Basudeb Roy vs National Fertilizer Limited
2012 Latest Caselaw 6318 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of decision: 19th October, 2012

+                                 W.P.(C) No.2652/1999

         BASUDEB ROY                                            ..... Petitioner
                            Through:      None.

                                       Versus

    NATIONAL FERTILIZER LIMITED                               ..... Respondent

Through: Mr. G. Joshi, Adv.

CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW, J

1. None appears for the petitioner. However considering that the writ

petition is of the year 1999 and the petitioner has been enjoying an interim

order, it is not deemed expedient to await the petitioner any further and with

the help of the counsel for the respondent the records have been perused.

2. This petition was filed claiming that the petitioner, belonging to the

Scheduled Caste, had been working with the respondent since December,

1994 as an Accounts Clerk ,in the Office of the respondent earlier situated at

Community Centre, East of Kailash, New Delhi and subsequently at Noida;

that though the respondent has a regular post of Accounts Clerk at various

offices and is obliged to make appointment to the said post on regular basis,

but to escape its legal liability to pay proper pay scale and benefits to the

employees was engaging them through contract labour in violation of the

provisions of the Contract Labour (Regulation and Abolition) Act, 1970; that

the petitioner also, was in December, 1994 employed through a contractor

M/s Gopal Singh in the office of the respondent at Vijaypur (Guna), Madhya

Pradesh, Unit and such appointment through the contractor continued till

September, 1997; however since the contractor was not paying proper

salary, the petitioner left the said contractor's appointment; that upon

learning that the Central Marketing Office of the respondent at New Delhi

had vacancy for Accounts Clerk, the petitioner applied but the respondent

instead of considering and appointing him on regular post appointed him on

casual basis as Accounts Clerk at the Central Marketing Office at East of

Kailash, New Delhi on 21st October, 1997 at a monthly salary of Rs.1,800/-;

however no appointment letter was issued; that the petitioner thereafter was

working directly under the respondent as Accounts Clerk at a monthly salary

of Rs.1,800/-; however neither his attendance was marked nor was he given

any other benefits; that though there were vacant posts of Accounts Clerk

since 1997 but no regular appointment thereto was being made. This writ

petition was filed in or about April, 1999 averring that the respondent was

likely to fill the vacancies on the post of Accounts Clerk and consequently

likely to terminate the services of the petitioner and seeking the relief of

regularization of his services in appropriate pay scale and seeking further

directions to the respondent to pay arrears of proper salary and other benefits

to the petitioner since December, 1994.

3. Notice of the petition was issued on 30th April, 1999 and vide ex parte

order of that date the respondent was restrained from terminating the

services of the petitioner till further orders. The said interim order was

continued from time to time and was made absolute on 18 th October, 2000

when Rule was issued in the petition.

4. The respondent filed a counter affidavit pleading that it is a

Government of India Undertaking; that the petitioner was engaged for the

first time on 21st October, 1997 on temporary basis on consolidated salary of

Rs.1,800/-; that his employment was of purely temporary nature, dependent

on availability of work; that for recruitment of employees the respondent has

to follow its procedure for recruitment contained in the Personnel Manual of

the respondent; that merely possessing the requisite qualification for the post

of Accounts Clerk does not make the petitioner eligible for recruitment in as

much as for the same the method and procedure of recruitment as applicable,

has to be followed; it was denied that the petitioner was employed since the

year 1994 or through a contractor as claimed by him. It was further pleaded

that the respondent as per exigencies of work engages employees on

temporary or ad-hoc basis; that there was no need for a permanent Accounts

Clerk in the year 1997 and the need therefor had arisen in the year 1999 only

when applications for the said post had been invited by publishing

advertisements in newspapers and the petitioner if eligible was free to apply

thereunder. It was yet further pleaded that the documents filed by the

petitioner himself along with the writ petition showed that the qualification

as a graduate in Commerce requisite for the post of Accounts Clerk, claimed

by the petitioner was from the University of Calcutta of the year 1992 but

"without division".

5. The petitioner filed rejoinder to the aforesaid counter affidavit.

6. The petitioner filed CM No.1630/2001 seeking direction to the

respondent to pay equal pay for equal work or at least the minimum wages.

However vide order dated 13th January, 2003 it was observed that granting

such a relief would tantamount to virtually allowing the writ petition and the

said application was deferred for hearing along with the writ petition.

7. The writ petition however continued to languish and was adjourned

from time to time on request of the counsels. On 2 nd August, 2006 the

counsel for the respondent pointed out that the matter was covered by the

judgment of the Constitution Bench in Secretary, State of Karnataka Vs.

Umadevi 2006 (4) SCC 1; however the counsel for the petitioner sought

adjournment and the matter continued to languish. On 15 th September, 2006

the petitioner renewed his request for minimum wages. On 26th February,

2009 when again the counsel for the petitioner was confronted with the

judgment of the Supreme Court in Umadevi, he sought time to study the

same. The order dated 15th December, 2009 records that the petitioner was

handed over a cheque for Rs.1,00,748.68p on account of arrears of

difference in wages which he was getting and the minimum wages to which

he was entitled. The counsel for the petitioner however again sought

adjournment.

8. The counsel for the respondent has today argued that the matter is not

only covered by Umadevi supra but also by the subsequent judgment of the

Supreme Court in National Fertilizers Ltd. Vs. Somvir Singh (2006) 5 SCC

493 pertaining to the respondent itself.

9. Though the arguments in writing of the petitioner are on the file but

the same are of a date prior to the pronouncement of the Constitution Bench

in Umadevi and thus need is not felt to refer to the contentions raised

therein.

10. The Supreme Court, in the judgments aforesaid has held that

regularization is not a mode of appointment and if the appointment is made

without following the Rules, the same being a nullity, the question of

regularization of the employee would not arise. The admission by the

respondent, of the temporary employment of the petitioner prior to the filing

of the petition, is of just over a year. Though the petitioner has averred

employment with the respondent through contractor since the year 1994 but

is not found to have placed any document in support thereof before this

Court. Though the petitioner undoubtedly has since then continued in

employment with the respondent for the last over 12 years but under interim

orders in this petition and the same cannot create any equities in favour of

the petitioner. Rather a perusal of the order sheet shows that it was the

petitioner who was mostly seeking adjournments in the writ petition and

responsible for the long time for which the petition has remained pending in

this Court inspite of the judgment in Umadevi having been brought to the

notice immediately after pronouncement. The relief claimed by the

petitioner is in the teeth of the judgment in Umadevi and cannot be granted.

11. Though the counsel for the respondent has also drawn attention to the

advertisement inviting applications for the post of Accounts Clerk,

prescribing a qualification of B.Com. with minimum of 50% marks and for

Scheduled Caste category 45% marks, but the said advertisement is of the

year 2009 and the counsel is not able to show that the said requirement

existed in the year 1997 also.

12. What this Court finds strange in the present case is that the petitioner,

after obtaining the interim order, sat satisfied and did not make any attempt

to participate in the selection process admittedly undertaken by the

respondent for the said post. Though the petitioner in his application being

CM no.1630/2001 had made an averment that he had applied for the post of

Accounts Clerk with the respondent in the year 1997 under the Scheduled

Caste category but was not even called for an interview but the respondent in

reply thereto stated that the petitioner was not considered for selection since

he was not meeting the grade to grade specifications for the post. The fact

remains that the petitioner did not challenge the said rejection.

13. No merit is thus found in this petition; the same is dismissed.

Needless to state interim order stands vacated.

No costs.

RAJIV SAHAI ENDLAW, J

OCTOBER 19, 2012 pp