Delhi High Court
Daulat Ram & Ors. vs National Open School & Anr. on 9 April, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 3789/2010
% 9th April, 2013
DAULAT RAM & ORS. ...... Petitioners.
Through: Ms. Rachna Joshi Issar and Ms. Ambreen
Rasool, Advocates.
VERSUS
NATIONAL OPEN SCHOOL & ANR. ...... Respondents
Through: Mr. S.Rajappa, Adv. and Dr. Puran Chand,
Adv. for R-1.
Mr. Apoorv Kurup, Adv. for R-2.
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 six petitioners. In the writ petition, the
following reliefs are claimed:-
"(i) issue an appropriate writ, directing the respondent to consider
the case of the petitioners for regular employment, and quash
the order dated 1-5-2009 (Annexure P 5 Supra)
AND
(ii) directs the respondent to give employment to the petitioners at
its regional centres in terms of order dated 9-9-2002 (Annexure
P1 Supra)
W.P.(C) 3789/2010 Page 1 of 6
AND
(iii) pass such order/s as may be deemed fit and proper."
2. A reference to the reliefs which are claimed in the writ petition shows
that relief no.(i) is for the claim of regular employment by quashing the order dated
1.5.2009 and relief no.(ii) is to direct the respondent no.1 to give employment to
the petitioners in terms of the order dated 9.9.2002 which was passed in CW No.
6303/1999.
3. At the outset I must state that if the prayer for regularization is taken
in itself without anything more, the relief claimed would be barred by the ratio of
the Constitution Bench judgment of the Supreme Court in Secretary, State of
Karnataka vs. Umadevi & Ors. 2006(4) SCC 1 which says that casual employees
cannot be regularized. Similar is the view of Supreme Court in Indian Drugs and
Pharmaceuticals Ltd. Vs. Workman, Indian Drugs and Pharmaceuticals Ltd.
(2007) 1 SCC 408. The relief of regularization of petitioner no.1 is however
claimed on the basis of an earlier judgment of this Court between the parties and I
am hence considering the prayer for regularization.
4. Though the pleadings in the writ petition and the additional affidavit
leave a lot to be desired so far as the issue as to how the petitioner no.1and only for
whom permanent employment is claimed (besides an additional claim of
W.P.(C) 3789/2010 Page 2 of 6
petitioner no.1 alternatively for casual employment), however, I would accept the
submission of the counsel for the petitioners that the petitioners being not rich
persons, they have done their best in getting whatever information they can and
this Court must consider the pleadings liberally and also by considering everything
which has come on record in the form of not only the writ petition and its
annexures but also a supplementary affidavit on behalf of the petitioners. I may
note that the respondent no.2 whose employment was questioned for a permanent
post, has filed a counter-affidavit and which will also have to be considered.
5. Taking the aspect of claim of permanent employment, counsel for the
petitioners relies upon the advertisement issued by the respondent no.1 dated
23.1.2009 and copy of which has been filed alongwith the counter-affidavit of
respondent no.2. It is argued that petitioner no.1 had submitted his application
dated 30.1.2009 for appointment as a peon, but the petitioner was not even called
for the interview or the written test inasmuch as no intimation for appearing was
given to the petitioner no.1. It is argued that once no intimation was given to the
petitioner no.1, petitioner no.1 could not be expected to have joined for the written
test or the interview. It is alleged that therefore there is violation of the judgment
dated 9.9.2002 passed in the earlier CW No. 6303/1999 between the parties.
6. In my opinion, the issue of compliance of a final judgment though
cannot be a subject matter of independent proceedings, inasmuch as if there is any
W.P.(C) 3789/2010 Page 3 of 6
violation of final judgment, contempt proceedings would lie , however, I have yet
to consider the issue on merits. The issue is that whether the petitioner was
entitled to be called for the interview or written test pursuant to his application
dated 30.1.2009. To the extent that this application dated 30.1.2009 of the
petitioner no.1 was received by the respondent no.1, the same cannot be an issue
because respondent no.2 has filed a response to an RTI query by the respondent
no.1-employer(which is dated 6.7.2010) and which shows that the petitioner no.1
had in fact applied. In the facts of this case however there cannot be any violation
of the judgment dated 9.9.2002 in CW No. 6303/1999 inasmuch as petitioner no.1
admittedly applied in the unreserved category for the post of the peon whereas the
response to the RTI query by the respondent no.1 dated 6.7.2010 shows that post of
peon was reserved for the OBC category. In fact, even the advertisement dated
23.1.2009 mentions of two posts, one unreserved and one OBC. It cannot be
doubted that the respondent no.2 who was appointed to the post of peon, the post to
which the petitioner no.1 applied, is an OBC candidate. Once the post of peon is
reserved for OBC category and the respondent no.2 fell in the OBC category and
hence was appointed, the petitioner no.1 therefore cannot complain of his non-
consideration because the petitioner no.1 is a general category candidate and the
post of peon to which the respondent no.2 was selected pursuant to the
advertisement was of a post of peon reserved for OBC candidate.
W.P.(C) 3789/2010 Page 4 of 6
7. Now, the issue is of the claim of all the petitioners for casual
employment. This claim is with reference to the second relief which is claimed in
the writ petition and as per which, the petitioners claim employment at regional
centres in terms of the judgment dated 9.9.2002. Once again, the issue urged is
actually of compliance of a final judgment of this Court, and hence cannot be a
subject matter of independent petition and contempt petition would be an
appropriate remedy. Counsel for the petitioners has drawn my attention to the
order dated 11.5.2009 passed in Cont. Case(C) No. 916-21/2006 which was
dismissed as withdrawn because respondent no.1 informed that various persons are
being sent letters as contained in the seniority list to find out the willingness to
work in the regional centres. Assuming that has not been done yet the issue still
will remain of compliance of the judgment dated 9.9.2002 and in the realm of
contempt proceedings and not again seeking directions in a new petition and which
directions are already contained in the judgment dated 9.9.2002. No purpose will
be served by repeating the same directions in a new judgment.
8. The issue, therefore, really boils down to compliance of the judgment
dated 9.9.2002 by calling the petitioners for casual employment at the regional
centres. If there is any entitlement in the petition for casual employment, inasmuch
as, the respondent no.1 has violated the judgment dated 9.9.2002, the petitioners
will be at liberty to file appropriate independent contempt proceedings for
W.P.(C) 3789/2010 Page 5 of 6
enforcing the judgment dated 9.9.2002, however, a fresh writ petition is not a
remedy because in a fresh writ petition directions cannot be sought for
implementing of an earlier final judgment of this Court, and which has necessarily
to be done only by means of contempt proceedings, assuming there is any cause of
action in the same.
9. In view of the above, there is no merit in the petition, which is
accordingly dismissed, leaving the parties to bear their own costs.
APRIL 09, 2013 VALMIKI J. MEHTA, J.
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