Satya Narayana Chaudhary vs M.C.D. And Ors.
2001 Latest Caselaw 1510 Del

JUDGMENT

Mukundakam Sharma, J.

1. The present petition is filed by the petitioner seeking for regularisation of his service as a Welder with a further direction to the respondents to pay regular pay and allowances as is being paid to the regularly employed Welders.

2. The petitioner was engaged to respondent No. 1 organisation as Beldar/Assistant Pump Driver on muster roll. Somewhere in 1989 without going through the regular process of selection the petitioner was allowed to work as Welder on muster roll w.e.f. 16.10.89 and since then, except for the months of January/February, 1997 the petitioner has been working in the said capacity. It transpires from the records that as per the policy of regularisation of respondent No. 1 under the phased programmed, the case of the petitioner for regularisation was considered in the year 1995 and since the regularisation was done in respect of the muster roll employees, who were working w.e.f. 1.1.1989,. the petitioner stood excluded from the said consideration as he was working as Welder w.e.f. 16.10.1989. The stand of the respondents in the counter affidavit is that as of present there does not exist any post of Welder (2nd Class) and hence the regularisation of the petitioner in the post of Welder cannot be considered till a regular post is available in the said cadre.

3. Counsel appearing for the petitioner submitted that the petitioner has been working in the said post of Welder since 1989, except for two months and, therefore, the stand of the respondents that there does not exist any post of Welder, cannot be accepted. He further submitted that since the petitioner has been working in the said post of Welder for last 11 years, his case should be considered for regularisation in accordance with law.

4. Counsel appearing for the respondents, however, submitted that when the appointment of the petitioner was Welder is de hors the rules and when there does not exist any post of Welder at present, no such direction could be issued for regularisation of the petitioner in the post of Welder. He further submitted that the case of the petitioner for regularisation, as against the post of Beldar, was considered and the respondents were willing to regularise his service as Beldar but since the petitioner was not ready to accept the said position, the said process was dropped.

5. In the light of the aforesaid submissions of the counsel appearing for the parties, I have considered the records of the case. It is an accepted position that the petitioner has been working in the post of Welder as a muster roll employee till date. It is the specific stand of the respondents that the initial engagement of the petitioner as a muster roll employee to the post of Welder was de hors the rules and when a person is initially engaged as muster roll employee and is working as such, his services cannot be ordered to be regularised even though he has been working for a long time. The same is the settled position of law in terms of the decision of the Supreme Court in reported in Union of India v. Bidhamber Dutt; . In the said decision, it was held by the Supreme Court that if a person is not appointed to a regular post in accordance with law, no direction can be issued to regularise the service. Reliance was also placed on a decision of the Supreme Court in The State of U.P. and Ors. v. Ajay Kumar, wherein it was held by Supreme Court that there must exist a post and either administrative instructions or statutory rules must be in operation to appoint a person to the post. It was further held that daily wage appointment will obviously be in relation to contingent establishment in which there cannot exist any post and it continues so long as the work exists and, therefore, the Supreme Court held that the High Court was wrong and acted erroneously in directing the appellant to regularise the service of the respondent, who was working as Nursing Orderly on daily wages, to the post as and when the vacancy arises and to continue him until then. Reference was also made to the decision of the Supreme Court in Himanshu Kumar Vidyarthi and Ors. v. State of Bihar and Ors.; . In the said decision, it was held by the Supreme Court that when a person is not appointed to the post in accordance with the Rules but was engaged on the basis of need of the work, he continues as a temporary employee working on daily wages and his disengagement from service cannot be construed to be a retrenchment. In the State of Himachal Pradesh v. Ashwani Kumar and Ors.; it was held by the Supreme Court that when the project is completed and closed due to non-availability of funds, the High Court cannot give direction to regularise the employees or to continue them in other places. My attention was also drawn to the decision in State of Haryana v. Piara Singh; . In the said decision the Supreme Court held that the court must, while giving directions for regularisation of services, act with due care and caution and it must first ascertain the relevant facts and must be cognizant of the several situations and eventualities that may arise on account of such directions and that a practical and pragmatic view has to be taken, inasmuch as every such direction not only tells upon the public exchequer but also has the effect of increasing the cadre strength of a particular service, class or category. It was held by the Supreme Court that no direction could be given without reference to the existence of a vacancy and when a direction is given which has the effect to mean that every adhoc/temporary employee who has been continued for one year should be regularised even though no vacancy is available for him. It was held that such a direction in effect would mean creation of a vacancy, and appointment thereto although not sponsored by the Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back-door and he was not eligible and/or qualified for the post at the time of his appointment and his record of service since his appointment is not satisfactory. It was also held that from the mere continuation of an adhoc employee for one year, it cannot be presumed that there is need for a regular post.

6. In the context of the aforesaid position, the following position emerges:-

(a) That if a person continues in a post on adhoc basis or daily wage for a short period, there should be no order for his regularisation;

(b) That a person cannot be ordered to be regularised unless his initial appointment is in accordance with the provisions of the Rules and that his appointment is not de hors the Rules.

(c) There must exist a post, for otherwise any direction for regularisation would amount to creation of a post which will result in increase in the cadre strength.

7. It would be clear from the above-mentioned facts that the petitioner has continued to work as a Welder for about 11 years, it cannot be said that the petitioner does not possess the criteria and necessary qualification to hold such a post. Although his initial appointment was de hors the rules yet by long passage of time and he having worked for 11 years in the said post he should not be directed to again go through the process of selection after lapse of such a long period. However, even in spite of the said position, in my considered opinion, no direction could be given to the respondents to regularise the petitioner in service, for the stand of the respondents is that at the moment there does not exist a post of Welder. In my considered opinion, any direction by this court to create a post of Welder would be beyond the jurisdiction of this court. The court cannot order for creation of a post, which is always within the exclusive jurisdiction of the executive. I am of the opinion that passing an order for regularisation of the services of the petitioner, in the present case, would not only amount to ordering for creation of post but the same would also amount to increase in the cadre strength.

8. In that view of the matter, no direction, as sought for by the petitioner, could be given in the instant case. But it is made clear that as and when a regular vacancy in the post of Welder arises, the petitioner shall be regularised in the said post without directing the petitioner to go through the process of fresh selection. Only such steps which are required for regularising the appointment of the petitioner to the post of Welder, shall be taken by the respondents. The very fact that the petitioner is working as a Welder, as a muster roll employee for the last 11 years would also indicate that there is a necessity in the organisation for such a post and, therefore, the respondent No. 1 is also called upon to take all necessary administrative steps for creation of such post. As and when such a post is created in the establishment, it is the petitioner who shall be regularised in the said post. In terms of the aforesaid observations and directions, the writ petition stands disposed of.