Ramesh Chand vs The Registrar, Delhi High Court & ...
2010 Latest Caselaw 2696 Del

               *IN THE HIGH COURT OF DELHI AT NEW DELHI
5
                                W.P.(C) 4207/2004
%
                                                  Date of decision: 20th May, 2010
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         RAMESH CHAND                                            ..... Petitioner
                              Through:      Mr. Rishikesh & Mr. Rajeev Dewan,
                                            Advocates.
                                       Versus

         THE REGISTRAR, DELHI HIGH COURT & ANR. ...Respondents
                        Through:  Mr. Krishanu Adhikary, Advocate.


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 petitioner instituted this petition seeking direction for his

regularization and for mandamus for payment to him of regular scale of pay with

all further allowances and benefits, from the date of his initial appointment. It is

the case of the petitioner that he was appointed as a daily wager against vacant

post of a Sweeper in the Delhi High Court Departmental Canteen, since the year

1987; that his services were discontinued on 29th April, 1990; he was again

appointed w.e.f. 4th February, 1995 and given the status of a temporary employee

w.e.f. 1st November, 2000. The petitioner contends that he has been throughout

representing for regularization but to no avail; that his junior colleagues have

been regularized but he was being discriminated against; that the breaks in his

service are artificial; that he has been performing equal duties/work as his other

colleagues and is entitled to equal pay.

2. The Secretary of the Delhi High Court Departmental Canteen has filed a

counter affidavit contending that the conditions of service of the petitioner are

governed by the Departmental Canteen Employees (Recruitment and Conditions

of Service) Rules, 1980. It is stated that the petitioner was appointed as a

temporary Sweeper w.e.f. 1st August, 1987 and his probation was extended from

time to time till 31st May, 1991; however, the Chairman of the Canteen

Committee in exercise of power under Rule 8(4) of the Rules aforesaid

terminated the services of the petitioner with immediate effect during the period

of probation itself; however, the petitioner was again put on probation w.e.f. 1st

June, 1990 and continued on probation till 31st May, 1991 when his services

were again terminated under the Rules aforesaid. It is pleaded that the petitioner

was unable to improve his work and conduct during the probation period. It is

further admitted that on 31st January, 1995 the petitioner was again appointed on

daily wages on sympathetic grounds and was appointed as a temporary Sweeper

on 1st November, 2000 and put on probation. The respondent in its counter

affidavit has stated that there can be no question of discrimination against the

petitioner or the occasion for invoking the principle of 'equal pay for equal work'

inasmuch as the petitioner is the only Sweeper in the Departmental Canteen and

there is only one post of Sweeper in the Departmental Canteen.

3. Notice was issued to the respondent to show cause as to why rule-nisi be

not issued. The matter was adjourned from time to time. On 22nd January, 2010

the counsel for the petitioner informed that the petitioner had been regularized

w.e.f. 1st November, 2000 but according to him he was entitled for regularization

from January, 1995. Thus the only question left for determination in this petition

is as to whether the petitioner is entitled to be regularized w.e.f. 31 st January,

1995 since when he has been working on daily wages or is entitled to be

regularized only from the date when he was appointed as a temporary employee.

4. The Rules provide for temporary appointment; they do not provide for any

appointment on daily wages. Though the petitioner had worked for the

respondent from 1st July, 1987 till 31st May, 1991 also and he was continued on

daily wages thereafter also from 31st January, 1995 till 1st November, 2000 but

the said action of the respondent is not under challenge. The only question for

determination is, if an employee is initially appointed on daily wages, and his

services are thereafter regularized, whether his regularization is to date back to

the date of initial employment and whether the employee has a right for

regularization from the date of initial appointment.

5. The petitioner has in the petition itself relied on:-

(i) Order dated 22nd September, 2000 of a Single Judge of this Court

in C.W.P. No.1799/1987 titled B.K. Basnotra Vs. The Hon'ble the Chief Justice

where an employee holding the post of Senior Translator and who had worked as

a Court Master for 16 years though had failed to qualify for the said post was

allowed the salary/emoluments of a Court Master from the date since when he

was made to work as a Court Master.

(ii) Harish Kumar Vs. Registrar, Delhi High Court 41 (1990) DLT

130, a case under the Delhi High Court Establishment (Appointment and

Conditions of Service) Rules, 1972 where the termination under the CCS

(Temporary Service) Rules, 1965 was quashed, finding that the petitioner had

been working for 15 years with artificial breaks. While holding so a Single Judge

of this Court held that there were no special qualifications prescribed for

appointment to the post of a Sweeper and there would be automatic confirmation

after a long period.

(iii) Dhirendra Chamoli Vs. State of U.P. (1986) 1 SCC 637 where ad-

hoc employees were allowed equal salary as regular employees on the principle

of 'equal pay for equal work'.

(iv) Surinder Singh Vs. The Engineer in Chief, C.P.W.D. AIR 1986

SC 584 laying down that State and State Undertakings are expected to function

like Model Employers.

(v) Daily Rated Casual Labour Employed under P & T Department

through Bhartiya Dak Tar Mazdoor Manch Vs. Union of India (1988) 1 SCC

122 also laying down that the Government should act as a model employer.

(vi) Narender Chadha Vs. Union of India AIR 1986 SC 638 where

persons promoted in violation of Rules but continuing on the promoted post for

over 15 years were not permitted to be reverted and it was further held that

Class-IV employees such as the Sweepers have a claim to the post and cannot be

thrown out under the CCS (Temporary Service) Rules, 1965.

(vii) Rattan Lal Vs. State of Haryana AIR 1987 SC 478 deprecating the

practice of continuing in employment with breaks and deprivation of service

benefits.

(viii) Kuldeep Chand Sharma Vs. Delhi Administration 1978 (2) SLR

379 where a Division Bench of this Court held that though ad-hoc appointment

does not by itself confer any right on the appointee for regular appointment,

however, on regular appointment, the date of regular appointment would relate

back to the date of ad-hoc appointment. However, this was a case of promotion

and not of regularization of service.

(ix) Suraj Bhan Vs. Union of India 2006 (92) DRJ 180 where in a case

of inter se seniority, a Division Bench of this Court held that the same has to be

computed from the date of initial appointment.

(x) B.D. Verma Vs. Union of India (1997) 10 SCC 433, also a case of

inter se seniority where on the ground of discrimination the petitioners were also

given the benefit of computation of period of ad-hoc appointment as was given

under the Rules to another set of employees.

(xi) R.S. Ajara Vs. State of Gujarat (1997) 3 SCC 641 also a case of

inter se seniority.

(xii) Dr. (Captain) Akhouri Ramesh Chandra Sinha Vs. State of Bihar

(1996) 2 SCC 20 laying down that on satisfactory completion of probation,

confirmation dates back to the initial appointment.

(xiii) G.P. Doval Vs. Chief Secretary, Government of U.P. AIR 1984

SC 1527 where officiating service was held to be entitled to be included in

drawing up inter se seniority.

(xiv) The Direct Recruit Class-II Engineering Officers' Association

Vs. State of Maharashtra AIR 1990 SC 1607 laying that once an incumbent is

appointed to a post according to a rule, his seniority has to be counted from the

date of his appointment and not according to the date of his confirmation.

(xv) Prem Chand Vs. MCD 2000 I AD (DELHI) 859 a case of

preparation of seniority list for the purpose of absorption.

(xvi) Sushil Kumar Yadunath Jha Vs. Union of India AIR 1986 SC

1636 where a teacher was first appointed temporarily, his services were

terminated and thereafter given fresh appointment, was held entitled to the

benefit of continuous service notwithstanding a term to the contrary in the

appointment letter.

(xvii) Lieutenant Governor of Delhi Vs Constable Dharmpal [1990] 3

SCR 93 which was a case of enforcement of an order and not applicable to the

present controversy.

(xviii) Inder Pal Yadav Vs. Union of India (1985) 2 SCC 648 where,

under a scheme for absorption of casual workers, the Supreme Court directed the

absorption to be in order of length of continuous service and on the principle of

'last come first go'.

(xix) Anil Kumar Gupta Vs. State of Bihar 1996 (7) SCC 83 where

termination of employees was held illegal and the period between termination

and reinstatement was directed to be counted as period in service.

6. From the aforesaid, it will be clear that none of the judgments aforesaid

deal with the matter in controversy. Moreover, all the aforesaid judgments are

prior to the judgment of the Constitution Bench of the Supreme Court in

Secretary, State of Karnataka Vs. Umadevi AIR 2006 SC 1806 laying down that

appointment de hors due process of selection confers no right in the appointee

and the right of the Court would not extend to directing regularization to be

treated as permanence in service; it was further laid down that the fact that an

employee has been continued for long would not entitle the Court to direct his

regularization.

7. The counsel for the respondent besides referring to Umadevi (supra) has

also handed over the judgment in Steel Authority of India Ltd. Vs. State of West

Bengal AIR 2009 SC 120. However, the said judgment is also not found

applicable to the facts of the present case.

8. I find that the Supreme Court in Registrar General of India Vs. V.

Thippa Setty 1998 (8) SCC 690 has held that if the ad-hoc service is regularized

from the back date, it will disturb the seniority of regularly appointed employees

in the cadre and, therefore, ordinarily the regularization must take effect

prospectively and not retrospectively. It was further held that ad-hoc appointees,

casual labour and daily rated persons are not subject to strict discipline of service

and their attendance is very often not regular and at times they do not even meet

the qualification for appointment since they are taken on ad-hoc basis; these

deficiencies are overlooked by way of granting of relaxation and, therefore care

must be taken to see that they do not upset the seniority of regular employees. It

was reiterated that regularization must be prospective. The said judgment was

followed in Union of India Vs. Sheela Rani 2006 (13) SCALE 394 where

reference in this regard was also made to State of Haryana Vs. Jasmer Singh

(1996) 11 SCC 77. This Court followed the same view in Sudheer Srivastava

Vs. Director AIIMS 105 (2003) DLT 74 and in DDA Vahan Chalak

Karamchari Union Vs. DDA MANU/DE/0095/2005 where the period during

which the petitioners had discharged duties on work charged basis was held to be

not entitled to be counted for seniority in regular appointment. The principle of

estoppel was also invoked in DDA Vahan Chalak Karamchari Union (supra).

9. In Excise Commissioner, Karnataka Vs. V. Sreekanta AIR 1993 SC

1564, though a case of inter se seniority, it was also held that seniority cannot be

claimed from the date of initial appointment on ad-hoc basis and can be claimed

only from the date of regularization.

10. In K. Madalaimuthu Vs. State of Tamil Nadu AIR 2006 SC 2662, also a

case of inter se seniority, it was held that a person, who is appointed temporarily

to discharge the functions without recourse to the Recruitment Rules cannot be

said to be in service till such time his appointment is regularized.

11. The counsel for the petitioner has contended that unless the service of the

petitioner is counted w.e.f. 31st January, 1995 the petitioner may not be entitled

to any pensionary benefits. Though no such claim has been made in affidavit but

in view of the legal position aforesaid, no indulgence can be shown to the

petitioner. The relief of regularization in employment cannot be granted in view

of the judgment in Umadevi. The counsel for the petitioner contends that since

the petitioner has already been regularized, Umadevi will not apply and the

question is only of the date from which regularization is to take place. However,

the judgment in Umadevi cannot be permitted to be diluted in this fashion as has

been held in Official Liquidator Vs. Dayanand (2008) 10 SCC 1.

12. The petitioner is thus not entitled to the relief for which this petition was

confined, of his regularization from 31st January, 1995. The petition is dismissed.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 20th May, 2010 bs

(corrected and released on 31st May, 2010)