Kamlesh Kumar Singh & Anr. vs Union Of India And Ors.
2013 Latest Caselaw 2962 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                  W.P.(C) No.7886/2011
%                                                              15th July, 2013

KAMLESH KUMAR SINGH & ANR.            ..... Petitioners
                Through:  Mr. C. Hari Shankar, Advocate with
                         Mr. S. Panda, Advocate.

                          versus

UNION OF INDIA AND ORS.                                     ..... Respondents

Through: Mr. Sumeet Pushkarna, CGSC for respondent No.1.

Mr. G. Tushar Rao, Advocate with Mr. D.V. Venkata Krishnajee, Advocate for respondent No.2.

Mr. Sahil Bhalaik, Advocate for respondent Nos.4 and 5.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition, the petitioners seek the relief of being

granted all monetary benefits including the arrears pleading that they should

be treated as regular employees from the dates of their initial appointments

viz 4.5.1994 (petitioner No.1) and 9.5.1994 (petitioner No.2).

2. At the outset, I must note a detailed order which is passed by

the Chairman of the respondent No.2/National Commission for Backward

Classes ie the employer on 1.8.1996 and the same reads as under:-

      "                                Trikoot-I, Bhikaji Cama Place
                                             New Delhi-110066
                                             1st August, 1996
                   ORDER OF APPOINTMENT OF DRIVERS

Whereas the National Commission for Backward Classes was constituted by Govt. of India‟s Notification No.12011/34/BCC/Pt.I dated 14th August, 1993 AND Whereas by Govt. of India, Ministry of Welfare‟s Notification No.12011/6/93-BCC(C) dated the March, 1994 besides some other posts, 5 posts of Drivers for the official Cars to be provided to the Chairman and other Members were sanctioned AND Whereas intimation to the NCBC about the 5 Ambassador Cars purchased by the NCBC in accordance with the sanction of the Govt of India was received from the dealer under letter dated 14th March, 1994 and it was a matter of extreme urgency for the NCBC to employ the 5 Drivers whose posts had been sanctioned by the Govt of India as aforesaid AND Whereas the appointments to all posts in the NCBC sanctioned by the Govt of India except those of Joint Secretary and Deputy Secretary is to be made by the Commission itself as stated in Parliament by the then Hon‟ble Welfare Minister Shri Sita Ram Kesari in reply to Rajya Sabha Unstarred Question No.3435 of August, 1994 and also stated in Memorandum No.12011/66/93-BCC dated 18th March, 1996 sent by Shri M.S. Ahmed, Joint Secretary, Ministry of Welfare to the Department of Personnal and Training.

AND Whereas in accordance with the rules of the Govt of India requests were sent as per letter No.NCBC/9/7/93 dated 17.3.1994 to (1) The Directorate Central of Re-settlement of the Ministry of Defence (2) To the Surplus Cell of the Department of Personnel and Training of the Central Govt.

(3) All the Ministries/Departments

for forwarding to the NCBC a panel of names of suitable persons for appointment as Drivers in the NCBC on the sanctioned AND Whereas to meet the contingency of suitable names not being forwarded by the above Agencies, request was also sent under the same letter number to the Employment Exchange to furnish a list of names for appointment to the posts of Drivers, of suitable person fulfilling the following requirements:

(i) Possession of a valid driving licence for motor vehicles.

(ii) Knowledge of motor mechanism (candidates should be able to remove minor defects in the vehicles)

(iii) Experience of driving for atleast 3 years.

(iv) Pass in the VIIIth Standard (desirable) AND Whereas in accordance with the rules of the Govt of India a Selection Committee for selection for appointment to the posts of Drivers either from panel of names from the aforesaid Agencies or from the list of names provided by the Employment Exchange, was constituted consisting of the following persons: (1) Shri S.P. Biswas (Supreme Court), Joint Secretary, NCBC (2) Shri R. Bharadwaja, SAO, NCBC (3) Shri Kanta Prasad, SO in SC/ST Commission AND Whereas no names were received from the Agencies as mentioned above in due time and a list of names were forwarded only by the Employment Exchange of persons who were duly registered therein but the list did not show that any ST candidate was available and in view of the urgency viz that the Cars had already arrived with the dealer and the latter was pressing for the delivery and further it was also urgently necessary to have the Drivers so that they could go and duly check the Cars prior to the delivery The Selection Committee in its meeting on 29.4.94 made selection, in order of merit, of the following persons for appointment to the posts of drivers

1. Shri Kamlesh Kumar Singh (General)

2. Shri Zakhir Hussain (OBC)

3. Shri Rajesh Kumar (SC)

4. Shri Sanjay Kumar Yadav (OBC)

AND Whereas in accordance with the selection, on the basis of merit, the four viz (1) Shri Kamlesh Kumar Singh (2) Shri Zakhir Hussain (3) Shri Rajesh Kumar (4) Shri Sanjay Kumar Yadav were appointed on the post of Drivers besides Shri Suresh Kumar (SC) who was on „deployment to the SC/ST Commission on withdrawal from there was sent on "re-deployment" as driver in the NCBC by Ministry of Welfare (vide Order No.A15017/1/92-Estt dated 18.3.1994 of Ministry of Welfare) AND Whereas in view of the above while Shri Suresh Kumar was employed to work as Driver in the NCBC on regular salary basis the other four persons were appointed to work as drivers on daily wage basis and they joined on - dates noted below:- Sh. Kamelesh Kumar Singh (General) - 04.05.1994 Sh. Zakhir Hussain (OBC) - 09.05.1994 Sh. Rajesh Kumar (SC) - 09.05.1994 Sh. Sanjay Kumar Yadav (OBC) - 09.05.1994 AND Whereas error crept in by oversight in the aforesaid order of appointment of the four drivers on dailywage basis as according to the rules of the Govt of India, no appointment of drivers class III can be done on dailywage basis and as such at the very initial stage, in accordance with the rules of the Govt of India the appointment ought to have been on regular salary basis AND Whereas the Hon‟ble Members with whose official cars these drivers have been attached are fully satisfied with their performance and have also expressed that keeping in view the point of security and safety of the Members as well as their family members particularly when they are required to go out in evening are at night to Airport, Railway Stations, Hospitals etc. it is necessary that these five drivers should continue to be employed by the NCBC. AND Whereas it is not proper that the erroneous situation in respect of four drivers appointed on dailywage basis should continue any further and it is extremely necessary to rectify it without any further delay by

regularising the initial appointment on salary basis. AND Whereas Shri Suresh Kumar and Shri Rajesh Kumar belong to the Supreme Court community and Shri Zakir Hussain and Shri Sanjay Kumar Yadav belong to the OBC community and among the five Shri kamlesh Kumar Singh is the only General candidate ( and as already mentioned no ST candidate has been forthcoming ) .

Accordingly it is hereby ORDERED That the four dailywage drivers are hereby appointed from the initial date of their joining as drivers on regular salary basis in the NCBC, while Shri Suresh Kumar who has already been working on regular salary basis from the very initial stage i.e 21.3.1994 continues on that basis.

However the absorption of Shri Suresh Kumar under "redeployment" from the Ministry of Welfare is dependent on the consent of the ministry to the transfer of his services to the NCBC and as regards Shri Rajesh Kumar it is dependent on medical clearance which is still pending and in case he is not able to get the medical clearance he will have to be replaced by another driver by fresh selection.

This order shall take effect immediately. Office to take necessary steps without delay.

A copy of this order be given to each of the concerned five drivers.

(JUSTICE R.N. PRASAD )"

3. A reference to the aforesaid order shows that the petitioners

have wrongly been denied regular appointments although there existed the

necessary number of sanctioned and vacant posts of Drivers.

4. During the course of hearing, learned counsel for the petitioners

has also pointed out to me the letter dated 20.1.1994 of the Union of India

and which shows creation of five posts of Staff Car Drivers for the

employer-respondent No.2. This order reads as under:-

   "                           Shastri Bhavan, New Delhi-110001
                               Dated the 20-1-1994.
   To
   The Member Secretary,

National Commission for Backward Classes, Ministry of Welfare, West Block 1, R.K. Puram, New Delhi.

Subject: Sanction for creation of additional posts of Staff Car Drivers for NCBC

Sir, I am directed to convey the sanction to the President for creation of 5 posts of Staff-Car-Drivers in the scale of `950-1500 with immediate effect and upto 28th Feb. 1994.

2. The expenditure involved will be debitabel to Major Head „2225‟, Sub head C-3 Welfare of Backward Classes, C.3(1) Directions and Administration, C.3(1) (1) NCBC (non-plan) for the year 1993-94.

3. This issues with the concurrence of CS No. 151/94 dated 20.1.1994.

Yours faithfully,

(Manjula Krishnan) Director BCC (C) Copy to:

1. The Pay & Accounts Officer, M/o Welfare

2. A.O., Finance, Department of Expenditure,

3. Estt.

4. L.F. Wing,

5.

6. Sanction Folder.

7. Guard File.

(Manjula Krishnan) Director BCC (C)"

5. The aforesaid facts show that there were sanctioned posts of

Drivers, there were vacancy in the sanctioned posts, petitioners and other

persons were called through the employment exchange i.e the normal

method of recruitment. In view of the above facts, and therefore, the

Chairman of the respondent No.2 had passed an order on 1.8.1996 directing

the petitioners to get benefits of regular employment from the dates of their

initial employment. I may note that though the order of regularization was

passed by the Chairman on 1.8.1996 i.e much before the Constitution Bench

judgment of the Supreme Court in the case of Secretary, State of Karnataka

& Ors Vs. Umadevi & Ors. 2006 (4) SCC 1 was passed, however, the

present case in fact satisfies all the requirements of the ratio of judgment in

the case of Umadevi (supra) because there were sanctioned posts, there

were vacancies in the sanctioned posts and petitioners were appointed

through a regular recruitment process inasmuch as their names were sent

through the employment exchange.

6. The only issue which is canvassed on behalf of respondent

No.1 (Union of India) and respondent Nos.4 and 5 being the subsequent

appointees on 5.1.1999 and 19.5.1999, is that there were no recruitment

rules and therefore the appointment of the petitioners cannot be said to be

regular appointment. In the counter affidavit of the Union of

India/respondent No.1 it is also mentioned that the appointment is from open

market and therefore not legal.

The argument which is urged on behalf of respondent Nos.1, 4 and 5

of the appointment of the petitioners being not legal does not carry any

weight at all because it cannot be that in the absence of recruitment rules

there cannot be any regular appointments. If there are no recruitment rules,

the governing body of the respondent No.2 will decide the criteria for

appointment, however, in the absence of the recruitment rules once the

appointments are regular appointments against sanctioned posts having

vacancies, it cannot be that appointments are not regular appointments. This

argument of respondent nos. 1,4 and 5, if accepted would be a gross

travesty of justice because the petitioners would be denied benefits which

they otherwise are entitled to as regular employees of the respondent No.2. I

may also note that the contention of the respondent No.1 that appointment of

the petitioners was through the market process is ambivalent to say the least

because the order of the Justice R.N. Prasad, the Chairman of respondent

No.2 in fact shows that the appointment of the petitioners was by calling of

their names through the employment exchange viz the regular recruitment

process.

7. In view of the above, the writ petition is allowed. Petitioners

are granted all monetary benefits as also seniority taking their appointment

to be regular appointments from the dates of their initial appointments i.e

4.5.1994 and 9.5.1994. Arrears be paid by the respondent No.2 to the

petitioners within a period of eight weeks from today. In case, arrears are

not paid in the aforesaid period, the petitioners thereafter will be entitled to

interest @ 7 ½ % per annum simple till actual payment. Parties are left to

bear their own costs.

VALMIKI J. MEHTA, J JULY 15, 2013 Ne