Central Administrative Tribunal - Delhi
Satish Chand Gupta vs The Municipal Corporation Of Delhi on 19 August, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
TA- 97/2009
New Delhi, this the 19th day of August, 2009
HONBLE MRS. MEERA CHHIBBER, MEMBER (J)
HONBLE MR.SHAILENDRA PANDEY,MEMBER(A)
1. Satish Chand Gupta
S/o Late Shri D.C. Gupta
R/o 270-C Gali No.16,
Balbir Nagar Extension,
Shahdra - Delhi.
2. Manoj Kumar
S/o Shri Chander Bhan
R/o B-112, West Jyoti Nagar,
Loni Road,
Shahdra.
3. Sanjay Kumar
S/o Shri Rajinder Kumar
R/o A/17/21, Gali No.1,
Brahampuri, Delhi.
4. Kawaldeep Kaur
W/o Kanwal Jeet Singh
R/o 16, Old Govindpura Extn.
Gali No.2,
Parwana Road,
Delhi.
5. Jitender Kumar
S/o Shri Rajinder
R/o Village Khanpur,
P.O. Kansa, Gautam Budh Nagar,
Greater Noida, Uttar radish.
6. Rakesh Kumar Sharma
S/o Shri Ghaukhe Lal
R/o RZA-6, Jeevan Park,
Uttam Park, Delhi.
7. Deepa
D/o Shri Brij Mohan
R/o 13/23 Trilok Puri,
Delhi.
8. Sushil Kumar Rana
S/o Shri Kamal Singh
Village Bakhtawarpur,
Delhi.
9. Laxmi Sharma
W/o Shri Rajinder Kumar
R/o B-62 Ambedkar Colony,
Chhatarpur, Delhi.
10. Sushila
W/o Mukesh Kumar
R/o Garhi Ghasita
Kakroi Road,
Sonepat (Haryana).
11. Ramesh Kumar
S/o Shri Ram Pal
R/o C-75, LIG Flats,
Loni Road Delhi.
12. Vinod Kumar
S/o Shri Charan Singh
R/o 901/30, Gali No.2.,
Vikas Nagar,
Sonepat,
Haryana.
13. Sudhir Kumar
S/o Shri Mam Chand
R/o House No.126,
Bhopa Mohalla.
14. Latesh
W/o Shri Yogender
R/o B-112, West Jyoti Nagar,
Shahadra, Delhi.
15. Kanta
W/o Shri Ramesh Chander
R/o C-2/207,
Yamuna Vihar,
Delhi.
16. Virender Kumar
S/o Shri Heera Lal
R/o 15/486, Trilok Puri,
Delhi.
17. Satya Narain
S/o Shri Ram Chander
R/o 14/271 Trilokpuri,
Delhi.
18. Rekha Devi
D/o Shri Heera Lal
R/o 83-A/2, Paschim Puri,
New Delhi.
19. Ravinder Kumar
S/o Shri Nathu Lal
R/o 23/27, Trilokpuri,
Delhi.
20. Amar Singh
S/o Shri Pachu Ram,
R/o 14/274, Trilokpuri,
Delhi.
21. Gopal Kumar
S/o Shri Rewad Mal
R/o 579, Gali No.3,
Subhash Market Kotla Mubarakpur,
New Delhi.
22. Jai Devi
D/o Bansi Lal
Kakroi Road,
Near Professor Colony,
Sonepat Haryana.
23. Vikaram Kumar
S/o Suraj Pal
House No.D-II/216 Madangeer,
Dr. Amedekar Nagar, New Delhi.
24. Manoj Kumar
S/o Shri Subhash Chand
R/o A-6, Jeevan Park,
Uttam Nagar,
New Delhi-110 059.
25. Pankaj Sharma
S/o Shri Sudesh Kumar
R/o A-6 Jeevan Park,
Uttam Nagar, New Delhi-110 059.
26. Dinesh Kumar
S/o Shri Balwan Singh
R/o Village and Post Office Charra,
District Jhajjar, Haryana.
27. Smt. Sunita
W/o Shri Surinder Singh
R/o 991/9 Azad Garh,
Rohtak,
Haryana.
28. Smt. Maya
W/o Shir Brahm Pal Singh
R/o C-129 Mata Wali Gali,
Johirpur, Delhi-110 094.
29. Smt. Murti
W/o Shri Karan Singh
R/o D-30/799, Amar Colony,
East Gokalpuri,
Delhi-110 094.
30. Smt. Roshni
W/o Shri Raj Kumar
R/o D-30/799, Amar Colony,
East Gokalpuri,
Delhi-110 094.
31. Hari Om
S/o Shri Ram Khilari,
R/o 1/4627C, Ram Nagar Extension Mandoli Road,
Shahdara,
Delhi-110 032.
32. Ram Kumar
S/o Shri Bal Veer,
R/o H.No.A-6, Gali No.1,
Sadatpur,
Surya Vihar,
Delhi-110 094.
33. Prahalad
S/o Shri Ram Khilari
R/o 1/4627-C, Ram Nagar Exten. Mandoli Road,
Shahdara,
Delhi-110 032.
34. Sunil Kumar
S/o Badri Prashad,
R/o 1449/22-A, Chander Lok,
Shahdara,
Delhi-94.
35. Anil Kumar
S/o Shri Ram Gopal Sharma
R/o H.No.B-1, West Jyoti Nagar,
Shahdara,
Delhi-110 032.
36. Anil Sharma
S/o Data Ram Sharma
H.No.G-93, New Seelampur,
Delhi-110 093.
37. Ajay Kumar Sharma
S/o Shri Rajinder Kumar Sharma
R/o C-1/49 Sector 16, Rohini,
Delhi-110 085.
38. Shiv Shankar Gautam
S/o Shri R.C. Gautam
30/6 Kishan Ganj, Delhi-110 006.
39. Miss Rani
D/o Shri Moti Ram
B-2/678, Gali No.27,
Harsh Vihar,
Delhi-110093.
40. Mrs. Rashmi Gupta
W/o Shir Prabhat Kumar
2/5 Bank Colony, Mandoli,
Delh-110093.
41. Pawan Kumar
S/o Shri Kishan Singh
B-290, Gali No.18,
Mahalaxmi Enclave,
Krawal Nagar,
Delhi-110 094.
42. Mohan Chand
S/o Shri Satya Veer Singh
C/o Shri Desh Raj H.C.,
69, Gali No.19, Khazuri Khas,
Block-C,
Delhi.
43. Chanchal Kumar Sharma
S/o Shri Adel Prashad
A-28, Gali No.3, West Jyoti Nagar,
Shahdara,
Delhi-93. ..Petitioners
By Advocate: Shri N. Prabhakar.
Versus
1. The Municipal Corporation of Delhi
Through
Its Commissioner,
Town Hall,
Chandani Chowk,
Delhi.
2. Additional Deputy Commissioner
MCD (Health),
Town Hall, Chandani Chowk,
Delhi. Respondents
By Advocate: Shri Praveen Swarup.
ORDER
By Honble Mrs. Meera Chhibber, Member (J) Writ Petition No.6320/2008 was filed by 43 persons against order dated 14.8.2008 (page 126) whereby their order of regularization has been withdrawn. They have further sought a relief that respondents be restrained from de-regularising their services or from terminating them on the same cause of action which was subject matter of Writ Petition No. 8397-99 & other petitions.
2. The said writ petition was transferred by the Honble High Court vide its order dated 15.1.2009 to this Tribunal in view of notification dated 1.12.2008. It has now been numbered as T.A.97/2009.
3. It is submitted by the counsel for the petitioners that earlier these petitioners were removed from service vide order dated 01.5.2006 without holding any enquiry or show cause notice. The said orders were quashed by the Learned Single Judge and upheld by the Division Bench of Honble High Court. In the said judgment respondents were given liberty to hold an enquiry. However, once again without holding an enquiry, the respondents have now issued the orders for withdrawing their regularization, therefore, the impugned orders are liable to be quashed specially when the petitioners have been relegated from the status of regular employee to the status of daily wager which could not have been resorted to without complying with the procedure as envisaged in the regulations because after regularisation all the petitioners had completed their probation period, therefore, they are deemed to be confirmed employees.
4. Respondents have opposed this petition. They have submitted that corporation can appoint daily wagers/regularize them, if at all, only as per policy after taking approval from the competent authorities. They have explained that in 2006 the Chief Auditor found that salaries were being paid to several persons/employees in the Health Department without there being any appointment by the MCD only on the basis of fabricated and bogus joining/posting letters. These persons fell in two categories. The first category (Category 1) consisted of all those persons, who were allowed to join duties on the basis of a bogus transfer order and the second category consisted of all persons whose services were regularised on the basis of a bogus regularization-posting order (category-2). They have explained that in this case the petitioners belong to Category 2. To further elaborate the point, they have stated Petitioner No.1 had been shown to be working as a daily wager ward boy at M.O. Narela, MCD, on the basis of which his services were regularised. It was on the basis of this order, that the joining authority believing the petitioner to be a legally appointed daily wager, whose services had been regularised and who had been working previously at Narela, allowed him to join duties at the new location mentioned in the posting order, whereas the fact is that prior to the issuance of the purported regularisation cum posting order of 21.6.2002, the petitioner had never been engaged as daily wager ward boy at M.O. Narela, MCD, therefore, the said order itself is void ab initio.
5. When the scam was unearthed, the said persons were terminated without issuing show cause notice on 4.5.2006. The termination order was challenged by such persons. The writ petition was allowed by giving liberty to hold enquiry but Honble Division Bench in LPA clarified that they were not required to deal with how and what procedure should be followed by the MCD while conducting the enquiry.
6. In compliance with the orders of the Honble High Court, the petitioners were reinstated and in compliance with the principles of natural justice, show cause notice was issued to the petitioner on 10.11.2008 calling upon them to produce proof of having worked earlier on daily wage basis but no proof was submitted by the petitioners. The respondents enquired from the dispensaries, hospitals or other institutions where petitioners were shown to have worked on daily wage basis and came to know that these persons had never worked there. Accordingly, the order of regularization has been withdrawn.
7. They have further explained that another batch of 46 such persons was also terminated by giving them opportunity but that writ petition was also allowed. LPA against it was dismissed. Both the judgments in above 2 cases have been challenged by the MCD before Honble Supreme Court and their Lordships have been pleased to stay the judgments of Honble High Court in both the batch matters. Order dated 4.5.2008 passed by the Honble Supreme Court has been produced by the counsel for the respondents.
8. Counsel for the respondents further submitted that subsequently some more such persons belonging to Category-1, who were posted on transfer were terminated. They had also approached the Honble High Court by filing CWP Nos.763/08, CWP 3153/08 and CWP 3156/08. These Writ Petitions have been dismissed by the Honble High Court on 19.12.2008 by observing that since the petitioners were never appointed by the MCD, the question of compliance with Section 95 (2) (b) of the MCD Act did not arise. On facts, it was observed that even otherwise the show cause notice given by the MCD, constituted sufficient compliance with the principles of natural justice. Relying on this judgment, counsel for the respondents submitted that since in the instant case also show cause notices were given to the petitioners, their case would be covered by the judgment dated 19/12/2008 given in the case of Dulari Devi & Others.
9. Counsel for the respondents thus prayed that in view of the subsequent judgment given by Honble High Court, in the case of Dulari Devi and Others, the order of status quo given in this case may be vacated, so that they may proceed in accordance with law.
10. They have specifically stated that in all these cases (both Category 1 as well as Category 2) there was never any legal/valid appointment process initiated by the respondents nor any approval was taken from the competent authority, therefore, the question of any appointment having been made in favour of petitioners did not arise. In fact other than the aforementioned two orders both of which presupposed some prior appointment, there is no appointment letter shown by any of the petitioners thus in the absence of any appointment letter, the question before the courts in all these cases is, whether such persons could be treated as employees of the MCD, to whom the statutory provisions would be applicable as would apply for regular employees. In other words they have submitted that since the petitioners were not appointed by a valid order, provisions of Section 95 (2)(a) would not apply. They have thus prayed that the writ petition may be dismissed.
11. We have heard both the counsel and perused the pleadings. Before we deal with the legal submissions of both the counsel, it would be necessary to quote the order dated 21.6.2002 through which the petitioner was regularized. It reads as under:-
Office Order The Services of Shri Satish S/o Shri Daya Chand Gupta Daily Wages Ward Boy of M.O. Narela MCD is hereby regularised w.e.f. 1.4.2000 in the pay scale of Rs.2610-60-3150-65-3540 plus usual allowances.
Consequent upon regularisation he is posted at M.S./GLM Hospital.
The appointment is subject to the following terms and conditions:-
1. The Appointment is subject to the clearance of probation period of two years.
2. The appointment is subject to medial fitness medial slip may be taken from the office of the undersigned within 15 days.
3. It is subject to satisfactory report of police verification with regard to his character and antecedents.
4. The appointment can be terminated by either party one months salary or non months notice in lieu thereof.
5. The incumbents will have to produce two copies each of certificates and testimonials along with original for verification.
6. He will have to furnish declaration as under.
I am unmarried/married and have only one living the marriage has been contracted with a person having no living spouse.
7. He can be transferred to any Mpl. Institutions/Hospital within the jurisdiction of MCD.
8. The appointment is subject to Rules and Regulations as applicable to Mpl. Employees from time to time.
9. He will have to produce a character certificate from a District Magistrate Magistrate (Ist Class) or any two Gazetted Officers, Member of Parliament, MLA known to him for the last three years.
10. If any declaration made or information furnished by him proved to the false or any material/information is found to have willfully suppressed, he shall be liable to be removed from services and for such other action as the appointing authority may deem fit.
This issues with the proper approval of Additional Commissioner (Health) dated 30.5.2002.
ADMN. OFFICER (HEALTH).
12. Respondents have stated there were two categories who were illegally regularized/posted. The other category was of those persons, who were simply transferred. It would be relevant to quote that order also. It reads as under:-
MUNCIPAL CORPORATION OF DELHI
HEALTH DEPARTMENT, TOWN HALL
No.2967/AO (H)/RCS/2004 Date:06.02.2004
OFFICE ORDER
Smt. Dulari Devi W/o Shir Jagdish Prasad, Daily Wager Ward Aya [under posting AO (H)] is hereby posted in MOIC/Leprosy Home Tahir Pur Shahdara, Delhi against the vacant post of Daily Wager Ward Aya. She will draw her salary from Leprosy Home Tahir Pur Delhi against the vacant post of Daily Wager Ward Aya w.e.f. 3.2.2004 onwards.
This issues with the prior approval of competent authority.
13. Perusal of both these orders would show that both the orders presuppose that they were already working as Daily Wager in other hospitals/dispensaries/Homes etc. etc. with the only difference that Category-1 were simply transferred while Category-2 were regularised. A big scam was unearthed in the year 2006 when the Chief Auditor found that salaries were being paid to several persons without there being any appointment of such persons. It was in these circumstances that 127 persons were terminated vide order dated 01.5.2006 by the respondent without giving them any show cause notice. The said order was challenged by Satish Chand Gupta, Hariom and Amit Kumar along with other persons by filing Writ Petitions (C ) No.8379-99/2006, 8268-85/2006 and 9576/2006. The said writ petitions were allowed by the learned Single judge by observing that this is not one of those exceptional cases where enquiry could have been dispensed with. The most important is observations of learned Single Judge in para 38 of the judgment, which reads as under:-
Admittedly, the petitioners have been working in the various departments of the respondent/MCD for at least 2-3 years and have been drawing wages too. Thus the respondent/MCD was under an obligation to issue a notice to all the petitioners and call upon them to explain not only their version, but also to produce the relevant records in their possession and to establish their authenticity. By depriving the petitioners of an opportunity to explain their version and visiting them with such grave civil consequences as termination from service, is in the given circumstances arbitrary, unjustified and is liable to be set aside.
14. The operative portion of the judgment reads as under:-
In view of the aforesaid facts and circumstances, the impugned orders dated Ist May, 2006 terminating the services of the petitioners are hereby quashed. However, this does not preclude the respondent from holding an enquiry and considering the materials afresh before passing appropriate orders in respect of each of the petitioners, in accordance with law. Considering the gravity of the charges levelled by the respondent against the petitioners to the effect that their initial employment with the respondent was made on the basis of fake and fraudulent documents and that even their regularization letters were not issued by the competent authority, the court does not deem it appropriate to direct reinstatement of the petitioners with all consequential benefits, including backwages. While setting aside the impugned order and directing reinstatement of the petitioners, it is ordered that in case an enquiry is decided to be held by the MCD, then the entire exercise shall be undertaken and completed within a period of six months from the date of this order and in the event the petitioners ultimately succeed in establishing their bona fides, they shall be at liberty to claim all the consequential benefits, including backwages as may be permissible, in accordance with law.
15. A perusal of the judgment as quoted above would show the case was allowed as no S.C.N, was given to the persons before terminating their services so it was held order of termination is bad in law being violative of principles of natural justice.
16. It is further relevant to note that when MCD had challenged this order in LPA no 11761/07, the Division Bench in its judgment dated 9.10.97 (page No. at 123) clarified the judgment as follows:-
We may, however, hasten to add that we are not required to examine at this point how and what procedure should be followed by the appellant. Accordingly, while we do not interfere with the order passed by the learned Single Judge, we give liberty and leave it open to the appellant to proceed in the matter in accordance with law.
17. It is thus clear that the Honble High Court had left it to the authorities to decide the case after complying with the principles of natural justice. Since in the judgment, learned Single Judge had observed that principles of natural justice were violated inasmuch as no show cause notice was given to the applicants. The respondent herein issued following show cause to the applicants:-
SHOW CAUSE NOTICE UNDER SECTION 95 (2) (b) OF THE DMC ACT, 1957.
Whereas Shri Satish Chand Gupta W/o D.C.Gupta while working as Ward Boy at G.L.M. Hospital the Chief Auditor, Municipal Corporation of Delhi vide Letter dated 13.3.2006 has intimated that during the Course of Audit it was noticed that several Daily Wagers Employees have been Regularised w.e.f. 1.4.2000 and onwards on the basis of take documents on which they got employment.
During the investigation, it was informed by the Medical Officers In-charge of the respective Hospital/Dispensary/Centre in which you are shown as working on Daily Rate Basis prior to your regularization that you had never worked in the Hospital/Dispensary/Centre as Daily Wager during the relevant period.
On further investigation it has been revealed that you have worked as Daily Wager/Regular on the basis of the fake documents during the relevant period and as such your engagement/appointment as Daily Wager being void and irregular having been made without the Authority of Law or by the Competent Authority or without sanction or without observing prescribed procedure for engagement.
You are hereby called upon to Show Cause and to enclose the documents of the initial engagement/proof of requisite period of engagement prior to your regularization in support of your reply within 7 days from the receipt of this Show Cause Notice as to why your service should not be terminated, failing which, it will be presumed that you have nothing to say in the matter and action will be taken to terminate your services.
Administrative Officer (Health) Shri Satish Chand Gupta S/o Shri D.C. Gupta R/o 270-C, Gali No.16, Balbir Nagar Extension, Shahdara, Delhi.
18. Perusal of above would show that the applicant was informed in clear terms that on investigation they have come to know that the petitioners had never worked on daily wage basis in the Hospital where he is alleged to have worked on the basis of which he has been regularised thus calling upon him to enclose the documents of initial engagement or proof of requisite period of engagement prior to regularisation within seven days otherwise services shall be terminated.
19. Admittedly, none of the petitioners gave any documents to show that they were indeed engaged on daily wage basis prior to their regularization instead they again filed another Writ Petition bearing No. 497/2008 which was dismissed as withdrawn on 4.3.2008 in view of the statement made by the counsel for the respondents that they are contemplating an enquiry (page 125).
20. Counsel for the respondents has explained that the facts were got verified by the respondents, whereupon it came on record that these petitioners had never worked on daily wage basis in the hospitals/dispensaries/centers etc. prior to their regularization, therefore, after recording this fact, their order of regularisation itself was withdrawn by issuing a detailed order dated 14.8.2008 (page 126) which reads as under:-
No.AO(H)/KAJ/2008/GF-273/574 Dated:14.8.2008
OFFICE ORDER
Shri Satish Chand Gupta S/o Late Shri D.C. Gupta was regularised to the post of Ward Boy vide office order No.772/AO(H)/EC(E)/2002 dated 21.6.2002 without following the proper procedure as per the policy approved by the Corporation. When a regular Audit was carried out no required document was found for regularizing. Hence after approval of Competent Authority, he was terminated vide Office Order No.ADC(H)/2006/3970 dated 1.5.2006. However, as per order of Honble High Court in the matter of S.C. Gupta & Ors. Vs. MCD (CWP No.8379-99/06) and Hari Om & Ors. Vs. MCD (CWP No.8268-85/06) and LPA No.1176/07 and 1184/07 he was reinstated vide office order No.AO (H)/KAJ/008/GF-1086/245 dated 10.01.2008. Subsequently their alleged daily wager services was got verified from concerned medical institutions where he has been shown working as daily wager and it has been communicated that Shri Satish Chand Gupta S/o Shri D.C. Gupta has never worked as daily wager (W/B) in that institutions.
Hence the office order of regularization vide office order No.772/AO(H)/EC(E) 2002 dated 21.6.2008 is hereby withdrawn.
This issues with the prior approval Competent Authority dated 25.7.2008.
Administrative Officer (Health).
21. Perusal of above would show that after reinstating the petitioners, matter was again got verified from concerned medical institutions but it came to be known that these persons had never worked on daily wage basis, which was the basis of regularization, therefore, order of regularization itself was withdrawn. It is this order which is under challenge in this petition.
22. Counsel for the petitioners vigorously argued that on same cause of action which was adjudicated by the Honble High Court, respondents could not have withdrawn the regularization. However, the facts, as narrated above, would show that after the orders were passed by the Honble High Court, the petitioners were reinstated and their alleged daily wage service was got verified from concerned medical institutions, where the petitioners were shown to have worked as a daily wager. It was communicated by Institutions that the persons had never worked as daily wager in that institutions whereas the very basis of regularisation was that the petitioners had worked on daily wage basis with the MCD, therefore, it cannot be stated that the order is bad in law. Moreover Division Bench of the Honble High Court had given liberty to proceed in accordance with law, respondents have categorically stated in the order that petitioners had not worked with MCD prior to their regularization yet petitioners have not given any proof of their engagement on daily wage basis prior to their regularization in the petition.
Even in the present petition, there is neither any averment to show, where the petitioners had worked on daily wage basis nor any document has been placed on record to this effect. It is thus clear that the petitioners have not placed any document on record to prove that they had indeed worked with the MCD on daily wage basis, therefore, naturally the order of regularisation becomes invalid because regularisation is based on the presumption that the petitioners had worked on daily wage basis. When counsel for the petitioners was posed this question, he could not show us either any averment or any such document to substantiate their claim. The very fact that petitioners have not made any averment even in the petition before us compels us to come to the conclusion that the petitioners had not worked with the MCD on daily wage basis at all.
23. From the facts as narrated above, it is clear that the matter was got verified. Since it has been verified that petitioners had not worked with the MCD prior to their regularization, the respondents have rightly withdrawn the order of their regularisation.
24. After all, when petitioners had earlier approached the Honble High Court, Single bench of the Honble High Court had quashed the order of termination for non-compliance of principle of natural justice as no show cause notice was given to the petitioners. Liberty was given to the respondents to hold an enquiry. However, when the matter was carried to the Honble High Court in LPA, the D.B. clarified that the procedure to be adopted by MCD need not be decided by the court. Accordingly, it was left open to the MCD to proceed in the matter in accordance with law. It is thus clear that the order passed by learned single judge was modified by the Division Bench, therefore, the argument advanced by the counsel for the petitioners that on same cause of action respondents could not have passed the impugned order is rejected.
25. Even otherwise counsel for the respondents has brought to our notice that the judgments given by the Honble High Court in above matters have been stayed by the Honble Supreme Court on 4.5.2009. Moreover, the same High Court had the occasion to deal with another set of petitioners of this very scam in Writ Petition No.763/2008 where the petitioners were simply asked to join the duty (Category-1). The petitioners therein Smt. Dulari Devi and Others were not allowed to resume the duties, as they had failed to produce any document to show that they had worked with MCD prior to their posting.
26. The petitioners therein had challenged their relieving orders and had sought a direction to the respondents to treat them on duty with effect from the date of relieving. In the said case also those petitioners were directed to produce the documents to show that they were engaged by the MCD prior to their posting. None of the petitioners had placed any documents either before the department or before the court. Honble High Court referred to the earlier judgments, and observed as follows:-
A separate show cause notice was issued to each of the petitioners by the MCD after the judgment dated 9th July 2007 passed by the learned Single Judge which in fact required the MCD to do so. Therefore there was no question of non-compliance with the procedure of providing the petitioners an opportunity to show cause. Secondly, the wording of the notice is also different from the wording of either the Office Order No.3970 dated 1st May 2006 which covered 127 persons or the Office Order No. 3972 of 1st September May which covered 47 persons. 14. Mr. Amit K. Paul, learned counsel for the MCD has in fact correctly pointed out that none of these Petitioners has been able to show that they were ever employed in the MCD prior to their posting at the Leprosy Home, Shahdara. What they have produced in the Court is only the order either transferring them to or posting them at Leprosy Home, Shahdara. In fact each of these orders presupposes that they were already employed in the MCD when in fact they were not. Mr. Paul has categorically stated that MCD records do not show that any of these petitioners was in fact employed with the MCD. In that view of the matter there was no question of having to comply with Section 95(2) DMC Act read with Regulations.
27. It was further noted that in spite of opportunity having been granted, no document was placed on record to show that the petitioners therein had worked with the MCD prior to their posting. It was thus held by the Honble High Court that since this factual basis itself has not been substantiated by the Petitioners, they cannot be granted any relief as prayed for. It was also held that the question of applying the procedure under Section 95 (2) DMC Act before removing them from service therefore does not arise. In any event each of them was given a separate show cause notice in reply to which they were unable to show that they were ever appointed in the MCD. In the above circumstances, the inevitable conclusion is that none of the Petitioners was employed with the MCD prior to their posting at the Leprosy Home, Tahirpur, Shahdara. They appear to have managed to obtain orders posting them at the Leprosy Home, Tahir Pur on the basis that they were already employed in the MCD, when in fact they were not. The MCD was therefore fully justified in not permitting the petitioners to continue in service at the Leprosy Home beyond 19th September 2006.
28. This judgment was challenged before the Division Bench by filing LPA No.235/2009 but the view expressed by learned Single Judge was upheld by the learned Division Bench also.
29. It is thus clear that the points now being raised before us have already been concluded by the Honble High Court in subsequent cases.
30. Counsel for the petitioner had submitted that petitioners have been relegated from regular status to daily wager by the impugned order, therefore, the order is void ab initio. However, we do not accept this contention for the simple reason that regularization itself was void as it was based on wrong presumption. We had repeatedly asked the counsel for the petitioners to at least show us where the petitioners were engaged prior to their regularization but he could not show us any proof of their engagement with MCD prior to regularisation. We are thus satisfied that respondents have rightly withdrawn their regularization. The law is well settled that even if an appointment is given, de hors the rules, it cannot stand scrutiny of law nor can it give a right to such persons to claim regular enquiry, as is available to an employee who is appointed after following due process of law. The petitioners would be on a weaker wicket because they were regularised on wrong presumption that too without taking permission from the competent authority, therefore, petitioners cannot claim protection of regulations. Petitioners have neither stated in the petition how they were engaged, by whom they were engaged, at what place they were engaged and for what period they had worked on daily wage basis prior to their regularization, therefore, in the absence of these basic facts their regularization was itself void ab initio, therefore, if it has been withdrawn petitioners cannot have any valid grievance.
31. At this juncture it would be relevant to refer to the judgment of Honble Supreme Court in the case of State of Manipur and Others Vs. Y. Token Singh and Others reported in 2007 (3) Scale 319. In the said case offer of appointment of respondents were cancelled on the ground that they were not issued by the competent authority and were fake as such were nonest. Writ Petition was allowed on the ground that principles of natural justice were not complied with. However, liberty was given to the department to take up appropriate legal action in accordance with law and pass necessary orders after affording reasonable opportunity of being heard. Writ appeals were also dismissed.
32. The matter was carried to the Honble Supreme Court on the ground that there was no necessity to comply with the principle of natural justice.
33. It was held as under:-
Moreover, it was for the respondents who had filed the writ petitions to prove existence of legal right in their favour. They had inter alia prayed for issuance of a writ of or in the nature of mandamus. It was, thus, for them to establish existence of a legal right in their favour and a corresponding legal duty in the respondents to continue to be employed. With a view to establish their legal rights to enable the High Court to issue a writ of mandamus, the respondents were obligated to establish that the appointments had been made upon following the constitutional mandate adumbrated in Articles 14 and 16 of the Constitution of India. They have not been able to show that any advertisement had been issued inviting applications from eligible candidates to fill up the said posts. It has also not been shown that the vacancies had been notified to the employment exchange.
20. The Commissioner furthermore was not the appointing authority. He was only a cadre controlling authority. He was merely put a Chairman of the DPC for non-ministerial post of the Revenue Department.
The appointing authority, in absence of any delegation of power having been made in that behalf, was the State Government. The Government Order dated 12.01.1998 did not delegate the power of appointment to the Commissioner. He, therefore, was wholly incompetent to issue the appointment letters.
23. The respondents, therefore, in our opinion, were not entitled to hold the posts. In a case of this nature, where the facts are admitted, the principles of natural justice were not required to be complied with, particularly when the same would result in futility.
34. It would also be relevant to refer to the latest judgment of Honble Supreme Court in the case of State of Bihar Vs. Upendra Narayan Singh and Others reported in 2009 (5) SCC 65 wherein it has been reiterated that if initial appointment of respondents itself was made in violation of Articles 14 and 16 and the provisions of the employment exchanges, Single Judge of Honble High Court erred by directing their reinstatement with consequential benefits.
35. In the above case, respondents were terminated because their appointment was illegal as the procedure was not followed. No advertisement was issued nor requisition was sent to the employment exchange nor other eligible candidates were given a chance to compete with the respondents.
36. The respondents therein had raised the same contention as in the present case before us that the issue relating to legality of their initial appointments was not required to be examined as their services had been regularised by the competent authority in 1992.
37. Rejecting this argument, it was held by their Lordships as follows:-
Huge illegal employment market has developed in the country adversely affecting the legal and constitutional rights of lakhs of meritorious members of the younger generation of the country who are forced to seek intervention of the court and wait for justice for years together.
If the initial appointments of the respondents are found to be illegal per se, the direction given by the High Court for their reinstatement with consequential benefits cannot be approved by relying upon the so called regularization of their services. However, none of the documents which could give a semblance of legitimacy to the appointment of the respondents was produced before the High Court and none has been produced before the Supreme Court.
38. It was also held as under:-
It is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order.
39. Reference was also made to the following observations made by the Honble Supreme Court in the case of Directorate of Film Festivals Vs. Gaurav Ashwin Jain reported in 2007 (4) SCC 737 wherein it was held as under:-
"When a grievance of discrimination is made, the High Court cannot just examine whether someone similarly situated has been granted a relief or benefit and then automatically direct grant of such relief or benefit to the person aggrieved. The High Court has to first examine whether the petitioner who has approached the court has established a right, entitling him to the relief sought on the facts and circumstances of the case. In the context of such examination, the fact that some others, who are similarly situated, have been granted relief which the petitioner is seeking, may be of some relevance. But where in law, a writ petitioner has not established a right or is not entitled to relief, the fact that a similarly situated person has been illegally granted relief, is not a ground to direct similar relief to him. That would be enforcing a negative equality by perpetuation of an illegality which is impermissible in law."
40. The appeal of State of Bihar was allowed and the orders of Single Judge & Division Bench in favour of respondents were held to be not sustainable in law.
4. Ratio as laid down in above cases would apply to the present case also because here the regularization itself was bad in law, therefore, if it is withdrawn, it would not give any right to the petitioners. Moreover it is for the petitioners to show what legal right they have. Since petitioners have not demonstrated violation of any legal right, we find no ground to interfere in this case. The TA is dismissed. No order as to costs.
(SHAILENDRA PANDEY) (MRS.MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh