Delhi High Court - Orders
Yashika Arora vs Govt. Of Nct Of Delhi & Ors on 15 July, 2021
Author: V. Kameswar Rao
Bench: V. Kameswar Rao
$~49
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6519/2021, CM Nos. 20477/2021, 20478/2021 &
20479/2021
YASHIKA ARORA
..... Petitioner
Through: Mr.V.K. Garg, Sr. Adv. with
Mr. Sagar Saxena, Adv.
versus
GOVT. OF NCT OF DELHI & ORS.
..... Respondent
Through: Mrs. Avnish Ahlawat, SC (DSJ) with
Mrs. Tania Ahlawat, Mr. Nitesh
Kumar Singh & Ms. Palak
Rohemetra, Advs.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
ORDER
% 15.07.2021 This matter is being heard through video-conferencing. CM Nos. 20478/2021 & 20479/2021 (for exemption) Exemption allowed subject to all just exceptions.
Applications are disposed of.
W.P.(C) 6519/2021
1. This petition has been filed by the petitioner with the following prayers:
"It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to:
a. Issue a Writ of Certiorari for quashing order dated 26.06.2021 whereby the services of the petitioner have been terminated with effect from 30.06.2021 and; b. Issue a Writ of Certiorari for quashing order dated 30.06.2021 whereby the respondents while concurring with the recommendations of the committee assigned to consider the representation of the petitioner for regularization dismissed the representation of the petitioner.
c. Issue a Writ of Mandamus directing the Respondents to regularize the service of the petitioner w.e.f.
26.04.2008 when she was appointed to the post of Data Entry Operator Grade "A" in the pay scale of Rs. 4000- 6000/- with all consequential benefits."
2. In substance the challenge in this petition is to the orders dated June 26, 2021 / June 30, 2021 whereby the services of the petitioner as a Data Entry Operator Grade-A on ad-hoc basis were terminated with immediate effect.
3. On April 26, 2008, the petitioner was appointed as a Data Entry Operator Grade-A purely on ad-hoc basis. Her engagement was continued from time to time. In the year 2012 the recruitment rules for the post of Data Entry Operator were framed. It is her case that an office order dated October 19, 2015 was issued as a general policy for regularisation of contractual employees which consisted of various conditions and benefits which included the age relaxation and adequate weightage for the experience gained by such a contractual employee over a period of time. In 2018 the petitioner filed a petition being W.P. (C) 7407/2018 before this Court with a prayer to treat her as a regular incumbent on the post of DEO Grade A and also prohibit the respondents from discontinuing her services. The said writ petition was disposed of on July 20, 2018 with a direction to the respondents to consider the writ petition as a representation. In this regard my attention has been drawn to page 69 of the paper book. Pursuant thereto, the petitioner did make a representation on July 26, 2018 wherein she has called upon the respondent No.2 that her services be regularised and she may not be discontinued. It transpire that on receipt of the representation a committee was constituted to consider the representation of the petitioner for regularisation. The Committee has given its report. It appears based on the said report of the Committee that the impugned action has been taken. I may also refer to the impugned order dated June 30, 2021 which is a more detailed order wherein the Competent Authority i.e. District and Sessions Judge has stated as under:
"Vide order No. Admn.II/2018/50355-363 dated 30/07/2018 of this Office a Committee (the Administrative & Legal Affairs Advisory Committee) was assigned to consider the representation for regularisation of Ms. Yashika Wadhwa / Arora, ad-hoc DEO „A‟ in terms of order dated 20/07/2018 of the Hon‟ble Court of Delhi in W.P.(C) No. 7407/2018, and further in consequence, ad-hoc appointment of Ms. Yashika Wadhwa / Arora was extended w.e.f. 26/07/2018 till submission of the report by the Committee. I have examined the final report of the Committee in the light of factual and legal matrix.
Ms. Yashika Wadhwa was appointed as Data Entry Operator on 26.04.2008 purely on ad-hoc basis with the stipulation that her employment will not confer any title to permanent employment. Her Ad-hoc appointment was extended from time to time. The Committee after taking into consideration opined that the matter of Ms. Yashika Wadhwa is squarely covered by the law laid down by the Hon‟ble Supreme Court of India in the matter of Secretary, State of Karnataka & Ors. vs. Umadevi & Ors. reported as (2006) 4 SCC 1. Reliance was also placed by the Committee on the legal opinion of the Standing Counsel (services) (who recommended that the appointment of employees being purely adh-hoc, are terminable without assigning any reason and does not give any right of regularisation except to be considered for regular appointment alongwith other after giving them age relaxation for number of years they have put in service). The Committee after taking into cognizance that Ms. Yashika did not exercise her option of participation in the selection process for regular employment (as advertised by this establishment in the Vacancy Notice dated 14.09.2019). unanimously recommended vide its minutes of the meeting dated 09.06.2021 that the representation of Ms. Yashika Wadhwa deserves to be dismissed. I concur with the said reasoned recommendations of the Committee, so representation of Ms.Yashika Wadhwa for regularisation to the post of „Data Entry Operator‟ is hereby rejected."
4. Mr. Garg would make three-fold submissions. According to him, admittedly the impugned order has been passed on the basis of the report submitted by the Committee. But the said report has not been given to the petitioner which is in violation of principles of natural justice. In this regard, he relied upon the judgment of the Supreme Court in the case of Indian Institute of Information Technology v. Anurika Vaish, (2017) 5 SCC 660, more specifically para 6 and 7.
5. His second submission is that in the years 2006 and 2009 the services of similarly placed employees have been regularised whereas the petitioner has been over looked which is in violation of Article 14 of the Constitution of India. That apart, he stated petitioner having been appointed 13 years back, with the passage time has become over aged and cannot apply elsewhere for employment. According to him, the action of the employer to appoint persons on contractual basis and continue them for long period of time has been deprecated by the Supreme Court in the judgment reported as (2018) 8 SCC 238 Narendra Kumar Tiwari and ORs. v. State of Jharkhand and Ors. He states that the benefit of the said judgment need to be given to the petitioner and her services should be regularised.
6. On the stand of the respondents in the impugned order that the petitioner has not applied against the advertisement issued by them to seek regular appointment, he would submit that the said advertisement did not specify the grant of benefit of age relaxation and the experience which she gained between the period 2008 and 2019. That apart, in any case as her representation was pending with the respondent, she could not apply. In other words, she was under the impression that as her case for regularisation is under consideration, there is no need to apply against the advertisement. He states that the fact that the petitioner had not applied against advertisement cannot taken against her in such circumstances.
7. On the other hand, Ms. Ahlawat submits that the petitioner has concealed material fact inasmuch as the petitioner has placed on record the order of 2015, as it suits her, deliberately not placing the subsequent orders which have been issued by the Govt. of NCT of Delhi relating to grant of relaxation of age and also giving benefit of experience to a contractual employee. She submits by drawing my attention page 73 of the paper book which is an office order issued by the District and Sessions Judge (HQs) on July 30, 2018, stating till the report is submitted by the Committee constituted pursuant to the directions of this Court for disposing of her representation her ad-hoc term is extended. It was clearly stated in the said order that extension is provisional and she will not claim any benefit of the said extension. The representation having been considered by the respondents and the petitioner's request not been acceded to, she cannot insist for her reinstatement / regularisation. In any case, the petitioner has not challenged the advertisement issued by the respondents to make regular appointment. Ms. Ahlawat would submit the plea of Mr.Garg that the petitioner had not applied against the advertisement as her representation for regularisation was pending is untenable as regularisation has to be in accordance with the recruitment rules and not otherwise. In any case, Ms. Ahlawat drawing my attention to page 47 which is an order dated June 30, 2021 would submit that the same reflects that the termination of the petitioner is justified being in accordance with the law as prevailing. She seeks the dismissal; of the writ petition.
8. Having heard the learned counsel for the parties, I may state at the outset that during the hearing I had asked Mr. Garg as to what procedure was followed for appointing the petitioner as Data Entry Operator. According to him, the petitioner having come to know that there is vacancy of Data Entry Operator, had applied for the same. In other words, no advertisement was issued for filling up the post of Data Entry Operator. The terms of appointment issued to her are very clear that the same is on ad-hoc basis. At no point of time did the petitioner contested her nature of appointment. The appointment continued from time to time till the impugned order was passed. The earlier writ petition being W.P.(C) 7407/2018 was disposed of by this Court with a direction to consider her representation for regularisation. The representation having been made by the petitioner, the same was considered through a committee on whose report the impugned order is passed.
9. The plea of Mr.Garg is that the said report was not given to the petitioner. He had relied upon the judgment of the Supreme Court Indian Institute of Information Technology (supra). In the said case the facts were, that the Board of Management of the Institute cancelled certain appointments made by taking the following decision "2. The relevant consideration reads as follows:
"Item 16 To consider the status report on selection of academic staff done on 6-4-2013.
The Board considered the status report on the selection of the academic staff and deliberated upon it at length. In the context, in addition to the minutes as at Item 1 of this meeting, it was apprised by some Board members that the advertisement brought out by IIITA for these selections was NOT as per norms. Also for some of the appointments, eligibility criteria were unduly relaxed, taking incorrect pretext of the earlier BoM resolutions.
The Board also noticed that through a G.O. issued vide F. No. 3.11014/11/Q4-CDN dated 19-7-2004, MHRD had advised heads of all autonomous bodies prohibiting all the retiring Directors, for any action to make selections/promotions two-three months before the expiry of their term or retirement, as the case may be. Further, the erstwhile Director's term expired on 26-12-2012 and he was on six months' extension in April 2013. Therefore, in April 2013, he was neither competent nor authorised to call for any selections. When these facts became known to the Board in this meeting, it became clear that the entire process of selection/appointment and other recommendations mentioned by the selection committee therein, was wrong ab initio. Accordingly, the BoM in this meeting recommended, in supersession to the earlier decisions of the Board in this matter, that all selections/appointments done on 6-4-2013 are CANCELLED. ..."
The grounds for cancelling the appointments were that, the selections were not as per norms, the criterion was relaxed taking the pretext of earlier Board of Management decisions. The Teachers challenged their termination before the High Court. The cases were disposed of by the judgment dated December 12, 2015. The High Court was of the view that the appellant should have considered, whether the appellant was bound by the UGC regulations or the qualifications prescribed by the institute and as advertised in the notification for selection. The Court set aside the decision. The High Court finally held that the Board need to take a final decision within 3 weeks. Pursuant thereto the institute issued show cause notices but without the status report discussed in the Board Meeting. It was in this background the Supreme Court held that the status report need to have been given to the teachers.
10. Whereas in the case at hand there is no dispute on the rules/ norms/ regulations. The issue in the case is whether the law permits the regularisation of the petitioner, the law being well settled it has to be seen whether the case of the petitioner is covered thereunder, hence the report of the committee is not required to be given to the petitioner. In any case, Mr. Garg could not able to highlight the prejudice that has been caused to the petitioner for not being given the report of the Committee pursuant to which the impugned order has been passed as the reasons given in the order date June 26, 2021 / June 30, 2021, cannot be contested by the petitioner both on facts and law.
11. Further, the plea advanced by Mr. Garg is an afterthought as at no point of time did the petitioner asked for the report of the Committee though she was informed that a committee has been constituted to consider her representation pursuant to the direction of this Court in the order dated June 30, 2018. That apart, the initial order dated June 26, 2021 was followed by the order dated June 30, 2021. The latter order is a reasoned order which I have reproduced above dilating the position of law, for which her service cannot be regularised.
12. Insofar as the plea of Mr. Garg that similarly placed persons have been regularised in 2006 and 2009 denying the same benefit to the petitioner is also not appealing. This I say so, because of the settled position of law of the Supreme Court in terms of the judgment in the case of Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1 wherein the Supreme Court has clearly held that an appointment under the state has to be in accordance with the constitutional scheme giving wide publicity and to enable all eligible persons apply for the post. In this regard, I may refer to paras 43 and 50 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 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 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.
xxx xxx xxx
50. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality."
13. The Supreme Court also held the regularisation is not the mode of appointment. Even the regular appointment has to be in accordance with recruitment rules [Ref: Hindustan Shipyard Ltd. and Ors. v. Dr. P. Sambasiva Rao and Ors. (and connected appeal) 1996 (7) SCC 499]. No doubt the petitioner had worked for 12 to 13 years on the post of Data Entry Operator but nothing precluded her to seek regular appointment by applying against the advertisement issued by the respondent. The plea of Mr.Garg that the petitioner did not apply against the advertisement as no age relaxation / benefit of experience was prescribed in the advertisement is not tenable. The petitioner was within her right to apply against the advertisement and seek the benefit of age relaxation and experience. Mr. Garg's plea as the petitioner's representation for regularization was under
consideration, she did not apply against the advertisement is a contradictory plea. It follows that the petitioner has taken a risk of not applying against the advertisement to await a decision on her representation.
14. The reliance of Mr. Garg on the judgment of the Supreme Court in the case of Narendra Kumar Tiwari v. State of Jharkhand, (2018) 8 SCC 238 is concerned, the same has no applicability, inasmuch as the Supreme Court was concerned with a case where the State of Jharkhand has framed the Regularisation Rules 2015 which stipulated regularisation of those contractual employees who had completed ten years of service as on April 10, 2006. The benefit of regularisation was not given to the appellants in that case on the ground that they did not have ten years of service. It has come on record that the engagement of the appellants in that case was irregular and not illegal and their case ought to have been considered by giving a pragmatic interpretation to the rules and if the appellants had completed ten years of service on the date of promulgation of rules they ought to be given the benefit. Whereas in the case in hand, there are no regularisation rules framed. That apart, it is a case where the initial appointment itself is illegal without issuing an advertisement for making appointment to the post of Data Entry Operator. There are rules which governs the appointment to the post of Data Entry Operator. The instructions issued by the Govt. of NCT of Delhi gives the relaxation in case of over age. That apart, even benefit of experience gained by a contractual employee was to be given due weightage and the petitioner having not applied against the advertisement cannot now seeks regularisation in violation of the rules and the policy. I find no illegality in the impugned order issued by the respondent No.2 terminating the employment of the petitioner as ad-hoc Data Entry Operator Grade-A. The petition is dismissed. No costs.
CM No. 20477/2021In view of my decision in the petition, this application has become infructuous and the same is dismissed.
V. KAMESWAR RAO, J JULY 15, 2021/aky/jg