Contract Appointment Against Regular Vacancy Without Reasons Is Unconstitutional, Supreme Court Holds
A bench of Justices Pankaj Mithal and S.V.N. Bhatti held that IIIT Allahabad could not impose a contractual appointment on a candidate selected through a regular recruitment process without recording any reason.
The Supreme Court has allowed a civil appeal filed by Lokendra Kumar Tiwari, an Assistant Professor candidate who was put through the same selection process as thirteen other candidates at IIIT Allahabad in 2013, yet was given a contractual appointment at a fixed pay of Rs. 40,000 per month while every other selected candidate received a regular appointment. The Court found that the Advertisement had called for regular posts, the selection procedure was identical for all candidates, and no reason was recorded for the differential treatment. Holding the contractual appointment patently illegal and unconstitutional, the Court directed IIIT Allahabad to issue a regular appointment order within four weeks, while limiting financial relief to continuity of service without back wages.
How the Dispute Reached the Supreme Court
In January 2013, IIIT Allahabad issued Advertisement No. FS-01/2013 calling for applications for the posts of Professor, Associate Professor and Assistant Professor. The posts were advertised in Pay Band-IV and Pay Band-III. The Advertisement made no mention of any contractual appointment.
Tiwari applied for the post of Assistant Professor in the Information Security stream. He held a Ph.D. in Information Security from the University of Allahabad, an M.S. in Cyber Law and Information Security from IIIT Allahabad with a CGPA of 9.02 and a Bronze Medal, and over three years of teaching experience as a Lecturer at Ewing Christian College and as Guest Faculty at IIIT Allahabad. He was found suitable and called for an interview on 18 March 2013.
On 6 April 2013, the Selection Committee issued its recommendation. Thirteen candidates were appointed as Associate and Assistant Professors on a regular basis. Tiwari and one other candidate, Dr. Ranjana Vyas, were recommended for contractual appointments for twelve months at a fixed pay of Rs. 40,000 per month. No reason was recorded for this distinction. Tiwari accepted the appointment, contending later that he did so under economic compulsion and on the oral assurance of the then Director, and that he had registered an oral protest at the time of joining.
On 26 March 2014, IIIT Allahabad cancelled all appointments made pursuant to the 6 April 2013 recommendation, citing perceived omissions in the selection process. The affected appointees, including Tiwari, challenged the cancellation before the High Court of Judicature at Allahabad in Writ Petition No. 22558 of 2014.
On 11 December 2015, the High Court allowed the writ petitions and directed IIIT Allahabad to reconsider the matter after affording the candidates an opportunity. Tiwari filed an application for modification, arguing that his initial contractual appointment was itself illegal. That application was disposed of on 24 March 2017, along with Civil Appeal Nos. 4406–4418 of 2017 filed against the High Court's judgment, with a direction to reconsider.
On reconsideration, IIIT Allahabad reiterated the Selection Committee's original recommendation. On 27 June 2017, it offered Tiwari a contractual appointment to complete his contract period, directing him to join within 21 days. Tiwari challenged this fresh offer by filing Writ Petition No. 7099 of 2018 before the High Court.
The Single Judge dismissed the writ petition on 12 February 2019, holding that the Board of Governors' decision of 6 June 2017 carried a presumption of due application of mind, that Tiwari had accepted his contractual appointment without formal protest, and that a contractual appointee had no right to seek regular appointment. The Division Bench dismissed the writ appeal, holding that Tiwari's alleged oral protest was insufficient to displace his conduct in accepting the contractual terms, and that acquiescence disentitled him from later challenging the appointment. Tiwari then filed Civil Appeal No. 5307 of 2024 before the Supreme Court.
The Core Question: Contractual Offer Against a Regular Vacancy
Before the Supreme Court, Senior Counsel Mr. Sudhir Kumar Saxena argued that the Advertisement was issued exclusively for regular posts. Rules 9 and 9-A of the Recruitment and Service Rules of IIIT Allahabad, 1999 prescribed separate Selection Committees for regular and contractual appointments, a procedure entirely bypassed here. Of all candidates selected on 6 April 2013, every other candidate was appointed on a regular basis. Tiwari alone, along with Dr. Ranjana Vyas, was placed on a contractual appointment without any recorded reason. This constituted a violation of Articles 14 and 16 of the Constitution of India.
Counsel for IIIT Allahabad, Mr. Sanyat Lodha, argued that the Selection Committee had the discretion to recommend appointments on a regular or contractual basis, that Tiwari had voluntarily accepted his contractual appointment and worked for nearly a year without grievance, and that the scope of judicial review in matters of selection and appointment did not permit interference with the committee's decision.
The Court directed IIIT Allahabad, by order dated 28 January 2026, to file a tabular statement of the details of candidates appointed, the qualifications held by those appointed on a regular basis, and whether any relaxation was granted to any of them. That statement, along with the minutes of the Selection Committee meeting, was placed before the bench.
What the Court Found in the Record
The Court identified four admitted circumstances that it considered decisive.
First, the Advertisement called for applications for regular posts in Pay Band-IV and Pay Band-III, with no mention of any contractual appointment. Second, Tiwari was found suitable for consideration, possessed the required qualifications, and was called for interview for the post of Assistant Professor. Third, the selection process was one and the same for all candidates, regular and otherwise, and Tiwari was considered alongside all other candidates who were ultimately appointed on a regular basis. Fourth, despite being found suitable and selected through the same process, the Selection Committee recommended Tiwari for a contractual appointment at a fixed pay of Rs. 40,000 per month, while all other thirteen candidates were recommended for and given regular appointments. No reason was recorded for this differential treatment.
The Court held that the real controversy was not whether a contractual appointee is entitled to regularisation, but whether issuing a contractual appointment against an advertisement meant for a regular vacancy, subjecting the candidate to the regular process, and then arbitrarily granting a contractual appointment, was sustainable.
On the question of judicial review, the Court acknowledged that it would not sit as a court of appeal on the views of a Selection Committee. But it drew a distinction: the issue was not whether the reasons recorded were right or untenable, but whether any reason at all had been recorded. The record disclosed none.
The Court observed that if Tiwari was unsuitable for a regular appointment, he could not have been recommended even on a contractual basis. The logic ran the other way too: his suitability for a contractual appointment confirmed his suitability for the regular post. To justify singular treatment, the record had to disclose reasons. It did not.
The Court also noted that IIIT Allahabad had placed before it the current vacancy position: thirty-two vacancies for Assistant Professors out of a total of sixty-seven sanctioned posts.
On Acquiescence and Estoppel
Both the Single Judge and the Division Bench had placed considerable weight on Tiwari's conduct in accepting the contractual appointment and working under those terms without a written protest. The Supreme Court found this reasoning excessive.
The Court accepted that Tiwari had made an oral protest at the time of joining, that his options as an unemployed person were limited, and that he had joined on the assurance of the then Director. Acceptance of a contractual appointment under those circumstances, the Court held, did not estop a challenge to the illegality of the selection procedure.
The Court's framing was direct: “denying a regular appointment is patently illegal and unconstitutional.” The conduct of the candidate in accepting what was offered could not validate a process that was itself flawed from the outset.
Scope of the Order and What Was Left Aside
The Court was careful to limit the scope of its findings. It declined to examine the procedure followed by the Selection Committee in respect of the other appointees, since their appointments were not under challenge and they were not parties before the Court. The broader argument regarding the illegality of the entire selection process was also not considered for the same reason.
On relief, the Court moulded the order to balance Tiwari's entitlement against the passage of time. He was held entitled to a regular appointment and to continuity of service, but financial benefits for the intervening period were denied. His seniority as an Assistant Professor was fixed as the last candidate among those recommended and appointed by the Selection Committee resolution dated 6 April 2013.
Order
The Supreme Court set aside all the orders and judgments under challenge. Civil Appeal No. 5307 of 2024 was allowed. IIIT Allahabad was directed to issue an order of regular appointment to Tiwari as Assistant Professor within four weeks from 13 May 2026. He is to be placed last in seniority among the candidates appointed pursuant to the Selection Committee resolution of 6 April 2013, with continuity of service but without financial benefits for the period in question. No order as to costs was made. Pending applications, if any, were disposed of.