Mr. Bijender and Ors. v. Chairman, Airports Authority of India and Anr.

1. This writ petition is filed by three petitioners. The petitioners were appointed as Safai Karamcharis on contractual basis and were working with respondent No.2, namely Airports Authority of India. The petitioners claim regularization on account of having worked as casual employees for about 16 years.

2. The Supreme Court in the case of Secretary, State of Karnataka & Ors. vs. Umadevi & Ors., (2006) 4 SCC 1 has laid down the following ratio:-

(I) The questions to be asked before regularization

2013:DHC:1580 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

3. It could not be disputed on behalf of the petitioners that the petitioners were casual employees and were being paid only for the number of days they were working with the respondent No.2. The fact that they have been paid only for the number of days they worked with respondent No.2 becomes clear from the documents of the petitioners themselves which have been filed with the writ petition and which are from running pages 12 to 38.

4. The ratio of the Constitution Bench judgment of the Supreme Court in the case of Umadevi (supra) makes it clear that the casual employees/labour cannot be regularized inasmuch as there are no sanctioned posts against which they were appointed, the appointments are not through regular recruitment process, and, there are no vacancies against sanctioned posts to which they claim to be working.

5. Learned counsel for the petitioners sought to rely upon the report dated 20.4.2006 of Executive Director of the respondent No.2 stating that petitioners should be regularized, however, I note that this circular cannot supersede the ratio of the Constitution Bench judgment of the Supreme Court in the case of Umadevi (supra) and which ratio specifically states that neither the Court nor the Executive have powers to carve out a policy for regularization of casual employees.

6. I may at this stage also state that counsel for respondent No.2 has stated that the petitioners were not even in service and were not employed by the respondent No.2 in November, 2009 when the writ petition was filed. This seems to be correct as even the documents filed by the petitioners do not show that they were working with the respondent No.2 as on the date of filing of the writ petition.