Mahendra Prasad Yadav vs Union Of India & Ors
2018 Latest Caselaw 2519 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 10278/2017

       MAHENDRA PRASAD YADAV                        ..... Petitioner
                   Through: Mr.Rakesh Kumar Singh, Mr.Ashok
                            Anand, Mr.Somanatha A Padhan &
                            Mr.Bipin Bihari Singh, Advocates

                                    versus

       UNION OF INDIA & ORS                                ..... Respondents
                     Through:          Mr.Arjun Mitra & Ms.Jaskaran Kaur,
                                       Advocates for R-1 & R-2
                                       Mr.Indranil Ghosh, Mr.Kunal Singh
                                       & Mr.Palzer Moktan, Advs. for R-3
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE PRATIBHA RANI

                          ORDER

% 23.04.2018

1. The present petition assails the order dated 23.05.2017, passed by the Central Administrative Tribunal, dismissing TA No.2/2014 wherein the petitioner had sought the following reliefs:-

(i) To quash the impugned order dated 23.05.2017 passed by the learned Central Administrative Tribunal, Principal Bench, New Delhi in TA No.2/2014;

(ii) To direct the respondents to reinstate the petitioner in the service of respondents herein.

2. The challenge laid by the petitioner is primarily on the issue of his

right to seek regularization in view of his long standing and continuous service with the respondents i.e. from the year 1990 to 2009. Another ground for challenge is the discrimination on the part of the respondents in regularizing other daily wagers but making him to continue serving as a daily wager till the year 2009, when his services were ultimately dispensed with.

3. It is necessary to notice certain basic facts in some detail as the petitioner's entire challenge rests on the plea of discrimination in regularization by the respondents and his right to seek regularization in view of his long standing and continuous service with the respondents i.e. for about 19 years.

4. In brief, the case of the petitioner is that he was appointed by the Jute Corporation of India as a Typist on 26.12.1990. In the year 1992, the Central Government constituted National Centre for Jute Diversification (NCJD). In the year 1995, NCJD initiated a selection process for making appointment to the posts of Personal Assistant-cum-Computer Operator, for which the petitioner was also issued an interview letter. The petitioner failed to qualify in the said selection process whereas other daily wager staff qualified and they were regularized. In the year 1997, the petitioner again got an opportunity to participate in the recruitment process when he was interviewed for the post of a Hindi Typist. Even this time, he could not find a place in the list of selected candidates.

5. Thereafter, the petitioner submitted representations to the respondent, to seek his regularization and on his failure to get any favourable response, he filed O.A. No.1933/2001. The said OA was dismissed by the Tribunal for lack of jurisdiction and the said order was challenged by the petitioner by

filing W.P.(C) 5369/2001 in the High Court. The captioned writ petition was allowed to the extent that the matter was remanded to the Central Administrative Tribunal for a fresh adjudication and the said OA was registered as T.A. No.02/2014.

6. The learned Tribunal has dismissed T.A.No.02/2014, for the following reasons:

(i) The petitioner along with similarly placed casual employees participated in the selection process in the year 1995 for regular appointment but he failed to qualify the same, hence his services could not be regularized.

(ii) The petitioner stands disengaged in the year 2009 as his services were not required.

(iii) The petitioner failed to render any explanation for not availing of his legal remedy on his failure to qualify in the selection process in the year 1995.

(iv) The issue of regularization has been settled by the Supreme Court in Secretary, State of Karnataka and Ors. Vs. Uma Devi & Ors., (2006) 4 SCC 1, and the petitioner has no indefeasible right to seek regularization.

7. Aggrieved by the dismissal of T.A.No.02/2014, the petitioner had filed the instant writ petition wherein, at the stage of admission, the request of the learned counsel for the petitioner for permission to file a copy of the additional affidavit filed by the Joint Secretary, Ministry of Textiles, Government of India along with Annexures R-1, R-2 & R-3, in compliance of the order dated 25.05.2009, passed in W.P.(C) No.5369/2001, was allowed.

8. Learned counsel for the petitioner has submitted that the petitioner had served the respondents for almost two decades i.e. from the year 1990

till 2009, when his services were abruptly dispensed with. All the daily wagers who were working with him, were regularized but the petitioner was not regularized. Rather, his services were terminated w.e.f. 01.08.2009. It is contended that the services of the petitioner, who had served as a daily wager for a long time, ought to have been regularized along with other daily wager staff. Learned counsel argued that the Tribunal failed to take note of the fact that identically situated co-employees who were also daily wagers, have been regularized. Hence the impugned order, is sought to be set aside on the ground of arbitrariness and illegality.

9. We have perused the additional documents filed by the petitioner in terms of the permission granted on 21.11.2017. The additional affidavit filed by the Joint Secretary, Ministry of Textiles, Government of India in W.P.(C) 5369/2001 is to the following effect:-

"1. That the present affidavit is being filed in compliance of order dated 25.5.2009 passed by this Hon'ble Court in the above-mentioned case.

2. That I state that the Access card/Photo pass to the petitioner was issued on July 21, 2008 and is valid till July 2009. It was issued on the recommendation of Shri Balbir Singh, Under Secretary, Ministry of Textiles under the approval dated 9.06.2008 of Joint Secretary (Administration), Ministry of Textiles. Copy of the recommendation and approval are annexed herewith as Annexure R-1.

3. That the names of all those persons who are employees of Respondent no.3 and 4 and Sheraton Security Services and have been issued Access cards/Photo pass to Udyog Bhawan are given hereunder.

Their recommendations forms are also annexed herewith as Annexure R-2 (Colly). The emoluments paid to these persons are also given in the table above.

4. That it is pertinent to mention here that the petitioner is paid salary by the agency through which he has been engaged i.e. Sheraton Security Services. Respondent no.4 (NCJD) in turn pays the security agency for the services rendered. The copy of the voucher for payment of salary to the petitioner for the month of April 2009 and May 2009 are annexed herewith as Annexure R-3."

10. A photocopy of the voucher dated 18.05.2009 placed at page 287 of the paper book evinces that the petitioner had signed the said voucher as having received salary in cash for the month of April, 2009, from Sheraton Security Services. It is apparent from the documents filed by the petitioner himself that he was not an employee of the respondents, but of Sheraton Security Services and he received his salary from his employer i.e. Sheraton Security Services and not from the respondents. Annexure R-1 to the aforesaid additional affidavit which contains the name of persons who had been issued Access Cards of the MOT, mentions the name of the petitioner at Sr.No.5, and in the column "Whether employed by JCI/NCJD/Security Agency", the remarks mentioned against the petitioner's name are "NCJD through Sheraton Security Agency".

11. On perusing the above additional documents and noticing that the petitioner was not the employee of the respondents, but of Sheraton Security Services, learned counsel for the petitioner has been requested to produce the petitioner's appointment letter and his termination order to resolve the above controversy. Learned counsel for the petitioner fairly concedes that the petitioner does not possess either of the above documents.

12. The above facts amply demonstrate that the petitioner was admittedly a daily wager. Merely because he had worked for a long time as a daily wager, in itself cannot be a ground for seeking reinstatement and regularization of service in view of the settled legal position declared by the Supreme Court in Uma Devi's case (supra). Having regard to the provisions contained in Articles 14 and 16 of the Constitution of India, the Supreme Court opined that any appointment made in contravention of any Recruitment Rules framed in terms of the proviso appended to Article 309 of the Constitution of India, would be wholly illegal and without jurisdiction and observed as under:

"26. With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent--the distinction between regularisation and making permanent, was not emphasised here--can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in para 50 of State of Haryana and Others Etc. Vs. Piara Singh & Others [(1992) 4 SCC 118] is to some extent inconsistent with the conclusion in para 45 (of SCC) therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognised in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent.

33. It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency can an ad hoc appointment be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularisation. The cases directing regularisation have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment.

43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of

such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates." (emphasis added)

13. The petitioner herein had got the opportunity to participate in the selection process twice, first in the year 1995 and then in the year 1997. Other daily wagers were regularized because they could make their place in the selection list whereas petitioner had failed.

14. Learned counsel for the petitioner has not been able to point out any illegality in the order passed by the Tribunal which, in our opinion, is based on the law well settled by the Supreme Court in Uma Devi's case (supra). Even otherwise, as noted above, the petitioner has failed to place on record any document that can establish that he was employed by the respondents. Rather, the documents filed by him as Annexure R-1 to R-3, amply demonstrate that the petitioner was an employee of Sheraton Security Services.

15. While passing the impugned order dated 23.05.2017, the Tribunal has rightly observed in the concluding para that as the petitioner's initial appointment was not against any regular vacancy, he cannot have any indefeasible right for regularization of his services more so when his case was considered along with the others and he failed to qualify in the examination conducted for the subject post.

16. For the reasons noted above, the challenge laid by the petitioner to the order dated 23.05.2017, passed by the Tribunal is factually and legally untenable.

17. The writ petition is accordingly dismissed as devoid of merits.

PRATIBHA RANI, J.

HIMA KOHLI, J.

APRIL 23, 2018 'pg/hkaur'