Ramesh Kumar And Ors. vs Air India And Anr.
2001 Latest Caselaw 1780 Del

JUDGMENT

Mukundakam Sharma, J.

1. The present petition is filed seeking for a direction to the respondents to regularise the services of the petitioners as permanent derivers of the respondent No. 1 against regular permanent vacancies.

2. When the writ petition was initially filed there was 10 petitioners. However, during the course of arguments counsel for the petitioners stated that he does not wish to press this petition so far petitioner No. 5 - Sunder Singh, petitioner No. 6 - Surender Singh and petitioner No. 10 - Jaswant Singh are concerned. Accordingly, the writ petition stands dismissed so far the said petitioners are concerned and the present petition survives only so far the remaining 7 petitioners are concerned.

3. It is alleged in the petition that the petitioners were appointed as temporary Drivers by the respondents and that they worked for different periods in the aforesaid capacity. It is also alleged that they were appointed after they had gone through the process of necessary test and worked against vacancies of permanent drivers and therefore, their services are required to be regularised by the respondents.

4. In support of the aforesaid contention, counsel appearing for the petitioner made an effort to draw support from the contents of annexure P-2 which is alleged to be an order of appointment dated 8.1.1990. Relying on the said document it was submitted by the counsel appearing for the petitioners that although the petitioners were appointed on temporary basis but they were appointed against permanent posts and since there are sanctioned post of drivers their services are required to be regularised in accordance with law. It was also submitted by him that the respondents gave fresh appointment letters to the temporary drivers giving artificial breaks so as to deprive the petitioners from being permanently appointed to the said posts.

5. The respondents filed counter affidavit contesting the allegations made in the writ petition. It is stated in the said counter affidavit by the respondents that the respondents were engaging personnel as temporary drivers for specific duration as against leave vacancies or when permanent employee leaves the company on retirement or otherwise till such time the vacancy is filled in upon approval from Headquarters. It was also stated that the appointment letter dated 8.1.1990 placed as Annexure P-2 is a fabricated document inasmuch as that there was no person by the name of Ashok Arya, Personnel Officer, North India, who is shown to the signatory in the employment of Air India at the relevant time. It is also stated that vacant posts in the respondent organisation upon clearance from the Headquarters are notified to the Employment Exchange after following the Presidential Directives on the reservation of Scheduled Caste/Scheduled Tribes and other backward classes and the candidature of the candidates so sponsored by the Employment Exchange is considered strictly on merits. It is also stated that the candidates recommended for selection after trade test and interview are subjected to pre-employment medical examination and upon being declared medically fit are appointed on a permanent basis subject to vacancies and fulfilling all requirements. It is stated that the petitioners who were engaged on temporary basis were not required to undergo the aforesaid rigours of the selection process at the time of their temporary appointment.

6. During the course of his arguments, Mr. Birbal, senior counsel appearing for the respondent stated that after the directives of the Supreme Court the respondents have done away with the old buses and it was decided not to purchase new CNG buses as the same would not be economically viable for the respondents to provide transport facilities.

7. I have heard the learned counsel for the parties and have perused the records place before me. The petitioners have placed on record the details of the period for which they had worked for the respondents. Ramesh Kumar, who is petitioner No. 1 had worked for the respondents as a temporary driver during the period from 5.7.1989 to 1990 intermittently. Thereafter i.e. after 2.5.1990 the said petitioner was given a temporary appointment again on 31.1.1997 in which post he worked only up to 25.4.1997. Therefore, there is a long gap of six years during which the petitioner did not work for the respondent according to his

Devender Singh worked for about 5 months for respondent No. 1 as a temporary driver on three different occasions but the total period of his engagement is only for 5 months. Jitender Kumar and Baru Ram and worked similarly as a temporary drivers for 7 & 4 months respectively whereas Gopal Verma, Bhim Singh and Raj Kumar have worked for about 2 to 4 months respectively.

8. The appointment letter which is placed on record and on which reliance was placed by the counsel appearing for the petitioners is dated 8.1.1990. The present petitioners are basing their claim on the basis of their appointment sometime in the year 1996 and 1997. One sample copy of appointment letters issued in 1997 in case of Bhim Singh and Ramesh Kumar are placed on record by the counsel appearing for the respondents. The said letter specifically stipulates that the service of the concerned petitioner was purely on temporary basis with a further stipulation that his services would be terminated automatically after the completion of the aforementioned period of service on temporary appointment.

9. In the light of the aforesaid facts, the issue that arises is whether a direction could be issued by this court to the respondents to regularise the services for the petitioners. Except for petitioner No. 1 most of the petitioners have only worked for a period of 2 to 3 months and in any case none of them had worked for more than 7 months. So far the petitioner No. 1 is concerned, although he had worked for few months during the period 1989-90, thereafter he was not given any appointment till 1997 when also he had worked only for 3 months. The petitioners while being so appointed also did not go through the process of regular selection. It is also stated that as of date there is no permanent vacancy of a driver in the respondent organisation particularly in view of the fact that the old buses for running of which drivers where necessary have been done away with in view of the directions of the Supreme Court. Counsel has also conveyed the decision of the respondent not to purchase new CNG buses as the same would not be economically viable for the respondents. The appointment of the petitioners was contractual. The respondents have their Recruitment Rules for appointment on regular posts and a candidate desiring to be appointed on regular basis has to undergo the selection by regular process as per the said recruitment rules. When a special procedure is provided for such appointment no person can claim appointment on regular basis de hors the said rules and without going through the process of such selection.

10. Law with regard to regularisation of such contract employees has since been conclusively laid down by the Supreme Court in various pronouncements by it. In the case of Director, Institute of Management Development U.P. v. Pushpa Srivastava, the Supreme Court while considering the question of regularisation of the appointment purely ad hoc and on contractual basis for a limited period held that in case of appointment of purely ad hoc and contractual for a limited period, the right to remain in the post comes to an end after expiry of the period.

11. In State of Himachal Pradesh v. Suresh Kumar Verma and Anr., a three judges' bench of the Supreme Court held that the appointment on daily wages basis is not an appointment to a post according to rules. It was further held that the vacancies are required to be filled up in accordance with the rules and that all the candidates who would otherwise be eligible are entitled to apply for when recruitment is made and to seek consideration of their claims on merit according to the Rules for direct recruitment Along with all the eligible candidates. It was also held that the appointment on daily wages cannot be a conduit pipe for regular appointments which would be a back door entry, detrimental to the efficiency of service and would breed seeds of nepotism and corruption.

12. In Santosh Kumar Singh v. The State of U.P. and Ors. etc.; 1996 (1) SLR 602 it was held by the Supreme Court that when a person is appointed on ad hoc basis which appointment is initially invalid and inoperative being against the provisions of the Act such an appointment cannot be regularised.

13. In Hindustan Shipyard Limited and Ors. v. P. Sambasiva Rao etc., 1996(I) SLR 805 it was held by the Supreme Court that an ad hoc appointee even for number of years cannot claim regularisation as the process of regularisation involves regular appointment which can only be done in accordance with the prescribed procedure and the regularisation of service without following the prescribed procedure is not permissible.

14. It is thus conclusively established that when the petitioner were initially appointed they did not go through the rigours of the selection process as prescribed under the regulations and their suitability was considered only to a limited extent for the purpose of their contract appointment and they had also worked only for a few months and therefore, no relief could be granted to the petitioners as sought for in the writ petition directing for their regularisation in the service they having not been selected through a regular process of selection in accordance with the Recruitment Rules prescribed for such recruitment. Even otherwise no such direction for regularisation could be issued in the present case as petitioners have only worked for a few months with the respondents and particularly when it is the specific stand of the respondents now that there are no permanent vacant posts of drivers with the respondents at the present moment. At the same time it is true that the petitioners could not have been substituted by appointing another set of casual or temporary employees.

15. Accordingly, I find no merit in this petition and the petition stands dismissed. However, before parting with the records I am inclined to make an observation which I hereby do, that in case the respondents require any driver the same shall be notified for filling up in accordance with recruitment rules and in the event of the petitioners applying for the same their cases shall be considered in accordance with law giving due weightage to their past experience with the respondents and also by giving relaxation of age to the extent of the period they had worked with the respondents.

16. In terms of the aforesaid observations and directions the writ petition stands dismissed. However, there shall be no order as to costs.