* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) No. 13414-25/2005 [ENTITY] Petitioners Through: Mr.[ENTITY], Adv. VERSUS [ENTITY] & Anr. Respondents Through: Mr.[ENTITY], Adv. RESERVED ON: 04.07.2008 DATE OF DECISION: % 28.07.2008 CORAM: Hon'ble Mr.Justice [ENTITY] 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : [ENTITY], J.
1. Marching under the banner of Delhi University and College Karamchari Union, 12 persons have filed the aforesaid petition praying that order dated 14.5.2005 terminating their services be quashed. The petitioners pray that they be reinstated in service under respondent No.2, Lady Irwin College. [ENTITY] has been impleaded as respondent No.1 for the reason the college is affiliated to the [ENTITY].
2. These 12 persons were initially appointed as temporary employees and later on as probationers on various dates against various posts. The details of the post held and the period of appointment is as under:-
Sl. Name Posts Date of Date of No. Appointment Appointment TEMPORARY PROBATION 1. Smt. [ENTITY] 15.03.04 & 07.07.04 [ENTITY] 13.06.04 2. Smt.[ENTITY] 07.07.04 a Devi 3. Smt. [ENTITY] 15.03.04 & 07.07.04 bearer/helper 13.06.04 4. Santosh Office 21.02.03 25.05.04 Kumar attendant [ENTITY] 5. Bijendra Lab. 03.09.04 [ENTITY] attendant 6. [ENTITY] 21.02.03 11.12.03 [ENTITY] 7. [ENTITY] 21.02.03 03.09.04 [ENTITY] 8. [ENTITY] 21.02.03 05.04.04 [ENTITY] 9. [ENTITY] 21.02.03 26.08.04 [ENTITY] 10. [ENTITY] 04.03.04 & 18.08.04 Bahadur 07.06.04 11. [ENTITY] 21.02.03 03.09.04 [ENTITY] 12. Manish Library 04.03.04 & 18.08.04 Kumar Attendent 07.06.04
3. Needless to state each post against which petitioner worked is a non-teaching post.
4. Relevant portion of the order dated 14.5.2005 terminating the service of the petitioner(s) reads as under:-
"Your said appointment is governed, inter-alia, by the [ACT].
Being a constituent college of the [ENTITY], College gets grants from University Grants Commission (UGC) to meet its expenses and is bound by the directions issued by UGC as well as Delhi University.
As you are appointed on probation and have not completed one year's service, therefore, you continue to be on probation.
We regret to inform you that your services are hereby terminated with immediate effect. One month's salary in lieu of notice is being paid to you.
Even though your said termination does not amount to retrenchment as defined in [SECTION] of the [ACT] but as a matter of abundant precaution you are being paid 15 days salary as retrenchment compensation. A sum of Rs. 8775.00 has been deposited to your Account No. maintained at Syndicate Bank (EC) which comprises of
(a) one month's salary in lieu of notice and (b) 15 days salary as retrenchment compensation.
We would also like to mention that when you were appointed, there was no post of in the College. Recruitment of the non teaching staff was already banned by UGC vide the letter DO No. F.7- 8/99(CCP-II) dated 31 st August, 1999. By the said letter, UGC has also banned creation of new posts. College has approached the [ENTITY] as well as UGC and sought sanction of the posts of the non teaching staff. it is regretted that UGC vide its letter F.No.6-1/2003(DC) dated 17th January, 2005 informed the college about the ban on filling of non-teaching posts and further directed the college not to fill up any post till the ban is lifted. The University, vide its letter dated 9th February, 2005, advised the college that in view of the ban imposed by UGC, it cannot regularise/approve any such appointments. Under these circumstances the college therefore, cannot retain you in services."
5. The ban imposed upon by UGC vide its letter dated 31.8.1999 referred to in the letter afore-noted is contained in UGC's letter No.F.7-8/99(CCP-II). Relevant part whereof reads as under:-
" all these measures are MANDATORY and are required to be implemented COMPULSORILY, with immediate effect. The Vice Chancellors/Registerors will be held personally responsible for non compliance of these measures in Universities and principals in case of Colleges.
1. ban on creation of plan and non plan posts the existing ban on creation of non plan posts will continue and should be strictly enforced.
2. ban on filling up of vacant posts Every University/College shall undertake a review of all the posts, which are lying vacant TILL THE REVIEW IS COMPLETED, NO VACANT POSTS SHALL BE FILLED UP EXCEPT WITH THE APPROVAL OF THE UNIVERSITY GRANT COMMISSION "
6. Though petitioners have urged various contentions in the writ petition including the plea that having worked for over one year and there being necessity of employment, in that, the job requirement was perennial in nature and hence petitioners are entitled to be made permanent under the college, in view of the decision of the Hon'ble Supreme Court reported as Secretary, State of Karnataka & Ors. vs. [ENTITY] & Ors. 2006 (4) SCC 1, at the hearing held on 4.7.2008, learned counsel for the petitioners gave up said plea but restricted the challenge to the plea of discrimination and violation of the last come first go principle. It was urged that while terminating the services of the petitioners the college retained persons appointed much after the petitioners.
7. Further facts pertaining to the plea urged are thus being noted.
8. According to the petitioners, whereas their services were dispensed with on the plea that the University Grants Commission banned creating new posts or recruiting new non- teaching staff as per its directive dated 31.8.1999, unexplainably other persons were retained in employment.
9. Unfortunately, the aforesaid plea raised in the writ petition has not been made good in the writ petition with reference to the names of the persons so retained in service.
10. In the counter affidavit filed by the college reliance has been placed upon the directive issued by the UGC. It has further been explained that UGC raised objections to the appointment of persons post 31.8.1999 without new posts being created. Reference has been made in the counter affidavit to various letter addressed by the UGC pointing out the illegality in the appointment made. Reference has also been made to letters written by the [ENTITY] directing the principal of the college to strictly comply with the directives issued by the UGC.
11. In the rejoinder filed, petitioners urged that the college was using the UGC directive dated 31.8.1999 as a shield. It has been pleaded that the principal of the college is acting mala fide. It has been pleaded in the rejoinder that after terminating the services of the petitioners, on 7.6.2005 the principal issued a hand-written note stating that persons who want to work within the college or outside the college may contact the director immediately. The said hand-written note has been annexed as Annexure P-7 along with the rejoinder affidavit. Additionally, an order dated 8.6.2005 under the signatures of the principal of the college, Dr.[ENTITY] has been relied upon as Annexure P-8 which reads as under:-
ATTENTION The following persons are hereby informed that they may join duties 'on daily wages' with immediate effect and report to the Section Officer Administration of the College.
1. Mr.[ENTITY] ([ENTITY])
2. Mr.[ENTITY] ([ENTITY])
3. Mr.[ENTITY] ([ENTITY])
4. Ms.[ENTITY] ([ENTITY])
5. Mr.[ENTITY] ([ENTITY])
6. Mr.[ENTITY] ([ENTITY])
7. Mr.[ENTITY] ([ENTITY])
8. Mr.[ENTITY] ([ENTITY])
9. Mr.[ENTITY] ([ENTITY])
10. Mr.[ENTITY] (Mali)
11. Mr.[ENTITY] (Mali)
12. Mr.[ENTITY] (Mali)
13. Mr.[ENTITY] (Office Attendant)
14. Mr.[ENTITY] (Office Attendant) Sd/-
Dr.[ENTITY]"
12. Responding to the additional affidavit, Dr.[ENTITY], Principal-cum-Director of the college has explained Annexure P-7 by stating that a group called Group-S4, concerned with recruitment and employment, had some vacancies. That she knew the said group and with a view to provide alternative jobs to not only the petitioners but the other similarly situated employees she had sent out the hand- written note Annexure P-7.
13. Surprisingly enough, in her additional affidavit Dr.[ENTITY] has not explained Annexure P-8 filed by the petitioners along with the rejoinder affidavit.
14. Petitioners have responded to the additional affidavit filed by Dr.[ENTITY] responding to the petitioners' averments in the rejoinder affidavit. To put it briefly, in the said additional affidavit filed in response to the additional affidavit filed by the Principal of the College further documents have been annexed showing that salary and wages are being paid to the persons employed vide order dated 8.6.2005 annexed as Annexure P-8 to the rejoinder affidavit filed by the petitioners.
15. The factual narration of the relevant facts herein above noted prima facie establishes an attitude of highhandedness and hire & fire being adopted in the respondent No.2 college. It is interesting to note that when services of the petitioners were dispensed with the erstwhile principal had retired and a new principal Dr.[ENTITY] had taken over.
16. It smells of nepotism. It gives rise to a grave suspicion that the new principal wanted to create her own fiefdom.
17. Why I say so?
18. Annexure P-8 filed by the petitioners along with the rejoinder affidavit has not been explained by the principal of the college when she filed the additional affidavit on 24.3.2007 responding to the pleas urged in the rejoinder affidavit. As noted herein above, the principal of the college explained Annexure P-7, the hand-written note issued by her on 7.6.2005. She had an opportunity to explain Annexure P-8, the order dated 8.6.2005. She has explained why 14 persons were employed at daily wage basis to various posts in the college.
19. I am conscious of the fact that out of 14 persons appointed on daily wage basis 5 were employed as safai karamcharis, 4 were employed as chowkidars, 3 as gardeners and 2 as office attendants and that not all petitioners were employed to said posts. But, Smt.[ENTITY], [ENTITY], [ENTITY], [ENTITY], all petitioners were working as safai karamcharis when their services were dispensed with. Similarly, [ENTITY], another petitioner was deployed as a gardener. Further, petitioner [ENTITY] was deployed as a chowkidar and petitioner [ENTITY] was deployed as an office attendant. At least, said petitioners could have been continued in services if not other petitioners who were employed as laboratory attendant, library attendant and hostel helper.
20. In the decision reported as [PRECEDENT], a Division Bench of the Hon'ble Supreme Court cautioned the Courts that its decision in [ENTITY]'s case (supra) has not be applied mechanically as if it were a Euclid's formula. The Hon'ble Supreme Court cautioned the Courts that individual facts of each case has to be seen.
21. In said decision, Hon'ble Supreme Court drew attention to its earlier decision reported as AIR 1978 SC 597 [ENTITY] vs. UOI which held that reasonableness and non-arbitrariness is a part of [SECTION] of the [ACT] and that there could not be arbitrariness in State action. The Hon'ble Supreme Court noted that [ENTITY]'s case (supra) did not deal with the issue of regularization of services of employees, but held that the principle of reasonableness in executive action is of general application.
22. What more unreasonableness can be found in the action of the principal of the college who disengaged the petitioners on the plea that their employment by the erstwhile principal was in violation of the directive issued by UGC on 31.8.1999 and that there were no posts against which petitioners were employed. Surprisingly enough, within about an year, on 8.6.2005, during pendency of the instant writ petition, 14 persons were re-engaged as daily wagers. I repeat, in spite of availing an opportunity the principal has not explained the circumstances under which she issued the office order dated 8.6.2005
23. It is obviously a case of resorting to hire and fire. It is a case where the UGC directive is being used as a shield to non-suit the petitioners but at the same time give employment to other persons.
24. In the decision reported as 1992 (4) SCC 118 State of Haryana vs. [ENTITY], the Hon'ble Supreme Court noted with regret that ad-hoc, casual and daily wage employment had given rise to back-door entries in employment for monetary consideration. This was the reason, in said decision, the Hon'ble Supreme Court laid emphasis on employment being resorted to by notifying applications from the name registered with the employment exchange and by public notice.
25. Instant case shows that the malady noted by the Hon'ble Supreme Court in [ENTITY]'s case (supra) continues to plaque public employment. Annexure P-8 is a living example thereof.
26. I see no reason why safai karamchari's, chowkidars, malis and office attendant taken on daily wage basis on 8.6.2005 should continue at the cost of the petitioners who had been employed in the college but by the erstwhile principal.
27. Unfortunately, neither counsel could throw much light on the fate of the 14 persons employed vide Annexure P-
28. The petitioners would thus be entitled to the minimum relief that henceforth, whenever the college requires additional hands on daily wage, ad-hoc or temporary basis first offer would be made to the petitioners and only in the event petitioners refuse the same would the college resort to employment of any other person.
29. In the facts and circumstances of the case I hold that the petitioners would be entitled to cost which I assess in sum of Rs.10,000/-. Cost shall be paid by the second respondent.
([ENTITY]) JUDGE July 28, 2008 dk"