• Contractual period definition by Supreme Court

I am dr ravish ranjan, i am working as contractual basis for bihar government from 20th august 2014 to till now. i had filled an esi medical officer form last year in which upper age limit was 30 yrs but they had given 5 years age relaxation to esi/ government servant, i am quoting their exact words below...
'Age Limit: Not exceeding 30 years as on 10.11.2018. Upper age limit is relaxable upto 5 years for 
employees of ESI Corporation and Government servants in accordance with the instructions or orders 
issued by the Central Govt. Upper age limit is also relaxable to SC/ST/OBC/PWD/Ex-Servicemen & 
other categories of persons as per rules/instructions of Govt. of India.'
 they accepted my form sent me admit card i appeared for exam on 6th jan 2019, they declared results yesterday7th feb 2019 in which i have passed examination, but now they have written in results instruxtikn for interveiw that relaxation is only for regular employees...
'Candidates seeking age relaxation as Government Employee/ESIC Employee shall have to produce Service Certificate at the time of interview. The candidates working on Contractual basis/Adhoc basis/Junior Resident/Senior Resident etc., being not the Regular Employee are not eligible for relaxation in age as per rules.'
 Now can i claim for interveiw as they didn't mention contractual point in form or i have heard that there is a supreme court order that any contractual employee for more then 2 years without break can be considered as regular...please clearify supreme court rulling on this and please guide me as its matter of my career.
Asked 7 years ago in Constitutional Law

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14 Answers

It is now well settled that it is not for the court to issue direction to the State as
to how the selection process should be, it is for the State to consider as to how to streamline the selection procedure, the  court can only examine as to whether the procedure for selection as adopted by the Government is unconstitutional or  otherwise illegal or vitiated by arbitrariness or mala fides.

 

2) since you are mere contractual employee you cannot claim age relaxation which would be only for regular employees 

 

3)  The court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is
also not open to the court to make comparative evaluation of the merit of the candidates. The court cannot suggest the  manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration. 

 

4) unable to find judgment desired by you 

Ajay Sethi
Advocate, Mumbai
99776 Answers
8145 Consultations

Dear Client,

Contractual employee never meant govt. employee even working with govt. dept.Instruction clearly speaks -- " Upper age limit is relaxable upto 5 years for employees of ESI Corporation and Government servants " this mean duly appointed under state roles and subject to service rules of state.

You are misguided, no such judgement of SC. On the contrary , court have held that doctrine of legitimate expectation cannot be invoked by temporary employees to claim that they be made permanent or considered permanent.

Yogendra Singh Rajawat
Advocate, Jaipur
23079 Answers
31 Consultations

Yes, you can be treated as Permanent employee if you comes under 

 

1) Is it compulsory to give a break to an employee on contractor roll in one organisation. ESI and PF account if continue for more than 240 days can a person claim for permanent employment.

 

In the citations "State of Karnataka V/s Uma devi & Others .. April 2016 

 The Hon'ble Supreme Court has cleared this position in Uma devi case that any contractor employee or and daily wager or temporary worker who has not been recruited through a normal general procedure even if he completes 240 days or more, he cannot seek permanency. 240 days rule is something else if an employee completes 240 days in the services of a management he cannot be terminated without retrenchment compensation, which is 15 days pay for every completed year of services. This also not applies in case of contractor's employees as those employees are of contractor's. It will also not apply to badli worker and Fix term employment contract employee. This 240 days rule will be applicable on Casual Workers and Temp workers. 

Ganesh Kadam
Advocate, Pune
13008 Answers
267 Consultations

1. Contractual employees are not regular employees.

 

2. They have asked for regular employees which automatically excludes contractual and other non regular employees which you can not claim that they should have mention specifically.

 

3. However, you can file a Writ Petition and try the matter on the ground that in absence of specifying the matter, they are now legally bound to take your interview and consider your candidature.


I practice primarily before the High Court at Calcutta, DRT & DRAT, Calcutta

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

You have a good case since they failed to mention in the form that someone working for the Govt. on contractual basis will not be covered in the definition of 'Govt. Servants' and let yo sit in the written examination. 

Approach the High Court and file a writ petition. 

Vibhanshu Srivastava
Advocate, Lucknow
9763 Answers
323 Consultations

Relaxation of upper age limit is not allowed in case of the contractual appointment as mentioned in your query in case you have completed 2 year of continuous service then you have to proceed to the high court in this regard to get the direction for the department to continue your services as a regular service

Vimlesh Prasad Mishra
Advocate, Lucknow
6851 Answers
23 Consultations

continuous service’ means uninterrupted service, and
includes service which may be interrupted merely on account of
sickness or authorised leave or an accident or a strike which is
not illegal, or lock-out or a cessation of work which is not due to
any fault on the part of the employee.

 

If you are confident that there were no such clauses restricting the contractual employee, you may take up this matter through a writ petition before high court and seek remedy.

 

T Kalaiselvan
Advocate, Vellore
89978 Answers
2492 Consultations

yes you can claim the same.Its a matter of fact you don't require citation to prove the same.

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

The Hon'ble Supreme Court has cleared this position in Uma devi case that any contractor employee or and daily wager or temporary worker who has not been recruited through a normal general procedure even if he completes 240 days or more, he cannot seek permanency.The Governments, both the Central and the States have been engaging employees on a temporary basis and after some time regularising their services, this practice has been held to be bad and contrary to the law of the land by the Supreme Court. The temporary employees have no right of regularisation of their services . 

Ajay N S
Advocate, Ernakulam
4124 Answers
114 Consultations

No doubt writ petition may not have bright chances to win however you can try.

The time taken and advocate fee for filing writ petition may be enquired from the advocate concerned.

T Kalaiselvan
Advocate, Vellore
89978 Answers
2492 Consultations

Legal fees vary depending upon lawyer engaged by you 

you have good case on merits 

Ajay Sethi
Advocate, Mumbai
99776 Answers
8145 Consultations

Writ petition generally is considered when there are no alternative remedies but even this is not a rule. Writ petition have wide jurisdiction. You can try your luck. Fees will vary from advocate to advocate depends on his standing at the bar.

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

1. You do not have wide options to try your luck other than filing the W.P. So, file it immediately.

 

2. You shall have to contact a local Lawyer practicing before the High Court with the details to enable him to file the said W.P.

 

3. The lawyer's fee varies from Court to Court and from lawyer toi lawyer. However, in Calcutta High Court a W.P might cost you Rs.40 K for filing and Ras.3 k for daily appearance by the lawyer.

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

Let me know if you want to file a writ in Patna HC. 

We can discuss the fee. 

Regards 

Anilesh Tewari
Advocate, New Delhi
18103 Answers
377 Consultations

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