Devinder vs The Institute For The Physically ...
2010 Latest Caselaw 3022 Del

               *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C) 3700/1996

%                                               Date of decision: 1st July, 2010

DEVINDER                                                          ..... Petitioner
                              Through:      Mr. U. Srivastava, Advocate.

                                       Versus

THE INSTITUTE FOR THE PHYSICALLY HANDICAPPED
& ORS.                                       ........Respondents
                   Through: Mr. Rajiv Bansal, Advocate for R-1.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                          No

2.       To be referred to the reporter or not?                   No

3.       Whether the judgment should be reported                  No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner seeks a writ of mandamus commanding the respondent no.1

The Institute for the Physically Handicapped to reinstate him as a casual labourer

with all consequential benefits and back wages and further to confer on the

petitioner, the status of a temporary workman in accordance with the Office

Memorandum dated 10th September, 1993 of the Government of India, Ministry

of Personnel and a further direction for considering him for absorption as a

regular employee of the respondent Institute. It is the case of the petitioner that he

has worked as a casual labourer in the respondent Institute for a period of about

two years continuously without any sort of technical break at all and is entitled to

the benefit of the Office Memorandum aforesaid. The petitioner filed this writ

petition in the year 1996 relying on State of Haryana Vs. Piara Singh (1992) 4

SCC 118 and Gujarat Electricity Board Vs. Hind Mazdoor Sabha JT 1995 (4)

SC 264.

2. Upon notice of the writ petition being issued, the respondent Institute filed

a counter affidavit contending that under the Office Memorandum aforesaid, the

status of temporary would be granted to those casual labourers who were in

employment on the date of issue of the same and who had rendered continuous

service of at least one year i.e. for a period of 240 days or 206 days as per the

Industrial Disputes Act, 1947. It was contended that the petitioner who as per his

own averments joined the respondent Institute as a casual labourer after the date

of the said Office Memorandum is not entitled to the benefit thereof. It was

pleaded that the engagement of the petitioner was only seasonal and on contract

basis; that the petitioner at no stage worked for the respondent Institute for a

continuous period of 240 days or more.

3. The petitioner in the rejoinder of course controverted the averments in the

counter affidavit.

4. In view of the factual dispute aforesaid of the number of days for which

the petitioner has worked, the adjudication thereof in writ jurisdiction in any case

is not possible and the remedy, if any, of the petitioner would be before the

Industrial Adjudicator. However, since the writ petition has remained pending for

long, partly owing to dismissal for non prosecution at least on two occasions, and

in view of the subsequent development in law, it is also deemed necessary to

consider the other aspects.

5. The Constitution Bench of the Supreme Court in Secretary, State of

Karnataka Vs. Umadevi 2006 (4) SCC 1 has since overruled the judgment in

Piara Singh (supra) relied in the writ petition. It was held that the Court should

not issue directions for absorption, regularisation or permanent continuance of

temporary, contractual, casual daily wage or ad-hoc employees

appointed/recruited and even if continued for long. It was held that it is erroneous

for the Courts to consider equity merely for the handful of people who have

approached the Court with a claim, at the cost of the teeming millions seeking

employment and a fair opportunity for competing for employment. The claim of

the petitioner in the present case is in the teeth of the said judgment.

6. The counsel for the petitioner however, seeks to rely on U.P. State

Electricity Board Vs. Pooran Chandra Pandey (2007) 11 SCC 92. The Supreme

Court in that case notwithstanding the judgment in Umadevi (supra) directed

regularisation on the ground that the services of others similarly placed as the

workmen in that case had already been regularized. The Supreme Court observed

that Umadevi had not considered the aspect of Article 14 of the Constitution and

held the workmen in that case to be entitled to regularisation so as not to be

discriminated as against others. The workmen in that case had been working for

about 22 years.

7. The counsel for the petitioner to build the case on the basis of U.P. State

Electricity Board (supra), in the hearing on 17th December, 2002 contended that

one Harish Kumar Sharma was also engaged as a Waterman by the respondent

Institute on 30th August, 1994 i.e. after the engagement of petitioner and had been

absorbed by the respondent Institute in regular employment. On the said

submissions, the respondent Institute was directed to produce records and an

affidavit in that regard has been filed. The respondent Institute has contended that

the petitioner cannot be compared with Harish Kumar Sharma because Harish

Kumar Sharma was sponsored through Employment Exchange, is a matriculate

and was absorbed while still in ad-hoc employment. The counsel for the

petitioner has contended that the averment in the writ petition of the petitioner

being sponsored through the Employment Exchange has not been controverted in

the counter affidavit. However, no document in this regard has been produced.

The pleas with respect to Harish Kumar Sharma did not find mention in the writ

petition. There are no complete pleadings in that respect. A contentious plea of

discrimination cannot be dealt with in such summary fashion as is sought to be

urged. The petitioner would be well advised to take appropriate remedies with

respect to that also.

8. Be that as it may, the Supreme Court subsequently in Official Liquidator

Vs. Dayanand (2008) 10 SCC 1 after noticing that certain judgments including

that in U.P. State Electricity Board had attempted to dilute Umadevi, held that

the same is not permissible. Thus even if a case of discrimination were to be

made out, the petitioner cannot be granted relief as sought. The only distinction

made out in Maharashtra State Road Transport Corporation Vs. Casteribe

Rajya P. Karamchari Sangathan (2009) 8 SCC 556 is with respect to the powers

of the Industrial Adjudicator under the ID Act. Prior to Umadevi the Courts were

issuing directions for regularisation of temporary/ad-hoc/daily wage employees.

If arguments as forming the basis in U.P. State Electricity Board were to prevail,

then notwithstanding Umadevi the Courts would continue to grant relief of

regularisation owing to another ad-hoc/temporary employee in the past having

been granted the same relief. This cannot be permitted.

9. As far as reliance on the Office Memorandum dated 10th September, 1993

(supra) is concerned, the same merely provides for grant of temporary status to

casual employees "presently employed" who had rendered one year of

continuous service. The language of the Office Memorandum clearly suggests

that the benefit thereof was to be extended or given only to those who stood

employed as on 10th September, 1993 and which the petitioner was admittedly

not. Such absorption as a temporary employee was to be under the Casual

Labourers (Grant of Temporary Status and Regularisation) Scheme of

Government of India, 1993. The said Scheme also talks of grant of such status to

those in employment on the date of issuance of the Office Memorandum. The

grant of temporary status as per the Scheme also does not vest a right of

absorption/regularisation. The Scheme itself provides that the temporary status

will not ensure a permanent status "unless selected through regular selection

process for Group-D posts". In the present case, there is a factual dispute as to

whether the petitioner had worked continuously for at least 240 days or not and

even if that were to be established, the entitlement under the Scheme also is only

to a temporary status. The petitioner on the basis of the said Office Memorandum

also, is not entitled to any relief.

10. The writ petition, therefore, fails and is dismissed, however with liberty to

the petitioner to pursue such other remedies as may be available to him in law.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 1st July, 2010 bs