Delhi High Court
Sh. Hari Kishore Sharma vs Chief Secretary, Govt Of Nct Of ... on 27 January, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 11098/2015
% 27th January, 2017
SH. HARI KISHORE SHARMA ..... Petitioner
Through: Ms. Rashmi Chopra, Advocate.
versus
CHIEF SECRETARY, GOVT OF NCT OF DELHI & ANR.
..... Respondents
Through: Mrs. Avnish Ahlawat, Advocate for
R-2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition under Article 226 of the Constitution of
India, the petitioner seeks continuation of his contractual appointment, and
which has otherwise come to an end on 16.02.2015. Petitioner impugns the
advertisement dated 14-20.11.2015 issued by the respondent no. 2/Delhi
Technological University/employer inviting candidates for the post in
question of Assistant Engineer (Civil), and in which post the petitioner had
worked, by means of transfer on deputation basis from Centre/State
Government/NCT of Delhi/University/Autonomous Body/Government
W.P.(C) No. 11098/2015 Page 1 of 9
Undertaking/Recognized Research Institute employees. This impugned
advertisement reads as under:-
"DELHI TECHNOLOGICAL UNIVERSITY
Established by Govt. of Delhi vide Act 6 of 2009
(FORMERLY DELHI COLLEGE OF ENGINEERING)
BAWANA ROAD, DELHI -110042
No. F.DTU/HOO/Recruitment Engg./96/2010 Dated:
Recruitment of various posts in Engineering Cell on deputation basis
The Delhi Technological University invites application to fill up the
following posts by transfer on deputation basis from the Centre/State
Govt./NCT of Delhi/University/Autonomous Body/Govt.
Undertaking/Recognized Research Institute employees
S.No Name of Post No. of Pay Scale
. post
1. Assistant 01 Rs. 9,300 - 34,800 Grade
Engineer Pay Rs.4600/-
(Civil)
2. Jr. Engineer 01 Rs. 9,300 - 34,800 Grade
(Civil) Pay Rs.4200/-
3. Jr. Engineer 01 Rs. 9,300 - 34,800 Grade
(Elect.) Pay Rs.4200/-
Performa in respect of the posts are available on the university website
www.dtu.ac.in from 23.10.2015 and the last date of submission of application
form is 03.12.2015"
2. Learned counsel for the petitioner argued before this court two
aspects. The first aspect is by placing reliance upon the judgment of the
Supreme Court in the case of State of Haryana and Others Vs. Piara Singh
and Others, (1992) 4 SCC 118 that one contractual employee cannot be
replaced by another contractual employee. As a supplement to the first
aspect, it is argued that by the impugned advertisement effectively since
W.P.(C) No. 11098/2015 Page 2 of 9
there will be transfer on deputation basis only for a contractual period with
the respondent no. 2/employer, hence, persons who would be appointed in
terms of the impugned advertisement will also be contractual employees and
will be similarly placed as the petitioner. The second aspect which is
argued is that the respondent no. 1/GNCTD is not entitled to terminate the
services of a contractual employee in view of the circular of respondent no.
1/GNCTD dated 19.10.2015 and which reads as under:-
"GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI
(SERVICES DEPARTMENT-BRANCH- IV)
7TH LEVEL, B-WING, DELHI SECRETARIAT,
I.P. ESTATE, NEW DELHI-110002
No.F.19/(11)/2015/S.IV/1890-96 Dated:19/10/15
ORDER
The Government of National Capital Territory of Delhi has considered the issue
of regularization of the Contractual employees working in various departments
of Govt. of N.C.T of Delhi and approved the following general policy for
regularization of the contractual employees vide Cabinet Decision No. 2223
dated 06.10.2015:-
In line with the Uma Devi Judgment, Government of National Capital
Territory of Delhi makes the following policy for contractual employees
working against regular posts:-
1. Every department should formulate a scheme to fill up all vacant
posts.
2. Contractual employees working against these posts should be allowed
to apply with following conditions:-
(a) They should be given age relaxation.
(b) They should be given appropriate and adequate weightage of
experience for that post in evaluation.
(c) Any contractual employee, whose service was terminated due to
unsatisfactory work during their contractual employment, shall be treated as
ineligible, under the scheme.
3. Policy in para-2 shall also be applicable to the contractual employees
who have worked against these posts for an aggregate period of 6 months or
more after 01.04.2013.
It is, therefore, requested that the necessary action with regard to
implementation of above decisions may be initiated at the earliest.
sd/-
(ANUPMA CHAKRAVORTY)
DY. SECRETARY (SERVICES)
No.F.19/(11)/2015/S.IV/1890-96 Dated:19/10/15
Copy forwarded for information and necessary action to:-
1. Secretary to Lt. Governor, Govt. of N.C.T. of Delhi.
2. Pr. Secretary to Chief Minister, Govt. of N.C.T. of Delhi.
3. Secretary to Dy. Chief Minister, Govt. of N.C.T. of Delhi.
4. Secretaries to all Ministers, Govt. of N.C.T. of Delhi.
5. OSD to Chief Secretary, Govt. of N.C.T. of Delhi.
6. Pr. Secretaries/Secretaries/Head of Department, Govt. of N.C.T. of
Delhi, Delhi/New Delhi.
7. Guard file/Delhi Govt. website.
sd/-
(ANUPMA CHAKRAVORTY)
DY. SECRETARY (SERVICES)"
3. Learned counsel for the respondent no. 2/employer in response
argues by placing reliance upon the counter affidavit of respondent no.
2/employer that the present is not a case where one contractual employee
being the petitioner is substituted by another identically placed contractual
employee, inasmuch as, the feeder cadre with respect to the appointment to
the post in question is now changed from the general public to employees
of/from Centre or State Government employees or to Public Sector
Undertakings and so on as stated in the advertisement, and the object of
which was to fix accountability with respect to persons who are appointed
because as regards a normal contractual employee from the general public
after termination of contractual employment, the employer is not in a
position where the employees accountability can be called into question,
whereas after expiry of deputation period even if a deputationist goes back
to the employer organization which is a Government or a Government
organization or a similarly placed organization, then the respondent no.
2/employer can still seek accountability from such repatriated employee on
account of continued employment of the deputationist in the
principal/lending organization and which would effectively be a State under
Article 12 of the Constitution of India.
4. In my opinion, both the arguments urged on behalf of the
petitioner do not have substance and are liable to be rejected. The reasons
for the same are given hereinafter.
5. Firstly, it is seen that no doubt the law is that one contractual
employee cannot be substituted by another contractual employee, however,
the ratio in the case of Piara Singh (supra) only is applicable if one
contractual employee is substituted by an identical contractual employee. In
this case, it is found that the petitioner is being substituted not by an
identical contractual employee because respondent no. 2/employer has
desired employment for contractual periods only from employees of
Government or Government organizations for ensuring continuation of
accountability even after expiry of the deputation period of the employee.
This is specifically pleaded by respondent no. 2/employer in para 5 of its
counter affidavit which reads as under:-
"5. That since the post held by petitioner is a supervisory post, a policy
decision was taken by respondent that the post would be filled up only on
transfer by deputation basis so that some kind of accountability can be fixed on
the incumbent of the post otherwise in case of contract employee, except
terminating the contract, no further accountability can be fastened on the
holder of the post. In the case of the petitioner, he is in any case was 58 yrs of
age when decision was taken not to give further extension on contractual basis
to a contractual employee."
6. I have already reproduced the impugned advertisement above
and it is seen that the employment which would be done of persons to the
post in question in which the petitioner was appointed is now to be from a
totally different feeder cadre and which is that the candidates must be those
who will be employed by means of transfer on deputation basis from
Centre/State Government/NCT of Delhi/University/Autonomous
Body/Government Undertaking/Recognized Research Institute employees.
This has been done by respondent no. 2/employer for valid reasons and I
cannot hold the reason of respondent no. 2/employer of requiring continued
accountability being in any manner arbitrary or perverse. Obviously,
persons who are employed on contract basis from general public, after
expiry of the contractual period, cannot be held accountable unlike a
deputationist who can be held accountable as the deputationist will continue
as an employee of the lending organization, which is a State as per Article
12 of the Constitution of India.
7. Learned counsel for the petitioner sought to argue that the
persons who are appointed in terms of the impugned advertisement will also
be on contractual basis, and therefore the petitioner is also similarly placed,
however, I cannot agree in view of the fact that the feeder cadre for
appointment to the post in question is different than the general public cadre
from where the petitioner was appointed, with the fact that respondent no.
2/employer has a relevant reason of seeking appointment of an employee
who will only come from deputation from a Government or Government
organization or an organization which is a State as per Article 12 of the
Constitution of India.
8. The first argument urged on behalf of the petitioner therefore is
rejected that the petitioner is being substituted by an identically placed
contractual employee and therefore the ratio in the case of Piara Singh
(supra) relied upon by the petitioner will not help the petitioner in the
present case.
9. The second argument urged on behalf of the petitioner by
placing reliance on the circular of Government of National Capital Territory
of Delhi dated 19.10.2015 is again misplaced because the contractual
employees whose regularization is being talked of in terms of the circular of
Government of National Capital Territory of Delhi dated 19.10.2015 should
be identically placed than the persons who are substituted with the
contractual employees. Obviously, if for the post in question, which is a
contractual appointment, there are different parameters for appointment
whereby, the new appointees are not identically placed than the contractual
employees whose terms have expired, the circular of the Government of
National Capital Territory of Delhi dated 19.10.2015 cannot apply for
continuing the contractual employment and which circular will only apply if
the contractual employees are terminated and substituted by identically
placed contractual employees, and which is not so in this case as already
discussed above while deciding the first aspect urged on behalf of the
petitioner. Also, it is seen that effectively the circular of Government of
National Capital Territory of Delhi dated 19.10.2015 seeks following of the
ratio of the Constitution Bench judgment of the Supreme Court in the case
of Secretary, State of Karnataka and Others vs. Umadevi (3) and Others,
(2006) 4 SCC 1 and which holds one time regularization only of irregularly
appointed employees as existing in 2006 with the fact that appointment of
the employee has taken place on a sanctioned post, that there was a vacancy
in the sanctioned post, and qualified persons were appointed against
vacancies in sanctioned posts but without calling for appointment by
advertisements, i.e. advertisements for permanent appointments, but in the
present case admittedly the appointment is only a contractual appointment
and therefore the issue cannot be argued as that which would be the subject
matter of regularization in terms of Umadevi's case (supra). Issue is of non-
continuation of contractual employment which is the subject matter of Piara
Singh's case (supra) which is relied upon by the petitioner and ratio of
which judgment does not help the petitioner as discussed above.
10. In view of the above, there is no merit in the present petition
and the same is therefore dismissed, leaving the parties to bear their own
costs.
JANUARY 27, 2017/AK VALMIKI J. MEHTA, J
