Basudeb Roy vs National Fertilizer Limited
2012 Latest Caselaw 6718 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 23rd November, 2012

+ Review Petition No.689/2012 with CM.No.18781/2012 (for interim
Stay) in WP(C) No.2652/1999


%      BASUDEB ROY                                          .... Petitioner
                               Through: Ms. Asha Jain Madan and Mr. Shiv
                                         Kumar, Advs.

                                       Versus

       NATIONAL FERTILIZER LIMITED                          ..... Respondent
                   Through: Mr. G. Joshi, Adv.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW


RAJIV SAHAI ENDLAW, J.

1. Review is sought of the judgment dated 19th October, 2012

dismissing WP(C) No.2652/1999 preferred by the review applicant in the

absence of the review applicant or his counsel, though on merits. The

counsel for the respondent appears on advance notice. For the reasons

stated in the review application explaining the absence of the review

applicant and his counsel on 19th October, 2012 when the writ petition was

taken up for hearing, an opportunity of addressing on merits has been given

to the counsel for the review applicant/petitioner. The counsel for the

respondent who appears on advance notice has also been heard in

opposition.

2. Need is not felt to reiterate whatsoever is already stated in the

judgment dated 19th October, 2012 and the counsel for the petitioner also

has argued only to urge why a view different from that already taken, be

taken. Accordingly this order be read in continuation of the judgment dated

19th October, 2012.

3. The counsel for the petitioner has argued -

A. that the judgment of the Apex Court in Uma Devi, on which reliance

has been placed in the judgment dated 19th October, 2012, in paras

12 and 34 ( as reported in 2006(4) SCALE 197) uses the word

„ordinarily‟ while laying down that it is not proper for the Courts

whether acting under Article 226 or under Article 32 of the

Constitution to direct absorption in permanent employment of those

engaged temporarily or on an ad hoc basis without following a due

process of selection. Thus, the principle laid down in the said

judgment is not an absolute one and does not take away the

discretion of this Court to, in appropriate cases issue directions for

regularisation.

B. that the present is an appropriate case where the principles laid down

by the Supreme Court in Uma Devi ought not to be applied. It is

contended that when the petitioner was appointed on casual basis as

an Accounts Clerk, vacancies existed for the said post but still the

petitioner was not appointed against the said vacancy and taken on

an casual basis. It is further contended that the petitioner, who

belongs to a Scheduled Caste, fulfilled the eligibility conditions then

prescribed for the post of Accounts Clerk. Attention in this regard is

invited to an advertisement published in the year 1995 inviting

applications for the said post and the qualification prescribed where

for was only of a graduate. It is yet further contended that no

recruitment for the said post took place between the year 1999 and

2009 and the petitioner could not participate in the recruitment of the

year 2009 because the respondent had in the interregnum changed

the eligibility qualification for the said post and which the petitioner

did not fulfill.

C. that a two Judges Bench of the Supreme Court vide order dated 14 th

March, 2011 in SLP(Civil) No.10779/2008 titled Union Public

Service Commission Vs. D. Sankar has ordered the matter to be

placed before Hon‟ble the Chief Justice of India for constituting a

larger Bench for reconsidering the correctness of Uma Devi's case.

It is contended that pending such reconsideration, the present writ

petition be kept pending.

D. attention is invited to the Personnel Manual of the respondent

containing the Recruitment and Promotion Rules as in force at the

time of casual appointment of the petitioner. With reference to the

Rule 1.5 it is contended that recruitment to various posts was

provided to be "normally" made inter alia from Companies own

trainees who have satisfactorily completed their training, by transfer,

selection and/or promotion from amongst the existing employees and

on contract for a specified period. It is contended that the petitioner

prior to casual appointment at Delhi on 21st October, 1997 was

working at Vijay Pur, Madhya Pradesh unit of the respondent though

through a contractor and thus the appointment of the petitioner even

though casual was in accordance with the Recruitment Rules.

Attention is also invited to Rule 1.6.10 which provides for

preference to be given to the SC/ST candidates.

E. that though the petitioner since 1997 has been working against a

regular post and doing the same work but was not being paid the

equivalent wages and though under orders in this petition was

directed to be paid minimum wages, was paid minimum wages of a

class III employee only and not as applicable to an Accounts Clerk;

even a security guard employed in the respondent was being paid

more than what the petitioner has been paid. It is contended that the

petitioner for the period for which he has worked for the respondent,

is entitled to wages/emoluments as applicable to the post, on the

principle of parity.

F. lastly it is contended that since the petitioner has worked for the

respondent since 1997, even in the event of the petition failing, it be

ordered that the petitioner would be entitled to continue working till

the post is filled up by a regular employee. It is argued that the

petitioner should not be allowed to be substituted by another

temporary employee. It is yet further contended that direction be

issued for granting age and educational qualification relaxation to the

petitioner to enable the petitioner to participate in the recruitment

process if any initiated by the petitioner.

4. The counsel for the respondent has stated that pursuant to the

judgment dated 19th October, 2012, service of the petitioner, vide Office

Order dated 19th November, 2012 has already been terminated as discharged

simplicitor. A copy of the said order has been handed over in the Court and

also to the counsel for the petitioner who though states that the same has not

been served on the petitioner. The counsel for the respondent states that

since the petitioner had not been coming to the office, the same has been

dispatched to the petitioner. The counsel for the respondent has further

invited attention to paras 20,26,29,33 to 36, 38 to 41, 42 and 44 of Uma

Devi, including on the aspect of parity.

5. Having heard the counsel for the petitioner also, I am unable to form

a different opinion than already expressed in the judgment dated 19th

October, 2012.

6. The judgment of the Supreme Court in Uma Devi is absolute and

cannot be read as leaving any discretion with the Courts to, in appropriate

cases, in exercise of powers under Article 226, grant the relief of

regularisation. It cannot be lost sight of that in all such cases the

workman/employee has worked on temporary/ad hoc basis for long periods

of time - they are thus all hard cases and no distinction can be carved out.

Moreover in the present case, though the petitioner as of now has worked on

temporary/casual basis for a period of nearly 15 years but most of the said

period i.e. of 13 years is under interim protection in these proceedings and,

at the time of institution of writ petition, the petitioner had worked only for

about two years. No benefits can be permitted to flow from the interim

order; rather, at the time of final disposal, equities if any flowing from the

interim order, have to be balanced. Further, as already recorded in the

judgment dated 19th October, 2012, though the binding judgment of the year

2006 of Uma Devi was immediately cited by the counsel for the respondent,

but it was the counsel for the petitioner who for the last six years had been

seeking adjournments. The equities also thus clearly are not in favour of the

petitioner.

7. As far as the argument of Uma Devi being reconsidered by the

Supreme Court is concerned, the counsel for the petitioner herself has fairly

stated that though earlier also a similar request for reconsideration was made

but the same was not acceded to. Moreover even if it were to be held that

the matter is pending reconsideration in the Supreme Court, the same would

be no ground for this Court to not follow the binding dicta as long as the

same holds fort.

8. I am unable to find any merit in the contention of the petitioner of the

appointment of the petitioner being as per the recruitment Rules. The

Clauses of Rule 1.5 describing the sources of recruitment on which reliance

is placed, are clearly not applicable. Neither was the petitioner a trainee nor

an existing employee of the respondent. Similarly the appointment on

contract as per the Rules themselves, is to be for a specified period. Rather,

Rule 1.6 deals with Method and Procedure of Recruitment and the petitioner

clearly was not appointed following the said method and procedure; that is

not the case also of the petitioner. Rather the petitioner approached this

Court with an unequivocal case of having been appointed on a casual basis.

Similarly, the factum of the petitioner belonging to a Scheduled Caste will

not convert the casual/temporary appointment into a regular one.

9. As far as the argument of the petitioner having been appointed on a

casual basis inspite of an existing vacancy is concerned, it has already been

noticed in the judgment dated 19th October, 2012 that it is the case of the

respondent in the counter affidavit that the vacancies in the said post

accrued only in the year 1999 and there was no vacancy in 1997 when the

petitioner was employed on a temporary basis. The petitioner has not been

able to show to the contrary. On the other hand the version of the

respondent is more believable inasmuch as the cause of action pleaded by

the petitioner himself was attempt by the respondent in 1999 to fill up the

post. It has also been noticed that the petitioner instead of participating in

the recruitment process of the year 1999 chose to continue with the

respondent under an interim order obtained from this Court.

10. The claim of the petitioner for parity is clearly untenable. Parity can

be claimed only with those equally placed. An appointee against a post

enjoys a different status than a casual / ad hoc appointee and no parity in

emoluments can be claimed. Similarly the claim if any for minimum wages

for the period for which the petitioner has worked under interim order of

this Court is beyond the scope of the present petition.

11. Though I am not inclined to allow the petitioner to continue working

till regular appointment, but some merit is found in the contention of the

counsel for the petitioner of grant of relaxation in recruitment Rules relating

to age and educational qualification to the petitioner. However it is not in

the domain of this Court in these proceedings to direct so. All that can be

directed is that the respondent, in the event of recruitment in future and the

petitioner applying therefor, considers granting such relaxation to the

petitioner keeping in view the long time of 15 years for which the petitioner

has worked for the respondent, specially if the said work has been found

satisfactory.

12. Thus, save for the aforesaid observations, the judgment dated 19th

October, 2012 dismissing the writ petition stands.

No costs.

RAJIV SAHAI ENDLAW, J

NOVEMBER 23, 2012.

M