Delhi High Court
Manohar & Ors vs Union Bank Of India & Anr on 23 May, 2016
$~26.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3125/2016 & CM No.13349/2016
MANOHAR & ORS ..... Petitioners
Through: Mr. Ranjeet Kumar, Advocate
versus
UNION BANK OF INDIA & ANR ..... Respondents
Through: Ms. Nidhi Bhuwania, Advocate
for R-1 & 2.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
ORDER
% 23.05.2016
1. The present petition has been filed by 15 petitioners praying inter alia
for directions to the respondent/Union Bank of India to absorb them
permanently on the post of Driver-cum-Helper in accordance with the
Notification dated 31.5.2014.
2. On a perusal of the Notification dated 30.5.2014, it transpires that the
respondent/Bank had issued a recruitment notice for the post of
Housekeepers-cum-Peon and not for Driver-cum-Helper, as has been stated
in the prayer clause of the petition. Learned counsel states that it is an error
and the words "Housekeepers-cum-Peon" may be read in place of "Driver-
cum-Helper" in the prayer clause. Ordered accordingly.
3. It is the contention of the learned counsel for the petitioners that each
of the petitioners were employed by the respondent/Bank and are therefore
entitled to be absorbed on a permanent basis as Housekeepers-cum-Peons.
However, on examining the documents filed by the petitioners along with
the writ petition and collectively marked as Annexure P-2, it transpires that
they were all engaged as personal drivers by individual officers of the
respondent/Bank.
4. The submission made by learned counsel that the petitioners were
engaged by the respondent/ Bank as Drivers-cum-Helpers is vehemently
disputed by counsel for the respondents and it is submitted that they were
engaged directly by the officers working with the respondent/Bank and
therefore, the question of the Bank absorbing them on the subject post does
not arise.
5. Counsel for the respondents submits that though the petitioners were
not employed by the Bank but by officers of the staff, they were extended an
age relaxation which could make them eligible for being considered for
appointment to the 44 posts of Housekeepers-cum-Peon in different
categories as advertised. He states that on the basis of the age relaxation
given to them, the petitioners had duly participated in the recruitment
process, but none of them had qualified. He submits that all the vacant posts
of Housekeepers-cum-Peon as advertised have been filled up by following
the prescribed procedure.
6. Having regard to the documents filed with the petition, which do not
reveal that any of the petitioners were employed directly by the
respondent/Bank, this Court is not inclined to entertain the present petition.
Quite evidently, the petitioners were engaged as personal drivers of the
officers working in the respondent/Bank and the certificates issued by the
concerned officers, as enclosed with the present petition and collectively
marked as Annexure-P-2 (colly), bear out the said position.
7. Given the above position, it cannot be urged that the petitioners are
eligible for permanent employment with the respondent/Bank or that the
respondent/Bank is under any obligation to appoint them on permanent
posts. In this context regard may be had to the law declared by the
Constitution Bench of the Supreme Court in the case of Secretary, State of
Karnataka and Ors. vs. Umadevi and Ors., (2006) 4 SCC 1. In the said case,
the Supreme Court had reviewed the entire case law and held that those who
get employed without following a regular procedure or enter the service
through the back door or daily wage or other basis, cannot claim
regularization as the plea for any such relief fails when tested on the
touchstone of equality of opportunity as guaranteed under Articles 14 and 16
of the Constitution of India. The Supreme Court held as under :
"43. .......It has also to be clarified that merely because a temporary
employee or a casual wage worker is continued for a time beyond the
term of his appointment, he would not be entitled to be absorbed in
regular service or made permanent, merely on the strength of such
continuance, if the original appointment was not made by following a
due process of selection as envisaged by the relevant rules. It is not
open to the court to prevent regular recruitment at the instance of
temporary employees whose period of employment has come to an
end or of ad hoc employees who by the very nature of their
appointment, do not acquire any right......"
8. The Supreme Court had gone on to observe that those who get
appointed on temporary or casual basis are conscious of the nature of their
employment and accept such an employment with their wide open eyes.
They may not be able to bargain for a better status when they are offered
such appointments but that would not be a ground to jettison the
constitutional scheme of appointment and perpetuate an illegality by
granting permanence to such temporary or casual employed candidates. By
doing so, the Court would be creating another mode of public appointment,
which is impermissible. The Court indicated the approach to be adopted in
cases where temporary or ad hoc employees seek regularization by filing
petitions in the court in the following words :
"49. It is contended that the State action in not regularizing the
employees was not fair within the framework of the rule of
law........ When the court is approached for relief by way of a
writ, the court has necessarily to ask itself whether the person
before it had any legal right to be enforced. Considered in the
light of the very clear constitutional scheme, it cannot be said
that the temporary, contractual, casual or daily wage
employees have been able to establish a legal right to be made
permanent even though they have never been appointed in
terms of the relevant rules or in adherence of Articles 14 and
16 of the Constitution."
9. The Supreme Court had also cautioned against issuance of orders
preventing regular selection or recruitment at the instance of
temporarily appointed persons. It was observed that any order for
continuance of such temporary or casual employees, would tend to
defeat the very constitutional scheme of public employment.
10. In the light of the above pronouncement and the facts of the case, as
noted above, this Court is not inclined to entertain the present petition. As
noted above, the respondent/Bank did try and accommodate the petitioners
by granting them some age relaxation to enable them to apply for the subject
post and they had participated in the recruitment process, but none of them
could qualify. No further latitude could be given to the petitioners beyond
the above. Accordingly, the writ petition is dismissed as being devoid of
merits, along with the pending application.
HIMA KOHLI, J
MAY 23, 2016
sk/ap
