Sh. Sushil Kumar vs Mcd & Anr
2008 Latest Caselaw 1071 Del

                                                            REPORTABLE

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Decision : July 21, 2008


+                   WP(C) No.8413/2007

#     SH. SUSHIL KUMAR
                                                           ...     Petitioner.

!                                 Mr. Puneet Verma, Advocate
                        Versus

$     MCD & ANR.
                                                     ...         Respondents

^                                 Mr. Sanjeev Sabharwal with
                                  Ms. Neeta Deep Rastogi and
                                  Mr. Alok Singh, Advocates.


CORAM :
HON'BLE MR. JUSTICE S.N. AGGARWAL

    1. Whether reporters of Local paper may be allowed to see the
       judgment?
    2. To be referred to the reporter or not?
    3. Whether the judgment should be reported in the Digest?

S.N. Aggarwal, J. (Oral)

The petitioner belongs to reserve category and he is a handicap

person, his left leg below knee having been amputated on account of

injuries sustained by him in a train accident suffered by him in the year

2000. The petitioner worked for 16 days from 09.11.1996 to 25.11.1996

and again for four months from 21.07.2006 to 30.11.2006 as Domestic

Breeding Checker on contractual basis with the Municipal Corporation of

Delhi, the respondent herein. He was denied contractual appointment as

Domestic Breeding Checker in the year 2007 on the ground that he was

not capable of performing the duties required to be performed by a

Domestic Breeding Checker, he being a handicapped person.

The petitioner, in this writ petition, has prayed for a writ of

mandamus to the respondent directing it to appoint him as Domestic

Breeding Checker in the next season commencing in the month of March-

April, 2008 and in future seasons as well on the basis of his seniority. The

prayer made in this writ petition is strongly opposed by the counsel

appearing on behalf of the respondent inter-alia on the ground that the

petitioner who was appointed on contractual basis on two earlier

occasions has no vested right to seek appointment. The prayer made in

this writ petition is also opposed by Mr. Sabharwal, learned counsel

appearing on behalf of the respondent on the ground that the petitioner

being a handicapped person is not capable of performing the duties

required to be performed by a Domestic Breeding Checker. The

contention of Mr. Sabharwal is that a Domestic Breeding Checker has to

physically check 50 collers and 50 overhead tanks daily to arrest the

Aedes breeds. It is contended that since the petitioner is presently having

bi-lateral knee amputation with 100% disability and if he tires to reach

the overhead tank, there are maximum chances for him to fall down and

sustain fatal injuries. It is submitted that for that reason, the petitioner

was not given contractual appointment to the post of Domestic Breeding

Checker during the year 2007. Mr. Sabharwal has also submitted that

since the petitioner has not made any application for his appointment to

the post of Domestic Breeding Checker in the current session i.e. 2007-

2008, directions for his appointment may not be given by the Court.

It is not denied on behalf of the respondent that the petitioner had

worked to the satisfaction of his superiors even after he had suffered the

alleged disability. It is not denied that the alleged disability was suffered

by the petitioner in the year 2000 and that he has worked to the

satisfaction of his superiors on the post of Domestic Breeding Checker for

four months from 21.07.2006 to 30.11.2006. It is not the case of the

respondent in its counter affidavit that the petitioner was denied

appointment to the post of Domestic Breeding Checker, though on

contractual basis, because he could not perform his duties of the said

post while he was appointed in the year 2006 as referred above. From

this it may inferred that the petitioner though is handicapped is capable

of undertaking the responsibilities required to be performed by a

Domestic Breeding Checker. This Court is of the view that a person who

has once been appointed on contractual basis does not acquire a vested

right for his appointment in future against a regular post that may fall

vacant. The regular posts that fall vacant have to be filled up by the

employer strictly as per recruitment rules. A person appointed on

contractual basis, if otherwise is eligible to be considered against a

regular post, may make an application for his such appointment to the

employer. The petitioner, if eligible for such appointment as per

recruitment rules, at best can only have a right for his consideration for

appointment along with other eligible candidates. However, so long the

respondent being the employer, does not fill up the vacant posts on

regular basis and continues making appointment on contractual basis in

exigencies of service, the respondent may consider the petitioner also

along with other eligible persons for his appointment on contractual basis

to the post of Domestic Breeding Checker till the time he is capable of

performing the duties required to be performed by a Domestic Breeding

Checker. If at any time, the respondent would find that the petitioner has

become so disabled that he is no longer in a position to take up the

responsibilities of a Domestic Breeding Checker, the same should be

specifically mentioned as a ground for rejecting his candidature for

contractual appointment in any particular year.

Mr. Sabharwal, learned counsel appearing on behalf of the

respondent has informed the Court that Domestic Breeding Checkers are

not appointment by the respondent on regular basis and there are no

recruitment rules framed for making appointment of Domestic Breeding

Checkers. According to Mr. Sabharwal, appointments of Domestic

Breeding Checkers are made by the respondent every year for a short

period of 4-6 months on contractual basis under a program for

eradication of malaria. If that is the position, then the respondent may

consider the petitioner for his appointment to the post of Domestic

Breeding Checker on contractual basis for the year 2008 on such terms as

the appointments are offered to other people. The petitioner may make

an application for his such appointment for the year 2008 to the

respondent within a period of 10 days from today and the respondent is

directed to take a decision on his application within a period of two weeks

from the receipt of the application from him without taking into account

the alleged disability from which he is suffering at present and review his

case for appointment on contractual basis in the succeeding years as per

its policy and rules to be framed from time to time.

In view of the above, this writ petition stands disposed of leaving

the parties to bear their own costs.

July 21, 2008                                    S.N.AGGARWAL
'a'                                                 [JUDGE]