N.K.Saxena & Ors. vs Govt. Of Delhi & Ors.
2013 Latest Caselaw 1682 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+        W.P.(C) 4164/2008 & W.P.(C) 5292/2006

%                                                       12th April , 2013
+        W.P.(C) 5292/2006

         N.K.SAXENA & ORS.                     ..... Petitioner
         Through: Mr. Arvind Nayar with Mr. Zeyaul Haque, Advs.

                                   versus

         GOVT. OF DELHI & ORS.                        ..... Respondents

Through: Ms. Shobhana Takiar, Adv. for R-1.

Mr. Siddharth Dias, Adv. for R-2.

Mr. Ashwani Bhardwaj, Adv. for R-3.

                        And

+        W.P.(C) 4164/2008

         DR.J.B.BABBAR & ORS.                        ..... Petitioners

Through: Mr. Arvind Nayar with Mr. Zeyaul Haque, Advs.

versus

GOVT. OF N.C.T. OF DELHI & ORS. ..... Respondents Through: Ms. Mamta Tandon & Mr.Yogesh Saini, Advs. for Mr. V.K.Tandon, Adv. for R-1.

Mr. Siddharth Dias, Adv. for R-2.

Mr. Apar Gupta, Adv. for R-3.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. Learned counsel for the petitioner was heard at length not only today but

also on two earlier dates viz. on 29.01.2013 and 28.02.2013.

2. The petitioners in these cases are employees of the respondent No. 2.

Respondent No. 2 is an entity independent of the respondent No. 1/Government of

NCT of Delhi and the respondent No.3/Central Government.

3. Petitioners were specifically appointed with respect to a Composite Pattern

Scheme to be implemented with respect to family planning. Respondent No. 2 was

running various schemes and one such scheme was the Composite Pattern Scheme.

Since the Composite Pattern Scheme was being closed, some employees were

adjusted in other schemes in Delhi, whereas, the petitioners were sought to be

transferred outside Delhi where other schemes of respondent No.2/employer were

being carried out/implemented.

4. It is at this stage, that the writ petitions were filed in 2006 challenging the

transfer orders and seeking reliefs against the closure of the particular centre of the

Composite Pattern Project at Delhi, where the petitioners were engaged in the

family planning centres.

5. The Constitution Bench of the Hon'ble Supreme Court in the case of

Secretary, State of Karnataka vs. Umadevi & Ors. 2006(4) SCC 1 has held that

casual employees or work charged employees or contractual employees on their

contracted tenures coming to an end, cannot seek regularization in service.

6. The Hon'ble Supreme Court has observed that such persons cannot claim

legitimate expectation for being regularized inasmuch as such contractual

employees or work charged employees when they joined the services knew that

they were appointed either as casual employees or work charged employees or

contractual employees or for a project only. Various other issues have also been

considered by the Supreme Court in the case of Umadevi (supra) as to whether

there should be regularization of casual or work charged or adhoc or contractual

employees. Following is the ratio which is laid down by the Supreme Court in the

judgment in the case of Uma Devi's (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."

7. The aforesaid ratio makes it clear that on completion of a project, the

employees of the project have no right to claim regularization by the employer in

any other project or otherwise permanently in the organization.

8. In the facts of the present case, what is only found is that the respondent No.

2 is not terminating the employment of the petitioners and the employees were

being transferred out of Delhi to other projects of respondent No. 2 at the relevant

time when this writ petition was filed in the year, 2006.

9. In view of the aforesaid ratio of the judgment in Uma Devi's case (supra)

and the fact that as per the decision prevailing in 2006, the petitioners were only

being transferred to other centres and were not being terminated out of their

services as per any documentation or affidavit before me. The learned counsel for

the petitioners state that he has instructions from the petitioners not to press the

petitions and the petitioners are ready to be transferred out of Delhi, of course, on

their employment continuing with respondent No. 2 and which presently is

continuing. It is further clarified that respondent No. 2 can take any action in

accordance with law for taking of services from the petitioners and if the

employers have a place for accommodation in Delhi then the employees can be

accommodated in Delhi and if the respondent No.2/employer feels that there is no

place for accommodating the petitioners in Delhi, petitioners agree that without

any further arguments or objections, they will join their duties at any centre outside

Delhi.

10. The writ petitions are dismissed as withdrawn subject to the aforesaid

observations.

                                                    VALMIKI J. MEHTA, J
APRIL         12, 2013
j