Shri Dharamvir Singh vs The Management Of M/S Shri ...
2009 Latest Caselaw 3430 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 W.P.(C.) No. 11077/2009

%                 Date of Decision: 28th August, 2009

# SHRI DHARAMVIR SINGH                        ..... PETITIONER
!            Through: Mr. J.P. Dhanda, Advocate.

                                   VERSUS

$ THE MANAGEMENT OF M/S SHRI AURBINDO COLLEGE
                                        .....RESPONDENT

^            Through: Nemo

CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper may be allowed to see the judgment? YES

2. To be referred to the reporter or not?YES

3. Whether the judgment should be reported in the Digest?YES

S.N.AGGARWAL, J (ORAL) The workman, in this writ petition filed under Article 226 of the

Constitution, seeks to challenge an industrial award dated 29.04.2009 of

the Industrial Adjudicator granting no relief to him for alleged termination

of his services from the respondent college w.e.f. 01.06.1994.

2     Heard.

3     Briefly stated the facts of the case relevant for the disposal of this

writ petition are that the petitioner was intermittently appointed for fixed

term varying between 2-5 months on ad-hoc basis during the period

between 02.04.1990 to 31.05.1994. Some time he was appointed as

Peon and sometime as chowkidar. The last ad-hoc appointment of the

petitioner came to an end on 31.05.1994 where after it was not extended

any further. Aggrieved therefrom, the petitioner raised an industrial

dispute which was referred by the appropriate Government for

adjudication to the Labour Court. The Labour Court vide its impugned

award has decided the reference against the petitioner holding that the

petitioner being an ad-hoc appointee was not entitled for regularization

or for back wages. It is aggrieved from this impugned award of the

Industrial Adjudicator, the petitioner has filed the present writ petition

seeking directions against the respondent to reinstate him in service with

full back wages.

4 Mr. J.P. Dhanda, learned counsel appearing on behalf of the

petitioner has argued that the petitioner was appointed to the post of

Peon after due selection by the governing body of the respondent college

vide appointment letter dated 14.06.1991 and therefore according to

him, the appointment of the petitioner cannot be described as an ad-hoc

or a back door entry. It is true that the petitioner was appointed to the

post of Peon vide appointment letter dated 14.06.1991 after following the

due selection procedure but this appointment of the petitioner is of no

legal consequence because the said appointment was cancelled by the

respondent vide letter dated 28.08.1991 stating that the petitioner was

offered appointment vide letter dated 14.06.1991 inadvertently due to

factual mistake as previous incumbent was holding a lien on the said

post. Consequent to cancellation of the appointment by the respondent

vide its letter dated 28.08.1991, the petitioner stood relieved from the

services of the respondent w.e.f. 31.08.1991. Thereafter, he had

challenged the cancellation of his appointment by filing a suit for

permanent injunction against the respondent before the Civil Judge. This

suit for permanent injunction filed by the petitioner against the

respondent challenging cancellation of his appointment given to him vide

appointment letter dated 14.06.1991 was dismissed by the Civil Judge

vide judgment Ex. MW-1/9 & Ex. MW-1/10. Mr. Dhanda learned counsel

appearing on behalf of the petitioner does not dispute that the civil suit

filed by the petitioner for challenging the cancellation of his appointment

has been dismissed by the Civil Judge. Not only that, after the

appointment of the petitioner offered to him vide appointment letter

dated 14.06.1991 was canceled, the petitioner was thereafter appointed

by the respondent intermittently for a short period on ad-hoc basis on the

post of chowkidar and the petitioner had gladly accepted to work on

ad-hoc basis with the respondent after cancellation of his appointment on

ad-hoc basis intermittently till 31.05.1994. None of the ad-hoc

appointment of the petitioner was through a selection procedure or

against a vacant post. He was appointed to the post of chowkidar/peon

on ad-hoc basis from time to time depending on the need and exigencies

of work in the office of the respondent. The ad-hoc appointment of the

petitioner from time to time in respondent college was not made by the

competent authority competent to make selection against vacant post of

peon/chowkidar. The respondent college is governed by and required to

follow Delhi University Act as well as statutes, ordinances, rules framed

by the university for teaching as well as non-teaching staff. As per rules,

every post is required to be advertised in local newspapers and names

have also to called from the Employment Exchange. The candidates

against vacant post can be appointed only after going through the

selection process as prescribed under the rules of the University which

also include to follow the rules for reservation of post for SC, ST and other

backward classes. There are any number of judgments of the Hon'ble

Supreme Court in which it has been held that daily wagers and ad-hoc

appointees have no legal right to ask for their regularization in service as

their appointment on ad-hoc basis is contrary to the principles contained

in Articles 14 & 16 of the Constitution of India.

5 Mr. Dhanda learned counsel appearing on behalf of the petitioner

has also argued that since the petitioner had already completed 730 days

of service before his alleged termination w.e.f. 01.06.1994, he was

entitled for regularization in the service of the respondent in terms of the

decision of the Executive Committee contained in office order dated

24.06.1991 (Ex. WW-1/2). I have gone through this policy decision of the

respondent referred and relied upon by counsel for the petitioner but on

going through the same, I find that the petitioner cannot take any benefit

out of this policy decision of the respondent because he had not

completed 730 days service with the respondent on the cut off date

mentioned in the said circular dated 24.06.1991. As per this circular only

those ad-hoc appointees were entitled to be considered for regularization

who had completed 730 days of service in January, 1990. The petitioner

admittedly did not complete 730 days of service with the respondent in

January, 1990 and therefore he is not entitled to have any benefit of the

policy decision of the respondent contained in its office order dated

24.06.1991 referred and relied upon by the counsel for the petitioner. No

other argument has been advanced by the counsel for the petitioner.

6 For the foregoing reasons, I do not find any illegality or perversity in

the impugned award of the Industrial Adjudicator that may call for an

interference by this Court in exercise of its extraordinary discretionary

writ jurisdiction under Article 226 of the Constitution of India. This writ

petition therefore fails and is thereby dismissed in limine. However liberty

is granted to the petitioner to ask for wages from the respondent for the

period he had actually worked, if not already paid.

AUGUST 28, 2009                                        S.N.AGGARWAL, J
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