$~89 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 08th September, 2026 # CNR No. DLHC010191992025 + W.P.(C) 4417/2025 & CM APPL. 22137/2026 SAROJ KUMAR NAYAK & ORS. .....Petitioners Through: Mr. Bankey Bihari, Advocate. versus TRIBAL COOPERATIVE MARKETING DEVELOPMENT FEDERATION OF INDIA LIMITED (TRIFED) .....Respondent Through: Mr. Sumit Teterwal, Advocate. CORAM: HON'BLE MR. JUSTICE SANJEEV NARULA JUDGMENT SANJEEV NARULA, J. (Oral): Factual background 1. The four Petitioners, Saroj Kumar Nayak, Pratibha Saxena, Mahaveer Singh and Vijay Tukaram Holkar, were engaged by the Tribal Cooperative Marketing Development Federation of India Limited (“TRIFED”) in 2010. Saroj Kumar Nayak and Vijay Tukaram Holkar were appointed at the Assistant Grade-I level, while Pratibha Saxena and Mahaveer Singh were appointed at the Clerk level. Their appointment letters are dated 5th July, 2010 and all four joined TRIFED on 21st July, 2010. 2. These appointments originated in an advertisement published by TRIFED in the Employment News dated 20-26 February, 2010. Applications were invited for 47 vacancies, comprising 12 vacancies at the Assistant Grade-I level and 35 at the Clerk level. The advertisement prescribed the age, educational qualification and experience required for the posts. It also made the contractual character of the engagement explicit in the following terms: “The proposed contractual engagement shall be for two years or till a regular appointment is made whichever is earlier. Candidates applying against this advertisement are hereby strictly informed that this is purely a contractual engagement and therefore they have not any right for further extension or absorption or permanent employment in TRIFED.” 3. It is not in dispute that the appointments were preceded by a public selection process. In its counter affidavit, TRIFED states that, pursuant to the advertisement, a duly constituted Selection Committee scrutinised the applications, conducted interviews and shortlisted and selected the Petitioners. Its pleading reads: “…a duly constituted Selection Committee was formed by the Respondent, in accordance with its internal procedures, for the purpose of scrutinizing the applications, conducting interviews, and finalizing the list of eligible candidates for contractual engagement. The Selection Committee, after undertaking the prescribed selection process, shortlisted and selected the Petitioners for contractual engagement.” 4. At the time of these appointments, TRIFED’s Recruitment and Promotion Rules, 2008 were in force. Clause 2 stated that the Rules applied to persons appointed against regular posts but excluded appointments made on casual or contractual basis for specific jobs and periods: “Except as otherwise provided by or under these rules, it shall apply to all persons appointed against regular posts in connection with the affairs of the TRIFED or any of its regional branch or sub-offices. These Rules shall not apply to appointments made on casual or contract basis for specific jobs & Period.” 5. The Rules separately prescribed the method of direct recruitment. Rule 9 contemplated applications being invited by open advertisement and provided that selection could be through “written examination/test and/or interview as may be prescribed by the appointing authority.” 6. The appointment letters maintained the same distinction which appeared in the advertisement. Taking Mahaveer Singh’s appointment letter as an illustration, it offered appointment to the Clerk level “purely on contract basis” for two years and stipulated: “2. Your appointment is purely on contract basis for a period of two years from the date of joining duties in TRIFED and it shall be deemed to have automatically come to an end on expiry of the contractual engagement period or till a regular appointment is made, whichever is earlier. 3. The appointment on contract basis will not confer any right for regular appointment to the post and may be terminated even if a regular post is lying vacant.” 7. The appointment letters of the other Petitioners contained substantially similar stipulations. Vijay Tukaram Holkar’s letter, for instance, contains the same provision for automatic expiry and the same disclaimer against a right to regular appointment. 8. The arrangement, however, did not end with the initial two-year period. The Petitioners continued with TRIFED through successive extensions, with intermittent short breaks. The record also shows that extension was linked to assessment of their performance. By an office communication dated 7th December, 2018, an Evaluation Committee comprising senior officers of TRIFED was constituted “to evaluate the performance” of contractual staff and “recommend with regard to their extension or otherwise”. All four Petitioners were expressly included in that exercise. 9. The Office Order dated 15th April, 2011 is of some relevance to the manner in which TRIFED itself described these engagements. The Order described employees at the Assistant Grade-I and Clerk levels as having been appointed “on contract basis against regular posts in TRIFED”. Their consolidated remuneration was fixed with reference to the pay and allowances attached to the corresponding grades. 10. The record also contains Agenda No. 4 concerning regularisation of existing contractual employees. It records that 16 employees had been recruited between 2009 and 2019 against regular sanctioned posts/grades after advertisement and interview, of whom 14 were found to satisfy the relevant eligibility requirements. All four Petitioners formed part of this exercise. 11. The Agenda contains a resolution approving the proposal for regularisation of the 14 eligible contractual employees and authorising the Managing Director to take necessary action. There is, however, no material presently shown to the Court indicating that the exercise culminated in regular appointment orders in favour of the Petitioners. 12. The Petitioners first approached this Court in W.P.(C) 5453/2020, seeking a direction to TRIFED to consider their cases for regularisation from the date of their initial engagement, along with consequential benefits. The immediate occasion for approaching the Court was a direct recruitment exercise undertaken by TRIFED in 2019, in which some of the Petitioners had participated but were unsuccessful. 13. W.P.(C) 5453/2020 was dismissed on 21st June, 2021. The Court framed the question as whether the surviving petitioners were entitled to regularisation on the posts on which they were working contractually. It noticed both the stipulation in the advertisement limiting the appointments to two years or until regular appointments were made and the express exclusion of any right to absorption or permanent employment. Of particular relevance to the present proceedings is the Court’s finding concerning the original selection. It observed: “24. …..I find the selection of the petitioners was only through the process of interview, unlike now, pursuant to the notification of 2019, when the selection has been made through CBT and Interview. Further, the fact, the advertisement itself contemplated the appointment on a contract basis, not many people would have applied for the same because of its temporary nature. It is clear that the process that was followed at the time of the appointment of the petitioners on contractual basis was not as per the required procedure to be followed for regular appointment.” 14. The Court also treated the participation and failure of some of the petitioners in the 2019 regular recruitment as an additional circumstance against regularisation, observing that “regularization is not a mode of appointment” and that a regular appointment had to be made in accordance with the Recruitment Rules. 15. The Petitioners carried that judgment to the Supreme Court in SLP(C) No. 17377/2021. The SLP was dismissed on 12th November, 2021 by an order which expressly stated: “As the initial appointment of the petitioners was on contractual basis and even in the advertisement itself it was stated that there shall not be any right to claim regularization on the basis of such contractual appointment therefore the petitioners shall not be entitled for regularization on the basis of such appointment. The High Court has rightly refused the regularization. The Special Leave Petition is accordingly dismissed.” 16. What happened thereafter assumes significance in the present round of proceedings. Despite dismissal of the earlier case by this Court and the Supreme Court, TRIFED continued to engage the Petitioners. The extensions continued for several further years. An extension order pertaining to the period 2023-2024 once again records that the “performance and conduct” of the contractual staff had been reviewed by the competent authority before their contracts were extended. All four Petitioners were included in the said extension order. 17. The record also indicates that the Petitioners continued to be entrusted with substantive responsibilities. By an Office Order dated 24th February, 2022, upon the retirement of the Senior Assistant who was Shop In-charge at Tribes India, Jamshedpur, TRIFED directed him to hand over to Saroj Kumar Nayak the entire charge relating to stock, cash, files, registers and other activities of the establishment. Saroj Kumar Nayak was correspondingly directed to “take over complete & satisfactory charge”. 18. Another subsequent document is TRIFED’s Post-Based Reservation Roster, recast as on 1st July, 2024. Its explanatory note states that the roster had been prepared from the records of the Personnel Division to present appointments and promotions since the inception of TRIFED, and explains that the cadres were determined with reference to the method of recruitment prescribed in the Recruitment Rules. 19. In the roster for Sales Executive/Senior Assistant/Senior Accountant/Junior Engineer, Saroj Kumar Nayak and Vijay Tukaram Holkar occupy the first two direct recruitment roster points. Against each, the date shown is 21st July, 2010 and the present status is recorded as “In Service On Contract”. The corresponding roster relating to Junior Commercial Assistant/Junior Assistant also includes Pratibha Saxena and Mahaveer Singh, whose entries carry the date 21st July, 2010 and record their continuing contractual status. 20. The last extension Office Order dated 4th July, 2024 states that recommendations had been received from the concerned Controlling Officers/Regional Managers and that the performance and conduct of the employees had been reviewed by the Competent Authority. Their contractual periods were thereafter extended for a further year. Vijay Tukaram Holkar’s period was extended from 31st May, 2024 to 30th May, 2025. The contracts of Saroj Kumar Nayak, Pratibha Saxena and Mahaveer Singh were extended from 5th July, 2024 to 4th July, 2025. 21. In January 2025, the Petitioners again represented to TRIFED for regularisation, but to no avail. They thereafter instituted the present writ petition. When notice was issued on 7th April, 2025, the Court expressly noticed that the Petitioners themselves had been parties to W.P.(C) 5453/2020 and to SLP(C) 17377/2021, and described the present proceedings as a second round seeking the same relief. Notice was nevertheless issued because the Petitioners relied upon the subsequent judgments of the Supreme Court in Vinod Kumar & Ors. v. UoI & Ors.,1 Jaggo v. Union of India,2 and Shripal & Anr. v. Nagar Nigam, Ghaziabad3 and the question whether the earlier adjudication remained binding was left open for consideration. Along with the writ petition, the Petitioners sought interim protection of their employment. 22. During the pendency of the petition, the Petitioners filed CM APPL. 30902/2025 alleging that TRIFED had commenced outsourcing the jobs being performed by them. On 20th May, 2025, counsel for TRIFED stated that the outsourcing process did not concern the posts held by the Petitioners. The statement was taken on record and the application was disposed of. No assurance regarding continuation of the Petitioners’ engagements was recorded. 23. Thereafter, the Petitioners’ last contractual periods came to an end. Vijay Tukaram Holkar’s engagement ended on 30th May, 2025 and those of the other three Petitioners on 4th July, 2025. Their biometric access was thereafter blocked. While the Petitioners characterise this as an implied or constructive termination, TRIFED treats it as cessation upon expiry of the contractual periods. 24. By order dated 1st July, 2025, the Court declined the Petitioners’ prayer for interim continuation. It observed that, “as of now”, their position remained covered by the judgment dated 21st June, 2021, as affirmed by the Supreme Court on 12th November, 2021, while clarifying that appropriate consequential orders could be considered in the event the writ petition succeeded. The order dated 1st July, 2025 was challenged in LPA 555/2025. The Division Bench declined to interfere and, by order dated 1st September, 2025, requested expeditious disposal of the writ petition. 25. The matter thereafter reached the Supreme Court in SLP(C) Diary No. 72686/2025. By order dated 2nd February, 2026, the Supreme Court declined to entertain the SLP while leaving the Petitioners at liberty to seek early disposal of the writ petition. The merits of the present proceedings were left untouched. 26. The writ petition was thereafter amended, and now contains two substantive reliefs. The first challenges what the Petitioners describe as their “implied and constructive termination/removal” and seeks reinstatement with continuity and consequential benefits. The second continues to seek regularisation from the dates of their initial appointments with benefits admissible to regular employees. Submissions on behalf of the Petitioners 27. Mr. Bankey Bihari, counsel for the Petitioners, submits that their engagements cannot be viewed merely on the basis of contractual nomenclature. They were selected pursuant to a public advertisement, through a Selection Committee and interview, against prescribed qualifications and experience, and TRIFED’s own records describe their engagement as being against regular sanctioned posts. Their continued engagement for nearly fifteen years, periodic performance assessments, discharge of regular institutional functions and inclusion in the 2024 post-based roster are relied upon to contend that the appointments were neither illegal nor backdoor and that the requirement for their services was enduring. 28. It is contended that although the earlier claim for regularisation was rejected, the subsequent continuation of their engagements and the later decisions in Vinod Kumar, Jaggo and Shripal, as understood by this Court in Deen Bandhu Garg v. SDMC4 and Namita Khare v. University of Delhi5, materially alter the position and give rise to a fresh cause of action notwithstanding the objection of res judicata. In this regard, reliance is placed on Saurashtra Kutch Stock Exchange Ltd. v. SEBI6 to contend that a subsequent declaration of law ordinarily operates retrospectively. Reliance is also placed on Sushil Kumar Mehta v. Gobind Ram Bohra7 to submit that a decision on an issue of law would not operate as res judicata where the law has since been altered by a competent authority. The discontinuance of their engagements during the pendency of the present petition, without any separate order and allegedly through replacement by outsourced manpower, is also assailed as arbitrary. The Petitioners accordingly seek reinstatement with continuity and consideration for regularisation. Submissions on behalf of TRIFED 29. Mr. Sumit Teterwal, counsel for TRIFED, submits that the claim for regularisation from the dates of the Petitioners’ initial appointments stands concluded by the judgment in W.P.(C) 5453/2020 and the subsequent speaking order of the Supreme Court, and is barred by the principles of res judicata and constructive res judicata. The subsequent continuation of the Petitioners’ contractual engagements neither alters the character of their initial appointments nor furnishes a fresh cause of action to reagitate the claim for regularisation. The 2010 advertisement and appointment letters expressly provided for purely contractual engagement without any right to absorption or permanent employment, while Clause 2 of the Recruitment and Promotion Rules excluded such appointments from their operation. Relying upon Secretary, State of Karnataka v. Umadevi,8 Radhey Shyam v. GNCT of Delhi,9 Union of India v. Arulmozhi Iniarasu10 and Jagdish Kumar v. TRIFED11, it is contended that length of service or the existence of sanctioned posts cannot confer a right to regularisation or create a legitimate expectation of absorption contrary to the terms on which the Petitioners were engaged. 30. Mr. Teterwal further argues that the subsequent decisions in Vinod Kumar, Jaggo and Shripal do not displace the binding adjudication between the parties or permit reopening of an issue that has attained finality. As regards the events of 2025, TRIFED maintains that the Petitioners’ engagements merely ceased upon expiry of their respective contractual periods and that there was no termination requiring a separate order. Analysis 31.     The effect of the earlier adjudication must be addressed first. In W.P.(C) 5453/2020, this Court rejected the Petitioners’ claim for regularisation from the dates of their initial appointments after considering the advertisement, the contractual terms, the selection process and TRIFED’s subsequent recruitment. The Supreme Court declined special leave on 12th November, 2021, but gave reasons: the appointments were contractual, the advertisement expressly excluded any right to regularisation, and the Petitioners were therefore not entitled to regularisation “on the basis of such appointment”. This was a speaking order refusing special leave within the meaning of Kunhayammed v. State of Kerala.12 At the same time, it did not result in merger, since the Supreme Court had not exercised appellate jurisdiction; nevertheless, the findings recorded in the order bind the parties and this Court in subsequent proceedings as a matter of judicial discipline. 32. The later decisions cannot be put aside merely because the Petitioners’ earlier claim for regularisation failed. Vinod Kumar, Jaggo, Shripal and, more recently, Bhola Nath v. State of Jharkhand13 require claims arising from prolonged contractual or temporary service to be examined beyond the contractual label. The manner of entry, nature and continuity of the work, existence of sanctioned posts, length of service and the employer’s own conduct are all relevant. The same approach underlies Pawan Sharma v. State (NCT of Delhi),14 where the Supreme Court, after granting leave, sustained the direction for regularisation, and has since been followed by the Division Bench of this Court in Om Prakash Gaur v. Delhi Technological University.15 These decisions are therefore relevant to the issues that remain open, but cannot reopen what has already attained finality between the parties. 33. That distinction answers the Petitioners’ reliance on Saurashtra Kutch Stock Exchange Ltd. as well. A later judicial exposition ordinarily operates retrospectively, but that principle does not efface an adjudication which has already become final. Indeed, the very passage noticed in Saurashtra Kutch recognises matters which have become res judicata as an exception. More recently, the Supreme Court in B.S. Lalitha v. Bhuvanesh16 has put the matter beyond doubt: a subsequent pronouncement on a pure question of law can displace the operation of res judicata only where it has undermined the legal basis of the earlier decision. The earlier adjudication here did not rest only upon the contractual description of the Petitioners’ appointments or the clause disclaiming regularisation. It also contained a specific determination concerning the process by which they had been appointed in 2010. That determination remains undisturbed. 34. There is one recent decision of the Supreme Court, not cited by either side, which also requires notice. In Najma Khatun v. State of West Bengal, the Supreme Court did not address regularisation of long-serving contractual employees as a general proposition. It concerned an appointment made without advertisement, through a walk-in interview not contemplated by the governing norms; the departure from the prescribed selection procedure was, in fact, conceded. When regularisation was nevertheless sought on the strength of Jaggo and Sukhendu Bhattacharjee v. State of Assam,17 the Supreme Court declined the relief, holding that the liberal approach adopted in those cases was confined to their facts. It reaffirmed that Umadevi and Official Liquidator v. Dayanand,18 being larger Bench decisions, remain binding and have neither been doubted nor diluted. 35.     Read in this context, Najma Khatun does not diminish the relevance of Bhola Nath, Pawan Sharma or Om Prakash Gaur. It only clarifies that these decisions must be applied within the framework of Umadevi and Dayanand, with due regard to the manner of entry and the facts of each case. The present claim must be examined on that basis. 36. That said, the later decisions do not reopen the adjudication of 2021. They assume relevance because the Petitioners’ present challenge also concerns what happened thereafter. TRIFED continued their engagements for nearly four years after the Supreme Court declined special leave, and those engagements were still subsisting when this petition was filed. They ended only in May and July 2025, when the Petitioners were denied further access to work. The challenge to that discontinuance, and the claim for reinstatement founded upon it, arise from subsequent events and were never considered in the earlier proceedings. 37. This distinction is consistent with the principles governing res judicata. Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy19 distinguishes between a subsequent proceeding founded upon the same cause of action and one arising from a different cause of action, while Jamia Masjid v. K.V. Rudrappa20 similarly recognises that an earlier adjudication does not foreclose a later claim where the underlying facts or law have materially changed. The challenge to the Petitioners’ discontinuance, being founded on events subsequent to the earlier adjudication, therefore constitutes a distinct cause of action. 38.     The distinction must, however, be kept within bounds. The 2011 Office Order and Agenda No. 4 of 2020 pre-date the earlier judgment. Although they remain relevant to the history of the Petitioners’ engagement and TRIFED’s own description of the posts, they cannot constitute subsequent events or furnish a fresh cause of action. 39.     The material change lies not merely in the passage of time, but in TRIFED’s conduct after the 2021 adjudication. By repeatedly extending the Petitioners’ engagements after assessing their performance and continuing to entrust them with institutional responsibilities, TRIFED’s own conduct demonstrated that their services continued to be required. 40.     The 2024 post-based reservation roster reinforces this conclusion. It places all four Petitioners in the relevant direct-recruitment cadres, records their appointments from 21st July, 2010 and describes them as “In Service On Contract”. Though these entries create no right in their favour, they reflect TRIFED’s own treatment of their engagements after the earlier adjudication. 41.     Bhola Nath bears closely on this issue. The appointments there were for fixed terms, carried no promise of regularisation and were repeatedly renewed against sanctioned posts on satisfactory performance. The Supreme Court held that, where the appointments followed a proper selection process, a public employer could not end an arrangement continued for over a decade merely by relying on its contractual form. Discontinuance without cogent reasons or a speaking decision was held arbitrary under Article 14. 42. The same principle applies here. The expiry dates explain how the engagements ended contractually, but not why TRIFED chose to discontinue an arrangement renewed for nearly fifteen years. No petitioner-specific decision shows that their services were no longer required, that the functions had ceased, or why the established course was altered. The discontinuance in 2025 was therefore arbitrary and cannot be sustained. The Petitioners must be restored to the contractual position they held immediately before their last extensions expired. 43.     The relief granted above is confined to the Petitioners’ discontinuance in 2025. It does not revive their claim for regularisation from the dates of initial appointment, which remains concluded by the earlier adjudication. What remains to be considered is whether the developments after 2021, viewed in light of the law as it now stands, warrant fresh consideration of their claim for prospective regularisation. 44.     That question finds guidance in Om Prakash Gaur. Drawing upon Vinod Kumar, Jaggo, Bhola Nath and Pawan Sharma, the Division Bench held that employees recruited through a public process and retained for years to meet enduring institutional needs could not be denied regularisation solely because their initial engagement was contractual. It directed regularisation against available posts or, where necessary, personal supernumerary posts. It also noted that the Supreme Court had sustained the direction in Pawan Sharma after granting leave, while protecting the seniority of regular appointees. 45. The Petitioners are therefore entitled to fresh consideration of their claim for prospective regularisation, without reopening the findings concerning their initial appointments. In this regard, TRIFED must consider the post-2021 extensions, the assessments of performance and conduct, the responsibilities entrusted to them, the 2024 roster, the enduring nature of their functions and the overall length of service. The exercise must be guided by the law as it presently stands, including Bhola Nath, Pawan Sharma, Jaggo and Om Prakash Gaur. The earlier findings will remain relevant, but will not, by themselves, determine the outcome. 46.     The Petitioners’ failure in the 2019 recruitment remains a relevant consideration, having expressly formed part of the earlier adjudication. It cannot, however, be treated as conclusive. TRIFED continued to engage them for years thereafter, showing that it did not regard that failure as determinative of their fitness for the work entrusted to them. Consistently, Namita Khare and Om Prakash Gaur declined to treat unsuccessful participation in later recruitment as an absolute bar to regularisation. 47.     Nor are the original contractual terms conclusive. Although the engagement was conceived as temporary, TRIFED continued it for almost fifteen years against functions that endured throughout. The claim for prospective regularisation must be considered in that factual setting. 48.     The result, therefore, is this. The discontinuance in 2025 is set aside. The Petitioners shall be restored to their former contractual position, and their claim for prospective regularisation shall be considered afresh. Their claim for regularisation from 2010 remains concluded. Directions 49. In view of the above discussion, the petition is disposed of with the following directions: (a) The cessation of the Petitioners’ engagements upon expiry of their respective contractual periods in May and July 2025 is set aside. TRIFED shall, within four weeks from today, restore the Petitioners to service on the posts last held by them, or the corresponding posts under the present nomenclature, on the same contractual footing as immediately preceding the expiry of their last extensions. (b) The restored contractual engagement shall continue until the decision on the Petitioners’ claim for prospective regularisation, directed below, is taken and communicated to them. (c) TRIFED shall, within three months from today, place the cases of all four Petitioners before the competent authority for fresh consideration of their claim for prospective regularisation. The exercise shall be undertaken in light of the observations made above and the law as it presently stands, and shall culminate in a reasoned decision. (d) If the Petitioners are found entitled to regularisation, their contractual engagement shall continue without interruption until orders giving effect to that decision are issued. The regularisation shall operate prospectively and shall not disturb the seniority or other accrued rights of persons regularly appointed in the interregnum. (e) If the claim for regularisation is rejected, the restored contractual engagement shall continue for a further period of four weeks from communication of the reasoned decision. The Petitioners shall thereafter be at liberty to pursue such remedy as may be available to them in law. (f) The Petitioners shall not be entitled to back wages for the period between their discontinuance and restoration to service. That period shall, however, not be treated as a break in service for the limited purpose of considering their claim for prospective regularisation. (g) The prayer for regularisation from the dates of the Petitioners’ initial appointments in 2010 is rejected. 50. Pending application(s), if any, also stand disposed of. SANJEEV NARULA, J SEPTEMBER 8, 2026/Ni 1 (2024) 9 SCC 327. 2 2024 SCC OnLine 3826. 3 2025 SCC OnLine SC 221. 4 2025 SCC OnLine Del 2417. 5 2025:DHC:5468-DB. 6 (2008) 14 SCC 171. 7 (1990) 1 SCC 193. 8 (2006) 4 SCC 1. 9 2015 SCC OnLine Del 6774. 10 (2011) 7 SCC 397. 11 2014:DHC:5854. 12 (2000) 6 SCC 359. 13 2026 INSC 99. 14 2025 SCC OnLine Del 8313. 15 2026:DHC:6891-DB. 16 2026 INSC 499. 17 2026 SCC OnLine SC 909. 18 (2008) 10 SCC 1. 19 (1970) 1 SCC 613. 20 AIR 2021 SC 4523. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ W.P.(C) 4417/2025 Page 2 of 2