The Delhi High Court has reiterated that an unqualified person given an ad-hoc appointment can't claim right to continue.
Brief Facts of the Case
In the instant case, the petitioner was employed as a caretaker by
the respondent. The petitioner had applied to the said post through the
advertisement issued by the respondent
with the prescribed qualifications for the post. However, pursuant to
the same advertisement, there was no selection carried out and the
advertisement lapsed after the expiry of 18 months.
The respondents thereafter issued a memorandum appointing the petitioner to the said position on daily wages for three months. This was followed by a series of memos whereby his appointment was continued from time to time by ad-hoc appointments. Subsequently, another advertisement for the position of the caretaker was notified and the petitioner applied for the same. The petitioner then requested the respondents for regularisation of his services as well as for annual increments. On the same day, the college advertised a call for applications for recruitment for various positions including that of a caretaker. Subsequently, in the meeting of the governing body, it was recommended to appoint the petitioner on a purely ad-hoc basis and he is asked to undergo training in electricity and sanitation within one year.
The petitioner then approached the court praying for his regularisation. However, the said petition was disposed of and it was held that his services could not be regularised because the appointment of the petitioner was not according to the advertisement. The respondents therein were accordingly asked to take a decision, on the suitability of the petitioner to the post and whether to continue him in service, within two months. Aggrieved by the said judgement the petitioner by way of Letter Patents Appeal approached a Division Bench of the Court, which was ultimately dismissed as withdrawn. During the pendency of the said appeal, the respondents issued a letter to the petitioner, whereby the services of the petitioner as Caretaker were terminated.
The learned counsel appearing for the petitioner contended that the termination order issued on the part of the respondent was illegal, arbitrary, malafide, discriminatory, and unjust. Furthermore, the order was passed even though the post advertised initially was reserved for scheduled caste candidates and appointments on regular basis and then terminated the services of the petitioner after 8 years on the erroneous ground that the petitioner has not qualified even though he had already acquired the said qualification, in violation of the settled position in law and principles of equity, justice and good conscience and infringement of the legal and fundamental rights of the petitioner.
The learned counsel appearing for the respondent vehemently opposed the instant petition and the contentions made therein and submitted that the petition is not maintainable as the petitioner was employed as a Caretaker in the respondent College, and as such is a "workman" as defined in Section 2(s) of the Industrial Disputes Act while the respondent College is an "industry" as defined in Section 2(j) of the Industrial Disputes Act which itself provides an efficacious remedy.
Furthermore, he contended that the petitioner did not furnish any proof of having acquired the said qualification. Additionally, he laid down various factors to be taken into consideration while granting relief, in case the court holds its opinion against the college. The primary contention was that the petitioner was on probation. This had no right to post. Furthermore, in such cases, the courts have been granting compensation instead of reinstatement as has been given in various judgements of Regional Manager LIC vs. Dinesh Singh, Deputy Executive Engineer vs. Kuber Bhai Kangi Bhai, and District Development Officers and Ors vs. Satish Kanti Lai Amrela respectively. He further highlighted that the Post of Caretaker ceased to exist after the implementation of the Pay Commissioner, it was decided by Govt. of India to merge posts of Caretaker in the General Ministerial Cadre in the corresponding scale. Hence, duties of the erstwhile post of Caretaker are now the duties of Jr. Assistant and are being performed by one of the Jr. assistants.
High Court’s Observation
The court primarily answered the question of the maintainability of the petition challenged by the respondents. With regards to the question of applicability, reference was made to the decision of the Constitution Bench in Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra &Ors. wherein it was held that res judicata is applicable even in writ petitions. Furthermore, the court noted that the issue in the earlier writ petition was limited to the question of regularisation of the petitioner, and pending appeal the termination order that is the root of the instant petition was carried out, therefore the argument of the instant petition being barred by res judicata holds no ground.
Addressing the second contention regarding whether an alternate
remedy is a bar to the entertainment of Writ Petition by the High Court,
the court noted that although Court, it is
settled law that in the ordinary course, the High Court would not
exercise its writ jurisdiction under Article 226 of the Constitution if
an effective and efficacious alternate remedy is available. However, it
is also established that the existence of an alternate remedy does not
by itself bar the High Court from exercising its jurisdiction in certain
contingencies.
The same has been reiterated and highlighted by the Hon’ble Supreme Court in various judgements including in the landmark case of Whirlpool Corporation. v. Registrar of Trade Marks and M/s. Radha Krishan Industries Vs. State of Himachal Pradesh, 2021 Latest Caselaw 214 SC respectively. Given the aforesaid, the court noted that the contention's qua maintainability and the arguments raised by the respondents in their support do not find favour in this Court and are accordingly rejected.
Perusing the records and analysing the facts of the case at hand, the court observed that the petitioner did not meet the qualification criteria and necessary certification. Despite the opportunities granted, he failed to undergo the requisite professional or skill-based training and failed to furnish the certificate for the same. Moreover, they stated that employees on daily wages or appointed on an ad-hoc basis cannot be recruited for positions that they are ineligible for.
Subsequently, the court also noted that even though the termination
of his services did not amount to retrenchment, the respondent College
issued a Cheque in the favour of the
petitioner for a sum of Rs.11,731/- to cover retrenchment compensation and one month’s salary in lieu of notice.
In light of the foregoing discussion and analysis, the court noted no cogent reasons to entertain the petition and allow the prayers sought therein. Hence, In the aforesaid terms, the instant petition, being devoid of merits was dismissed by the court.
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(With input from news agency language)
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