Ashok Kumar vs Vice Chancellor, Rasthriya ...
2014 Latest Caselaw 5778 Del

1, 11, 12 & 13
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+           W.P.(C) 6998, 6999, 7004/2013 & 7554/2014

                                               Decided on : 13.11.2014
IN THE MATTERS OF
ASHOK KUMAR                                            ..... Petitioner
                                          in WP(C)   No.6998/2013
SURESH KUMAR                                           ..... Petitioner
                                          in WP(C)   No.6999/2013
PRADEEP RAJPAL                                         ..... Petitioner
                                          in WP(C)   No.7004/2013
ANITA NEGI & ORS.                                      ..... Petitioners
                                          in WP(C)   No.7554/2014

                               Through : Mr. R.M.Tewari & Ms.Jyoti
                               Tewari, Advocates for petitioners in WP©
                               No.6998 & 6999/2013
                               Ms.Rachna      Aggarwal,   Advocate   for
                               petitioner in WP(C) No.7004/2013
                               Mr.Shivam       Singh,   Advocate     for
                               petitioners in WP(C) No.7554/2014

                         versus

VICE CHANCELLOR, RASTHRIYA SANSKRIT
SANSTHAN & ANR.                                 ...Respondents
                        Through : Mr. Amitesh Kumar, Advocate
                        Mr.Amit Mahajan, CGSC for Ministry of
                        Human Resources Development

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (ORAL)

1. The present petitions have been filed by the petitioners praying

inter alia for issuance of directions to the respondent/Rashtriya

Sanskrit Sansthan(hereinafter referred to as `the University')

directing it to regularize their services to the post of Data Entry

Operators and further, call upon the University not to remove them

from service.

2. When WP(C) Nos. 6998, 6999 & 7004/2013 were listed for

admission on 11.11.2013, the following observations were made:

"(i) As per the Constitution Bench judgment of the Supreme Court in the case of Secretary, State of Karnataka and Ors Vs. Umadevi and Ors. 2006(4) SCC 1 there cannot be regularization of ad hoc or temporary contractual employees unless such persons appear in the regular recruitment process where they are required to undergo competitive process account of candidates being called through newspaper advertisement or employment exchange. Also, it is necessary that before regularization appointments must be against vacancies in sanctioned posts.

(ii) Counsel for the petitioner however draws attention of this Court to Annexure P-5 containing list of 19 people who have been regularized although they were only ad hoc appointments or contractual appointments. Counsel for the petitioner argues that if such persons are regularized then petitioners have to be regularized.

(iii) Though, in my opinion, one illegality cannot permit another illegality i.e illegally regularization of persons stated in Annexure P-5 cannot mean that petitioners also can be illegally regularized, however, it is necessary that affidavits be now filed by the respondents with respect to

appointments of persons mentioned in Annexure P-5 and the basis of their regularization.

(iv) In view of the above, for the present, no case for exparte interim order is made out in view of the Constitution Bench judgment of the Supreme Court in the case of Umadevi (supra).

(v) Notice be issued to the respondents, on filing of process fee, both in the ordinary method as well as by registered post AD, returnable on 2nd December, 2013. Additional set dasti. Respondents are put to notice that they should bring the file with respect to regularization of 19 persons mentioned in Annexure P-5 to the writ petitions so as to determine what is the claim of these persons for regularization and how such persons are regularized. A copy of this order to accompany the notice."

3. On 16.12.2013, while hearing arguments, the predecessor Bench

had referred to the observations made by the Constitution Bench of the

Supreme Court in the case of Secretary, State of Karnataka & Ors. Vs.

Uma Devi & Ors. reported as (2006) 4 SCC 1, and noted as below:

"2.The Supreme Court has laid the following ratio in the case of Secretary, State of Karnataka and Ors. vs. Umadevi and Ors., (2006) 4 SCC 1.

(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 regularization without the regular recruitment process being followed. Such irregularly appointed persons cannot claim to be regularized alleging violation of Article21.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. Initially, the petitioners herein were appointed on contractual

basis for a period of six months and thereafter, their appointment was

extended from time to time. Later on, the petitioners had sought

regularization on the ground that out of 35 employees appointed on

contractual basis, the services of four employees to the post of LDC

were regularized and one person, who was appointed as a Data Entry

Operator on a contractual basis was appointed by the University on

adhoc basis, as a LDC in the same pay scale. The grievance of the

petitioners is that they are being discriminated against when it comes

to regularization of their services. Taking note of the admitted factual

position, the court observed that the University had blatantly violated

the ratio of the judgment in Uma Devi's case because there could not

be any regularization of contractual/temporary/adhoc/casual

employees.

5. The petitioners herein have mentioned the names of 19 persons

in Annexure P-5 enclosed with the writ petition, who were allegedly

regularized by the University in gross violation of the ratio of the

judgment in Uma Devi's case(supra). In view of the said allegation,

the court considered it necessary to direct the highest body in the

University to appoint a Committee of senior level officers to enquire

into the circumstances whereunder, the directions of the Constitution

Bench in the case of Uma Devi(supra), were violated. Further, the

Committee was directed to take a decision on the fate of the

regularization of 19 persons mentioned in Annexure P-5 to the writ

petition, in accordance with law, after granting a hearing to them.

6. As an offshoot to the aforesaid directions, it was deemed

appropriate to call upon the Administrative Ministry, i.e., Ministry of

Human Resources & Development, Govt. of India to file an affidavit

with respect to the steps taken by it to inform all the autonomous

organizations and PSUs under its jurisdiction that the ratio of the

judgment in Uma Devi's case(supra) applies to all the

bodies/organizations etc. and the same cannot be violated by

regularizing the services of casual/temporary/adhoc etc. employees.

7. Vide order dated 16.12.2013, while directing the Committee to

be appointed by the University to undertake an enquiry and conclude it

within four months and thereafter, place its Report before the court on

the next date of hearing, the Ministry was also directed to file an

affidavit of compliance.

8. On 14.8.2014, Mr.Amitesh Kumar, learned counsel for the

University had stated that the enquiry was concluded by the

Committee and an Enquiry Report had been forwarded to him in a

sealed cover. The sealed cover was opened in court and the Enquiry

Report which was in two volumes, was taken on record. On the said

date, it was noted that as per the conclusion arrived at by the

Committee, out of the 19 persons referred to by the petitioners in

Annexure-5 of the petition, two persons were found to be qualified to

hold the post of LDC, four persons were recommended for

appointment on compassionate basis and thirteen persons were found

to have been appointed in violation of the ratio of the judgment in the

case of Uma Devi(supra). As learned counsel for the University had

sought time to peruse the said Report to enable him to assist the

court, the matter was renotified for today. In the meantime, the

Ministry was once again directed to file an affidavit, in terms of the

order dated 16.12.2013. Further, the respondents were called upon to

file an affidavit furnishing inter alia the details of the sanctioned posts

of Data Entry Operators in the University and if there were any

sanctioned posts, then the existing vacancies and the steps, if any,

taken by the University to fill up the said vacancies as per law.

9. Mr.Mahajan, learned counsel appearing for the Ministry states

today that an affidavit has been filed in compliance of the order dated

16.12.2013. The said affidavit states that vide letter dated 15.1.2014,

all autonomous organizations and PSUs under the jurisdiction of the

Ministry have been informed about the ratio of the judgment in Uma

Devi's case(supra) and the said letter has also been circulated to the

Heads of the Departments within the Ministry in Higher Education,

School Education and Literacy.

10. Mr. Mahajan states that about 153 Organizations/Bodies/

Departments are under the administrative control of the Ministry and

each of them have been conveyed the ratio of the judgment in Uma

Devi's case(supra). Learned counsel is however not in a position to

inform the court as to whether compliance reports have been

submitted by each of the aforesaid Organizations/Bodies/Departments

to the Ministry confirming inter alia that there has been no violation of

the judgment in Uma Devi's case(supra) by regularizing the services of

casual/temporary/adhoc etc. employees.

11. It is deemed appropriate to direct the Ministry to file a fresh

affidavit after obtaining compliance reports from all the concerned

Organizations/Departments etc., in terms of the order dated

16.12.2013. Needful shall be done within eight weeks.

12. Mr.Kumar, learned counsel for the University states on

instructions from the Registrar of the University, that there are no

sanctioned posts of Data Entry Operators in the University and

therefore, the remaining directions contained in para 6 of the order

dated 14.8.2014 cannot be complied with. He submits that the issue

with regard to creation and notification of posts of Data Entry

Operators shall be placed before the Board of Management for it to

decide as to whether there is a requirement for creating permanent

posts of Data Entry Operators and if so, the steps required to be taken

to notify such posts along with the Recruitment Rules, in accordance

with law.

13. As for the petitioners herein, having regard to the judgment of

the Supreme Court in the case of Uma Devi(supra), their request for

being treated as par with the other contractual employees whose

services have been regularized by the University, cannot be acceded

to. In the case of Uma Devi(supra), the pre-requisites for considering

a person's case for regular/permanent employment, either with the

State or with an instrumentality of the State were elaborated and the

following conditions were stipulated:-

(i) Existence of a sanctioned post.

(ii) Existence of a vacancy in a sanctioned post.

(iii) Issuance of advertisement for calling candidates by open competition including through employment exchange and

(v) Appointment of duly qualified persons as per the Recruitment Rules or the applicable Guidelines.

Admittedly, there are no sanctioned posts of Data Entry

Operators existing in the respondent/University. So the question of

fulfilling the remaining three conditions prescribed by the Supreme

Court in the aforecited decision, does not arise.

14. Coming next to the grievance of the petitioners that the

respondents have extended extra legal benefits to 19 employees who

were working on a contractual basis and were subsequently

regularized, the same stands suitably redressed in the light of the

series of orders passed in the present proceedings, for undoing the

wrong. In any case two wrongs cannot make a right and the

petitioners cannot insist on being regularized contrary to law.

15. Having regard to the Report submitted by the Committee

constituted by the respondent/University, it is deemed appropriate to

direct the University to place the said Report before the Board of

Management, for it to examine the same and take further action

thereon. The Board shall ensure that before proceeding to take any

adverse action against the 19 employees named by the petitioners in

Annexure P-5, the principles of natural justice are followed strictly, by

issuing them a notice to show cause, whereafter they shall be afforded

an opportunity of hearing. The notice to show cause shall mention the

specific irregularities pointed out in the Report with regard to their

appointments. After considering the reply of the concerned employees,

the competent authority shall pass appropriate orders, in accordance

with law, under written intimation to such employees. Further, the

Board of Management of the respondent/University shall undertake an

independent exhaustive enquiry as to whether any other contractual/

adhoc/temporary appointments have been made in the University,

which may not have been mentioned by the petitioners, but are

contrary to the ratio of the judgment in the case of Uma Devi(surpa)

and if so, appropriate action shall be taken to reverse the said

illegality, in accordance with law, within four months from today.

16. It is pertinent to mention here that aggrieved by the

recommendations made by the Committee, out of 15 employees

mentioned by the petitioners in Annexure-5, 12 employees of the

respondent/University have approached this Court by filing a separate

petition [WP(C) No.7554/2014], praying inter alia for issuing

directions to the respondents to make available to them, a copy of the

Inquiry Report so as to enable them to take their remedies in

accordance with law.

17. Directions have already been issued to the respondent/University

to place the Report of the Committee before the Board of Management

for it to take further action in accordance with law but only after

putting to notice the contractual/adhoc/temporary employees, who

have allegedly been illegally regularized by the respondents, and after

confronting them with the relevant material gathered and placed on

record by the Committee. As a result, the grievance of the petitioners

in the aforesaid cited writ petition stands adequately redressed.

18. On 16.12.2013, directions were also issued that in case any of

the authorities/officers are found to be negligent or found to have

illegally regularized the contractual appointments, then the Committee

shall recommend appropriate action and remedial measures. In the

penultimate para of its Report at pages 27-28, the Inquiry Committee

has pointed out the deficiencies in discharge of obligations on the part

of some of its officers and has referred to six officials by designation,

who were directly associated with recommending/approving/

implementing the proposals of regularization of 19 persons.

Unfortunately, the Committee has not named the said officers which

would be necessary for the Board of Management to fix the

responsibility and take action against the said officials, in accordance

with law. The Committee is directed to furnish the names of the

officers mentioned in the Report along with the relevant period when

the illegality was committed and the findings returned vis-a-vis each of

the said officer. The said information shall be placed in a sealed cover

before the Board of Management for it to initiate appropriate action

against them, in accordance with law, after following the principles of

audi alteram partem. The action taken by the respondent/University

shall be set out in the additional affidavit that shall be filed by the last

week of February 2015.

19. All the petitions are disposed of on the aforesaid lines. List on

7.4.2015 in the category of `Directions', for perusing the affidavit to

be filed by the respondent/University after making compliances of the

directions issued hereinabove and for perusing for the compliance

report to be filed by the Ministry of Human Resources & Development,

Govt. of India as noted above.

(HIMA KOHLI) JUDGE NOVEMBER 13, 2014 mk/sk/rkb