Delhi High Court
Mr. Sisupalan And Anr. vs Union Of India & Ors. on 16 January, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 1742/2010
% 16th January, 2017
MR. SISUPALAN AND ANR. ..... Petitioners
Through: Mr. Sukhvinder Singh, Adv.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Prasanta Verma, standing
counsel for R-1.
Mr. Ravinder Aggarwal, Adv. for R-
2/UGC.
Mr. Aditya Ranjan, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CM No. 19916/2016 (for restoration) and CM No. 19917/2016 (for
condonation of delay of 1306 days in filing the restoration application)
Though there is a huge delay of 1306 days in filing these
applications for restoration and condonation of delay, and though there is no
ground for restoration, but since I have heard arguments on merits, these
applications are allowed and the writ petition is restored to its original
number.
The applications stand disposed of.
W.P.(C) No. 1742/2010
1. By this writ petition under Article 226 of the Constitution of
India, petitioners seek the relief of their being regularized in the services of
Inter University Accelerator Centre, originally called Nuclear Science
Centre. Petitioners claim that they were appointed as Receptionists in the
Guest House-cum-Hostel of Nuclear Science Centre.
2. A reading of the writ petition shows that petitioners were never
the employees of Nuclear Science Centre but were employees of contractors
to whom jobs were outsourced by the Nuclear Science Centre. This
becomes clear and is found to be admitted by the petitioners themselves
from paras 3.2 and 3.3 of the writ petition and which paras read as under:-
"3.2 That the petitioners were appointed alongwith others by the
Management of Nuclear Science Centre itself but after appointment were
placed under the contractors appointed from time to time.
3.3 That the petitioners continued to work on interruptedly for No. of years
as the work performed by them was of permanent and perennial nature. The
respondents placed the petitioners under various contractors some of them not
even registered under the Contract Labour (Abolition & Regularisation) Act
1970. For example a contractor B.K.Suddan, under whom the services of the
petitioners were placed was not even registered. Another contractor Help line
Hospitality was introduced in 1998 and the services of the petitioners were
placed under it. This was also not a registered contractor and the same was
only introduced for the purpose of disbursing the salary to the petitioners and
other similarly situated employees."
3. No document whatsoever has been filed by the petitioners to
show that they were employees of the Nuclear Science Centre/respondent
no.3, and therefore, since petitioners were only employees of private
contractors, this writ petition will not lie in this Court because petitioners
were employees of private contractors and at no point of time petitioners
were direct employees of Nuclear Science Centre/respondent no.3.
4. I have gone through various other pleadings in the writ petition
which show that certain earlier writ petitions were filed by the petitioners
and in such writ petitions this Court passed certain orders, however, those
writ petitions were filed and orders passed on account of the Contract
Labour (Regulation and Abolition) Act, 1970. In none of these earlier writ
petitions any orders have been passed, which hold that the petitioners were
not the employees of private contractors, but were employees of Nuclear
Science Centre/respondent no.3.
5. Besides the above reason for dismissing of the writ petition as
petitioners were never the employees of Nuclear Science Centre/respondent
no.3 but were only the employees of private contractors and hence the writ
petition is not maintainable against Nuclear Science Centre/respondent no.3,
even if the writ petition was filed against Nuclear Science
Centre/respondent no.3 for regularization of petitioners and taking
hypothetically employees of Nuclear Science Centre/respondent no.3, the
services of the petitioners cannot be regularized in view of the ratio of the
Constitution Bench judgment of the Supreme Court in the case of Secretary,
State of Karnataka & Others vs. Umadevi (3) & Others, (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 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".
6. There are no averments in the writ petition that petitioners were
appointed by selection through advertisement for the post of Receptionists in
question, that there were such sanctioned posts with the Nuclear Science
Centre/respondent no.3 and that there were vacancies in such sanctioned
posts and that how the petitioners satisfied the eligibility criteria for being
appointed as Receptionists with the Nuclear Science Centre/respondent no.3.
Therefore, even if petitioners were employees of Nuclear Science
Centre/respondent no.3, petitioners cannot be regularized in their services as
claimed by them in view of the ratio of the Constitution Bench judgment of
the Supreme Court in the case of Umadevi (supra).
7. Dismissed.
JANUARY 16, 2017/ ib VALMIKI J. MEHTA, J
