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HIGH COURT OF DELHI
JUDGMENT
RAVISH RATHI & ORS. ..... Petitioners
Through: Mr. Abhinay, Mr. Pooran Chand Roy, Ms. Sakshi Jain, Mr. Lakshmikant Srivastava and
Ms. Parul Khurana, Advs.
Through: Mr. Sandeep Kumar Mahapatra, CGSC with Mr. Manoj Kumar and
Mr. Anil Kumar Negi from I.B.
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
1. This petition has been filed by the petitioners with the following prayers: “Therefore, in the light of the above-mentioned facts and circumstances, it is most humbly prayed before this Hon’ble Court may be pleased to: a) Issue writ, order or direction in the nature of Mandamus and/or any other appropriate Writ, Order or Direction, directing the Respondents to regularise the Petitioners earlier working as Immigration Assistants with the Respondent No. 3; b) In the alternative to prayer a), issue writ, order or direction in the nature of Mandamus and/or any other appropriate Writ, Order or Direction, thereby directing the Respondent No. 2 to re-appoint/reinstate the Petitioners as Immigration Assistant with the office of Respondent No. 3; c) Issue appropriate order or direction to the Respondent No. 2 and No. 3, to compensate the Petitioners by giving them monthly salary and allowances from the effective date of the termination i.e., 31.03.2021; d) Pass any such further order(s) as may be deemed fit by this Hon’ble Court considering the facts and circumstances of the present case.”
2. The case of the petitioners is that they were working as Immigration Assistant with Bureau of Immigration/respondent No. 3, on contract basis for a period of three years at different Airports across the Country. The selection of the petitioners was done on their merit and expertise evaluated on the basis of written test and interview.
3. On October 11, 2014, an advertisement was issued by the respondent No.2 for appointment of candidates for the post of Assistant Central Intelligence Officer, Grade-II/Executive (‘ACIO- II/E.’, for short). In 2015, the petitioners appeared in the written examination conducted by the respondent No.2 followed by an interview.
4. It is the case of the respondents that the petitioners were not part of final list of successful candidates. On January 6, 2018, respondent No.2, issued separate letters to 120 candidates including the petitioners herein, for their consent for contractual appointment as Immigration Assistant with the Bureau of Immigration for a period of one year, extendable to three years. The petitioners were appointed as Immigration Assistants on contractual basis vide letters dated March 27, 2018 and June 28, 2018.
5. Vide letter dated January 21, 2021, the Bureau of Immigration stated that the tenure of Contractual Immigration Assistants/Immigration Support/petitioners shall be terminated w.e.f March 31, 2021 and was in fact terminated on March 31, 2021. Pursuant thereto, the petitioners had made a representation to various authorities including Prime Minister’s Office (PMO) for their reappointment.
6. Vide memorandum No.10/Imm/2021(3) dated June 10, 2021, the respondent No.2, sought a list of terminated Immigration Assistants for continuation of their services for another three years. Respondent No.2, hired its retired personnel as Immigration Assistants in the age group of 60-62 years.
7. As the grievance of the petitioners was not resolved, some of the petitioners had approached the Tribunal for regularisation of their services, which claim was rejected.
8. We may state here, petitioners had also filed a Writ Petition being W.P.(C) No.7931/2022 challenging the order dated March 26, 2021 passed by the Central Administrative Tribunal in Original Application being O.A. No.679/2021, wherein they had sought their regularisation of their services. The said writ petition has been withdrawn by the learned counsel for the petitioners.
9. Be that as it may, counter-affidavit was filed in the said Writ Petition, wherein the following has been stated:
10. The respondents have also in paragraph B of the Counter- Affidavit, stated as under:
11. The submission of the learned counsel for the petitioners is that the respondents have not given any reason for terminating the services of the petitioners. He stated, it appears the termination has been effected because the petitioners had represented to the authorities including the PMO, which is arbitrary.
12. He submitted it is a fit case where, petitioners should be reappointed till such time, the regular incumbents are appointed. That apart, not appointing the petitioners is also arbitrary and in violation of the settled position of law that, a contractual employee can only be replaced by a regular employee and not by a junior or an outsider. He has relied upon the following judgments, in support of his submissions: i. Manish Gupta & Anr. v. President, Jan Bhagidari Samiti & Ors., SLP (Civil) No. 12946-12950 of 2017. ii. Rattan Lal & Ors. v. State of Haryana & Ors.,(1985) 4 SCC 43. iii. Noida Entrepreneurs Assn. v. Noida, (2011) 6 SCC
508. iv. Ajay Hasia vs. Khalid Mujib, (1981) 1 SCC 722. v. Manish Gupta & Anr. vs President Jan Bhagidari Samiti & Ors., Civil Appeal Nos. 3084-3088 of 2022. vi. Hargurpratap Singh vs State of Punjab & Ors., (2007) 13 SCC 292. vii. Secretary State of Karnataka & Ors. vs Uma Devi,
13. On the other hand, learned counsel appearing for the respondents would submit that, in the year 2014, a recruitment process was undertaken for filling up the post of ACIO-II/Executive. The petitioners had also participated in the same, but were unsuccessful. Since there was a necessity to carry out the work, pending regular appointments, the petitioners were appointed on contractual basis on immigration posts. In the year 2020, 2000 vacancies of ACIO-II / Executive were notified to fill up the regular posts. However, final result could only be published in the year 2022, i.e., almost after 2 years. The character and antecedent verification of 2000 candidates has already been undertaken and 1300 candidates have been appointed. Resultantly, those employees / persons, who were appointed on contract basis to the extent of 1300 have been disengaged.
14. He submitted that, further 700 regular incumbents shall be appointed in the month of March 2023 and June, 2023. Resultantly all the contractual employees shall be disengaged. As such there is no requirement for contractual engagement and the petitioners’ plea that they should be appointed as contractual employees, cannot be granted. Any directions in the manner as stated by petitioners would mean that despite there being no requirement, respondents shall be forced to take / engage the petitioners on contract basis, which will be impermissible.
15. Having heard the learned counsel for the parties, we agree with the submissions made by the learned counsel for the respondents. The fact that, 2000 vacancies are to be filled on regular basis out of which 1300 posts have already been filled and we have been informed that the remaining 700 vacancies shall be filled by June, 2023, there by the engagement of the contractual employees shall be dispensed with, then no direction can be given to re-engage/re-appoint the petitioners on contract basis.
16. No doubt the reason for termination of the petitioners may not be appropriate, but we are of the view that, in the given facts and circumstances of the case, as there is no requirement for contractual employees, any direction to re-engage the petitioners, cannot be given.
17. We have seen the judgments as relied upon by the counsel for the petitioners. In the peculiar facts of this case, we are of the view that the said judgments shall not be applicable. Hence, the only plea urged by the learned counsel for the petitioners cannot be accepted.
18. The petition is dismissed. The applications are dismissed as infructuous. No costs.
V. KAMESWAR RAO, J.
ANOOP KUMAR MENDIRATTA, J. MARCH 13, 2023