Nitin Garg vs Delhi State Industrial And ...
2014 Latest Caselaw 1998 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                              Date of judgement: 22.04.2014

+                          W.P.(C) 509/2013
NITIN GARG                                                  ..... Petitioner

                           versus

DELHI STATE INDUSTRIAL AND INFRASTRUCTURE
DEVELOPMENT CORPORATION LTD            ..... Respondent

Advocates who appeared in this case:

For the petitioner: Mr A.K. Singla, Sr. Adv. with Mr Deepak Dahiya, Adv. For the respondent: Ms Anusuya Salwan & Mr Vikas Sood, Advs.

CORAM:

HON'BLE MR. JUSTICE RAJIV SHAKDHER

RAJIV SHAKDHER, J W.P.(C) 509/2013 & CM Nos. 973/2013 & 11529/2013

1. This is a writ petition, whereby, in sum and substance, the petitioner seeks implementation of the direction issued by the Supreme Court in its order dated 18.01.2011, passed in SLP(C) No. 20507/2007, in his own case.

2. The brief background in which the present writ petition has been filed is as follows:

2.1 The petitioner was appointed as a Work Assistant on 01.08.1998. Apart from the petitioner there were twenty six (26) other persons, who were also appointed as Work Assistants between May, 1995 and April, 1999. 2.2 The petitioner, evidently, had secured for himself a bachelors degree in civil engineering. As far as the other 26 persons were concerned, some of

them had acquired a diploma in civil engineering, while some possessed a diploma in electric engineering. There were also some, who had a bachelors degree in civil engineering, like the petitioner.

2.3 The respondent corporation, however, vide a contract executed on 04.10.2000, appointed, the petitioner, as a Junior Engineer, on a consolidated salary of Rs. 8400/- per month. There is no dispute that the contract had a tenure of one year. There is also no dispute that the other 26 persons, were also appointed, to the post of Junior Engineer; albeit on contractual basis by a contact executed on the same date, i.e., 04.10.2000. These contracts also had a tenure of one year, as in the case of the petitioner. 2.4 The petitioner's services were brought to an end by an order dated 25.05.2005.

3. The petitioner, challenged the order of termination by way of a writ petition, which was dismissed by the Single Judge of this court vide order dated 07.07.2006. Against the order of the Single Judge dated 07.07.2006, an appeal was carried by the petitioner to the Division Bench. This appeal was numbered as: LPA No. 1660/2006. The appeal, was disposed of vide order dated 25.05.2007.

3.1 A perusal of the order of the Division Bench would show that the appeal was allowed in part. The Division Bench directed the respondent to expunge and delete the statements made in the order of termination dated 25.05.2005, to the extent it adverted to the fact that the petitioner had handed over official documents to unauthorized persons; had failed to maintain devotion and integrity to duty; and had failed to preserve/ maintain prestige of the respondent corporation. The observations, that the petitioner had committed irregularity, detected by the CBI, were also withdrawn.

3.2 The Division Bench, however, rejected the petitioner's prayer for reinstatement, on the ground that the post of Junior Engineer, was required to be filled up by sending a requisition to the Delhi Subordinate Services Selection Board (in short the Board). Since, the said procedure was not followed, the Division Bench came to the conclusion that the petitioner's appointment was illegal and contrary to the recruitment rules of the respondent-corporation. It was also the observation of the Division Bench that the petitioner was given a contractual appointment for this very reason, and because, the tenure of the contract had come to an end, no relief by way of reinstatement could be given to the petitioner.

3.3 Thus, in the operative part, the Division Bench observed that there would be no liability on the part of the respondent-corporation to pay wages to the petitioner.

4. It is this order of the Division Bench, which was carried in appeal to the Supreme Court, to which I have made a reference above. In the Supreme Court, the Special Leave Petition (SLP) came to be disposed of on 18.01.2011 when, the court noticed that there was no representation on behalf of the respondent-corporation, on that day. The Supreme Court thus, vide order dated 18.01.2011, disposed of the SLP by observing as follows:

"....Mr Singla, learned senior counsel appearing for the petitioner has drawn our attention to the order of the Central Administrative Tribunal dated 8th July, 2009 by which a direction has been given to the respondent "to hold a selection for the posts of Junior Engineer through Delhi Subordinate Services Selection Board (D.S.S.S.B.) and in such an event applicants who are eligible under the recruitment rules shall be considered, giving due weightage to their experience on relaxing the age. On results of such

selection, law shall take its own course. Till then status quo, as of date, shall be maintained in respect of the applicants. It is further contended by Mr Singla that the petitioner is identically placed with 27 other Junior Engineers who have been named in Annexure P-3 filed with the Special Leave Petition and his case should be treated at par with them. We find force in this contention. Consequently, we direct that the case of the petitioner shall also be considered for regularization along with other similarly placed candidates. With these observations, the Special Leave Petition is disposed of..."

5. It appears that the petitioner made representations thereafter, with the respondent-corporation for implementation of the order of the Supreme Court dated 18.01.2011. The representations, were made, in the month of February, 2011.

6. Since, according to the petitioner, his grievances were not addressed, he moved the Supreme Court by way of a contempt petition. The said contempt petition was numbered as: Contempt Petition (C) 542/2011. The contempt petition, evidently, came up for hearing on 09.01.2012, when the Supreme Court directed that the said contempt petition be treated as an interlocutory application. At the very same hearing notice was issued in the said application. The application, as per the record filed before me, came up for hearing on 27.02.2012, when on an oral request, the Board was impleaded as a party to the proceedings pending in the Supreme Court. Accordingly, notice was issued to the newly impleaded respondent, i.e., the Board, as well.

6.1 The said interlocutory application, however, was dismissed on 03.08.2012, by the Supreme Court, by observing that, there was no merit in

the application.

7. It is pertinent to note that parallely, out of the 26, similarly placed persons, 20 persons had approached the Central Administrative Tribunal (in short the Tribunal). The Tribunal, after hearing the concerned parties, disposed of the petitions with the following operative directions:

"...10. In the result, for the foregoing reasons, these TAs are disposed of with a direction to the respondents to hold a selection for the posts of JE through DSSSB and in such an event applications who are eligible under the recruitment rules shall be considered, giving due weightage to their experience on relaxing the age. On results of such selection, law shall take its own course. Till then status quo, as of date, shall be maintained in respect of the applicants. No costs....."

8. The record shows that the applicants, who had moved the Tribunal, were not satisfied by the directions issued by the Tribunal vide its order dated 08.07.2009, and thus, assailed the judgement of the Tribunal by preferring a writ petition under Article 226 of the Constitution. The writ petition was disposed of by a Division Bench of this Court vide judgement dated 09.01.2013. The Division Bench supplanted the operative directions contained in the judgement of the Tribunal with the following directions:

".....28. Since appointment of the petitioners was irregular and not illegal, in that, their existed vacant posts of Engineers in DSIIDC when petitioners were inducted as Engineers and the petitioners were qualified, we dispose of the writ petition confirming the impugned decision pronounced by the Tribunal but modify the same with reference to direction issued to advertise the posts and effect selection through DSSSB : by substituting the direction that the respondents would devise a suitable methodology to subject the writ petitioners to an induction test which would

be designed with reference to application and not theory. Age relaxation benefit would be granted to the petitioners. As noted by us the fact not in dispute is that the petitioners possess the necessary educational qualifications.

28. Such petitioners who clear the selection process, which would be limited to the writ petitioners, would be inducted permanently against the posts they are currently holding.

29. The process be completed as early as possible and preferably within one year from today...."

9. I am informed that the respondent-corporation preferred a SLP against the judgement of the Division Bench dated 09.01.2013. The order of the Supreme Court has not been placed before me. I am informed though, by the counsels for parties, that the Supreme Court permitted the respondent- corporation to move the Division Bench by way of a review, limited to the observations made in the operative part of the judgement of the Division Bench contained in paragraph 28; a direction which has been extracted hereinabove by me.

9.1 In the review petition filed by the respondent-corporation, which is numbered as Review Petition No. 127/2014, the Division Bench vide order dated 14.03.2014, in the operative portion, observed as follows:

"....7. We dispose of the review application observed that the mandamus issued as per para 28 of our decision dated January 09, 2013 would be read to mean that the appraisal process for purposes of regularization/ confirmation may be carried out in any manner, be it through DSSSB or a Committee constituted by either the Government of NCT of Delhi or DSIDC.

8. But we clarify, the methodology devised to subject the writ petitioners to an induction appraisal would be designed with reference to application and not theory, as observed by

us in paragraph 28. Further, age realization benefit would be granted to the petitioners.

9. It is hoped and expected that the mandamus would be complied with within six months from today.....

10. In the interregnum, the petitioner filed a fresh writ petition, which is the captioned writ petition. This petition came up for hearing in court for the first time on 29.01.2013. Since then, pleadings stand completed.

11. Having heard the learned counsels for the parties and perused the record, what is quite clear is that, the judgement of the Division Bench whereby the petitioner was refused the relief of reinstatement, was put in jeopardy with the petitioner approaching the Supreme Court by way of a SLP. The Supreme Court, while disposing of the SLP vide order dated 18.01.2011, directed the respondent corporation, in effect, to treat the petitioner at par with those who were before the Tribunal at the relevant time. A consequential direction was also issued by the Supreme Court to respondent- corporation that the petitioner should be considered for regularization along with other similarly placed candidates.

12. It is also noticed from the record that, in the contempt petition, which was converted into an interlocutory application, the petitioner had made two prayers. Firstly, that, action should be initiated against the respondent- corporation in the contempt petition for wilful disobedience, disregard and non-compliance of the Supreme Court order dated 18.01.2011 and, for punishment for such non-compliance and disobedience. Secondly, that a direction be issued to respondent-corporation, for permitting the petitioner, to join duties, with immediate effect, as a Junior Engineer, pending regularization, in terms of the order dated 18.01.2011. As a matter of fact,

in the interlocutory application filed by the petitioner in this court, which is CM No. 11529/2013, a similar prayer is made.

13. Having regard to the fact that the interlocutory application filed for the same purpose stood dismissed vide order dated 03.08.2012, passed by the Supreme Court, this prayer obviously cannot be granted.

14. This leaves me with only one aspect to be considered, which is, as to whether or not the petitioner should be considered, along with other similarly placed candidates, who have the benefit of the judgement of the Division Bench dated 09.01.2013, read with order in review dated 14.03.2014.

15. Ms Salwan, learned counsel for the respondent-corporation, seeks to contend that the petitioner's case is not at par with those persons, who are beneficiaries of the aforementioned judgement and order in review passed by the Division Bench, as the petitioner's services were terminated and the relief sought by him in LPA No. 1660/2006 qua reinstatement was declined. I am not inclined to accept this submission of Ms Salwan. The reason for the same is, that the Supreme Court vide order dated 18.01.2011, passed in the petitioner's own SLP in which challenge to the order of the Division Bench dated 25.05.2007, was laid, has issued a specific direction for consideration of the petitioner's case for regularization along with those, who are similarly placed. Respondent-corporation, to date, has not sought recall of this direction. This direction thus, stares the respondent- corporation in the face and, as such, cannot be avoided.

16. Therefore, the writ petition is allowed with a direction that respondent

-corporation will treat the petitioner's case at par with those who are the beneficiaries of the judgement dated 09.01.2013, read with the order dated

14.03.2014 passed in review petition.

16.1 I must, however, note here, a candid submission made by Mr Singla, the learned senior counsel for the petitioner, that since, the petitioner, post the order of termination, had not rendered any service, he would not be entitled for any wages for the said period. This stand, in the given circumstances, is eminently fair. It is, however, made clear, that this is not to say, that the, respondent-corporation, will not delve on the issue as to how, the period post May, 2005, is to be treated for the purposes of other service benefits, that may be available to the petitioner, on being fruitfully considered for regularization.

17. The petition is disposed of with the aforesaid directions. There will be, however, no orders as to costs.

RAJIV SHAKDHER, J APRIL 22, 2014 kk