Jitendra Kumar And Ors vs Uoi And Ors
2019 Latest Caselaw 69 Del

$~19
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Reserved: 19th December, 2018
                                         Pronounced on: 08th January, 2019

+       W.P.(C) 7937/2017 & CM APPLN. 32765/2017


        JITENDRA KUMAR AND ORS                 ..... Petitioners
                     Through: Mr. T.D. Yadav, Advocate.

                           Versus

        UOI AND ORS                                        ..... Respondents
                           Through:      Mr. R. M. Sinha, Advocate for R-2 &
                                         R-3.

        CORAM:
        HON'BLE MR. JUSTICE SURESH KUMAR KAIT


                                  JUDGMENT

1. Vide the present petition, the petitioners seek direction thereby setting

aside the impugned order dated 31.08.2017 and direct the respondents to

reinstate the petitioners in the service forthwith as MTS as per Office Order

dated 27.07.2017 and further the petitioners may be allowed to work

continue on adhoc basis as MTS till regularization and also seeks direction

thereby directing the respondents to grant all the consequential benefits like

seniority and pay and allowances.

2. The case of the petitioners is that the name of the petitioner No. 1,

was sponsored through Employment Exchange and appointed as Casual

Labour on a daily wage basis vide order dated 26.09.2005 and one

colleague, Mr. Satrughan Prasad was regularized as peon w.e.f. 30.04.2007.

Subsequently, the respondent advertised for Recruitment as daily wager vide

letter dated 03.08.2007 and name of the petitioner Nos. 2 and 3 were

sponsored from Employment Exchange and they were appointed as casual

labourers on daily wage basis for 89 days w.e.f. 21.08.2007. Thereafter, the

petitioners were regularly engaged 89 days with one day technical break

from time to time i.e. 2007 onwards by the respondents till office order

dated 16.03.2016. The work and conduct of the petitioners was satisfactory

with the satisfaction of superior officers therefore, the petitioners were

promoted from daily wager to adhoc basis as MTS, after completion of 11

years of service, for the period of one year vide order dated 22.06.2016 in

accordance with DoPT OM dated 14.11.2007.

3. Learned counsel for the petitioners submits that subsequently the

respondents had decided to extend appointment of the petitioners in the

National Commission for Scheduled Tribes (hereinafter shall be referred as

Commission) purely on adhoc basis w.e.f. 16.06.2017 to 15.06.2018 in the

pay Matrix Level 1 under 7th CPC of Rs.18,000-41,1000 against the existing

vacancies of MTS for the period of one year or further orders whichever is

earlier and posted at Commission Head Quarters vide order dated

27.07.2017. Thereafter, without completing tenure upto 15.06.2018 by the

petitioners, the respondents passed impugned order dated 31.08.2017

withdrawing order dated 27.07.2017 with immediate effect. Being

aggrieved, the petitioners have filed the present petition.

4. Learned counsel for the petitioners further submits that the impugned

order dated 31.08.2017 is not reasoned and speaking order as per law laid

down by the Supreme Court in case of Kranti Association Private Limited

vs. Masood Ahmed Khan & Ors. (2010) 9 SCC 496 whereby held as

under:-

47.Summarizing the above discussion, this Court holds:

(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

(b) A quasi-judicial authority must record reasons in support of its conclusions.

(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

(e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.

(f) Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

(g) Reasons facilitate the process of judicial review by superior Courts.

(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.

(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.

(j) Insistence on reason is a requirement for both judicial accountability and transparency.

(k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process.

(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737).

(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".

(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".

5. It is further submitted that the respondents have withdrawn office

order dated 27.07.2017, without show cause notice, by which they have

extended adhoc period upto 15.06.2018 which is against Principal of natural

justice.

6. Learned counsel further submits that other colleagues and similarly

situated employee namely Satrughan Prasad was regularized vide order

dated 30.04.2007. In addition to above, Man Singh Meena was regularized

w.e.f. 29.07.2009 vide office order dated 29.01.2013. But the petitioners

were discriminated and they continued as adhoc employees. Thus, it is

discrimination against the petitioners which cannot be accepted under the

settled position of law.

7. Learned counsel further submits that the petitioners have completed

more than 11 years of service. Therefore, they are entitled regularization as

per para 44 & 53 in view of the judgment of Hon'ble Supreme Court in

State of Karnataka and Ors. vs. Uma Devi and Ors. 2006 SCC (L & S)

753.

8. Learned counsel further submits that due to the discriminatory attitude

of the respondents, the petitioners have become overage for employment as

presently petitioner No. 1 is 32 years old, petitioner No. 2 is 35 years old

and petitioner No. 3 is 32 years old. Because the services of the petitioners

have suddenly terminated while other similarly situated employees like

Satrughan Prasad, Man Singh Meena have been regularized. Thus, it is clear

that the action of the respondents is illegal arbitrary unjust and

discriminatory which is violative of Article 14 and 16 of the Constitution of

India.

9. It is further submitted that the respondents in their counter affidavit

have raised preliminary objection regarding OM dated 23.07.2001 and

meeting held in the Ministry of Tribal Affairs on 16.08.2017. However,

thereafter the petitioners filed rejoinder on 20.11.2017 stating that petitioner

were promoted as MTS vide DOPT OM dated 14.11.2007 with the approval

of competent authority and above said DOPT OM dated 14.11.2007 had

taken into account of instruction contained in OM dated 23.07.2001 at the

time of appointment as MTS.

10. Learned counsel for the petitioner has pointed out that minutes of

meeting dated 16.08.2017 was forwarded for necessary action to the joint

secretary of the Commission on 05.09.2017 but the services of the petitioner

were terminated with retrospective effect w.e.f 31.08.2017 which is not

permissible under law. He submits, the entry of the petitioners is not from

the back door, however, they were sponsored through employment exchange

followed by interviews.

11. It is further submitted that Panu Singh Munda, whose claim for

regularization of the services was rejected by the respondents, said Panu

Singh Munda challenged the same before High Court of Jharkhand, Ranchi

in WPS-6462 of 2017 and the same was disposed of vide order dated

21.08.2018 thereby directing the respondents to examine the individual

status of each and every petitioners in accordance with law and thereafter, if

there is no other legal impediment, pass a speaking order assigning concrete

and valid reasons consideration/non-consideration of the cases of petitioners

for regularization of their services. Pursuant to said order, the service of

Panu Singh Munda has been regularized. Thus, the petitioners are also

entitled for the same.

12. On the other hand, learned counsel for the respondent submits that the

petitioners were appointed on purely adhoc/temporary basis group 'C'

employees. Since, the adhoc appointments were found to be against the

Office Memorandum No. 28036/1/2001-Estt(D) dated 23.07.2001 of the

Department of Personnel and Training, Ministry of Personnel, Public

Grievances and Pensions, Government of India and has not approved the

appointments, thus withdrawn. The said Office Memorandum stipulates that

no appointment shall be made on adhoc basis by direct recruitment from

'Open-Market'.

13. It is further submitted that the petitioners were appointed as Multi

Tasking Staff (MTS) purely on adhoc basis for one year w.e.f 16.06.2016

vide Order No. 1/5/NCST/2015-Estt. dated 22.06.2016, with the following

conditions:-

(i) The appointment are purely on Ad-hoc basis and will not entail any claim/rights for regular appointment and/or confirmation thereof.

(ii) The services can be dispensed with at any time at pleasure of the competent authority, NCST without giving any prior intimation/ notice and without assigning any reason.

14. Learned counsel submits that the adhoc appointment was extended for

another one year w.e.f. 16.06.2017 to 15.06.2018 with above mentioned

condition vide order dated 17.07.2017. Thereafter, a meeting was held on

16.08.2017 in the Ministry of Tribal Affairs with Chairperson, Vice-

Chairperson and Members of Commission to discuss various issues related

with the Commission. In the meeting, the issue of appointments of MTS on

adhoc basis by the Commission was also discussed at item No. 21, wherein

it was pointed out that the appointment of Four MTS made on Government

Pay scale is a clear case of misinterpretation and violation of delegation of

power to the Commission. Accordingly, in view of the discussion in the

meeting dated 16.08.2017 and after careful consideration and on

administrative reasons, the order dated 27.07.2017 of the Commission was

withdrawn with immediate effect vide office order dated 31.08.2017.

15. It is further submitted that on the basis of Department of Personnel

and Training Office Memorandum No. 28036/1/2001-Estt (D) dated

23.07.20014 services of Shri Pappu Singh Chaudhary, Shri Chhagan Lal and

Shri Vijay Kumar, MTS were also terminated vide Office Order No.

1/6/NCST/2015-Admn. dated 31.08.2017 which is at Annexure-III with

rejoinder.

16. Learned counsel appearing on behalf of the respondent has relied

upon the case of Uma Devi (supra) whereby the Hon'ble Supreme Court has

held 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 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. Thus, he cannot bargain for regularization

thereafter. It would not be appropriate to jettision 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. 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. 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. 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.

17. Learned counsel for the respondent has relied upon the case of Union

of India & Anr. vs. Arulmozhi Iniarasu & Ors. decided in Civil Appeal

Nos. 4990-4991/2011 on 6th July, 2011, whereby held that a writ of

mandamus can be issued by the High Court only when there exists a legal

right in the writ petitioner and correspondence legal obligation in the State.

Only because an illegality has been committed, the same cannot be directed

to be perpetuated, eligibility and continuance working for, however, long

period should not be permitted to over reach the law. Recruitment of rules

through Commission cannot be substituted by human consideration.

18. In view of above, learned counsel for the respondents submits that the

petitioners are purely appointed on ad hoc basis and since their posts are not

sanctioned, therefore, by the impugned order, their services have been

withdrawn. Thus, there is no legality in the impugned order, therefore, the

present petition deserves to be dismissed.

19. I have heard learned counsel for the parties.

20. The name of the petitioner No. 1 was sponsored through Employment

Exchange and appointed as Casual Labour on a daily wage basis vide order

dated 26.09.2005. Subsequently, the respondent advertised for Recruitment

as daily wager vide letter dated 03.08.2007 and name of the petitioner Nos.

2 and 3 were sponsored from Employment Exchange. Consequently, they

were appointed as casual labourers on daily wage basis for 89 days w.e.f.

21.08.2007. Thereafter, the petitioners were regularly engaged for 89 days

with one day technical break from time to time i.e. 2007 onwards by the

respondents till office order dated 16.03.2016. The work and conduct of the

petitioners was satisfactory with the satisfaction of superior officers

therefore, the petitioners were promoted from daily wager to adhoc basis as

MTS after completion of 11 years of service for the period of one year vide

order dated 22.06.2016 in accordance with DoPT OM dated 14.11.2007.

21. It is not in dispute that one Satrughan Prasad who was similarly

situated employee, regularized as peon w.e.f. 30.04.2007. It is also not in

dispute that one Man Singh Meena also similarly situated employee, had

been regularized w.e.f. 29.07.2009 vide office order dated 29.01.2013. In

addition to above, Panu Singh Munda whose claim for regularization was

rejected by the respondents, was regularized pursuant to order dated

21.08.2018 passed by the High Court of Jharkhand, Ranchi in WPS-6462 of

2017. It is also not in dispute that the petitioners have removed from service

pursuant to Office Memorandum No. 28036/1/2001-Estt(D) dated

23.07.2001 of the Department of Personnel and Training, Ministry of

Personnel, Public Grievances and Pensions, Government of India, whereas,

the petitioners were promoted from daily wager to adhoc basis as MTS after

completion of 11 years of service in accordance with service for the period

of one year vide order dated 22.06.2016 in accordance with DoPT OM dated

14.11.2007.

22. When issue of regularization came before the Supreme Court in case

of Uma Devi (supra), the Hon'ble Supreme Court directed the concerned

Departments to regularize the employees who have completed 10 years in

service, as one time solution. Accordingly, the various departments

regularized number of employees pursuant to the directions passed in case of

Uma Devi (Supra).

23. But the things did not move according to the directions of the

Supreme Court. Purpose of the directions of the Supreme Court was that

those who have completed 10 years, they shall be regularized and thereafter

no one shall be appointed as Adhoc without due process of law. If that

would have been complied with by all the departments then, again and again

writ petitions would not have come to the Courts for regularization. After

the directions of the Supreme Court, the departments of the state and union

continued to appoint on Adhoc basis, on contract basis and thereafter, they

were regularized in the same department which is contrary to the directions

of the Uma Devi. Since, the departments are engaging the services of the

employees on daily wage basis or adhoc basis, then, the employees develop

legitimate expectation to get regularized in the department.

24. Even in the present case, the Commission has regularized similarly

situated namely Satrughan Prasad, Man Singh Meena and Panu Singh

Munda. Thus, the petitioners also had legitimate expectation to get

regularized but the respondents failed to do so in case of the petitioners.

25. It is not in dispute that the petitioner No. 1 is working from the year

2005 and petitioner Nos. 2 and 3 are working since 03.08.2007 with one day

technical break and thereafter, vide order dated 22.06.2016 were promoted

from daily wager to adhoc basis as MTS after completion of 11 years of

service. Now the petitioner No. 1 has attained age of 32 years, petitioner No.

2 is 35 years and petitioner No. 3 is 32 years. Thus, they almost have

become overage to get appointment in any public service authority.

26. It is not in dispute that they were aware about their adhoc

appointments but when similarly situated as mentioned above were

regularized then they continued in the service having legitimate expectation

to get regularized in the Department. The impugned order dated 31.08.2017,

whereby the office order dated 27.08.2017 has been withdrawn, is not

reasoned order and without giving the show cause notice to the petitioners. I

am of a considered view that when, 10 to 13 years of service is terminated,

at least such employees required a hearing so that they can put their

grievance before the authority. However, the respondents measurable failed

on that aspect.

27. Accordingly, in view of the above discussion, I hereby set aside order

dated 31.07.2017 by directing the respondents to reinstate the petitioners in

service forthwith as MTS and allow them to work on adhoc basis till

regularization. The petitioner shall also be entitled for all consequential

benefits like seniority and pay and allowances. The order to reinstate the

petitioners shall be issued within four weeks from the receipt of this order.

28. In view of the above, the petition is allowed with no order as to cost.

CM APPLN. 32765/2017

In view of the order passed in the present writ petition, the application

CM APPLN. 32765/2017 has been rendered infructuous and is, accordingly,

disposed of.

(SURESH KUMAR KAIT) JUDGE JANUARY 08, 2019 rd