Delhi High Court
Shahwaiz Ahmed And Ors vs Govt Of Nct Of Delhi And Anr on 2 April, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: April 02, 2018
+ W.P.(C) 2367/2016 & CMs 10151/16, 13559/16
SHAHWAIZ AHMED AND ORS .....Petitioners
Through: Mr. Rana Ranjit Singh and Mr.
Vivek Kumar Singh, Advocates
versus
GOVT OF NCT OF DELHI AND ANR .....Respondents
Through: Mr. Sanjay Ghose, ASC with Mr.
Rhishabh Jetley, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Vide order of 2nd February, 2016 (Annexure P-3 colly.), petitioners'
service stands terminated on account of the reasons spelt out therein.
Learned counsel for petitioners submits that aforesaid order has been
passed by the Registrar of Delhi Bhartiya Chikitsa Parishad, who is not
competent to issue impugned order as respondent-Parishad stood
dissolved on 16th July, 2015 in terms of Section 32 of the Delhi Bhartiya
Chikitsa Parishad Act, 1998 (hereinafter referred to as 'the DBCP Act of
1998').
2. To seek regularization of petitioners' contractual service, reliance
is placed upon order of 19th October, 2015 (Annexure P-2) issued by
Govt. of NCT. In response to this petition, respondent-Parishad in the
counter-affidavit maintains that regularization of contractual employees
in terms of Government's order of 19th October, 2015 (Annexure P-2)
cannot be undertaken as no rules were adhered to, while appointing
petitioners and on this ground, termination of petitioner's service is
sought to be justified.
3. Learned Standing Counsel for respondents draws attention of this
Court to Section 16 of the DBCP Act of 1998 to point out that
employment under this Act can be granted only upon approval from the
Government and since petitioners' appointment on contractual basis was
not approved by the Government, therefore, it had to be terminated.
4. Learned counsel for petitioners submits that Recruitment Rules for
the post of LDC were not in existence when petitioners' appointment was
made and since respondent-Parishad has been dissolved, therefore,
competent authority to terminate petitioners' service was Director,
AYUSH and not the Registrar of respondent-Parishad. Learned counsel
for petitioners submits that the dissolution of respondent-Parishad was
not only on account of the irregularities in functioning of the said
Parishad, but also on the ground that no Recruitment Rules were framed
in terms of directions issued by the Lieutenant Governor of Govt. of NCT
of Delhi, as contained in Annexure P-2. So, it is submitted that impugned
termination of petitioners' service is patently illegal and deserves to be
quashed.
5. Learned Additional Standing Counsel for respondents has drawn
attention of this Court to paragraph No.7 of the counter-affidavit to point
out that vide Gazette Notification of 2nd May, 2016 (Annexure R-2),
Special Director (AYUSH) was authorized to perform the functions of
respondent-Parishad and Dr. Yogita Munjal was appointed as the
Registrar of respondent-Parishad from 15th January, 2016 for a period of
six months and so, impugned order has been legally passed by her.
6. The stand of respondent-Parishad in the counter-affidavit filed is
that petitioners are not protected by Government's order (Annexure P-2)
providing for regularization of contractual employees, as no rules were
adhered to by respondent-Parishad by engaging petitioners on contract
basis. To submit so, attention of this Court is drawn to Section 16 (1) (b)
of the DBCP Act of 1998. Thus, it is submitted that this petition deserves
to be dismissed.
7. Upon hearing and on perusal of impugned order, the material on
record and relevant provisions of the DBCP Act of 1998, I find that in
view of the Notification of 2nd May, 2016 (Annexure R-2), impugned
order has been passed by competent authority but since petitioners'
appointment was on contractual basis, therefore, the grounds on which
impugned order has been passed cannot be justified. It is so said because
if no Recruitment Rules for the post of LDC were framed by respondent-
Parishad, then for the said lapse, petitioners cannot be blamed. It is
evident from the counter affidavit filed by respondent that the dissolution
of respondent-Parishad stood extended till July, 2016 and impugned
order has been passed in February, 2016. Although competence of
respondent to pass impugned order cannot be questioned, but the grounds
on which impugned order has been passed cannot be justified. Since
petitioners' employment was on contractual basis for a period of six
months, therefore instead of terminating petitioners' service vide
impugned order (Annexure P-3), respondent-Parishad ought to have
passed a simplicitor order dispensing with the service of petitioners upon
completion of contractual period.
8. In light of the aforesaid, it is directed that impugned order
(Annexure P-3) shall be read as an 'order simplicitor dispensing with the
service of petitioners' and not an order terminating petitioners' service.
So far as regularization of petitioners' service is concerned, respondent-
Parishad shall consider the case of petitioners for regularization in terms
of Government's order of 19th October, 2015 (Annexure P-2) if
Recruitment Rules have not been already framed.
9. With the above said directions, this petition and the applications
are accordingly disposed of.
(SUNIL GAUR)
JUDGE
APRIL 02, 2018
s
