Khem Verma & Anr. vs University Of Delhi & Anr.
2013 Latest Caselaw 3189 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                  W.P.(C) No.8462/2008
%                                                            24th July, 2013

KHEM VERMA & ANR.                                         ..... Petitioners
                Through:                 Mr. N.K. Khetrapal, Mr. S.N. Mathur,
                                         Advocates.

                          versus

UNIVERSITY OF DELHI & ANR.                           ..... Respondents

                  Through:               Mr. Mohinder J.S. Rupal, Advocate
                                         for respondent No. 1.
                                         Ms. Mamta Tiwari, Advocate for Ms.
                                         Amitesh Kumar, Advocate for the
                                         respondent/UGC.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. Petitioners by means of this writ petition seek regularization of the

services with the respondent No.1/University of Delhi.

2. Petitioners were appointed as Technical Assistant and Office

Attendant in terms of selection letters dated 19.5.1999. When we refer to

these letters, admittedly, these letters show that the appointments of the

petitioners were as temporary employees.

3. No doubt, the appointment of the petitioners continued after the

original period of about 3 years because the plan/scheme/project under

which the petitioners were appointed, continued as per the plan of the

University Grants Commission (UGC), however, petitioners' services came

to an end on account of coming to an end of the plan/scheme/project. The

respondent no. 1 in the counter affidavit has specifically stated that

petitioners were working only on contract basis and their employment was

till the duration of the plan/scheme/project. It is stated that there were no

sanctioned posts against which petitioners were appointed as they seek to be

regularized and there is no scheme of regularization of the petitioners. It is

accordingly argued by the respondents that petitioners cannot be regularized

inasmuch as they were only appointees till the scheme lasts.

4. It may be noted that during the pendency of the petition since the

scheme ended, hence, petitioners' services were not renewed. The issue of

regularization of the employees with Union of India or State Governments

or instrumentalities of State has now been conclusively decided by the

Constitution Bench of the Supreme Court in Secretary, State of Karnataka

& Ors Vs. Umadevi & Ors. 2006(4) SCC 1. The Supreme Court in the case

of Umadevi (supra) 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".

5. Since in the present case, there are no averments made by the

petitioners of vacancies existing in existing sanctioned posts, the issue in the

present case is squarely covered by the judgment of the Constitution Bench

of the Supreme Court in the case Secretary, State of Karnataka & Ors Vs.

Umadevi & Ors (supra). The respondent No. 1 in fact categorically has

stated that petitioners were only temporary or contractual employees till the

continuation of plan/scheme/project, and therefore, there is no question of

regularization.

6. In view of the ratio laid down in Umadevi's case (supra), petitioners

cannot be regularized. The writ petition is, therefore, dismissed, leaving the

parties to bear their own costs.

VALMIKI J. MEHTA, J JULY 24, 2013 godara