Bombay High Court
Sahdev Jotiba Turambekar, Son Of Jotiba ... vs Principal Secretary And Remembrace Of ... on 4 December, 2023
Author: G.S. Patel
Bench: G.S. Patel
929-ASIA-1887-2021 IN WP-3764-2016.DOC
Amol
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO. 1887 OF 2021
IN
WRIT PETITION NO. 3764 OF 2016
Sunil Ganpat Bharti & Ors ...Applicants
In the matter between
Sunil Ganpat Bharti & Ors ...Petitioners
Versus
Principal Secretary & Remembrance of Legal ...Respondents
Affairs & Ors
Mr DV Sawant, with Priynak Kulkarni, i/b SB Ghadage, for the
Applicant/Petitioner.
Ms MP Thakur, AGP, for the Respondent-State.
Mr SR Nargolkar, for Bombay High Court (Online).
CORAM G.S. Patel &
Kamal Khata, JJ.
DATED: 4th December 2023
PC:-
1. The Writ Petition is by as many as 91 Petitioners. They all
claim to have been working as the daily rated casual or contract
workers in various Civil District and Sessions Court in the State
Government Judiciary. The prayers in the Petition, which has been
amended several times, cover a range of reliefs including,
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principally, regularization in posts but also, reinstatement of those
whose services were terminated.
2. Mr Nargolkar on behalf of the contesting Respondent, namely
the High Court Administration, states that the matter is under
active consideration of a Committee of this High Court on the
administrative side at least to the extent of the regularization
application. He states that the Committee is likely to meet in
January 2024 and requests that the Petition be posted to the third or
fourth week of January 2024.
3. In response to our question, Mr Nargolkar clarifies that it is as
yet uncertain whether, even if regularization is accepted, there are
sufficient posts to accommodate all Petitioners. That there are some
regularly sanctioned posts is accepted but he does not have further
details at this stage. We believe it is quite a different matter and the
case will take a different complexion if the demand is that the State
Government should create posts for the purposes of regularization.
Further, if the Petition demands the unseating of somebody who
already occupies a post by way of a regular appointment, then that
would be an additional complication. These are undoubtedly
matters to which the Committee will apply its mind. We see no
advantage or benefit to be gained by proceeding on the judicial side.
This would amount to circumventing an otherwise proper
administrative procedure and of bypassing the Committee entirely
although it is seized of the very issue. It is equally possible that the
result of the Committee's deliberations may be a partial or even
possibly a complete success (or equally a failure) of the Petition. We
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believe it would be appropriate, in the ordinary fitness of things and,
apart from anything else, as a matter of courtesy and deference to
the senior Judges in the Committee to post the Petition itself to 29th
January 2024.
4. However, in the meantime, Mr Sawant for the Petitioners has
instructions to press for ad interim reliefs in Civil Application No
1887 of 2021. In particular, he seeks reliefs in terms of prayer clause
(b) which reads thus:
"(b) Pending the hearing and final disposal of the Writ
Petition, the Applicants/Petitioners may be allowed and
permitted, to participate in every process of recruitment for
any post of Class - IV cadre in the Hon'ble High Court at
all benches and all District Court(s), as and when the
appointments for the said post(s) are being filed in, by
dispensing with the age criteria qua the
Applicants/Petitioners, by taking into consideration, the
age of the Applicants/Petitioners at the time of initial date
of appointment of the Applicants/Petitioners with the
appropriate directions(s) to the Respondents."
5. The submission before us is that some of the 91 Petitioners
(the individuals are not identified) have completed many years of
service. Therefore, in recognition of this fact a recent advertisement
for recruitment to as many as 1584 posts should be amended, that is
to say, the terms of that public advertisement inviting applications
should be altered to carve out an exception making a relaxation in
the age limits (the age bar) for some or all of these Petitioners.
Reliance is placed on the decision of the Supreme Court in
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University of Delhi v Delhi University Contract Employees Union and
Ors.1
6. The judgment in question is of 25th March 2021. It arose
from a final judgment and order of the High Court of Delhi in a
Letters Patent Appeal preferred by the Contract Employees
Association. The Division Bench of the Delhi High Court had
concluded that the decision of the University of Delhi to grant a on-
time age exemption to all contract labour who may have served for
over a year was in the nature of a scheme as contemplated by the
Supreme Court in paragraph 53 of Secretary, State of Karnataka &
Ors v Umadevi & Ors.2 There were various other findings and
conclusions of the Delhi High Court. Reliance was also placed
before the Supreme Court on the decision in Official Liquidator v
Dayanand & Ors3 and in number of other cases in opposition as
noted in paragraph 6.
7. Of course, the decision of the Supreme Court in Umadevi is
of a Constitution Bench. In the University of Delhi's case, the
Supreme Court noted paragraphs 47, 49 and 53 of Umadevi
particularly in the context of regularization.
8. On this basis, Mr Sawant submits that since the employees in
question have put in more than 10 years of service they are entitled
to claim benefits following paragraph 53 of Umadevi's case. We
reproduce the relevant paragraph below:
11 (2021) 16 SCC 71.
2 (2006) 4 SCC 1.
3 (2008) 10 SCC 1.
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"53 One aspect needs to be clarified. There may be cases
where irregular appointments (not illegal appointments) as
explained in SV Narayanappa,4 RN Nanjundappa5 and BN
Nagarajan6 and referred to in para 15 above, of duly
qualified persons in duly sanctioned vacant posts might
have been made and the employees have continued to work
for ten years or more but without the intervention of orders
of the courts or of tribunals. The question of regularisation
of the services of such employees may have to be
considered on merits in the light of the principles settled by
this Court in the cases abovereferred to and in the light of
this judgment. In that context, the Union of India, the State
Governments and their instrumentalities should take steps
to regularise as a one-time measure, the services of such
irregularly appointed, who have worked for ten years or
more in duly sanctioned posts but not under cover of orders
of the courts or of tribunals and should further ensure that
regular recruitments are undertaken to fill those vacant
sanctioned posts that require to be filled up, in cases where
temporary employees or daily wagers are being now
employed. The process must be set in motion within six
months from this date. We also clarify that regularisation, if
any already made, but not sub judice, need not be reopened
based on this judgment, but there should be no further
bypassing of the constitutional requirement and regularising
or making permanent, those not duly appointed as per the
constitutional scheme."
9. This was clearly said to be a one time measure and was
elaborated by the Supreme Court in State of Karnataka & Ors v ML
44 (1967) 1 SCR 128.
55 (1972) 1 SCC 409.
66 (1979) 4 SCC 507.
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Kesari & Ors.7 Ultimately, in University of Delhi case in paragraph
22, the Supreme Court held that the contract employees could not
claim relief of regularisation in terms of paragraph 53 of Umadevi
and that the rejection of that Petition by Single Judge of High Court
was correct leaving no occasion for the Division Bench to interfere.
10. Paragraphs 23 and 24 of the University of Delhi case are
emphasized by Mr Sawant. They read as follows:
"23. It is true that, as on the day when the judgment in
Umadevi was delivered by this Court, the contract
employees had put in just about 3 to 4 years of service. But,
as of now, most of them have completed more than 10 years
of service on contract basis. Though the benefit of
regularization cannot be granted, a window of opportunity
must be given to them to compete with the available talent
through public advertisement. A separate and exclusive test
meant only for the contract employees will not be an answer
as that would confine the zone of consideration to contract
employees themselves. The modality suggested by the
University, on the other hand, will give them adequate
chance and benefit to appear in the ensuing selection.
24. We, therefore, direct that all the contract employees
concerned engaged by the University be afforded benefits as
detailed in paragraphs 6 and 7 of the affidavit dated 09
March 2021 with following modifications:
(a) The benefit of age relaxation as contemplated in
paragraph 6 of the affidavit without any qualification must
be extended to all the contract employees.
(b) In modification of paragraph 7 of the affidavit, those
employees who were engaged in the year 2011 be given the
benefit of 10 marks in the ensuing selection process while
7 (2010) 9 SCC 247.
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for every additional year that a contract employee had put
in, benefit of one more mark subject to the ceiling of 8
additional marks be given. In other words, if a contract
employees was engaged for the first time in the year 2010,
he shall be entitled to the benefit of 11 marks, while one
engaged since 2003 shall be given 18 marks, as against the
appointee of 2011 who will have the advantage of only 10
marks. The contract appointees of 2012 and 2013 will have
the advantage of 9 and 8 marks respectively.
(c) The Public Notice inviting applications from the
candidates shall specifically state that the advantage in
terms of the order passed by this court would be conferred
upon the contract employees so that other candidates are
put to adequate notice.
(d) All the contract employees shall be entitled to offer
their candidature for the ensuing selection in next four
weeks and in order to give them sufficient time to prepare,
the test shall be undertaken only after three months of the
receipt of applications from the candidates."
11. But this is to be understood as being entirely fact dependent
and in the context of the facts in the University of Delhi case. This is
apparent from paragraphs 25 to 27 of the Supreme Court judgment
in the University of Delhi case.
12. What is being canvassed before us, however, is that by some
process of pre-empting not only the final disposal or final order in
the Writ Petition itself, but also the decision one way or the other by
the committee on the administrative side and to which we have
referred earlier, the Applicants and Petitioners must be allowed to
participate (and we note that all 91 Petitioners are also Applicants)
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in the fresh process by making an age-bar exception as an interim
measure. The Petitioners/Applicants do not address how this will
possibly disadvantage other applicants who are in the process of
regular appointment or regular recruitment. We do not see how it is
possible to grant ad interim relief of this kind without completely
disrupting the selection process. The Petitioners are obviously
entitled to participate in the process if otherwise eligible, but we see
no method of altering the eligibility conditions or relaxing these for
the Petitioners as an interim or ad-interim relief.
13. There are other reliefs sought in the prayer clause (a) of the
Civil Application. Even prayer clause (b) is not restricted to the
present process but is in general terms. We are not dismissing the
Civil Application at this stage. We will take it up with the main Writ
Petition itself on 22nd January 2024. However, in the meantime, we
are not inclined to grant ad interim relief.
14. List the matter on 22nd January 2024.
(Kamal Khata, J) (G. S. Patel, J)
4th December 2023
