Jitendra vs National Commission For ...
2010 Latest Caselaw 2333 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P.(C) 4329/1999

%                                                Date of decision: 3rd May, 2010

JITENDRA                                                          ..... Petitioner
                             Through:      Mr. K.C. Mittal, Ms. Ruchika Mittal and Mr.
                                           Sujeet Kumar Singh, Advocates.

                                        Versus

NATIONAL COMMISSION FOR SCHEDULED
CASTES & SCHEDULED TRIBES                                          ..... Respondent
                             Through:      Mr. Jatan Singh and Mr. Sudeep Sudan,
                                           Advocates for UOI.


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 has sought the relief of regularization in the post of

Lower Division Clerk/Hindi Typist in the respondent Commission. It is the

case of the petitioner that he has been working with the respondent

Commission since 8th November, 1993 (i.e. since six years prior to the

institution of this petition) on daily wage basis; that he was recruited as a

sponsored candidate through Employment Exchange; that the respondent

Commission had taken a typing test of the petitioner and declared him

successful in the same and appointed him as a Hindi Typist. It is further his

case that the nature of the work performed by him is in the form of a regular

duty; that he has before the filing of the petition worked for more than 200

days with the respondent Commission. He contends that if at this belated

stage his services are terminated, he is ineligible to join any other

Government department.

2. The documents filed by the petitioner show unequivocally that the

appointment of the petitioner was on daily wage basis and expressly made

terminable at any time without assigning any reason and the petitioner was

also notified that he will have no claim for regular appointment in the

respondent Commission.

3. In the aforesaid facts, at the outset only, it was put to the counsel for

the petitioner, whether the claim in the present petition was not barred by

dicta of the Supreme Court in Secretary, State of Karnataka Vs. Umadevi

AIR 2006 SC 1806. Constitution Bench of the Supreme Court in the said

judgment has held that it is not proper for the courts in the exercise of

jurisdiction under Articles 32 and 226 of the Constitution of India, to

regularize, based on long period of their service or engagement. It was held

that the same would tantamount to perpetuating an illegality. The

Constitution Bench further held that unless the appointment is in terms of

the relevant rules, the same would not confer any right on the appointee;

temporary employee was held to be not entitled to maintain a claim to be

made permanent merely because he has continued for a time beyond the

term of his appointment; it was held that due to long service an ad hoc

employee does not acquire any right to permanent appointment.

4. Confronted with the aforesaid, the counsel for the petitioner relies on

Punjab State Warehousing Corporation Vs. Manmohan Singh (2007) 9

SCC 337, Government of A.P. Vs. K. Brahmanandam (2008) 5 SCC 241.

The Supreme Court in Punjab State Warehousing Corporation (supra) has

followed the judgment in Umadevi (supra). However, while narrating facts

of that case in the judgment it is stated that prior to appointment neither an

advertisement was issued nor even the Employment Exchange was notified

in regard to the then existing vacancies. Relying on the same, it is

contended that since the petitioner had been sponsored through the

Employment Exchange, his appointment was not ad hoc or temporary but in

the regular post and the judgment in Umadevi does not apply. In

Brahmanandam (supra) the recruitment rules mandated recruitment by

advertisement in two newspapers having large circulation and the

Employment Exchange was also to be notified regarding the vacancies.

5. The respondent Commission in the present case has filed a counter

affidavit in which it has inter alia been stated that though the test of

proficiency of the petitioner in typing was taken before his temporary

employment on daily wages but it is to be judged by the Staff Selection

Commission under Department of Personnel and Training, Government of

India which is the competent authority to recommend qualified candidates

for the post of LDC belonging to Central Secretariat Clerical Services Cadre

in Central Government and its attached/subordinate offices, as to whether

the petitioner is a qualified typist or not. It is further pleaded that the

petitioner has not qualified written and typing test conducted by the Staff

Selection Commission for being appointed as LDC on regular basis. It is

further pleaded that the respondent Commission has been constituted under

the provisions of Article 338 of the Constitution of India and functioning

like a Ministry or a Department of the Government of India insofar as the

administrative matters are concerned; there is no nomenclature as 'Typist'

in the respondent Commission; that the regular post of LDC exists but it

belongs to Central Secretariat Clerical Service Cadre of Ministry of Social

Justice and Empowerment; regular appointments are made either by direct

recruitment through Staff Selection Commission by open advertisement or

by promotion of educationally qualified employees who qualify the

departmental test.

6. From the counter affidavit of the respondent Commission it is borne

out that the recruitment procedure in the respondent Commission is through

the Staff Selection Commission or through promotion. There is no

procedure for recruitment by notifying the vacancies to the Employment

Exchange. The observation in Punjab State Warehousing Corporation is

not such which can be held to make filling up of vacancies through

Employment Exchange a regular form of appointment in the respondent

Commission. The judgment in Brahmanandam is also of no help to the

petitioner inasmuch as in that case the prescribed recruitment procedure

included notifying the Employment Exchange. The same is not the position

here.

7. Unless otherwise prescribed in the recruitment rules, procedure of

filling up of vacancies by notifying the Employment Exchange does not

appear to be a normal mode. The Division Bench of this court in its

judgment dated 26th April, 2007 in LPA 1620/2006 titled NCT of Delhi Vs.

Anubha Pant held an appointment without issuing advertisements inviting

applications to be irregular appointment. Merely because the respondent

Commission, in order to fulfill its temporary requirements called for names

from the Employment Exchange, it would not make the petitioner a regular

employee of the respondent Commission.

8. There is another aspect of the matter. As aforesaid, from the

documents filed by the petitioner it is abundantly clear that the petitioner had

all the time known that his appointment was ad hoc or on daily wage,

temporary and terminable at any time and notwithstanding the petitioner

having been sponsored by the Employment Exchange, his employment was

not a regular appointment.

9. This court while issuing notice of the petition had directed the

respondent Commission to maintain status quo regarding the service of the

petitioner. The said order has remained in force, now for the last about 11

years. The petitioner has now been in employment of respondent

Commission for nearly 17 years/18 years. Though there is merit in the

contention of the petitioner that the petitioner, after such a long lapse of

time, is now not left eligible for absorption elsewhere or in any other

Government department but this court is bound by the rule of stare decisis.

The Constitution Bench of the Supreme Court having laid down the law in

Umadevi, this court on sympathetic grounds cannot go contrary to the said

judgment. All that this court can observe is that since the petitioner has

worked with respondent Commission now for about 17-18 years, the

respondent Commission ought to consider the case of the petitioner

sympathetically. The petition is therefore dismissed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 3rd May, 2010 M