Ravi Shankar and Others vs The Delhi State Civil Supplies Corporation Ltd. and Others

Valmiki J Mehta, J.—This writ petition is filed by the petitioners who were appointed as drivers by the respondent No. 1/Delhi State Civil Supplies Corporation Ltd firstly on daily wage basis and thereafter on contractual basis. Reliefs claimed in the writ petition are for directions to regularize the services of the petitioners and not to disengage them from services. The Constitution Bench of the Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, 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.

(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.

The first and the foremost criteria to be satisfied before a person can be regularized to the post is that there must exist sanctioned posts to which a person is appointed. Since existence of sanctioned posts is a sine qua non, the persons who have been appointed to posts which are not sanctioned posts cannot be regularized even if they have been working for long periods with or without artificial breaks and were appointed through a recruitment process of calling them through advertisements/employment exchange.

In the present case, there are no averments in the writ petition as to how there are sanctioned posts of drivers, and in fact counter-affidavit of the respondent No. 1 states that the respondent No. 1 does not have sanctioned posts of drivers inasmuch as the respondent No. 1 is facing great financial hardships besides having surplus manpower. Reference in the counter-affidavit is made to the letter dated 10.10.2000 of the Department of Finance (Expenditure-I) pertaining to constraints in the expenditure. Once there are no sanctioned posts which are created or existed against which petitioners were appointed, the ratio of Umadevi''s case (supra) squarely applies in the facts of the present case and the petitioners therefore cannot be given the relief of they being regularized in the services of respondent No. 1.

Counsel for the petitioner admits that ratio of Umadevi''s case (supra) applies but when asked to point out that where is the creation of sanctioned posts of drivers in the respondent No. 1, no documents filed with the writ petition or any averment in the writ petition could be pointed out to me of creation of sanctioned posts of drivers. Merely because petitioners are appointed through the employment exchange and thereafter selection by selection board will not mean that sanctioned posts do exist in the respondent No. 1 with respect to drivers. Once there are no sanctioned posts, even if the appointments of persons such as the petitioners are through the employment exchange and by the selection board, they cannot be regularized in view of the ratio of Umadevi''s case (supra). In view of the above, there is no merit in the writ petition, which is accordingly dismissed, leaving the parties to bear their own costs.