Prachi Jain vs Delhi Cantonment Board & Ors.
2017 Latest Caselaw 1678 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    W.P.(C) No.1084/2014 and CM No. 22659/2015

%                                                           30th March, 2017

PRACHI JAIN                                                 ..... Petitioner
                             Through:       Ms. Neha Kapoor, Advocate
                             versus

DELHI CANTONMENT BOARD & ORS.            ..... Respondents

Through: Mr. Anchit Sharma, Mr. T.S.

Nanda and Mr. S. Ghosh, Advs.

for respondent no. 1 Mr. Arun Bhardwaj, CGSC for UOI/R-2 with Mr. Sriram and Mr. Nikhil Bhardwaj, Advs.

Mr. Bijender Singh, 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)

1. In this writ petition under Article 226 of the Constitution of India, the petitioner sought the following reliefs:-

"(a) Issue a writ of certiorari quashing/setting aside the contractual appointment of physiotherapist made by the respondent no. 1 in pursuance to advertisement dated 3.7.2011;

(b) Issue a writ of certiorari quashing/setting aside the resolution no. 19 for extension of contract in the meeting held on 10.12.2012;

(c) Issue a writ of mandamus directing the respondent no. 1 not to make permanent appointment for physiotherapist during the pendency of the instant petition and direct the respondent no. 1 to hold fresh appointments for the post of physiotherapist in a just and fair manner and not to further extend the period of contract of the selected candidates and not to make them permanent during the pendency of the instant petition. The petitioner should be given an appointment in the same candidature as of respondent nos. 3 and

4 because as per admitted fact total number of posts of physiotherapist i.e. 05 as declared were not filled and vacancy is still there; and

(d) Pass any other further order as this Hon‟ble Court may deem fit and proper in the facts of the case."

2. Essentially, the claim of the petitioner as per the writ

petition is that the petitioner was wrongly not selected in terms of the

advertisement dated 03.07.2011 issued by respondent no. 1 for the post

of Physiotherapist on contractual basis for a period of one year.

3. Also, as per the prayer „c‟, the petitioner sought the relief

of direction to respondent no. 1 not to make permanent appointment

for the post of Physiotherapist, which indeed is a very strange prayer

because the petitioner herself was only an aspirant seeking

appointment on contractual basis for the contractual period, and

therefore, there could not be any claim for restraining the respondent

no.1 from making regular appointment on permanent basis.

4. It is seen that the contractual period in question would

have come to an end on 19.7.2012 in terms of the advertisement,

however, since the illegally selected candidates being respondent nos.

3 and 4 herein were given appointment from January-February, 2012

therefore, their contractual periods would have come to an end after

one year in January-February, 2013. The present writ petition has been

filed later on by 1.2.2014.

5. It is said that this writ petition was filed after an earlier

writ petition was disposed of since the petitioner‟s complaint was

under examination by respondent no. 1.

6. Today, counsel for respondent no. 1 states that the CMO,

Cantonment General Hospital, Delhi Cantt., who was in charge of the

subject recruitment process, has been imposed a punishment of

compulsory retirement, on account of illegalities in the recruitment

process.

7. In my opinion, nothing survives for consideration in this

writ petition which is clearly infructuous because granting of the

petitioner‟s relief of contractual period of service of one year from

today would be a very convoluted concept because the contractual

appointment in the present case was around for one year commencing

from January-February, 2012 and which has ended in January-

February, 2013. Even the year extension granted to respondent nos. 3

and 4 has expired in the year 2014.

8. Not only the period in question has come to an end, but

petitioner, even assuming could be successful in contending that

petitioner, in fact ought to have been appointed, then the petitioner

could have at best only be entitled to monetary reliefs, but in my

opinion, this Court would not like to exercise its extraordinary

jurisdiction under Article 226 of the Constitution of India for giving

monetary reliefs to the petitioner, inasmuch as, the appointed persons

have worked with the respondent no. 1 and the respondent no.1 has

paid the monetary emoluments to respondent nos. 3 and 4 for the

periods such persons have worked. Respondent no. 1 therefore cannot

be forced to incur monetary liability for a service period for which

payments have been made by the respondent no.1.

9. Also, the present case is not a case where the petitioner

has worked, but was illegally removed from service, and consequently,

the claim for monetary emoluments during the period of illegal

removal. The petitioner has, thus in fact, never been appointed, and so

has not worked for even a single day in the said post with the

respondent no. 1, whereby the doctrine of „no work no pay‟ will apply.

Therefore, neither the petitioner can get the relief of contractual service

for the period of one year nor the petitioner can get any monetary relief

as is prayed before this Court today.

10. (i) Learned counsel for the petitioner has sought to draw the

attention of this Court to the orders dated 30.7.2015 and 8.9.2015

passed by a learned Single Judge of this Court. However, an interim

order does not create final rights, and more so, when the interim orders

were much beyond the scope of revision because they pertain to

appointments made by respondent no. 1 during the later year 2014,

and validity of which appointments have never been the subject matter

of the present writ petition.

(ii) Writ petitions cannot be continued on and on for various

subsequent appointments over various subsequent years inasmuch as

the subsequent appointments if illegally made, have to be made a

separate matter of a separate writ petition on a separate cause of action

and that is also on assuming that petitioner would be entitled to

successfully seek the relief of being granted appointments in those

posts which were subsequently filled in including on the basis that the

petitioner was a candidate for the subsequent post which was

advertised i.e the petitioner had applied pursuant to that advertisement.

(iii) Learned counsel for the respondent no. 1 states that when the

subsequent posts were advertised in the year 2014, the petitioner did

not apply under that advertisement which was for one permanent post

and two contractual posts and thus I would not like to go into this

aspect in detail. Subsequent appointments in a subsequent recruitment

process would have necessarily to be a subject matter in an

independent writ petition where a complete cause of action will have to

be pleaded.

11. In view of the above discussion, this writ petition is

infructuous so far as the claim of contractual appointment for a period

of one year is concerned and so far the claim of the petitioner for grant

of monetary reliefs is concerned for the period of one year taking the

petitioner to have been appointed, but since the petitioner did not work

even for a single day in the post of Physiotherapist with the fact that

the respondent no. 1 has paid the monetary emoluments to the persons

who were appointed for the contractual period, hence, this relief also

cannot be granted and is therefore rejected.

12. The present writ petition is accordingly dismissed, leaving

the parties to bear their own costs. Pending applications also stand

disposed of.

MARCH 30, 2017                                 VALMIKI J. MEHTA, J
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