Delhi High Court
Bachhan Lal vs Union Of India & Ors. on 8 May, 2013
Author: V. Kameswar Rao
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on May 06, 2013
Judgment Delivered on May 08, 2013
+ W.P.(C) 7480/2011
BACHHAN LAL ..... Petitioner
Represented by: Mr.Pradeep K. Bakshi,
Mr.Rajat Navet and
Mr.Kushagra Pandit, Advs.
versus
UNION OF INDIA & ORS ...... Respondents
Represented by: Mr.R.V Sinha and Mr. A.S
Singh, Advs.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.
1. The challenge in the Writ Petition is to the order dated September 29,
2011 passed by the Central Administrative Tribunal, Principal Bench, New
Delhi (the Tribunal) in O.A No.821/2011 and M.A No.1803/2011, whereby
the Tribunal dismiss the O.A on the ground of principle of res-judicata.
2. The facts are that the O.A filed by the petitioner is a second one as he
had earlier filed an O.A No.103/1998 for the same relief, which was
dismissed on October 13, 2000.
3. It is the case of the petitioner that he was appointed on ad-hoc basis in
1987 and he has been continuously working on the said post. Since he was
over-aged for fresh recruitment as per rules for the post of Information
Assistant, he was ineligible. The Tribunal while deciding O.A No.103/1998
vide order dated October 13,2000 had held that since the petitioner has been
working since 1987 his case should be considered after relaxation of his age
in any future appointment of available vacancies.
4. It is noted that the O.A from which the impugned order arises, the
petitioner has sought a direction against the respondent Nos.1 & 2 to
regularize his services in view of his regular and unblemished service record
of 24 years.
5. Before the Tribunal, the counsel for the petitioner relied upon the
judgment of the Supreme Court reported as (2006) 4 SCC 1 Secretary, State
of Karnataka & Ors. vs. Uma Devi & Ors.. to contend that the petitioner is
entitled to regularization. The Tribunal, referring to the terms of
appointment of the petitioner, has held that the same was as a stop gap
arrangement against the short term vacancies at Government of India Tourist
Office at Varanasi and the post in question i.e. Information Assistant, which
according to the rules has to be filled through SSC and as such no case has
been made on merits and further since the earlier judgment rendered by the
Tribunal has attained finality, it is not permissible for the petitioner to file
the second O.A for the same relief and dismissed the same on the ground of
principle of res-judicata.
6. During the course of submissions, Mr.Pradeep K. Bakshi, Advocate
contended that the petitioner having put in so many years of service, he is
entitled to be regularized on the post of Information Assistant. He relies
upon the judgment of the Supreme Court in Uma Devi's case (supra) as well
as judgment of the Supreme Court reported as (2010) 9 SCC 247 State of
Karnataka & Ors. vs. M.L Kesari & Ors. in support of his contentions.
7. Mr.R.V Sinha, Advocate appearing for the respondents opposes the
claim of the respondents and supports the reasoning given by the Tribunal
while dismissing the O.A.
8. The terms of appointment of the petitioner as Information Assistant
are very clear. The same is as a stop gap arrangement against a short term
leave vacancy. It is surprising that despite such an appointment, the
petitioner has continued for almost 25 years. It is noted from the order of the
Tribunal in the earlier O.A i.e. O.A No.103/1998 that in 1993 and 1997 such
vacancies have been filled but he had failed to take the benefit of age
relaxation granted in 1993 & 1997. The rules governing the appointment of
Information Assistant stipulates that the same have to be filled through SCC.
No such procedure was followed at the time of appointment of the
petitioner. In any case, the Tribunal had, in earlier O.A i.e. O.A
No.103/1998, already directed that his case be considered after relaxation of
his age in any future appointment of available vacancies. The direction in
the O.A has attained finality. The Supreme Court in Uma Devi's case
(supra) has clearly held that the appointment through the mode of
absorption, regularization or permanent continuance of temporary,
contractual, casual, daily wage or adhoc employees appointed/ recruitment
de-hors the constitutional scheme of public employment is impermissible
and it further held that appointments made without following the due
process or the rules for employment did not confer any right on the
appointees and that the Court cannot direct their absorption or regularization
or re-arrangement for making them permanent.
9. The reliance placed by Mr.Bakshi on M.L Kesari's case (supra) is
totally mis-placed. In that case, the Supreme Court while dealing with the
exception contained in para 53 of Uma Devi's case (supra) has given a
clarification between 'irregular' and 'illegal' appointments. The Supreme
Court has held that where the appointment of an employee is not made or
continued against sanction post or where the persons appointed do not
possess the prescribed minimum qualifications, the appointments would be
considered to be illegal. On the other hand, the persons employed possess
the prescribed qualifications and was working against Sanction Post but had
been selected without undergoing the process of open competitive selection,
such appointments are considered to be irregular.
10. In the case in hand, it is seen that the appointment of the petitioner on
ad-hoc basis was as a stopgap arrangement and against a short term vacancy,
which would make it clear that it was not against a sanctioned post. Further,
the appointment has to be effected through SSC only, which is the
requirement of the rules.
11. In any case, the Tribunal in its earlier order has directed that the
petitioner's case should be considered after relaxation of his age in any
future appointment of available vacancies. Since those directions have not
been diluted/ modified, the same stands. In view of the above, we don't see
any infirmity in the orders passed by the Tribunal. The Writ Petition is,
accordingly, dismissed.
12. No costs.
(V.KAMESWAR RAO)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
MAY 08, 2013
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