Government Of National Capital ... vs Delhi Development Horticulture ...
2009 Latest Caselaw 3910 Del

*    HIGH COURT OF DELHI: NEW DELHI


+    Writ Petition (Civil) No. 4660 of 2008


%                                       Decided on: September 23, 2009



Government of National Capital Territory of Delhi      ..... Petitioner

                                 Through:      Mrs.Avnish Ahlawat, Adv.


                      Versus


Delhi Development Horticulture Employees Union
Through its Secretary Shri Nand Kishore
R/o Sanjay Colony, Bhati Mines
Near Mehrauli
New Delhi-110074.                                       ..... Respondent

                                 Through: Mr. K.M.M. Khan, Adv.

Coram:

HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE A.K. PATHAK

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                    Yes

2. To be referred to Reporter or not?                                 Yes

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



WP (C) No.4660/2008                                     Page 1 of 9
 MADAN B. LOKUR, J. (ORAL)

CM No.10572/2009 (for preponement)

Dismissed.

WP (C) No. 4660/2008

Rule D.B.

CM Nos. 8985/2008 (Stay) & 2223/2009 (Vacation of Stay)

The Respondents (hereinafter referred to as employees) had

filed original applications before the Central Administrative Tribunal

praying, inter alia, for a direction to the Petitioner (State) to grant age

relaxation for employing them on the available Group „D‟ posts under

its various establishments and units/branches, etc.

2. The necessary and relevant facts are that writ petitions came

to be filed in the Supreme Court in respect of some daily wage

employees claiming absorption as regular employees in the

Development Department of the Delhi Administration and for an

injunction prohibiting the termination of their services and difference in

wages paid to them and those paid to the regular employees. The

Petitioners in the Supreme Court were employees of the District Rural

Development Agency (DRDA) and the petitions were filed by a union of

employees called the Delhi Development Horticulture Employees Union

(Respondent No.1 before us).

3. The writ petitions came to be disposed of by the Supreme

Court by an order dated 4th February, 1992 reported as Delhi

Development Horticulture Employees' Union v. Delhi Administration,

Delhi and others, (1992) 4 SCC 99.

4. In the operative portion of the order, the Supreme Court held

as follows: -

"In the circumstances, it is not possible to accede to the request of the petitioners that the respondents be directed to regulairse them. The most that can be done for them is to direct the respondent-Delhi Administration to keep them on a panel and if they are registered with the Employment Exchange and are qualified to be appointed on the relevant posts, give them a preference in employment whenever there occurs a vacancy in the regular posts, which direction we give hereby."

5. It appears that despite the decision of the Supreme Court, the

employees were not considered for employment. Therefore, they filed a

contempt petition which came to be disposed of by the Supreme Court

by an order dated 8th September, 1995 in which it was directed that the

employees shall approach the Development Commissioner for such

relief as they seek in the matter. The Development Commissioner was

directed to look into the issues raised and pass an order in accordance

with law within a period of six weeks. The contempt petition was

disposed of on this basis.

6. It appears that notwithstanding the orders passed by the

Supreme Court, many employees did not get any relief from the State.

Accordingly, they preferred an original application in the Tribunal,

being OA No. 1431/1999. This OA was disposed of by the Tribunal by

an order dated 31st May, 2000 in which it was held that the only

direction that could be given was to call upon the State to take

appropriate steps to ensure that the directions given by the Supreme

Court are complied with in letter and spirit and the persons taken on the

panel are duly considered by the Respondents for appointment under

Class-IV vacancies subject to their availability as and when such a

vacancy occurs, as per the rules and instructions on the subject.

7. Other employees filed another original application in the

Tribunal being OA No. 2686/2000 and this was disposed of by an order

dated 27th November, 2001 on the same lines as the earlier original

application with the additional direction that the employees should

cooperate with the State and furnish all the relevant service particulars

required.

8. The matter should have ended there but it did not. Some

other employees approached the Industrial Tribunal for reinstatement.

In one such matter being ID No. 1228/1990, the Industrial Tribunal in

its order dated 1st May, 1996 came to the conclusion that since the

employees had put in more than 240 days service, they are deemed to be

regularized and, therefore, the termination of their services was held to

be illegal.

9. The decision rendered by the Industrial Tribunal was

challenged by way of a writ petition in this Court being Civil Writ No.

208/1997. This writ petition was disposed of by one of us (Madan B.

Lokur, J) on 16th September, 2002 following the decision of the

Supreme Court. It was noted therein that learned counsel for the

employees had stated that in view of the fact that DRDA has since

closed down, he would be satisfied if the direction given by the Supreme

Court in the earlier decision is given effect to in that case also. In view

of this, a direction was given to keep the names of the employees on a

panel and if they are registered with the employment exchange and are

qualified to be appointed against some other posts, they may be

considered as and when a vacancy arises. It was noted that the

employees should be given preference in employment.

10. Much later, a miscellaneous application being CM No.

4862/2003 was filed in the disposed of writ petition. While deciding

that application on 13th September, 2004 the statement of learned

counsel for the State was recorded to the effect that the case of the

employees would be considered for employment since they were

registered with the employment exchange. However, it was added in the

order that the employees would be entitled to claim benefit of the period

that they have worked with the State for the purposes of age relaxation.

11. It is submitted before us by learned counsel for the State that

the question of age relaxation was never before the Supreme Court or

before the Industrial Tribunal or in the writ petition in this Court and,

therefore, there was no occasion to grant age relaxation in CM No.

4862/2003 decided on 13th September, 2004. Prima facie, we are in

agreement with what is stated by learned counsel. It does appear that

the issue of age relaxation was not raised at any point of time and if at

all it was raised, no relaxation was given even by the Supreme Court. It

does appear, therefore, that while passing order on 13th September, 2004

the direction given by one of us (Madan B. Lokur, J.) had gone beyond

what was postulated by the Supreme Court.

12. Learned counsel for the employees submits that in Smt.

Pushpa Sharma v. Union of India, CW No. 4111/1991 decided on 16 th

March, 1993 a Division Bench of this Court had also taken the view

that the age bar would not stand in the way of the employees being

recruited. We find that in Smt. Pushpa Sharma the employees were

temporary employees and were not casual labour as in the present case.

In any event, there is again no discussion for granting age relaxation

which, as we have already noted above, was not even granted by the

Supreme Court.

13. The employees re-agitated the same issue in the Tribunal.

One more original application came to be filed in the Tribunal being OA

No. 928/2005 which was decided on 19 th September, 2006. In that case

also, the Tribunal noted the orders passed by the Supreme Court and

made it clear that the qualification of age as prescribed by the

Recruitment Rules would be applicable in so far as the employees are

concerned.

14. It is in this background that some more original applications

(out of which the impugned order arises) came to be filed before the

Tribunal being OA Nos. 1705/2005, 800/2006 and 95/2006. These

original applications came to be decided in favour of the employees in

respect of age relaxation by the Tribunal by an order dated 17th

December, 2007.

15. While deciding this latest group of original applications, the

Tribunal noted the view taken by this Court in CM No. 4682/2003

decided on 13th September, 2004 and decided to follow that view while

giving a go-by to the view expressed by the Tribunal in several other

cases.

16. As we have noted above, the view expressed in CM No.

4862/2003 decided on 13th September, 2004 is not necessarily correct

because it goes beyond the relief that was granted even by the Supreme

Court in Delhi Development Horticulture Employees' Union. This

being the position, in our view, the Tribunal was prima facie in error in

granting age relaxation to the employees for consideration for

appointment against vacancies that may arise.

17. In our opinion, the direction given by the Supreme Court is

binding on all of us. If the Supreme Court did not grant age relaxation,

it is with good reason. Prima facie, we cannot (or at least should not)

travel beyond what has been granted by the Supreme Court.

18. Under the circumstances, since the Tribunal has given more

to the employees than what was given by the Supreme Court, there is no

option but to stay the operation of the impugned order dated 17 th

December, 2007. Accordingly, the interim order passed on 2nd July,

2008 is made absolute till the disposal of the writ petition and the

application for vacation of stay is dismissed.

19. Both the CMs are disposed of.

MADAN B. LOKUR, J

A.K. PATHAK, J SEPTEMBER 23, 2009 kapil