Delhi High Court
Ms. Jharna Banerjee & Anr. vs Union Of India & Ors. on 8 January, 2015
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.1337/2014& CONN.
% 8th January, 2015
+ W.P.(C) No.1337/2014
MS. JHARNA BANERJEE & ANR. ......Petitioners
Through: Ms.Padmini Gupta, Advocate.
VERSUS
UNION OF INDIA & ORS. ...... Respondents
Through: Mr.Sanjay Jain, ASG with Mr.Sanjeev
Narula, CGSC with Ms.Astha Jain,
Advocate for UOI.
Mr.Siddharth Dias, Advocate for FPAI.
Ms.Zubeda Begumm, Standing Counsel for
GNCTD/Directorate of Family Welfare.
+ W.P.(C) No.1817 /2014
DR. MANGALA KHATTAR & ORS. ......Petitioners
Through: Ms.Meenu Mainee, Advocate.
VERSUS
GOVERNMENT OF NCT, DELHI & ORS. ...... Respondents
Through: Mr. Manish Mohan, CGSC with Ms.Sidhi
Arora, Advocate for UOI.
Mr.Siddharth Dias, Advocate for FPAI.
Ms.Zubeda Begumm, Standing Counsel for
GNCTD/Directorate of Family Welfare.
+ W.P.(C) No.2506 /2014
SH. SUBHASH CHAND & ANR. ......Petitioners
Through: Ms.Padmini Gupta, Advocate.
VERSUS
GOVERNMENT OF NCT & ORS. ...... Respondents
Through: Mr. Manish Mohan, CGSC with Ms.Sidhi
Arora, Advocate for UOI.
Mr.Siddharth Dias, Advocate for FPAI.
Ms.Zubeda Begumm, Standing Counsel for
GNCTD/Directorate of Family Welfare.
+ W.P.(C) No.2136 /2014
SMT. ANNAMMA E.M. & ORS. ......Petitioners
Through: Ms.Meenu Mainee, Advocate..
VERSUS
GOVERNMENT OF NCT, DELHI & ORS. ...... Respondents
Through: Mr.Sanjay Jain ,ASG with Mr.Vivek Goyal,
CGSC with Ms.Aastha Jain, Advocate for
UOI.
Mr.Rajesh Kajla, Advocate for R-3.
Ms.Zubeda Begumm, Standing Counsel for
GNCTD/Directorate of Family Welfare.
+ W.P.(C) No.2180 /2014
DR. MITA CHAKARBORTI & ORS. ......Petitioners
Through: Mr.Arvind Nayar with Mr.Zeyaul Haque,
Advocates.
VERSUS
UNION OF INDIA & ORS. ...... Respondents
Through: Mr. Sanjay Jain, ASG with Mr.Sanjeev
Narula, CGSC and Mr.Ajay Kalra, Advocate
for UOI.
Mr.Akhail Ahmad, Advocate for R-3.
Ms.Zubeda Begumm, Standing Counsel for
GNCTD/Directorate of Family Welfare.
+ W.P.(C) No.2181 /2014
DR. SHAMPA KHAITAN & ORS. ......Petitioners
Through: Mr.Arvind Nayar with Mr.Zeyaul Haque,
Advocates.
VERSUS
UNION OF INDIA & ORS. ...... Respondents
Through: Mr. Sanjay Jain, ASG with Mr.Sanjeev
Narula, CGSC and Mr.Ajay Kalra, Advocate
for UOI.
Ms.Zubeda Begumm, Standing Counsel for
GNCTD/Directorate of Family Welfare.
+ W.P.(C) No.2182 /2014
DR. MS. ALKA NAYAR & ORS. ......Petitioners
Through: Mr.Arvind Nayar with Mr.Zeyaul Haque,
Advocates.Mr.
VERSUS
UNION OF INDIA & ORS. ...... Respondents
Through: Mr.Sanjay Jain, ASG with Mr.Jasmeet
Singh, CGSC with Ms.Aastha Jain and
Mr.Shresth Jain, Advocate for UOI.
Ms.Zubeda Begumm, Standing Counsel for
GNCTD/Directorate of Family Welfare.
+ W.P.(C) No.2183 /2014
DR. PREETI SAXENA & ORS. ......Petitioners
Through: Mr.Arvind Nayar with Mr.Zeyaul Haque,
Advocates.
VERSUS
UNION OF INDIA & ORS. ...... Respondents
Through: Mr.Sanjay Jain, ASG with Mr.Vikram
Jeitly, CGSC with Ms.Aastha Jain and
Mr.Shresth Jain, Advocates for UOI.
Mr.D.Rajeshwar Rao with Mr.Vikrant
Kaushik, Advocates for R-3.
Ms.Zubeda Begumm, Standing Counsel for
GNCTD/Directorate of Family Welfare.
+ W.P.(C) No.2184 /2014
DR. NIRMAL SHOKEEN & ORS. ......Petitioners
Through: Mr.Arvind Nayar with Mr.Zeyaul Haque,
Advocates.
VERSUS
UNION OF INDIA & ORS. ...... Respondents
Through: Mr. Sanjay Jain, ASG with Mr.Vikram
Jeitly, CGSC and Ms.Aastha Jain and
Mr.Shresth Jain, Advocates for UOI.
Mr.Miteshwar Singh proxy for
Mr.B.S.Chauhan, Advocate for R-3.
Ms.Zubeda Begumm, Standing Counsel for
GNCTD/Directorate of Family Welfare.
+ W.P.(C) No.2185 /2014
DR. PRITEE BHANJA & ORS. ......Petitioners
Through: Mr.Arvind Nayar with Mr.Zeyaul Haque,
Advocates.
VERSUS
UNION OF INDIA & ORS. ...... Respondents
Through: Mr.Sanjay Jain, ASG with Mr.Jasmeet
Singh, CGSC with Ms.Aastha Jain and
Mr.Shresth Jain, Advocate for UOI.
Ms.Zubeda Begumm, Standing Counsel for
GNCTD/Directorate of Family Welfare.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
W.P.(C) No. 1337/2014
1. Petitioners are employees of respondent no.3/Family Planning
Association of India. Petitioners seek the relief of quashing of the orders
passed by respondents no.2 and 3 dated 24.1.2014 and 31.1.2014 terminating
their services.
2. The issue is whether respondent no.3/Family Planning
Association of India is a State or an authority of the State under Article 12 of
the Constitution of India. Counsel for the petitioners places reliance upon the
judgment of a learned Single Judge of this Court in the case of Mr. M.P.Singh
& Ors. Vs. Delhi Administration & Ors. W.P.(C) No. 3007/1989 decided on
5.8.1992 to argue that respondent no.3 is a State.
3. Before referring to the applicability of the judgment in the case of
M.P.Singh (supra), it is required to be noted that respondent no.3/Family
Planning Association of India essentially had two parts of its operations. One
part was a State under Article 12 of the Constitution of India inasmuch as that
part of respondent no.3 was funded by the government for carrying out
activities of the government with respect to family planning etc. The other part
of respondent no.3 was a private organization which was neither funded by the
government and nor was under control of the government and therefore was not
a State under Article 12 of the Constitution of India. This aspect has been
considered by me while disposing of W.P.(C) No. 9063/2011 titled as Dr.
T.Renuka & Ors. Vs. Government of National Capital Territory of Delhi &
Ors. decided on 27.11.2013 and the said judgment read as under:-
"1. Petitioners are employees of respondent no.2-Family
Planning Association of India. Family Planning Association of
India has two sets of employees. One set of employees are
those employees who like the petitioners became part of the
department of respondent no.2 which was fully funded by the
government for a family planning project. Respondent no.2 is
otherwise a private NGO. The second set of employees are
private employees of this private NGO who do not form part
of the department of the respondent no.2 which is fully funded
by the government for family planning project. Petitioners
claim parity with the private employees of the respondent no.2
with respect to gratuity and other terminal benefits, and for
which purpose, reliance is placed upon the judgment of a
learned Single Judge of this Court in the case of M.P.Singh &
Ors. Vs. Delhi Administration (now GNCTD) and Ors. ,in
W.P.(C) No. 3007/1989 decided on 5.8.1992.
2. The principle of 'equal pay for equal work' has its source
in Article 14 of the Constitution of India. Article 14 of the
Constitution of India applies to the State and instrumentalities
of State as per Article 12 of the Constitution of India. The
principle of 'equal pay for equal work' cannot be enforced for
claiming parity by employees of the State or instrumentalities
of State with the employees who work in private commercial
establishments. Therefore, petitioners cannot claim parity with
private employees. Even in the judgment relied upon by the
petitioners in the case of M.P.Singh (supra) parity was
claimed by the petitioners who were employees of the
department of respondent no.2 which was fully funded by the
government for family planning projects, with those
employees in other societies and organizations which were
funded by the government for the family planning projects. In
M.P.Singh's case (supra), there is no ratio laid down, and nor
could any ratio be laid down that the principle of 'equal pay
for equal work' applies between government employees or
employees of a State and private employees. Therefore, I reject
the argument that petitioners can claim equal pay for equal
work with those employees who are private employees of
respondent no.2.
3. So far as the claim of the petitioners for payment of
gratuity and terminal benefits similar to the benefits granted to
other employees of respondent no.2 who are in the department
of respondent no.2 which is fully funded by the government
for the family planning project is concerned, then in that case,
if the government funding and the government circulars entitle
employees such as the petitioners in the department of
respondent no.2 which is fully funded by the government to
the grant of gratuity and other terminal benefits, petitioners
shall be granted gratuity and terminal benefits in terms of the
circulars and directions of the government as applicable to the
employees in the department of the respondent no.2 which is
working for the family planning projects.
4. The writ petition is therefore dismissed so far as the
claim for equal pay for equal work is concerned, however, it is
allowed in terms of the directions given above so far as the
gratuity and terminal benefits are concerned. Parties are left to
bear their own costs."
4. In the present case, the admitted position is that the funding of
respondent no.3 has been stopped by the government/Union of India and the
Govt. of NCT of Delhi w.e.f. 1.4.2014. Therefore, w.e.f 1.4.2014 there is no
department or part of respondent no.3 which can in any manner become a State
because the government has no control over the operations of respondent no.3
w.e.f 1.4.2014 and nor is respondent no.3 being funded in any manner by the
Union of India or the Govt. of NCT of Delhi.
5. At this stage, I would also like to refer to a judgment which was
passed by me in the cases of N.K.Saxena & Ors. Vs. Govt. of Delhi & Ors.
W.P.(C) 5292/2006 and Dr. J.B.Babbar Ors. Vs. Govt. of NCT of Delhi &
Ors. W.P.(C) No. 4164/2008. Both these petitions have been disposed of in
terms of the judgment dated 12.4.2013 and which judgment reads as under:-
"1. Learned counsel for the petitioner was heard at length not
only today but also on two earlier dates viz. on 29.01.2013 and
28.02.2013.
2. The petitioners in these cases are employees of the
respondent No. 2. Respondent No. 2 is an entity independent
of the respondent No. 1/Government of NCT of Delhi and the
respondent No.3/Central Government.
3. Petitioners were specifically appointed with respect to a
Composite Pattern Scheme to be implemented with respect to
family planning. Respondent No. 2 was running various
schemes and one such scheme was the Composite Pattern
Scheme. Since the Composite Pattern Scheme was being
closed, some employees were adjusted in other schemes in
Delhi, whereas, the petitioners were sought to be transferred
outside Delhi where other schemes of respondent
No.2/employer were being carried out/implemented.
4. It is at this stage, that the writ petitions were filed in 2006
challenging the transfer orders and seeking reliefs against the
closure of the particular centre of the Composite Pattern
Project at Delhi, where the petitioners were engaged in the
family planning centres.
5. The Constitution Bench of the Hon'ble Supreme Court in
the case of Secretary, State of Karnataka vs. Umadevi & Ors.
2006(4) SCC 1 has held that casual employees or work
charged employees or contractual employees on their
contracted tenures coming to an end, cannot seek
regularization in service.
6. The Hon'ble Supreme Court has observed that such
persons cannot claim legitimate expectation for being
regularized inasmuch as such contractual employees or work
charged employees when they joined the services knew that
they were appointed either as casual employees or work
charged employees or contractual employees or for a project
only. Various other issues have also been considered by the
Supreme Court in the case of Umadevi (supra) as to whether
there should be regularization of casual or work charged or
adhoc or contractual employees. Following is the ratio which
is laid down by the Supreme Court in the judgment in the case
of Uma Devi's (supra):
(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 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."
7. The aforesaid ratio makes it clear that on completion of a
project, the employees of the project have no right to claim
regularization by the employer in any other project or
otherwise permanently in the organization.
8. In the facts of the present case, what is only found is that
the respondent No. 2 is not terminating the employment of the
petitioners and the employees were being transferred out of
Delhi to other projects of respondent No. 2 at the relevant time
when this writ petition was filed in the year, 2006.
9. In view of the aforesaid ratio of the judgment in Uma
Devi's case (supra) and the fact that as per the decision
prevailing in 2006, the petitioners were only being transferred
to other centers and were not being terminated out of their
services as per any documentation or affidavit before me. The
learned counsel for the petitioners state that he has instructions
from the petitioners not to press the petitions and the
petitioners are ready to be transferred out of Delhi, of course,
on their employment continuing with respondent No. 2 and
which presently is continuing. It is further clarified that
respondent No. 2 can take any action in accordance with law
for taking of services from the petitioners and if the employers
have a place for accommodation in Delhi then the employees
can be accommodated in Delhi and if the respondent
No.2/employer feels that there is no place for accommodating
the petitioners in Delhi, petitioners agree that without any
further arguments or objections, they will join their duties at
any centre outside Delhi.
10. The writ petitions are dismissed as withdrawn subject to
the aforesaid observations."
6. A reading of the aforesaid judgment dated 12.4.2013 shows that
actually the writ petition nos. 5292/2006 and 4164/2008 were found to be not
maintainable because even with respect to appointments by the
Government/State or authorities of the State, work charged employees and
project employees cannot claim regularization 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 . In Umadevi's
case (supra) the Constitution Bench of the Supreme Court has specifically
said that the work charged employees or the project employees have no right
of regularization and they cannot claim regularization because they joined
with open eyes with respect to a post which was not a regular/sanctioned
post. The tenure of such employees is co-terminus with the
work/project/post. Even therefore assuming that respondent no.3 for some
reason can be held to be a State, however since it is the position emerging
from the record that the employment of the petitioners was for a particular
project of respondent no.3 which was funded by respondent no.2, once that
project has come to an end w.e.f 1.4.2014, employees such as the petitioners
cannot claim continuation for their employment i.e effectively seeking
regularization of employment of a project post, and which relief if allowed
will clearly violate the direct ratio of the Constitution Bench judgment in the
case of Umadevi (supra).
7. For both the aforesaid reasons the respondent no.3 is no longer
a State after 1.4.2014. No part of the same in which the petitioners are
employed is controlled by the government or financed by the government of
NCT or is any project of the government or the State. The writ petition seeking
the relief of quashing of letters terminating the employment and effectively
seeking continuation of employment of regularization, therefore is not
maintainable. The writ petition is therefore liable to be and is dismissed on the
ground that project employees or work charged employees do not have any
rights to continue beyond the concerned project for which they were employed,
noting that the project in the present case of the respondent no.3 which was
funded by respondent no.2 has come to an end because respondent no.2 has
stopped funding of the respondent no.3 w.e.f 1.4.2013.
8. Though counsel for the petitioners argued that petitioners are not
work charged employees or project employees inasmuch as the petitioners are
in fact regularized by the respondent no.3 vide its orders dated 25.3.1991 and
20.11.1991, however, the argument is misconceived because appointment of
the petitioners was admittedly with the respondent no.3 for the project of
respondent nos. 1&2, and which was funded by respondent 2. Once the
funding of respondent no.3 by the respondent no.2 has stopped, respondent
no.3 will become a private organization and will not remain a State under
Article 12 of the Constitution of India.
9. No doubt, the writ petition has to be dismissed so far as the
relief claimed of quashing of letters terminating the employment of the
petitioners is concerned, however, in terms of the judgment in the case of
M.P.Singh (supra) petitioners will be entitled to all monetary benefits which
they were entitled to once the respondent no.3 is a State under Article 12 of
the Constitution of India till 31.3.2014. This aspect is also covered in favour
of the petitioners by para 3 of the judgment in the case of Dr. T. Renuka
(supra). Petitioners therefore will be entitled to all benefits as prescribed by
the respondent no.2 which are available to authorities of the State under
Article 12 of the Constitution of India including of salary increases in terms
of the 6th Central Pay Commission till the time their employment continued
till 31.3.2014 and from which date the funding of respondent no.3 was
stopped by the respondent no.2. Of course I clarify and hasten to add that
the entitlement of the petitioners to salaries and monetary emoluments will
be till the time the petitioners actually worked with the respondent no.3 or
31.3.2014 whichever is later and in terms of extant guidelines of the
respondent nos. 1 & 2 applicable to the respondent no.3. In case, the
necessary dues of the petitioners are not cleared by the respondent no.3, and
to whom the respondent 2 should grant the necessary funding for clearing of
the dues and which shall be positively done with a period of six weeks from
today, thereafter, petitioners will be entitled to interest at the rate of 6% per
annum simple from the date from which the amounts being the salary
increases and another monetary emoluments became due to the petitioners.
10. No other issue is pressed or urged before this Court as
otherwise discussed above.
11. The writ petition is however allowed to the extent stated above
of granting the petitioners all monetary emoluments including increases of
their salaries in terms of the 6th Central Pay Commission till 31.3.2014 as
were being paid to any other arm/authority of the State as per Article 12 of
the Constitution of India.
12. In case, there are any disputes of funding between the
respondent no.1/Union of India and respondent no.2/Govt. of NCT of Delhi,
these inter se disputes with respect to payment of any monetary emoluments
to the petitioners, will not be in any manner a reason for respondent no.2 not
to release dues of the petitioners to the respondent no.2 so that the
petitioners can be paid their dues in terms of the present judgment.
W.P.(C) 2506/2014
This writ petition is also dismissed to the extent of seeking a relief of
quashing of termination of services but is allowed with respect to monetary
emoluments in terms of the same directions granted while disposing of
W.P.(C) No. 1337/2014.
W.P.(C) Nos. 1817/2014, 2136/2014, 2180/2014, 2181/2014, 2182/2014,
2183/2014, 2184/2014 & 2185/2014
Counsels for the petitioners agree that petitioners will be satisfied with
the same directions to be given in the writ petition nos. 1337/2014 and
2506/2014. Accordingly, these writ petitions will also stand partly dismissed
and partly allowed in terms of the observations and directions given while
disposing of W.P.(C) No. 1337/2014. An additional direction is however
given in these cases that since petitioners have continued to work with the
respondent no. 3 pursuant to an interim order of this Court, petitioners till today
will be paid all monetary emoluments by the respondent no.3 taking respondent
no.3 as a private entity from 1.4.2014 till date and with the clarification that
neither respondent no.1 nor respondent no.2 i.e Union of India or Govt. of NCT
of Delhi will be required to fund the respondent no.3 for any payments which
have to be made to the petitioners for working on and after 1.4.2014 till today.
JANUARY 08, 2015 VALMIKI J. MEHTA, J
ib
