Delhi High Court
Bijender Singh vs Delhi Development Authority [Along ... on 20 December, 2006
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
JUDGMENT Shiv Narayan Dhingra, J.
1. By this common judgment I shall dispose of all above Writ Petitions. The WP(C) Nos. 4542/2005, 3015-16/2005, 1721/2005, 1234-36/2005 have been filed by the workmen challenging the various similar orders whereby the workmen were transferred from the present division to another division and were asked to do the work of the post on which they were appointed. The WP (C) Nos. 1806-09/2004 and 12784-91/2004 have been filed by the workmen against the award whereby the claim of the workmen to be regularised as LDCs was dismissed by the Tribunal. The WP (C) Nos. 5140/2003, 11813/2004, 4993/2000 have been filed by DDA against the award whereby the DDA was directed to regularise the respondents as LDCs and was directed to pay the arrears of pay and give scale of LDCs to the respondents.
2. The brief facts which gave rise to all these writ petitions are that a number of workmen were appointed as daily wager, muster roll employees, beldars, malis and on other class IV posts, long back at different periods of time. These beldars, malis etc. who were initially muster roll/daily wagers were regularised in the post of mali and beldar under the directions of this Court or as a result of awards passed by Tribunal or as a result of scheme formulated by the DDA under the directions of this Court or Supreme Court. A large number of workmen of class IV thus got recruited by way of regularisation who were engaged by DDA for work exigencies or for different projects, these could not be disengaged due to stay orders given by Courts. However, with projects coming to an end the DDA could not found manual work for them and assigned them the jobs which were available in DDA. Many such workmen were asked to do the clerical work, because they were capable of doing the clerical work. These workmen were having regular posts of malis, beldars and security guards and were put on clerical work in different departments of DDA per force as otherwise these workmen had to be paid salaries without work and kept idle at the cost of public exchequer. These workmen after doing clerical nature of work raised a dispute that now they have become entitled to be regularised as clerks and so, these disputes were referred for adjudication to Labour Courts/Tribunals. The Tribunals in some cases passed awards that they should be paid pay equal to that of LDCs and regularized, in some cases the awards were passed only of equal pay and they were held not entitled for regularisation. Some cases are those where the order of the DDA removing them from work of clerk and posting them as malis, security guards and beldars have been challenged.
3. These cases and other similar cases show a strange phenomenon. A number of people enter into the DDA, MCD and other similar departments through approach and contacts as Class IV employees on muster roll basis or daily wages basis. These employees then raise an industrial dispute about their regularisation on the post of malis, beldars etc. and in the past i.e. before Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors. case, they have been getting regularised due to different Court orders on the basis of length of service. None of these persons have been recruited in accordance with the recruitment rules. All these persons are back door entrants into the department. After their regularisation as Class IV employees despite back door entry then, they have approached the Courts for their regularisation as Class III employees. The plea taken is that they fulfilll the qualification of Class III employees and have been assigned the work of Class III employees and have been doing this work as clerk for quite long time, therefore, they are entitled for the pay scale of the clerks as well as regularisation in the post of clerk.
4. In Secretary State of Karnataka v. Umadevi (3) and Ors. 2006 (4) SSC 1 Supreme Court considered the issue of such litigious employees and observed that the persons who get employed without following recruitment rules and procedure, through back door as a daily wagers, have been approaching the Courts and seeking the directions to make them permanent in their posts, to prevent regular recruitment to the posts concerned. Supreme Court came heavily against these employees and such back door entry into public service in violation to Article 14 of the Constitution. In the present case, the employees have already eaten the fruits of regularisation in the posts of malis, beldar, security guards etc. They all entered as daily wagers/muster roll employees and got regularisation in the same fashion in which most of the daily wagers were being regularised through litigation. Now, by raising this dispute, they further want to snatch away the posts of clerks from the general public and want that they should be regularised on the posts of clerks by by-passing the constitutional scheme of recruitment through competition in accordance with the recruitment rules laid down by the department. Supreme Court in Umadevi case (supra) held that the Courts should not be a party to perpetuate such illegalities and denuded all previous Supreme Court judgments of their value as precedent. Supreme Court categorically held that length of ad-hoc service/casualness is no ground for regularisation. Workmen have relied upon some orders of the Supreme Court and High Courts giving directions for regularisation, permanent continuation or absorption, without referring to the present legal position. All these orders and judgments have lost their value as precedent in view of judgment of Supreme Court in Uma Devi Case.
5. It is undisputed that DDA has recruitment rules in respect of posts of LDCs and these posts are to be filled through open competition as well as through promotion. The recruitment rules are as under:
RECRUITMENT REGULATIONS FOR THE POST OF LDC (ENGLISH) IN DELHI DEVELOPMENT AUTHORITY
1. Name of the : LDC-cum-Typist (English/HIndi)
2. Number of Posts : 1254 (subject to variation from time to time.
3. Classification : Group "C"
4. Scale of Pay : Rs. 3050-75-3950-80-4590/-
5. Whether Selection or : Non-Selection selection post
6.a. Age limit for direction : 18-25 years (relaxable for Govt. recruits, employees and employees of the DDA up to 35 years in accordance with instruction issued by Govt.
of India b. Whether benefit of : No. added years of service admissible under Rule 30 of CCS (Pension) Rules 1972.
7. Educational and other : should have passed Matric-
Qualification required culation qualifications
for direct recruits Required for examination
with aggregate 60% marks.
Marks equivalent from a
recognised Board or equivalent.
OR
should have passed Graduation
(at least 2nd Division) from a
recognised Board or equivalent
Should know typing at the speed
30 w.p.m. in English & 25 w.p.m.
in Hindi
8. Whether age and edu- a) Age - No.
cational qualifications b) Qualification Yes
prescribed for the direct c) Division No
recruits will apply in the
case of promotions and
deputationists.
9. Period of probation, if any 2 years
10. Method of recruitment : 75% by direct
whether by direct recruit- recruitment (50% by direct
ment or by promotion or recruitment or by LDC-cum-
by deputation & percentage Typist & 25% LDC-cum-
of vacancies to be filled Hindi Typist 25% Promotion
by various method from regular Group 'D'
employees (15% by simple
test and 10% by Seniority-cum-
11. In case of recruitment : As above
by promotion/transfer/
deputation grades from
which promotion/
transfer deputation is to be made.
12. If a DPC exists what : Junior Level DPC for
composition Group 'C' Officers
1. Director (P) : Chairman
2. Jt. Dy. CAP : Member
3. JD/DD(P)3 : Member
4. Representative of SC/ST
To be nominated by VC.
5. JD/DD (CR) Member Secretary
13. Saving : Nothing in these regulations shall
affect reservations, relaxation or
age limit and other concessions
required to be provided for the
Scheduled Caste, the Scheduled
Tribes, Ex-serviceman and other
special categories of person in
accordance with the orders
issued by the Central Govt./Delhi
Development Authority from time
to time in this regard.
14. Disqualification : a) who has entered into or
contracted a marriage with any
persons shall be eligible for
appointment to the said post;
provided that the Central Govt./
Delhi Development Authority
may, if satisfied.
That such marriage is permissible
under the personal law appli-
cable to such persons and other
party to the marriage and that
there are other grounds for so
doing, exempt any person from
the operation of this regulation.
15. Power to relax : Whether the Central Govt. Delhi
Development Authority is of the
opinion that it is necessary or
expedient so to do, it may be
order, for reasons to be recorded
in writing, relax any of the
provisions of these regulations
in respect of any class of category
of persons or posts.
6. It is also not disputed that none of the workmen had been recruited either directly or through promotion for the post of LDC. The workmen claim that they were made to work as work charge LDCs, under the orders of DDA and since they have worked for quite long time on the post of clerks, they have become entitled for being appointed as LDCs. I consider this argument must fail. All of the workmen, who have approached the Court have already been regularised either under the Court order or under a scheme formulated under the Court orders as malis, beldars, security guards etc.. They cannot approach the Court for second regularisation in higher post on the plea that they have worked at the higher post. A big work force, which should have been discharged after the projects were over, got thrusted upon DDA due to Court orders irrespective of the fact whether there was work or not. It is an administrative problem for DDA as to what to do with this work force when no project is going on. If, in order to utilize this man-power, the DDA has assigned them clerical work no fault can be found with DDA. There can be only two options with DDA. One DDA should pay salary to the employees without work or DDA should have assigned them the work available and wherever it was available. DDA runs several projects and it gets budget as per projects. The salary of work charge employees is charged from those budget. In order to accommodate these Class IV employees, who were regularised from daily wagers, DDA assigned them to different projects on work charged basis and assigned clerical duties to them. This administrative exercise was necessary for DDA so that a large workforce may not sit idle unproductively. This would not give any right to the workmen to claim status of a higher rank/grade or regularisation in higher rank / grade. A person, holding a post of Class IV, draws salary against the post sanctioned on which he is appointed. The creation of post and abolition of post is an executive function and Court cannot order creation or abolition of posts. The executive has to assess the quantum of work and create or abolish posts accordingly. By the mode of regularisation of daily wager into Class IV employees or Class IV employees as Class III and Class III to Class II and then Class II to Class I, the Courts would in fact be creating the posts where non-exist and also simultaneously creating a new procedure of recruitment. By this procedure, the Court would be violating the basic mandate of the Constitution enshrined in Article 14 of equality before law. The persons who entered through back doors, would always be the beneficiary and those persons who work hard and prepare for competition would be the losers because there would be no posts to be filed by them and all posts, in this manner would be got filled through back door entrants only. In Uma Devi (3) case, Supreme Court specifically directed that High Courts acting under Article 226, should not ordinarily issue directions for absorption, regularisation or permanent continuance unless the recruitment itself was made regularly and in terms of the Constitutional schemes.
7. Looking at the hurdle of Umadevi (supra) case the petitioners relied upon Mineral Exploration Corporation Employees' Union v. Mineral Exploration Corporation Ltd. 2006 (6) SSC 310 wherein the Supreme Court observed that even in Umadevi Case Supreme Court has directed 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 the cover of the orders of the Courts or of Tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that are required to be filled up. The Supreme Court in above case directed the respondent to decide the claim strictly in accordance with the compliance with the directions given in the judgment of Umadevi case (supra). This judgment is of no help to the petitioners since the petitioners had already eaten the fruits of regularisation in Class IV posts, as they were all daily rated workers and were regularised. Presently, the petitioners want promotions by regularisation in the next higher posts which under no circumstances can be allowed by any Court because that would amount to encouraging of un-constitutionalism and encouraging back door entry at all levels of recruitment. The plea of the respondent that they fulfilll the qualification of LDCs is also of no use. Some of the respondents may be fulfillling the qualifications of a Superintendent and some may even fulfilll the qualification of an IAS/IFS Officer. Merely because a petitioner has basic minimum qualification of a post he does not become entitled to the post. A person for appointment at a post has to pass through a procedure under which he has to compete along with other equally situated persons and show his competence to be employed as per merits.
8. The respondents have relied upon a circular dated 3.11.2004 showing that there was acute shortage of clerical staff and they were working as work charged employees against the clerical staff so they should be regularised. This circular shows that DDA had a lot of surplus workforce in Class IV and in order to utilize this workforce, which otherwise would have been unproductive, assigned this workforce to different projects as work charged employees so that there may not be any possibility of accrual of any claim of any difference of wages by such employees at a later stage. I consider that DDA has a right to manage its administrative and the Court cannot thrust upon its decisions in the administrative matters on DDA. If DDA has surplus workforce due to whatever reasons, DDA has authority to utilize this workforce in most appropriate and optimum manner.
9. The petitioner raised an argument that since they have worked as a clerk they should be given salary of a clerk. This argument also must fail. In State of Haryana v. Jasmer Singh , the Supreme Court observed as under:
The respondents, therefore, in the present appeals who are employed on daily wages cannot be treated as on a par with persons in regular service of the State of Haryana holding similar posts. Daily-rated workers are not required to possess the qualifications prescribed for regular workers, nor do they have to fulfilll the requirement relating to age at the time of recruitment. They are not selected in the manner in which regular employees are selected. In other words the requirements for selection are not as rigorous. There are also other provisions relating to regular service such as the liability of a member of the service to be transferred, and his being subject to the disciplinary jurisdiction of the authorities as prescribed, which the daily-rated workmen are not subjected to. They cannot, therefore, be equated with regular workmen for the purposes for their wages. Nor can they claim the minimum of the regular pay scale of the regularly employed.
10. The workmen who are holding regular posts of malis, beldars and security guards would not become entitled to be regularised as LDC because they have been deputed as work charge employees on different projects to do clerical work. They hold some permanent post and each person is entitled to the pay of that permanent post. The principle of equal salary for equal work would not apply in this case because the quality of work done by an LDC, who comes through recruitment procedure is always different from the quality of work done by a person, who is class IV employee.
11. The writ petitions against orders of Tribunals/Labour Court filed by DDA are allowed. The workmen are held not entitled to be regularized as LDCs nor they are entitled to salary of LDCs. The writ petitions of the workmen challenging their posting/transfer to class IV posts, to which they belong are dismissed. The writ petitions of the workmen against orders of Tribunal denying the relief of regularization/equal pay are dismissed.
12. WP(C) Nos. 4543/2005, 3015-16/2005, 1721/2005, 1234-36/2005, 18406-09/2004, 12784-91/2004 are dismissed. Writ petitions bearing Nos. WP(C) No. 5140/2003, 11813/2004 and 4993/2000 are allowed.