Mr. Mukesh Gupta, Mr. Harshit Gupta Mr. Abhishek Singh, Advs v. COMMISSIONER, EAST DELHI MUNICIPAL CORPORATION ORS

Judgment

1. The petitioners are seven in number. They have approached this Court under Article 226 of the Constitution of India, being aggrieved by the dismissal, by the Central Administrative Tribunal1, of OA 3879/2016, filed by them. They were initially appointed as “leave substitute” Chowkidars in the Municipal Corporation of Delhi2. Subsequently, they were appointed as Daily Wagers, against Signature Not Verified 1 “the Tribunal” hereinafter 2 “MCD” hereinafter Digitally Signed By:AJIT KUMAR Signing Date:28.05.2025 14:13:47 WP(C) 1818/2019 sanctioned posts. They seek regularization. Their claim, before the Tribunal, was predicated on the fact that other Chowkidars, who had also been initially appointed as leave substitutes and had been taken on daily wages on the same day as them, were being regularized. The Tribunal having dismissed their OA, the petitioners are before us.

2. The dates of engagement as leave substitutes, and subsequently as daily wage Chowkidars, of the petitioners, may be presented, in a tabular fashion, thus: S.No. Name Date of appointment as leave substitute 25 March 1999 11 December 1999 Date of appointment as daily wager 7 March 2007 7 March 2007 Subhash Chandra Pravin Kumar Udham Singh Shaukender Kumar Arun Kumar Rajeev Ravindra 15 November 1999 8 April 1999 1 July 2001 6 October 2000 11 August 2001 7 March 2007 7 March 2007 7 March 2007 7 March 2007 7 March 2007 1 2 3 4 5 6 7

3. There is no dispute about the fact that the appointment of the petitioners as daily wage Chowkidars was against vacant sanctioned posts.

4. Thus, each of the petitioners has, for over 18 years as on date, served the MCD as daily wage chowkidars, and are yet to be regularized.

5. With the development of the law, the main fulcrum of the

dispute between the parties does not really survive for consideration. Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:28.05.2025 14:13:47 WP(C) 1818/2019 It may, however, be briefly noticed. The MCD, vide Resolution 709 dated 20 November 1978, decided to regularize daily wage employees working with them in a phased manner.

6. On 14 May 2008, a meeting was convened under the Chairmanship of the Commissioner, MCD, to discuss, inter alia, the issue of regularization of daily wagers. In the said meeting, it was resolved that daily wagers engaged between 1 April 2000 and 31 March 2003 would be regularized.

7. Following this, the East Delhi Municipal Corporation3, to whom the petitioners had been assigned following trifurcation of the MCD into the East, North and South Delhi Municipal Corporations in 13 January 2012, vide Resolution No. 150 dated 13 October 2014, expressed its intention to regularize 71 daily wage Chowkidars in the Education Department, who were initially appointed as leave substitute Chowkidars and were placed on daily wages in 2007-2008 against sanctioned posts. The petitioners would fall within this list of 71 daily wage Chowkidars.

8. This was, however, followed by MCD Resolution No. 110 dated 19 October 2015, which noted the fact that, following the MCD Resolution No. 150 supra, all Chowkidars taken on daily wages till 31 March 2003 had been regularized. However, following “some legal issues”, it was resolved that, as the Chowkidars engaged on daily wages till 31 March 2003 had been initially appointed as leave substitute Chowkidars on or before 31 March 1998, only Chowkidars Signature Not Verified 3 “the EDMC” hereinafter Digitally Signed By:AJIT KUMAR Signing Date:28.05.2025 14:13:47 WP(C) 1818/2019 appointed as leave substitutes on or before 31 March 1998 were entitled to regularization as, otherwise, it would result in disparity. By a subsequent Modification dated 14 September 2009, the cutoff date for appointment on daily wages was changed from 31 March 2003 to 10 April 2006.

9. The respondents’ contention is that the petitioners were converted from leave substitutes to daily wage Chowkidars after 10 April 2006 and that they, therefore, do not make the cutoff date for regularization.

10. The Tribunal, too, in the impugned order, has dismissed the petitioner’s OA on the sole ground that no one who had been engaged after them as leave substitutes or converted to daily wages after they have been regularized.

11. While issuing notice in the present writ petition on 22 February 2019, the respondents were directed to explain, in their counter- affidavit, why appointments on regular basis were not being made, when vacancies were available and persons like the petitioners were continuing on daily wages.

12. The respondents’ response, already noted hereinabove and recorded in the subsequent order dated 29 November 2022, was as under: “As per directions of the Hon’ble High Court, it is submitted that the petitioner were engaged as leave substitute after 31.03.1998. Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:28.05.2025 14:13:47 WP(C) 1818/2019 No leave substitute engaged after 31.03.1998 has been regularized. In this regard, a resolution has been passed by erstwhile EDMC vide No. 110 dated 19.10.2015 regarding policy for regularization for person who were engaged as leave substitute on or before 31.03.1998. All the petitioners of this case were engaged as leave substitute after 31.03.1998 and therefore they have not been regularized. When the turn of regularization of their batch mates will come they will also be considered along with their counter parts as per phase manner policy of regularization of MCD.”

13. Things continued thus till 23 July 2024, on which date the following order was passed by this Court:

1. Pursuant to order dated 31.08.2022, learned counsel for the respondents had placed before this Court a communication received by him by the Assistant Director, Education wherein it is noted that the petitioners were engaged as leave substitutes after 31.03.1998 and no leave substitute has been engaged thereafter. Further noted EDMC vide No. 110 dated 19.10.2015 has passed a resolution in respect of policy for regularisation of persons who were engaged leaves substituted on or before 31.03.1998 and since all the petitioners herein were engaged against the leave substitutes after 31.03.1998, therefore, they have not been regularised. Also that when the turn of regularisation of their batch mates will come, they will also be considered alongwith their counter parts as per policy of regularisation of MCD.

2. This Court finds that the it has nowhere been mentioned in the said communication as to when the vacancies are going to arise and when the petitioners can seek their regularisation.

3. To this effect, the respondents are directed to file an affidavit under the signatures of Director of Education within 04 weeks from today to apprise this Court as to when or in which year, the vacancies shall be notified and the petitioners will be regularised. The advance copy of the affidavit be furnished to the opposing counsel, failing which the same shall be taken on record subject to cost of Rs.15,000/- in favour of the petitioners.

4. Re-notify on 25.10.2024.” Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:28.05.2025 14:13:47 WP(C) 1818/2019

14. In response, the respondents have filed an affidavit dated 20 August 2024, in which they have submitted as under: “3. That in pursuance of the judgment of Hon'ble Supreme Court of India in the matter of Secretary State of Karnataka v Uma Devi4 dated 10.04.2006; the respondent convened a meeting on 14.05.2008 vide which the cut-off date of regularisation of daily wager employees was fixed as 31.03.2003 and later modified as letter No. RPA-VII/CED(C- 10.04.2006 vide modification I)/2009/RK/31 dated 14.09.2009. Copy of the minutes of the meeting held on 14.05.2008 issued vide No. RPAVIII/CED (C-l) /2008/R.K/15 dated 09.06.2008 and modification circular dated 14.09.2009 are annexed as Annexure-II & III respectively. Daily wager employees engaged against vacant sanctioned posts are being regularised as per phase manner policy of regularisation of MCD in compliance of Resolution No. 273 dated 27.06.1988, circulars dated 09.06.2008 & 14.09.2009. The law regarding the regularisation of Contractual and Daily Wager employees stands further clarified in the following judgements: a) Civil Appeal No. 5689-5690/2021-UOI & Ors. v Ilmo Devi & Anr5, b) Oil and Natural Gas Corporation v Krishna Gopal6, c) Dr. Ashwani Kumar v UOI.7

4. That Daily wager employees engaged on vacant sanctioned posts upto 10.04.2006 in Education Department of MCD have been regularised and matter is in process in respect of remaining employees. That the applicants (Shubhash Chandra &Ors.) are working

5. against the notified vacant sanctioned posts w.e.f. 07.03.2007.

6. That these applicants alongwith 288 employees out of 353 employees were engaged as daily wagers against vacant sanctioned posts w.e.f. 07.03.2007 as per available vacant sanctioned posts at that time. *****

8. That with regard to the matter of regularisation of