Delhi High Court
Shri Dev Singh & Ors. vs The National Commission For Women ... on 5 October, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 6281/1998, 6386/1998, 6429/1998 and 6640/1998
% 5th October , 2013
1. W.P.(C) No.6281/1998
SHRI DEV SINGH & ORS. ..... Petitioners
Through: None.
Versus
THE NATIONAL COMMISSION FOR WOMEN THROUGH ITS
SECRETARY & ANR. ......Respondents
Through: None.
2. W.P.(C) No.6386/1998
VEENA BHARDWAJ & ORS. ..... Petitioners
Through: None.
Versus
NATIONAL COMMISSION FOR WOMEN & ANR. ......Respondents
Through: None.
3. W.P.(C) No.6429/1998
MS. MADHU PAL & ORS. ..... Petitioners
Through: None.
W.P.(C) No.6281/1998 & conn. matters Page 1 of 6
Versus
UNION OF INDIA AND ANR. ......Respondents
Through: None.
4. W.P.(C) No.6640/1998
SHRI RUDA MAL ..... Petitioner
Through: None.
Versus
NATIONAL COMMISSION FOR WOMEN THROUGH ITS
SECRETARY & ANR. ......Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
W.P.(C) No.6281/1998
1. Petitioners were working as casual labourers with the
respondent No.1/National Commission for Women. They seek directions
for not being treated as casual labourers or contractual labourers and for
direction to the respondent No.1 to create regular posts and to regularize the
employments of the petitioners.
W.P.(C) No.6281/1998 & conn. matters Page 2 of 6
2. The Constitution Bench of the Supreme Court in the case of
Secretary, State of Karnataka Vs. Umadevi 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 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
W.P.(C) No.6281/1998 & conn. matters Page 3 of 6
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.6281/1998 & conn. matters Page 4 of 6
3. Therefore, before petitioners can be regularized it is necessary
that there were sanctioned posts, there were vacancies in the sanctioned
posts, petitioners met the qualifications for appointments and petitioners had
to be selected through a competitive method whereby candidates were called
after advertisement in newspaper and/or through the employment exchange.
4. The writ petition does not show that any of the mandatory
requirements exist as stated by the Constitution Bench in the case of
Umadevi (supra) viz of there being sanctioned posts, there being vacancies
in such sanctioned posts to which petitioners were appointed and that
petitioners were appointed after selection through advertisement in
newspaper and/or through the employment exchange. Supreme Court in the
judgment in the case of Umadevi (supra) has categorically observed that
there cannot be regularization of such casual labourers. In the case of
Umadevi (supra) the Supreme Court has also held that there cannot be
directions to create/sanction posts as the financial aspects are best left to the
government to decide.
5. In view of the above, there is no merit in the petition and the
same is therefore dismissed, leaving the parties to bear their own costs.
W.P.(C) No.6281/1998 & conn. matters Page 5 of 6
W.P.(C) Nos.6386/1998, 6429/1998 and 6640/1998
In view of the reasoning given while dismissing W.P.(C)
No.6281/1998, these writ petitions are also dismissed. A copy of this
judgment be sent to the respondent No.1 through the Delhi High Court
Process Serving Agency.
OCTOBER 05, 2013 VALMIKI J. MEHTA, J.
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