Delhi High Court
Jai Prakash vs The Union Of India And Ors. on 2 August, 2013
Author: V. Kameswar Rao
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on July 26, 2013
Judgment Delivered on August 02, 2013
+ W.P.(C) 6967/2012
BIRMANAND ..... Petitioner
Represented by:Mr.V.P.S.Tyagi, Advocate
versus
UNION OF INDIA AND ORS ..... Respondents
Represented by:Mr.Ankur Chibber, Advocate
+ W.P.(C) 7453/2012
JAI PRAKASH ..... Petitioner
Represented by:Mr.V.P.S.Tyagi, Advocate
versus
THE UNION OF INDIA AND ORS ..... Respondents
Represented by:Mr.Ankur Chibber, Advocate
+ W.P.(C) 8094/2012
SHRI BUNDU ..... Petitioner
Represented by:Mr.V.P.S.Tyagi, Advocate
versus
THE UNION OF INDIA AND ORS ..... Respondents
Represented by:Mr.Amrit Pal Singh, CGSC and
Mr.Gurjinder Kaur, Advocate for R-1 to R-4
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V.KAMESWAR RAO
W.P.(C) No.6967/2012, W.P.(C) No.7453/2012 & W.P.(C) 8094/2012 page 1 of 6
V.KAMESWAR RAO, J.
1. Since, the aforesaid three writ petitions involve a common
issue and arise from a common order dated July 20, 2012 dismissing
15 Original Applications including the one's filed by the petitioners
herein they are being disposed of by a common order. These writ
petitions arise from Original Application No.2523/2011 (Birmanand
v. Union of India & Ors.), Original Application No.2548/2011 (Jai
Prakash v. Union of India & Ors.) and Original Application
No.2529/2011 (Bundu v. Union of India & Ors.).
2. The relevant facts are the petitioners were engaged as casual
labours with the respondents. In the year 1996 they were granted
Temporary Status in terms of Department of Personnel and Training
OM dated September 10, 1993.
3. An Original Application No.652/2011 was filed in the
Tribunal which was decided by the Tribunal directing the
respondents herein to treat the Original Application as a
representation and decide the same within four weeks by passing a
detailed and reasoned order.
4. In deference to the orders of the Tribunal the respondents
have passed an order dated April 29, 2011 wherein the respondents
have said as under:-
"You are hereby also informed that despite all the
provisions mentioned above this establishment
has followed the para 44 of the Hon‟ble Supreme
Court judgment in Uma Devi‟s case as you were
given an opportunity for regularization as one
time measure by allowing you to participate in the
regularization process held in this establishment
wef 07 to 12 Jul 2008. In the year 2008, 23
vacancies were released for Group „C‟ and „D‟
W.P.(C) No.6967/2012, W.P.(C) No.7453/2012 & W.P.(C) 8094/2012 page 2 of 6
employees. 18 vacancies were meant for group
„D‟ and 2/3rd out of 18 vacancies i.e. 12 vacancies
were marked for CLTS, the same were duly
advertised in the newspaper. Applicant who
applied for the regularization was duly
considered in accordance with the extant
recruitment rules and instructions by an
independent Board of officers. Since you were low
in merit for regularization as compared to other
CLTS as per the recruitment rules, hence you
were not regularized into service. In this regards
it is further submitted that as per DOP&T O.M.
dt. 10.09.1993 only 3rd of vacancies can be filled
with casual labour which was done in accordance
with Govt Rules in the recruitment. Thus the
object of 1993 scheme towards regularization of
CLTS is also being followed in letter and spirit.
As and when such vacancies are released in
future you may again appear for regularization
process."
5. It is this order dated April 29, 2011 which have been
impugned by the petitioners herein by filing the three different
Original Applications, the reference of which has been given above.
6. The substantive grounds on which the petitioners have
challenged the OM dated April 29, 2011 inter alia are, that the
respondents have not taken any steps to implement the mandate of
Constitution Bench of the Supreme Court in the case of 2006 (4)
SCC 1 Secretary State of Karnataka & Ors. v. Uma Devi & Ors.;
the respondents have not taken any steps to adhere to the DOP&T
instructions issued vide memorandum dated December 11, 2006;
the seniority based on selection is the hallmark of the Supreme
Court judgment which is being twisted by the respondents to suit
their own whims and fancies.
W.P.(C) No.6967/2012, W.P.(C) No.7453/2012 & W.P.(C) 8094/2012 page 3 of 6
7. The respondents contested the Original Applications by
taking certain preliminary objections which were not agreed to by
the Tribunal. On merits the respondents had taken a stand that the
petitioners were given an opportunity for regularization as one time
measure in terms of Uma Devi‟s case (supra) by allowing them to
participate in the selection held with effect from July 07, 2008 to
July 12, 2008, when, out of 18 vacancies, 12 vacancies (being 2/3rd)
were marked for the casual labour with Temporary Status.
However the petitioners were not successful in the selection post as
they were low in the merit as compared to the other casual labours
with temporary status as per the Recruitment Rules.
7. The learned counsel or the respondents submit the DOP&T
memorandum dated September 09, 1993 has been followed in letter
and spirit. They would also submit that as and when vacancies are
released in future the petitioners may again appear for
regularization.
8. During the course of his submission the learned counsel or
the respondents has drawn our attention to the DOP&T OM dated
September 10, 1993 wherein in para 8 under the heading
"procedure for filling up group D post" it is stated that two out of 3
vacancies in group 'D' cadre in respective officers where the casual
labours have been working would be filling up as per the extent
Rules and in accordance with the instructions issued by the
Department of Personnel and Training from amongst casual workers
with temporary status.
W.P.(C) No.6967/2012, W.P.(C) No.7453/2012 & W.P.(C) 8094/2012 page 4 of 6
9. That aforesaid position in the OM would make it clear that
2/3rd of the total vacancies are to be filled from amongst workers
from temporary status.
10. We see that the respondents have followed the mandate
inasmuch as the vacancies in Group 'D' necessarily have to be filled
as per the extent Recruitment Rules. It is not the case of the
petitioners that the Recruitment Rules have not to be followed. The
only submission of the learned counsel for the petitioner is that for a
person holding a temporary status the regularization is automatic as
per para 53 of the judgment of the Supreme Court in Uma Devi‟s
case (supra).
11. The Supreme Court in its opinion reported as 2009 (13) SCC
90 Harminder Kaur & Ors. v. Union of India & Ors. by referring to
para 53 in para 25 has observed as under:-
"We, therefore, are of the opinion that the High
Court was correct in its view. We were, however,
informed that 800 posts of teachers are lying
vacant. Ms. Kamini Jaiswal informed that the
Administration is ready and willing to fill up the
said posts on a regular basis. While doing so, we
have no doubt in our mind that the cases of the
appellants shall also be taken into consideration
and the Administrator may consider the
desirability of relaxing the age-limit provided for
in the Rules".
12. A perusal of para 25 would show that the Supreme Court had
laid emphasis on the fact wherever the posts have to be filled up on
regular basis the same has to be done as per the Rules. In the case
in hand it is clear that the respondents are following the Rules and
by relaxing the age of the petitioner, selecting candidates based on
W.P.(C) No.6967/2012, W.P.(C) No.7453/2012 & W.P.(C) 8094/2012 page 5 of 6
merit. Hence the contention of the petitioners that in terms of para
53 the regularization is automatic is not tenable.
16. We see no reason to interfere with the order of the Tribunal.
The writ petitions are dismissed.
17. No costs.
(V.KAMESWAR RAO)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
August 02, 2013
mm
W.P.(C) No.6967/2012, W.P.(C) No.7453/2012 & W.P.(C) 8094/2012 page 6 of 6
