noticed above, is that unguided and arbitrary powers have been vested in the official by sub-sec.

(1) of S.11 for the alteration of the terms and conditions of service of the employees. It has been observed by the High Court that although the terms and conditions of service could be altered by CORIL, but such alteration has to be made 'duly' as provided in sub-sec. (2) of S.11 of the Act. The High Court has placed reliance upon the ordinary dictionary meaning of the word 'duly' which, according to Concise Oxford Dictionary, means 'rightly, properly, fitly' and according to Stroud's Judicial Dictionary, Fourth Edition, the word 'duly' means 'done in due course and according to law'. In our opinion, the word 'duly' is very significant and excludes any arbitrary exercise of power under S.11(2). It is NEHA SHARMA

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now a well established principle of law that there can be no deprivation or curtailment of any existing right, advantage or benefit enjoyed by a Government servant without complying with the rules of 2026:KER:15768 natural justice by giving the Government servant concerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudicially affecting the existing conditions of service of a Government servant will offend against the provision of Art. 14 of the Constitution. Admittedly, the employees of CORIL were not given an opportunity of hearing or representing their case before the impugned circular was issued by the Board of Directors. The impugned circular cannot, therefore, be sustained as it offends against the rules of natural justice."

6. Learned counsel appearing for the respondent Council relied on the judgment of Allahabad High Court in Chanda Jain v. Union of India and another, 2016 Supreme (All) 1199, which relied on the judgment of the Apex Court in Union of India v. Pushpa Rani and others, (2008) 9 SCC 242, and held that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer and the power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. I am afraid that this judgment cannot come to the help of the respondent, inasmuch as the present action of imposing condition No.7 2026:KER:15768 to the promotion order is contrary to the statutory provision i.e., Ext.P1 Staff Regulations of the respondent Council and the power of judicial review could be exercised by this Court, if the action of the employer is contrary to the statutory provisions. In the light of the above, I am inclined to allow the writ petition. Condition No.7 in Ext.P4 and any similar undertaking signed by the petitioners are hereby quashed. Consequential benefits due to the petitioners on the strength of the order now passed quashing condition No.7 of Ext.P4 and other similar undertaking signed by the petitioners shall be extended to them within a period of one month from the date of receipt of a copy of this judgment.”

19. We had also come across an order/judgment dated 11.10.2007 of the Supreme Court of India in Civil Appeal No. 678/2006 titled BCPP Mazdoor Sangh & Anr vs. NTPC & Ors., reported in (2007) 14 SCC NEHA SHARMA

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234 wherein the Hon’ble Apex Court has ruled in paragraphs 32-37 as under: “32. The next submission of the learned Senior Counsel for the employees was that transfer of employer is not permissible without tripartite agreement. As per the law laid down in Nokes v. Doncaster Amalgamated Collieries Ltd. [1940 AC 1014 : (1940) 3 All ER 549 (HL)] and decision of this Court in Pyarchand Kesarimal Porwal Bidi Factory v. Omkar Laxman Thenge [AIR 1970 SC 823 : (1969) 2 SCR 272] the consent must be express and consciously accorded in the course of negotiation contemporaneous with the process of transfer so as to amount to an informed consent. Consequently, in order to bind the appellants, there must be a tripartite agreement. Since there is no tripartite agreement, as observed above, the transfer from one employer to another cannot be effected.

33. In Nokes v. Doncaster Amalgamated Collieries Ltd. [1940 AC 1014 : (1940) 3 All ER 549 (HL)] it was observed as under: (AC p. 1020 : All ER p. 552 H) “It will be readily conceded that the result contended for by the respondents in this case would be at complete variance with a fundamental principle of our common law—the principle, namely, that a free citizen, in the exercise of his freedom, is entitled to choose the employer whom he promises to serve, so that the right to his services cannot be transferred from one employer to another without his assent.”

34. This Court in Pyarchand v. Omkar Laxman [AIR 1970 SC 823 : (1969) 2 SCR 272] held thus: (SCC p. 827, para 8) “8. A contract of service being thus incapable of transfer unilaterally, such a transfer of service from one employer to another can only be effected by a tripartite agreement between the employer, the employee and the third party, the effect of which would be to terminate the original contract of service by mutual consent and to make a new contract between the employee and the third party.”

35. The Government or its instrumentality cannot alter the conditions of service of its employees and any such alteration causing prejudice cannot be effected without affording opportunity of pre-decisional hearing and the same would amount to arbitrary and violative of Article 14. As pointed out earlier, in the case on hand, the employees are neither party to tripartite agreement nor they have been heard before changing their service condition. Therefore, the action of the management is violative of Article 14 of the Constitution of India. Similar view has been taken by this Court in H.L. Trehan v. Union of India [(1989) 1 SCC 764 : 1989 SCC (L&S) 246 : (1989) 9 ATC NEHA SHARMA

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650] . In para 11 of the judgment, this Court observed as under: (SCC pp. 769-70) “11. … It is now a well-established principle of law that there can be no deprivation or curtailment of any existing right, advantage or benefit enjoyed by a government servant without complying with the rules of natural justice by giving the government servant concerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudicially affecting the existing conditions of service of a government servant will offend against the provision of Article 14 of the Constitution. Admittedly, the employees of CORIL were not given an opportunity of hearing or representing their case before the impugned circular was issued by the Board of Directors. The impugned circular cannot, therefore, be sustained as it offends against the rules of natural justice.” (emphasis supplied)

36. It is useful to refer to the judgment of this Court in Jawaharlal Nehru University v. Dr. K.S. Jawatkar [1989 Supp (1) SCC 679 : 1989 SCC (L&S) 501 : (1989) 11 ATC 278] . In this case, Jawaharlal Nehru University was the appellant before this Court. The main contention of the appellant University was that the respondent was appointed at the Centre of Postgraduate Studies, Imphal and when the Centre was transferred to Manipur University his services were automatically transferred to that University and consequently he could not claim to be an employee of the appellant University. The argument proceeds on the assumption that the Centre of PG Studies at Imphal was an independent entity which existed by itself and was not a department of the appellant University. Rejecting the said contention, this Court held thus: (SCC pp. 684-85, paras 7-8) “7. … The Centre of Postgraduate Studies was set up at Imphal as an activity of the appellant University. To give expression to that activity, the appellant University set up and organised the Centre at Imphal and appointed a teaching and administrative staff to man it. Since the Centre represented an activity of the appellant University the teaching and administrative staff must be understood as employees of the appellant University. In the case of the respondent, there can be no doubt whatever that he was, and continues to be, an employee of the appellant University. There is also no doubt that his employment could not be transferred by the appellant University to the Manipur University without his consent, notwithstanding any statutory provision to that effect whether in the Manipur University Act or elsewhere. The contract of service entered into by the respondent was a contract with the appellant University and no law can convert that contract into a contract between the respondent and the Manipur University without simultaneously making it, either expressly or by necessary implication, subject to the respondent's consent. When the Manipur University Act provides for the transfer of the services of the staff working at the Centre of Postgraduate Studies, Imphal, to employment in the Manipur University, it must be construed as a provision enabling such transfer of employment but only on the assumption that the NEHA SHARMA

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employee concerned is a consenting party to such transfer. It makes no difference that the respondent was not shown in the list of Assistant Professors of the appellant University or that the provision was not indicated in its budget; that must be regarded as proceeding from an erroneous conception of the status of the respondent. The position in law is clear, that no employee can be transferred, without his consent, from one employer to another. The consent may be express or implied. We do not find it necessary to refer to any case law in support of this conclusion.

8. Inasmuch as the transfer of the Centre of Postgraduate Studies from the appellant University to the Manipur University could not result in a transfer of the employment of the respondent from the one to the other, it must be concluded that the respondent continues in the employment of the appellant University.”

37. It is clear that no employee could be transferred without his consent from one employer to another. Therefore, in view of the aforesaid rulings the transfer of employees from NTPC — a public sector undertaking to BALCO which is a private organisation is bad in law.”

20. Admittedly, in the case(s) in hand, the applicants have been selected and engaged on contractual basis on being found eligible and suitable for the post under reference and they have been continuing uninterruptedly all along for twelve years and more and through the impugned bid even if the respondents have not intended to replace the applicant(s) by another set of contractual employees and/or regular employees, however, the fact remains that the respondents have attempted to change the status of the applicants from being contractual employees of respondent no. 1 to that of employees of third party manpower agency and that too unilaterally without the consent of the applicant(s) and, therefore, such action of the respondents is not tenable in law in the light of the judgments of the Hon’ble High Court of Delhi NEHA SHARMA

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as well as of the Hon’ble Supreme Court in BCPP Mazdoor Sangh & Anr. (supra).

21. So far the defence of the respondents that the applicants were not engaged against a sanctioned post is concerned, such issue has already been considered and adjudicated by the Hon’ble High Court of Delhi in the case of Govt. of NCT of Delhi vs. Pawan Sharma, referred and relied in paragraph 17 in the case of Bala Devi, WP(C) No. 6161/2024 (supra). So far the objection on behalf of the respondents that the applicants were not selected through a proper selection procedure is concerned, we are of the view that it is not the case of the applicants that they were engaged by an incompetent authority and/or they have not been found meeting the eligibility conditions. Moreover, once the respondents have not only selected and engaged the applicants on contract basis and also the fact that the applicants have continued to work as such satisfactorily all along for more than a decade, makes such objection of the respondents, devoid of any merit.

22. In view of the aforesaid, the present OA(s) deserve to be allowed and the same are accordingly allowed with the following order(s):

(i) the respondents are directed not to disengage the applicant(s) from their contractual employment and not to replace them by another set of contractual employees and/or the respondents are directed not to engage the applicant(s) through any third party manpower agency. NEHA SHARMA

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(ii) the respondents shall maintain the conditions of service of the applicant(s) as is being maintained in view of the interim order dated 27.11.2024 passed by this Tribunal.

(iii) the interim order dated 27.11.2024 is being made absolute.

(iv) the respondents shall consider regularization of the services of the applicant(s) and pass necessary orders in this regard.

(v) the applicant(s) shall be entitled for consequential benefits except seniority over any regularly appointed person.

(vi) the aforesaid exercise shall be complied with by the respondents as expeditiously as possible and preferably within a period of eight weeks from the date of receipt of a certified copy of this order.

23. However, in the facts and circumstances of the case, there shall be no order as to costs.

24. A copy of this order be placed on the judicial files of all the OAs.

(Rajinder Kashyap)

(R.N. Singh) Member (A)

Member (J)

/NS/

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