Delhi High Court
Indu Munshi & Ors. vs Union Of India & Ors. on 5 April, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.2574/2010 & CMs 5134/10, 8525/11 & 7028/12
% April 05, 2013
INDU MUNSHI & ORS. ..... Petitioners
Through: Mr. S.K.Ambardar, Adv.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Jatan Singh with
Mr. Soayib Qureshi, Advs. for R-1
Ms. Purnima Maheshwari, Adv. for R-2.
Mr. Sudhir Kathpalia for
Ms. Suparna Srivastava, Adv. for MCD.
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 has been filed by fifteen petitioners seeking
the reliefs of regularization and equal pay for equal work.
2. It is not disputed, and the admitted position is that the
petitioners have been employed on contractual basis from time to time.
Contractual appointees cannot be regularized in view of the Constitution
Bench judgment of the Supreme Court in the case of Secretary, State of
Karnataka vs. Umadevi & Ors. 2006(4) SCC 1. The following is the ratio
which has been laid down by the Supreme Court in the case of Umadevi
(supra):
(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.
(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.
(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."
3. A reference to the aforesaid ratio shows that there is no
legitimate expectation of contractual employees or work charged employees
to get regularization. The Supreme Court has categorically observed that
people who take employment with open eyes for a contractual period or for a
specific project cannot claim regularization and there is no equity in their
favour inasmuch as the equity is in favour of millions who have been
waiting for public employment through the regular recruitment process
outweighs the equities claimed by the limited number of employees.
4. In view of the fact that petitioners have not been appointed
against vacancies in sanctioned posts, and the petitioners have not been
appointed through a regular recruitment process for vacancies in sanctioned
posts, and since the petitioners are only contractual employees, contractual
employees cannot be regularized in terms of the ratio in the Umadevi's
(supra) case.
5. During the course of hearing I put to counsel for the petitioner
that this is a hard case and that petitioners must in fact file appropriate
proceedings or appropriately approach the executive for their regularization,
but the counsel for the petitioners states that the case be decided on merits.
6. In view of the fact that Constitution Bench of the Supreme
Court in the Umadevi's (supra) case has clearly said that there can be no
regularization of contractual employees, I have no option but to dismiss the
present petition, which is accordingly dismissed, leaving the parties to bear
their own costs.
VALMIKI J. MEHTA, J
APRIL 05, 2013
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