* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No. 2710/1996
% 2nd April, 2013
RAJESH KUMAR & ORS. ...... Petitioners
Through: Ms. Manisha Singh, Advocate.
VERSUS
HONORARY JOINT SECRETARY, AFWWA & ANR. ..... Respondents
Through: Ms. Ritika, Advocate for R-2 and 4.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This writ petition is filed by twelve petitioners as per amended memo of
parties dated 23.4.2009.
2. The petitioners are employed by the respondents No. 1 and 2 as gardeners,
sweepers and guards. In the writ petition, the following reliefs are claimed :-
(a) A writ of Certiorary to respondents to regularise the employment of the petitioners.
(b) To issue any writ directions of order to the respondents to frame proper rules governing the appointment salaries, increment, promotion, provident fund, pension, leave, medical, housing, etc.
WP(C) 2710/1996 Page 1
(c) To issue any writ direction or order prohibiting the respondents to terminate the services of the petitioners without falling a laid-down procedure and the principle of natural justice.
(d) To issue writ any direction or order to regulate the working hours and the requirements of health of the petitioners.
(e) To issue any other writ direction or order which this Hon'ble Court may deem fit and proper in the facts and circumstances of this case".
3. So far as the reliefs (a) and (c) are concerned, the same cannot be granted in
view of the ratio laid down by the Constitution Bench of the Supreme Court in the
case of Secretary, State of Karnataka & Ors. vs. Umadevi & Ors., (2006) 4 SCC ,
which is reproduced as under:-.
(I) The questions to be asked before regularization are:-
(a)(i) Was there a sanctioned post (court cannot order creation of posts because finances of the state may go haywire), (ii) is there a vacancy, (iii) are the persons qualified persons and (iv) are the appointments through regular recruitment process of calling all possible persons and which process involves inter-se competition among the candidates
(b) A court can condone an irregularity in the appointment procedure only if the irregularity does not go to the root of the matter.
WP(C) 2710/1996 Page 2
(II) For sanctioned posts having vacancies, such
posts have to be filled by regular recruitment process of prescribed procedure otherwise, the constitutional mandate flowing from Articles 14,16,309, 315, 320 etc is violated.
(III) In case of existence of necessary circumstances the government has a right to appoint contract employees or casual labour or employees for a project, but, such persons form a class in themselves and they cannot claim equality(except possibly for equal pay for equal work) with regular employees who form a separate class. Such temporary employees cannot claim legitimate expectation of absorption/regularization as they knew when they were appointed that they were temporary inasmuch as the government did not give and nor could have given an assurance of regularization without the regular recruitment process being followed. Such irregularly appointed persons cannot claim to be regularized alleging violation of Article 21. Also the equity in favour of the millions who await public employment through the regular recruitment process outweighs the equity in favour of the limited number of irregularly appointed persons who claim regularization.
WP(C) 2710/1996 Page 3 (IV) Once there are vacancies in sanctioned posts such vacancies cannot be filled in except without regular recruitment process, and thus neither the court nor the executive can frame a scheme to absorb or regularize persons appointed to such posts without following the regular recruitment process.
(V) At the instance of persons irregularly appointed the process of regular recruitment shall not be stopped. Courts should not pass interim orders to continue employment of such irregularly appointed persons because the same will result in stoppage of recruitment through regular appointment procedure.
(VI) If there are sanctioned posts with vacancies, and qualified persons were appointed without a regular recruitment process, then, such persons who when the judgment of Uma Devi is passed have worked for over 10 years without court orders, such persons be regularized under schemes to be framed by the concerned organization.
(VII) The aforesaid law which applies to the Union and the States will also apply to all instrumentalities of the State governed by Article 12 of the Constitution.
4(i). A reading of the aforesaid ratio laid down by the Supreme Court in Uma
Devi's (supra) case shows that employees cannot be granted regularization unless WP(C) 2710/1996 Page 4 the appointments are against the vacancies in sanctioned posts and such persons
who seek regularization have been appointed under the regular recruitment process
and such persons satisfy the necessary qualifications.
(ii) The Supreme Court has clarified that with respect to casual employees or
daily wagers, such persons cannot be regularized because there are no sanctioned
posts against which such persons have been appointed. The Supreme Court has
further clarified that Courts cannot direct creation of sanctioned posts because the
same is in the sole prerogative of an employer to decide and which decision is
taken on the basis of its financial position and work requirements.
(iii) The only exception with respect to regularization which was made by the
Supreme Court was with respect to the employees who were qualified; were
appointed against vacancies; were appointed against vacancies in sanctioned posts;
and had continued for ten years on the date of passing of judgment of Uma Devi's
(supra) case, although these appointments were not through the regular recruitment
process. Even for such persons there was no automatic regularization and the
organization had to draw out necessary policies for absorption of such persons.
(iv) The Supreme Court further clarified that there is no legitimate expectations
of persons who have been irregular employees to claim regularization and equity in
WP(C) 2710/1996 Page 5 favour of the millions of persons who seek public appointment prevail over limited
equity in favour of few persons who have been appointed in public posts without
regular recruitment process.
5. In view of the aforesaid ratio of the judgment of the Constitution Bench of
Supreme Court, prayers (a) and (c) cannot be granted and hence stand dismissed
inasmuch as this Court cannot grant regularization of appointment and
consequential direction of restraint with regard to termination of services of
casually appointed persons.
6. So far as the prayers (b) and (d) are concerned, these prayers are extremely
vague and wide as regards the extent that these prayers require the respondents No.
1 and 2 to follow the necessary laws with respect to casual employees because it is
not pleaded which laws are violated, and how and what aspects require
compliance. Counsel for the respondent nos. 1 and 2 does not dispute on behalf of
respondents No. 1 and 2 whatever laws are applicable to casual employees, the
same will be followed by respondents No. 1 and 2. In fact the petitioners are being
paid the minimum wages under the Minimum Wages Act, 1948.
7. So far as the issue of grant of Provident Fund, Pension etc to the petitioners
is concerned, the same can only be granted provided the respondents No. 1 and 2
WP(C) 2710/1996 Page 6 are such organizations which would fall under the relevant Acts, and I do not find
as to how respondents No. 1 and 2 would be the organizations covered under the
Employees' Provident Fund and Miscellaneous Provisions Act, 1952 because in
fact, there are no averments in the writ petition as to how respondents No. 1 and 2
would be an organization covered under the Provident Fund Act, 1952.
The same would be the finding and conclusion of this Court with respect to
pensionary benefits which are prayed for by the petitioners.
8. So far as the issues of grant of leaves, medical facilities, housing etc are
concerned, the same are not the subject matter of any specific statute, and also, no
such facts constituting the causes of action are laid out in the petition. However,
counsel for respondents No. 1 and 2 says that whatever are the laws applicable
with respect to grant of any leaves or medical facilities or housing are concerned, if
such laws exist and apply to respondents No. 1 and 2, the petitioners would be
granted such benefits.
9. In view of the above, the writ petition is dismissed so far as the reliefs (a)
and (c) are concerned. So far as the other reliefs which require the respondents No.
1 and 2 to follow appropriate laws are concerned, though the writ petition does not
contain necessary averments of causes of action, however, qua these reliefs, the
WP(C) 2710/1996 Page 7 writ petition is disposed of by observing that respondents No. 1 and 2 will comply
with the laws as applicable to persons such as the petitioners. Parties are to bear
their own costs.
VALMIKI J. MEHTA, J
APRIL 02, 2013
j
WP(C) 2710/1996 Page 8
