Introduction
In a judgement Lokendra Kumar Tiwari v. Union of India & Ors., the Supreme Court of India has reiterated the constitutional principles that apply to all processes involved in public employment and recruiting. It held that making a contractual appointment that is a result of an advertisement for a regular position or a vacancy with the absence of knowledge to the parties concerned, is “patently illegal and unconstitutional”.
This ruling is especially significant given the current situation in the landscape of public employment, wherein most public institutions continue to offer contracts for positions that have been officially approved for regular employment. Furthermore, this decision deals with arbitrary hiring practices by enhancing the protections provided to applicants through the application of Articles 14 and 16 of the Indian Constitution concerning their rights to fair treatment in the recruitment process and equal opportunity in public employment.
Background of the Dispute
This dispute concerned originally about an advertisement by the Indian Institute of Information Technology (“IIT”), Allahabad back in January 2013, which invited applications for regular positions of Professor, Associate Professor and Assistant Professor. The advertisement made no mention of appointing persons to these positions under contract and only provided for appointments at the regular pay bands.
The appellant, Lokendra Kumar Tiwari, applied for a position as an Assistant Professor in the stream of Information Security. It is important to note that he met all qualifications for the position of Assistant Professor in Information Security, including having a Ph.D. in the same as well as having experience as a teacher in a post-secondary level. He was one of those applicants who was interviewed along with other applicants under the same process and ultimately was offered not a regular appointment, but one-year contract appointment with a fixed salary.
Most of the other applicants who were selected for appointment to the position of Assistant Professor in Information Security were formally appointed as regular, productive employees of IIIT-Allahabad. The appellant was one of the only two candidates selected in this same recruitment process who were offered contractual appointments when all other candidates were formally appointed as regular employees.
Subsequently, the employment contracts for both the candidates were cancelled, citing procedural irregularities. This led to legal challenges before the Allahabad High Court and later the Supreme Court. Ultimately, while the selected candidates in the same process were appointed as regular or reinstated back to their original positions within IIIT-Allahabad, the appellant continued to be treated as a contractual employee.
Core Legal Issue Before the Supreme Court
The key issue before the court was not whether someone who had been hired on a contractual basis had a right to regularization as an employee but rather if an institution was allowed to advertise for a post that had been sanctioned as a regular (full time) position/vacancy, use the same recruitment process to assess all candidates for that position but then to ‘discriminate’ against one individual by making them a contractual employee.
The Court precisely questioned the legality of the recruitment process, rather than concerning itself with the post-facto regularisation.
This distinction is particularly important because the courts in India, particularly after the landmark ruiling in Secretary, State of Karnataka v. Umadevi, Courts have adopted a cautious approach to regularisation applications by temporary or contractual employees. The present case is concerned with the underlying Constitutionality of the appointment that was made at an earlier point in time, therefore it has no bearing on applications for regularisation of employees who have been appointed in a discriminatory manner.
Findings of the Supreme Court
The Supreme Court reviewed the process that was used to select candidates for the position and found the institution’s actions to be significantly flawed. The Court pointed numerous undisputed facts in support of its position, such as the fact that the advertisement was only for regular positions, the appellant met all required qualifications and participated in the same selection process as other candidates. Plus, there was no distinction shown in the advertisement between regular and contractual appointments and that, there were no reasons given as to why the appellant was treated differently than the other candidates.
In addition, the Court stated since the selection procedure was essentially the same for both the kinds of appointments, and that if the appellant is eligible for a contract appointment then there is no rational basis to deny him a regular appointment.
Importantly, the Court held that while courts normally do not consider the decision made by Selection Committees as an avenue for appeal, a review of the procedure is warranted if it is arbitrary, discriminatory and/or unconstitutional. Infurtherance to this, the Supreme Court categorically concluded that, “Denying a regular appointment is patently illegal and unconstitutional.”
Subsequently, IIIT-Allahabad was ordered by the Court to furnish to the appellant a regular appointment order within the time frame of four weeks from the granting of continuity of service. The appellant was not entitled to any retrospective financial benefits, however, the Court provided that such appellant would be placed at the lowest point of the seniority list among those candidates who were hired during the 2013 selection process.
Constitutional Dimensions of the Judgment
The bases for this ruling were Article 14 and Article 16 of the Constitution of India. Article 14 prohibits any arbitrary action by the State. Article 16 provides that all citizens are entitled to equal opportunities for employment in the public service. The Court found that when only one candidate was selected on the basis of an arbitrarily selective contract, with no written criteria or rationale being provided for the selection, it is an example of discriminatory treatment towards that candidate.
This ruling reaffirmed the precedent that recruitment to the public service must be transparent, unarbitrary, rules-based and applied similarly to all candidates who are in the same position as the selected individual. Any departure from one or all of these standards is likely to be in breach of the constitutional guarantees. The Court also determined that fairness of the procedure in the recruitment process is a constitutional requirement, and not merely an administrative matter.
AMLEGALS Remarks
The judgment contributes to the wider debate on precarious forms of employment within India’s public sector as evident from the rapid expansion of the number of contractual employees over the last 20 years in various levels of government, education and other public sector employers. Although the argument has been made that the advantages of this type of employment are flexible work arrangements and financial efficiency, the use of contractual employees without safeguards has resulted in inequitable treatment and insecure working conditions.
One of the critical elements of the ruling by the Supreme Court is that the employer cannot abridge the nature of the appointment once it has been established that the underlying appointment was intended as a regular appointment based on the facts of recruitment. Just because the words “contractual” are used to describe the appointment does not dilute the constitutional protections attached to the said appointment.
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