Sanjay Sharma & Ors. vs Union Of India & Anr.
2001 Latest Caselaw 1044 Del

ORDER

Vikramajit sen. J.

1. The Petitioners have prayed for the issuance of a writ of mandamus commanding the Respondents to regularise the services of the Petitioners on the posts they have been working with effect from the date of their respective appointments and grant them all the consequential benefits including T.A., D.A., HRC, CCA and regular pay scales, which the permanent employees performing the same duties are getting. A writ of certiorari has also been prayed, inter alia, for quashing of service regulations of NIEPA (Respondent No. 2).

2. The Petitioners have been working with the Respondent No.2 for several years. It is alleged that the Respondent No. 2 has manipulated and managed breaks in their service so that they cannot claim regular employment for a period of 240 days in a given year. It is stated that the work performed by the Petitioners is of a perennial nature. Hence the practice adopted by the Respondents is not only mala fide but also in violation of the Petitioners fundamental rights guaranteed to them under Articles 14, 16 and 21 of the Constitution, and contrary to the Directive Principles laid down under Articles 38 and 39-D of the Constitution.

3. The defense of the Respondents primarily is that the Petitioners, like several other persons, are engaged contractually from time to time in various projects that are undertaken by the Respondents. It is averred that there are no regular vacancies at the present moment. The Respondents have relied on the factum of the factum of the Petitioners services having been engaged in various projects over the past several years to vindicate the assertion that there are no malafides on the part of the Respondents. As regards the break in service it is submitted that this is necessitated whenever the Petitioners, and other persons similarly placed, complete the project to which they are then appointed. Thereafter they are engaged in any project undertaken by NIEPA (Respondent No.2). It is further submitted that the Petitioner had themselves participated in various Selection for appointment to regular posts which had occurred. Even though they had failed to qualify in the tests and the Selection, while they were not even regular appointment, their engagement on projects, as and when available, had continued. It was further submitted that there is no substance or basis for the Petitioners to predicate that their services as heretofore engaged, would be discontinued. Reliance has also been placed on the previous order of this Court in CWP 1298/2001. The writ petition has been dismissed keeping in view similar submissions made on behalf of the Respondents.

4. A party cannot challenge, on equitable grounds, a practice in which he has acquiesced and participated. In service law it is well established that having once participated in a selection process, such a person cannot be heard to challenge the legality of the holding of such Selection. It may be open to him to assail the fairness of the Selection. For this reason the argument of learned counsel for the Petitioners that they ought to have been automatically absorbed into regular vacancies which have occurred several years ago cannot now be countenanced and entertained. The fact, however, remains that post the last Selection, if they have continued to work in various projects, the right to claim that they should first be absorbed in future regularisation may not be jeopardised and should be protected. That, however, would fall for minute consideration in the facts prevailing at that point in the feature.

5. Learned counsel for the Petitioner has relied on a decision delivered by this court on May 30, 2001 in C.W.P 6369/2000 - Om Parkash & Ors. v. The Director, AIIMS and another. In that case in respect of other fellow employees the Supreme Court had passed certain orders which the Respondent- AIIMS was bound to comply with. It was in that backdrop that I had restrained the Respondent-AIIMS from terminating the services of the petitioner.

6. In my view, however, the Petitioners are not without jural succour. Their right and livelihood can be well protected within the parameters of the submissions of learned counsel appearing on behalf of Respondents. Mr. Anil Kumar had reiterated the submissions made by him in C.W. 1298/2001 where he had submitted that "if any further projected are forthcoming, where the Petitioners would be suitably, as heretofore, he will be duly considered". Since the petitioners are Project Typists/Stenographers, it is difficult to conceive of any project where they would not be suitable for performing similar work. Hence, in view of the assurance given by learned counsel on behalf of Respondent, that the Petitioners will be considered for appointment to any further projects in preference to any fresh or new applicants, their interests are sufficiently safeguarded. Hence I do not propose to enter into the controversy as to whether a Certiorari should issue in respect of the project-wise employment of the Petitioners.

7. The writ petitions are accordingly disposed of with the direction to the Respondents that they shall first consider the Petitioners for appointment, after the expiry of their present engagement, to any other project in the future. In case the Respondents act in an arbitrary or capricious manner, the Petitioners are granted leave to assail such a decision. In the event that a regular vacancy occurs for posts to which the Petitioners have been rendering service, they shall be duly considered by granting age relaxation, if necessary. They shall be offered remunerations not less than what they are presently receiving. It is, however, expected that in respect of projects in the future the remunerations shall be increased as recognized by the Government.

8. In Gujarat Agricultural University v. Rathod Labhu Bechar & Ors, 2001 1 A.D. (S.C.) 327, the Hon'ble Supreme Court observed as follows:

"In fact, taking work,from daily wage worker or ad hoc appointee is always viewed to be only for a short period or as a stop gap arrangement, but we find new culture is growing to continue with it for a long time, either for financial gain or for controlling its workers more effectively with sword of damocles hanging over their heads or to continue with favored one in the cases of ad hoc employee withstaling competent and legitimate withstaling competent and legitimate claimants. Thus we have no hesitation to denounce this practice. If the work is of such a nature, which has to be taken continuously and in any case when this pattern become apparent, when they continue to work for year after year, only option to the employer is to regularise them. Financial viability no doubt is one of the considerations but then such enterprise or institution should not spread its arms longer than its means. The consequent corollary is, where work is taken not for a short period or limited for a season or where work is taken not for a short period or limited for a season or where work is not of part time nature and if pattern shows work is to be taken is no justification to keep workers. In such situation a legal obligation is cast on an employer if there be vacant post to fill it up with such workers in accordance with rules if any and where necessary by relaxing the qualifications, where long experience could be equitable with such qualifications. If no post exists then duty is cast to assess the quantum of such work and create such equivalent post for their absorption."

9. It is also expected that the Respondents should review the practice presently adhered to by them and if vacancies occur regularly, they should adopt a practice which would not be in violation of the law laid down by the Hon'ble Supreme court, that is, that where employment is of a perennial nature, regular appintements in respect thereof should be carried out. It need hardly be stated that organisations such as NIEPA, regularly receiving funds from the Government, are not expected to adopt unfair labour practices and carry out breaks in employment with the objective of defeating the rights of persons such as the Petitioners, who have worked with them for several years. As in C.W.P. 1098/2001 the Respondents shall be bound by their submissions.

10. In these circumstances there shall be no order as to costs.