SURESH KUMAR vs THE CHAIRMAN ADVISOR TO GOVERNOR J AND K AND ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of order: 6th October, 2023
+ W.P.(C) 13119/2023 & CM APPL. 51859/2023 & CM APPL. 51860/2023 & CM APPL. 51861/2023

SURESH KUMAR …. Petitioner
Through: Appearance not given.
versus
THE CHAIRMAN ADVISOR TO GOVERNOR J AND K AND
ORS …. Respondents
Through: Nemo.
CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH
O R D E R

CHANDRA DHARI SINGH, J (Oral)

1. The instant petition under Article 226 of the Constitution of India has been filed on behalf of the petitioner seeking the following reliefs:
“(i) Issue an appropriate writ, order or direction in the nature of Mandamus thereby setting aside the impugned order dated 04.07.2007 and direct the respondents treat the petitioner as regular employee since 1991 but the respondent are treating the petitioner as regular employee since 01.04.2005 and asked the petitioner to furnish the online service details thereby showing the date of regular employee as 01.04.2005; and
(ii) Further issue an appropriate order or directions in the nature of mandamus thereby quashing/setting aside the letter dated 30-05.2023, whereby the Respondent No. 3 threatened for disciplinary action against the petitioner; and
(iii) Further directed the respondents to release the salary of the petitioner since December, 2022 onwards.
(iv) Pass such other order/direction as may be deemed fit and proper in the facts and circumstances of the case.”

2. The brief facts leading to filing of the instant petition are as follows:
a) The petitioner had joined the respondent as a driver on daily wages in the month of August in 1989 and the said appointment was confirmed by the respondent no. 3 in the pay scale of Rs. 810/- -1750/- vide order No. JKHPMC/M/DIV/Camp DLi/202 dated 28th January 1991.
b) The petitioner was then promoted to the position of a senior driver with the pay scale of Rs. 1200/- – 2140/- w.e.f. 1st October 1994, vide order No. 84 of 1994 dated 31st October 1994 issued by the Assistant Manager (per), J&K HPMC Ltd. Srinagar.
c) The respondent no. 3 issued an order dated 8th January 1997 to the petitioner directing him to report to the manager J&K HPMC (TC) for further duties and the said order was effective immediately.
d) The petitioner thereafter preferred a writ petition bearing No. 2298/98 before the High Court of Jammu and Kashmir at Jammu seeking regularization of its services. The said writ petition was disposed vide order dated 30th December 1998 with a direction to the respondent to treat the writ petition as a representation of the petitioner seeking regularization and further granted status quo pertaining to service conditions of the petitioner and kept the matter in abeyance for 4 weeks.
e) The respondent no. 3 replied to the said representation vide order 26th March 1999, thereby, stating that there is no provision for regularization of service of the petitioner since, the petitioner is a non-state subject and holds a superior position. Moreover, the petitioner being a non-state subject the tenure of the petitioner cannot be extended any further, therefore, the service of the petitioner is terminated.
f) During the pendency of the said petition before the Jammu and Kashmir High Court, the petitioner was transferred to Delhi vide order dated 1st September 2000 due to petitioner’s request on the ground of ill- health of his mother. Pursuant to which, the petitioner joined the Delhi office on 28th September 2000.
g) The High Court of Jammu & Kashmir while deciding the said petition vide order dated 13th July 2001 held that the respondent no. 3 herein has wrongly rejected the petitioner’s plea for regularisation on the ground that the petitioner not being a State subject. The Court further held that if a person is doing satisfactory job at a contractual position, then there is no justification to not consider him for the same duties on regular basis.
h) Thereafter, the respondent transferred the petitioner vide order dated 3rd September 2004. The petitioner herein then filed a writ petition before this Court bearing W.P.(C) No. 17171/2004 challenging the above said transfer order and prayed that the petitioner may not be transferred till 1st April 2005. The respondent therein, acceded to the said request of the petitioner and accordingly, the petition was disposed of.
i) The Government of Jammu and Kashmir Civil Secretariat, Finance Department passed a Circular/Notification dated 15th January 1996 and in accordance with the said notification, the respondent no. 3 sent the order for Grant of INSITU promotion in the favor respondent’s Employees vide order dated 12th September 2006 to the respondent no. 4 with the direction for fixation of pay of the employees.
j) Vide order dated 12th September 2006, respondent no. 4 fixed the petitioner’s salary/ scale of Rs. 5560/- from 1st January 2000 and sent the said document to the Higher Authority.
k) The petitioner sent request letters dated 24th July 2008 and 8th September 2008, to the respondent no. 3 to treat the petitioner as a regularized employee from 1st January 1991, however, the said request was not considered by the respondent..
l) The respondent no. 4 vide order dated 10th July 2012, changed the post of the petitioner from driver to the post of a typist with identical pay grade of Rs. 5200/- -20200/- with a grade pay of Rs. 2400/-.
m) The petitioner’s salary was not being paid from December, 2022 due to which he made a representation vide email dated 12th May 2023, to the respondent for release of his salary. The respondent replied to the said email on 30th May 2023, stating the reason for non-disbursal of the salary to the petitioner.
n) The petitioner again sent representation dated 27th July 2023 to the respondent no.1 for release of his salary and to treat the petitioner as regular employee w.e.f.1991. Since, no response was received from the respondent and being aggrieved by the said inaction of the respondent, the petitioner has approached this Court seeking the reliefs as prayed herein above.
3. Learned counsel for the petitioner submitted that the petitioner has continuously worked with the respondent since the year 1991, hence, he is duly entitled for regularization w.e.f.1991.
4. It is contended that the petitioner has also sent the letter to respondents in regard to the regularization of his service with prospective effect i.e., from 1991 and the same was approved by the Board of Director.
5. It is submitted that the respondent did not take into account that the petitioner is a regular employee of the respondent since the year 1989 and has unjustly granted the status of being a regular employee to the respondent from the year 2005.
6. It is submitted that the petitioner has availed advance loan of Rs. 1,20,000/- from the CP fund, which has to be repaid in 40 equal installments of Rs. 3,000/- per month from his salary as per the loan conditions. The Account department of respondent no. 3 intentionally did not deposit the installment amount in the loan account of petitioner despite the fact that the petitioner has informed to the staff of the concerned department to deposit the loan amount in his account.
7. It is submitted that the petitioner did not get his salary from the year 2022, the petitioner has no source of income except the salary and he is the only person with a source of income in his family.
8. It is submitted that the office order dated 28th January 1991 is an arbitrary order and has wrongly deprived the petitioner from being employed as a regular employee with the petitioner.
9. It is submitted that the said order dated 28th January, 1991 is violative of Article 14, 16, 21 and 39D of the Constitution of India, since, the petitioner performing his duties with the respondents continuously from the year 1989.
10. It is submitted that in view of foregoing reasons, the instant petition may be allowed and the reliefs as prayed by the petitioner may be allowed.
11. Heard learned counsel appearing on behalf of the petitioner and perused the material on record.
12. It is the case of the petitioner that the petitioner being an employee of the respondent no. 3 and working with the respondent no. 3 from the year 1991 is entitled to the regularisation of pay from the year 1991 and not from 1st April 2005, as granted by the respondent no. 3. The petitioner has challenged the order dated 4th July 2007, as per which the petitioner was granted such regularisation.
13. The impugned order has been reproduced herein below:
“Whereas the said Suresh Kumar, Driver was detailed on duty to Delhi on his request considering the ill health of his mother vide order No. 76 per of 2000 dated 1.9.2000.

Whereas the said Suresh Kumar, Driver was transferred from Delhi to Jammu vid.e order No. 108 of 2oo4 dated 30.09.20 04 and, use subsequently received by Delhi office vide No. JKHPMC/Per /14-11/Delhil/398-404 dated 22.9 .2OO4.

Whereas, the said Suresh Kumar failed to join his duties at Jammu and instead approached Hon’ble High Court at Delhi for grant of stay to the order.

Whereas the case of the Driver for his regularization use placed before the 51st meeting of Board of Directors meeting held on 17 .1.2005 who resolved that the regularization of sh. Suresh Kumar, Driver shall be considered only when the Driver joints at Jammu.

Whereas, in pursuance of the court orders the said Driver sh. Suresh Kumar joined his duties at Jammu on 1.4.2005.

Whereas, Board of Directors in its 52nd meeting held on 27.4.2007 approved the regularization of sh. Suresh Kumar as Driver in the pay scale of Rs. 4000-5090 from the date the Driver has joined his services at Jammu.

Now, therefore, sanction is hereby accorded to the regularization of the services of Mr. Suresh Kumar as Driver in the pay scale of Rs. 4000-5090 from the date the driver has joined his services at Jammu i.e. 1 .4.2005 with pay protection. No. JKHPMC/P&A/07/288/2016-20”

14. Upon perusal of the said order, it is observed by this Court that the petitioner was appointed in the year 1989 on contract basis for three years till 1991.Pursuant to which in the year 1991, the said contract was extended for a period of 5 years w.e.f. 1st January 1994. In the year 1998, the petitioner’s appointment on regular basis was placed before the Board of the Directors in the 45th Meeting held on 28th March 1998.
15. The petitioner’s regularization was denied and the appointment of the petitioner was terminated. It was the order of the High Court of Jammu and Kashmir in the writ petition filed by the petitioner that the respondent was directed to maintain status quo regarding petitioner’s employment, hence, the petitioner was not terminated from the employment. Subsequently, the petitioner’s appointment on regular basis was placed before the 51st Meeting of Board of Directors and it was held that the petitioner shall be considered for regularization pursuant to his transfer on 1st April 2005. Thereafter, in the 52nd Board of Directors meeting held on 27th April 2007, the petitioner was granted regularization.
16. It is a well- settled principle of law that the employee of a public authority cannot seek regularization as a matter of right. The same is a discretion in the hands of the employer, irrespective of the fact that the employee has served the employer for a long time. Thus, working with the employee for a long period of time does not crystallize any right in the favour of the employee.
17. The said principle has been enunciated recently by the Hon’ble Supreme Court in the judgment of Ganesh Digambar Jambhrunkar V. State of Maharashtra, SLP (C) No. 2543/20230 dated 12th September 2023, wherein the Hon’ble Court held as follows:
“The issue with which we are concerned in this petition is as to whether by working for a long period of time on contractual basis, the petitioners have acquired any vested legal right to be appointed in the respective posts on regular basis. We appreciate the argument of the petitioners that they have given best part of their life for the said college but so far as law is concerned, we do not find their continuous working has created any legal right in their favour to be absorbed. In the event there was any scheme for such regularization, they could have availed of such scheme but in this case, there seems to be none. We are also apprised that some of the petitioners have applied for appointment through the current recruitment process. The High Court has rejected their claim mainly on the 5 ground that they have no right to seek regularization of their service. We do not think any different view can be taken”

18. Furthermore, this Court will now reiterate the principles enunciated by the Constitution Bench in the judgment of Secretary State of Karnataka v. Umadevi, (2006) 4 SCC 1 as follows:
“43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that 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. The High Courts acting under Article 226 of the Constitution, should not 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, which we have described as “litigious employment” in the earlier part of the judgment, 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.
44. The concept of “equal pay for equal work” is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after Dharwad decision [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality.
45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain—not at arm’s length—since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.
47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.”

19. Now adverting to the facts of the instant case, the petitioner is claiming regularization from the year 1991, however, the respondent has granted the same to the petitioner w.e.f. 1st April 2005. As per the impugned order dated 4th July 2007, the respondent no. 3 has articulated upon reasons for not granting the regularisation to the petitioner in the year 1991. The respondent no. 3 has stated that the petitioner was employed from the year 1989 – 2005 on contractual basis and the same was extended from time to time.
20. The appointment of the petitioner as regularized employee was approved by the 52nd Board of Directors meeting held on 27th April 2007 and accordingly, the respondent no.3 granted the regularization to the petitioner.
21. In view of the foregoing discussion, this Court is of the view that a long duration of working with the respondent no. 3 does not vest any right with the petitioner to be appointed at a regular position. The public authority has discretion to appoint such regularized employee as it deems fit. Moreover, for appointment of an employee at a regularized position, there must be a vacancy for the said position and the authority competent to appoint person for the said position shall appoint a competent person.
22. Accordingly, in the instant case, the respondent no. 3 exercised its discretion for appointment to regularize the employee when the said vacancy arose and with the due authorization from the Board Members of the respondent no. 3. Hence, the respondent no. 3 has rightly granted the regularization to the petitioner w.e.f 1st April 2005.
23. Hence, this Court finds no illegality in the order dated 4th July 2007 passed by the respondent no. 3.
24. The petitioner in the instant matter has also challenged the impugned letter dated 30th May 2023 as per which the petitioner has not been paid salary and the relevant portion has been reproduced herein below:
“In reference to your letter No.Nil Dated 12.05.2023 whereunder inter- alia you have stated that you are not being paid the salary w.e.f. December, 2022 due to the reasons not known to you. It is mention that it has been observed that you have been habitual of creating coins and confusions, as you are well aware inspite of repeated request by the under signed and the many telephonic reminders from the Head Office, you did not bother to submit the correct and factual service particulars and other details, in turns of the corporation, which is mandatory for each &. ever employee of the corporation and need to be uploaded on JKHPM portal after the same is verified and authenticated by the concerned DDO. Thus, you have violated the standing orders in this behalf and warrants administrative action against you. You should also note that there are clear cut instructions from the Govt. of UT of J&K that the salary from the month of October, 2022 should not be disbursed in respect of those employees who have not registered themselves/updated their services details of the designated portal.

Therefore you are advised in your own interests to submit the required factual details, particularly the appointment Gate in tem of corporation order No.26 per of 2007 Dated 04.07.2007 on the prescribed format, so that correct details are uploaded on the designated website, felling which disciplinary action shall be initiated against you under rules.”.

25. Upon perusal of the impugned letter, it is observed that the petitioner has been disbursed his salary since, there is a clear instruction of the respondent no. 3 that from October 2022, the salary of the employees shall not be disbursed who has not registered themselves/updated their services details at the designated portal. The petitioner did not comply with the said order; therefore, his salary was not disbursed.
26. After perusing the aforesaid impugned order/letter, this Court is of the view that the respondent No.3 has only asked the petitioner to furnish the details in the prescribed format and upload the same on the designated website. The petitioner ought to have complied with the instructions/directions as stated in the aforesaid impugned letter. In the said letter, nothing is wrong or illegal that would warrant the scope of judicial review by this Court.
27. In light of the foregoing discussions, this Court is of the view that there is no illegality in granting the regularised service w.e.f. 1st April 2005. Moreover, the petitioner has not been granted salary due to him because he has not provided the information as required and intructed by the respondent, hence, there is no illegality committed by the respondent in not disbursing the salary to the petitioner
28. It is a settled legal proposition that the Court should exercise its power under Article 226 very cautiously and sparingly, and in exceptional circumstances, only in a given case where it is demonstrated that there is something palpably erroneous in the process of recruitment by the statutory authority.
29. In view of the discussions in the foregoing paragraphs, I do not find any merit in the instant petition and the same is liable to be dismissed.
30. Accordingly, the instant petition stands dismissed. Pending applications, if any, also stands dismissed.
31. The order be uploaded on the website forthwith.

CHANDRA DHARI SINGH, J
OCTOBER 6, 2023
pa/db/ryp
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W.P.(C) 13119/2023 Page 1 of 15