Delhi High Court
Dinesh Kumar & Anr vs Indian Airlines Ltd. & Ors. on 9 January, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8730-31/2005
% January 09, 2013
DINESH KUMAR & ANR ..... Petitioners
Through: Dr. Surat Singh, Advocate with Mr.
Bhagwan Singh, Advocate.
versus
INDIAN AIRLINES LTD. & ORS. ..... Respondents
Through: Mr. Lalit Bhasin, Advocate with Ms.
R.D. Dhingra, Advocate and Ms.
Bhavna Dhami, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
+ W.P.(C) No.8730-31/2005 and C.M. No.6558/2005 (stay)
1. In the writ petition, the following reliefs are claimed:-
"(a) issue a Writ of mandamus directing the respondents to
regularize the services of the petitioners on the post of typist as the
petitioners are continuously working since 1998-2000 and five
permanent vacancies of typist are available with the respondents from
back date and with all consequential benefits.
(b) pass any other Order which this Hon'ble Court may deem fit
and proper in the interest of justice."
2. 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.
(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.
3. Counsel for the petitioners has failed to point out to me any
averment in the writ petition as to the existence of sanctioned posts as on the
date in which the petitioners were employed. The counsel for the petitioners
has also not shown to me any averment in the writ petition that within the
sanctioned posts as available there were specific vacancies. Not only are
these two crucial aspects missing in the present case, in the case of Umadevi
(supra) the Supreme Court has said that the issue of regularization of
irregularly recruited persons who are qualified for vacancies available
against sanctioned posts can only be considered for regularization provided
such employees have been working for 10 years at least on the date when
judgment in case of Umadevi (supra) was passed. Admittedly, the judgment
in case of Umadevi (supra) was passed in the year 2006 and the petitioners
have been employed from the year 1998 to 2000 i.e 10 years had not expired
when judgment in Umadevi's case (supra) was passed.
4. In view of the above, I do not find that the petitioners are
entitled to any reliefs in the present writ petition because grant of reliefs by
this Court will go against the direct ratio of the Supreme Court in the case of
Umadevi (supra).
5. Accordingly, the writ petition is dismissed, leaving the parties
to bear their own costs.
VALMIKI J. MEHTA, J
JANUARY 09, 2013
Ne
