2013 Supreme(Del) 2035

DELHI HIGH COURT
Valmiki J.Mehta, J.
N.K.Saxena & Ors. - Appellant
Versus
Govt.of Delhi & Ors. - Resopndent
W.P.(C) 4164/2008 & W.P.(C) 5292/2006, W.P.(C) 5292/2006, W.P.(C) 4164/2008
Decided On : 12-04-2013

The judgment reaffirms the principle that casual, work charged, or contractual employees cannot claim legitimate expectation of absorption/regularization and emphasizes the importance of following the regular recruitment process for filling sanctioned posts with vacancies.

Headnote:

Regularization - Employment Transfer - Article 21, Article 14, Article 16, Article 309, Article 315, Article 320 - [I. The questions to be asked before regularization are: (a)(i) Was there a sanctioned post, (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 (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. 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.]

Fact of the Case:

The petitioners, employees of an independent entity, challenged transfer orders and sought reliefs against the closure of a particular center of a project they were engaged in. The court considered the applicability of the Uma Devi judgment, which held that casual, work charged, or contractual employees cannot seek regularization upon the end of their contracted tenures.

Finding of the Court:

The court found that the petitioners were being transferred to other centers and were not being terminated from their services. The petitioners agreed to be transferred out of Delhi, subject to their employment continuing with the employer.

Issues: Challenge of transfer orders, seeking reliefs against closure of a center, applicability of Uma Devi judgment, and the rights of employees upon completion of a project.

Ratio Decidendi: The Uma Devi judgment established that casual, work charged, or contractual employees cannot claim legitimate expectation of absorption/regularization, and the regular recruitment process must be followed for filling sanctioned posts with vacancies. The court emphasized the importance of equity in public employment through regular recruitment processes.

Final Decision: The writ petitions were dismissed as withdrawn, subject to the petitioners' agreement to be transferred out of Delhi, with their employment continuing with the employer.