Delhi High Court
Dr.Kavita Dhalla & Ors. vs Govt. Of Nct Of Delhi & Ors. on 7 October, 2013
Author: Pradeep Nandrajog
$~R-27 to 29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: October 07, 2013
+ W.P.(C) 6509/2002
DR.KAVITA DHALLA & ORS. .....Petitioners
Represented by: Mr.S.D.Singh, Advocate with
Mr.Rahul Kumar Singh, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. .....Respondents
Represented by: Ms.Sana Ansari, Advocate for
Ms.Zubeda Begum, Advocate for R-1
W.P.(C) 6512/2002
DR.DIVPREET SAHNI .....Petitioner
Represented by: Mr.S.D.Singh, Advocate with
Mr.Rahul Kumar Singh, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. .....Respondents
Represented by: Ms.Sana Ansari, Advocate for
Ms.Zubeda Begum, Advocate for R-1
W.P.(C) 6521/2002
DR.MONISHA BATRA & ORS. .....Petitioners
Represented by: Mr.S.D.Singh, Advocate with
Mr.Rahul Kumar Singh, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. .....Respondents
Represented by: Ms.Sana Ansari, Advocate for
Ms.Zubeda Begum, Advocate for R-1
CORAM:
HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
HON'BLE MR.JUSTICE V. KAMESWAR RAO
W.P.(C) No.6509/2002 & conn.matters Page 1 of 5
PRADEEP NANDRAJOG, J. (Oral)
1. A perusal of the order sheet in the three captioned writ petitions would
reveal that the respondents are playing, not only with the writ petitioners, but
even with this Court, a game of Cat and Mouse.
2. The writ petitioners were appointed on ad-hoc basis initially for a
period of six months as Civil Assistant Surgeon Grade I (Dental) pursuant to
an advertisement issued on May 15, 1998, which appointment was continued
for further period of six months till the year 2001. Last extension was on
January 08, 2001 up to December 31, 2001. The grievance of the petitioners
began when at the asking of the Government of NCT Delhi UPSC notified
27 vacancies of Civil Assistant Surgeon Grade I (Dental) to be filled up on
regular basis.
3. The petitioners filed Original Applications before the Central
Administrative Tribunal praying that their services be regularized because of
the fact when they were appointed, regular vacant posts were available.
4. Vide impugned decision dated September 19, 2002 the Original
Applications filed by the petitioners have been dismissed observing that the
advertisement pursuant whereto petitioners were appointed clearly indicated
that appointments would be ad-hoc pending regular appointments. The
Tribunal has observed that if an advertisement is issued informing applicants
that the posts to be filled up are on regular basis, the response would be
different vis-à-vis an advertisement inviting applications to fill up posts on
ad-hoc basis.
5. The reasoning of the Tribunal is sound and correct in law. The result
thereof would ordinarily be a dismissal of the writ petitions for the reason
not only were the petitioners informed that their appointment would be ad-
hoc, even the advertisement inviting applications so stated. Further, when
the petitioners filed the Original Applications before the Tribunal they had
worked for hardly three years.
6. In the celebrated decision of the Constitution Bench of the Supreme
Court reported as (2006) 4 SCC 1 Secretary, State of Karnataka & Ors. Vs.
Uma Devi & Ors. the Supreme Court opined that such back door
appointments could not give birth to any legitimate claim, subject to one
clarification noted in paragraph 53 of the decision, which clarification reads
as under:-
"53. One aspect needs to be clarified. There may be cases where
irregular appointments (not illegal appointments) as explained in
AIR 1967 SC 1071 State of Mysore Vs. S.V.Narayanappa, (1972) 1
SCC 409 R.N.Nanjundappa Vs. T.Thimmiah and (1979) 4 SCC 507
B.N.Nagarajan Vs. State of Karnataka and referred to in para 15
above, of duly qualified persons in duly sanctioned vacant posts
might have been made and the employees have continued to work
for ten years or more but without the intervention of orders of the
courts or of tribunals. The question of regularization of the
services of such employees may have to be considered on merits in
the light of the principles settled by this Court in the cases above
referred to and in the light of this judgment. In that context, the
Union of India, the State Governments and their instrumentalities
should take steps to regularize as a one-time measure, the services
of such irregularly appointed, who have worked for ten years or
more in duly sanctioned posts but not under cover of orders of the
courts or of tribunals and should further ensure that regular
recruitments are undertaken to fill those vacant sanctioned posts
that require to be filled up, in cases where temporary employees or
daily wagers are being now employed. The process must be set in
motion within six months from this date. We also clarify that
regularization, if any already made, but not sub judice, need not be
reopened based on this judgment, but there should be no further
bypassing of the constitutional requirement and regularizing or
making permanent, those not duly appointed as per the
constitutional scheme."
7. But, order sheets of the three cases would reveal that while issuing
notice to show cause in the writ petition on October 09, 2002 the respondents
were restrained from dispensing with the service of the petitioners.
Subsequent orders would reveal that the respondents took a stand that UPSC
has since completed the selection process to appoint Dentists on regular
basis. The Court permitted the appointment process to be taken to its logical
conclusion, but subsequently noted in the order dated July 18, 2005 that the
respondents were not taking any steps to make regular appointments despite
the order dated September 16, 2004 permitting respondents to make regular
appointment. Order dated August 11, 2005 records that the Lt. Governor of
Delhi has approved the permanent absorption of the petitioners. The matter
lingered on. Order dated November 10, 2006 records that the respondents
were seized of the question of regularizing the petitioners in service.
Thereafter Rule was issued.
8. The petitioners continue to serve notwithstanding the respondents
being permitted to effect appointment on regular basis from amongst
candidates selected by UPSC.
9. We find that a similar problem of ad-hoc appointees seeking regular
appointment had troubled the respondents resulting in a notification dated
December 23, 2009 being issued pertaining to practitioners of Allopathy.
The Delhi Health Service (Allopathy) Rules, 2009 were promulgated as per
which officers appointed on contract/ad-hoc basis on or before December 18,
2006 were deemed to have been appointed under the Rules.
10. We wonder why similar notification has not been issued pertaining to
those appointed in the field of Dentistry.
11. Learned counsel for the petitioner states that as of today the petitioners
are not under any threat of losing their job, but would seek directions to be
issued to the respondents to promulgate Rules akin to the Delhi Health
Service (Allopathy) Rules, 2009.
12. Learned counsel for the respondents states that she has no instructions
in the matter.
13. Since respondents have not been able to throw any light today as to
why Rules akin to Delhi Health Service (Allopathy) Rules, 2009 cannot be
framed pertaining to Dentists, we are of the opinion that the subsequent
events which have taken place would justify the writ petitions to be disposed
of directing respondents to take a reasoned decision as to why Rules akin to
Delhi Health Service (Allopathy) Rules, 2009 cannot be framed for Dentists,
and if the decision is that similar Rules can be framed, on the principle of
parity of Dentists with Allopaths, the Rules be promulgated and that would
resolve the dispute. Needless to state if the reasoned decision is that the
Rules cannot be framed the petitioners would have liberty to challenge the
decision on the ground of discrimination and such other grounds available.
Till the decision is taken status quo would be maintained.
14. No costs.
15. DASTI.
(PRADEEP NANDRAJOG)
JUDGE
(V. KAMESWAR RAO)
JUDGE
OCTOBER 07, 2013
mamta
