Shri Devinder Singh Dabbas & Ors. vs The Administrator Of Union ...
2013 Latest Caselaw 1693 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No. 2244/1990
%                                                         15th April, 2013

SHRI DEVINDER SINGH DABBAS & ORS.                  ......Petitioners
                  Through: Mr. G.D.Gupta, Sr. Advocate with Mr.
                           Sanjiv Joshi, Advocate.


                            VERSUS

THE ADMINISTRATOR OF UNION TERRITORY OF DELHI & ORS.
                                                 ...... Respondents

Through: Mr. Shyam Moorjhani, Advocate.

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 5 petitioners. The 5 petitioners were

appointed on 4.11.1985 as Fee Collectors/Auction Recorders with the respondent

no.3-The Narela Agricultural Produce Marketing Committee. The petitioners were

appointed regularly in accordance with the rules after undergoing the process of

selection through open advertisement. The petitioners are challenging the seniority

list prepared on 4.8.1989 whereby petitioners have been placed juniors to the

respondent nos. 5 to 8. The petitioners are challenging the seniority of respondent

nos. 5 to 8, inasmuch as, according to the petitioners these respondent nos. 5 to 8

were appointed only on ad hoc/casual basis in 1979-1980. The petitioners claim

that the appointments which have been made by the respondent no.3 of the

respondent nos. 5 to 8 in 1979/1980 were de hors the applicable rules, and

therefore, the respondent no.3 was not entitled to regularize these persons in the

year 1986 retrospectively with effect from the original dates of appointments in

the years 1979-1980. The petitioners accordingly questioned the seniority list, and

therefore, the regularization of the respondent nos. 5 to 8 retrospectively from

1979-1980.

2. In the counter-affidavit of respondent nos. 3 and 4, it is stated that

respondent nos. 5 to 8 were not given fresh appointments in 1986, but as they were

already working with the respondent no.3 from 1979-1980 and they were hence

rightly regularized from their original dates of appointments. This is stated in the

counter-affidavit which is filed after admission of the writ petition. In the original

counter-affidavit, which was filed in response to the show cause notice, the

respondent nos. 3 and 4 contended that the approval of the appointments of the

respondent nos. 5 to 8 was awaited, and therefore, they were asked before the 1986

panel and subsequently on the panel recommending the names of respondent nos. 5

to 8, consequential orders dated 24.7.1986 were passed for regularization by the

Competent Authority. Since these factual aspects contained in the reply to the

show cause notice are relevant and much would turn upon the same I would seek to

reproduce in entirety para 2(b) as contained in the reply to the show cause notice

and which reads as under:-

"(b) In regard it is submitted that the respondents 5 to 7 on the one hand and respondent No.8 on other hand were initially appointed as fee Collectors on adh-hoc/daily wages basis on 1.1.1979 and 1.5.1980 respectively. Later on vide the Resolution No.7 of Agricultural Produce Market Committee, Narela approved in its meeting held on 29.1.1980 the regularization of services of these employees. The Chairman of the Committee issued appointment order(s) on 2.5.1980 appointing them as Auction Recorder/Fee Collector 1.4.1979/1.5.1980 (the respondents No.5 to 7 and 8 respectively). The said appointment letters contemplated, that the appointment is subject to the approval of the Secretary, Delhi Agricultural Marketing Board. It is further submitted that the said regular appointment w.e.f. 1.4.1979 was made after undergoing a process of selection by the duly constituted Selection Committee vide Resolution No.7 dated 29.1.1980, referred to above. However, since the approval from Secretary, Delhi Agricultural Marketing Board had yet not been received the said respondents No.5 to 7 and 8 were advised to appear before the Staff Selection Committee (Constituted by the Board) on 1.2.1986 for the purposes of completing the formality of obtaining approval of the competent Authority as required under the Provision of Delhi Agricultural Produce Marketing (Regulation) Act, 1976 and Rules made thereunder. Thee said Committee vide its panel also recommended the names of the Respondents 5 to 8 and consequently vide orders dated 24.7.1986 the Competent Authority conveyed its approval to APMC, Narela, as contemplated under the Act and Rules bid. It is denied that any interviews were held on 24.7.1986, as alleged by the petitioners. It is further submitted that since the services of the respondents 5 to 7 and 8 had already been regularized w.e.f. 1.4.1979/1.5.1980 respectively and they were not as such required nor was there any need for them to apply afresh directly with other direct recruit candidates, i.e. the alleged issue as tempted to be made up by the petitioners. It is

further submitted that since the said approval order dated 24.7.1986 of the Board did not mention the date(s) from which regularization of the services of the employees was approved therefore the APMC Narela vide its letters dated 12.8.1986 followed by letters dated 21.3.1987, 1.5.1987 and 27.6.1989 sought the clarification of Board in this regard and also apprised the Board of the decision taken by it for regularization of services of certain other employees of the Board from the date of their initial appointments granting them benefit of their past interrupted serviced. Consequently, after examining the matter in great details the Board, vide its letter/order dated 2.8.1989, amending its earlier order dated 24.7.1986 conveyed the approval of Competent Authority i.e. Secretary, D.A.M.B.according approval for regularization of the services of respondents No.5 to 7 and 8 from the date of their initial appointment i.e.1.1.1979/1.5.1980 respectively (the regularization w.e.f 1.4.1979/1.5.1980 as aforesaid was made by A.P.M.C.Narela). A copy this order dated 2.8.1989, is annexed hereto and marked as Annexure-A. Thus it would be clear that the answering respondents have acted in accordance with law."

3. Unfortunately, neither with the reply to the show cause notice filed by

the respondent nos. 3and 4, nor with the counter-affidavit after admission of the

writ petition, any order of the Competent Authority giving reasons for

regularization of the respondent nos. 5 to 8 has been filed though the regularization

letter dated 21.8.1989 of regularizing the respondent nos. 5 to 8 has been filed. I

may only note that the letter dated 21.8.1989 (running page 137 of the paper book)

does not give the reasons as to why respondent nos. 5 to 8 have been regularized.

4. A resume of the writ petition and the counter-affidavit brings out the

following salient points.

 (i)     The petitioners were regularly appointed in 1985.


(ii)    The respondent nos. 5 to 8 were not regularly appointed and they were only

ad hoc appointees for 89 days in 1979/1980.

(iii) Nothing is filed on behalf of respondent nos. 3 and 4 to show that the

appointment of the respondent nos. 5 to 8 was through a regular recruitment

process of calling persons through advertisement.

(iv) No office order is filed by the respondent nos. 3 and 4 giving reasons as to

how respondent nos. 5 to 8 are regularized and filing of this order was necessary

because regularization can only take place in accordance with the rules and not

de hors the rules. The order of the Competent Authority regularizing the services

of the respondent nos. 5 to 8 w.e.f 1.1.1979-1.5.1980 as stated in the letter dated

21.8.1989 would only benefit the respondent nos. 5 to 8 in their seniority against

the petitioners if regularization was in accordance with the rules.

(v) Rules which were applicable to the respondent no.3 when the respondent

nos. 5 to 8 and the petitioners were appointed were the Delhi Agricultural Market

Committee (Service) Regulations, 1978.

5. In law, any employer, which is a State as per Article 12 of the

Constitution of India, in order to regularize the services of its employees has to act

in accordance with the service rules and not de hors the service rules. The

requirement of service rules has to be that any appointments made through direct

recruitment cannot be in the nature of pick and choose appointments without open

competition. Regular procedure of recruitment will have to be followed because of

Article 14 of the Constitution of India. The recruitment to be regular have to be

through a regular recruitment process whereby candidates are called by

advertisement in the newspapers or from the employment exchange or both.

6. In the present case, there is nothing on record that the respondent nos.

5 to 8 were appointed after advertisements were issued in the newspapers or their

names were sponsored by the employment exchange. Thus, the original

appointments of the respondent nos. 5 to 8 itself were irregular and invalid

inasmuch as appointments were de hors the applicable service regulations by

adopting a pick and choose method. It has been held by the Supreme Court in the

following judgments that irregular appointees cannot have seniority over regular

appointees:-

(i) J & K Public Service Commission etc. Vs. Narinder Mohan & Ors. (1994)

2 SCC 630

(ii) D.N. Agrawal and Anr. Vs. State of Madhya Pradesh & Ors (1990) 2 SCC

(iii) Union of India (UOI) Vs. Dharam Pal etc. (2009) 4 SCC 170

6(i) In the case of Narinder Mohan (supra), the Hon'ble Supreme Court

has held that persons who were appointed on adhoc basis in violation of statutory

rules and regularized in service, the actions being ultra vires the rules, the persons

who were appointed on adhoc basis have to be replaced by persons who have been

regularly recruited in accordance with the rules. The Supreme Court observed that

in order to meet the constitutional requirements, appointments have to be fair ie

such appointments have to be made according to the statutory recruitment rules

where such rules are in force and the Government cannot use its executive powers

to circumvent the requirements of statutory recruitment rules.

6(ii) In D.N.Agrawal's case (supra), the Supreme Court was dealing with

the issue of an adhoc promotee and when should the period of service in the adhoc

post be included for determining their seniority in the promotion post. The

Supreme Court held that when persons who are not eligible for promotion

inasmuch they have not completed the qualified period of service, promotions

accordingly made purely on adhoc basis, cannot prevail over those people who are

regularly selected later on by a regular DPC and appointed pursuant to the result of

the DPC. The Supreme Court has held that the service period in the ad hoc post

cannot be counted for the purpose of their seniority in the higher post.

6(iii) In Dharam Pal's case (supra), the Supreme Court has held that

benefit of ad hoc promotion which is made de hors the rules, cannot be granted to

an employee.

7. That how so ever long a period of service of a person is, if such

service is after appointment to a post which has been irregularly done ie beyond

the regular rules of recruitment, the service rendered in the post in which a person

is appointed de hors the rules cannot be utilized by these persons when promotion

is claimed. The Supreme Court has therefore, effectively laid down that

irrespective of the length of service of irregular appointment, such service being de

hors the applicable rules, the service cannot be counted at the time of promotion.

8. Learned counsel for respondent nos. 3 and 4 sought to argue that the

petitioners have not challenged the regularization order of the respondent nos. 5 to

8 dated 21.8.1989, and therefore, the reliefs as claimed in the writ petition cannot

be granted. I cannot agree with this argument because the only and the first

opportunity which the petitioners had to challenge the regularization of the

respondent nos. 5 to 8 was when the seniority list was first drawn up in 1989. The

petitioners immediately challenged that, and being unsuccessful, filed this writ

petition in the year 1990. In challenging the seniority list, the petitioners have

made detailed averments in the writ petition of the appointments of the respondent

nos. 5 to 8 being de hors the rules and therefore consequently their services from

their original dates of appointments cannot be considered for making the

respondent nos. 5 to 8 as senior to the petitioners. In my opinion, the averments

made in the writ petition are sufficient and the averments effectively challenge the

regularization of the respondent nos. 5 to 8, although, the writ petition may not

specifically refer to the regularization order dated 21.8.1989. Some of the relevant

averments in this regard are contained in paras 15 to 20 of the writ petition and

which I am not reproducing herein because the same will unnecessary lengthen this

judgment.

9. In view of the above, the respondent nos. 5 to 8 cannot be given

seniority over the petitioners. The petitioners, as per the seniority list prepared of

1989, will have to be shown senior to the respondent nos. 5 to 8. The

appointments of the respondent nos. 5 to 8 will be with effect from the passing of

the order by the respondent nos. 3 and 4 on 24.7.1986 and not with retrospective

effect from 1.1.1979/1.5.1980.

10. The respondent nos. 3 and 4 are now directed to accordingly draw up

a seniority list showing the petitioners as senior to the respondent nos. 5 to 8 and

the petitioners will be taken to have been employed on 4.11.1985 and from which

date their services will be taken as regular service for the purpose of counting of

their seniority whereas respondent Nos.5 to 8 will be counted for seniority taking

their appointments on and from 24.7.1986.

11. The writ petition is allowed and disposed of accordingly, leaving the

parties to bear their own costs.

APRIL 15, 2013                              VALMIKI J. MEHTA, J.
ib