Delhi High Court
Mahendra Singh vs Energy Efficiency Services Ltd on 8 January, 2021
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 307/2020 & CM No.26341/2020 (for stay)
MAHENDRA SINGH & ORS ..... Appellants
Through: Mr. Prashant Bhushan, Mr. Biraja
Mahapatra, Ms. Alice Raj and Mr.
Rahul Gupta, Advs.
Versus
ENERGY EFFICIENCY SERVICES LTD. & ANR ..... Respondents
Through: Mr. Raman Kapur, Sr. Adv. with Mr.
Samdarshi Sanjay and Mr. Varun
Kapur, Advs. for R-1.
Mr. Anil Soni, Adv. for R-2/UOI.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 08.01.2021
[VIA VIDEO CONFERENCING]
1. The appeal impugns the order dated 12th October, 2020 of the Single
Judge, of dismissal of W.P.(C) No.7797/2020 filed by the appellants along
with several others, impugning the advertisement dated 15th October, 2019
issued by the respondent No.1 Energy Efficiency Services Ltd. (EESL) and
seeking mandamus, directing the respondent No.1 EESL to absorb the
appellants and other petitioners in regular positions, after declaring the result
of the interviews held between 24th June and 26th June, 2019 and the non-
executive petitioners, on the basis of Annual Confidential Reports.
2. The Single Judge, finding that the impugned advertisement was issued
on 15th October, 2019 and the writ petition impugning the same had been
filed on 28th September, 2020 i.e. after the recruitment process in pursuance
to the impugned advertisement had begun and was at an advanced stage,
vide the impugned order/judgment has dismissed the writ petition as barred
by delay and laches.
3. It was inter alia the case of the appellants and the other petitioners in
the writ petition, (i) that they were employed with the respondent EESL as
fixed tenure employees; (ii) that they, at the time of filing of the writ
petition, had been working with the respondent EESL for about 3 to 4 years
and that there was a policy for regularising them, but they had not been
regularised; (iii) that without regularising the appellants and the other
petitioners, the respondent EESL had vide the impugned advertisement
commenced the process of recruiting fresh employees and which the
respondent EESL was not entitled to, without considering the appellants and
other petitioners for recruitment; and, (iv) that additionally, as aforesaid,
mandamus for regularisation of the appellants and the other petitioners was
sought.
4. The appeal came up before this Court first on 16th October, 2020,
when notice thereof was ordered to be issued and the examination in
pursuance to the impugned advertisement was permitted to be held subject
to the outcome of this appeal.
5. From a reading of the impugned order, it appears that the only relief
claimed in the writ petition was of impugning the recruitment advertisement.
We have thus asked the counsel for the appellants and other petitioners, the
locus of the appellants and other petitioners to impugn the recruitment
advertisement and process and further enquired, whether not the remedy of
the appellants and the other petitioners was to seek the relief of
regularisation.
6. The counsel for the appellants states that the appellants are not just
impugning the advertisement but are also seeking the relief of regularisation
of the appellants and the other petitioners and has drawn our attention to the
second relief claimed in the writ petition.
7. We have next enquired from the counsel from the appellants, whether
the appellants and other petitioners are 'workmen', inasmuch as, if they are
covered by the Industrial Disputes Act, 1947, their remedy would be before
the Labour Court / Central Government Industrial Tribunal (CGIT).
8. The counsel for the appellants states that neither the appellants nor the
other petitioners fall in the definition of 'workmen'.
9. We have in the circumstances, enquired the stand of the respondent
EESL.
10. The senior counsel for the respondent EESL has drawn our attention
to the recruitment policy of the respondent EESL and on a reading whereof,
it transpires that in the modes of recruitment provided therein, the mode of
recruitment for fixed tenure does not exist. The senior counsel for the
respondent EESL has however drawn our attention to the EESL Service
Rules for Fixed Tenure Employees, which provides for recruitment for fixed
tenure for four and a half years. Attention has also been invited to the
Recruitment Policy of the respondent EESL where a provision is made for
absorption of the fixed tenure employees.
11. We have next asked the senior counsel for the respondent EESL, why
the mode of appointment admittedly contained in the recruitment policy, of
absorption of fixed tenure employees, has not been undertaken and whether
the appellants and the other petitioners have been considered for absorption.
12. The senior counsel for the respondent EESL states that the respondent
EESL was in the process of such consideration but was instructed by the
Chief Vigilance Officer, to conduct the recruitment on all-India basis and in
pursuance whereto the respondent EESL scheduled the examination,
impugning which the writ petition was filed. He also states that save for
one, all the other petitioners in the writ petition have participated in the
recruitment process.
13. We may in this context notice that the petitioners, in the writ petition,
though have also claimed the relief of regularisation but interestingly, not
independently, but "after declaring the results of the interviews held between
June, 24 and 26, 2019". We have enquired from the counsel for the
appellants, whether the said interviews undertaken by the writ petitioners
were pursuant to the impugned advertisement.
14. The counsel for the appellants states that the said interviews were not
held as part of the recruitment under the impugned advertisement but in
pursuance to the proposal for absorption of the fixed tenure employees,
earlier undertaken by the respondent EESL vis-a-vis the writ petitioners.
15. We also find that the Single Judge, in paragraph 3 of the judgment,
has also referred to the interviews for regularisation but not dealt with the
same. We are of the view that only the first relief claimed in the writ
petition, of impugning the advertisement, could have been held to be barred
by delay and laches and not the relief of regularisation, since the writ
petitioners continued to be in the employment, though fixed tenure, of the
respondent EESL and remained entitled to seek regularisation.
16. The said aspect having not been dealt with by the Single Judge, we
have enquired from the counsels, whether they consent to our considering
the said aspect for the first time in appeal.
17. While the counsel for the appellants and the other petitioners
consents, the senior counsel for the respondent EESL, under instructions,
states that since the writ petition was dismissed on the very first date, no
counter affidavit was filed and opportunity to file counter affidavit be given
and the matter be remanded to the Single Judge for consideration of the
second relief.
18. The appeal, to that extent is accordingly allowed, without disturbing
the judgment of the Single Judge to the extent dismissing the writ petition as
barred by delay and laches qua the first relief of impugning the recruitment
advertisement dated 15th October, 2019. The writ petition is remanded to
the Single Judge, for adjudication in accordance with law, of the second
relief claimed in the writ petition.
19. The appeal is disposed of.
20. The writ petition being W.P.(C) No.7797/2020 be listed before the
Single Judge on 11th February, 2021.
21. The respondent EESL to have the counter affidavit to the writ petition
placed on record before that date.
22. It is clarified that the interim order dated 16th October, 2020 in this
appeal also lapses on the decision of this appeal.
RAJIV SAHAI ENDLAW, J.
SANJEEV NARULA, J.
JANUARY 8, 2021/'bs'
