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2012 DIGILAW 2957 (DEL)

Basudeb Roy v. National Fertilizer Limited

2012-10-19

RAJIV SAHAI ENDLAW

body2012
JUDGMENT : Rajiv Sahai Endlaw, J. 1. None appears for the petitioner. However considering that the writ petition is of the year 1999 and the petitioner has been enjoying an interim order, it is not deemed expedient to await the petitioner any further and with the help of the counsel for the respondent the records have been perused. 2. This petition was filed claiming that the petitioner, belonging to the Scheduled Caste, had been working with the respondent since December, 1994 as an Accounts Clerk ,in the Office of the respondent earlier situated at Community Centre, East of Kailash, New Delhi and subsequently at Noida; that though the respondent has a regular post of Accounts Clerk at various offices and is obliged to make appointment to the said post on regular basis, but to escape its legal liability to pay proper pay scale and benefits to the employees was engaging them through contract labour in violation of the provisions of the Contract Labour (Regulation and Abolition) Act, 1970; that the petitioner also, was in December, 1994 employed through a contractor M/s Gopal Singh in the office of the respondent at Vijaypur (Guna), Madhya Pradesh, Unit and such appointment through the contractor continued till September, 1997; however since the contractor was not paying proper salary, the petitioner left the said contractor’s appointment; that upon learning that the Central Marketing Office of the respondent at New Delhi had vacancy for Accounts Clerk, the petitioner applied but the respondent instead of considering and appointing him on regular post appointed him on casual basis as Accounts Clerk at the Central Marketing Office at East of Kailash, New Delhi on 21st October, 1997 at a monthly salary of Rs.1,800/-; however no appointment letter was issued; that the petitioner thereafter was working directly under the respondent as Accounts Clerk at a monthly salary of Rs.1,800/-; however neither his attendance was marked nor was he given any other benefits; that though there were vacant posts of Accounts Clerk since 1997 but no regular appointment thereto was being made. This writ petition was filed in or about April, 1999 averring that the respondent was likely to fill the vacancies on the post of Accounts Clerk and consequently likely to terminate the services of the petitioner and seeking the relief of regularization of his services in appropriate pay scale and seeking further directions to the respondent to pay arrears of proper salary and other benefits to the petitioner since December, 1994. 3. Notice of the petition was issued on 30th April, 1999 and vide ex parte order of that date the respondent was restrained from terminating the services of the petitioner till further orders. The said interim order was continued from time to time and was made absolute on 18th October, 2000 when Rule was issued in the petition. 4. The respondent filed a counter affidavit pleading that it is a Government of India Undertaking; that the petitioner was engaged for the first time on 21st October, 1997 on temporary basis on consolidated salary of Rs.1,800/-; that his employment was of purely temporary nature, dependent on availability of work; that for recruitment of employees the respondent has to follow its procedure for recruitment contained in the Personnel Manual of the respondent; that merely possessing the requisite qualification for the post of Accounts Clerk does not make the petitioner eligible for recruitment in as much as for the same the method and procedure of recruitment as applicable, has to be followed; it was denied that the petitioner was employed since the year 1994 or through a contractor as claimed by him. It was further pleaded that the respondent as per exigencies of work engages employees on temporary or ad-hoc basis; that there was no need for a permanent Accounts Clerk in the year 1997 and the need therefore had arisen in the year 1999 only when applications for the said post had been invited by publishing advertisements in newspapers and the petitioner if eligible was free to apply thereunder. It was yet further pleaded that the documents filed by the petitioner himself along with the writ petition showed that the qualification as a graduate in Commerce requisite for the post of Accounts Clerk, claimed by the petitioner was from the University of Calcutta of the year 1992 but “without division”. 5. The petitioner filed rejoinder to the aforesaid counter affidavit. 6. 5. The petitioner filed rejoinder to the aforesaid counter affidavit. 6. The petitioner filed CM No.1630/2001 seeking direction to the respondent to pay equal pay for equal work or at least the minimum wages. However vide order dated 13th January, 2003 it was observed that granting such a relief would tantamount to virtually allowing the writ petition and the said application was deferred for hearing along with the writ petition. 7. The writ petition however continued to languish and was adjourned from time to time on request of the counsels. On 2nd August, 2006 the counsel for the respondent pointed out that the matter was covered by the judgment of the Constitution Bench in Secretary, State of Karnataka Vs. Umadevi 2006 (4) SCC 1 ; however the counsel for the petitioner sought adjournment and the matter continued to languish. On 15th September, 2006 the petitioner renewed his request for minimum wages. On 26th February, 2009 when again the counsel for the petitioner was confronted with the judgment of the Supreme Court in Umadevi, he sought time to study the same. The order dated 15th December, 2009 records that the petitioner was handed over a cheque for Rs.1,00,748.68p on account of arrears of difference in wages which he was getting and the minimum wages to which he was entitled. The counsel for the petitioner however again sought adjournment. 8. The counsel for the respondent has today argued that the matter is not only covered by Umadevi supra but also by the subsequent judgment of the Supreme Court in National Fertilizers Ltd. Vs. Somvir Singh (2006) 5 SCC 493 pertaining to the respondent itself. 9. Though the arguments in writing of the petitioner are on the file but the same are of a date prior to the pronouncement of the Constitution Bench in Umadevi and thus need is not felt to refer to the contentions raised therein. 10. The Supreme Court, in the judgments aforesaid has held that regularization is not a mode of appointment and if the appointment is made without following the Rules, the same being a nullity, the question of regularization of the employee would not arise. The admission by the respondent, of the temporary employment of the petitioner prior to the filing of the petition, is of just over a year. The admission by the respondent, of the temporary employment of the petitioner prior to the filing of the petition, is of just over a year. Though the petitioner has averred employment with the respondent through contractor since the year 1994 but is not found to have placed any document in support thereof before this Court. Though the petitioner undoubtedly has since then continued in employment with the respondent for the last over 12 years but under interim orders in this petition and the same cannot create any equities in favour of the petitioner. Rather a perusal of the order sheet shows that it was the petitioner who was mostly seeking adjournments in the writ petition and responsible for the long time for which the petition has remained pending in this Court inspite of the judgment in Umadevi having been brought to the notice immediately after pronouncement. The relief claimed by the petitioner is in the teeth of the judgment in Umadevi and cannot be granted. 11. Though the counsel for the respondent has also drawn attention to the advertisement inviting applications for the post of Accounts Clerk, prescribing a qualification of B.Com. with minimum of 50% marks and for Scheduled Caste category 45% marks, but the said advertisement is of the year 2009 and the counsel is not able to show that the said requirement existed in the year 1997 also. 12. What this Court finds strange in the present case is that the petitioner, after obtaining the interim order, sat satisfied and did not make any attempt to participate in the selection process admittedly undertaken by the respondent for the said post. Though the petitioner in his application being CM no.1630/2001 had made an averment that he had applied for the post of Accounts Clerk with the respondent in the year 1997 under the Scheduled Caste category but was not even called for an interview but the respondent in reply thereto stated that the petitioner was not considered for selection since he was not meeting the grade to grade specifications for the post. The fact remains that the petitioner did not challenge the said rejection. 13. No merit is thus found in this petition; the same is dismissed. Needless to state interim order stands vacated. No costs.