Delhi High Court
Meenu Rani vs North Delhi Municipal ... on 27 June, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 24.05.2018
Date of Judgment: 27.06.2018
+ W.P. (C) 7309/2014
RAHUL SHARMA ... Petitioner
Through: Mr.Anuj Aggarwal,
Advocate with Mr.Ashutosh Dixit,
Advocate.
Versus
NORTH DELHI MUNICIPAL CORPORATION & ORS.
... Respondents
Through: Ms.Eshita Baruah, Advocate
for Mr.Gaurang Kanth, Advocate.
+ W.P. (C) 7311/2014
SHANKAR PRASAD ARYA ... Petitioner
Through: Mr.Anuj Aggarwal,
Advocate with Mr.Ashutosh Dixit,
Advocate.
Versus
NORTH DELHI MUNICIPAL CORPORATION & ORS.
... Respondents
Through: Ms.Eshita Baruah, Advocate
for Mr.Gaurang Kanth, Advocate.
+ W.P. (C) 7312/2014
MEENU RANI ... Petitioner
WP (C) 7309/2014, WP (C) 7311/2014
WP (C)7312/2014 Page 1 of 30
Through: Mr.Anuj Aggarwal,
Advocate with Mr.Ashutosh Dixit,
Advocate.
Versus
NORTH DELHI MUNICIPAL CORPORATION & ORS.
... Respondents
Through: Ms.Eshita Baruah, Advocate
for Mr.Gaurang Kanth, Advocate.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
VINOD GOEL, J.
1. By this judgment, I propose to decide all three writ petitions
since common question of facts and law are involved.
2. Public employment in a sovereign socialist secular democratic
republic, has to be set down by the Constitution and the laws
made thereunder. Our constitutional scheme envisages
employment by the Government and its instrumentalities on the
basis of a procedure established in that behalf. Equality of
opportunity is the hallmark, and the Constitution has provided
also for affirmative action to ensure that unequals are not
treated as equals. Thus, any public employment has to be in
terms of the constitutional scheme. This preface was expressed
by the Constitutional Bench of Hon'ble Supreme Court in
the case of Secretary, State of Karnataka and Others Vs.
Umadevi (3) and Others, (2006) 4 SCC 1.
WP (C) 7309/2014, WP (C) 7311/2014
3. In fact, while disposing of these writ petitions, this court is to
keep in mind the basic principles of law laid down in
Umadevi‟s case (supra) by the Constitutional Bench of the
Hon‟ble Supreme Court.
4. The petitioners in these writ petitions seek quashing of
impugned awards dated 10.09.2014 rendered by the learned
Presiding Officer, Labour Court-XVII, Karkardooma Courts,
Delhi (in short as „Industrial Adjudicator‟) in DID No.03/12,
04/12 & 02/12 respectively to the extent of declining the relief
of reinstatement and continuity in service with full back wages
to them.
5. The petitioners filed their direct industrial disputes under
Section 2A of the Industrial Disputes Act, 1947 (in short „ID
Act‟) against the respondent before the Industrial Adjudicator
for setting aside/quashing the impugned order dated 09.05.2011
issued by the respondent/management by which approval of
five employees including the petitioners on contractual basis
was extended till 31.05.2011, an order dated 28.05.2011 which
is in fact a memorandum issued to the petitioners separately
seeking their explanation for not attending the office on
Saturdays; and seeking a direction to the
respondent/management to appoint them on the post of LDC or
reinstate them on the post of Assistant with full back wages
from the date of illegal termination along with all the
consequential benefits.
WP (C) 7309/2014, WP (C) 7311/2014
6. By the impugned separate awards the Industrial Adjudicator has
drawn an adverse inference against the respondent/management
that the petitioners No.1 and 3 were in its continuous
employment since 29.11.2007 and petitioner No.2 since
20.11.2007 till their termination except for artificial breaks and
they had served the management till 31.05.2011. The Industrial
Adjudicator has held that the respondent/management has
terminated the services of the petitioners illegally. He found
that the petitioners had worked for just about three and a half
years; at the time of passing the award more than three years
were already elapsed; and there were certain allegations against
the petitioners by the management, he thought it fit in his
wisdom not to order their reinstatement but to grant a lump sum
compensation of Rs.1,00,000/- to each of the petitioners payable
with interest @ 9% per annum. The Industrial Adjudicator also
burdened the Management with exemplary cost of Rs.50,000/-
in each case.
7. Admittedly, by an office order dated 29.11.2007, the competent
authority of the management had agreed to engage the
petitioners No.1 and 3 as Assistants in the IT Department for a
period of 180 days on daily wages @ Rs.152.45 paise per day.
It was made clear that it was purely a temporary arrangement
arisen due to the emergent situation and these appointees shall
not have any right to seek appointment on regular basis in the
MCD. The office order dated 29.11.2007 reads as under:-
WP (C) 7309/2014, WP (C) 7311/2014
"MUNICIPAL CORPORATION OF DELHI
DEPARTMENT OF INFORMATION
TECHNOLOGY
Ring Road, Lajpat Nagar, New Delhi
No. D-352/17/MCD/07 Dated: 29/11/2007
OFFICE ORDER
The Competent Authority agreed to engage the
following two persons as Assistants in the I.T.
Department @ Rs.152.45p per day, for a period of 180
days on daily wages. This is purely a temporary
arrangement arisen due to the emergent situation and in
this regard, the following two persons will not have any
right toseek the appointment on regular basis in MCD:
1. Sh. Rahul Sharma s/o. Shri Jagat Narayan
Sharma
2. Km.Meenu Rani d/o. Shri Ashok Kumar
The acceptance of the order shall reach to the I.T.
Department, MCD within two days of receipt of the
order.
This issues with the approval of the competent
authority.
Sd/-
29.11.2007
Addl.Dy. Commissioner (I.T.)
29.11.2007
DISTRIBUTION:
1. Shri Shri Rahul Sharma s/o. Shri Jagat Narayan
Sharma
2. Km. Meenu Rani d/o. Sh. Ashok Kumar
3. A.C.A. (Central Zone)
4. Office Copy."
WP (C) 7309/2014, WP (C) 7311/2014
8. Similarly, by an office order dated 20.11.2007, the Competent
Authority of the Management has agreed to engage petitioner
No.2 as Assistant in the I.T. Department for a period of 180
days on daily wages @ Rs.152.45 per day. It was made clear
that it was purely a temporary arrangement arisen due to
emergent situation and the appointee shall not have any right to
seek appointment on regular basis in the MCD. The office order
dated 20.11.2007 reads as under:-
"MUNICIPAL CORPORATION OF DELHI
No. D-338/17/MCD/07 Dated: 20/11/2007
OFFICE ORDER
The Competent Authority agreed to engage Sh.
Shankar Prasad Arya s/o B.R. Arya as Assistant in I.T.
Department @ Rs.152.45 per day for a period of 180
days on daily wages. This is purely a temporary
engagement arison due in the emergent situation and in
this regard Sh. Shankar Prasad Arya will not have any
right to seek the appointment on regular basis in M.C.D.
The acceptance of the order shall reach to I.T. Deptt.
MCD within two days of receipt of the order.
This issue with the approval of competent
authority.
Sd/-
Addl. Deputy
Commissioner
(IT)
Copy to:
1. Sh. Shankar Prasad Arya s/o Sh. B.R. Arya
2. ACA/Central Zone
3. O/C.
WP (C) 7309/2014, WP (C) 7311/2014
9. The petitioners have admittedly signed on the office orders
acknowledging the terms and conditions mentioned therein.
10. Admittedly, the petitioners were given further extensions by
various office orders from time to time for 89 days each on
same terms and conditions after giving small gap of time till
08.05.2011. However, by an order dated 09.05.2011, the
petitioners were given extension on same terms and conditions
till 31.05.2011. In this manner, the petitioners have worked on
daily wages rates with the respondent/management on
contractual basis in its I.T. Department w.e.f. 20/29.11.2007 till
31.05.2011 with small breaks after every 89 days. The
respondent/management has admittedly not issued any
termination letter to the petitioners and in fact the
respondent/management has not issued any other office order
after 31.05.2011 for further extending the tenure of the
petitioners.
11. It is alleged by the petitioners in their respective statement of
claims before the Industrial Adjudicator that office order dated
09.05.2011 giving them extension only till 31.05.2011 is illegal
and unjustified; the job of the petitioners were of perennial in
nature; identical nature of work was assigned to the LDCs; the
petitioners have been in continuous employment since
20/29.11.2007 till the office order dated 09.05.2011 and they
have completed more than 240 days in the preceding year of
WP (C) 7309/2014, WP (C) 7311/2014
termination of their services; fresh hands are appointed for the
post of LDC without considering them; the petitioners fulfil the
eligibility criteria for the post of LDC as educational
qualification for the post of LDC is 10th class whereas the
petitioners are 12th class pass; the petitioners have not
committed any misconduct as no charge-sheet was ever issued
to them before their termination; their services have been
terminated in violation of Section 25-F of the ID Act; several
counterpart as well as juniors of the petitioners have been
retained in service whereas their services were terminated
illegally in violation of Section 25-G of the ID Act; and fresh
hands have been engaged by the management for the work done
by the petitioners without affording them any opportunity in
violation of Section 25-H of the ID Act.
12. In its written statement, the respondent/management, inter-alia,
pleaded that the claims are not maintainable under Section
2(OO)(bb) of the ID Act since the petitioners were engaged on
contractual basis as Assistants; after induction of
computerization in the Municipal Corporation to mitigate
burden, the I.T. Department engaged some Assistants on
contract basis for entering data in the computers; the petitioners
along with some other persons were engaged for specific
purpose and specific period from time to time purely on
contractual basis which they duly accepted; neither recruitment
procedure was followed by the respondent/management to
WP (C) 7309/2014, WP (C) 7311/2014
engage these Assistants nor were they engaged against any
permanent sanctioned post; there is no sanctioned post in the
nomenclature of "Assistant" in the respondent corporation; the
petitioners were engaged as Assistants in I.T. Department on
daily wages @ Rs.152.42 per day initially for a period of 180
days; they were given time to time extension of 89 days as per
the requirement of the work and after completion of the work
they were not engaged further; the contract period of the
petitioners lasted on 31.05.2011 as there was no requirement, no
extension was received from the competent authority; and that
the petitioners were never engaged on regular basis and had no
lien being the daily wager.
13. It is pleaded that no termination order was ever passed as the
petitioners were engaged against the specific contract and after
expiry of the contract their services automatically came to an
end as per the agreed terms and conditions. Regarding the
allegation of engaging the fresh hands, it is pleaded that
admittedly no post of "Assistant" has been created by the
management and for the post of LDC there is a prescribed
recruitment system and all these posts are filled up through
Delhi Subordinate Service Selection Board by competitive
exam. It is denied that the petitioners were unemployed from
the date of expiry of the contract.
14. The petitioners preferred to file rejoinder to the written
statement of their statement of claim filed by the management
WP (C) 7309/2014, WP (C) 7311/2014
denying its allegations and reaffirmed the averments made in
their respective statement of claim.
15. Admittedly, the respondent/management has not challenged the
impugned awards holding termination of the petitioners to be
illegal and granting lump sum compensation of Rs.1,00,000/-
along with exemplary cost of Rs.50,000/- to each of them.
During the course of the arguments, it was brought to the notice
by both the learned counsel for the parties that the
respondent/management has made the payment of the awarded
amount to the petitioners.
16. Learned counsel for the petitioners argued that the petitioners
had worked for more than 240 days in the year preceding the
date of their termination i.e. 31.05.2011 as the petitioners
started working with the management since 20/29.11.2007 and
their services were terminated illegally without any notice or
inquiry in violation of Section 25-F of the ID Act. He urged that
when the Industrial Adjudicator found that the termination of
the petitioners was illegal, the normal rule of granting the
benefit of reinstatement with full back wages and benefit of
continuity in service should have been followed instead of
granting lump sum compensation of Rs.1,00,000/- to each of the
petitioners with cost. In this regard, he has relied upon a
judgment of Hon'ble Supreme Court titled as Krishan Singh
Vs. Executive Engneer, Haryana State Agricultural
marketing Board, Rohtak, Haryana, (2010) 3 SCC 637 to
WP (C) 7309/2014, WP (C) 7311/2014
urge that even an employee appointed as a daily wager in a
government department of State of Haryana who had worked
for 267 days prior to his termination in violation of Section 25-F
of the ID Act was granted the benefit of reinstatement with 50%
back wages by the Hon‟ble Supreme Court.
17. Similarly, he has relied upon a recent judgment of Single Judge
of this court dated 05.04.2018 in W.P. (C) 11041/2004 titled as
Delhi Jal Board Vs. Vimal Kumar, wherein the services of the
workman, who was appointed as a Sewer Cleaning Machine
Driver, were terminated in violation of Section 25-F of the ID
Act. The award of the Labour Court dated 29.05.2003 to the
extent of his reinstatement with all consequential benefits with
continuity of service was upheld by this Court but with the
modification of awarding 50% back wages instead of full back
wages.
18. He argued that the petitioners have specifically pleaded in Para
No.2.14 of their statement of claim that several counterpart as
well as juniors to them have been retained in services while
terminating their services in violation of Section 25-G of the
I.D. Act. He argued that though the Industrial Adjudicator has
found the termination of the petitioners in violation of Section
25-F of the ID Act, the Industrial Adjudicator has failed to
notice that there was violation of Section 25-G of the ID Act as
well since the junior employees to the petitioners appointed on
the same terms and conditions were retained by the
WP (C) 7309/2014, WP (C) 7311/2014
respondent/management. In this regard, he has relied upon a
judgment of Hon'ble Supreme Court in the case of Director,
Fisheries Terminal Division Vs. Bhikubhai Meghajibhai
Chavda, AIR 2010 SC 1236, wherein the claimant/workman
was appointed on daily wages on 01.12.1985 and his services
were terminated without giving any notice and complying with
the provisions of ID Act. His stand before the Labour Court was
that he was appointed on daily wages and had worked for more
than 240 days in the year preceding his termination. The Labour
Court granted him the benefit of reinstatement with 25% back
wages. It was also found by the Labour Court that the services
of some of the employees junior to the claimant were continued
after the termination of his services and the Labour Court found
that there was violation of Section 25-G of the ID Act. The
Apex Court did not interfere with the order of the High Court
dismissing the writ petition against the Award of the Labour
Court.
19. On the same point, he has relied upon another judgment of
Hon'ble Supreme Court in the case titled as B.S.N.L. Vs.
Bhurumal, (2014) 7 SCC 177 wherein it was held that there
may be a situation when the persons junior to the workman
were regularized under some policy but the services of the
concerned workman were terminated and in such circumstances
the terminated worker should not be denied reinstatement unless
there are some other weighty reasons for adopting the course of
WP (C) 7309/2014, WP (C) 7311/2014
grant of compensation instead of reinstatement. Para 25 of the
judgment relied upon by the learned counsel for the petitioner
reads as under: -
"25. We would, however, like to add a caveat here.
There may be cases where termination of a daily wage
worker is found to be illegal on the ground it was
resorted to as unfair labour practice or in violation of the
principle of last come first go viz. while retrenching such
a worker daily wage juniors to him were retained. There
may also be a situation that persons junior to him were
regularized under some policy but the concerned
workman terminated. In such circumstances, the
terminated worker should not be denied reinstatement
unless there are some other weighty reasons for adopting
the course of grant of compensation instead of
reinstatement. In such cases, reinstatement should be the
rule and only in exceptional cases for the reasons stated
to be in writing, such a relief can be denied."
20. He has also relied upon the judgment of Hon'ble Supreme
Court in the case titled as Deepali Gundu Surwase Vs. Kranti
Junior Adhyapak Mahavidyalaya (D.Ed.) and Others,
(2013) 10 SCC 324, to urge Para 38.1 holding that in case of
wrongful termination of service, reinstatement with continuity
of service with back wages is the normal rule and Para 38.3 to
urge that once an employee shows that he was not employed the
onus lies on the employer to plead and prove that he was
gainfully employed and getting the same or substantial similar
emoluments. He argued that in the present case the petitioners
WP (C) 7309/2014, WP (C) 7311/2014
have pleaded in the statement of claim that after termination of
their services, they remained unemployed from the date of their
illegal termination and they have no source of income and
despite their best efforts they were unable to secure any
employment. He submitted that though the management has
denied this contention in the written statement but did not plead
that the petitioners were gainfully employed after their
termination.
21. When the learned counsel for the petitioners was confronted
with the affidavit of the petitioners tendered in evidence before
the Industrial Adjudicator, he fairly conceded that the
petitioners did not depose in support of their pleadings that
several counterpart as well as juniors were retained in service
by the respondent/management while terminating their services
in violation of Section 25G of the ID Act. He also conceded
that the petitioners have not adduced any evidence about
retention of any of their juniors or counterpart in service.
22. He also fairly conceded that in their respective affidavits
tendered in evidence the petitioners have not testified before the
Industrial Adjudicator that after the termination of their
services, they remained unemployed or were not gainfully
employed in any establishment.
23. He further relied upon the judgment of Division Bench of this
Court in Delhi Cantonment Board Vs. Central Govt.
Industrial Tribunal & Ors., 129 (2006) DLT 610 (DB), to
WP (C) 7309/2014, WP (C) 7311/2014
urge that there is no distinction in industrial law between the
"permanent employee" and "temporary employee" and as long
as the person is employed to do any manual, unskilled, skilled,
technical, operational, clerical or supervisory work for hire or
reward, he is a workman under the ID Act and will get the
benefits of that Act. The Division Bench has dismissed the
appeal against the judgment of a Single Judge upholding the
award of the Industrial Adjudicator holding the termination of
the respondent/workman to be illegal as the compliance of
Section 25-F was not made when the workmen had put in 240
days of service in the year prior to the date of his termination of
his services.
24. Lastly, he has relied upon the judgment of the Hon'ble
Supreme Court in the case titled as Jasmer Singh Vs. State of
Haryana and Another, (2015) 4 SCC 458, to urge that even
the daily wages paid workers in the government department
who had completed more than 240 days continuous service in
the calendar year preceding to the date of his termination
without complying with the provisions of Section 25-F, 25-G
and 25-H of the ID Act has been held to be illegal by the
Industrial Tribunal cum Labour Court and he was given
reinstatement in his job with continuity of service with full back
wages, and that the award though was set aside by the Division
Bench of the Punjab & Haryana High Court but was restored by
the Hon'ble Supreme Court.
WP (C) 7309/2014, WP (C) 7311/2014
25. While concluding the arguments, learned counsel for the
petitioners submitted that the petitioners may not be awarded
even the back wages and benefit of continuity in service but
they may be granted reinstatement in service.
26. Per contra, it is submitted by the learned counsel for the
respondent that in fact after induction of the computerization in
the corporation, its I.T. Department engaged some persons
including the petitioners as Assistants on contract basis to meet
out the exigency for entering data in computers. They were
appointed for a specific purpose and period from time to time
purely on contract basis and in their initial letter of appointment
it was specifically mentioned that they were appointed on daily
wage rates and it was purely a temporary arrangement arisen
due to emergent situation and they will not have any right to
seek appointment on regular basis in the corporation. These
terms and conditions were accepted by the petitioners. He
submitted that due to exigency, the recruitment process could
not be followed by them. There was no sanctioned post of
Assistant in the corporation and they were not appointed against
the sanctioned post. The contract period of the petitioners has
ended on 31.05.2011 and since there was no requirement, no
further extension was given to them. He submitted that the
petitioners were never engaged against a regular post and after
expiry of the contract their services automatically came to an
end as per the terms and conditions of the contract. He
WP (C) 7309/2014, WP (C) 7311/2014
submitted that in their written statement they had relied upon a
judgment of Constitutional Bench of Hon'ble Supreme Court
in the case titled as Secretary, State of Karnataka and Others
Vs. Umadevi (3) and Others, (2006) 4 SCC 1 to urge that
unless the appointment is in terms of the relevant rules and after
a proper competition among the qualified persons, the same
would not confer any right on the appointee.
27. He further submitted that there is no sanctioned post of
"Assistant" to appoint the petitioners and the services of the
petitioners are no more required by the corporation when
admittedly the regular LDCs have already been appointed. He
also relied upon a judgment of Single Bench of this Court dated
18.05.2012 in W.P. (C) 493/2011 titled as Dheeraj Kumar &
Anr. Vs. Union of India & Anr., to urge that the workman
having been appointed on daily wage rate without following the
rules of recruitment but had worked for more than three years
should not be granted reinstatement in service but only the lump
sum compensation. The relevant Para No. 23 & 24 reads as
under: -
"23. From these judgments of the Supreme Court it
is quite clear that till date it has not been held so far in
any of the decisions by the Supreme Court that in no
case the relief of re-instatement and back wages
should be granted to the workmen who succeed in
getting a declaration from the labour Courts that the
termination of their services by their employer was
illegal and unjustified. The crux of these decisions is
that these reliefs should not be granted by the Courts
WP (C) 7309/2014, WP (C) 7311/2014
mechanically after holding the termination of services
of the concerned workmen to be illegal and by
ignoring special and peculiar facts and circumstances
in each case which justify refusal of these reliefs and
grant of lump sum monetary compensation in lieu
thereof. It is however significant to notice, and as
was pointed out even by the learned counsel for the
respondent also, that as far as daily wagers are
concerned the Supreme Court is now taking the
view that they should not be re-instated and
instead monetary compensation should be awarded
to them.
24. In the present case both the petitioners-
workmen were daily wagers. They had not been
appointed in accordance with the Rules of
Recruitment. The Tribunal has while denying
them the reliefs of reinstatement and back wages
relied upon the decision of the Supreme Court
wherein the relief of re-instatement and back
wages was denied to the daily wages and so its
decision cannot be said to be suffering from any
infirmity as far as the denial of relief of
reinstatement and back wages is concerned.
However, considering the fact that both the petitioners
had worked for more than three years with the
respondent the compensation amount of Rs.25,000/-
each awarded to them appears to be not reasonable
compensation. As noticed already, the Supreme Court
in Narender Kumar‟s case (supra) had taken note of
inflation and increase in cost of living etc. while
enhancing the amount of compensation payable to the
workman involved in that case. Thus, the amount of
compensation in the present case needs to be
enhanced. It is increased to Rs.75,000/-.
24. This writ petition, therefore, succeeds partly
and while maintaining the award of the Tribunal to the
extent the relief of reinstatement and back wages has
been denied to both the workmen the amount of
WP (C) 7309/2014, WP (C) 7311/2014
compensation payable to each of the two petitioners is
enhanced from Rs.25,000/- to Rs.75,000/-.
28. I have heard the learned counsel for the parties.
29. The only point involved in the writ petitions left to be decided is
to whether in the facts and circumstances of the case, the
petitioners are entitled for their reinstatement in service with the
respondent/management or not.
30. Admittedly, the petitioners were appointed as "Assistants" in
terms of the office order dated 20/29.11.2007 issued by the
respondent/management in its I.T. Department for a period of
180 days on daily wages @ Rs.152.42 p. per day. It was made
clear that it was purely a temporary arrangement arisen due to
the emergent situation and these appointees shall not have any
right to seek appointment on regular basis with the
respondent/management. The petitioners have admittedly
accepted the terms and conditions by signing on the office order
itself. They were given extension with small breaks by various
subsequent orders to work on the same terms and conditions.
On the last occasion, their services were extended till
31.05.2011 and thereafter admittedly the services of the
petitioners were not extended. No letter of termination was
admittedly issued to the petitioners obviously for the reason that
their tenure came to an end on 31.05.2011 as per the contract.
31. Admittedly, the computerization was inducted in the Municipal
Corporation of Delhi. To meet out the exigency to feed the data
WP (C) 7309/2014, WP (C) 7311/2014
in the computers the petitioners were engaged on contractual
basis on daily wage rate as Assistants. Due to acuteness of the
issue, no recruitment procedure was followed. It is also not
disputed that there was no sanctioned post of the nomenclature
of Assistant in the Municipal Corporation of Delhi. These facts
were specifically pleaded by the respondent/management by
way of preliminary objections no.3 in its written statement,
which were not controverted by the petitioners specifically in
the corresponding para of the rejoinder. Even at the bar, it is
admitted by both the learned counsel that no recruitment
procedure was followed by the management while engaging the
services of the petitioners due to induction of computerization
in the Municipal Corporation of Delhi and to meet out the
exigency in order to feed the necessary data in the computers.
As pleaded in Para 1.10 of the statement of claim, the
petitioners have admitted that subsequent to their appointment
on daily wage rate on contract basis, the
respondent/management has approved vide notification dated
09.05.2011 for creation of 13 Group „C‟ posts in I.T.
Department. The copy of the notification is annexed along with
the writ petition and these 13 posts includes five posts of Data
Entry Operators, three of LDC, 1 of UDC and 2 of Hardware
Assistant and Programme Assistant each. These posts have
been admittedly filled up by the respondent/management by
WP (C) 7309/2014, WP (C) 7311/2014
following due process of the recruitment through Delhi
Subordinate Service Selection Board.
32. The Hon'ble Supreme Court has categorically held in
Umadevi's case (supra) 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, the 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. Unless the appointment is in
terms of the relevant rules and after a proper competition
among the 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. The relevant paragraphs no.43, 45, 47, 51 and 53
of the judgment read as under: -
"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
WP (C) 7309/2014, WP (C) 7311/2014
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
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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.
45. While directing that appointments, temporary or
casual, be regularised or made permanent, the courts are
swayed by the fact that the person concerned has worked
for some time and in some cases for a considerable
length of time. It is not as if the person who accepts an
engagement either temporary or casual in nature, is not
aware of the nature of his employment. He accepts the
employment with open eyes. It may be true that he is not
in a position to bargain--not at arm's length--since he
might have been searching for some employment so as
to eke out his livelihood and accepts whatever he gets.
But on that ground alone, it would not be appropriate to
jettison the constitutional scheme of appointment and to
take the view that a person who has temporarily or
casually got employed should be directed to be
continued permanently. By doing so, it will be creating
another mode of public appointment which is not
permissible. If the court were to void a contractual
employment of this nature on the ground that the parties
were not having equal bargaining power, that too would
not enable the court to grant any relief to that employee.
A total embargo on such casual or temporary
employment is not possible, given the exigencies of
administration and if imposed, would only mean that
some people who at least get employment temporarily,
contractually or casually, would not be getting even that
employment when securing of such employment brings
at least some succour to them. After all, innumerable
citizens of our vast country are in search of employment
and one is not compelled to accept a casual or temporary
employment if one is not inclined to go in for such an
employment. It is in that context that one has to proceed
on the basis that the employment was accepted fully
knowing the nature of it and the consequences flowing
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from it. In other words, even while accepting the
employment, the person concerned knows the nature of
his employment. It is not an appointment to a post in the
real sense of the term. The claim acquired by him in the
post in which he is temporarily employed or the interest
in that post cannot be considered to be of such a
magnitude as to enable the giving up of the procedure
established, for making regular appointments to
available posts in the services of the State. The argument
that since one has been working for some time in the
post, it will not be just to discontinue him, even though
he was aware of the nature of the employment when he
first took it up, is not one that would enable the
jettisoning of the procedure established by law for
public employment and would have to fail when tested
on the touchstone of constitutionality and equality of
opportunity enshrined in Article 14 of the Constitution.
47. When a person enters a temporary employment
or gets engagement as a contractual or casual worker
and the engagement is not based on a proper
selection as recognised by the relevant rules or
procedure, he is aware of the consequences of the
appointment being temporary, casual or contractual
in nature. Such a person cannot invoke the theory of
legitimate expectation for being confirmed in the post
when an appointment to the post could be made only
by following a proper procedure for selection and in
cases concerned, in consultation with the Public
Service Commission. Therefore, the theory of
legitimate expectation cannot be successfully
advanced by temporary, contractual or casual
employees. It cannot also be held that the State has held
out any promise while engaging these persons either to
continue them where they are or to make them
permanent. The State cannot constitutionally make such
a promise. It is also obvious that the theory cannot be
invoked to seek a positive relief of being made
permanent in the post.
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51. The argument that the right to life protected by
Article 21 of the Constitution would include the right
to employment cannot also be accepted at this juncture.
The law is dynamic and our Constitution is a living
document. May be at some future point of time, the right
to employment can also be brought in under the concept
of right to life or even included as a fundamental right.
The new statute is perhaps a beginning. As things now
stand, the acceptance of such a plea at the instance of
the employees before us would lead to the
consequence of depriving a large number of other
aspirants of an opportunity to compete for the post
or employment. Their right to employment, if it is a
part of right to life, would stand denuded by the
preferring of those who have got in casually or those
who have come through the backdoor. The obligation
cast on the State under Article 39(a) of the Constitution
is to ensure that all citizens equally have the right to
adequate means of livelihood. It will be more consistent
with that policy if the courts recognise that an
appointment to a post in government service or in the
service of its instrumentalities, can only be by way of a
proper selection in the manner recognised by the
relevant legislation in the context of the relevant
provisions of the Constitution. In the name of
individualising justice, it is also not possible to shut our
eyes to the constitutional scheme and the right of the
numerous as against the few who are before the court.
The directive principles of State policy have also to be
reconciled with the rights available to the citizen under
Part III of the Constitution and the obligation of the
State to one and all and not to a particular group of
citizens. We, therefore, overrule the argument based on
Article 21 of the Constitution.
53. One aspect needs to be clarified. There may be cases
where irregular appointments (not illegal appointments)
as explained in and referred to in para 15 above, of duly
qualified persons in duly sanctioned vacant posts might
have been made and the employees have continued to
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work for ten years or more but without the intervention
of orders of the courts or of tribunals. The question of
regularisation of the services of such employees may
have to be considered on merits in the light of the
principles settled by this Court in the cases above
referred to and in the light of this judgment. In that
context, the Union of India, the State Governments and
their instrumentalities should take steps to regularise as
a one-time measure, the services of
such irregularly appointed, who have worked for ten
years or more in duly sanctioned posts but not under
cover of orders of the courts or of tribunals and should
further ensure that regular recruitments are undertaken
to fill those vacant sanctioned posts that require to be
filled up, in cases where temporary employees or daily
wagers are being now employed. The process must be
set in motion within six months from this date. We also
clarify that regularisation, if any already made, but not
sub judice, need not be reopened based on this
judgment, but there should be no further bypassing of
the constitutional requirement and regularising or
making permanent, those not duly appointed as per the
constitutional scheme."
33. Admittedly, the appointments of the petitioners were made to
meet out the exigency by the respondent/management on
contractual basis on daily wage rate due to induction of
computerization. In view of urgency of the issue of making the
entries in the computers, the appointments were made without
following the requisite recruitment procedure. The petitioners
were designated as Assistants for which there were no
sanctioned posts. Thus the appointment of the petitioners was
not as per the recruitment rules. Since the petitioners had
worked for more than 240 days in the year preceding to their
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termination by not giving them further extension beyond
31.05.2011, the Industrial Adjudicator found it to be illegal
termination in violation of Section 25-F of the ID Act. The
Industrial Adjudicator did not grant the relief of reinstatement in
service for the reasons mentioned herein before but awarded a
lump sum compensation of Rs.1,00,000/- along with exemplary
cost of Rs.50,000/- to each of the petitioners. Admittedly, the
respondent/management has not impugned the award and rather
preferred to make the payment of the awarded amount to the
petitioners. The particular issue involved in the case has been
answered by the Hon'ble Supreme Court in Bhurumal's case
(supra) to the effect that when the workman was working on
daily wage basis and even after he is reinstated, he has no right
to seek regularization and when he cannot claim regularization
and he has no right to continue even as a daily wage worker, no
useful purpose is going to be served in reinstating such a
workman and he can be given monetary compensation by the
court itself. Para 21 and 24 of the judgment reads as under: -
"21. In the case of Telecom District Manager Vs.
Keshab Deb MANU/SC/7620/2008: (2008) 8 SCC
402 the Court emphasized that automatic direction for
reinstatement of the workman with full back wages is
not contemplated. He was at best entitled to one
months‟ pay in lieu of one month‟s notice and wages
of 15 days of each completed year of service as
envisaged under Section 25F of the Industrial
Disputes Act. He could not have been directed to be
regularized in service or granted/given a temporary
status. Such a scheme has been held to be
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unconstitutional by this Court in A.Umarani v.
Registrar, Coop. Societies MANU/SC/0571/2004:
(2004) 7 SCC 112 and Secy., State of Karnataka v.
Umadevi Manu/SC/1918/2006: (2006) 4 SCC1.
24. Reasons for denying the relief of reinstatement
in such cases are obvious. It is trite law that when the
termination is found to be illegal because of non-
payment of retrenchment compensation and notice pay
as mandatorily required under Section 25F of the
Industrial Disputes Act, even after reinstatement, it is
always open to the management to terminate the
services of that employee by payment him the
retrenchment compensation. Since such a workman
was working on daily wage basis and even after he is
reinstated, he has no right to seek regularization.
(See: State of Karnataka v. Uma Devi
MANU/SC/1918/2006: (2006) 4 SCC 1). Thus when
he cannot claim regularization and he has no right to
continue even as a daily wage worker, no useful
purpose is going to be served in reinstating such a
workman and he can be given monetary compensation
by the Court itself inasmuch as it he is terminated
again after reinstatement, he would receive monetary
compensation only in the form of retrenchment
compensation and notice pay. In such a situation,
giving the relief of reinstatement, that too after a long
gap, would not serve any purpose."
34. In the light of these judgments of Hon'ble Supreme Court in
Umadevi's case (supra) and Bhurumal's case (supra), when
the petitioners were appointed on daily wage basis without
following the requisite recruitment process and their services
have come to an end after expiry of the contractual period, the
petitioners have no vested right to seek their reinstatement or
reinstatement with a different designation as LDC or on the
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similar post of Assistant which does not exist. In such a
situation, they could only be considered for granting of lump
sum compensation, which has been adequately granted to them
by the Industrial Adjudicator by the impugned award.
35. The judgment of Krishan Singh's case (supra) relied upon by
the learned counsel for the petitioners is not applicable as in that
case the management had not taken the plea in its written
statement that the post on which the workman was working was
not a sanctioned post or that appointment was contrary to the
statutory rules; whereas in the present case specific defence has
been taken by way of preliminary objection no.3 in the written
statement by the respondent/management, which has not been
controverted by the petitioners in the corresponding paras of the
rejoinder. This factual position was not disputed by the learned
counsel for the petitioners even at the time of arguments. The
Judgment of Single Bench of this Court in Vimal Kumar's
case (supra) the workman Vimal Kumar was admittedly
appointed by following the due procedure of recruitment and is
distinguishable. The judgment of Division Bench of this court
in Delhi Cantonment Board's case (supra) is also
distinguishable in view of the later development in law
particularly in view of the judgments of Hon'ble Supreme
Court in Umadevi's (supra) and Bhurumal's (supra). The
judgment of Deepali Gundu Surwase's case (supra) also does
not apply as the workman involved was not appointed on
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contractual or daily wages basis but was a regular teacher
working in a private school in which aid-in-grant was being
given by the State Government. The judgment of Jasmer
Singh's case (supra) does not come to the rescue of the
petitioners since the State had taken the only plea of
abandonment of service by the workman and no plea was taken
about his appointment in violation of recruitment rules.
36. In view of these discussions, I do not find any merit in the writ
petitions. The writ petitions are accordingly dismissed.
(VINOD GOEL)
JUDGE
JUNE 27, 2018
"shailendra"
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