Judgment:
$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision : February 18, 2013 + W.P.(C) 8977/2011 DHARAMVEER VATS ...Petitioner Represented by : Mr.Rajinder Mathur, Advocate and Mr.Priyank Sharma, Advocate. versus CHIEF SECRETARY, GNCT OF DELHI & ANR. ...Respondents Represented by : Mr.Dhanesh Relan, Advocate. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE VEENA BIRBAL PRADEEP NANDRAJOG, J.
1. The writ petitioner, aged 54 years as of today, seeks a direction to be issued against the respondents to comply with the order dated September 20, 1991 passed by the Central Administrative Tribunal disposing of OA No.207/1986 filed by him. Enforcement is sought of the two specific directions issued by the Tribunal as per the order dated September 20, 1991, implementation whereof is prayed for. The two directions read as under:(i) To place the applicant in a panel for ad-hoc appointment or casual appointment to posts which may be filled up on ad-hoc or daily rated basis, keeping in view his overall length of service from May, 1980 till 30.04.1986 as a single unbroken spell of employment on casual-cum-ad hoc basis for determining his seniority; and (ii) To give the applicant three chances to appear in a Clerk or any other Group C post for which he is eligible, deeming the age limited to have been relaxed in his case. The test may be administered directly by the respondents or the Staff Selection Commission, and the applicant was to be regularly appointed if he qualified in the said test or examination.
2. The implementation is sought by pleading that the writ petitioner had worked, albeit with breaks, sometimes as a Daily Wage Typist and sometimes as a Work Charged Beldar-cum-Chowkidar during the period May 07, 1980 till April 30, 1986. He had sought regularization of his services when he was disengaged from service in the year 1986 by filing OA No.207/1986, in which afore-noted two directions were issued. Petitioner pleaded that ignoring the two directions issued, and especially the second direction, the respondents did not afford him three chances to appear at a test when regular appointments were made to the post of Typist/Clerk. Petitioner pointed out that notwithstanding he being informed of his being empanelled to take the examination for appointment to the post of Typist/Clerk, 117 Work Charged Beldars, on the basis of recommendations made by a DPC which conducted a suitability test, were appointed. He was never called to take the suitability test when said 117 persons were subjected to the suitability test.
3. Dismissing OA No.2438/2010 filed by the writ petitioner, the Tribunal has noted that appointment of 117 Daily Wage/Work Charged employees was effected by the department pursuant to directions issued by the Tribunal in OA No.1112/1991, i.e., it was a special and a peculiar circumstance under which said 117 persons were appointed. As regards the writ petitioner not being granted three opportunities to take the written test for being appointed as a Typist/Clerk, the Tribunal noted that no regular vacancies had arisen. The Tribunal noted that the two directions issued by it as per its decision dated September 20, 1991 were applicable whenever regular appointments were made to appoint Typist/Clerk.
4. The Tribunal has also noted an inordinate delay by the writ petitioner in seeking parity with 117 persons who were appointed on January 10, 1998, pursuant to directions issued by the Tribunal on July 28, 1995 when OA No.1112/1991 filed by said 117 persons was disposed of. The Tribunal has highlighted that the Original Application filed by the writ petitioner in the year 2010 was highly belated.
5. Now, as regards writ petitioners claim being held to be highly belated, we find substantial merit in the contention urged by the petitioner that he was not aware of said 117 appointments being effected in the year 1998.
6. But, this would only mean that one of the reasoning given by the Tribunal is correct.
7. The writ petitioner has not been able to show to us, with reference to any record of the respondents, that any regular vacancy to the post of Typist/Clerk arose after the Tribunal had passed the order dated September 20, 1991.
8. Suffice would it be to state that the mandate of the said order was to empanel the petitioner, as a prospective candidate, and whenever regular appointments would be made to the post of Typist/Clerk by taking into account that he had served as an ad-hoc or a casual employee between May 1980 till April 30, 1986 and further giving benefit of age relaxation to the writ petitioner, he be accorded three chances to appear at the test. But all this was contingent upon there being regular appointments effected. In the absence of any regular vacancy, the writ petitioner could not seek any further directions predicated on the directions issued by the Tribunal as per its order dated September 20, 1991.
9. As regards the plea of the petitioner being discriminated vis-- vis the 117 persons who were appointed on a regular basis on January 10, 1998, it has to be noted that it became the compulsion of the department to hold a special test for said 117 persons because while allowing OA No.1112/1991, the directions issued by the Tribunal as per its order dated July 28, 1995 was limited to the benefit of said 117 persons.
10. If the respondents act under a direction issued by a Court or a Fora of competent jurisdiction, compliance with the same would not mean that somebody elses right has been adversely affected.
11. We can but only note that when the Tribunal had issued futuristic directions disposing of OA No.207/1986 filed by the writ petitioner, law on the subject pertaining to the regularization of services of ad-hoc/casual employees was much different vis--vis the law which was finally declared by the Constitution Bench of the Supreme Court in the decision reported as 2006 (4) SCC 1 Secretary, State of Karnataka v. Uma Devi. As per the said decision, no Court can issue a direction or a mandamus to the Executive which would result in the creation of a permanent post, for the reason, power to create posts is vested with the Executive.
12. Under the circumstances, noting that as of today the writ petitioner is aged 54 years and that the age of superannuation of Typist/Clerk under the respondents is 60 years, we dismiss the writ petition but without there being any order as to costs. (PRADEEP NANDRAJOG) JUDGE (VEENA BIRBAL) JUDGE FEBRUARY 18 2013 dk