Avinash Chandra Bhateja & Ors. vs Uoi & Ors.
2013 Latest Caselaw 4585 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No. 6527/1998
%                                                    4th October, 2013

AVINASH CHANDRA BHATEJA & ORS.                             ......Petitioner
                 Through: None.


                            VERSUS

UOI & ORS.                                           ...... Respondents

                            Through:     None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. Petitioners were appointed in different posts with respondent

no.3/Central Technical Committee-Integrated Mother and Child

Development (in short „CTC-IMCD‟). Respondent no.3 actually was a

modality for implementing a scheme/policy of the Union of India-

Respondent no.1. Respondent no.3 was working from the funds which were

being provided by the respondent no.1. An Integrated Child Development

Scheme was launched by the respondent no.2-All India Institute of Medical

Sciences (AIIMS) and this scheme was approved by the department of

Social Welfare as per the petition. Petitioners were appointed at different

posts with respondent no.3 and are said to have served the respondent no.3

for very very long periods even running well over a decade. The services of

the petitioners were terminated in terms of the impugned orders and sample

order is one dated 1.12.1998 and which reads as under:-

            "CTC F2/Admn/96                 Dated the 1st December, 1998
            To,
            Sh. A.K.Gupta
            Sr. Investigator
            CTC/MCD R.K.Puram New Delhi
            SUB: OFFICE ORDER-TERMINATION OF SERVICES
            FROM 31ST OF DECEMBER OF THE STAFF OF CTC-
            1MCD DUE TO NON-AVAILABILITY OF FUNDS AND
            RESOLUTION OF THE GOVERNING BODY)

You are hereby informed that your services stand terminated from 31st of December, 1998 (afternoon). This office order should be considered as one month‟s notice period. The Governing body of CTC-IMCD has resolved that the CTC- IMCD, due to non-availability of the funds from Department of Women and Child Development, Govt. of India, which had been the only grant giving agency for CTC-IMCD staff and activity, should be dissolved. The Governing Body has strongly recommended that the staff of CTC-IMCD should be absorbed in the alternative system which is being established for CTC activity by Deptt. of Women & Child Development, Govt. of India. All efforts will be made with the Government to accept this recommendation so that the staff working in CTC-IMCD find job in the alternative arrangement. The Deptt. of Women & Child Development has been assuring the availability of funds to continue the work of the CTC IMCD. If the funds are released early to continue the work till

alternative system is established, then this termination order will stand cancelled.

SUPERVISOR ADMINISTRATOR ON BEHALF OF GOVERNING BODY.CTC-IMCD"

2. By this writ petition, petitioners essentially have prayed for

quashing of the termination orders dated 1.12.1998 and directions for

absorption of the petitioners in government service. Prayer is made for

directing the respondent no.1 to allocate adequate funds to the respondent

no.3 including by making it part of the respondent no.2/AIIMS.

3. A Constitution Bench judgment of the Supreme Court in the case of

Secretary, State Bank of Karnataka & Ors. Vs. Umadevi (3) and 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

(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. Some of the relevant paras of the judgment in Umadevi's case (supra)

stating the above ratio read as under:-

"10. In addition to the equality clause represented by Article 14 of the Constitution, Article 16 has specifically provided for equality of opportunity in matters of public employment. Buttressing these fundamental rights, Article309 provides that subject to the provisions of the Constitution, Acts of the legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of a State. In view of the interpretation placed on Article 12 of the Constitution by this Court, obviously, these principles also govern the instrumentalities that come within the purview of Article 12 of the Constitution. With a view to make the procedure for selection fair, the Constitution by Article 315 has also created a Public Service Commission for the Union and Public Service Commissions for the States. Article 320deals with the functions of Public Service Commissions and mandates consultation with the Commission on all matters relating to methods of recruitment to civil services and for civil posts and other related matters. As a part of the affirmative action recognized by Article 16 of the Constitution, Article 335 provides for special consideration in the matter of claims of the members of the scheduled castes and scheduled tribes for employment. The States have made Acts, Rules or Regulations for implementing the above constitutional guarantees and any recruitment to the service in the State or in the Union is governed by such Acts, Rules and Regulations. The Constitution does not envisage any employment outside this constitutional scheme and without following the requirements set down therein.

17. We have already indicated the constitutional scheme of public employment in this country, and the executive, or for that matter the Court, in appropriate cases, would have only the right to regularize an appointment made after following the due procedure, even though a non- fundamental element of that process or procedure has not been followed.

This right of the executive and that of the court, would not extend to the executive or the court being in a position to direct that an appointment made in clear violation of the constitutional scheme, and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent.

19. In Dharwad case, this Court was actually dealing with the question of 'equal pay for equal work' and had directed the State of Karnataka to frame a scheme in that behalf. In paragraph 17 of the judgment, this Court stated that the precedents obliged the State of Karnataka to regularize the services of the casual or daily/monthly rated employees and to make them the same payment as regular employees were getting. Actually, this Court took note of the argument of counsel for the State that in reality and as a matter of statecraft, implementation of such a direction was an economic impossibility and at best only a scheme could be framed. Thus a scheme for absorption of casual/daily rated employees appointed on or before 1.7.1984 was framed and accepted. The economic consequences of its direction were taken note of by this Court in the following words.

"We are alive to the position that the scheme which we have finalized is not the ideal one but as we have already stated, it is the obligation of the court to individualize justice to suit a given situation in a set of facts that are placed before it. Under the scheme of the Constitution, the purse remains in the hands of the executive. The legislature of the State controls the Consolidated Fund out of which the expenditure to be incurred, in giving effect to the scheme, will have to be met. The flow into the Consolidated Fund depends upon the policy of taxation depending perhaps on the capacity of the payer. Therefore, unduly burdening the State for implementing the constitutional obligation forthwith would create problems which the State may not be able to stand. We have, therefore, made our directions with judicious restraint with the hope and trust that both parties would appreciate and understand the situation. The instrumentality of the State must realize that it is charged with a big trust. The money that flows into the Consolidated Fund and constitutes the resources of the State comes from the people and the welfare expenditure that is meted out goes from the same Fund back to the people. May be that in every situation the same tax payer is not the beneficiary. That is an incident of taxation and a necessary concomitant of living within a welfare society."

With respect, it appears to us that the question whether the jettisoning of the constitutional scheme of appointment can be approved, was not considered or decided. The distinction emphasized in R.N. Nanjundappav. T. Thimmiah and Anr. (supra), was also not kept in mind. The Court appears to have been dealing with a scheme for 'equal pay for equal work' and in the process, without

an actual discussion of the question, had approved a scheme put forward by the State, prepared obviously at the direction of the Court, to order permanent absorption of such daily rated workers. With respect to the learned judges, the decision cannot be said to lay down any law, that all those engaged on daily wages, casually, temporarily, or when no sanctioned post or vacancy existed and without following the rules of selection, should be absorbed or made permanent though not at a stretch, but gradually. If that were the ratio, with respect, we have to disagree with it.

33. In the earlier decision in Indra Sawhney v. Union of India 1992 Supp. (2) S.C.R. 454, B.P. Jeevan Reddy, J. speaking for the majority, while acknowledging that equality and equal opportunity is a basic feature of our Constitution, has explained the exultant position of Articles 14 and 16 of the Constitution of India in the scheme of things. His Lordship stated:-

"6. The significance attached by the founding fathers to the right to equality is evident not only from the fact that they employed both the expressions 'equality before the law' and 'equal protection of the laws' in Article 14 but proceeded further to state the same rule in positive and affirmative terms in Articles 15 to 18....

7. Inasmuch as public employment always gave a certain status and power --- it has always been the repository of State power --

-besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article 16. Clause (1), expressly declares that in the matter of public employment or appointment to any office under the state, citizens of this country shall have equal opportunity while clause (2) declares that no citizen shall be discriminated in the said matter on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. At the same time, care was taken to, declare in clause (4) that nothing in the said Article shall prevent the state from making any provision for reservation of appointments or posts in favour of any backward class of citizen which in the opinion of the state, is not adequately represented in the services under the state...

(See paragraphs 6 and 7 at pages 544 and 545)

These binding decisions are clear imperatives that adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment.

34. While answering an objection to the locus standi of the Writ Petitioners in challenging the repeated issue of an ordinance by the Governor of Bihar, the exalted position of rule of law in the scheme of things was emphasized, Chief Justice Bhagwati, speaking on behalf of the Constitution Bench in Dr. D.C. Wadhwa and Ors.v. State of Bihar and Ors. MANU/SC/0072/1986 : [1987]1SCR798 stated:

The rule of law constitutes the core of our Constitution of India and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the Executive or any other authority should be within the constitutional limitations and if any practice is adopted by the Executive which is in flagrant and systematic violation of its constitutional limitations, petitioner No. 1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice.

Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment'

in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.

43. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College MANU/SC/0098/1961 : (1962)ILLJ247SC . That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent."

(emphasis is added)

5. A reading of the aforesaid ratio makes it clear that there can be

regularization in public employment ( i.e with the State or an instrumentality

of State) only if there are sanctioned posts, there are vacancies in sanctioned

posts, duly qualified persons are appointed against vacancies in sanctioned

posts, and such persons are appointed after open competition where

candidates are called through newspaper advertisement and/or employment

exchange. The Supreme Court has further made it clear that casual labour or

contractual labour or temporary or scheme/project employees cannot be

regularized. Of course, in law, till the project or scheme continues,

employment of the project/scheme employees will continue, however, once

the project comes to an end including for the reason of government not

granting funds, such project employed persons or temporary or contractual

employees cannot seek their absorption as government employees or get

public employment under an instrumentality of State.

6. The Supreme Court in the case of Umadevi (supra) has

clarified that government in view of the financial issues is entitled to

determine entitlement to appointment for a specific period or for a temporary

period or persons as contractual employees and all employment need not be

permanent employment. The Supreme Court has also in various other

judgments held that Courts do not substitute the decisions of the competent

authorities with respect to the continuation of a project/scheme.

7. In view of the above legal position and that since the impugned

order categorically states that the Union of India has stopped funding the

CTC-IMCD scheme, and therefore the project is being wound up, and that

the fact that petitioners cannot claim regularization in view of the ratio of the

Supreme Court in the case of Umadevi (supra) because appointments of the

petitioners were only casual/temporary/contractual and are not appointments

against any sanctioned posts, reliefs claimed in this writ petition cannot be

granted.

8. The petition and all pending applications are therefore

dismissed, leaving the parties to bear their own costs. Copy of this judgment

be sent by the High Court Process Serving Agency to all the respondents.

OCTOBER 04, 2013                            VALMIKI J. MEHTA, J.
ib