Regularisation of Co-terminus employment: Voilative of Article 14 and 16 of the Constitution

Co-terminus employment, in its essence, can be understood as the continuance of an employment contingent upon the employment tenure of any other person.[1]The question, whether such employees have a right to claim permanent employment, has recently been dealt by the Supreme Court of India (“Supreme Court”) in The Chief Executive Officer, Pondicherry Khadi and Village Industries Board & Ors v. K. Aroquia Radja & Ors.

In this case, after being persuaded by the Chairman, Pondicherry Khadi and Village Industries Board (“Board”), Government of Pondicherry (“Government”) appointed respondents on a co-terminus basis and their employment was to coincide with the tenure of the Chairman of the Board. The said condition was mentioned both in the approval order by the government and the terms of employment formulated by the Board. However, Chairman of the Board sent a proposal to the government for receiving Governor’s approval for the absorption of these employees (“respondents”) against certain vacant posts; but, the proposal was rejected by the government. Another similar proposal, this time directly to the Lt. Governor of Puducherry (“Governor”), was sent by Chairman of the Board. This time, proposal was approved by the Governor. In the meantime, Chairman of the Board resigned from the post. Since the Board did not complied with the approval of the Governor for the absorption of the respondents, the latter filed a writ petition before the High Court of Madras (“High Court”). Single judge Bench of the High Court decided the petition in favour of the employees, which was then confirmed by the Division Bench. Hence, this matter came before the Supreme Court.

While deciding this case, Supreme Court opined that the respondent (“respondents before the Supreme Court”) have been selected through the Employment Exchange or through any procedure in which they were required to compete against other eligible candidates.[2]Further, Supreme Court held that, factual position as regards co-terminus employment could not be placed before the Governor since proposal was not sent to him via government.[3] Supreme Court also emphasised the fact that Governor is supposed to act on the advice of the Council of Ministers.

Supreme Court referred to its judgment in State of Karnataka and Ors. Vs. Umadevi (3) and Ors. 2006 (4) SCC 1, wherein it held that lower bargaining power is not a sufficient ground for a deviation from constitutional scheme of appointment. Supreme Court, in this case, held that:

“Absorption, regularization or permanent continuance of temporary, contractual, casual, daily-wage or adhoc employees appointed/recruited and continued for long in public employment dehors the constitutional scheme of public employment is impermissible and violative of Article 14 and 16 of the Constitution of India”

Supreme Court also referred to the judgment in the case of State of Gujarat and Anr. Vs. P.J. Kampavat and Ors., 1992 (3) SCC 226, wherein court dealt with the similar situation of nature of a temporary employment.

Having considered above positions of law, Supreme Court, in The Chief Executive Officer, Pondicherry Khadi and Village Industries Board & Ors v. K. Aroquia Radja & Ors., allowed the appeals, i.e., which is against the co-terminus employees. It is because of the fact that their employment was co-terminus with the tenure of the Chairman of the Board. And since, Chairman has resigned from the post, the employment of the respondents can be terminated.

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[1] It should also be the form of employment which can be in existence as long as a given “fact” is in existence, irrespective of whether such “fact” is the employment of another person or not. For example, an employment that is co-terminus with the existence of a project work.

[2] See Excise Superintendent Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao and Ors., 1996 (6) SCC 216 (which recognises the recruitment through the employment exchanges as the principle mode of recruitment)

[3] In Union of India Vs. Dharam Pal reported in  2009 (4) SCC 170, this court held that the requirement of being employed through proper channel could not be relaxed in an  arbitrary and cavalier manner for the benefit of a few persons.