MAHENDRA SINGH  Vs ENERGY EFFICIENCY SERVICES LTD

LPA 307/2020 Page 1 of 5
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ LPA 307/2020 & CM No.26341/2020 (for stay)

MAHENDRA SINGH & ORS ….. Appellants
Through: Mr. Prashant Bhushan, Mr. Biraja
Mahapatra, Ms. Alice Raj and Mr.
Rahul Gupta, Advs.

Versus

ENERGY EFFICIENCY SERVICES LTD. & ANR ….. Respon dents
Through: Mr. Raman Kapur, Sr. Adv. with Mr.
Samdarshi Sanjay and Mr. Varun
Kapur, Advs. for R-1.
Mr. Anil Soni, Adv. for R-2/UOI.
CORAM:
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON’BLE MR. JUSTICE SANJEEV NARULA
O R D E R
% 08.01.2021
[VIA VIDEO CONFERENCING]

1. The appeal impugns the order dated 12 th October, 2020 of the Single
Judge, of dismissal of W.P.(C) No.7797/2020 filed b y the appellants along
with several others, impugning the advertisement da ted 15 th October, 2019
issued by the respondent No.1 Energy Efficiency Ser vices Ltd. (EESL) and
seeking mandamus, directing the respondent No.1 EES L to absorb the
appellants and other petitioners in regular positio ns, after declaring the result
of the interviews held between 24 th June and 26 th June, 2019 and the non-
executive petitioners, on the basis of Annual Confi dential Reports.
2. The Single Judge, finding that the impugned adve rtisement was issued
on 15 th October, 2019 and the writ petition impugning the same had been
2021:DHC:70-DBLPA 307/2020 Page 2 of 5
filed on 28 th September, 2020 i.e. after the recruitment process in pursuance
to the impugned advertisement had begun and was at an advanced stage,
vide the impugned order/judgment has dismissed the writ petition as barred
by delay and laches.
3. It was inter alia the case of the appellants and the other petitioner s in
the writ petition, (i) that they were employed with the respondent EESL as
fixed tenure employees; (ii) that they, at the time of filing of the writ
petition, had been working with the respondent EESL for about 3 to 4 years
and that there was a policy for regularising them, but they had not been
regularised; (iii) that without regularising the ap pellants and the other
petitioners, the respondent EESL had vide the impug ned advertisement
commenced the process of recruiting fresh employees and which the
respondent EESL was not entitled to, without consid ering the appellants and
other petitioners for recruitment; and, (iv) that a dditionally, as aforesaid,
mandamus for regularisation of the appellants and t he other petitioners was
sought.
4. The appeal came up before this Court first on 16th October, 2020,
when notice thereof was ordered to be issued and th e examination in
pursuance to the impugned advertisement was permitt ed to be held subject
to the outcome of this appeal.
5. From a reading of the impugned order, it appears that the only relief
claimed in the writ petition was of impugning the r ecruitment advertisement.
We have thus asked the counsel for the appellants a nd other petitioners, the
locus of the appellants and other petitioners to im pugn the recruitment
advertisement and process and further enquired, whe ther not the remedy of
the appellants and the other petitioners was to see k the relief of
2021:DHC:70-DBLPA 307/2020 Page 3 of 5
regularisation.
6. The counsel for the appellants states that the a ppellants are not just
impugning the advertisement but are also seeking th e relief of regularisation
of the appellants and the other petitioners and has drawn our attention to the
second relief claimed in the writ petition.
7. We have next enquired from the counsel from the appellants, whether
the appellants and other petitioners are ‘workmen’, inasmuch as, if they are
covered by the Industrial Disputes Act, 1947, their remedy would be before
the Labour Court / Central Government Industrial Tr ibunal (CGIT).
8. The counsel for the appellants states that neith er the appellants nor the
other petitioners fall in the definition of ‘workme n’.
9. We have in the circumstances, enquired the stand of the respondent
EESL.
10. The senior counsel for the respondent EESL has drawn our attention
to the recruitment policy of the respondent EESL an d on a reading whereof,
it transpires that in the modes of recruitment prov ided therein, the mode of
recruitment for fixed tenure does not exist. The s enior counsel for the
respondent EESL has however drawn our attention to the EESL Service
Rules for Fixed Tenure Employees, which provides fo r recruitment for fixed
tenure for four and a half years. Attention has al so been invited to the
Recruitment Policy of the respondent EESL where a p rovision is made for
absorption of the fixed tenure employees.
11. We have next asked the senior counsel for the r espondent EESL, why
the mode of appointment admittedly contained in the recruitment policy, of
absorption of fixed tenure employees, has not been undertaken and whether
the appellants and the other petitioners have been considered for absorption.
2021:DHC:70-DBLPA 307/2020 Page 4 of 5
12. The senior counsel for the respondent EESL stat es that the respondent
EESL was in the process of such consideration but w as instructed by the
Chief Vigilance Officer, to conduct the recruitment on all-India basis and in
pursuance whereto the respondent EESL scheduled the examination,
impugning which the writ petition was filed. He al so states that save for
one, all the other petitioners in the writ petition have participated in the
recruitment process.
13. We may in this context notice that the petition ers, in the writ petition,
though have also claimed the relief of regularisati on but interestingly, not
independently, but “after declaring the results of the interviews held between
June, 24 and 26, 2019”. We have enquired from the counsel for the
appellants, whether the said interviews undertaken by the writ petitioners
were pursuant to the impugned advertisement.
14. The counsel for the appellants states that the said interviews were not
held as part of the recruitment under the impugned advertisement but in
pursuance to the proposal for absorption of the fix ed tenure employees,
earlier undertaken by the respondent EESL vis-a-vis the writ petitioners.
15. We also find that the Single Judge, in paragrap h 3 of the judgment,
has also referred to the interviews for regularisat ion but not dealt with the
same. We are of the view that only the first relie f claimed in the writ
petition, of impugning the advertisement, could hav e been held to be barred
by delay and laches and not the relief of regularis ation, since the writ
petitioners continued to be in the employment, thou gh fixed tenure, of the
respondent EESL and remained entitled to seek regul arisation.
16. The said aspect having not been dealt with by t he Single Judge, we
have enquired from the counsels, whether they conse nt to our considering
2021:DHC:70-DBLPA 307/2020 Page 5 of 5
the said aspect for the first time in appeal.
17. While the counsel for the appellants and the ot her petitioners
consents, the senior counsel for the respondent EES L, under instructions,
states that since the writ petition was dismissed o n the very first date, no
counter affidavit was filed and opportunity to file counter affidavit be given
and the matter be remanded to the Single Judge for consideration of the
second relief.
18. The appeal, to that extent is accordingly allow ed, without disturbing
the judgment of the Single Judge to the extent dism issing the writ petition as
barred by delay and laches qua the first relief of impugning the recruitment
advertisement dated 15 th October, 2019. The writ petition is remanded to
the Single Judge, for adjudication in accordance wi th law, of the second
relief claimed in the writ petition.
19. The appeal is disposed of.
20. The writ petition being W.P.(C) No.7797/2020 be listed before the
Single Judge on 11 th February, 2021.
21. The respondent EESL to have the counter affidav it to the writ petition
placed on record before that date.
22. It is clarified that the interim order dated 16th October, 2020 in this
appeal also lapses on the decision of this appeal.

RAJIV SAHAI ENDLAW, J.

SANJEEV NARULA, J.
JANUARY 8, 2021/ ‘bs’
2021:DHC:70-DB