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2006 DIGILAW 810 (DEL)

SUBHASH CHAND v. MCD

2006-05-01

SHIV NARAYAN DHINGRA, T.S.THAKUR

body2006
( 1 ) THIS Letters Patent Appeal arises out of an order dated 13th January, 2006, passed by a Learned Single Judge of this Court, whereby a batch of writ petitions has been disposed of with a direction to the MCD to prepare a seniority list of Domestic Breeding Checkers / Health Workers taking into consideration all the relevant materials. An out-break of Dengue in Delhi in the year 1996 appears to have led the respondent, MCD to a decision to engage daily wagers on contract basis for controlling and preventing the disease, which is believed to be caused by mosquito bite. Since the disease had taken the proportion of an epidemic, the mcd appears to have engaged 10,000 workers on contract basis in a short span of time between 19th October, 1996 to 21st October, 1996. No regular selection of these appointed appears to have been conducted by the MCD. Even the records relating to the said selection does not appear to be readily available. The persons who were appointed are said to have worked for two to three weeks during the year 1996. ( 2 ) FOR the following year i. e. 1997 the MCD decided to select 3333 Domestic breeding Checkers for a period of five months again on contract basis on a consolidated salary of Rs. 2,000/- per month. Advertisements appear to have been issued in that regard and the candidates called for interview. Since, however, there were allegations regarding the validity of the said process, the same was cancelled and fresh applications invited from the eligible candidates. A fresh lot of 3333 candidates was, on that basis, selected by the MCD by draw of lots. These appointments and engagements were also made on contract basis only. The petitioners, it is noteworthy, were some of those who were engaged on contract basis in the year 1997. They appear to have filed a batch of writ petitions in this Court seeking a mandamus directing the MCD to prepare a scheme for regularization of their services and to continue them in employment till the time the scheme is finalized. These petitions were dismissed by a learned Single Judge of this Court who held that running a temporary campaigns and engaging health workers for specified terms for the same did not give rise to any question of regularization of such employments. These petitions were dismissed by a learned Single Judge of this Court who held that running a temporary campaigns and engaging health workers for specified terms for the same did not give rise to any question of regularization of such employments. ( 3 ) AGGRIEVED by the above order some of the petitioners preferred Writ Appeal no. 453/2004 which was also dismissed by a Devision Bench of this Court holding that the petitioners had no case for regularization of their services especially when their engagement was temporary in nature and for a specific purpose. According to the Division Bench, there was no similarity between the facts of the case at hand and those relied upon by the petitioners. The division Bench observed that if MCD decided to create any posts for continuance of the campaign in future, the petitioners could also be considered while filling up such vacancies. The controversy regarding regularization was thus given a quietus by the Devision Bench. ( 4 ) SHORTLY thereafter the National Commission for Scheduled Castes appears to have issued a direction to the MCD to prepare a seniority list of Domestic breeding Checkers / Health Workers for future engagement. In compliance with the said order, MCD issued an order dated 1st December, 2005 by which lists of all the Domestic Breeding Checkers / Health Workers working in different zones from 1997 onwards were summoned from the said zones. Aggrieved by the above process of preparation of the list for the period following 1. 1. 1997, a batch of writ petitions were filed by persons who had been engaged prior to the said date. The Grievance of the petitioners in the said petitions was that since they had been appointed before 01. 01. 1997, any list prepared for future engagement could not exclude their names. That their names were being excluded from the list was evidenced by the circular issued by the MCD on 3rd January, 2006. The Grievance of the petitioners in the said petitions was that since they had been appointed before 01. 01. 1997, any list prepared for future engagement could not exclude their names. That their names were being excluded from the list was evidenced by the circular issued by the MCD on 3rd January, 2006. ( 5 ) A learned Single Judge before whom the petitions were assigned has by the impugned order disposed of the above batch of petitions with a direction to the respondent/mcd which reads as under:-"in view of the averments and the submissions, I am of the opinion that the writ petition can be disposed off with the direction to the respondent MCD to take into consideration all the relevant materials including the period or periods of service put in by the petitioner who claim to have been working w. e. f. 19/20th October, 1996 while preparing the final seniority list and also the appropriate place at which the petitioners can be placed. a direction to that effect is accordingly issued". ( 6 ) THE appellants before us who claim to have been appointed after 01. 01. 1997 have assailed the correctness of the above direction. Appearing for the appellants Dr. Surat Singh strenuously argued that the learned Single Judge was not justified in directing preparation of the list from a date previous to 01. 01. 1996 to 01. 01. 1997. He submitted that appointments made in the year 1996 were not legally valid in as much as no process of selection was undertaken by the MCD nor was any qualification prescribed for the said appointments. In contrast, appointments made in the year 1997 were according to the learned counsel legally valid and made on the basis of a comparative assessment of the merits of the candidates. Those like the appellants who had been validly appointed should not, according to the learned counsel be pushed down in seniority by bringing in people who had been appointed on the basis of imperfect process prior to 01. 01. 1997. ( 7 ) WE have given our anxious consideration to the submissions made by the learned counsel but regret our inability to agree with the same. The appointment of domestic Breeding Checkers / Health Workers on contract basis started only on account of an emergency that had arisen because of an epidemic in Delhi. 01. 1997. ( 7 ) WE have given our anxious consideration to the submissions made by the learned counsel but regret our inability to agree with the same. The appointment of domestic Breeding Checkers / Health Workers on contract basis started only on account of an emergency that had arisen because of an epidemic in Delhi. As noticed above, the MCD had to engage within a span of few days 10,000 hands for taking control of the situation that had arisen in the capital city. It is true that no regular selection process was prescribed by the MCD but keeping in view the nature of the problem which was at hand and the magnitude of human resource required to deal with the same, transparent and scientific method of selection of candidates meant to be contract workers for a short period of three to four weeks and employed only to check Domestic Breeding of mosquitoes was perhaps possible. That apart, the selection and engagement of persons like the appellants in the year 1997 was made on no better basis. As noticed earlier, the selection started in the year 1997 was also cancelled on account of allegations of corruption and other irregularities. Three thousand and odd domestic Breeding Checkers were all the same selected on the basis of draw of lots. This method may, according to the appellants, be a valid and transparent method but may still fall short of being a perfect and legally acceptable method for engagement of suitable hands in public employment. Be that as it may, the very nature of the employment being contractual and seasonal in character, there is no question of interfering with the same nor have we been called upon to do so. The short question that falls for our consideration is whether there was no parity between the employment of Domestic Breeding Checkers made in the year 1996 and those made in the year 1997 so as to exclude the former from the so called seniority being drawn up for a possible future engagement. Our answer to that question is in the negative. We do not see any material or qualitative difference between those employed in the year 1996 and others like the appellants employed in the year 1997. Neither the length of service rendered by the appellants nor even the method of their appointment will justify their exclusion from the list. Our answer to that question is in the negative. We do not see any material or qualitative difference between those employed in the year 1996 and others like the appellants employed in the year 1997. Neither the length of service rendered by the appellants nor even the method of their appointment will justify their exclusion from the list. The list as observed earlier is relevant only for purposes of employing health workers on contract / temporary basis in future should the need to do so arise. Employment, so granted does not give any edge to anyone for the purpose to of regularization should any post be created by the MCD. We are not therefore inclined to take a view different from the one taken by the learned Single Judge. ( 8 ) WE may before parting mention that the appeals suffer from a material defect in as much as, instead of impleading all the writ petitioners as party respondents to the appeal, the appellants have impleaded only one of the said petitioners. We fail to see how the respondents / appellants can seek interference with the order which the writ petitioners have secured from the learned Single Judge without impleading all of them as party / respondents in this case. ( 9 ) IN the result this appeal fails and is hereby dismissed but in the circumstances without any orders as to costs. .