Rakesh Kumar Soriob And Ors. vs Indian Air Lines And Another
2013 Latest Caselaw 506 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           WP(C) No.3517/1997

%                                                        February 04, 2013

RAKESH KUMAR SORIOB AND ORS.                 ..... Petitioners
                Through: Mr. Ajay Kumar Tandon, Advocate
                         with Mr. Shivanshu Kumar, Advocate
                         for petitioner No.1.


                            versus


INDIAN AIR LINES AND ANOTHER                  ..... Respondents

Through: Mr. Lalit Bhasin, Advocate with Mr. Ratna D. Dhingra, Advocate with Ms. Bhavna Dhami, Advocate and Ms. Sneha Balakrishnan, 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 filed under Article 226 of the Constitution of

India is by nine petitioners seeking the following reliefs:

" It is therefore, prayed that a writ of Mandamus be issued directing the respondents to absorb the Petitioners as Engineer helper from the date of their employment with the respondent and also issue suitable directions and appropriate write, directing the respondents to pay at

the same rate as paid to other employees.

A writ of Prohibition be also issued to the respondents not to terminate the services of the Petitioner during pendency of the Writ Petition and status-quo be maintained.

It is further prayed that the petition be allowed by regularizing their services with all consequential benefits of service in the regular establishment of the 1st respondent, and upon return of the Rule and upon hearing the parties, may further be pleased to:-

(ii) pay them the equal pay as are admissible to the other regular employees during the similar/same nature of work, and

(iii) not to disengage/terminate the services of the casual workers misconstruing the judgment rendered by this Hon'ble Court dated 9.5.1997, vide Annexure.

(b) make the Rule Absolute by directing the respondents authorities by a writ of Mandamus or any other appropriate writ or recommend to absorb petitioners by regularizing their services in the regular establishment of the 1st respondent with all consequential benefits of service; and not to disengage/terminate their services till actual regularization;

     (c)       award cost; and
     (d)       make such other and further order as this Hon'ble Court

may deem fit and proper in the facts and circumstances of the case. AND FOR THIS, THE PETITIONER SHALL EVER PRAY."

Counsel for the petitioner No.1 states that actually now

petitioner Nos.2 to 9 are not pursuing the case and it is only the petitioner

No.1 who is pursuing the case for the reliefs being granted.

2. Whatever be the language of the prayer clauses, effectively,

what the petitioner No.1 seeks is appointment by regularization of his

services on the basis of certain past services rendered by him with the

respondent No.2.

3. The petitioner was appointed as an Engineer Helper in

Engineering Department. The petitioner before filing of the writ petition

and during the pendency of this writ petition which was filed on 13.8.1997

worked for the following periods:-

             "PERIOD                                DAYS





                   TOTAL                            966"

4. A reference to the writ petition as also the additional affidavit

by the respondent No.1 on 18.12.2002 shows that the petitioner No.1 was

only a casual helper. The appointment of the petitioner as a casual worker

by its very nature is not against any specific sanctioned post. Of course, in a

particular case it may be that the nature of the work of a person may be

called casual, however, there can be sanctioned posts even for such causal

workers.

5. Petitioner No.1 prays that he should be absorbed by the

respondent No.1 on account of his having worked for the aforesaid periods

totalling to 966 days. On behalf of petitioner No.1, his counsel has argued

that the petitioner No.1 should be given employment or regularization either

from 8.11.1992 or 16.4.1996 being the first date of the first appointment of

the petitioner or first date of the last casual appointment of the petitioner.

6. Admittedly, however, the petitioner No.1 was not employed

under a regular recruitment process through advertisement and/or

information being submitted by the employment exchange. The

Constitution Bench judgment of the Supreme Court in the case of Secretary,

State of Karnataka & Ors. vs. Uma Devi & Ors., 2006 (4) SCC 1 has laid

down the following ratio:

(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 recruit 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 irregularity appointed persons cannot claim to be regularized alleging violation of Article 2. 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 irregularity 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 regularised 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. In view of the aforesaid ratio there are only two categories of

persons who can seek employment with Central Government or State

Government or instrumentalities of State. The first set of persons are those

persons who have been appointed by a regular recruitment process i.e firstly

there has to be a sanctioned post, secondly there is vacancy in that post,

thirdly the concerned persons satisfy the necessary qualifications and lastly

the recruitment is through a regular recruitment process in accordance with

the rules including by inviting applications by issuing of advertisement.

8. It is not disputed on behalf of petitioner No.1 before me that

appointment of the petitioner No.1 was not pursuant to a regular recruitment

process whether through the employment exchange or after advertisement

was issued in the newspaper. This fact itself in my opinion is good enough

to deny the reliefs claimed by the petitioner No.1 in the present petition

because the Constitution Bench has now made it abundantly clear that no

appointment to a public post be granted unless regular recruitment process is

followed. Since the regular recruitment process admittedly was not followed

in granting the employment to the petitioner No.1, there does not arise the

question of granting employment to the petitioner No.1 either afresh or by

regularization on the basis of his past services totalling to 966 days.

9. Though, counsel for the petitioner No.1 has very strenuously

endeavoured to show that there were sanctioned posts with vacancies of

casual labour, I find that there is no specific document showing existence of

specific sanctioned posts of casual labour either on 8.11.1992 or 16.4.1996,

the two dates which are relied upon by the petitioner No.1 to seek

employment/regularization of employment. Counsel for the petitioner No.1

has referred to documents at pages 188 and 201 of the paper book being the

circulars/letters dated 3.1.1998 and 28.11.2002 and which show existence of

vacancies for casual labour or inviting the applications for appointments of

casual labour but they do not pertain to the dates of 8.11.1992/16.4.1996.

Also, that would not change the issue so far as the present petitioner is

concerned who has not been employed by the regular recruitment process.

10. Counsel for the petitioner urges that in place of the petitioner

who was an ad hoc/casual worker, another casual worker, namely Sh.

Subhash Chander is appointed and therefore the petitioner No.1 could not

have been removed from the services and Sh. Subhash Chander appointed in

his place. Reliance is placed in this regard upon the judgment of the

Supreme Court in the case of State of Haryana and Others Vs. Piara Singh

and Others (1992) 4 SCC 118 and paras 45 and 46 whereof read as under:-

"45. The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an adhoc or temporary appointment to be made. In such a situation, effort should always be to replace such an adhoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an adhoc/temporary employee.

46. Secondly, an adhoc or temporary employee should not be replaced by another adhoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority."

11. In my opinion, the judgment which is relied upon by the

petitioner No.1 cannot help the petitioner No.1 because the observations as

made by the Supreme Court in the judgment in the case of Piara Singh

(supra) have to be read in the light of the ratio of the Constitution Bench

judgment in Uma Devi's(supra) case that no doubt one ad hoc employee

cannot replace another ad hoc employee and there will have to be regular

recruitment process, however, that will not help the petitioner No.1 to secure

employment as he was not appointed through the regular recruitment

process. Also, in the present case the appointment of Sh. Subhash Chander

is not in issue and is not sought to be challenged by the petitioner No.1,

besides the fact that Sh. Subhash Chander is not even a respondent in the

present case.

Therefore, I need not examine the issue of validity of

appointment of Sh. Subhash Chander in place of petitioner No.1 inasmuch as

it is the petitioner No.1 who is seeking appointment or regularization of

services admittedly when the regular recruitment process was not followed

at the time of appointment of the petitioner No.1.

12. Finally, counsel for the petitioner No.1 urged that a panel of

persons to be appointed was drawn up by the competent authority of the

respondent No.1 on 20.11.1990, and of which panel over 200 candidates

were empanelled, and therefore petitioner No.1 had shown existence of

vacancies with respect to casual labour and therefore the petitioner No.1

ought to have been appointed as he has worked for 966 days. Counsel for

the petitioner No.1 for this purpose relies upon the certain facts which have

been noted by a Division Bench of this Court in its decision dated 9.5.1997

in C.W.P. No.4113/1994.

13. In my opinion, this last argument urged on behalf of the

petitioner No.1 is like putting old wine in new bottle i.e effectively the

petitioner No.1 seeks absorption or regularization of the employment

without following the regular recruitment process. This I cannot do because

it will violate the ratio of the judgment of the Supreme Court in the case of

Uma Devi (supra).

14. In view of the above, I do not find any merit in the petition

which is accordingly dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J FEBRUARY 04, 2013 Ne