Full Judgment Text
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: October 31, 2023
+ W.P.(C) 6152/2016
SHANTI PRASAD & ORS. ..... Petitioners
Through: Ms. Srishti Choudhary, Adv.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Ripudaman Bhardwaj, CGSC
with Mr. Kushagra Kausal, Adv. for
UOI.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
J U D G M E N T
V. KAMESWAR RAO, J
1. This petition has been filed by the petitioners challenging the
order dated November 3, 2015 passed by the Central Administrative
Tribunal, Principal Bench, New Delhi (‘Tribunal’ for short) in the
Original Application being OA 574/2008.
2. At the outset, we may state here that vide order dated
November 3, 2015, the Tribunal had decided three OAs. It is only the
petitioners in OA 574/2008, who have approached this Court by way of
this writ petition.
3. In terms of the impugned order, the Tribunal has rejected the
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DASTIDAR
Signing Date:31.10.2023
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OA filed by the petitioners for their regularization by stating in
paragraph 20 onwards as under:
“20. It is not in dispute that the applicants were engaged
as hand receipt workers, in the NSG Project undertaken
by CPWD. Once the project work was completed, the
persons who were engaged for the said project cannot
have any right to compel the respondents to engage them
in any other project or to regularize their services.
Further, if certain persons, who were engaged in a
particular capacity, in a particular project, were either
continued or engaged in another project or work, in view
of the availability of work to that particular category,
others such as the applicants cannot have indefeasible
right either for continuation or regularization.
21. The examination of the aforesaid common seniority
lists of different categories of employees, in different
projects and divisions, supports the contentions put forth
by the respondents that none of the juniors to the
applicants, who were engaged in NSG Project in the same
capacity, were regularized.
22. Further, even S/Shri Devender Tiwari and Surender
Singh were appointed on permanent basis, in pursuance
of the directions of the Tribunal in a OA filed by them.
23. It is also not in dispute that the services of the
applicants were dispensed with even before the Hon'ble
High Court passed interim orders for their continuation,
and accordingly the impugned retrenchment orders were
given effect to.
24. It is now well settled that no Court or Tribunal can
issue directions to regularise the services of any employee
except in certain circumstances. As rightly contended by
the respondents, in Prem Ram (supra) directions were
given for regularization of services of the appellant
therein, in terms of the Regularization Rules, 2011 of the
Government of Uttarakhand and since no such Rules or
Scheme was in existence in respondent-CPWD, the said
decision has no application to the facts of present case.
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25. In the circumstances and in view of the aforesaid
discussion, we do not find any merit in the OA and
accordingly, the same is dismissed. No order as to costs.”
4. The facts as noted from the petition are that the petitioners were
initially appointed as Beldar / Mali etc. on daily wage basis in NSG
project of the CPWD. They later acquired, temporary status. Their
services were disengaged for want of work with the culmination of the
project. The OA was initially dismissed on merit vide order dated May
10, 2010. Even Review Petition being RA 260/2010 in OA 574/2008
was dismissed vide order dated February 24, 2011.
5. This Court in a writ petition being W.P.(C) 8868/2011 filed
against the order dated February 24, 2011 in RA had remanded the RA
back to the Tribunal for a fresh hearing to the extent stated by this court
inasmuch as when a plea has been raised by the petitioners that persons
junior to them who were working in the same project have been
accommodated in the other projects, the said aspect need to be dealt
with by the Tribunal.
6. Vide order dated March 12, 2014, the Tribunal had allowed the
RA and set aside the order dated May 12, 2010 and directed the listing
of the OA for a fresh adjudication. It is pursuant thereto the impugned
order has been passed.
7. The submission of Ms. Srishti Choudhary, learned counsel for
the petitioners, is that the Tribunal has committed an error by not
considering the contention raised by the petitioners that juniors have
been retained and regularised, which plea was not denied by the
respondents either in their reply or additional affidavit filed by them in
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response to the affidavits filed by the petitioners giving details by way
of annexures and thereby dismissing the O.A. which is illegal and
arbitrary.
8. According to her, the fact that the names of the persons
mentioned in Annexure-II of the additional affidavit filed by the
petitioners were taken from the original seniority list published in 2006
and they all belonged to the NSG project and since this fact has not at
all been denied by the respondents, the finding recorded by the Tribunal
suffers from perversity. In support of her submissions, she has drawn
our attention to paragraph 10 of the writ petition to contend that the
persons who were working during the years 1989, 1990, 1991, 1992 up
to 1997 are shown to be continuing in service. According to her, on
comparison of the seniority list it is clear that the respondents
knowingly, illegally, willfully and deliberately under the garb that the
project of NSG has come to an end had retrenched the petitioners while
continuing the others. She lays stress on the fact that the petitioners
having been granted temporary status should have been continued and
in fact regularized. The action is not only violative of Articles 14 and
16 of the Constitution of India, but against the law laid down by the
Supreme Court where seniors needs to be given preference over the
juniors and outsiders.
9. On the other hand, Mr. Ripu Daman Bharadwaj, learned CGSC
appearing for the respondents would submit that the petitioners were
engaged as hand-receipt workers in the NSG project undertaken by
CPWD. Once the project work has come to an end, the persons who
were engaged for the said project cannot have a right to compel the
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respondents to engage them in any other project or to regularise their
services. Further, if certain persons who are engaged in a particular
capacity in a particular project were either continued / engaged in a
project / work in view of the availability of work to that particular
category, others such as the petitioners cannot have an indefeasible
right either for continuance or regularization. It was also stated that the
statement no.1 on which reliance has been placed is a list of workers
working as Beldar, Khallasi, MLD and Fireman, who are of different
category than that of Mali. In list no.2 worker shown at serial no. 46
has been regularised as he was working as Assistant Operator and has
been regularised against a vacancy of Assistant Operator. There is no
irregularity in regularising a person on the post of Assistant Operator
against the said post. The posts of Assistant Operator and Mali are
different. He also draws our attention to Para 8 of the additional
affidavit of April 22, 2017, wherein it is stated that no junior to the
petitioners has been regularized in the Mali category in the entire NCR
territory except on compassionate ground. He seeks the dismissal of the
writ petition.
10. At the outset we may state here that the petitioners had earlier
approached this Court in W.P.(C) 8868/2011, wherein this Court had
set aside the order of the Tribunal in RA dated February 24, 2011 and
remanded the matter back for a decision on the issue whether persons
who were employed in the same project as the petitioners have been
continued. We may state here that this Court has in Para 6 of its
judgment held that the “Tribunal was right to observe that the
petitioners have no right either for regularization or to seek work in
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any other project from the respondents.”
11. In view of the above, the issue needs to be seen from one
perspective that is when a specific plea has been raised that persons
junior to the petitioners who were working in the same project have
been accommodated in other projects, whether the petitioners are also
entitled to be continued. Having said that, it is the case of the
petitioners themselves that they were engaged as Malis / Beldar and the
persons junior to them have been continued elsewhere. We find in
terms of the seniority list prepared by the respondents, all the casual
labourers have been shown as Beldars. The name of the petitioner No.1
features at serial no. 136 and he is shown to be working in Horticulture
Division-VI. The respondents have stated that the petitioners were
working as Mali and no person junior to them as Mali except
compassionate appointment, has been regularised. The fact of the
matter is that the last engagement of the petitioners was in the year
2004 and 19 years have elapsed since then. It is not known whether
such persons are continuing as of today.
12. This Court is of the view that it is too late in the day for the
petitioners to seek their re-engagement / regularization when apparently
no person junior to them has been regularized as Mali. Hence, given the
position of law laid down by the Supreme Court in Secretary, State of
Karnataka and Ors. v. Uma Devi (3) and Ors. , (2006) 4 SCC 1
wherein the Supreme Court has in paragraphs 47 and 49 has stated as
under, the prayer of the petitioners for their continuance or for that
matter regularization cannot be granted:
“47. When a person enters a temporary employment or gets
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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.
xxxx xxxx xxxx
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 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
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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.”
13. It is settled law that regularization is not a mode of
appointment. It is also settled law that any entitlement to a regular
appointment has to be as per Recruitment Rules. It is not the case of the
petitioners that they have the qualifications/eligibility for the post of
Mali and vacancies exist against which they can be regularised.
14. In view of our above discussion, we do not see any merit in the
petition, the same is dismissed.
V. KAMESWAR RAO, J
ANOOP KUMAR MENDIRATTA, J
OCTOBER 31, 2023 /jg
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DASTIDAR
Signing Date:31.10.2023
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