Delhi High Court
Md. Salman Khan vs Union Of India & Ors. on 8 February, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 1511/1998
% 8th February, 2013
MD. SALMAN KHAN ...... Petitioner
Through: None.
VERSUS
UNION OF INDIA & ORS. ...... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This case is on the regular board of this court since 2.1.2013. No one
appears for the petitioner although it is 3.00 PM. No one appeared for the
petitioner even on 2.3.2010, 3.1.2012 and 13.4.2012. I have therefore gone
through the record of the present case and am proceeding to decide the
matter.
2. By this writ petition the petitioner who was an employee of the
respondent no.2 seeks quashing of the order dated 9.2.1998 whereby his
W.P.(C) 1511/1998 Page 1 of 5
services were terminated. The impugned order dated 9.2.1998 shows that
the petitioner was working only on temporary basis and having been found
indisciplined, discourteous and immodest, and did not change despite
repeated warnings, his services were terminated.
3. A reference to the counter-affidavit filed by the respondent no.2
shows that the petitioner was given temporary status in terms of a letter
dated 6.1.1997. The petitioner was a casual employee. This letter clearly
shows that casual employees who have been granted temporary status shall
not be given permanent employment till they have been selected through the
regular recruitment process by Central Pollution Control Board-respondent
no.2.
4. 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
W.P.(C) 1511/1998 Page 2 of 5
(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.
W.P.(C) 1511/1998 Page 3 of 5
(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.
5. In view of the ratio of Umadevi's (supra) case the petitioner cannot be
granted regularization in services as he was not appointed through the
regular recruitment process.
W.P.(C) 1511/1998 Page 4 of 5
6. Also a reference to the appointment letter to the petitioner dated
6.1.1997 shows that the services of the persons such as the petitioner can
also be terminated by giving one month's notice or by assigning any other
reason. Therefore, the petitioner's services were only casual in nature which
could always be terminated by giving notice.
7. In view of the above reasons, there is no merit in the writ petition,
which is accordingly dismissed.
FEBRUARY 08, 2013 VALMIKI J. MEHTA, J.
ib
