Delhi High Court - Orders
Prem Sagar & Ors vs Uoi & Ors on 28 November, 2022
Author: V. Kameswar Rao
Bench: V. Kameswar Rao, Anoop Kumar Mendiratta
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3333/2007
PREM SAGAR & ORS. ..... Petitioners
Through: Mr. Counsel (appearance not given)
versus
UOI & ORS. ..... Respondents
Through: Ms. Archana Surve and Mr. Jatin
Singh, Advs.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
ORDER
% 28.11.2022 CM APPL. 50781/2022
1. This is an application filed by five petitioners, i.e., petitioner Nos. 6 to 10 for restoration of the petition.
2. On a query from the Court, learned counsel for the petitioner would submit that petitioner Nos. 1, 2 and 3 have expired.
3. In so far as petitioner Nos. 4 & 5 are concerned, he has no instructions.
4. Suffice to state, the writ petition was dismissed for want of prosecution on October 18, 2022.
5. On the last date of hearing, this Court had passed the following order:
Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:02.12.2022 12:56:31"At the request of the Learned Counsel for the Petitioner/ Applicant, list the matter on 28.11.2022.
Learned Counsel for the Petitioner has also agreed to argue the main matter on merits.
Accordingly, list on 28.11.2022."
6. The application is allowed.
7. The writ petition in so far as petitioner Nos. 6 to 10 are concerned is restored to its original number.
W.P.(C) 3333/2007
8. We have heard, learned counsel for the parties.
9. The case of the petitioners as contended by the learned counsel for the petitioners is that, they had earlier approached the Central Administrative Tribunal ('Tribunal', for short) seeking a direction for their re-engagement against the existing / future vacancies without any further delay.
10. The petitioners had initially filed OA 1174 /PB/1994 before the Chandigarh Bench of the Tribunal which was decided on August 18, 1997 whereby the respondents were directed to work out a scheme wherein the absorption / regularization of the petitioners and similarly situated persons should be considered for regular appointment and they shall be given an opportunity to compete with the outsiders as direct recruits and to give proper weightage for having rendered long years service in Railways. Pursuant to the same respondents issued a circular dated January 21, 1998 wherein it was insisted that the Hot Weather Watermen / Women whose names are placed on the Live Casual Labour Register shall be considered for screening and regularization for regular employment against the post to which they may be found fit within the framework now contained in the provisions of paragraphs 2005 and 2008 of the Indian Railway Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:02.12.2022 12:56:31 Establishment Manual (IREM) Vol. II and other instructions issued from time to time and such other Hot Weather Watermen / Women will be given an opportunity for being considered for appointment to Group 'D' posts whenever direct recruitment takes place.
11. It was the grievance of the petitioners that since they were not considered they gave representations but no response was given. Therefore, they had filed another OA 1303/PB/2001 before the Chandigarh Bench of the Tribunal, which was disposed of on January 1, 2002 by giving opportunity to the petitioners to file a comprehensive representation within one month from that date and the same was directed to be disposed of within a period of six months from the date of the receipt of representation.
12. Pursuant thereto, an Office Order dated June 6, 2002 was issued whereby the petitioners were informed about the details of their working days on casual basis and their number in Divisional Casual Labour Live Register. They were also informed that no persons junior to them have been given regular appointment in Group-D posts.
13. It was the case of the petitioners that even thereafter the Union raised questions about screening and absorption of Hot Weather Watermen / Women as they have completed 120 days as Casual Labours.
14. It was their case that the respondents had advertised 8000 vacancies but the case of the petitioners were not forwarded by the respondents even though the Tribunal had already given directions to the respondents to give them an opportunity to compete with outsiders. In support of their case, the petitioners had relied upon paragraphs 2001 (5), 2002, 2005 (b) and 2006 of IREM, Vol.II.
15. During the hearing before the Tribunal, the only prayer pressed was Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:02.12.2022 12:56:31 that the petitioners be given an opportunity to apply for the said 8000 vacancies so that they may also be considered by the Railway Recruitment Board because otherwise Railway Recruitment Board would not consider their applications.
16. The OM was opposed by the respondents on many grounds which included that w.e.f November 27, 2001 recruitment to Group-D posts is made only by the Railway Recruitment Board. The advertisement annexed by the petitioners was issued by the Railway Recruitment Board. It was the case of the respondents that the petitioners had not applied with the Railway Recruitment Board and the closing date of the advertisement was November 29, 2005. Therefore, the said date cannot be extended by giving any opportunity to the petitioners at this stage. In other words, the prayer made on behalf of the petitioners for giving them opportunity to apply with the Railway Recruitment Board was opposed.
17. On merits, it was the case of the respondents that the petitioners had not furnished the requisite particulars such as Casual Labour Card, date of engagement, date of disengagement nor it is stated by whom they were engaged. We find that the Tribunal did note that the petitioners, as per their own averments, were engaged in the years 1984 and 1985.
18. A plea was taken that the engagement of the petitioner was not done by a competent person. In that sense their appointment was not made in accordance with law. The respondents had relied upon the judgment of the Supreme Court in the case of Secretary, State of Karnataka and Ors. v. Uma Devi and Ors. reported as (2006) 4 SCC 1 and also on the Judgment of the Tribunal in the case of Ramesh Chand v. UOI, through the General Manager (NR) and Ors. decided on June 19, 2006 in OA 779/2005. The Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:02.12.2022 12:56:31 conclusion of the Tribunal is in paragraph 7 onwards. The Tribunal has made a reference to the Judgment in the OA filed by the petitioner bearing No. 1174/PB/1994, wherein according to the Tribunal, the Chandigarh Bench, has only observed in its Judgment dated August 18, 1997, that temporary casual labour, even with temporary status have no enforceable right for absorption / regularization since they could be appointed only against a post of Watermen if that exists. In this background, respondents were directed to work out a scheme wherein absorption / regularization of the petitioners should be considered for regular appointment, to which they may be found fit on the basis of their educational and other qualifications. The Tribunal also noted that a circular was issued on August 21, 1998, in which it was made clear that whenever a direct recruitment takes place and such individual Hot Weather Watermen/Women chooses to apply against that post, subject to qualifications / experience prescribed for that post, they will be given an opportunity for being considered for appointment to the Group-D posts. In other words the said circular itself made it clear that Hot Weather Watermen / Women should apply against the positions whenever direct recruitment takes place subject to one time relaxation of maximum age limit prescribed to the extent of their total service which may be continuous or in broken period.
19. The respondents had advertised 8000 vacancies (as stated by the counsel for the petitioners). The petitioners should have applied for those posts if they were interested because the circular also so stipulated. The Tribunal was of the view that admittedly the petitioners did not apply pursuant to the advertisement in 1998. We find that an advertisement was also issued in January, 2005. We are informed by the counsel for the Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:02.12.2022 12:56:31 petitioners that even against this advertisement, the petitioner had not applied. He also states that the said selection process was cancelled because of leakage of the question paper. In any case, it is a fact that the petitioners had not applied against the advertisement issued in January, 2005. The Tribunal finally relying upon the judgment of the Supreme Court in the case of State of Karnataka (supra) and Uma Devi (supra) and also the fact that no junior to the petitioners has been regularized / absorbed, dismissed the OA.
20. Today, learned counsel appearing for the petitioner had relied upon the judgment of OA 1174/PB/1994 dated August 18, 1997. Suffice to state, the judgment has been considered by the Tribunal in the impugned order dated December 12, 2006. The issue which arose for consideration before the Tribunal was whether the petitioners are entitled to regularization / absorption. The Tribunal has made a reference to the circular issued by the respondents in the year 1998 wherein it is clearly stated that regularization / absorption should also be considered against a post of Watermen if that exists. That apart, the circular stipulated that such individual Hot Weather Watermen / Women chooses to apply against that post, subject to the qualifications / experience prescribed for that post, they will be given an opportunity for being considered for appointment to Group-D Posts. The law with regard to regularization / absorption / permanent appointment is well settled. No person has an indefeasible right to get himself regularized / absorbed. Any process of permanent appointment has to be considered as per recruitment rules along with the outsiders. Surely, the same shall be subject to age relaxation and being given the benefit of earlier engagement. In the present case, petitioners having not applied against the circular 1998 Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:02.12.2022 12:56:31 or for that matter the one issued in 2005, they cannot seek the regularization / absorption / permanent appointment, as that would be contrary to the judgment of the Supreme Court in the case of Uma Devi (supra), wherein the Supreme Court in paragraphs 47 & 49 has stated as under:
"47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
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49. It is contended that the State action in not regularising the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:02.12.2022 12:56:31 court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution."
21. The Supreme Court in the case Nagar Mahapalika v. Vibha Shukla reported as 2007 (15) SCC 161 has held that the regularisation is not a mode of appointment. The relevant paragraph is reproduced as under:
"20. Furthermore, it is trite that regularisation is not a mode of appointment. It has been so held by a Constitution Bench of this Court in, State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] . The principle enunciated by the Constitution Bench of this Court in Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] has inter alia been applied by this Court in Post Master General v. Tutu Das (Dutta) [(2007) 5 SCC 317 : (2007) 2 SCC (L&S) 179 : (2007) 6 Scale 453] stating as under : (SCC p. 322, paras 12-13) "12. What was considered to be permissible at a given point of time keeping in view the decisions of this Court which had then been operating in the field, does no longer hold good. Indisputably, the situation has completely changed in view of a large number of decisions rendered by this Court in last 15 years or so. It was felt that no appointment should be made contrary to the statutory provisions governing recruitment or the rules framed in that behalf under a statute or the proviso appended to Article 309 of the Constitution of India.
13. Equality clause contained in Articles 14 and 16 of the Constitution of India must be given primacy. No policy decision can be taken in terms of Article 77 or Article 162 of the Constitution of India which would run contrary to the constitutional or statutory schemes."Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:02.12.2022 12:56:31
22. The petitioners having not applied against the circulars of 1998 and 2005 cannot seek regularisation / permanent appointment.
23. We do not see any merit in the petition. The same is dismissed.
V. KAMESWAR RAO, J ANOOP KUMAR MENDIRATTA, J NOVEMBER 28, 2022/jg Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:02.12.2022 12:56:31