Hindustan Engg. & Genl. Mazdoor Union v. All India Council for Technical Edu.

1. No one appears for the petitioners although it is 3.05 PM. No one appeared for the petitioners on 5.1.2012, 20.4.2012, 27.4.2012 and 30.7.2012.

2. A reference to the writ petition shows that regularization in services is claimed of 34 workmen as stated in Annexure-A, and directions 2013:DHC:672 were sought from the respondents to allow the 34 workmen to join their duties which they have been doing prior to 13.4.1998. The case of the petitioners was that the casual work which the 34 workmen were doing of cleaning etc. was regular in nature and therefore, the 34 workmen should be regularized in the posts. Reference to the writ petition shows that there are no averments of there being any sanctioned posts or there being any vacancies in said sanctioned posts or that the 34 workmen were appointed through a regular recruitment process. In the case of Secretary, State of Karnataka & Ors Vs. Umadevi & Ors. 2006(4) SCC 1, the Supreme Court 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.”

3. In view of the above, the Constitution Bench judgment in the case of Umadevi (supra), the 34 workmen as stated in Annexure A, including the petitioners 2 to 5, cannot be granted regularization or employment inasmuch as there are no averments in the petition of these 34 workmen having been appointed through the regular recruitment process.

4. There is therefore no merit in this petition, which is accordingly dismissed.

FEBRUARY 08, 2013 VALMIKI J. MEHTA, J. ib