Delhi High Court
Anjani Kumar Jha vs Dir. Delhi Instt. Of Technology & ... on 8 May, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 3576/1997
% 8th May, 2013
ANJANI KUMAR JHA ......Petitioner
Through: Mr. G.D.Gupta, Sr. Advocate with
Mr. Piyush Sharma, Advocate.
VERSUS
DIR. DELHI INSTT. OF TECHNOLOGY & ORS. ... Respondents
Through: Ms. Avnish Ahlawat, 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 the petitioner Sh. Anjani Kumar Jha who
was appointed to the post of Hostel Superintendant by the employer/Delhi Institute
of Technology and which institute is represented by both the respondents in this
case.
2. The writ petition proceeds on the admitted fact that the petitioner's
appointment was an adhoc appointment for six months, and which was continued
from time to time. There are no averments in the writ petition that the petitioner
was an employee appointed through regular recruitment process i.e calling of
candidates through advertisements and open competition among the candidates.
WPC-3576/1997 Page 1 of 5
3. The Constitution Bench of the Hon'ble 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
WPC-3576/1997 Page 2 of 5
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".
WPC-3576/1997 Page 3 of 5
4. Therefore, even if the petitioner was duly qualified and was appointed
against vacancy in a sanctioned post, unless, appointment was through open
competition where candidates were called through advertisements, the appointment
will be an illegal appointment in view of the ratio of Umadevi's case (supra). In
fact, the ratio of Umadevi's case both in letter and spirit is to prevent back door
appointment in posts of government or its instrumentalities. Once there is no
calling of candidates through newspaper advertisements, the appointment of the
petitioner as per Umadevi's case is a backdoor entry which cannot be said to be
regular appointment for being regularized against a sanctioned post.
5. Learned senior counsel for the petitioner sought to argue that there
was urgency for appointment to the post in question and therefore petitioner was
appointed and consequently the ratio of Umadevi's case (supra) does not apply. I
do not agree. The Supreme Court in the case of Umadevi's case (supra) has
clarified that whatever be the reason, there cannot be permanent employment or
regular employment to a sanctioned post unless there is an open competition
among candidates who are called through advertisements, including in newspapers
and/or through employment exchange. Admittedly, in the present case, since there
is no appointment of the petitioner after calling of candidates through newspaper
advertisements and who have undergone open competition, the petitioner cannot
claim regularization in service and cannot seek quashing of the order of
WPC-3576/1997 Page 4 of 5
termination of services.
6. 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.
MAY 08, 2013 VALMIKI J. MEHTA, J.
ib
