Ms. Meena Kumari vs Delhi Commission For Women
2006 Latest Caselaw 1325 Del

JUDGMENT

J.M. Malik, J.

1. The petitioner is in service on contractual basis. Her appointment letter dated 28th June, 2002 reads:

I am directed to offer you the contractual appointment as Project Workers on a consolidated monthly remuneration of Rs. 4,500/- under terms and conditions enclosed for a period of four (4) months w.e.f. 1st April, 2002 to 31st July, 2002.

The Commission, however, reserves the right to terminate the services at any time during contract with notice of 15 days or remuneration in lieu of notice period without assigning any reason thereof.

You are requested to sign the terms and conditions of contract as a token of acceptance within three days of receipt of this letter failing which the offer stands terminated without further reference to you.

Yours faithfully,

Sd/-

(ALKA SHARMA)

Assistant Secretary

Delhi Commission for Women

The terms and conditions of the contract are these:

1. The contract period shall commence as mentioned in the offer letter. The appointment will stand terminated after specified period or the completion of the Project, whichever is earlier.

2. This appointment can be terminated by giving 15 days notice or 15 days remuneration in lieu of the notice for such termination of contract and Commission shall not be liable for communicating any reason for the same. The appointment shall give mandatory 15 days notice before termination of contract.

3. The incumbent of the post being offered will have to work for the project assigned to him/her and any other work assigned by the Member-Secretary from time to time.

4. The appointee will employ himself/herself efficiently and diligently and will devote his/her whole time to the duties assigned and will not engaged directly or indirectly in any trade or occupation on his/her own account.

5. The contract appointee shall not be entitled to any leave. He/She will be governed by the normal Delhi Govt.'s holiday during the period. However, 10 dyas Casual Leave per year would be permitted to be considered on quarterly basis.

6. At the termination of the appointment, the incumbent shall not be entitled to any terminal benefits.

7. The contract will not entitled the candidate to any right of regular appointment in the Commission or claim for seniority for purpose of employment in the Commission.

2. On 27.10.2004, the petitioner received the following memorandum:

Since the Finance Department, Government of NCT of Delhi has concurred to your appointment in the Delhi Commission for Women on contract basis only up to March 31, 2004 as per the terms and conditions of your appointment, 15 days' notice of termination of service is hereby given with effect from 3rd November, 2004.

This issues with the approval of Member Secretary, DCW.

3. In this writ petition the petitioner has prayed that appropriate writ be issued, the impugned order dated 27.10.2004 be quashed, the respondent be directed to consider to regularize the petitioner in the post of Record Keeper and the petitioner be put in appropriate pay scale as drawn by the equally placed persons in other Government departments/agencies etc. Vide order of this Court passed on 09.11.2004, the respondent was directed not to terminate the services of the petitioner till further orders.

4. At the very outset, learned Counsel for the petitioner argued that the latest Constitution Bench case reported in Secretary, State of Karnataka v. Uma Devi rather supports the case of the petitioner. He has drawn my attention towards para 44 of the said judgment, which is reproduced as follows:

44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra), and B.N. Nagarajan (supra), and referred to in paragraph 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 courts of tribunals. The question of regularization 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 above referred 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 regularize 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 courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that required 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 regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.

5. Learned Counsel for the petitioner argued that appointment of petitioner is irregular and there is necessity for such like workers. In order to buttress his submission, he has cited a judgment of this Court reported in Satya Narayana Chaudhary v. M.C.D. and Ors. 2002 II AD (Delhi) 552, wherein it was held,

The petitioner has continued to work as a Welder for about 11 years. When he is retained for the last 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 regularization 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.

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 regularizing 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.

6. The learned Counsel for the petitioner did not come to grips with the real problem but touched the periphery. The petitioner worked for two years approximately. She does not qualify the conditions set out in above said two judgments. The answer to this knotty problem lies in the above said Constitution Bench judgment, wherein it was also observed:

This Court has also on occasions issued directions which could not be said to be consistent with the constitutional scheme of public employment. Such directions are issued presumably on the basis of equitable considerations or individualisation of justice. The question arises, equity to whom? Equity for the handful of people who have approached the court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment? When one side of the coin is considered, the other side of the coin has also to be considered and the way open to any court of law or justice, is to adhere to the law as laid down by the Constitution and not to make directions, which at times, even if do not run counter to the constitutional scheme, certainly tend to water down the constitutional requirements. It is this conflict that is reflected in these cases referred to the Constitution Bench.

It was further held:

Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme.

It was also held:

Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favor of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahadur (Dr.) v. Governing Body of the Nalanda College 1962 Supp.(2) SCR 144. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favor of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.

7. Thus in light of above discussion, Para 44 of the above said authority does not create propitious conditions for the petitioner. The case of the respondent stands bolstered by the above said Constitution Bench authority. The petitioner has failed to show any rule or regulation which may go to fortify her case. The petition is without merit. Same is dismissed. No costs.