Central Administrative Tribunal - Delhi
Joginder Singh (Contractual Craft ... vs Govt. Of Nct Of Delhi & Ors. Through on 14 May, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 3409/2014
CP 635/2014
New Delhi this the 14th day of May, 2015
Honble Mr. V. Ajay Kumar, Member (J)
Honble Mr. P.K. Basu, Member (A)
OA 3409/2014
Joginder Singh (Contractual Craft Instructor)
Aged about 60 years
S/o Late Shri Natha Singh
R/o GG-III/36, Vikas Puri
New Delhi Applicant
(Through Shri M.K. Bhardwaj, Advocate)
Versus
1. Govt. of NCT of Delhi & ors. through:
The Chief Secretary,
IP Estate, Players Building
New Delhi
2. The Secretary
Department of Training & Technical Education
Muni Maya Ram Marg,
Pitampura,
Delhi-110088
3. The Director
Department of Training & Technical Education
Muni Maya Ram Marg,
Pitampura,
Delhi-110088
4. The Principal
ITI, Pusa,
New Delhi Respondents
(Through Mrs. Avnish Ahlawat with Sh. N.K. Singh, Advocates)
CP 635/2014
Shri Jogender Singh
S/o Shri Natha Singh
R/o GG-III/36, Vikas Puri,
New Delhi-110018 .Petitioner
(Through Shri M.K. Bhardwaj, Advocate)
Versus
1. Shri Anindo Majumdar
The Secretary
Department of Training & Technical Education
Govt. of NCT of Delhi
2. Shri Arun Kumar Mishra
The Director
Department of Training & Technical Education
Muni Mayaram Marg, Pitampura
New Delhi-110088
3. Shri Lok Pal
The Principal
ITI Pusa,
New Delhi-110012 .Respondents
(Through Mrs.Avnish Ahlawat with Sh. N.K. Singh, Advocates)
ORDER
Mr. P.K. Basu, Member (A) OA 3409/2014 On 31.07.2008, an advertisement was brought out by the respondents for recruitment on contract basis in several categories of posts in which it is stated that retired personnel who are less than 65 years of age can also apply. Thus, the applicant was appointed as contractual Craft Instructor and has been serving with the respondents since 2009. According to the applicant, his services have been continued from time to time on ad hoc basis, the latest order being 19.08.2014.
2. The applicants case is that in his last order of extension dated 19.08.2014, it has been stated that your contract will be up to Sept.30, 2014 only. When he enquired about this contract, termination date of 30.09.2014 he was informally told that that was on account of his crossing 60 years. The grievance of the applicant is that the contract for the post of Instructor is for the academic session. In fact, para 1 and 2 of the order dated 19.08.2014 read as follows:
1. The appointment will be on PURELY CONTRACT BASIS for the session 2014-15 or as per the requirement/ availability of the trainees of the concerned trade in ITI Pusa or till such time the posts are filled on regular basis through DSSSB, Govt. of NCT of Delhi, whichever is earlier. This will not vest any right to claim for regular appointment in the department or for continued contractual appointment.
2. The remuneration of the Instructors engaged on Full time contractual basis will be Rs.34250/- per month (consolidated) and no charges other than this will be paid. The remuneration i.e. Rs.34250/- per month (consolidated) will remain same during the contract period i.e. w.e.f. August 2014 to July 2015. The same will be directly linked to performance of teaching duties and work actually performed. Therefore, it is alleged that the respondents have arbitrarily curtailed his contract period to 30.09.2014.
3. The applicants case is that the respondents have curtailed his contract period to 30.09.2014 for the reason that he reaches the age of 60 years on that date as they are of the opinion that since the superannuation age in government is 60 years, no contractual employee can continue beyond that age. The applicants contention is that (a) the advertisement does not stipulate any cut off age of 60 years; and (b) allowing retired government servants upto 65 years of age is discriminatory and violative of Article 14 of the Constitution of India. In this regard, the applicant relied on Tandon Brothers Vs. State of West Bengal, (2001) 5 SCC 664 in which the Honble Supreme Court held that action of the government should be fair and based on law. When the action is otherwise or runs counter to the fairness, it would be open to the Court of Law to set aside the same for the purpose of equity, good conscience and justice. Therefore, arbitrarily fixing the two cut off age limits for the same job clearly violates the principle laid down by the Honble Supreme Court. The applicant has made the following prayers:
i) To quash and set aside the impugned order dated 19.08.2014 to the extent the applicants services have been restricted upto 30.09.2014.
ii) To direct the respondents to continue the services of applicant as Craft Instructors with all consequential benefits.
iii) To declare the action of respondents in changing the maximum age from 65 to 60 years as illegal and issue appropriate direction for continuation of applicant service till the completion of 65 years age.
iv) To direct the respondents to treat the applicant like other contractual Craft Instructor appointed vide order dated 19.08.2014.
v) To allow the O.A. with costs.
4. When the matter came up before this Tribunal on 29.09.2014, as an interim measure, the Tribunal issued direction to the respondents to continue the applicant as Contractual Craft Instructor till the end of July, 2015 or until further orders of this Tribunal. The applicant thereafter filed Contempt Petition No.635/2014 on the ground that the respondents had ignored the interim order of the Tribunal and did nothing when he approached them for implementation of the said order.
5. After the said Contempt Petition is filed, the respondents filed an MA No.3947/2014 on 12.12.2014 for vacation of stay. After hearing both sides, this Tribunal by its order dated 16.01.2015 dismissed the said MA and made the interim order absolute till the disposal of the OA.
6. The respondents approached the Honble High Court of Delhi in W.P. (C) No.2902/2015 seeking setting aside of the Tribunals order dated 29.09.2014 and the Honble High Court disposed off the Writ with the following observations in its order dated 23.03.2015:
The main issue whether the respondent is entitled to contractual employment till 31st July, 2015 or the same came to an end by the end of 30th September, 2014 is to be yet decided by the learned Tribunal. No doubt, the learned Tribunal has already given an interim direction to the petitioners to continue with the services of the respondent till the end of July, 2015 or until further orders of the learned Tribunal and non-compliance of the same led to the filing of the Contempt Petition by the respondent against the petitioners, which is fixed before the learned Tribunal on 27th April, 2015. Therefore, in this background of the fact we deem it appropriate to request the learned Tribunal to decide the main petition itself expeditiously on the date already fixed before it or any other date before July, 2015.
In so far as the decision in the Contempt Petition is concerned, the learned Tribunal may take a view on the same at the time of final decision of the petition itself.
7. In the light of the above order of the Honble High Court, we heard both the OA and the CP together and pass a common order.
8. The first argument of the respondents is that the applicant has no claim at par with retired government servants as he is an ad hoc appointee. He had accepted his appointment on the terms and conditions stipulated in appointment letter dated 19.08.2014, which clearly stated that his appointment was valid upto 30.09.2014. It is further explained that appointment in government can be on a regular basis, temporary basis, ad hoc basis or on contract basis. It has been explained that the applicant cannot be continued beyond the age of 60 years because the age of superannuation in government is 60 years. So if a candidate cannot be appointed on regular basis beyond 60 years, there is no question of a contractual employee continuing beyond 60 years. The issue of government servants continuing upto 65 years of age is completely on a different footing as the government wants to utilize the experience gained over a long period of government service to impart training. Reliance was also placed on Public Services Tribunal Bar Association Vs. State of U.P. and another, AIR 2003 SC 1115 and the judgment of the Honble High Court of Delhi delivered on 14.08.2013 in Union of India and anr. Vs. Satish Joshi, LPA No.197/2013. In the latter, the Honble High Court has enunciated why non-extension of contract cannot be stated to be unreasonable or an act which falls foul of Article 14 of the Constitution of India. Para 20 of the judgment is quoted below:
20. It is now settled that a contract of employment stands on a different footing than a commercial contract and an unfettered right of hire and fire is not available to the State as the same would violate Article 14 of the Constitution of India. However, this is not a case of a permanent employee whose services are being terminated but a temporary employee whose contract of service has come to an end on account of efflux of time. The Supreme Court in the case of Central Inland Water Transport Corporation India Limited and Anr. v. Brojo Nath Ganguly & Anr: (1986) 3 SCC 156 struck down Rule 9(i) of Central Inland Water Transport Corporation Limited (Service, Discipline and Appeal) Rules, 1979 as being unconscionable as it provided an unfettered right on the Government to terminate the employment of a permanent employee by giving three months notice. However, this is not a case where the contract of employment has been challenged as being unconscionable or arbitrary as giving an unfettered right of hire and fire to the state. In the present case, there is nothing unconscionable about the contract entered into between the appellant and the respondent and thus, non-extension of contract cannot be stated to be unreasonable or an act which falls foul of Article 14 of the Constitution of India.
9. The respondents further cited the judgment of the Honble High Court of Delhi in W.P. (C) No.822/2014, C.K.P. Naidu Vs. Government of NCT of Delhi in which the Honble High Court held as follows:
8. We have considered the rival submissions. This Court has taken the view that even on re-employment, a retired Principal has no right to be reemployed as a Principal and under the scheme, he can only be re-employed as a PGT. In this regard, reference may be made to Shashi Kohli vs. Directorate of Education in WP(C) No. 4330/2010 decided on 29.04.2011. The Court held that the grant of extension is not a matter of right. The retired Principal/ Vice-Principal only has a right to be considered, that too only for posts till PGT, and the school has a right to deny re-employment. The petitioner has no vested right to re-employment. As per the scheme, the re-employment can be to the post of PGT, and not to the post of Principal. On this short ground, the impugned order of the Tribunal, granting reemployment to Naidu cannot be sustained.
9. We may also observe that there could be situations where despite a retired Principal/ Vice-Principal being otherwise eligible for being considered to be appointed as a PGT, he may not be so appointed looking to the number of teachers already in employment in the concerned school. It is possible that there may be no vacancy and the school may not have any work for the re-employed PGT. In our view, the purport of the scheme is not to thrust a retired Principal/ Vice-Principal upon a school when it has no work for him/her.
10. We have heard the learned counsel for the parties, gone through the pleadings and perused the judgments cited by either side.
11. As clearly stated by the Honble High Court in Union of India and anr. Vs. Satish Joshi (supra), unless there is unreasonableness or irrationality in the action of the State, contract employees cannot claim any relief once contract of service has come to an end on account of efflux of time. In this case, the applicant was continuing as a contract employee and he accepted the terms of contract as contained in order dated 19.08.2014. Having accepted it, he cannot now challenge the same. In our opinion, not mentioning the age limit of 60 years by the respondents in the advertisement is not an issue. If someone is seeking an employment with the government, he is expected to know that the maximum age limit is 60 years being the superannuation age in the government. In fact, that is why it has been stated that retired Instructors may apply by the age of 65 years. The applicant has tried to mix up the two. Whereas his employment is contractual employment, the facility to the retired Instructors is an additional facility so that the government can tap the experienced hands who have been there in the government for long period of time. There has been no unfairness on the part of the respondents.
12. There being no merit in the OA, it is dismissed.CP 635/2014
13. As regards the contempt matter, learned counsel for the respondents explained that there was no deliberate disobedience of the Tribunals order as the respondents first filed an MA for vacation of the stay order, which was denied by this Tribunal vide order dated 16.01.2015. Thereafter the respondents approached the Honble High Court in W.P. (C) No.2902/2015 in which the Honble High Court passed order dated 23.03.2015, cited above and, in the light of the said order, the respondents are now before this Tribunal. It was reiterated that it would be clear that there has been no wilful disobedience of the order of the Tribunal and thus the prayer was made to close the contempt.
14. Learned counsel for the applicant, however, vehemently opposed this contention of the learned counsel for the respondents and stated that in Maninderjit Singh Bitta Vs. Union of India and others, (2012) 1 SCC 273, the Honble Supreme Court has clearly held as follows:
22. Another very important aspect even of the Civil Contempt is, 'what is the attribution of the contemnor?' There may be cases of disobedience where the respondent commits acts and deeds leading to actual disobedience of the orders of the court. Such contemnor may flout the orders of the court openly, intentionally and with no respect for the rule of law. While in some other cases of civil contempt, disobedience is the consequence or inference of a dormant or passive behaviour on the part of the contemnor. Such would be the cases where the contemnor does not take steps and just remains unmoved by the directions of the court. As such, even in cases where no positive/active role is directly attributable to a person, still, his passive and dormant attitude of inaction may result in violation of the orders of the court and may render him liable for an action of contempt.
23. It is not the offence of contempt which gets altered by a passive/negative or an active/positive behaviour of a contemnor but at best, it can be a relevant consideration for imposition of punishment, wherever the contemnor is found guilty of contempt of court.
24. With reference to Government officers, this Court in the case of E.T. Sunup v. CANSS Employees Assn., [(2004) 8 SCC 683 took the view that it has become a tendency with the Government officers to somehow or the other circumvent the orders of the Court by taking recourse to one justification or the other even if ex-facie they arc unsustainable. The tendency of undermining the court orders cannot be countenanced.
25. Deprecating practice of undue delay in compliance with the orders of the court, this Court again in the case of M.C. Mehta v. Union of India and Ors. [(2001) 5 SCC 309] observed:
".....clear lapse on the part of NCT and Municipal Corporation. Even if there was not deliberate or wilful disregard for the court orders, there has clearly been a lackadaisical attitude and approach towards them. Though no further action in this matter need be taken for now, but such lethargic attitude if continues may soon become contumacious."
26. It is also of some relevance to note that disobedience of court orders by positive or active contribution or non-obedience by a passive and dormant conduct leads to the same result. Disobedience of orders of the court strikes at the very root of rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. If the Judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs (refer T.N. Godavarman Thirumalpad case ((2006) 5 SCC 1 ]. The proceedings before the highest court of the land in a public interest litigation, attain even more significance. These are the cases which come up for hearing before the court on a grievance raised by the public at large or public spirited persons. The State itself places matters before the Court for determination which would fall, statutorily or otherwise, in the domain of the executive authority.
15. It was further stated that since the Honble High Court had not stayed the contempt proceedings and the respondents failed to implement the interim order, they should be punished for contempt.
16. We have considered this matter carefully. In view of the direction contained in the Honble High Courts order dated 23.03.2015 and the explanation given by the learned counsel for the respondents regarding M.A. and Writ filed before the Honble High Court, we are satisfied that there was no willful disobedience of the Tribunals order by the respondents and the delay was only due to the respondents seeking legitimate legal remedies and not because of any lackadaisical attitude on their part. Contempt Petition No.635/2014 is, therefore, closed and the notices are discharged. In the nature of this case, there shall be no order as to costs.
( P.K. Basu ) ( V. Ajay Kumar ) Member (A) Member (J) /dkm/