Ashok Kumar & Ors. vs Central Warehousing Corporation ...
2013 Latest Caselaw 131 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P. (C) No.5219/1998

%                                                           January 09, 2013


ASHOK KUMAR & ORS.                                            ...... Petitioners
                Through:                     Mr. Mahesh Srivastava, Advocate.


                            VERSUS


CENTRAL WAREHOUSING CORPORATION & ORS. ...... Respondents

Through: Mr. K.K. Tyagi, Advocate with Mr. Iftekhar Ahmad, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. In the present writ petition, seven petitioners who were casual

labourers of the respondent No.1-Central Warehousing Corporation claim

the following reliefs:

"i) issue and appropriate writ in the nature of mandamus commanding the respondents to regularize the services of the petitioners in the interest of justice;

ii) issue and appropriate writ in the nature of mandamus directing the

respondents to pay equal wages for equal work to the petitioners at par to the operators who are regular and permanent.

iii) pass any other order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the present case."

2. The prayer clause (ii) is effectively to say that wages which

should be granted should be as per the permanent employees of the Central

Warehousing Corporation.

3. The case of the petitioners can be best understood by their

synopsis and list of dates of events which reads as under:-

"SYNOPSIS AND DATES OF EVENTS

The petitioners have been appointed by the respondent Corporation as their casual workers and since the date of their appointment the petitioners have been working with the respondent corporation continuously.

That the respondent corporation has been awarded a contract of the pest and rodent control services at the Indira Gandhi International Airport New Delhi. The respondent corporation deputed the petitioners to do the job at the Airport pursuant to the aforesaid contract.

That the petitioners have been issued identity cards so that they may enter the premises of the Airport on the basis of being workers of the respondents corporation and the Corporation has also admitted the fact that the petitioners are their casual workers by way of certifying their date of appointment as well as their date of retirement. That the petitioners despite being employees of the respondent corporation are not getting the minimum prescribed wages and also not getting equal wages and other benefits which are available to other employees of the respondent corporation. The petitioners are also not getting their services regularized. When the petitioners demanded for these benefits, the respondent corporation are now

trying to throw them out and trying to fill up their vacancies by the workers to be supplied by the private contract labour suppliers. Hence this writ petition is being filed before this Hon'ble Court." (underlining added)

4. The Constitution Bench of the Supreme Court in the case of

Secretary, State of Karnataka & Ors Vs. Umadevi & Ors. 2006(4) SCC 1

has laid down the following ratio with regard to recruitment for public

employment:-

(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 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 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. Points (i), (ii), (iv) and (vii) above apply to the facts of this case

because counsel for the petitioners on the query of the Court fails to point

out any averment in the writ petition as to what were the sanctioned posts of

the casual labourers of the Central Warehousing Corporation when the

petitioners were sought to be appointed as casual labourers by the Central

Warehousing Corporation; what were the vacancies available in the

sanctioned posts of casual labourers; what were the recruitment rules with

respect to employment of casual labourers and their qualification; and

finally, as to whether a regular recruitment process was followed for

employment of the petitioners.

6. Therefore, it is quite clear that petitioners who are casual

labourers cannot seek regularization and also therefore no benefit of

consequential equal rights for pay etc as the permanent employees of the

respondents-corporation inasmuch as to allow such prayers as made by the

petitioners would be to violate the direct ratio of the Constitution Bench

judgment of the Supreme Court in the case of Umadevi (supra) by giving

regularization without point (i) of the ratio as stated above being complied

with.

7. Learned counsel for the petitioners states that petitioners are

casual labourers of the respondents-corporation and which could be seen

from page 19 of the writ petition. The same however cannot make any

difference because even assuming if the petitioners are employees of

respondent No.1, as stated above, they cannot be regularized in view of ratio

of the judgment of the Supreme Court in the case of Umadevi (supra).

8. For the sake of record, I may note that even as per the case of

petitioners, the petitioners are no longer employed with the respondents-

corporation for last about 14 years i.e from the year 1999.

9. In view of the above, there is no merit in the petition which is

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

VALMIKI J. MEHTA, J JANUARY 09, 2013 Ne