Delhi High Court
J.P.Sharma & Ors vs Jawahar Lal Nehru University & ... on 16 May, 2013
Author: Valmiki J. Mehta
$~R-3.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1481/1999
% Date of Decision: 16th May, 2013
J.P.SHARMA & ORS ..... Petitioners
Through: None.
Versus
JAWAHAR LAL NEHRU UNIVERSITY & ANR. ..... Respondents
Through: Mr.P.S.Sharma, Adv. for
Mr.S.C.Dhanda, Adv. for JNU.
Mr.Amitesh Kumar, Adv. for UGC.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (Oral)
1. In this writ petition two basic reliefs are claimed. First is for
regularization of the petitioners and second is for granting them scale of pay
which is being given to Cooks and Helpers.
2. As per the writ petition, it is not disputed that petitioners were
employed on contractual basis. The issue is that can persons such as the
petitioners who have not been appointed through the regular recruitment
process seek regularization or claim a higher pay.
3. The Constitution Bench judgment of the Supreme Court in the case of
Secretary, State of Karnataka & Ors Vs. Umadevi & Ors.,2006 (4) SCC 1
lays 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".
4. The writ petition does not contain averments as to there existing any
sanctioned post and petitioners being appointed through regular recruitment
process. Counsel for respondent No.2/UGC, in fact, states that there are no
sanctioned posts with respect to Mess Managers/Advisors/Maintenance
Manager in the respondent No.1 University. Since the Constitution Bench
of Supreme Court in Uma Devi's case (supra) has said that backdoor entry
cannot be given to public employments inasmuch as millions are waiting for
public employment through the regular recruitment process, petitioners
cannot seek regularization and, therefore, this prayer of the petitioners is
rejected.
5. So far as the claim of the petitioners to higher salary is concerned on
the ground that Cooks and Helpers are getting higher salary, I may refer to
the judgment of the Supreme Court in the case of Indian Drugs and
Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs and Pharmaceuticals
Ltd., 2007 (1) SCC 408 wherein the Supreme Court has clearly observed
that it is for the employer to decide what should be the pay scale of its
employees and courts cannot interfere with respect to fixation of salaries of
employees. Therefore, petitioners also cannot claim higher scale of pay
because it is for the employer to decide what should be the scale of pay for
its employees.
6. In view of the above, neither of the reliefs claimed by the petitioners
can be granted and, therefore, the petition is dismissed, leaving the parties to
bear their own costs.
VALMIKI J. MEHTA, J
MAY 16, 2013
'anb'
