Delhi High Court
Laxmi Narain vs Union Of India on 7 January, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3236/1996
% January 07, 2013
LAXMI NARAIN ..... Petitioner
Through: None.
versus
UNION OF INDIA ..... Respondents
Through: Mr. Rahul Bhandari, Adv. for R-2.
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 on behalf of the petitioner although the matter
is effective item No.15 on the Regular Board and it is 2.50 P.M.
2. By this petition, the petitioner seeks the following reliefs:-
i) To issue direction/orders/writ in the nature of mandamus or
any other appropriate writ, directing/ordering the Respondent
Institute to re-appoint the Petitioner and grant him temporary
status pending regularization of his services in terms of OM dated
10.9.93 (Annexure P-3).
ii) To issue any other order/direction or appropriate writ that
may be deemed fit under the circumstances of the case.
iii) To award costs."
3. A reading of the petition shows that the petitioner essentially
claims regularization or confirmation of temporary status pending
regularization, on the basis of his past service which was either as a daily
wager or a contractual labour. The issue with regard to claim of
regularization and continuous contractual employment has now been settled
by the Supreme Court in the case of Secretary, State of Karnataka & Ors.
vs. Uma Devi & Ors., 2006 (4) SCC 1 wherein the following ratio has been
laid down:-
(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."
4. In view of the above, since the case of the petitioner is not that
there is a vacancy in the sanctioned post for which a recruitment process has
been initiated, the petitioner is not entitled to the reliefs claimed in the
present petition because the Supreme Court in Uma Devi's (supra) case has
said that there is no legitimate expectation of a person who is a casual
labourer or a contractual employee for regularization inasmuch as there
cannot be any assurance by the Government or its instrumentalities to give a
regular status or a confirmed temporary status to such employees which
violates the constitutional mandate. The Supreme Court in the case of Uma
Devi's (supra) has also said that such casual labourers or contractual
labourers cannot claim to be regularized alleging violation of Article 21 of
the Constitution of India. The Supreme Court has further clarified that
giving a confirmed status to a casual labourer or a contractual person would
be to stall the regular recruitment process which is not permissible.
5. 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 07, 2013
ak
