Delhi High Court
Hindustan Engg. & Genl. Mazdoor ... vs All India Council For Technial ... on 8 February, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 2187/1998 & CM No. 3564/1998
% 8th February, 2013
HINDUSTAN ENGG. & GENL. MAZDOOR UNION (R) & ORS
...... Petitioners
Through: None.
VERSUS
ALL INDIA COUNCIL FOR TECHNIAL EDU. & ORS. ..... Respondents
Through: Mr. Amitesh Kumar and
Mr. Mayank Manish, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. No one appears for the petitioners although it is 3.05 PM. No
one appeared for the petitioners on 5.1.2012, 20.4.2012, 27.4.2012 and
30.7.2012.
2. A reference to the writ petition shows that regularization in
services is claimed of 34 workmen as stated in Annexure-A, and directions
W.P.(C) 2187/1998. Page 1 of 5
were sought from the respondents to allow the 34 workmen to join their
duties which they have been doing prior to 13.4.1998. The case of the
petitioners was that the casual work which the 34 workmen were doing of
cleaning etc. was regular in nature and therefore, the 34 workmen should be
regularized in the posts. Reference to the writ petition shows that there are
no averments of there being any sanctioned posts or there being any
vacancies in said sanctioned posts or that the 34 workmen were appointed
through a regular recruitment process. In the case of Secretary, State of
Karnataka & Ors Vs. Umadevi & Ors. 2006(4) SCC 1, the Supreme Court
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.
W.P.(C) 2187/1998. Page 2 of 5
(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
W.P.(C) 2187/1998. Page 3 of 5
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."
3. In view of the above, the Constitution Bench judgment in the
case of Umadevi (supra), the 34 workmen as stated in Annexure A,
including the petitioners 2 to 5, cannot be granted regularization or
W.P.(C) 2187/1998. Page 4 of 5
employment inasmuch as there are no averments in the petition of these 34
workmen having been appointed through the regular recruitment process.
4. There is therefore no merit in this petition, which is accordingly
dismissed.
FEBRUARY 08, 2013 VALMIKI J. MEHTA, J.
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