Delhi High Court
Mr. Bijender And Ors. vs Chairman, Airports Authority Of ... on 22 March, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.13489/2009
% March 22, 2013
MR. BIJENDER AND ORS. ..... Petitioners
Through: Mr. Chandan Sharma, Advocate
with Ms. Manya Kumar, Advocate.
versus
CHAIRMAN, AIRPORTS AUTHORITY OF INDIA AND ANR.
..... Respondents
Through: Mr. S.K.Singh, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This writ petition is filed by three petitioners. The
petitioners were appointed as Safai Karamcharis on contractual basis and
were working with respondent No.2, namely Airports Authority of India.
The petitioners claim regularization on account of having worked as
casual employees for about 16 years.
2. 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:-
(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. It could not be disputed on behalf of the petitioners that the
petitioners were casual employees and were being paid only for the
number of days they were working with the respondent No.2. The fact
that they have been paid only for the number of days they worked with
respondent No.2 becomes clear from the documents of the petitioners
themselves which have been filed with the writ petition and which are
from running pages 12 to 38.
4. The ratio of the Constitution Bench judgment of the
Supreme Court in the case of Umadevi (supra) makes it clear that the
casual employees/labour cannot be regularized inasmuch as there are no
sanctioned posts against which they were appointed, the appointments are
not through regular recruitment process, and, there are no vacancies
against sanctioned posts to which they claim to be working.
5. Learned counsel for the petitioners sought to rely upon the
report dated 20.4.2006 of Executive Director of the respondent No.2
stating that petitioners should be regularized, however, I note that this
circular cannot supersede the ratio of the Constitution Bench judgment of
the Supreme Court in the case of Umadevi (supra) and which ratio
specifically states that neither the Court nor the Executive have powers to
carve out a policy for regularization of casual employees.
6. I may at this stage also state that counsel for respondent
No.2 has stated that the petitioners were not even in service and were not
employed by the respondent No.2 in November, 2009 when the writ
petition was filed. This seems to be correct as even the documents filed
by the petitioners do not show that they were working with the
respondent No.2 as on the date of filing of the writ petition.
7. In view of the above, there is no merit in the writ petition
which is accordingly dismissed, leaving the parties to bear their own
costs.
VALMIKI J. MEHTA, J
MARCH 22, 2013
Ne
