Central Administrative Tribunal - Jaipur
Shubhendu Ojha vs Income Tax Department on 16 January, 2023
1
OA No. 354/2018, OA No. 355/2018, OA No. 248/2019,
OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 354/2018,
ORIGINAL APPLICATION NO. 355/2018,
ORIGINAL APPLICATION NO. 248/2019,
ORIGINAL APPLICATION NO. 249/2019
&
ORIGINAL APPLICATION NO. 326/2021
with
MISC. APPLICATION NO. 642/2021
Order reserved on 10.01.2023
DATE OF ORDER: 16.01.2023
CORAM
HON'BLE MR. DINESH SHARMA, ADMINISTRATIVE MEMBER
HON'BLE MRS. HINA P. SHAH, JUDICIAL MEMBER
OA No. 354/2018
Prem Prakash Pandey son of Shri Chandra Prakash
Pandey, aged about 32 years, resident of 472/40,
Khaniznagar, Adarshnagar, Ajmer, at present
employed as Casual Worker (MTS) (outsourcing) in
the office of Assistant Director of Income Tax
(Investigation), Room No. 108, Central Revenue
Building, Jaipur Road, Ajmer.
....Applicant
Shri C.B. Sharma, counsel for applicant.
VERSUS
1. Union of India through Secretary to Govt. of
India, Ministry of Finance, Deptt. of Revenue,
North Block, New Delhi.
2. Principal Commissioner of Income Tax (Central),
2nd Floor, New C R Building (Annexe), Statute
Circle, B D Road, Jaipur.
2
OA No. 354/2018, OA No. 355/2018, OA No. 248/2019,
OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021
3. Assistant Director of Income Tax (Investigation),
Room No. 108, Central Revenue Building, Jaipur
Road, Ajmer.
4. Principal Commissioner of Income Tax, Room No.
310-A, Aaykar Bhawan, Subcity Centre, Savina,
Udaipur-313001.
.... Respondents
Shri Gaurav Jain, counsel for respondents.
OA No. 355/2018
Prem Prakash Pandey son of Shri Chandra Prakash
Pandey, aged about 32 years, resident of 472/40,
Khaniznagar, Adarshnagar, Ajmer, at present
employed as Casual Worker (MTS) (outsourcing) in
the office of Assistant Director of Income Tax
(Investigation), Room No. 108, Central Revenue
Building, Jaipur Road, Ajmer.
....Applicant
Shri C.B. Sharma, counsel for applicant.
VERSUS
1. Union of India through Secretary to Govt. of
India, Ministry of Finance, Deptt. of Revenue,
North Block, New Delhi.
2. Principal Commissioner of Income Tax (Central),
2nd Floor, New C R Building (Annexe), Statute
Circle, B D Road, Jaipur.
3. Assistant Director of Income Tax (Investigation),
Room No. 108, Central Revenue Building, Jaipur
Road, Ajmer.
4. Principal Commissioner of Income Tax, Room No.
310-A, Aaykar Bhawan, Subcity Centre, Savina,
Udaipur-313001.
.... Respondents
Shri Gaurav Jain, counsel for respondents.
3
OA No. 354/2018, OA No. 355/2018, OA No. 248/2019,
OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021
OA No. 248/2019
Shubhendu Ojha son of late Shri Mahendra Ojha, aged
about 40 years, resident of 1243/32, Dadabhai
Colony, Nashirabad Road, Ajmer, at present employed
as Casual Computer Operator / Data Entry Operatory
(through outsourcing), in the office of ITO TDS,
Aayakar Bhawan, C R Building, Jaipur Road, Ajmer. M-
9414074106.
....Applicant
Shri C.B. Sharma, counsel for applicant.
VERSUS
1. Union of India through Secretary to Govt. of
India, Ministry of Finance, Deptt. of Revenue,
North Block, New Delhi - 110001.
2. Principal Chief Commissioner of Income Tax, C R
Building, Statute Circle, B D Road, Jaipur-
302005.
3. Pr. Commissioner of Income Tax, Central
Revenue Building, Ajmer - 305001.
.... Respondents
Shri Gaurav Jain, counsel for respondents.
OA No. 249/2019
1. Mahesh Kumar Sharma son of Late Shri
Ramniwas Sharma, aged about 30 years,
resident of 450, Bhojpura Basti, Shakar Marg, 22
Godam, Jaipur-302006, employed as Casual /
Daily Wager Peon (MTS) (outsourcing), in the
office of Pr. DIT (Inv.), Jaipur. M-9414074106.
2. Shiv Prasad Sharma son of Shri Satye Narayan
Sharma, aged about 30 year, resident of Village-
post-Toda-Bhata, Th. Bassi, Jaipur-303301,
employed as Casual / Daily Wager Peon (MTS)
(outsourcing), in the office of DGIT (Inv.), Jaipur.
3. Deepak Kumar son of Shri Nathu Ram, aged
about 25 years, resident of 2512, Harijan Basti,
Amer, Th. Amer, Jaipur employed as Casual /
4
OA No. 354/2018, OA No. 355/2018, OA No. 248/2019,
OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021
Daily Wager Sweeper (MTS) (outsourcing), in the
office of DGIT (Inv.), Jaipur.
4. Rajendra Kumar Saini son of Shri Prabhai Lal
Saini, aged about 34 years, resident of Maliyo Ka
Mohalla, Lakda Mandi, Watika, Th. Sanganer,
Jaipur - 303905, employed as Casual / Daily
Wager Peon (MTS) (outsourcing), in the office of
Pr DIT (Inv.), Jaipur.
5. Hajari Lal Meena son of Shri Lohadi Ram, aged
about 29 years, resident of Village-Namolav, Th
Dausa, Dausa-303303, employed as Casual /
Daily Wager Driver (MTS) (outsourcing), in the
office of Pr. DIT (Inv.), Jaipur.
6. Shankar Lal Meena son of Shri Jayram Meena,
aged about 34 years, resident of Village Post
Chawandiya, Bassi, Th. Jamwa Ramgarh, Jaipur-
303301, employed as Casual / Daily Wager Peon
(MTS) (outsourcing), in the office of Pr DIT
(Inv.), Jaipur.
7. Ramesh Singh Naruka son of Shri Laxman Singh
Naruka, aged about 30 years, resident of Village-
post-Kerwawal, Th. Malakheda, Distt. Alwar-
301406, employed as Causal/Daily Wager Peon
(MTS) (outsourcing), in the office of (Inv.),
Jaipur.
8. Kamlesh Kumar Khotiwala son of Late Shri
Ranjeet Kumar Khotiwala, aged about 42 years,
resident of Village-Jhar, Post-Dudoli, Th. Bassi,
Jaipur-303301, employed as Casual/Daily Wager
Peon (MTS) (outsourcing), in the office of (Inv.),
Jaipur.
9. Sonu Dixit son of Shri Mohan Lal Dixit, aged
about 28 years, resident of Brahamano Ka Bass,
Watika, Sanganer, Jaipur, employed as
Casual/Daily Wager Peon (MTS) (outsourcing), in
the office of (Inv.), Jaipur.
10. Naveen Kumar Pipaliwal son of Shri Suresh
Chand Pipaliwal, aged about 30 years, resident of
4139, Top Khana Ka Rasta, O P. Bazar, Jaipur-
302001, employed as Casual/Daily Wager Peon
(MTS) (outsourcing), in the office of Pr CIT
(Central), Jaipur.
....Applicants
Shri C.B. Sharma, counsel for applicants.
5
OA No. 354/2018, OA No. 355/2018, OA No. 248/2019,
OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021
VERSUS
1. Union of India through Secretary to Govt. of
India, Ministry of Finance, Central Board of Direct
Taxes, North Block, New Delhi-110001.
2. Director General of Income Tax (Investigation), C
R Building, Statute Circle, B D Road, Jaipur-
302005.
.... Respondents
Shri Gaurav Jain, counsel for respondents.
OA No. 326/2021 with MA No. 642/2021
Smt. Sulochana wife of Shri Dhan Raj Rathore, aged
about 45 years, resident of Tejaji Chowk, Prem Nagar-
II, Kota-324005 (M:9459353429), at present
employed as Casual Labour (Daily Paid) (MTS)
(through outsourcing) in the office of Dy Director of
Income Tax (Investigation), Income Tax Office Kota-
324007.
....Applicant
Shri C.B. Sharma, counsel for applicant.
VERSUS
1. Union of India through Secretary to Govt. of
India, Ministry of Finance, Department of
Revenue, North Block, New Delhi - 110 001.
2. Director General of Income Tax (Investigation), C
R Building, Statute Circle, B D Road, Jaipur-
302005.
3. Dy Director of Income Tax (Investigation),
Central Revenue Building Rawat Bhata Road
Kota-324009.
.... Respondents
Shri Gaurav Jain, counsel for respondents.
6
OA No. 354/2018, OA No. 355/2018, OA No. 248/2019,
OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021
ORDER
Per: Hina P. Shah, Judicial Member Since common question of law and facts are involved in OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 and OA No. 326/2021, the same are taken up together for disposal.
2. The main prayer of the applicants in these OAs is that respondents be directed to re-engage / change their mode of engagement from so called contractors / service providers to that of engaging directly as casual labour with all consequential benefits.
3. Brief facts of the cases in common, is that presently, the applicants are working with the respondent-department through contractors / service providers on casual basis on different posts like casual Computer Operator/Data Entry Operator, Peon, Sweeper, Driver and they are being paid their wages through contractors/service providers. The applicants state that initially they were engaged as daily wages casual worker to work in the respondent-department and were continued but thereafter they were engaged as casual labour / daily paid worker by outsourcing. 7 OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021 The applicants further state that they are performing their duties with satisfaction of the respondent- department and they are under full control of the departmental authorities i.e. for the purpose of work, attendance, engagement etc. But the payment system is through contractor under the garb of outsourcing of casual labour. Thus, the applicants have approached this Tribunal seeking direction to respondents to re- engage / change their mode of engagement from so called contractors / service providers to that of engaging directly as casual labour with all consequential benefits like fixation of pay / review of daily rates of wages etc.
4. By way of filing replies to these Original Applications, respondents have raised preliminary objection on the ground of jurisdiction stating that present OAs deserve to be dismissed since this Tribunal has no jurisdiction as the applicants were not appointed to any civil post or service by the Government and the matter does not come within the ambit of 'service matter' as per Section 3 (q) of the Administrative Tribunals Act, 1985. Section 14 of the Administrative Tribunals Act, 1985 also provides 8 OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021 jurisdiction, powers and authority of the Tribunal exercisable in relation to recruitment, and matters concerning recruitment, to any All India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian. The applicants are neither employees of the Income Tax Department nor they are persons directly engaged by the department. Their services were provided to the department through the service providers as per agreements entered between the department and service providers. The persons engaged by the contracting agency/service providers will be in the employment of the agency/service providers and the department will not involve in any dispute between the workers and service providers. The respondents further state that the policy of outsourcing as per GFR 178 has been approved by the Hon'ble High Court of Rajasthan in the case of UOI & Ors. vs. Jeevan Singh Gehlot & Ors. (DBCWP Nos. 1924, 5530/2011. The respondents also state that applicants were engaged on outsourcing through M/s Arjun Security Agency, Ajmer / Raj Manpower, Ajmer Road, Jaipur / M/s Aravali Security Services, Kota. 9 OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021 Thus, respondents have prayed that present OAs filed by the applicants, whose services had been provided to the department through the service providers/contractors deserve to be dismissed being not maintainable.
5. Heard learned counsels for the parties and perused the pleadings and material available on record, besides the judgments relied upon by the respective parties.
6. We have observed that the issue with regard to jurisdiction has already been decided by this Bench of the Tribunal in number of cases and has held that the applicants, who are employees of the service providers, were neither appointed to any civil service of the Union or on civil post under the Union and, as such, this Tribunal has no jurisdiction to entertain the Original Applications. Therefore, applying the same ratio, we are of the view that this Tribunal has no jurisdiction to entertain the present Original Applications as the applicants herein also are not appointed to any civil service of the Union or on civil post under the Union; rather they are working with 10 OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021 the respondent-department through contractors / service providers and are being paid their wages through contractors. Besides, it is seen that the applicants are not employees of the respondent- department. They have suo motu or willingly joined the respondent-department through contractors and it is clear that they are not compelled by the respondent-department to work on contract or to take the wages through the contractors. The applicants have approached the service providers, who have engaged them and deployed them to perform casual work under the administrative charge of the erstwhile department. It is also seen that applicants had willingly availed the employment through the service providers, who had engaged them and they have been taking the wages from the service providers.
7. It is very clear that provision contained in Rule 178 of General Financial Rules (GFR) permits outsourcing of certain services, which is taken in the interest of economy and efficiency and whenever need arises. It is, thus, clear that as per provision of Rule 178 of GFR, it did not permit hiring of individual persons but only permit hiring of certain services. 11 OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021 Thus, these casual workers have been engaged through service providers to ensure economy and efficiency. It is also clear that payment of wages / salaries is being paid to these casual workers through service providers and not through the department.
8. As far as mode of outsourcing of services as per provision of Rule 178 of GFR is seen, the same has been approved by the Hon'ble High Court of Rajasthan, Jodhpur Bench, Jodhpur in the case of Union of India & Ors. vs. Jeevan Singh Gehlot & Ors., (DB Civil Writ Petition No. 1924/2011), & other connected matters, decided on 19th March, 2015, which reads as under: -
"So far as Rule 178 of the General Financial Rules is concerned, suffice to mention that the mode of utilizing the services through outsourcing is always available to the petitioners but merely on that count services of the casual labourers already working are not required to be dispensed with xxxxxx.
In the said order, the Hon'ble High Court of Rajasthan, Jodhpur Bench has also observed that the position would have been different if the petitioner would have been going to have regular recruitment against the posts occupied by the original applicants.12
OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021 Therefore, it is clear that the Hon'ble High Court of Rajasthan had upheld that mode of utilizing the services through outsourcing under Rule 178 of General Financial Rules is always available to the department and the applicants herein are persons, who willingly joined to avail the employment through service providers.
9. It is also observed by us that though in some cases, applicants were previously engaged for doing some work on casual basis but later on they have been outsourced by the department through contractors / service providers. Thus, it is very clear that these applicants are employees of the contractors / service providers and not of the department.
10. From the order dated 30.05.2017 passed by this Bench of the Tribunal in the case of Vishvendra Singh & Ors. vs. UOI & Ors. (OA No.206/2016) & Bhagwan Singh & Ors. vs. UOI & Ors. (OA No. 207/2016) & other connected matters, it is seen that the applicants therein were initially engaged directly by the department but thereafter all were working through the service providers and in view of the 13 OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021 introduction of new software, changes in the nature of working of the department and starting of online work, and regular recruitment having been made, etc. re-evaluating of the work requirement was done as per guidelines and based on that exercise, the service providers were asked to dispense with the services of the applicants as there was no requirement of work for them.
11. Further, the Hon'ble High Court of Rajasthan, Jaipur Bench, vide its order dated 02.06.2017 in the case of Bhagwan Singh & Ors. vs. UOI & Ors. (D.B. Civil Writ Petition No. 8820/2017) & connected matters, has found no infirmity in the impugned order passed by this Tribunal dismissing the OAs for the reason that it is not a case where casual employees are being replaced by casual employees directly under the Income Tax Department or through a placement agency. It is a case where on account of new software developed and change in nature of working of the department, on an appraisal done less number of Data Entry Operators and other casual employees would be required. On said reason, services of the petitioners have been disposed with.
14OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021
12. In the present cases in hand, we have also found that services of the applicants had already been disengaged in the wake of change in the nature of work, appointment of regular staff in the cadre of MTS, which is 100% direct Group 'C' posts selected by the Staff Selection Commission (SSC) after qualifying the examination conducted by the SSC.
13. The applicants herein have also relied upon many judgments and a few of them are as under:-
"(i). Mahendra Singh & Ors. vs. UOI & Ors.
(OA No. 17/2012) & other connected matters, decided by CAT, Jodhpur Bench of this Tribunal vide its order dated 29.10.2012.
(ii) Jeevan Singh Gehlot & Ors. vs. UOI & Ors. (OA No. 121/2010) decided by CAT, Jodhpur Bench of this Tribunal vide its order dated 22.02.2011.
(iii) Babu Lal Mali & Ors. vs. UOI & Ors.
(D.B.CWP No. 9714/2013) & other connected matters, decided by the Hon'ble High Court of Rajasthan, Jaipur Bench, vide its order dated 17.07.2015.
(iv) Mukesh Sharma vs. JNVU, Jodhpur & Anr. (SB Civil Writ No. 7126/2018) & other connected matters, decided by the Hon'ble High Court of Rajasthan, Jodhpur Bench vide its order dated 16.01.2019."
So far as case of Mahendra Singh (supra) is concerned, the applicants therein were continuously 15 OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021 working with the respondent-department on casual basis as full time employee for the last several years. So their prayer in those cases was that they should not be removed from service on the ground that their services are to be utilized through service provider by removing them from services. They sought for protection of the continuous service as they served continuously for the last 16 years. Here, in the present cases, the applicants are not working on casual basis as full time or part time basis with the Income Tax Department but, in fact, they are working through service providers/contractors.
Also, it is very clear from the directions given by Jodhpur Bench of this Tribunal in the case of Mahendra Singh (supra) that such employees, who continued to be on the rolls of the respondent organization should be allowed to mark their attendance and they may continue discharging their duties till a decision on the subject by the Hon'ble High Court. Further direction was that those employees who willingly wish to join to avail of the employment through the contractors / service providers may be given the first preference in doing so. In the present cases, the applicants are already 16 OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021 working willingly through contractors / service providers and no such employees are continued to be on the rolls of the respondent-organization. So far as the case of Jeevan Singh Gehlot (supra) is concerned, in that case, the applicants were being replaced by any other set of persons either on daily wage basis or through service provider. But present cases of the applicants are on different footings. Therefore, cases of the present applicants are distinguished from the applicants in the cases of Mahendra Singh (supra) as well as Jeevan Singh Gehlot (supra).
14. Further, the Hon'ble High Court of Rajasthan, Jodhpur Bench vide its order dated 19th March, 2015, in D.B. Civil Writ Petition No. 1924/2011 (Union of India & Ors. vs. Jeevan Singh Gehlot & Ors.) as well as in D.B. Civil Writ Petition No. 5530/2013 (Union of India & Ors. vs. Mahendra Singh & Ors.) and connected matters, have observed that the only claim, thus, made by the original applicants was with regard to their continuance in service. The petitioners/department want to remove the original applicants from service just to have labour through contractor with a view to reduce expenditure but that 17 OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021 object cannot be served as the applicants too are working on casual basis only. Here, as stated earlier, the present cases are not of such nature. The applicants herein are not being replaced by any other set of persons either on daily wage basis or through service provider but they are already working on casual basis through service providers/contractors. Further, mode of utilizing services through outsourcing is always available to the department as per provision of Rule 178 of GFR. The Hon'ble High Court of Rajasthan, Jodhpur Bench has made it clear that the directions given by the Tribunal shall be applicable only for those employees who were working with the petitioners on casual basis on the date of disposal of the Original Applications. Therefore, we find that in the present cases, such is not a situation as the applicants are already working, in fact, through service providers.
15. So far as the judgments in the cases of Babu Lal Mali (supra) as well as in Mukesh Sharma (supra), as relied upon by the applicants, are concerned, the same are not applicable to the facts and circumstances of the present cases. In the case of 18 OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021 Babu Lal Mali (supra), applicants were working in the Income Tax Department on casual basis for a long time and were being engaged by the private agencies and the Hon'ble High Court decided the said case by granting the same relief as granted by the Division Bench in its judgment dated 19.03.2015 in D.B. Civil Writ Petition No. 1924/2011, Union of India & Ors. vs. Jeevan Singh Gehlot & Ors. (supra). In the case of the Mukesh Sharma (supra), the applicants were seeking regularization of their services and the Hon'ble High Court of Rajasthan, Jodhpur Bench directed the respondents to regularize the services of the petitioners and pass appropriate suitable orders awarding them consequential benefits. But here in the present cases, such is not a situation.
16. The respondents herein have also relied upon several judgments, some of them, are reproduced here as under: -
"(i) Vishvendra Singh & Ors. vs. UOI & Ors. (OA No. 206/2016) & Bhagwan Singh & Ors. vs. UOI & Ors. (OA No. 207/2016) & other connected matters, decided by Jaipur Bench of this Tribunal vide its order dated 30.05.2017.
(ii) Poonam Kashyap & Ors. vs. UOI & Ors.
(OA No. 42/2019) decided by Jaipur Bench of this Tribunal vide its order dated 31.01.2022. 19 OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021
(iii) Tinku Dendwal vs. UOI & Ors. (OA No. 256/2016) decided by Jaipur Bench of this Tribunal vide its order dated 08.03.2022.
(iv) Narendra Kumar & Anr. vs. UOI & Ors. (OA No. 50/2016) decided by Jaipur Bench of this Tribunal vide its order dated 06.04.2022.
(v) Subhash Paliwal & Ors. vs. UOI & Ors. (OA No. 63/2016) decided by Jaipur Bench of this Tribunal vide its order dated 06.04.2022.
(vi) Prem Kumar & Ors. vs. UOI & Ors. (OA No. 192/2018, decided by Jaipur Bench of this Tribunal vide its order dated 29.04.2022."
17. So far as the judgment in the cases of Vishvendra Singh & Bhagwan Singh (supra), as relied upon by the respondents, is concerned, this Bench of the Tribunal has held as under: -
"30. From the perusal of the above, it is clear that the case of the applicants is not covered from the judgment in the case of Jeevan Singh Gehlot (supra) because the present applicants are not similar to the applicants in that case, because in the present case as argued by the counsel for respondents no replacement / substitution of the applicants has been done by the respondents and the services have been dispensed with on the basis of requirement of work.
31. On an overall basis, it is found that the applicants in the present OAs are all working through service provider and on the basis of changing nature of work of the department including online work, introduction of new software, recruitment of regular persons, re- evaluation of the job requirement was done and on that basis, the service providers were asked to dispense with a certain number of 20 OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021 persons and thereby the applicants were disengaged and there has been no replacement or substitution and the judgment in the case of Jeevan Singh Gehlot (supra) does not come to the rescue of the applicants. Had that been the case, the matter would have been different. Moreover, the applicants were engaged through the service provider with whom the respondents entered into a contract and were also being paid by the concerned agency and they cannot as a matter of right claim continuity in service as the respondents have entered into a contract with the service provider and not with the applicants / individuals directly and further as brought out emphatically by the counsel for respondents, the respondent - department has not replaced or substituted the applicants with any other employees."
18. Thereafter, the matter was taken up with the Hon'ble High Court of Rajasthan, Jaipur Bench by way of filing D.B. Civil Writ Petition No. 8820/2017 in the case of Bhagwan Singh & Ors. vs. UOI & Ors., and other connected matters, wherein the Hon'ble High Court vide its order dated 02.06.2017 has found no infirmity in the impugned order passed by this Tribunal dismissing the OAs for the reason that it is not a case where casual employees are being replaced by casual employees directly under the Income Tax Department or through a placement agency. Later on, D.B. Civil Review Petition No. 254/2017 in the case of Bhagwan Singh & Ors. vs. UOI & Ors., and other 21 OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021 connected matters, were filed before the Hon'ble High Court of Rajasthan, Jaipur Bench and the Hon'ble High Court of Rajasthan vide its order dated 24.09.2018 has dismissed the said Review Petitions. Thereafter, the petitioners, Bhagwan Singh & Ors., have approached the Hon'ble Supreme Court of India by way of filing Special Leave Petition (Civil) Diary No(s). 45887/2018, and the same has also been dismissed vide order dated 02.01.2019 by the Hon'ble Supreme Court of India.
19. So far as the judgment passed by this Bench of the Tribunal in the case of Poonam Kashyap & Ors. (supra), is concerned, this Tribunal has observed as under: -
"7. The question which requires consideration is whether the applicants who have been appointed through service provider/contractor and not appointed to any post or service by the Government come within the ambit of service matters as per Section 3(q) of the Administrative Tribunals Act, 1985.
8. After hearing the parties and perusing the pleadings, the factual matrix of the case is that the present applicants have been appointed by a service provider/contractor, M/s Raj Manpower, 818, Banshi Path, Rani Sati Nagar, Jaipur and their services are provided to the department by the said service provider who have directly engaged them as per the agreement entered by the Director of Income Tax (I&CI), Jaipur with the said contractor. These applicants are neither 22 OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021 employees of the Income Tax Department nor these persons are directly engaged by the department. It is clear that there is no master and servant relationship between the applicants and the official respondents as neither they are appointed by them nor their salary is being paid by the department as they are employees of said M/s Raj Manpower.
9. We are in agreement with the arguments made by Shri Gaurav Jain, learned counsel for the respondent nos. 1 to 4 that the present Original Application does not fall within the definition of 'service matters' as per the provisions of Section 3 (q) of the Administrative Tribunals Act, which reads as under:-
"3.(q) "service matters", in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation [or society] owned or controlled by the Government, as respects -
(i) remuneration (including allowances), pension and other retirement benefits;
(ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation;
(iii) leave of any kind;
(iv) disciplinary matters; or
(v) any other matter whatsoever;"
10. As observed by us as the applicants are the employees of a service provider, therefore, it cannot be said that the matter as projected in the O.A. is with regard to the conditions of their services in connection with the affairs of the Union or of any State or of any local or other authority. Apart from this, Section 14 of the Administrative Tribunals Act, 1985, which deals with the definition of Jurisdiction, Powers and the Authority of this Tribunal, which is as under:-23
OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021 "14. Jurisdiction, powers and authority of the Central Administrative Tribunal.
- (1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court 1[***] in relation to -
(a) recruitment, and matters concerning recruitment, to any All-India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian;
(b) all service matters concerning -
(i) a member of any All-India Service; or
(ii) a person [not being a member of an All-India Service or a person referred to in clause (c)] appointed to any civil service of the Union or any civil post under the Union; or
(iii) a civilian [not being a member of an All-India Service or a person referred to in clause (c)] appointed to any defence services or a post connected with defence, and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any 2 corporation [or society] owned or controlled by the Government;
(c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-
clause (iii) of clause (b), being a person whose 24 OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021 services have been placed by a State Government or any local or other authority or any corporation 2[or society] or other body, at the disposal of the Central Government for such appointment.
2 [Explanation. - For the removal of doubts, it is hereby declared that references to "Union" in this sub-section shall be construed as including references also to a Union territory.] (2) The Central Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub- section (3) to local or other authorities within the territory of India or under the control of the Government of India and to corporations 2[or societies] owned or controlled by Government, not being a local or other authority or corporation 1[or society] controlled or owned by a State Government:
Provided that if the Central Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates may be so specified under this sub-section in respect of different classes of, or different categories under any class of, local or other authorities or corporations 1[or societies].
(3) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall also exercise, on and from the date with effect from which the provisions of this sub-section apply to any local or other authority or corporation 1[or society], all the jurisdiction, powers and authority exercisable immediately before that date by all courts (except the Supreme Court 2[***]) in relation to -
(a) recruitment, and matters concerning recruitment, to any service or post in connection with the affairs of such local 25 OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021 or other authority or corporation 1[or society]; and
(b) all service matters concerning a person [other than a person referred to in clause (a) or clause (b) of sub-
section (1)] appointed to any service or post in connection with the affairs of such local or other authority or corporation 1[or society] and pertaining to the service of such person in connection with such affairs."
11. We are also in agreement with the judgments relied by the official respondents and more particularly in an identical case decided by this Bench of the Tribunal vide order dated 30.05.2017 in a bunch of cases, namely O.A. No. 206/2016, (Vishvendra Singh & Ors. vs. Union of India & Ors.), & OA No. 207/2016 (Bhagwan Singh & Ors. Vs. Union of India & Ors., and other connected OAs, wherein this Tribunal has dismissed these OAs lacking in merit. Also the said judgment of this Tribunal was upheld by the Hon'ble High Court of Rajasthan, Jaipur Bench vide its order dated 02.06.2017 in the case of Bhagwan Singh & Ors. vs. Union of India & Ors. (D.B. Civil Writ Petition No. 8820/2017), and other connected Writ Petitions, finding no infirmity in the order of this Tribunal and the said Writ Petitions were dismissed. Similar view has been taken by the Hon'ble Apex Court in bunch of cases, Civil Appeal Nos. 1799-1800 of 2019 (Bharat Heavy Electricals Ltd. vs. Mahendra Prasad Jakhmola & Ors., decided on 20th February 2019. The present case of the applicants is almost identical to the judgment / order dated 27.09.2021 passed by this very Bench of the Tribunal in OA No. 396/2019 (Rakesh Kumar Gothwal & Ors. vs. Union of India & Ors.).
12. In the facts and circumstances of the case, we find that the applicants, who are employees of the said service provider, namely M/s Raj Manpower, were neither appointed to any civil service of the Union or on civil post under the 26 OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021 Union. In this view of the matter, we find that this Tribunal has no jurisdiction to entertain the present Original Application.
13. In view of the discussions made herein- above, we are of the considered view that the present Original Application deserves to be dismissed being not maintainable and the same is, accordingly, dismissed. No order as to costs." Further, it is seen that Poonam Kashyap & Ors. (supra), has approached the Hon'ble High Court of Rajasthan, Jaipur Bench by way of filing D.B. Civil Writ Petition No. 4699/2022 and the same has been dismissed as withdrawn vide order dated 27.07.2022.
20. We have also gone through the judgments passed by this Bench of the Tribunal in the cases of Tinku Dendwal (supra), Narendra Kumar (supra), Subhash Paliwal (supra) and Prem Kumar (supra) and seen that all these Original Applications were dismissed being not maintainable as this Tribunal has no jurisdiction to entertain those OAs for the reason that the applicants, who are the employees of the service providers, were neither appointed to any civil service of the Union or on civil post under the Union.
21. We have also gone through the order dated 21.07.2022 passed by the Hon'ble High Court of 27 OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021 Rajasthan, Jodhpur Bench, Jodhpur in the case of Tara Chand vs. UOI & Anr. (D.B. Civil Writ Petition No. 2300/2020) and other connected matters, wherein the Hon'ble High Court of Rajasthan has observed as under: -
"Section 14(1)(a) of the Administrative Tribunal Act, 1985 clearly envisages that Central Administrative Tribunal would exercise jurisdiction in relation to the recruitment and matters concerning recruitment, to any All India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or any defence service, being, in either case a post filled by civilian. We have already held in preceding paras that petitioners / applicants were not holding civil posts under the Union of India. Therefore, qua their service disputes, the provisions of Administrative Tribunals Act, 1985 were not attracted. Consequently, learned Tribunal rightly held that it did not have the jurisdiction to decide the disputes concerning service matters of the holders of such posts. The impugned orders dated 19.07.2019 & 22.07.2019 does not suffer from any infirmity or illegality whatsoever warranting interference in the extraordinary writ jurisdiction conferred upon this Court by Article 226 of the Constitution of India.
In view of above, all these writ petitioners are dismissed.
No order as to cost."
We have also noticed that the petitioners/applicants therein were engaged on
contractual basis as Safaiwala and were paid wages as per Minimum Wages Act, from the corpus fund 28 OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021 provided by the Army Group Insurance Fund (AGIF).
The contractual employment of the petitioners was discontinued after receipt of letter dated 25.03.2014 by AGIF, directing future engagement of Safaiwalas through placement agencies by executing an agreement with them. The Hon'ble High Court of Rajasthan, Jodhpur Bench has also observed that the petitioners were provided appointment on contractual basis on consolidated salary generated from the interest of corpus fund provided to the Military Hospital, Jodhpur by AGIF. They were not appointed on sanctioned posts in connection with the affairs of Union of India. Thus, the Hon'ble High Court came to the conclusion that petitioners / applicants therein were not holders of 'civil posts' within the Union of India, therefore, the Central Administrative Tribunal does not have jurisdiction to decide dispute pertaining to service conditions of these employees.
22. In view of the observations and discussions made herein-above, we find that the present applicants, who are employees of the service providers/contractors, were neither appointed to any civil service of the Union or on civil post under the Union. In this view of 29 OA No. 354/2018, OA No. 355/2018, OA No. 248/2019, OA No. 249/2019 & OA No. 326/2021 with MA No. 642/2021 the matter, we are of the view that this Tribunal has no jurisdiction to entertain the present Original Applications.
23. Accordingly, we are of the considered view that the present Original Applications deserve to be dismissed being not maintainable and the same are hereby dismissed. No order as to costs.
24. In view of the order passed in the Original Applications, all the pending Misc. Applications, if any, are disposed of.
(HINA P. SHAH) (DINESH SHARMA) JUDICIAL MEMBER ADMINISTRATIVE MEMBER /nlk/