.*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2003/1998
% Date of decision: 18th May, 2010
KIRAN BALA & OTHERS ..... Petitioners
Through:Mr. Anuj Aggarwal, Advocate.
Versus
UNION OF INDIA & OTHERS ..... Respondents
Through: Mr. Lalit Bhasin, Advocate with Ms.
Ratna Dhingra and Ms. Shreya Sharma,
Advocates for R-2&3.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The six petitioners, by this writ petition seek a direction to the respondents to regularize the services of the petitioners and to pay all consequential benefits to the petitioners. The petitioners are the widows of six employees of the respondent no.3 Hotel Corporation of India Ltd. (hereinafter referred to as HCIL). It is their case that consequent to the premature demise of their respective husbands, the respondent no.3 HCIL on compassionate grounds appointed them on temporary basis; however, instead of regularizing their services, they, from time to time, are being appointed for a period of 40 days; claiming that as per the Memorandum dated 30th June, 1987 of the Government of India, they are entitled to compassionate appointment, they filed this petition W.P.(C)2003/1998 Page 1 of 7 as aforesaid for the relief of regularization. M/s Air India, of which HCIL is a subsidiary has been impleaded as respondent no.2.
2. This Court vide order dated 29th April, 1998 directed status quo as of then to be maintained in respect of the services of the petitioners. Rule was issued in the petition on 1st September, 2000 and the interim order made absolute till the pendency of the writ petition. It is informed that in view of the interim orders the petitioners are continuing to work on renewal of their appointments for 40 days at a time. On 23rd March, 2010 the counsel for the petitioners stated that the petitioners are claiming the relief of regularization as employees of HCIL only and not of Air India. The writ petition was dismissed for non prosecution on 29 th September, 2008. CMs.No. 15777 and 15778/2008 for restoration were filed. However, the said applications were also dismissed in default on 12th October, 2009. CMs.No.4034-4035/2010 have again been filed for restoration of the writ petition. The counsel for the petitioners was informed on 17th May, 2010 that the applications shall be considered only when the counsels are ready to address on the merits of the writ petition also. The counsels have been heard on merits of the writ petition. Accordingly, for the reasons stated, the applications for restoration are allowed. Delay in applying for restoration of the writ petition is condoned and the writ petition is restored to its original number.
3. It was at the outset itself inquired from the counsel for the petitioners as to how, in the face of the Constitution Bench judgment in State of Karnataka Vs. Uma Devi (2006) 4 SCC 1, this writ petition claiming relief of regularization of the petitioners in employment is maintainable. The counsel for the petitioners W.P.(C)2003/1998 Page 2 of 7 contends that present is not a case of regularization simplicitor; each of the petitioners on the demise of their respective husbands was entitled to compassionate appointment; such compassionate appointment ought to have been as a regular employee; however instead the petitioners were appointed on temporary basis and inspite of having worked for long, their services have not been regularized. It is urged that the respondents by keeping the petitioners as temporary employees for years together are indulging in unfair labour practice entitling the petitioners to the relief claimed.
4. Per contra, the counsel for the respondents Air India and HCIL has contended that the Memorandum dated 30th June, 1987 of the Government of India to which reference is made in the writ petition is not applicable to Air India or to HCIL and is applicable only to employees of the Government and/or Government Department; It has no application to the Public Sector Undertakings as Air India and HCIL are. It is further contended that neither Air India nor HCIL have any schemes or rules for compassionate appointment and the petitioners were employed temporarily on compassionate grounds to tide over the crisis in their respective families and there was/is no obligation of Air India or HCIL to so take the petitioners in regular service on compassionate grounds. It is further contended that the petitioners are not entitled to the discretionary reliefs for the reason of having indulged in falsehood. It is contended that the petitioners have falsely stated that they have been working with the respondent since 1991 when the fact of the matter is that the petitioners had been working with the respondent for a period of one/two years only prior to the institution of the petition and none of the petitioners had worked for even 240 days in 12 W.P.(C)2003/1998 Page 3 of 7 consecutive months preceding the institution of the petition. It is stated that thereafter the petitioners are continuing under the orders of the court only and to the great prejudice to public monies. Besides Uma Devi (supra) reliance is placed on Official Liquidator Vs. Dayanand (2008) 10 SCC 1 where the Supreme Court has while reiterating the law as laid down in Uma Devi held that the said judgment of the Constitution Bench cannot be permitted to be diluted.
5. The counsel for the petitioners has not controverted that none of the petitioners had worked for the respondents since the year 1991 as stated in the writ petition. I however find that the writ petition cannot be dismissed solely for the said reason in as much as the averment to the said effect appears to be a case of an erroneous statement rather than intentional or intended to derive any benefit since the said error in quiet obvious.
6. The counsel for the petitioners has also not been able to show as to how the Memorandum dated 30th June, 1987 of the Government of India to which reference has been made in the writ petition, applies to the respondents. The petitioners have in fact not even placed the full Memorandum before this court and only reproduced portions thereof. The respondents Air India and HCIL are companies and though fully owned by the Government cannot be said to be Government or a department thereof so as to make the instructions in the Memorandum aforesaid of the Government of India applicable to them. The terms and conditions of services in the respondent Air India and HCIL are governed by their respective rules. The instructions of the Government of India in the Memorandum aforesaid cannot become applicable to respondents Air India W.P.(C)2003/1998 Page 4 of 7 and HCIL without being incorporated in the rules of service. The petitioners have not been able to establish that under the said rules there is any provision for compassionate appointment.
7. The Supreme Court in Umesh Kumar Nagpal Vs. State of Haryana (1994) 4 SCC 138 has held that the provisions for compassionate appointment have necessarily to be made by the rules or by the executive instructions issued by the government or the public authority concerned; employment cannot be offered by an individual functionary on an ad hoc basis. In the present case, as aforesaid, the instructions of the Government of India relied on by the petitioners are not found to be applicable to the respondents Air India/HCIL and the rules of respondents Air India and HCIL are not shown to contain any provisions for compassionate appointment. The Supreme Court again in General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205 held that executive instructions even if any qua compassionate appointment could not prevail over the statutory rules. In Indian Drugs and Pharmaceuticals Ltd. Vs. Workman, Indian Drugs and Pharmaceuticals Ltd (2007)1 SCC 408 also the respondents were appointed on purely casual and daily rate basis for reasons that they were dependents of employees dying in harness. Subsequently, the Union started pressing for regularization of such employees; on reference, the Labour Court held that for the reason of having continued for a long time, they were entitled to regularization; the High Court directed that such employees though not entitled to regularization would continue in service till their superannuation and be paid wages like regular employees. The Supreme Court however held that such persons had no right to the posts and rules of recruitment cannot be relaxed and W.P.(C)2003/1998 Page 5 of 7 the Court/Tribunal cannot direct regularization of temporary appointees de hors the rules nor can it direct continuation of service of a temporary employee. The judgment of the High Court was thus set aside.
8. Thus the relief of regularization sought by the petitioners cannot be granted. Not only have the petitioners been unable to show any right to compassionate appointment under any rules etc but even if it were to be so, it is not for this court in the writ jurisdiction to determine whether the petitioners are entitled to compassionate appointment or not. The Supreme Court in I.G. (Karmik) and Ors. Vs. Prahalad Mani Tripathi (2007) 6 SCC 162 has held that appointment on compassionate ground is given only for meeting immediate hardship faced by family of the deceased due to death of bread earner; when appointment is made on compassionate ground it should be kept confined only to the purpose it seeks to achieve. In that case it was held that after accepting the appointment in a lower post the dependent of the deceased could not be permitted to turn around and contend that he was entitled for a higher post although not eligible therefor. Similarly in the present case, notwithstanding the absence of any rule for compassionate appointment, the petitioners were given compassionate appointment on an ad hoc / temporary basis. The same however does not entitle the petitioners to regular appointment on compassionate grounds. Moreover, more than 20 years have since passed. There is no element of crisis or tiding over today.
9. As for the argument of the counsel for the petitioners of unfair labour practice, neither is there any sufficient material for the same before this court W.P.(C)2003/1998 Page 6 of 7 nor does a writ jurisdiction permit this court to hold an inquiry or give a finding in that regard. All that can be said is, while holding the present writ petition to be not maintainable and dismissing the same, the petitioners shall notwithstanding the same have liberty to, if so entitled, approach an appropriate fora for any relief for which they may claim to be entitled. The petition is dismissed. No order as to costs.
RAJIV SAHAI ENDLAW (JUDGE) 18th May, 2010/M W.P.(C)2003/1998 Page 7 of 7