Delhi High Court
Md. Salman Khan vs Union Of India & Ors. on 8 February, 2013
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 1511/1998
% 8th February, 2013
MD. SALMAN KHAN ...... Petitioner
Through: None.
VERSUS
UNION OF INDIA & ORS. ...... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This case is on the regular board of this court since 2.1.2013. No one appears for the petitioner although it is 3.00 PM. No one appeared for the petitioner even on 2.3.2010, 3.1.2012 and 13.4.2012. I have therefore gone through the record of the present case and am proceeding to decide the matter.
2. By this writ petition the petitioner who was an employee of the respondent no.2 seeks quashing of the order dated 9.2.1998 whereby his W.P.(C) 1511/1998 Page 1 of 5 services were terminated. The impugned order dated 9.2.1998 shows that the petitioner was working only on temporary basis and having been found indisciplined, discourteous and immodest, and did not change despite repeated warnings, his services were terminated.
3. A reference to the counter-affidavit filed by the respondent no.2 shows that the petitioner was given temporary status in terms of a letter dated 6.1.1997. The petitioner was a casual employee. This letter clearly shows that casual employees who have been granted temporary status shall not be given permanent employment till they have been selected through the regular recruitment process by Central Pollution Control Board-respondent no.2.
4. In the case of Secretary, State of Karnataka & Ors Vs. Umadevi & Ors. 2006(4) SCC 1, the Supreme Court has laid down the following ratio:-
(I) The questions to be asked before regularization are:-
(a)(i) Was there a sanctioned post (court cannot order creation of posts because finances of the state may go haywire), (ii) is there a vacancy, (iii) are the persons qualified persons and (iv) are the appointments through regular recruitment process of calling all possible persons and which process involves inter-se competition among the candidates W.P.(C) 1511/1998 Page 2 of 5
(b) A court can condone an irregularity in the appointment procedure only if the irregularity does not go to the root of the matter.
(II) For sanctioned posts having vacancies, such posts have to be filled by regular recruitment process of prescribed procedure otherwise, the constitutional mandate flowing from Articles 14,16,309, 315, 320 etc is violated.
(III) In case of existence of necessary circumstances the government has a right to appoint contract employees or casual labour or employees for a project, but, such persons form a class in themselves and they cannot claim equality(except possibly for equal pay for equal work) with regular employees who form a separate class. Such temporary employees cannot claim legitimate expectation of absorption/regularization as they knew when they were appointed that they were temporary inasmuch as the government did not give and nor could have given an assurance of regularization without the regular recruitment process being followed. Such irregularly appointed persons cannot claim to be regularized alleging violation of Article 21.
Also the equity in favour of the millions who await public employment through the regular recruitment process outweighs the equity in favour of the limited number of irregularly appointed persons who claim regularization.
W.P.(C) 1511/1998 Page 3 of 5 (IV) Once there are vacancies in sanctioned posts such vacancies cannot be filled in except without regular recruitment process, and thus neither the court nor the executive can frame a scheme to absorb or regularize persons appointed to such posts without following the regular recruitment process. (V) At the instance of persons irregularly appointed the process of regular recruitment shall not be stopped. Courts should not pass interim orders to continue employment of such irregularly appointed persons because the same will result in stoppage of recruitment through regular appointment procedure. (VI) If there are sanctioned posts with vacancies, and qualified persons were appointed without a regular recruitment process, then, such persons who when the judgment of Uma Devi is passed have worked for over 10 years without court orders, such persons be regularized under schemes to be framed by the concerned organization.
(VII) The aforesaid law which applies to the Union and the States will also apply to all instrumentalities of the State governed by Article 12 of the Constitution.
5. In view of the ratio of Umadevi's (supra) case the petitioner cannot be granted regularization in services as he was not appointed through the regular recruitment process.
W.P.(C) 1511/1998 Page 4 of 5
6. Also a reference to the appointment letter to the petitioner dated 6.1.1997 shows that the services of the persons such as the petitioner can also be terminated by giving one month's notice or by assigning any other reason. Therefore, the petitioner's services were only casual in nature which could always be terminated by giving notice.
7. In view of the above reasons, there is no merit in the writ petition, which is accordingly dismissed.
FEBRUARY 08, 2013 VALMIKI J. MEHTA, J.
ib
W.P.(C) 1511/1998 Page 5 of 5