Delhi High Court
S.K.Chaudhary & Ors. vs Govt. Of Nct Of Delhi And Anr. on 9 January, 2013
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, Veena Birbal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: January 09, 2013
+ W.P.(C) 14160/2009
S.K.CHAUDHARY & ORS. ..... Petitioners
Represented by: Mr.Kirti Uppal, Sr. Adv. instructed by
Ms.Aastha Dhawan, Adv.
versus
GOVT. OF NCT OF DELHI AND ANR. ..... Respondents
Represented by: Mr.Dhanesh Relan, Adv. for R-1.
Mr.Sandeep P.Agarwal, Adv. for R-2.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE VEENA BIRBAL
PRADEEP NANDRAJOG, J. (Oral)
1. Heard learned counsel for the parties. TA No.261/2009 and TA No.262/2009 filed by the 19 writ petitioners, and one more, who for reasons best known to him chose not to litigate further by joining hands with the writ petitioners have been disposed of by a common decision dated July 08, 2009 passed by the Central Administrative Tribunal.
2. Noting various decisions and in particular the Constitution Bench decision of the Supreme Court reported as 2006 (4) SCC 1 Secretary, State of Karnataka & Ors. vs Umadevi & Ors. the view taken by the Tribunal is that the respondents before it i.e. Government of NCT of Delhi and Delhi State Industrial Development Corporation should hold a selection for the posts of Junior Engineers through Delhi State Staff Selection Board W.P.(C) No. 14160/2009 Page 1 of 9 (DSSSB) and while so doing age relaxation benefit would be given as also due weightage to the experience gained while working with DSIDC shall be granted.
3. Whereas the respondents before the Tribunal have accepted the direction issued by the Tribunal, the writ petitioners have approached this court bringing to the notice of this court that the law declared by the Supreme Court in Umadevi's case (supra) does not warrant a general selection process to be completed.
4. Service profile of the 19 writ petitioners, as per chart available at Page 184 of the writ record, contents whereof are not in dispute, would reveal that the writ petitioners were appointed on contract basis or on muster roll basis as Work Assistants/Technical Supervisors on various dates between May 07, 1995 and May 01, 1998. The date of appointment of each writ petitioner would be as under:-
"DELHI STATE INDUSTRIAL & INFRASTRUCTURE DEV. CORPN.
LIST OF WORK ASSISTANTS APPOINTED AS JUNIOR
ENGINEER ON CONTRACT
S. Name Date of Qua- Categ- Date of Dura-
Birth lific- ory Appoint- tion
No.
ation ment in Servi-
DSIDC ce in
Year
1 S.K.Chaudhory 01.10.1967 Degree in Gene- 07.05.1995 16
Civil ral
Engg.
2 Surinder 02.08.1967 Diploma -do- 05.05.1995 16
Kumar in Civil
Engg.
3 Ashok Kumar 01.09.1965 -do- SC 25.07.1995 16
4 Jaidev Sharma 09.07.1972 -do- Gene- 03.08.1995 16
ral
W.P.(C) No. 14160/2009 Page 2 of 9
5 Gopi Ram 11.04.1974 -do- -do- 12.12.1995 15
6 Surjeet Singh 15.08.1974 -do- -do- 26.12.1995 15
7 Ajay Aggarwal 11.05.1970 Degree in -do- 01.06.1996 15
Civil
Engg.
8 Rakesh Nain 17.07.1974 Diploma -do- 01.07.1996 15
in Civil
Engg.
9 Vineet Gaur 28.06.1972 -do- -do- 01.04.1997 14
10 Naresh Kumar 28.08.1972 -do- -do- 02.07.1997 14
11 Atul Sharma 25.12.1969 -do- 21.11.1997 13
12 Ravinder Kr. 01.03.1973 -do- 01.01.1998 13
Sirohi
13 Subhash 01.07.1964 -do- -do- 03.02.1998 13
Sharma
14 Ishwar Chand 05.01.1972 -do- -do- 01.05.1998 13
15 Dinesh Chand 05.02.1966 -do- -do- 05.10.1998 12
Sharma
16 Vipin Sharma 01.01.1978 -do- -do- 04.08.1998 13
17 Kishan Sharma 03.05.1969 B.E. -do- 25.08.1998 13
(Civil)
18 Vikash Sharma 07.01.1974 Diploma -do- 26.02.1999 12
in Civil
Engg.
19 Dhirender 01.07.1971 -do- -do- 27.04.1999 12
Kumar
5. While serving DSIDC some of the writ petitioners were later on inducted as Junior Engineers on ad-hoc basis and some as Assistant Engineers on ad-hoc basis.
6. As per the notified Recruitment Rules the educational qualification prescribed for the post Junior Engineer is a Diploma in Engineering and relevant would it be for us to note that all writ petitioners possess either a Diploma in Engineering or a Degree in Engineering.
7. The age limit prescribed for induction as per the Recruitment Rules is 30 years; and suffice would it be for us to note that when the writ petitioners W.P.(C) No. 14160/2009 Page 3 of 9 were inducted in service by DSIDC they were less than 30 years of age.
8. One more fact of importance needs to be noted. 35 posts of Junior Engineers are sanctioned as also created in DSIDC and when writ petitioners were, after induction in service as Work Assistants/Technical Supervisors made to perform duties as Junior Engineers or Assistant Engineers, 11 vacant posts of Junior Engineers and Assistant Engineers existed in DSIDC.
9. We are informed at this stage that some writ petitioners are now working as Assistant Executive Engineers.
10. The question which we are now called upon to address is the applicability of Paragraph 53 of the opinion of the Supreme Court in Umadevi's case, which otherwise holds that creation of posts is a power of the executive and no court can issue a Mandamus, effect whereof is that the executive is to create a post. Directions to regularize employees have been treated as akin to an order creating a post. The reason is but obvious. Unless there exists a sanctioned post there cannot be an individual holding the post on regular basis. But an exception is carved out in para 53.
11. The decision in Umadevi's case would reveal the shifting currents in judicial opinions on the subject of persons working for years together as daily wage employees, muster roll employees, temporary employees or ad- hoc employees and they having a claim to be regularized against the State. The case projected by these employees was that a model State cannot resort to practices which are akin to unfair trade practices. They urged that a model State cannot resort to a strategium of employment where regular hands are required perennially and yet in spite thereof regular posts are created. Appointees given benefits of regular public employment and others who are engaged on daily wage basis, muster roll basis, ad-hoc basis or temporary basis are being discriminated.W.P.(C) No. 14160/2009 Page 4 of 9
12. With reference to Article 14, 16, 38, 39A and 309 of the Constitution of India the Supreme Court opined that creation of posts is exclusively within the domain of the Executive. The Supreme Court also noted that any acceptance of public employment contrary thereto would induce corruption inasmuch as it would encourage back door entries.
13. It was in said context that the Supreme Court opined as aforenoted.
14. However, an exception was carved out by Supreme Court in Paragraph 53 of the opinion, which reads as under:-
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [1967 (1) SCR 128] : (AIR 1967 SC 1071); R.N. Nanjundappa [1972 (1) SCC 409] : (AIR 1972 SC 1767) and B.N. Nagarajan [1979 (4) SCC 507] : (AIR 1979 SC 1676) and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above-referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize 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 cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. ...."
15. As explained by the Supreme Court in a later opinion reported as AIR 2010 SC 2587 State of Karnataka & Ors. vs M.L.Kesari & Ors. (refer Paragraph 8 of the opinion), the purport and object of afore-noted exception carved out by the Supreme Court in Umadevi's case was that those who W.P.(C) No. 14160/2009 Page 5 of 9 possess the requisite qualifications and had served for long as daily wage/ad- hoc/casual employees but against sanctioned posts, should be entitled to be considered for their services being regularized in view of the long service rendered by them.
16. But, what should be the process to subject these employees to be regularized in service was neither opined upon by the Supreme Court in Umadevi's case or M.L.Kesari's case. We shall advert to this aspect a little later.
17. The law on the subject needs to be understood with reference to Paragraph 3 of the decision in Umadevi's case and the law declared by the Supreme Court in the three opinions reference whereto has been made in Paragraph 53 of the decision in Umadevi's case. The three decisions are:-
(i) AIR 1967 SC 1071 State of Mysore vs. S.V.Narayanappa;
(ii) 1972 (1) SCC 409 R.N.Nanjundappa vs. T.Thimmiah; and
(iii) 1979 (4) SCC 507 B.N.Nagarajan vs. State of Karnataka.
18. The said three opinions, as explained in Paragraph 15 and 16 of the decision in Umadevi's case, draw a distinction between an illegal and an irregular appointment. Illegal appointment would be of a kind where there exists no sanctioned post and a person is appointed by means of a selection process which hits the very essence of a Recruitment Rule. An irregular appointment would be where a procedure to follow the appointment, not going to the root of the appointment is followed.
19. Now, a procedure or manner of appointment which goes to the root of the appointment would be where a person who is ineligible is appointed and there is no sanctioned post; eligibility, with reference to the educational, experience and age requirement is ignored.
20. So understood, the facts of the instant case would bring out that the writ petitioners were irregularly appointed and not illegally appointed.
W.P.(C) No. 14160/2009 Page 6 of 921. Thus, all writ petitioners would be entitled to the benefit of the observations of the Supreme Court and the law declared in Paragraph 53 of the opinion in Umadevi's case (supra).
22. Thus, the respondents would be obliged, as a one-time measure, to undertake the exercise to fill up the vacant sanctioned posts and while so doing, would be obliged to consider the 19 writ petitioners.
23. To this extent the opinion pronounced by the Tribunal conforms to the opinion expressed by us hereinabove.
24. However, to advertise the posts, is the direction issued by the Tribunal that the selection would be through DSSSB and after notifying the vacancies to be filled up by one and all and while so doing, after subjecting the writ petitioners to the tests conducted by DSSSB which would be written as well as an interview to give weightage to the writ petitioners with reference to their past experience.
25. Now, making petitioners compete with fresh graduate Engineers whose theoretical knowledge, being immediately out of college, would be most unfair.
26. Noting that neither in Umadevi's case nor in M.K.Kesari's case the Supreme Court rendered an opinion as to what process of regularization should be adopted in cases where initial appointment was irregular and not illegal, we expand upon this subject by opining that the process through which irregular appointments need to be subjected to convert the same into regular appointments has to be a selection process devised where only the irregularly appointed employees are uniformly tested with respect to the minimum theory; keeping in view the experience gained by them. In other words, the test has not to be theoretical but an application based selection process.
W.P.(C) No. 14160/2009 Page 7 of 927. Before issuing the formal direction we need to note that whereas the DSIDC correctly understood the law declared by the Supreme Court in Umadevi's case, much prior to when the opinion was pronounced in Umadevi's case inasmuch as on September 19, 2002 it made a request to the Government of NCT of Delhi to permit it, as a one-time measure, to regularize the services of people working as Engineers with it whose initial appointment was irregular but against vacant sanctioned posts, vide its response dated February 20, 2003 the Government of NCT of Delhi refused to accord the necessary approval.
28. Since appointment of the petitioners was irregular and not illegal, in that, their existed vacant posts of Engineers in DSIDC when petitioners were inducted as Engineers and the petitioners were qualified, we dispose of the writ petition confirming the impugned decision pronounced by the Tribunal but modify the same with reference to direction issued to advertise the posts and effect selection through DSSSB : by substituting the direction that the respondents would devise a suitable methodology to subject the writ petitioners to an induction test which would be designed with reference to application and not theory. Age relaxation benefit would be granted to the petitioners. As noted by us the fact not in dispute is that the petitioners possess the necessary educational qualifications.
28. Such petitioners who clear the selection process, which would be limited to the writ petitioners, would be inducted permanently against the posts they are currently holding.
29. The process be completed as early as possible and preferably within one year from today.
30. No costs.
31. Dasti.
W.P.(C) No. 14160/2009 Page 8 of 9 C.M. No. 16327/2009Disposed of as infructuous.
(PRADEEP NANDRAJOG) JUDGE (VEENA BIRBAL) JUDGE JANUARY 09, 2013 kks W.P.(C) No. 14160/2009 Page 9 of 9