Delhi High CourtMahendra Singh vs Energy Efficiency Services Ltd on 8 January, 2021Author:Rajiv Sahai EndlawBench:Rajiv Sahai Endlaw,Sanjeev Narula$~17\n*    IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n+      LPA 307/2020 & CM No.26341/2020 (for stay)\n\n       MAHENDRA SINGH & ORS                    ..... Appellants\n                   Through: Mr. Prashant Bhushan, Mr. Biraja\n                            Mahapatra, Ms. Alice Raj and Mr.\n                            Rahul Gupta, Advs.\n\n                                 Versus\n\n     ENERGY EFFICIENCY SERVICES LTD. & ANR ..... Respondents\n                   Through: Mr. Raman Kapur, Sr. Adv. with Mr.\n                              Samdarshi Sanjay and Mr. Varun\n                              Kapur, Advs. for R-1.\n                              Mr. Anil Soni, Adv. for R-2/UOI.\nCORAM:\nHON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW\nHON'BLE MR. JUSTICE SANJEEV NARULA\n                         ORDER%                        08.01.2021\n[VIA VIDEO CONFERENCING]1.     The appeal impugns the order dated 12th October, 2020 of the Single\nJudge, of dismissal of W.P.(C) No.7797/2020 filed by the appellants along\nwith several others, impugning the advertisement dated 15th October, 2019\nissued by the respondent No.1 Energy Efficiency Services Ltd. (EESL) and\nseeking mandamus, directing the respondent No.1 EESL to absorb the\nappellants and other petitioners in regular positions, after declaring the result\nof the interviews held between 24th June and 26th June, 2019 and the non-\nexecutive petitioners, on the basis of Annual Confidential Reports.2.     The Single Judge, finding that the impugned advertisement was issued\non 15th October, 2019 and the writ petition impugning the same had beenLPA 307/2020                                                           Page 1 of 5filed on 28th September, 2020 i.e. after the recruitment process in pursuance\nto the impugned advertisement had begun and was at an advanced stage,\nvide the impugned order/judgment has dismissed the writ petition as barred\nby delay and laches.3.     It was inter alia the case of the appellants and the other petitioners in\nthe writ petition, (i) that they were employed with the respondent EESL as\nfixed tenure employees; (ii) that they, at the time of filing of the writ\npetition, had been working with the respondent EESL for about 3 to 4 years\nand that there was a policy for regularising them, but they had not been\nregularised; (iii) that without regularising the appellants and the other\npetitioners, the respondent EESL had vide the impugned advertisement\ncommenced the process of recruiting fresh employees and which the\nrespondent EESL was not entitled to, without considering the appellants and\nother petitioners for recruitment; and, (iv) that additionally, as aforesaid,\nmandamus for regularisation of the appellants and the other petitioners was\nsought.4.     The appeal came up before this Court first on 16th October, 2020,\nwhen notice thereof was ordered to be issued and the examination in\npursuance to the impugned advertisement was permitted to be held subject\nto the outcome of this appeal.5.     From a reading of the impugned order, it appears that the only relief\nclaimed in the writ petition was of impugning the recruitment advertisement.\nWe have thus asked the counsel for the appellants and other petitioners, the\nlocus of the appellants and other petitioners to impugn the recruitment\nadvertisement and process and further enquired, whether not the remedy of\nthe appellants and the other petitioners was to seek the relief ofLPA 307/2020                                                          Page 2 of 5regularisation.6.     The counsel for the appellants states that the appellants are not just\nimpugning the advertisement but are also seeking the relief of regularisation\nof the appellants and the other petitioners and has drawn our attention to the\nsecond relief claimed in the writ petition.7.     We have next enquired from the counsel from the appellants, whether\nthe appellants and other petitioners are 'workmen', inasmuch as, if they are\ncovered by theIndustrial Disputes Act, 1947, their remedy would be before\nthe Labour Court / Central Government Industrial Tribunal (CGIT).8.     The counsel for the appellants states that neither the appellants nor the\nother petitioners fall in the definition of 'workmen'.9.     We have in the circumstances, enquired the stand of the respondent\nEESL.10.    The senior counsel for the respondent EESL has drawn our attention\nto the recruitment policy of the respondent EESL and on a reading whereof,\nit transpires that in the modes of recruitment provided therein, the mode of\nrecruitment for fixed tenure does not exist. The senior counsel for the\nrespondent EESL has however drawn our attention to the EESL Service\nRules for Fixed Tenure Employees, which provides for recruitment for fixed\ntenure for four and a half years. Attention has also been invited to the\nRecruitment Policy of the respondent EESL where a provision is made for\nabsorption of the fixed tenure employees.11.    We have next asked the senior counsel for the respondent EESL, why\nthe mode of appointment admittedly contained in the recruitment policy, of\nabsorption of fixed tenure employees, has not been undertaken and whether\nthe appellants and the other petitioners have been considered for absorption.LPA 307/2020                                                          Page 3 of 512.    The senior counsel for the respondent EESL states that the respondent\nEESL was in the process of such consideration but was instructed by the\nChief Vigilance Officer, to conduct the recruitment on all-India basis and in\npursuance whereto the respondent EESL scheduled the examination,\nimpugning which the writ petition was filed. He also states that save for\none, all the other petitioners in the writ petition have participated in the\nrecruitment process.13.    We may in this context notice that the petitioners, in the writ petition,\nthough have also claimed the relief of regularisation but interestingly, not\nindependently, but "after declaring the results of the interviews held between\nJune, 24 and 26, 2019".       We have enquired from the counsel for the\nappellants, whether the said interviews undertaken by the writ petitioners\nwere pursuant to the impugned advertisement.14.    The counsel for the appellants states that the said interviews were not\nheld as part of the recruitment under the impugned advertisement but in\npursuance to the proposal for absorption of the fixed tenure employees,\nearlier undertaken by the respondent EESL vis-a-vis the writ petitioners.15.    We also find that the Single Judge, in paragraph 3 of the judgment,\nhas also referred to the interviews for regularisation but not dealt with the\nsame. We are of the view that only the first relief claimed in the writ\npetition, of impugning the advertisement, could have been held to be barred\nby delay and laches and not the relief of regularisation, since the writ\npetitioners continued to be in the employment, though fixed tenure, of the\nrespondent EESL and remained entitled to seek regularisation.16.    The said aspect having not been dealt with by the Single Judge, we\nhave enquired from the counsels, whether they consent to our consideringLPA 307/2020                                                          Page 4 of 5the said aspect for the first time in appeal.17.    While the counsel for the appellants and the other petitioners\nconsents, the senior counsel for the respondent EESL, under instructions,\nstates that since the writ petition was dismissed on the very first date, no\ncounter affidavit was filed and opportunity to file counter affidavit be given\nand the matter be remanded to the Single Judge for consideration of the\nsecond relief.18.    The appeal, to that extent is accordingly allowed, without disturbing\nthe judgment of the Single Judge to the extent dismissing the writ petition as\nbarred by delay and laches qua the first relief of impugning the recruitment\nadvertisement dated 15th October, 2019. The writ petition is remanded to\nthe Single Judge, for adjudication in accordance with law, of the second\nrelief claimed in the writ petition.19.    The appeal is disposed of.20.    The writ petition being W.P.(C) No.7797/2020 be listed before the\nSingle Judge on 11th February, 2021.21.    The respondent EESL to have the counter affidavit to the writ petition\nplaced on record before that date.22.    It is clarified that the interim order dated 16th October, 2020 in this\nappeal also lapses on the decision of this appeal.RAJIV SAHAI ENDLAW, J.SANJEEV NARULA, J.JANUARY 8, 2021/'bs'LPA 307/2020                                                        Page 5 of 5