Shashank Shekhar Sinha vs Technology Development Board & ...
2013 Latest Caselaw 2148 Del

$~9.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+     W.P.(C) 2151/2012
%                                             Date of Decision: 9th May, 2013
      SHASHANK SHEKHAR SINHA                     ..... Petitioner
                  Through: Mr.Shanker Raju, Adv.

                    Versus

      TECHNOLOGY DEVELOPMENT BOARD & ANR                          ..... Respondents

Through: Mr.Neeraj Jain, Adv.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?                    Yes

VALMIKI J. MEHTA, J (ORAL)

1. This writ petition is filed by the petitioner-Shashank Shekhar Sinha

challenging the impugned order dated 11.10.2011 of the respondent

No.1/Technology Development Board/employer whereby the contractual

appointment of the petitioner was not renewed. The ground which is urged before

me to argue that the petitioner's contractual employment should have been

renewed is because a junior to the petitioner- Dr.Preeti Sahai was given extension

and, therefore, petitioner could not be denied the extension. Reliance is placed

upon two judgments of the Supreme Court in the cases of National Aluminium

Co. Ltd. Vs. Deepak Kumar Panda & Ors., (2002) 6 SCC 223 and State of

Tripura & Ors. Vs. Jhuma Gupta (Smt.) & Ors., (1999) SCC (L&S) 622. The

petitioner also alleges malafides against the Assessment Committee which refused

to renew the contract of the petitioner on the ground of his unsuitability.

2. It is the admitted case in the writ petition that the petitioner was a

contractual appointee. The petitioner was appointed for 3 years in April, 2006 and

thereafter his appointment was extended for a period of 2 years up to April, 2011.

Another extension of 6 months was granted thereafter to the petitioner and the

matter was referred to the Assessment Committee in the meanwhile to decide the

suitability and extension of tenure of the petitioner. When the petitioner's case

came up for extension, the Board of respondent No.1 in its 47th Meeting held on

15.04.2011 directed assessment of performance of both the petitioner and Dr.Preeti

Sahai. The Assessment Committee meeting was held on 20.08.2011 which gave

its recommendation to continue Dr.Preeti Sahai, and qua the petitioner it was

observed that the petitioner was not found suitable for further extension.

Accordingly, the impugned order dated 11.10.2011 was passed not extending the

period of contractual employment.

3. Three reliefs are claimed in the writ petition. First relief is for extension of

the contractual period, the second is for regularization of the petitioner and the

third is for seeking certain monetary benefits. The third relief is not pressed before

me as the writ petition lacks necessary averments constituting the cause of action

for this relief.

4. So far as the argument of the petitioner that the petitioner's contractual

appointment was bound to be extended in view of his seniority and experience as

compared to Dr.Preeti Sahai is concerned, this argument is misconceived for the

reason that this Court cannot sit in the armchair of the Assessment Committee

which was duly qualified to decide as to whether the petitioner was competent or

not for being continued. The requisite expertise and the knowledge would surely

be with the Assessment Committee and this Court would not like to substitute itself

with the Assessment Committee, more so because it is ill equipped to do so. Of

course, when the decision of an Assessment Committee is quite clearly perverse or

wholly illegal, Courts do step in, however in my opinion, comparing of the abilities

of the two persons in a case such as the present, and as to who is to be continued

and who not, is best left with the Assessment Committee. The writ petition does

not show that any averments of bias or specific malafides have been made against

any specific member of the Assessment Committee. The issue of malafides is only

qua the final conclusion of Dr. Preeti Sahai's contract being extended and the

petitioner's contract not being extended. Also, if assuming there existed

allegations of malafides against the specific members of the Assessment

Committee, such persons of the Assessment Committee had to be arrayed as

respondents so as to enable them to answer the allegations made. However,

members of the Assessment Committee have not been arrayed as respondents. For

all these reasons, in my opinion, the petitioner is not legally justified in challenging

the decision of the Assessment Committee.

5. The reliance which is placed by the petitioner on the judgment of the

National Aluminium Company Ltd. (supra) for extension of contractual

employment is misconceived because in the said case the appeal of the employer

was accepted by the Supreme Court and the order of the High Court directing

continuation of contractual employment was set aside for the reason that the

employee had failed to give the necessary educational qualification certificate. In

the case of National Aluminium Company Ltd.(Supra), once the employee was

not found to have the necessary educational qualifications, the employer was held

entitled not to extend employment of the employee. In the present case, the

Assessment Committee has found the petitioner not suitable for continuing

employment and which aspect I have already discussed above and, therefore, the

judgment which is relied upon by the petitioner, in fact, goes against the petitioner.

Stray observations in the judgment that a junior should not be preferred over a

senior cannot be used by the petitioner to his advantage.

6. So far as the judgment in the case of Jhuma Gupta (Supra) relied upon by

the petitioner is concerned, the said judgment holds that the High Court can direct

the State Government to renew the contract of persons who were appointed

originally on contractual basis. There were also directions by the Supreme Court

in Jhuma Gupta (Supra) for regularization of the contractual employees. The

judgment in the case of Jhuma Gupta (Supra) in my opinion cannot be said to be

laying down good law after the Constitution Bench judgment of 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".

7. Thus, the petitioner cannot claim the relief of regularization by relying upon

the judgment in the case of Jhuma Devi (Supra). The petitioner also cannot rely

upon the judgment of Jhuma Devi (Supra) for extension of contractual

employment for the reasons given above as the petitioner has failed to make out a

case for challenging the decision of the Assessment Committee.

8. In view of the above, there is no merit in the petition, which is accordingly

dismissing, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J.

MAY 09, 2013 'anb'