Case Note & Summary
The writ petition under Article 226 of the Constitution of India arose from a Central Administrative Tribunal order that allowed a contractual Examiner of Trade Marks to be regularized in service. The respondent, Smt. Lalita V. Mertia, was appointed on a contractual basis as Examiner of Trade Marks with effect from October 31, 2001, initially for six months, and her engagement was extended from time to time. She rendered more than ten years of service and sought regularization through a representation dated December 27, 2010, which was rejected by the Controller General of Patents, Designs and Trade Marks by order dated March 4, 2011. She approached the Central Administrative Tribunal on March 17, 2012, challenging the rejection and later the order dated May 16, 2012 that continued her only till May 31, 2012. The Tribunal, by order dated December 4, 2014, allowed her original application, set aside the rejection order, declared her entitled to regularization in a sanctioned vacant post with effect from June 1, 2012, and directed issuance of an appointment order. The Union of India and the Controller General challenged this order before the Bombay High Court. The petitioners contended that regularization cannot be a source of recruitment, that the respondent's appointment was purely contractual and temporary without UPSC consultation as required by the Trademarks Registry (Group A & Group B Gazetted Post) Rules, 2000, and that the Tribunal granted relief not prayed for. Procedural history shows that a coordinate Bench on February 9, 2017 admitted the writ petition but refused interim relief relying on State of Karnataka v. M.L. Kesari; review was dismissed on December 20, 2017. The Supreme Court in SLP (C) No. 6239 of 2018 on March 19, 2018 directed the High Court to consider stay afresh, observing that M.L. Kesari may not apply on facts, and deferred contempt proceedings. On January 8, 2019, another coordinate Bench noted agreement for final hearing. The matter was finally heard on September 15, 2021, but the provided judgment text ends before the court's analysis and final decision, so the outcome remains unavailable.
Headnote
A) Service Law - Regularization of Contractual Employees - Supreme Court precedents bar regularization as source of recruitment; contractual appointee selected without UPSC cannot claim regularization - Constitution of India, Article 226; Trademarks Registry (Group A & Group B Gazetted Post) Rules, 2000 - The Central Administrative Tribunal allowed the original application and directed regularization of a contractual Examiner despite the applicant not having prayed for regularization; the petitioners challenged this as contrary to established law. At the interim stage, the Bombay High Court initially refused stay relying on State of Karnataka v. M.L. Kesari, but on SLP the Supreme Court clarified that the said judgment may not apply on facts and directed reconsideration of stay (Paras 1-7).
B) Service Law - UPSC Consultation for Substantive Appointment - Appointments to Examiner of Trade Marks under RR 2000 require promotion or direct recruitment through UPSC; contractual posts filled without UPSC consultation - Trademarks Registry (Group A & Group B Gazetted Post) Rules, 2000 - The petitioners contended that the respondent was appointed on a purely temporary contractual post created for exigency without following the constitutional scheme and RR 2000; hence regularization was impermissible. The court recorded the argument but final decision not included in the available text (Paras 10).
C) Procedural Law - Relief Beyond Pleadings - Tribunal may not grant relief not specifically prayed for; original applicant only sought reference to UPSC for regularization - Constitution of India, Article 226 - The petitioners argued that the Tribunal granted regularization which was not prayed, as the original application sought quashing of rejection and reference to UPSC, not direct regularization. The available text records the prayer clauses and the challenge, but final ruling on this ground is not included (Paras 1, 5).
Issue of Consideration
Whether the Central Administrative Tribunal erred in allowing regularization of a contractual employee as Examiner of Trade Marks without the employee having sought such relief and contrary to Supreme Court decisions, and whether UPSC consultation was mandatory under the relevant recruitment rules.
Law Points
- Regularization cannot be a source of recruitment
- appointments to public posts must follow constitutional scheme and recruitment rules
- UPSC consultation mandatory for substantive appointment under Trademarks Registry (Group A & Group B Gazetted Post) Rules 2000
- State of Karnataka v. M.L. Kesari may not apply to contractual appointments
- relief beyond pleadings cannot be granted
Case Details
2021 LawText (BOM) (10) 78
Writ Petition No. 1338 of 2015
Dipankar Datta, CJ; M. S. Karnik, J
Mr. Ashok D. Shetty, Ms. Rita K. Joshi, Mr. Swapnil P. Kamble for petitioners; Mr. Sandeep V. Marne, Mr. Vishal P. Shirke for respondent
Union of India, through The Secretary, Department of Industrial Policy & Promotion; The Controller General of Patents, Design & Trademarks
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Nature of Litigation
Writ petition under Article 226 of the Constitution of India challenging the judgment and order dated December 4, 2014 passed by the Central Administrative Tribunal, Mumbai Bench, in Original Application No.400 of 2012, which allowed the respondent's claim for regularization as Examiner of Trade Marks.
Remedy Sought
The petitioners (Union of India and Controller General of Patents, Designs & Trade Marks) sought to quash and set aside the Tribunal's order granting regularization, continuation, and consequential benefits to the respondent; the respondent, as original applicant, had sought before the Tribunal setting aside of the rejection order dated March 4, 2011, continuation beyond May 31, 2012, and reference of her case to UPSC for regularization.
Filing Reason
The petitioners contended that the Tribunal erroneously granted regularization relief not prayed for by the respondent, contrary to Supreme Court decisions that regularization cannot be a source of recruitment, and that the respondent's contractual appointment was made without following the recruitment rules and without UPSC consultation.
Previous Decisions
The Central Administrative Tribunal by order dated December 4, 2014 allowed Original Application No.400 of 2012, setting aside the rejection order dated March 14, 2011, declaring entitlement to regularization w.e.f. June 1, 2012, and directing appointment on a regular vacant post. On February 9, 2017, a coordinate Bench of the Bombay High Court admitted the writ petition but refused interim relief relying on State of Karnataka v. M.L. Kesari; review dismissed on December 20, 2017. The Supreme Court in SLP (C) No. 6239 of 2018 on March 19, 2018 directed the High Court to consider stay afresh, observing that M.L. Kesari may not apply on facts, and deferred contempt proceedings. On January 8, 2019, another coordinate Bench noted parties agreed for final hearing.
Issues
Whether regularization can be granted to a contractual employee appointed without following the constitutional scheme and recruitment rules, particularly when the appointment was not through UPSC.
Whether the Central Administrative Tribunal exceeded its jurisdiction by granting regularization relief not specifically prayed for in the original application.
Whether State of Karnataka & Ors. v. M.L. Kesari & Ors., (2010) 9 SCC 247 is applicable to the facts of the present case.
Whether UPSC consultation is mandatory for substantive appointment to the post of Examiner of Trade Marks under the Trademarks Registry (Group A & Group B Gazetted Post) Rules, 2000.
Submissions/Arguments
Petitioners argued that Smt. Lalita was appointed on a purely temporary contractual post created for exigency of work, without following the constitutional scheme of public employment and without consulting UPSC as required by RR of 2000.
Petitioners contended that the term 'contract' and limited period in the offer denoted engagement for completion of examination work, and once the contract period ended, the appointment stood automatically terminated.
Petitioners submitted that the Tribunal granted regularization which was not prayed for by the original applicant, and that Supreme Court decisions bar regularization as a source of recruitment.
Petitioners asserted that State of Karnataka v. M.L. Kesari is not applicable on facts, as clarified by the Supreme Court in the SLP order.
Judgment Excerpts
In the result the Original Application is allowed; The impugned order dated 14.03.2011 (Annexure A-1) rejected request of the applicant for regularization of services is set aside; Consequently, it is declared that the applicant is entitled to claim regularization of service in the sanctioned vacant post of Examiner of Trade Marks with effect from 01.06.2012.
It is also pointed out that the Tribunal has given a declaration that the respondent was entitled to regularization whereas her case had not been considered by the UPSC since the same was not recommended by the petitioners.
She was offered appointment for a period of two years vide letter dated October 16, 2001, on a consolidated payment of Rs.11,230/- per month, against one of the 20 contractual posts created temporarily.
In view of the above submission, in our opinion, the matter needs to be considered by the High Court. Therefore, we request the High Court to consider the application for stay afresh.
Procedural History
The respondent, Smt. Lalita V. Mertia, worked as Examiner of Trade Marks on contract basis from October 31, 2001, with extensions. Her representation dated December 27, 2010 for regularization was rejected by the Controller General by order dated March 4, 2011. She approached the Central Administrative Tribunal on March 17, 2012, challenging the rejection and later the order dated May 16, 2012 continuing her only till May 31, 2012. The Tribunal by order dated December 4, 2014 allowed the Original Application, set aside the rejection, declared entitlement to regularization, and directed appointment on a regular vacant post. The petitioners filed Writ Petition No. 1338 of 2015 in the Bombay High Court. A coordinate Bench on February 9, 2017 admitted the petition but refused interim relief, relying on State of Karnataka v. M.L. Kesari; review was dismissed on December 20, 2017. The petitioners challenged these orders in the Supreme Court via SLP (C) No. 6239 of 2018; on March 19, 2018, the Supreme Court directed the High Court to consider the stay application afresh, observing that M.L. Kesari may not apply, and deferred contempt proceedings. On January 8, 2019, another coordinate Bench noted that the time for deciding interim relief would be same as final hearing and parties agreed for final hearing. The matter was finally heard on September 15, 2021.
Acts & Sections
- Constitution of India: Article 226
- Trademarks Registry (Group A & Group B Gazetted Post) Rules, 2000:
