Delhi High Court
Sh. Sri Ram Mann vs Delhi State Ind. Dev. Corpn. & Ors. on 18 February, 2015
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.2009/2000
% 18th February, 2015
SH. SRI RAM MANN ..... Petitioner
Through: None.
versus
DELHI STATE IND. DEV. CORPN. & 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. No one appeared on behalf of the parties, although it is 12.45 PM. I
have therefore perused the record and am proceeding to dispose of the
petition.
2. Petitioner, an employee of the respondent no.1 and earlier of the
respondent no.2/Delhi State Mineral Development Corporation, by this writ
petition, seeks the following reliefs:-
"a) hold that the order of termination dt. 30.6.93 is illegal, invalid,
arbitrary, discriminatory, mala fide and inoperative. The same may be
quashed. The petitioner be treated in continuous service during the
period from 1.7.93 to 18.8.96 holding that his services were never
WP(C) 2009/2000 Page 1 of 6
lawfully terminated. Respondents may be called upon to pay salary &
allowances and other benefits for the aforesaid period from 1.7.93 to
18.8.96 with increments for the said period;
b) hold that the petitioner has been in regular service from 17.9.85
onwards and he is entitled to all consequential benefits by way of
increments in pay and other benefits etc.
c) call upon the respondents to place the petitioner at appropriate
stage in his pay scale as AG-III from 17.9.85 after adding up
increments due to him;
d) call upon the respondents to place the petitioner at appropriate
place in the seniority list of AG-III while treating his date of
appointment as 17.9.85;
e) call upon the respondents to give promotion to the petitioner to
the post of AG-II with all consequential benefits together with
increments etc. from the date when incumbents junior to him were
promoted including Shri Raja Ram to the said post of AG-II while
treating the date of the appointment of the petitioner as 17.9.85 with
continuity in service;
f) direct the respondents to pay the entire arrears with interest @
18% per annum from the date when by issuance of writ of certiorari,
mandamus or any other appropriate writ, order, rule or direction.
Any other benefit which may be deemed fit and proper in the
facts and circumstances of the case may also be granted together with
costs."
3. A reference to the aforesaid reliefs shows that the petitioner
claims regularization and consequential benefits from 17.9.1885 and in the
alternative, also claims that he should be taken in service with the
respondent no.1 not from 18.8.1996 but from 1.7.1993.
WP(C) 2009/2000 Page 2 of 6
4. A reading of the writ petition alongwith its annexures and the
counter-affidavit alongwith its annexures shows that the petitioner was only
appointed on adhoc basis with the respondent no.2 on 26.11.1985. Once the
petitioner's appointment was purely on adhoc basis, petitioner cannot claim
regularization, that too retrospectively from 1985, in view of the ratio of the
Constitution Bench judgment of the Supreme Court in the case of Secretary,
State of Karnataka Vs. Umadevi & Ors. (2006) 4 SCC 1 which lays 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
WP(C) 2009/2000 Page 3 of 6
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".
WP(C) 2009/2000 Page 4 of 6
5. Petitioner therefore cannot claim regularization, that too
retrospectively from the date of his adhoc appointment on 26.11.1985. I
may note that petitioner has been appointed again on adhoc basis with the
respondent no.1 in 1996 as a case of compassionate employment in view of
the petitioner earlier having filed a writ petition, and thereafter, the Chief
Secretary of Delhi Administration, in view of the observations of a Division
Bench of this Court, appointed the petitioner on compassionate grounds with
the respondent no.1.
6. Therefore, a reading of the writ petition and the counter-
affidavit shows that petitioner's services both with respondent no.1 and
respondent no.2 were only on adhoc basis, and therefore, there does not arise
issue of regularization of the services of the petitioner i.e giving permanent
appointment to the petitioner much less retrospectively either from 1993 or
from 1985 as prayed for in the writ petition. I may state that the petitioner
was given only adhoc employment with the respondent no.1 because
petitioner at the time of joining of the corporation was 42 years of age and
the age limit for direct recruitment in the respondent no.1-corporation was
25 years and for which no relaxation could be given.
WP(C) 2009/2000 Page 5 of 6
7. A resume of the above shows that petitioner after termination of
his adhoc services with the respondent no.2 was purely on compassionate
ground given fresh adhoc appointment with the respondent no.1, and
subsequently, petitioner has been regularized with respondent no.1 at
Assistant Grade (AG)-III in the pay scale of Rs. 3050-4590 w.e.f 25.5.1998.
Petitioner therefore now stands regularized, and the petitioner cannot claim
regularization from a retrospective date in view of the ratio in the case of
Umadevi(supra) .
8. There is hence no merit in the writ petition, and the same is therefore
dismissed.
FEBRUARY 18, 2015 VALMIKI J. MEHTA, J.
ib
