Central Administrative Tribunal - Chandigarh
Kuldeep Singh Son Of Raghu Nath vs Chandigarh Administration Through ... on 30 August, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH ( reserved on 21.8.2013 ) O.A.NO. 152/CH/2012 Date of order:---- August 30 , 2013. Coram: Honble Mr. Ranbir Singh, Member (A) Honble Mr. Sanjeev Kaushik, Member (J). 1.Kuldeep Singh son of Raghu Nath 2.Mange Ram son of Gurmukh Singh 3. Daulat Ram son of Natha Ram 4. Ram Chander son of Groua Ram 5. Mohinder Singh son of Sukh Ram 6. Devi Singh son of Tirkha Ram 7. Surjit Kumar son of Punnu Ram 8. Hawa Singh son of Krishan Ram 9. Avtar Swami son of Krishan Ram 10. Kuldeep Singh son of Mahant Ram 11. Gurmeet Singh sonof Atma Singh 12. Rajinder Kumar sono f Shri Chand 13. Jai Bhagwan son of Daya Nand 14. Shiv Kumar son of Lilu Ram 15. Pritam Chand son of Puran Chand All working as Sayees, Mounted Staff, Police Line, Sector 26, Chandigarh. Applicants (By Advocate: Mr. Vishal Gupta for Mr. Jaswant Jain ) Versus 1.Chandigarh Administration through Home Secretary, Chandigarh Secretariat, Sector 9, Chandigarh. 2.Inspector General of Police Head quarters, Sector 9, U.T. Chandigarh. Respondents (By Advocate: Mr. Dhruv Pal for Mr. Arvind Moudgil). O R D E R. Honble Mr. Sanjeev Kaushik, Member (J):
The short issue raised in the instant O.A filed under Section 19 of the Administrative Tribunals Act, 1985 is whether the services of the applicants who were appointed as Class IV employees working as Sayees on daily wage basis between 1992 to 1997 could be regularized and a direction could be issued to the respondents to frame a Scheme for regularization.
2. The facts are not dispute, therefore, brief narration of facts thereof is sufficient. The applicants were appointed in pursuance to a requisition sent by Respondent no.2 to the Employment Exchange under Section 4 of the Employment Exchange ( Compulsory Notification of Vacancies ) Act, 1959. The applicants entered into service on different dates firstly for a period of 89 days on rates fixed by the Deputy Commissioner, Chandigarh. It is the case of the applicants that they are continuously working with the respondent department since 1992 as such, they become eligible for regularization of their services in terms of law laid down by the Honble Apex Court in the case of Secretary, State of Karnataka & Ors. Versus Umadevi & Ors. (2006 (4) S.C.C. Page 1).
3. Pursuant to notice, the respondents resisted the claim of the applicants by filing detailed written statement taking therein the preliminary objection that this Tribunal cannot direct the respondents for framing of rules/policy which is exclusively within the executive domain. They have further submitted that since the applicants had willingly accepted the terms and conditions in their appointment letters when they entered into service, therefore, at this stage, they cannot seek direction from the Court for framing regularization policy or for regularization of their services as they were appointed purely on daily wage basis that too on wages fixed by the Deputy Commissioner, Chandigarh, from time to time. They have relied upon a judgment passed by the Honble Supreme Court in the case of M.P.State Cooperative Bank Limited versus Nanuram Yadav ( 2007(8) S.C.C Page 264 ) and in the case of State of Karnataka versus M.L.Kesari (2010(9) S.C.C Page 247 ). They have thus prayed for dismissal of the O.A.
4. The applicants have filed a rejoinder. Apart from contradicting the averments made in the written statement, the applicants have submitted that the jurisdictional High Court in the case of Vandana & Ors. Versus Union of India ( 2012(1) R.S.J. Page 295) have allowed the claim of the petitioners therein who were similarly situated like the present applicants and a direction have been given in terms of the judgment passed in the case of Uma Devi (supra). Therefore, they have prayed that the case of the applicants being identical may be allowed as the applicants are working with the respondent department for the last more than 15-17 years. The applicants have further stated that the averment of the respondents that they were appointed on daily wage basis cannot be accepted as the work still persists and, therefore, their services should have been regularized by framing a policy.
5. We have heard Shri Vishal Gupta proxy counsel for Mr. Jaswant Jain, learned counsel for the applicants and Shri Dhruv Pal, learned, learned counsel for the respondents.
6. Shri Vishal Gupta, learned counsel for the applicants vehemently argued that the action of respondents in not regularizing the services of the applicants by framing a policy is totally illegal, arbitrary and, therefore, a direction may be issued to the respondents to frame a policy and thereafter to regularize their services as they are continuing for the last more than 15-17 years. In this behalf, he has placed reliance on a judgment passed in the case of Vandana & Ors. Versus Union of India (2012(1) R.S.J. page 295 ) and in the case of Union of India & Ors. Versus Bal Ram & Ors. ( 2012(2) R.S.J. Page 517).
7. Shri Dhruv Pal, learned counsel appearing on behalf of the respondents reiterated what has been stated in the written statement.
8. We have considered the rival contentions and have gone through the pleadings and the judgments cited thereupon.
9. Undisputedly, the applicants entered into service on daily wage basis in pursuance to a requisition sent by the office of respondent no.2 to Employment Exchange, U.T. Chandigarh, and they have been working for the last more than 15-17 years without any order by the Court of law. Their continuation in the service uninterruptedly goes to show that the work still persists upon which the applicants are still working and they are performing their duties to the entire satisfaction of their superiors as in the written statement, it has not been pleaded by the respondents that the work and conduct of the applicants are not upto the mark. Rather, the respondents have recommended the case of the applicants for their regularization, copy of which has been annexed as Annexure A-9. Their appointment cannot be held to be illegal as they were appointed through a process which was recognized at that time for public employment. In terms of para 53 of Uma Devis case ( supra), the Honble Apex Court has mandate that if an employee is continuing for more than ten years with the department, then his services should be regularized as a one time measure if he/she fulfills the eligibility conditions and have been appointed by process of law. Para 53 of the judgment reads as follows:-
53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date.
10. In view of the above judicial pronouncement, we feel that the present OA deserves to be allowed and a direction be given to the respondents to form a policy and regularize the services of the applicants as stated in the case of Uma Devi(supra).
11. This aspect of the matter has also been allowed by the jurisdictional High Court in the case of Vandana (supra) by holding as under :-
5. The Constitution Bench has made distinction between illegality and irregularity. In order to cull out the aforementioned distinction, their Lordships made a reference to the arguments raised in the case of R.N. Nanjundappa R.N. Nanjundappa v. T. Thimmiah v. T. Thimmiah, (1972) 1 SCC 409, wherein it was observed that if the appointment 409 made itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, such an illegality cannot be regularised. It has been further observed that ratification and regularisation is possible of an act which could be within the power and province of the authority but there has been some non-compliance of the procedure or manner which did not go to the root of the appointment and that regularisation cannot be a mode of recruitment. If such a proposition was to be accepted then a new head of appointment would be introduced in defiance of rules, which would have the effect of setting at naught the rules. The Constitution Bench has also made a reference to another judgment of the Supreme Court rendered in the case of B.N. Nagarajan B.N. Nagarajan v. State of Karnataka v. State of Karnataka, (1979) 4 SCC 507. Therefore, a clear distinction between those who have entered into service in violation of the rules and basic structure of the Constitution as envisaged by Articles 14 and 16(1) of the Constitution are class apart from those whose appointments have come to be irregular. It is in these circumstances that their Lordships of the Supreme Court in Umadevis case (supra) has observed in para 53 as under:-
53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
6. When the aforesaid principles are applied to the facts of the present case, it becomes patently clear that the case of the applicant-petitioners would fall in the exception carved out in para 53 of the judgment in Uma Devis case (supra), inasmuch as, they were initially appointed purely on temporary basis on the basic pay of `1200+other allowances, for a period of 89 days between June 1993 to October 1995. There is no dispute that their names were duly requisitioned by the respondents through Employment Exchange and that they have been continuing in the respondent department for more than ten years.
7. As a sequel to the above discussion, the instant petition is disposed of with a direction to the respondents to frame a scheme of regularisation in accordance with the judgment of Honble the Supreme Court rendered in the case of Uma Devi (supra) and if the petitioners are found suitable in all respects their services should be regularised. The needful shall be done within a period of three months from the date of receipt of a copy of this order.
12. In the aforementioned view, the instant O.A. is disposed of with a direction to the respondents to frame a policy for regularization in accordance with the judgment passed in the case of Uma Devi (supra) and if the applicants are found eligible and suitable in all respects, their services should be regularized. The above exercise be concluded within a period of three months from the date of receipt of a certified copy of this order. No costs.
(SANJEEV KAUSHIK) (RANBIR SINGH) MEMBER (J). MEMBER (A) Dated:- August 30 , 2013. Kks