Delhi High Court
Naval Kishor Nagar And Anr. vs Union Of India (Uoi) And Anr. on 21 November, 2006
Author: J Singh
Bench: M Mudgal, J Singh
JUDGMENT
J.P. Singh, J.
1. This Letters Patent Appeal is directed against the order dated 11.10.2006 passed by the learned Single Judge dismissing the writ petition filed by the appellants inter alia on the ground that the appellants were ad-hoc employees and in view of judgment in State of Karnataka v. Uma Devi and Anr. reported in 2006 (4) Scale 197 could not be regularized as they were not appointed by the usual mode of recruitment. In view of this, the standing orders on which the appellants had relied upon were held to be of no help to the appellants.
2. The contentions on behalf of the appellants are that they are ex- servicemen and that they had joined the respondent ONGC as Telecommunication Operators ostensibly through a contractor but thereafter they were given ad-hoc appointments for successive period of two months each of which were extended from time to time. Further, the said posts were reserved for ex-servicemen and they were thus eligible to be appointed. The work was of permanent and of a perennial nature and their appointments were not illegal or dehors the Rules.
3. While issuing notice in the appeal we had referred to the judgments titled Inderpreet Singh Kahlon and Ors. v. State of Punjab and Ors. JT 2006 SC 352 (which follows Uma Devi's case [supra]) cited on behalf of the appellants and the judgment titled M.P. State Agro Industries Development Corporation v. S.C. Pandey cited on behalf of the respondent. The relevant passage relied upon by counsel read as follows:
M.P. State Agro Industries Development Corpn. v. S.C. Pandey
18. The said decision applies on all fours to the facts of this case. In Mahendra L. Jain this Court has categorically held that the Standing Orders governing the terms and conditions of service must be read subject to the constitutional and statutory limitations for the purpose of appointment both as a permanent employee or as a temporary employee. An appointment to the post of a temporary employee can be made where the work is essentially of temporary nature. In a case where there existed a vacancy, the same was required to be filled up by resorting to the procedures known to law, i.e., upon fulfillling the constitutional requirements as also the provisions contained in the 1976 Regulations. No finding of fact has been arrived at that before the respondent was appointed, the constitutional and statutory requirements were complied with.
Inderpreet Singh Kahlon and Ors. v. State of Punjab and Ors. JT 2006 SC 352
40. We at the outset would furthermore notice that having regard to the submissions made before us by Mr. Dwivedi and Mr. Rao that the service of the appellants before us were terminated not in terms of the rules but in view of the commission of illegality in the selection process involved, we need not consider the applicability of the relevant provisions of the statutes as also the effect of the provisions of Article 311 of the Constitution of India. An appointment made in violation of Articles 14 and 16 of the Constitution of India would be void. It would be a nullity. See Secretary, State of Karnataka and Ors. v. Umadevi and Ors. But before such a finding can be arrived at the appointing authority must take into consideration the foundational facts. Only when such foundational facts are established, the legal principles can be applied.
41. If the services of the appointees who had put in few years of service were terminated; compliance of three principles at the hands of the State was imperative, viz., to establish (1) Satisfaction in regard to the sufficiency of the materials collected so as to enable the State to arrive at its satisfaction that the selection process was tainted; (2) determine the question that the illegalities committed go to the root of the matter which vitiate the entire selection process. Such satisfaction as also the sufficiency of materials were required to be gathered by reason of a thorough investigation in a fair and transparent manner; (3) Whether the sufficient material present enabled the State to arrive at satisfaction that the officers in majority have been found to be part of the fraudulent purpose or the system itself was corrupt.
4. A perusal of the above judgments reveals that even where regularization cannot be granted as per the mandate of Uma Devi's judgment (supra), the consideration as per para 40 in Inderpreet Kahlon's judgment extracted above should be accorded. The counsel for the respondent has been unable to show that the consideration required by Inderpreet Kahlon's judgment (supra) has been accorded by it.
5. There is also a prayer on behalf of the appellants that in any case the appellants be given liberty to move the labour court with interim protection and that even if their services may not be liable to be regularized, their services should only be terminated in accordance with law and they be given preference in future appointments.
6. Admit. List on 31st January, 2007 for hearing. Till the next date of hearing the status quo ordered in favor of the appellants passed by the learned Single Judge and continued by this Court on 18.10.2006 and 2.11.2006 shall continue.
