IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SERVICE MATTER W.P. (C) No. 2222/2003 & CM No.4818/2005 Reserved on : 22.11.2007 Date of decision : 28.11.2007 IN THE MATTER OF : Dr. Virender Kumar Darall... Petitioner. Through Mr.Rajesh Tyagi with Dr.Aparna Bhardwaj, Advocates. Versus D.S.P.C.A. & Ors.... Respondents. Through Mr.V.K. Shali, Advocate. HIMA KOHLI, J 1. The present writ petition has been filed by the petitioner herein challenging the order dated 27.2.2003 passed by the respondent no.1. (hereinafter referred to as the respondent society ) by which it was decided to dispense with the services of the petitioner with immediate effect. 2. Stated in a nutshell, facts of the case are that the petitioner was appointed to the post of Veterinary Assistant Surgeon in the respondent society vide appointment letter dated 14.5.1999, on contract basis for a period of one year WP(C) No.2222 of 2003 Page No.1 of 10
at fixed emoluments of Rs. 8,000/- per month. The contract was renewable after one year on assessment of the performance of the petitioner by the respondent society. Thereafter, vide letter dated 7.5.2000, the tenure of the petitioner was extended on contract basis, for a further period up to 31.8.2000 or till such time a regular Veterinary Doctor on deputation from the Animal Husbandry Department, Govt. of Delhi was posted, but he was allowed to so continue even after the expiry of the said period. 3. In the year 2002, on an apprehension that his services were likely to be terminated, the petitioner filed a writ petition in this Court being W.P.(C) No. 2896/2002, praying inter alia for directions to the respondent society that his services be not terminated till the regular appointment of the doctors working in respondent society is not made by the Government of Delhi. Vide order dated 9.5.2002, the Court passed an ad interim order restraining the respondent society from dispensing with the services of the petitioner and while disposing of the said petition, vide judgment dated 30.1.2003, took note of the fact that since the respondent society had created another post at the Tis Hazari Dispensary to accommodate one Mr. Pannikar and since there was one more post on which the petitioner was continuing, the services of the petitioner were directed to be continued by the respondents till a conscious decision was taken by them regarding the tenure and currency of the post held by the petitioner or till the same is filled WP(C) No.2222 of 2003 Page No.2 of 10
up by a regular doctor on deputation basis, if permissible under the Rules. Thereafter, by the impugned order dated 27.2.2003, the respondent society after convening a meeting of the S.P.C.A. Board, dispensed with the services of the petitioner w.e.f. 28.2.2003. 4. Challenging the aforesaid impugned order passed by the respondent society, the learned counsel for the petitioner submitted that to term the appointment of the petitioner as contractual, was a sham and in fact the only mode of appointment in the respondent no.1, was the mode of contractual appointment and reference was made to an Office Order dated 5.4.2002 to claim that indeed taking personnel on deputation was a temporary/ad hoc procedure of making appointments in the respondent society and that the normal mode was of making contractual appointments, there being no recruitment rules existing in the respondent society for the post in question. It was submitted that the post at which the petitioner was appointed is a sanctioned post, and therefore the act of the respondent society in terminating his services on the ground that they were contractual in nature, was illegal and arbitrary. 5. Reliance was placed on Rule 4 of the Rules of Payment of Grant-in- Aid to Delhi S.P.C.A. (hereinafter referred to as the Rules ) to contend that it only requires the respondent society to take on deputation one doctor, i.e., the Chief WP(C) No.2222 of 2003 Page No.3 of 10
Veterinary Officer from the Animal Husbandry Department of the Govt. of NCT of Delhi and that since the petitioner was working on the post of Veterinary Assistant Surgeon, while the Chief Veterinary Officer was already working on deputation from the Animal Husbandry Department Govt. of NCT of Delhi, as such there is no requirement for filling up the other post of doctor by way of deputation or any other mode, even in terms of the Rules. 6. Lastly, it was averred that the termination order of the petitioner was bad also for the reason that it was not a conscious decision as required to be taken by the judgment dated 30.1.2003 in WP (C) No.2896/2002. 7. On the other hand, learned counsel for the respondent society submitted at the very outset that since the petitioner was appointed only on contractual basis, he had no right to the post as such and was not entitled to be regularized, and nor was the respondent under any obligation to retain the petitioner in service, till a regular appointment is made. Reliance was placed on the judgment rendered by the Supreme Court in the case of Secretary, State of Karnataka and Ors. v. Umadevi & Ors., reported in (2006) 4 SCC 1. 8. It was further submitted that there were only two posts of doctors in the S.P.C.A., which was erroneously recorded as three posts in the judgment dated WP(C) No.2222 of 2003 Page No.4 of 10
31.1.2003, and that the said two posts were required to be filled up by doctors sent on deputation by the Animal Husbandry Department of the Govt. of NCT of Delhi. It was also stated that the procedure for appointing a candidate on deputation requires an advertisement to be published, acting on which the candidate must apply, and the candidate can be appointed only with the consent of the loaner department as also that of the loanee department, and that it was only when no candidate was available for being appointed by adopting the mode of deputation, that the respondent society appointed the petitioner on a contractual basis, in view of administrative exigencies. 9. I have heard the rival contentions of both the parties and have also perused the documents placed on record. It is an admitted fact that the petitioner was appointed on contractual basis, as is evident from the letter of his appointment dated 14.5.1999. It is also a matter of record that even when his contract was renewed vide letter dated 7.5.2000, it was stipulated therein that his services were extended till 31.8.2000 again on contractual basis or till such time a regular veterinary doctor was posted on deputation. It is also not denied that that there are no recruitment rules applicable to the post of Veterinary Assistant Surgeon in the respondent society and that the only rules applicable there are the Rules of Payment of Grant-in-Aid to Delhi SPCA and as such, there is nothing placed on record by the petitioner to show that the post held by him was a sanctioned post, as WP(C) No.2222 of 2003 Page No.5 of 10
has been claimed by him. Nor, has the petitioner placed any document on record to establish that appointment by deputation to the post in question in the respondent society is an exception to the rule and the rule is appointment on contractual basis. Reliance placed by the petitioner on the office order dated 5.4.2002, issued by the respondent no.4, is misplaced. Instead, a plain reading thereof makes it evident that Dr.V.K. Mal was appointed to attend OPD of S.P.C.A. Hospital only on a temporary basis without any additional remuneration, in addition to his own duties as Incharge of the Veterinary Hospital at Motiakhan, Delhi. The said letter cannot be read to mean that the only mode adopted by the respondent society for filling up the post of Veterinary Assistant Surgeon is by contractual method. 10. On the contrary, there is force in the contention of the counsel for the respondents that the petitioner being only a contractual employee, he had no vested right of regularization. The law in this regard is now well settled. The issue regarding appointment of casual/temporary employees and their status was considered by the Supreme Court in the case of Umadevi (supra), whereunder it was held that such employees do not have any right to regularization or permanent public employment and further that an employee cannot be believed to have accepted a temporary, contractual, casual, ad hoc or daily-wage public employment without knowing fully well the nature of the engagement and the WP(C) No.2222 of 2003 Page No.6 of 10
consequences flowing from it. Reference may be made to the following observations made by the Supreme Court in the said case: 45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain - not at arms length - since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable WP(C) No.2222 of 2003 Page No.7 of 10
the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India. (emphasis added) 11. In view of the law laid down in Umadevi (supra) and the various judgments that have followed thereafter, vide (i) Mineral Explorations Corporation Employees' Union v. Mineral Explorations Corporation Ltd. and Anr., (2006) 6 SCC 310, (ii) Municipal Corporation, Jabalpur v. Om Prakash Dubey 2006 (13) Scale 266, and (iii) Indian Drugs and Pharmaceuticals Ltd. v. Workmen, Indian Drugs and Pharmaceuticals Ltd., (2007) 1 SCC 408, the position in this regard has now crystallized. This Court, while acting under Article 226 of the Constitution of India ought not to ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made in consonance with the constitutional scheme. Such is not the case here. 12. Rule 4 of the Rules, on which the petitioner has placed heavy reliance, also does not come to his rescue. The said rule reads as under:- 4. General conditions for grant of grant-in-aid The SPCA shall take on deputation an Administrative Officer and Chief Vety. Officer from the Delhi Administration for the purpose of providing adequate vety coverage and to give advise to the enforcement staff by these two officers. WP(C) No.2222 of 2003 Page No.8 of 10
xxxxxx 13. It is evident from a bare reading of the aforesaid Rule that while it provides that the S.P.C.A. shall take on deputation the Chief Veterinary Officer from the Delhi Administration, there is nothing in the rule that prohibits, or in any manner limits the powers of the S.P.C.A. to appoint a Veterinary Assistant Surgeon on contractual basis so as to meet administrative exigencies. The petitioner having accepted appointment on contractual basis, knowing fully well the nature of such appointment, cannot now claim regularization, permanency or even retention till a regular appointment is made to the said post. 14. The Court finds no merit in the averment of the petitioner that the impugned order by which his services were dispensed with was not a conscious decision and was therefore not in consonance of the judgment dated 31.1.2003. It is apparent from a perusal of the impugned order dated 27.2.2003, that the same was passed pursuant to the meeting of the S.P.C.A. Board which was convened on 27.2.2003 wherein the case of the petitioner was discussed and a unanimous decision was taken to dispense with his services w.e.f. 28.2.2003. 15. In view of the above discussion, the writ petition fails and is dismissed with no order as to costs. WP(C) No.2222 of 2003 Page No.9 of 10
November 28,2007. Sd./- HIMA KOHLI,J WP(C) No.2222 of 2003 Page No.10 of 10