Delhi High Court
Ravi Shankar And Ors. vs The Delhi State Civil Supplies ... on 20 May, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 2825/2001
% May 20, 2013
RAVI SHANKAR AND ORS. ......Petitioners
Through: Mr. S.K. Sahijpal, Advocate.
VERSUS
THE DELHI STATE CIVIL SUPPLIES COPORATION LTD. AND ORS.
..... Respondents
Through: Mr. Rajat Navet, Advocate for respondent
Nos.1 and 2.
Ms. Mamata Tandon, Advocate for
respondent No.3.
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 petitioners who were appointed as
drivers by the respondent No.1/Delhi State Civil Supplies Corporation Ltd firstly
on daily wage basis and thereafter on contractual basis. Reliefs claimed in the writ
petition are for directions to regularize the services of the petitioners and not to
disengage them from services.
W.P.C No. 2825/2001 Page 1 of 5
2. The Constitution Bench 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
W.P.C No. 2825/2001 Page 2 of 5
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".
W.P.C No. 2825/2001 Page 3 of 5
3. The first and the foremost criteria to be satisfied before a person can
be regularized to the post is that there must exist sanctioned posts to which a
person is appointed. Since existence of sanctioned posts is a sine qua non, the
persons who have been appointed to posts which are not sanctioned posts cannot
be regularized even if they have been working for long periods with or without
artificial breaks and were appointed through a recruitment process of calling them
through advertisements/employment exchange.
4. In the present case, there are no averments in the writ petition as to
how there are sanctioned posts of drivers, and in fact counter-affidavit of the
respondent No.1 states that the respondent No.1 does not have sanctioned posts of
drivers inasmuch as the respondent No.1 is facing great financial hardships besides
having surplus manpower. Reference in the counter-affidavit is made to the letter
dated 10.10.2000 of the Department of Finance (Expenditure-I) pertaining to
constraints in the expenditure. Once there are no sanctioned posts which are
created or existed against which petitioners were appointed, the ratio of Umadevi's
case (supra) squarely applies in the facts of the present case and the petitioners
therefore cannot be given the relief of they being regularized in the services of
respondent No.1.
5. Counsel for the petitioner admits that ratio of Umadevi's case (supra)
applies but when asked to point out that where is the creation of sanctioned posts
W.P.C No. 2825/2001 Page 4 of 5
of drivers in the respondent No.1, no documents filed with the writ petition or any
averment in the writ petition could be pointed out to me of creation of sanctioned
posts of drivers. Merely because petitioners are appointed through the
employment exchange and thereafter selection by selection board will not mean
that sanctioned posts do exist in the respondent No.1 with respect to drivers. Once
there are no sanctioned posts, even if the appointments of persons such as the
petitioners are through the employment exchange and by the selection board, they
cannot be regularized in view of the ratio of Umadevi's case (supra).
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 20, 2013 VALMIKI J. MEHTA, J.
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