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Delhi High CourtIndian Cases

Smt. Darshna And Ors. vs Delhi Police Public School And Ors. on 7 July 2006

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Delhi High Court
Smt. Darshna And Ors. vs Delhi Police Public School And Ors. on 7 July, 2006
Author: T.S. Thakur
Bench: T.S. Thakur, Shiv Narayan Dhingra
JUDGMENT

T.S. Thakur, J.

1. A learned single Judge of this Court has, while allowing Writ Petition No. 5719/99 directed the respondent school to regularise the services of two of the petitioners before the Court on the basis of their seniority and to continue two others in service till such time regular vacancies are available and to regularise them also as and when they are so available. In regard to the rest of the petitioners, the Court has dismissed the plea for regularisation on the ground that the school does not have any vacancies available with it against which any such regularisation can be ordered. Having said so, the Court has directed that in case any vacancies arise in future, the same shall not be filled up by appointing any person other than the petitioners, if they are willing to serve. The school has been directed to maintain a list of the petitioners in this regard and appoint them as and when vacancies become available. Dissatisfied with this direction, the petitioners whose petitions have been dismissed, have filed the present appeal praying for a direction for immediate regularisation of their services.

2. Having heard learned Counsel for the parties at some length, we are of the view that the order passed by the learned single Judge does not call for any interference. The direction issued by the Court is, in fact, already over- generous having regard to the law declared by the Constitution Bench of the Supreme Court in Secretary, State of Karnataka and Ors. v. Uma Devi and Ors. . Their Lordships have, in that case, reviewed the entire case law on the subject and held that those who get employed without following a regular procedure or enter the service through the back door on daily wage or other basis cannot claim regularisation as the plea for any such relief fails when tested on the touchstone of equality of opportunity as guaranteed under Article 14 and 16 of the Constitution. The Court held:

Merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right.
3. Their Lordships further observed that those who get appointed on temporary or casual basis are conscious of the nature of their employment and accept such an employment with their eyes open. They may not be able to bargain for a better status when they are offered such appointments but that is no ground to jettison the constitutional scheme of appointment and perpetuate an illegality by granting permanence to such temporary or casually employed candidates. By doing so, the Court would be creating another mode of public appointment which is not permissible. The Court indicated the approach to be adopted in cases where temporary or ad hoc employees seek regularisation by filing petitions in the Court in the following words:

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 scheme, it cannot be said that the temporary, contractual, casual or daily-wage 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. It is, therefore, not possible to accept the argument that the Station action in not regularising the employees was not flair within the framework of the rule of law.
4. The Court also cautioned against issue of orders preventing regular selection or recruitment at the instance of temporarily appointed persons. Orders for continuance of such temporary or casual employees, observed their Lordships, tend to defeat the very constitutional scheme of public employment. Their lordships held:

It has to be emphasised that this is not the role envisaged for the High Courts in the scheme of things and their wide powers under Article 226 are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.
The High Courts acting under Article 226 should not, therefore, ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, under litigious employment he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
5. In the light of the above pronouncement and the finding recorded by the learned single Judge with which we find ourselves in complete agreement that the appointments of the appellants were without following the procedure prescribed under the Delhi School Education Act, 1973 and the rules framed there under, no direction like the one prayed for by the appellants can be issued. As a matter of fact, the directions already issued by the learned single Judge would have called for a proper modification if an appeal against the said order was filed by the respondents. In the absence of any cross appeal or cross objections by the school challenging that part of the order passed by the learned Single Judge, we cannot interfere with the same. What is however clear is that there is no room whatsoever for any further directions from this Court.

6. There is no merit in this appeal which fails and is hereby dismissed. No costs.