Delhi High Court
Daya Chand & Ors. vs Govt. Of Nct Of Delhi & Anr. on 2 April, 2018
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9888/2015
DAYA CHAND & ORS. ..... Petitioners
Through: Mr.A.K.Trivedi &
Mr.Naveen Kumar Advocates
versus
GOVT. OF NCT OF DELHI & ANR. ..... Respondents
Through: Mr.Rahul Sharma &
Mr.C.K.Bhatt, Advocates
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE PRATIBHA RANI
ORDER
% 02.04.2018
1. W.P.(C) 9888/2015 has been taken up today, as 29.03.2018 was
declared a court holiday.
2. This is the second round of litigation by the petitioners seeking
their regularization with retrospective effect from 16.05.1989, which
has been declined by the Central Administrative Tribunal inter alia on
the ground that in W.P.No.253/1988, the direction of the Supreme
Court dated 31.10.1988, which was modified vide order dated
16.11.1988, was limited to the extent that the respondent was directed
to formulate a scheme of regularization of persons similarly placed as
the petitioners therein, within six months from the date of passing of
the order dated 16.11.1988. The regularization of the employees was
made contingent to the availability of the posts.
3. The petitioners herein were working as Beldars on work
charged basis in various divisions of the Irrigation & Flood
Department, Govt. of NCT of Delhi. Some similarly situated
employees filed Writ Petition No.253/1988 before the Supreme Court
wherein directions were issued to the respondents to frame a scheme
for regularization of the services of the petitioners therein as well of
the employees similarly situated who had been in service for more
than one year. The respondents were also directed not to terminate the
services of such employees till the scheme is framed. The question of
regularization was to be considered in the light of the scheme to be
framed. The respondents were also directed to continue paying
minimum salary w.e.f. 01.11.1988, to the petitioners and similarly
situated employees i.e. the minimum salary payable to the persons
regularly appointed and doing the same kind of work in the
department.
4. On 16.11.1988, the Supreme Court modified the above order by
fixing a timeline and issued the following directions:
"The direction issued by this Court on 31st
October, 1988 directing the respondents in this writ
petition to prepare a scheme for the regularization of the
employees concerned shall be complied with within six
months from today. The order dated 31st October, 1988
stands modified to this extent."
5. In compliance of the above directions, the respondents
formulated a scheme for regularization of the daily wage workers,
who had worked for more than 240 days with the cut-off date fixed as
on 16.05.1989. While some employees were regularized w.e.f. 1989,
the petitioners were regularized on different dates between the year
2002-2009.
6. Thereafter, the petitioners challenged the date of their
regularization by filing O.A.621/2010, which was disposed of by the
Tribunal on 21.10.2010, directing the respondents to consider
regularization of the petitioners w.e.f. 16.05.1989.
7. The above decision of the Tribunal was challenged by the
respondents/Government of NCT of Delhi by filing Writ Petition
No.4702/2011. The said petition was disposed of by setting aside the
direction of the Tribunal to the extent that the respondents were
directed to regularize the services of the petitioners from 16.05.1989.
The matter was remanded to the Tribunal to determine the issue in
respect of the date of regularization of the petitioners, with reasons in
support thereof.
8. The Tribunal re-examined the matter and dismissed the O.A. for
the following reasons:
(i) The directions issued by the Supreme Court on 31.10.1988,
which were modified vide order dated 16.11.1988, were only to frame
a scheme for regularization of the petitioners therein and persons
similarly placed as them, within six months from the date of the order.
(ii) There was no direction by the Supreme Court to regularize all
the employees within this period as regularization was to be
contingent on the availability of the post.
(iii) The petitioners have been regularized during the period
2002-2009, subject to the availability of the post, hence, their
contention that they all deserved to be regularized w.e.f. 1989, was
rejected.
(iv) The plea taken at a belated stage that the petitioners should have
been placed in the surplus pool, was also not accepted by the Tribunal
noting that if their grievance was that they were not placed in the
surplus pool, then they should have raised this issue when they had
filed the O.A. in the year 2010.
9. The petitioners have not been able to point out in the two orders
dated 31.10.1988 and 16.11.1988 that the Supreme Court had issued
any directions to the respondents to regularize all the employees soon
after framing a scheme. The limited directions issued by the Supreme
Court were (i) to frame a scheme for regularization within six months
from the date of order dated 16.11.1988; (ii) the services of the
petitioners or similarly situated persons would not be terminated; and
(iii) till the question of regularization is to be determined, the
petitioners/similarly situated persons would be paid the minimum pay
payable to regularly appointed persons. None of the aforesaid
directions were violated by the respondents in any manner whatsoever.
10. The petitioners have been regularized at their own turn
depending on the vacancy position. It is not their case that any person
junior to them has been promoted ignoring the seniority list.
Therefore, the petitioners cannot even claim any discrimination vis-à-
vis those employees who were regularized in the year 1989 after the
scheme was framed and implemented in compliance of the directions
given by the Supreme Court vide orders dated 31.10.1988 and
16.11.1988. Merely because certain employees were regularized in
the year 1989 just after the scheme came into force and the petitioners
had to wait for regularization and were regularized in a phased manner
over a period of seven years i.e. from the year 2002 to 2009, itself
does not give rise to any claim to seek their regularization with effect
from the year 1988, in the absence of any such direction issued either
in the policy or judicial pronouncement.
11. Regularizing the employees over a long period i.e. 1989 to
2009, itself suggests that regularization was being effected as per the
list prepared by the respondents, strictly in accordance with the
scheme framed by them pursuant to the orders of the Supreme Court.
The petitioners cannot claim accrual of any right in their favour to
seek regularization w.e.f. 1989. It is noteworthy that while issuing
directions vide orders dated 31.10.1988 and 16.11.1988, the Supreme
Court had taken care of not only the interest of the petitioners in
W.P.No.253/1988, but also of all similarly situated persons and the
directions were given so as to protect the interest of all similarly
situated daily wage workers.
12. Since the claim of the petitioners to seek regularization w.e.f.
1989 is only under the policy framed by the respondents in
compliance of the directions dated 31.10.1988 and 16.11.1988, there
being nothing on record to suggest any flaw in the implementation of
the said policy while regularizing the employees, we are of the opinion
that the Tribunal has rightly rejected their claim to seek regularization
w.e.f. 1989.
13. In the absence of any averment in the O.A. that the policy
framed in compliance of the directions issued by the Supreme Court
was not implemented in letter and spirit or that the regularization
process was not subject to availability of vacancies or that all the
employees were required to be regularized at one go w.e.f 16.05.1989,
the impugned order cannot be faulted or interfered with.
14. We find no infirmity or illegality in the order impugned.
Accordingly, the writ petition is dismissed. No order as to costs.
PRATIBHA RANI, J.
HIMA KOHLI, J.
APRIL 02, 2018/„hkaur/st‟
