Ajay Kumar & Ors. Binesh Kumar vs Govt. Of N.C.T. Of Delhi & Ors.
2000 Latest Caselaw 172 Del

ORDER

A.K. Sikri, J.

1. The petitioners in these two writ petitions are working on daily wage basis with Delhi Agricultural Marketing Committee/Fish. Poultry & Egg. Market Committee. The period for which these petitioners worked is not in dispute. The said period and nature of engagement is stated in more precise terms by the respondents in the counter affidavit which is as under :-

CWP No. 3705/99

"The petitioner No. 1 was appointed on daily wages from 24.4.1997 to 24.9.1998. He was disengaged on 25.9.1998. Thereafter, after a gap of nearly 3 months he was again engaged on 21.12.1998 on daily wages basis for a period of 89 days. Thereafter, he was engaged on daily wages basis on 27.3.1999 (after break of 7 days) which expired on 23.6.1999.

The petitioner No. 2 was also appointed on purely daily wages basis for a period of 60 days vide letter dated 14.10.1997 after a break of one day. He was engaged again on purely daily wages basis after a break of one week and he worked till 24.9.1998. He was discharged by respondent No. 2 vide order dated 25.9.1998. Thereafter after a break of nearly 3 months he was engaged on daily wages basis vide letter dated 15.12.1998 for a period of 89 days only. Thereafter, he was re-engaged after a break of 7 days on 22.3.1999 and his term expired on 18.6.1999.

Petitioner No. 3 joined duties on 14.9.1998 purely on daily wages basis even though the letter was issued by the respondent No. 3 on 13.10.1998. He was re-engaged again on daily wages basis from 21.12.1998 for a period of 89 days i.e. after a break of 7 days, he was engaged with effect from 27.3.1999 to 23.6.1999".

CWP No. 3737/99

2. Petitioner in this writ petition was engaged as Sub Inspector/Fee Collector for the period of 89 days w.e.f. 16th September, 1998. After the expiry of this period he was again engaged w.e.f. 29th January, 1998 to 19th March, 1999 which period was again extended upto 24th June, 1999.

3. The aforesaid narration would show that somewhere in June, 1999 the engagement/extension of all these persons expired and the respondents decided not to extend it further.

4. In these circumstances, the petitioners filed these petitions. In CWP No. 3705/99 show cause notice was issued by Vacation Judge on 18th June, 1999 and in the stay application the order was passed directing the respondents not to dispense with the services of the petitioner. Similarly in CWP No. 3737/99 show cause notice was issued by Vacation Judge on 23rd June, 1999 and similar ex parte interim order was passed. These petitioners are, therefore, continuing in service.

5. In the petition, petitioners have stated that they have continuously been working with due approval of the competent authority and they have worked for more than 240 days in a year. It is further stated that the work on which they were engaged still continuous and, therefore, the respondents required the services of the petitioners. However, the respondents are not extending the engagement of the petitioners only because in March, 1999, there was assembly election and Government of Delhi was changed which resulted in replacement of officers working on high offices including the Administrator of the Market Committee and Agricultural Board and it is these new incumbents who have taken unjustified and arbitrary action in not giving further extensions to the petitioners. During arguments it was also submitted that there are 32 sanctioned posts against which only two persons were working on regular basis and 26 persons were working daily wage basis and, therefore, since there are sanctioned posts and the work available with the respondents, the services of the petitioners cannot be dispense with. It was also submitted that a daily wager cannot be replaced by other daily wager. On the basis of aforesaid submissions the prayer made in the writ petition is for issuing of mendamus directing respondents not to terminate the services of the petitioners and absorb them on the posts for which they have been working.

6. In the counter affidavit filed by the respondents it is stated that the petitioners were engaged purely on daily wage basis. No selection process was followed at the time of engagement of these petitioners. Even the names were not requisitioned from Employment Exchange. It is further pointed out that petitioners No. 1 & 2 in CWP No. 3705/99 are both sons of Shri Pritam Singh who was at the relevant time working as Deputy Secretary and he was not only instrumental in getting his sons appointed by hook or crook, he has even signed the appointment letters as appointment authority. It is further stated that on the discovery of this irregularity Shri Pritam Singh is even given charge memo and one of the charges was the non tracing of the relevant file dealing with the appointment of his sons and other similar persons. On the basis of these facts it is submitted that petitioners cannot be allowed to take undue advantage of their irregularities committed by their own father who was working in responsible position and misused the same by getting his sons appointed on daily wage basis. The allegation of the petitioner that the refusal of further extension is because of change in the Government, or for that matter Administrator of the Committee are denied. It is stated that previous Administrator had resigned as he contested the assembly election and respondent No. 4 had been appointed as Administrator in the vacancy caused by said designation. Likewise, previous Chairman of respondent No. 2 had also resigned and new person was appointed. It is further stated that respondents have not engaged any person and they also do not require any person and services of the petitioners are no longer required nor the respondents intend to appoint any other persons in their posts. It is also stated that financial position of respondent No. 3 is not in sound state.

7. The nature of the appointment of petitioners is not in dispute. Even as per the appointment letters enclosed by the petitioners it is clear that these petitioners were engaged on daily wage for specific period with clear stipulation that such engagement will not give any benefit to the petitioner for the purpose of seniority or claim for regular appointment. It is also not disputed that neither the posts were advertised for filling up on regular basis or daily wage basis nor any requisition was sent to Employment Exchange for engaging the persons on daily wage basis. It is also not disputed that no selection process was at all conducted or the relevant rules which laid down the procedure for filling up of the posts were followed. These are, therefore, clearly the cases of back door entries where kith and kin of the particular officer were shown undue favour in giving them the appointment. Such tendency of back door entry has been deprecated by the courts repeatedly (Delhi Development Horticulture Employees Union Vs. Delhi Admn., . It is also well established that such daily wage employees have no right to the posts and, therefore, termination cannot be held to be arbitrary (Himanshu Kumar Vidyarthi and Others Vs. State of Bihar and Others 1997 (2) SLJ 24 (SC). Merely because these persons have worked for some period on daily wage basis in the manner explained above, no right accrues to them to continue or even get the extension after the last extension of these petitioners expired on different dates in June, 1999. The petitioners have no right to continue after that date (Director, Institute of Management Development, U.P. Vs. Smt. Pushpa Srivastava ). The respondents being a statutory body is bound to adhere to the rules for making appointments. Without under going selection process in accordance with those rules, the petitioners cannot claim any regularisation. (J & K Public Service Commission and Others Vs. Dr. Narender Mohan and Others 1994). Those who enter through back door can be shown exist through back door.

8. The contention of the petitioners that they should not be replaced by other ad hoc employees also has no force in view of the categorical stand taken in the counter affidavit that after disengagement of these petitioners, there is no intention to engage other persons on daily wage basis. In fact, Mr. R.M. Bagai, learned counsel for the respondent stated at Bar that if there is a requirement the steps would be taken to fill up the posts on regular basis and the respondents were contemplating to disengage other daily wagers also and the action in respect of other daily wagers was not taken only because of the pendency of these two petitions and the stay orders granted by this Court in these cases.

9. Accordingly, I find no merit in these writ petitions and the same are dismissed. Rule stands discharged. Interim order is vacated. There shall be no order as to costs.