Kiran Bala & Others vs Union Of India & Others
2010 Latest Caselaw 2639 Del

             .*IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P.(C) 2003/1998

%                                              Date of decision: 18th May, 2010

KIRAN BALA & OTHERS                            ..... Petitioners
                 Through:Mr. Anuj Aggarwal, Advocate.

                                      Versus

UNION OF INDIA & OTHERS                        ..... Respondents
                   Through: Mr. Lalit Bhasin, Advocate with Ms.
                            Ratna Dhingra and Ms. Shreya Sharma,
                            Advocates for R-2&3.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.      Whether reporters of Local papers 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                  Yes
        in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The six petitioners, by this writ petition seek a direction to the respondents

to regularize the services of the petitioners and to pay all consequential benefits

to the petitioners. The petitioners are the widows of six employees of the

respondent no.3 Hotel Corporation of India Ltd. (hereinafter referred to as

HCIL). It is their case that consequent to the premature demise of their

respective husbands, the respondent no.3 HCIL on compassionate grounds

appointed them on temporary basis; however, instead of regularizing their

services, they, from time to time, are being appointed for a period of 40 days;

claiming that as per the Memorandum dated 30th June, 1987 of the Government

of India, they are entitled to compassionate appointment, they filed this petition

as aforesaid for the relief of regularization. M/s Air India, of which HCIL is a

subsidiary has been impleaded as respondent no.2.

2. This Court vide order dated 29th April, 1998 directed status quo as of then

to be maintained in respect of the services of the petitioners. Rule was issued in

the petition on 1st September, 2000 and the interim order made absolute till the

pendency of the writ petition. It is informed that in view of the interim orders the

petitioners are continuing to work on renewal of their appointments for 40 days

at a time. On 23rd March, 2010 the counsel for the petitioners stated that the

petitioners are claiming the relief of regularization as employees of HCIL only

and not of Air India. The writ petition was dismissed for non prosecution on 29 th

September, 2008. CMs.No. 15777 and 15778/2008 for restoration were filed.

However, the said applications were also dismissed in default on 12th October,

2009. CMs.No.4034-4035/2010 have again been filed for restoration of the writ

petition. The counsel for the petitioners was informed on 17th May, 2010 that

the applications shall be considered only when the counsels are ready to address

on the merits of the writ petition also. The counsels have been heard on merits of

the writ petition. Accordingly, for the reasons stated, the applications for

restoration are allowed. Delay in applying for restoration of the writ petition is

condoned and the writ petition is restored to its original number.

3. It was at the outset itself inquired from the counsel for the petitioners as to

how, in the face of the Constitution Bench judgment in State of Karnataka Vs.

Uma Devi (2006) 4 SCC 1, this writ petition claiming relief of regularization of

the petitioners in employment is maintainable. The counsel for the petitioners

contends that present is not a case of regularization simplicitor; each of the

petitioners on the demise of their respective husbands was entitled to

compassionate appointment; such compassionate appointment ought to have

been as a regular employee; however instead the petitioners were appointed on

temporary basis and inspite of having worked for long, their services have not

been regularized. It is urged that the respondents by keeping the petitioners as

temporary employees for years together are indulging in unfair labour practice

entitling the petitioners to the relief claimed.

4. Per contra, the counsel for the respondents Air India and HCIL has

contended that the Memorandum dated 30th June, 1987 of the Government of

India to which reference is made in the writ petition is not applicable to Air India

or to HCIL and is applicable only to employees of the Government and/or

Government Department; It has no application to the Public Sector Undertakings

as Air India and HCIL are. It is further contended that neither Air India nor

HCIL have any schemes or rules for compassionate appointment and the

petitioners were employed temporarily on compassionate grounds to tide over the

crisis in their respective families and there was/is no obligation of Air India or

HCIL to so take the petitioners in regular service on compassionate grounds. It is

further contended that the petitioners are not entitled to the discretionary reliefs

for the reason of having indulged in falsehood. It is contended that the

petitioners have falsely stated that they have been working with the respondent

since 1991 when the fact of the matter is that the petitioners had been working

with the respondent for a period of one/two years only prior to the institution of

the petition and none of the petitioners had worked for even 240 days in 12

consecutive months preceding the institution of the petition. It is stated that

thereafter the petitioners are continuing under the orders of the court only and to

the great prejudice to public monies. Besides Uma Devi (supra) reliance is placed

on Official Liquidator Vs. Dayanand (2008) 10 SCC 1 where the Supreme

Court has while reiterating the law as laid down in Uma Devi held that the said

judgment of the Constitution Bench cannot be permitted to be diluted.

5. The counsel for the petitioners has not controverted that none of the

petitioners had worked for the respondents since the year 1991 as stated in the

writ petition. I however find that the writ petition cannot be dismissed solely for

the said reason in as much as the averment to the said effect appears to be a case

of an erroneous statement rather than intentional or intended to derive any benefit

since the said error in quiet obvious.

6. The counsel for the petitioners has also not been able to show as to how

the Memorandum dated 30th June, 1987 of the Government of India to which

reference has been made in the writ petition, applies to the respondents. The

petitioners have in fact not even placed the full Memorandum before this court

and only reproduced portions thereof. The respondents Air India and HCIL are

companies and though fully owned by the Government cannot be said to be

Government or a department thereof so as to make the instructions in the

Memorandum aforesaid of the Government of India applicable to them. The

terms and conditions of services in the respondent Air India and HCIL are

governed by their respective rules. The instructions of the Government of India

in the Memorandum aforesaid cannot become applicable to respondents Air India

and HCIL without being incorporated in the rules of service. The petitioners have

not been able to establish that under the said rules there is any provision for

compassionate appointment.

7. The Supreme Court in Umesh Kumar Nagpal Vs. State of Haryana

(1994) 4 SCC 138 has held that the provisions for compassionate appointment

have necessarily to be made by the rules or by the executive instructions issued

by the government or the public authority concerned; employment cannot be

offered by an individual functionary on an ad hoc basis. In the present case, as

aforesaid, the instructions of the Government of India relied on by the petitioners

are not found to be applicable to the respondents Air India/HCIL and the rules of

respondents Air India and HCIL are not shown to contain any provisions for

compassionate appointment. The Supreme Court again in General Manager,

Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205 held that executive

instructions even if any qua compassionate appointment could not prevail over

the statutory rules. In Indian Drugs and Pharmaceuticals Ltd. Vs. Workman,

Indian Drugs and Pharmaceuticals Ltd (2007)1 SCC 408 also the respondents

were appointed on purely casual and daily rate basis for reasons that they were

dependents of employees dying in harness. Subsequently, the Union started

pressing for regularization of such employees; on reference, the Labour Court

held that for the reason of having continued for a long time, they were entitled to

regularization; the High Court directed that such employees though not entitled

to regularization would continue in service till their superannuation and be paid

wages like regular employees. The Supreme Court however held that such

persons had no right to the posts and rules of recruitment cannot be relaxed and

the Court/Tribunal cannot direct regularization of temporary appointees de hors

the rules nor can it direct continuation of service of a temporary employee. The

judgment of the High Court was thus set aside.

8. Thus the relief of regularization sought by the petitioners cannot be

granted. Not only have the petitioners been unable to show any right to

compassionate appointment under any rules etc but even if it were to be so, it is

not for this court in the writ jurisdiction to determine whether the petitioners are

entitled to compassionate appointment or not. The Supreme Court in I.G.

(Karmik) and Ors. Vs. Prahalad Mani Tripathi (2007) 6 SCC 162 has held that

appointment on compassionate ground is given only for meeting immediate

hardship faced by family of the deceased due to death of bread earner; when

appointment is made on compassionate ground it should be kept confined only to

the purpose it seeks to achieve. In that case it was held that after accepting the

appointment in a lower post the dependent of the deceased could not be

permitted to turn around and contend that he was entitled for a higher post

although not eligible therefor. Similarly in the present case, notwithstanding the

absence of any rule for compassionate appointment, the petitioners were given

compassionate appointment on an ad hoc / temporary basis. The same however

does not entitle the petitioners to regular appointment on compassionate grounds.

Moreover, more than 20 years have since passed. There is no element of crisis or

tiding over today.

9. As for the argument of the counsel for the petitioners of unfair labour

practice, neither is there any sufficient material for the same before this court

nor does a writ jurisdiction permit this court to hold an inquiry or give a finding

in that regard. All that can be said is, while holding the present writ petition to

be not maintainable and dismissing the same, the petitioners shall

notwithstanding the same have liberty to, if so entitled, approach an appropriate

fora for any relief for which they may claim to be entitled. The petition is

dismissed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE)

18th May, 2010/M