‘Employee already considered ‘initial constituent’ under Recruitment Rules cannot be treated as contractual employee’; SC dismisses SAI’s plea

Supreme Court: In a batch of civil appeals by the Sports Authority of India (SAI) challenging the dismissal of their recall applications by the Delhi High Court, the Division Bench of Sudhanshu Dhulia* and Ahsanuddin Amanullah, JJ. held that once an employee was considered as an ‘initial constituent’ under the Sports Authority of India (Sports Sciences and Sports Medicine) Staff Recruitment Rules, 1992 (Rules), it would mean that the said person could not be treated as a contractual employee but as a regular employee, who comes under direct enrolment/control of SAI.

The Court also observed that once the order had been passed on a compromise or concession given by a party, that party cannot turn back and challenge the order before a higher court, unless it is a case of fraud or deception. Such a scenario is not permissible on principle as well as on law

Background

For regulating the method of recruitment to the post of Sports Sciences & Sports Medicine Staff (including the post of physiotherapist), Sports Authority of India (Sports Sciences and Sports Medicine) Staff Recruitment Rules, 1992 (hereinafter ‘1992 Rules’) and under the Sports Authority of India (Service) Bye Laws and Conditions of Service Regulations 1992, were enacted.

The respondents were continuing on a contractual basis as a physiotherapists (grade II) since 20-02-2021. The 2022 Rules were notified and to bring into effect the cadre restructuring made therein, instead of renewing their contracts, the department advertised their vacancies which were to be filled by another set of physiotherapists on a contractual basis. The respondents’ name was not listed. All persons earlier appointed on an ad hoc basis (including the respondents herein) were allowed to apply against the newly sanctioned posts. The respondents participated in the selection process and on 09-02-2023, SAI issued a circular making a public disclosure of non-eligible candidates for high performance analysts on a contractual basis. This recruitment process was challenged by the respondents before the Central Administrative Tribunal, Principal Bench, New Delhi, by filing an Original Application, which was allowed.

The said order was challenged by SAI before the High Court. s order was challenged by SAI before the Delhi High Court. SAI contended that they would not like to press the writ petition on merits and they would be satisfied if some more time was given to them to comply with the directions of the Tribunal for considering the case of respondents as ‘initial constituents’ as per Section 4 of the 2022 Rules.

The said petition was disposed of by extending the time granted by the Tribunal to the petitioners for passing orders after considering the case of the respondent as ‘Initial Constituents’ as per 2022 Staff Recruitment Rules by eight weeks from the date of order. However, their case for ‘initial constituents’ was not considered by SAI, but instead it filed two recall applications against the above order of the High Court.

The High Court, however, dismissed the recall applications, stating that it was not denied by the counsel appearing for SAI that the statement made by the counsel seeking time to comply with the order of the Tribunal, was made without the instructions from SAI and neither did SAI file an affidavit stating that they have not instructed their counsel to make such a statement, instead the only ground which was taken by the counsel for SAI was that they had actually misunderstood the order of the Tribunal.

Hence, the present appeals.

Decision

The Court stated that this petition ought to be dismissed on the mere ground that once the order had been passed on a kind of a compromise or concession given by a party, that party cannot turn back and challenge the order before a higher court, unless it is a case of fraud or deception. Such a scenario is not permissible on principle as well as on law. Agreeing with the reasoning given by the Tribunal, the Court said that SAI did not have any case, and the Original Application of the respondents had been rightly allowed.

Perusing Tribunals’ decision, the Court noted that the Tribunal perused “initial constitution” in the 1992 Rules as well as 2022 Rules and held that while notifying the 2022 Rules, the 1992 Rules were not superseded insofar as the definition of “initial constitution” is considered, and as such, both rules continue to be in operation.

The Court stated that once an employee is considered as an ‘initial constituent” of SAI, it would mean that he is no longer to be treated as a contractual employee but as a regular employee, who comes under direct enrolment/control of SAI. Hence, in the matter at hand, the Court underscored that the respondents served SAI in the past, and as, there is a provision under the rules under which they can be considered as ‘initial constituents’ under which, the Tribunal gave such directions as to entitle the respondents to be considered as part of the ‘initial constitution’ of SAI as laid down in the 2022 Rules.