Lalit Kumar Aggarwal vs Commissioner, Municipal ...
2007 Latest Caselaw 940 Del

JUDGMENT

Kailash Gambhir, J.

1. Counsel for the respondent states that the present case as filed by the petitioner is squarely covered by the judgment of the Constitutional Bench of the Supreme Court in Secretary, State of Karnataka v. Umadevi and Ors. . Counsel for the respondent has drawn my attention to the following observations made in the said judgment:

20. We may now consider State of Haryana v. Piara Singh and Ors. . There, the Court was considering the sustainability of certain directions issued by the High Court in the light of various orders passed by the State for the absorption of its ad hoc or temporary employees and daily-wagers or casual labour. This Court started by saying:

Ordinarily speaking, the creation and abolition of a post is the prerogative of the executive. It is the executive again that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. This power to prescribe the conditions of service can be exercised either by making rules under the proviso to Article 309 of the Constitution or (in the absence of such rules) by issued rules/instructions in exercise of its executive power. The court comes into the picture only to ensure observance of fundamental rights, statutory provisions, rules and other instructions, if any, governing the conditions of service.

2. This Court then referred to some of the earlier decisions of this Court while stating:

The main concern of the court in such matters is to ensure the rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the directive principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. Where a temporary or ad hoc appointment is continued for long the court presumes that there is need and warrant for a regular post and accordingly directs regularisation. While all the situations in which the court may act to ensure fairness cannot be detailed here, it is sufficient to indicate that the guiding principles are the ones stated above.

3. This Court then concluded in paras 45 to 50:

The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee. Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.

Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.

An unqualified person ought to be appointed only when qualified persons are not available through the above processes. If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified accordingly to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.

With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts' This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent 'the distinction between regularisation and making permanent, was not emphasised here' can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in para 50 of Piara Singh (supra) are to some extent inconsistent with the conclusion in para 45 therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognised in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent.

4. By way of this writ petition, the petitioners have challenged the impugned termination letter dated 24.03.2004 being violative of the fundamental rights in matters of employment and the petitioners have also sought directions against the respondent for regularization of their services or to allow them to continue on their respective posts as the Yamuna Action Plan is an on-going long project. Counsel for the petitioner contends that since the petitioners are experienced persons having already worked in the Yamuna Action Plan Project, therefore, they deserve to be appointed again in the on-going project of the Yamuna Action Plan Project. The services of the petitioners were engaged vide order dated 21.09.2001 and were terminated vide order dated 24.03.2004 The said appointment letter clearly goes to show that the appointment of the petitioners was on contract basis for a period up to 31.03.2002 on a consolidated salary of Rs. 5,000/- per month. In the said appointment letter, it was made clear that the said contractual appointment shall not confer any right or preference for regular appointment. The said contract, however was extended till 31.03.2004 due to continuation of the Yamuna Action Plan Project. The same came to an end and thereafter the respondent did not find any need of taking further services of these petitioners beyond 31.03.2004 Once the petitioners were well aware of the terms of their appointment which was contractual in nature, terminable at the end of the period specified therein or till the extended period, then, they cannot turn round to claim any right of continuation in the said post. The said judgment of the Supreme Court is squarely applicable in the facts and circumstances of the present case. The services of the petitioners have already been terminated, therefore, the petitioners cannot be given any relief of either an appointment or regularization by this Court while exercising powers of writ jurisdiction under Article 226 of the Constitution of India.

5. Petition is devoid of any merits. Dismissed.