Central Administrative Tribunal - Delhi
Shri Birmanand Aged About 41= Years vs The Union Of India (Through Secretary) on 20 July, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI OA 2523/2011 Along with OA 2529/2011, OA 2531/2011, OA 2548/2011, OA 2553/2011 with MA 1723/2011, OA 4114/2011, OA 4660/2011 with MA 1732/2012, OA 318/2012 with MA 1724/2012, OA 320/2012 with MA 1720/2012, OA 321/2012 with MA 1718/2012, OA 324/2012, OA 334/2012 with MA 1733/2012, OA 335/2012 with MA 1719/2012, OA 327/2012 with MA 1720/2012, & OA 677/2012 with MA 1736/2012 ORDERS RESERVED ON : 16.7.2012 ORDERS PRONOUNCED ON : 20.7.2012. Honble Mr. S.P. Singh, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) OA 2523/2011 Shri Birmanand aged about 41= years S/o Late Shri Mathura Working as CLTS Sanctioned post of Farm Beldar performing Farming operations in EBS Babugarh Cantt. under Dte Gen RVS (RV-1) QMGs Branch AHQ Ministry of Defence R/o Village Atuta Post Babugarh Cantt., Distt. Ghaziabad (U.P.) .... Applicant ( By Advocate Shri V.P.S. Tyagi ) VERSUS 1. The Union of India (Through Secretary) Ministry of Defence, South Block, New Delhi 2. The Director General of Remount & Veterinary Service (RV-1) QMGs Branch AHQ IHQ of MOD (Army) West Block-III, R.K. Puram, New Delhi. 3. The Additional Director General of Org 4 (Civ) (a) Adjutant generals Branch AHQ IHQ of MoD (Army) DHQ PO New Delhi-110011. 4. The Commandant Equine Breeding Stud Babugarh Cantt. Distt. Ghaziabad (U.P.) .. Respondents ( By Advocate Shri D.S. Mehandru ) OA 2529/2011 Shri Bundu aged about 43 years S/o Late Shri Chhidda working as CLTS, Sanctioned post of Farm Beldar performing Farming operations in EBS Babugarh Cantt. under Dte Gen RVS (RV-1) QMGs Branch AHQ Ministry of Defence, R/o Village Habispur Bigas, Post Babugarh Cantt. Distt. Ghaziabad (UP) Applicant (By Advocate: Shri V.P.S. Tyagi) VERSUS 1. The Union of India (Through Secretary) Ministry of Defence, South Block, New Delhi 2. The Director General of Remount & Veterinary Service (RV-1) QMGs Branch AHQ IHQ of MOD (Army) West Block-III, R.K. Puram, New Delhi. 3. The Additional Director General of Org 4 (Civ) (a) Adjutant generals Branch AHQ IHQ of MoD (Army) DHQ PO New Delhi-110011. 4. The Commandant Equine Breeding Stud Babugarh Cantt. Distt. Ghaziabad (U.P.) .. Respondents ( By Advocate Shri D.S. Mehandru ) OA 2531/2011 Shri Ashok Kumar aged about 48 = years S/o Late Shri Chanderbhan working as CLTS, Sanctioned post of Farm Beldar performing Farming operations in EBS Babugarh Cantt. under Dte Gen RVS (RV-1) QMGs Branch AHQ Ministry of Defence, R/o Village Habispur Bigas, Post Babugarh Cantt. Distt. Ghaziabad (UP) Applicant (By Advocate: Shri V.P.S. Tyagi) VERSUS 1. The Union of India (Through Secretary) Ministry of Defence, South Block, New Delhi 2. The Director General of Remount & Veterinary Service (RV-1) QMGs Branch AHQ IHQ of MOD (Army) West Block-III, R.K. Puram, New Delhi. 3. The Additional Director General of Org 4 (Civ) (a) Adjutant generals Branch AHQ IHQ of MoD (Army) DHQ PO New Delhi-110011. 4. The Commandant Equine Breeding Stud Babugarh Cantt. Distt. Ghaziabad (U.P.) .. Respondents ( By Advocate Shri D.S. Mehandru ) OA 2548/2011 Shri Jai Prakash aged about 55 > years S/o Late Shri Ved Ram working as CLTS, Sanctioned post of Farm Beldar performing Farming operations in EBS Babugarh Cantt. under Dte Gen RVS (RV-1) QMGs Branch AHQ Ministry of Defence, R/o Village Atuta, Post Babugarh Cantt. Distt. Ghaziabad (UP) Applicant (By Advocate: Shri V.P.S. Tyagi) VERSUS 1. The Union of India (Through Secretary) Ministry of Defence, South Block, New Delhi 2. The Director General of Remount & Veterinary Service (RV-1) QMGs Branch AHQ IHQ of MOD (Army) West Block-III, R.K. Puram, New Delhi. 3. The Additional Director General of Org 4 (Civ) (a) Adjutant generals Branch AHQ IHQ of MoD (Army) DHQ PO New Delhi-110011. 4. The Commandant Equine Breeding Stud Babugarh Cantt. Distt. Ghaziabad (U.P.) .. Respondents ( By Advocate Shri D.S. Mehandru ) OA 2553/2011 MA 1723/2011 Shri Vijay Pal aged about 44 = years S/o Late Shri Khema working as CLTS in the Sanctioned post of Farm Beldar performing Farming operations in EBS Babugarh Cantt. under Dte Gen RVS (RV-1) QMGs Branch AHQ Ministry of Defence, R/o Village Habispur Bigas, Post Babugarh Cantt. Distt. Ghaziabad (UP) Applicant (By Advocate: Shri V.P.S. Tyagi) VERSUS 1. The Union of India (Through Secretary) Ministry of Defence, South Block, New Delhi 2. The Director General of Remount & Veterinary Service (RV-1) QMGs Branch AHQ IHQ of MOD (Army) West Block-III, R.K. Puram, New Delhi. 3. The Additional Director General of Org 4 (Civ) (a) Adjutant generals Branch AHQ IHQ of MoD (Army) DHQ PO New Delhi-110011. 4. The Commandant Equine Breeding Stud Babugarh Cantt. Distt. Ghaziabad (U.P.) .. Respondents ( By Advocate Shri D.S. Mehandru ) OA 4114/2011 Shri Rishi Pal aged about 50 = years S/o Late Shri Raja Ram Presently working as CLTS Group D post in EBS Babugarh Cantt. Under QMGs Branch Dte Gen. RVS (RV-1) AHQ Ministry of Defence, R/o Village Atuta, Post Babugarh Cantt. Distt. Ghaziabad (UP) Applicant (By Advocate: Shri V.P.S. Tyagi) VERSUS 1. The Union of India (Through Secretary) Ministry of Defence, South Block, New Delhi 2. The Director General of Remount & Veterinary Service (RV-1) QMGs Branch AHQ IHQ of MOD (Army) West Block-III, R.K. Puram, New Delhi. 3. The Additional Director General of Org 4 (Civ) (a) Adjutant generals Branch AHQ IHQ of MoD (Army) DHQ PO New Delhi-110011. 4. The Commandant Equine Breeding Stud Babugarh Cantt. Distt. Ghaziabad (U.P.) .. Respondents ( By Advocate Mrs. Priyanka M. Bhardwaj ) OA 4660/2011 MA 1732/2012 Shri Kanti aged about 49 years S/o Late Shri Budhhu Presently working as CLTS Group D post in EBS Babugarh Cantt. Under QMGs Branch Dte Gen. RVS (RV-1) AHQ Ministry of Defence, R/o Village Atuta, Post Babugarh Cantt. Distt. Ghaziabad (UP) Applicant (By Advocate: Shri V.P.S. Tyagi) VERSUS 1. The Union of India (Through Secretary) Ministry of Defence, South Block, New Delhi 2. The Director General of Remount & Veterinary Service (RV-1) QMGs Branch AHQ IHQ of MOD (Army) West Block-III, R.K. Puram, New Delhi. 3. The Additional Director General of Org 4 (Civ) (a) Adjutant generals Branch AHQ IHQ of MoD (Army) DHQ PO New Delhi-110011. 4. The Commandant Equine Breeding Stud Babugarh Cantt. Distt. Ghaziabad (U.P.) .. Respondents ( By Advocate Mrs. Priyanka M. Bhardwaj ) OA 318/2012 MA 1724/2012 Shri Brij Mohan aged about 53 = years S/o Late Shri Chet Ram Presently working as CLTS Group D post in EBS Babugarh Cantt. Under QMGs Branch Dte Gen. RVS (RV-1) AHQ Ministry of Defence, R/o Village Atuta, Post Babugarh Cantt. Distt. Ghaziabad (UP) Applicant (By Advocate: Shri V.P.S. Tyagi) VERSUS 1. The Union of India (Through Secretary) Ministry of Defence, South Block, New Delhi 2. The Additional Dte Gen of Org 4 (Civ) (a) Adjutant Generals Branch AHQ Army Headquarters DHQ PO New Delhi-110011. 3. The Director General of RVS (RV-1) QMGs Branch AHQ IHQ of MOD (Army) West Block-III, R.K. Puram, New Delhi. 4. The Commandant Equine Breeding Stud Babugarh Cantt. Distt. Ghaziabad (U.P.) .. Respondents ( By Advocate Mrs. Priyanka M. Bhardwaj ) OA 320/2012 MA 1720/2012 Shri Dharambir aged about 43 = years S/o Shri Gange Presently working as CLTS Group D post in EBS Babugarh Cantt. Under QMGs Branch Dte Gen. RVS (RV-1) AHQ Ministry of Defence, R/o Village Habispur Bigas, Post Babugarh Cantt. Distt. Ghaziabad (UP) Applicant (By Advocate: Shri V.P.S. Tyagi) VERSUS 1. The Union of India (Through Secretary) Ministry of Defence, South Block, New Delhi 2. The Additional Dte Gen of Org 4 (Civ) (a) Adjutant Generals Branch AHQ Army Headquarters DHQ PO New Delhi-110011. 3. The Director General of RVS (RV-1) QMGs Branch AHQ IHQ of MOD (Army) West Block-III, R.K. Puram, New Delhi. 4. The Commandant Equine Breeding Stud Babugarh Cantt. Distt. Ghaziabad (U.P.) .. Respondents ( By Advocate Mrs Priyanka M. Bhardwaj ) OA 321/2012 MA 1718/2012 Shri Hari Chand aged about 44 = years S/o Shri Narain Singh Presently working as CLTS Group D post in EBS Babugarh Cantt. under QMGs Branch Dte Gen. RVS (RV-1) AHQ Ministry of Defence, R/o Village Simrauli, Post Babugarh Cantt. Distt. Ghaziabad (UP) Applicant (By Advocate: Shri V.P.S. Tyagi) VERSUS 1. The Union of India (Through Secretary) Ministry of Defence, South Block, New Delhi 2. The Additional Dte Gen of Org 4 (Civ) (a) Adjutant Generals Branch AHQ Army Headquarters DHQ PO New Delhi-110011. 2. The Director General of RVS (RV-1) QMGs Branch AHQ IHQ of MOD (Army) West Block-III, R.K. Puram, New Delhi. 4. The Commandant Equine Breeding Stud Babugarh Cantt. Distt. Ghaziabad (U.P.) .. Respondents ( By Advocate Mrs. Priyanka M. Bhardwaj ) OA 324/2012 Shri Raj Pal aged about 48 = years S/o Late Shri Yad Ram Presently working as CLTS Group D post in EBS Babugarh Cantt. Under QMGs Branch Dte Gen. RVS (RV-1) AHQ Ministry of Defence, R/o Village Atuta, Post Babugarh Cantt. Distt. Ghaziabad (UP) Applicant (By Advocate: Shri V.P.S. Tyagi) VERSUS 1. The Union of India (Through Secretary) Ministry of Defence, South Block, New Delhi 2. The Additional Dte Gen of Org 4 (Civ) (a) Adjutant Generals Branch AHQ Army Headquarters DHQ PO New Delhi-110011. 3. The Director General of RVS (RV-1) QMGs Branch AHQ IHQ of MOD (Army) West Block-III, R.K. Puram, New Delhi. 4. The Commandant Equine Breeding Stud Babugarh Cantt. Distt. Ghaziabad (U.P.) .. Respondents ( By Advocate Mrs. Priyanka M. Bhardwaj ) OA 327/2012 MA 1720/2012 Dharambir aged about 41 = years S/o Late Shri Nainu Presently working as CLTS Group D post in EBS Babugarh Cantt. under QMGs Branch Dte Gen. RVS (RV-1) AHQ Ministry of Defence, R/o Ward No.6 Nai Basti, Babugarh Cantt. Distt. Ghaziabad (UP) Applicant (By Advocate: Shri V.P.S. Tyagi) VERSUS 1. The Union of India (Through Secretary) Ministry of Defence, South Block, New Delhi 2. The Additional Dte Gen of Org 4 (Civ) (a) Adjutant Generals Branch AHQ Army Headquarters DHQ PO New Delhi-110011. 3. The Director General of RVS (RV-1) QMGs Branch AHQ IHQ of MOD (Army) West Block-III, R.K. Puram, New Delhi. 4. The Commandant Equine Breeding Stud Babugarh Cantt. Distt. Ghaziabad (U.P.) .. Respondents ( By Advocate Mrs Priyanka M. Bhardwaj ) OA 334/2012 MA 1733/2012 Shri Sant Pal aged about 51 = years S/o Late Shri Malkhan Singh Presently working as CLTS Group D post in EBS Babugarh Cantt. Under QMGs Branch Dte Gen. RVS (RV-1) AHQ Ministry of Defence, R/o Village Atuta, Post Babugarh Cantt. Distt. Ghaziabad (UP) Applicant (By Advocate: Shri V.P.S. Tyagi) VERSUS 1. The Union of India (Through Secretary) Ministry of Defence, South Block, New Delhi 2. The Director General of Remount & Veterinary Service (RV-1) QMGs Branch AHQ IHQ of MOD (Army) West Block-III, R.K. Puram, New Delhi. 3. The Additional Director General of Org 4 (Civ) (a) Adjutant generals Branch AHQ IHQ of MoD (Army) DHQ PO New Delhi-110011. 4. The Commandant Equine Breeding Stud Babugarh Cantt. Distt. Ghaziabad (U.P.) .. Respondents ( By Advocate Shri Priyanka M. Bhardwaj ) OA 335/2012 MA 1719/2012 Shri Birpal aged about 52 years S/o Late Shri Ganga Das Presently working as CLTS Group D post in EBS Babugarh Cantt. under QMGs Branch Dte Gen. RVS (RV-1) AHQ Ministry of Defence, R/o Village Atuta, Post Babugarh Cantt. Distt. Ghaziabad (UP) Applicant (By Advocate: Shri V.P.S. Tyagi) VERSUS 1. The Union of India (Through Secretary) Ministry of Defence, South Block, New Delhi 2. The Additional Dte Gen of Org 4 (Civ) (a) Adjutant Generals Branch AHQ Army Headquarters DHQ PO New Delhi-110011. 3. The Director General of RVS (RV-1) QMGs Branch AHQ IHQ of MOD (Army) West Block-III, R.K. Puram, New Delhi. 4. The Commandant Equine Breeding Stud Babugarh Cantt. Distt. Ghaziabad (U.P.) .. Respondents ( By Advocate Mrs Priyanka M. Bhardwaj ) OA 677/2012 MA 1736/2012 Shri Sat Prakash aged about 41 years S/o Late Shri Jaipal Presently working as CLTS Group D post in EBS Babugarh Cantt. Under QMGs Branch Dte Gen. RVS (RV-1) AHQ Ministry of Defence, R/o Village Atuta, Post Babugarh Cantt. Distt. Ghaziabad (UP) Applicant (By Advocate: Shri V.P.S. Tyagi) VERSUS 1. The Union of India (Through Secretary) Ministry of Defence, South Block, New Delhi 2. The Additional Dte Gen of Org 4 (Civ) (a) Adjutant Generals Branch AHQ Army Headquarters DHQ PO New Delhi-110011. 3. The Director General of RVS (RV-1) QMGs Branch AHQ IHQ of MOD (Army) West Block-III, R.K. Puram, New Delhi. 4. The Commandant Equine Breeding Stud Babugarh Cantt. Distt. Ghaziabad (U.P.) .. Respondents ( By Advocate Mrs Priyanka M. Bhardwaj ) O R D E R Dr. Dharam Paul Sharma, Member (J) :
In these 15 OAs, the applicants are seeking redressal of their grievances arising on account of identical and similar cause of action relating to their non-absorption against regular posts while considering regularization of their services. All these applicants are represented by the same counsel Shri V.P.S. Tyagi and have been heard together, taking OA No.2523/2011 as the leading case. Accordingly, all these Applications are disposed of by this common order.
2. The reliefs sought for by the applicant in Original Application No.2523/2011 are as follows, namely, this Honble Tribunal may graciously be pleased to:-
(a) Hold and declare the Contention of the respondents put-forth in the speaking order under challenge to be not in consonance with the spirit of para 53 of Uma Devis Judgment where citing reference to other paras thereof which had to be pressed in action in the matter of selection of freshers other than the applicants on requirements of the same by getting vacancies released by enhancing the vacancies if they need so.
(b) Direct the Respondents to set in motion the process as envisaged in para 53 of the Apex Court Judgment mentioned above and consider the applicants forth with in terms of his seniority as well experience by implementing direction of DOP&T OM dt. 11.12.2008 by quashing the impugned order dated 29.4.2011 (A-1)
(c) Direct the Respondents to do the needful in the above context on the similar lines as is being adopted in the sister concerns under the same QMGs Branch in AHQ Ministry of Defence keeping in view that applicant is due to be superannuated soon on attaining age of 60 years.
(d) Pass any order or direction as deemed just and proper in the facts and circumstances of the case with award of cost in favour of Applicant. However, as per Para 1 of the Original Application, the OA 2523/20112 is filed against order bearing No.550/Civ/Stud/ Birmanand dated 29.4.2011 passed in pursuance of this Tribunals directions contained in its order dated 25.3.2011 in OA No.652/2011.
3. A copy of this Tribunals order dated 25.3.2011 in OA No.652/2011 is at Annexure A/11 at page 50 of the paperbook. The prayers made by the applicant in OA No.652/2011 are as under:-
a) Hold and declare the Contention of the Reply to para 3 (v) to be not in consonance with the spirit of para 53 of Uma Devis Judgment and had to pressed in action in the matter of selection of freshers other than the applicants the requirements of the same by getting vacancies released.
(b) Direct the Respondents to set in motion the process as envisaged in para 53 of the Apex Court Judgment mentioned above and consider the applicants substantive absorption in Group D post forth with in terms of his seniority and requisite qualifications.
(c) Direct the Respondents to do the needful in the above context on the similar lines as is being adopted in the sister concerns under the same QMGs Branch in AHQ Ministry of Defence.
(d) Pass any order or direction as deemed just and proper in the facts and circumstances of the case with award of cost.
4. A plain reading of the reliefs sought by the applicant herein in his two Applications, namely, OA No.652/2011 and OA 2523/2011 are substantially similar. The earlier OA 652/2011 was disposed of on consensual basis in terms of para 2 of the order dated 25.3.2011, which reads as follows:-
2. With the consent of the counsel for the parties, OA is disposed of with directions to the respondents to treat the present OA of the applicant as representation and decide the same within four weeks by passing a detailed, reasoned and speaking order. While doing so, the respondents would keep in view the law laid down by the Honble Supreme Court in the case of Uma Devi (supra). No cost. Accordingly, the respondents have passed a reasoned and speaking order dated 29.4.2011 in pursuance of this Tribunals directions contained in para 2 of its order dated 25.3.2011 passed in OA No.652/2011 as referred to above. Para 9 of this order dated 29.4.2011 reads as follows:-
9. You are hereby also informed that despite all the provisions mentioned above this establishment has followed the para 44 of the Honble Supreme Court judgment in Uma Devis case as you were given an opportunity for regularization as one time measure by allowing you to participate in the regularization process held in this establishment wef 07 to 12 Jul 2008. In the year 2008, 23 vacancies were released for Group C and D employees. 18 vacancies were meant for group D and 2/3rd out of 18 vacancies i.e. 12 vacancies were marked for CLTS, the same were duly advertised in the newspaper. Applicant who applied for the regularization was duly considered in accordance with the extant recruitment rules and instructions by an independent Board of officers. Since you were low in merit for regularization as compared to other CLTS as per the recruitment rules, hence you were not regularized into service. In this regards it is further submitted that as per DOP&T O.M. dt. 10.09.1993 only 3rd of vacancies can be filled with casual labour which was done in accordance with Govt Rules in the recruitment. Thus the object of 1993 scheme towards regularization of CLTS is also being followed in letter and spirit. As and when such vacancies are released in future you may again appear for regularization process.
5. The present Application is directed against this order. The applicant challenges the legality and correctness of this impugned order dated 29.4.2011 on a number of grounds, as mentioned in para 5 of the Application. It is considered expedient to reiterate these grounds as they appear in Para 5 of the OA with a view to have a better understanding of the applicants case. Para 5.1 to 5.9 of the OA are reproduced below:-
5.1 Because the objective of the DOP&T OM dt. 10.9.93 where under the applicant had been granted Temporary Status with the avowed object of substantive absorption in regular Group D post is totally ignored by the Respondents by wrongly & illegally contending that the applicant was conferred with Temporary erroneously/fraudulent which is unspecified and vague.
5.2 Because the Government instructions issued from time to time on the subject of employment of Casual Labourers and their ultimate absorption of those who are being kept in employment from decades continuously, in order to curb the future employment of such workers, in this manner, are being ignored rather violated and the illegal practice is being continued resulting in exploitation of the recognized economically weaker section of Society.
5.3 Because not only the Government instructions issued from time to time are being violated, even mandate of the Judicial rendered by Constitution Bench of Honble Apex Court in the Secretary, State of Karnataka & others v/s Uma Devi (3) & others has mandated in para 53 thereof that as a one time measure the Govt. had to set in motion the process of regularization in those cases, the Respondents had not taken are of the same as the stipulated time had already been lapsed.
5.4 Because the Respondents had also not taken any step to adhere to the DOP&T instructions vide dt. 11.12.2006, and not taken any step to implement the same in its true letter and spirit even though admittedly the Respondents are aware of the same.
5.5 Because the Respondents are taking the mandate of the Honble Apex Court in a manner other than its spirit by taking shelter under certain obilter dictas of the Honble Court rather being on equity based approach.
5.6 Because the need to adopt process based on fulfillment of the requisite qualification as per recruitment Rules and the seniority based selection is the hall mark of the Honble Apex Court Judgment which is being twisted to suit their own whims and fancies rather to objectively taking appropriate steps as per the need of the day as being in other organization in the same Ministry. Justifying their approach on irrelevant ground on misguided and wrongful manner without proper application of mind.
5.7 Because the respondents had not yet prepared any seniority list based on original dates of engagement as daily wager, however, the respondents are taking seniority on the basis of Date of Birth as is evident from the list prepared on 1.7.2005 which is not in consonance with the spirit of instructions contained in Addl. Dte Gen Org 4 (Civ) (a) Adjutant Generals Branch AHQ No.15226/Org 4 (Civ) (a) dt. 24.4.98, hence selection made in 2005 and 2008 ignoring the applicant are dehors the rules and is under challenge in some other OA by other colleagues of the applicant.
5.8 Because the Applicant fulfils the requisite qualifications as per RRs and is also in consonance with the requirement of para 53 of the Honble Apex Court Judgment as well as of Honble High Court of Delhi Judgment dt. 28.1.2009.
5.9 Because the Respondents while passing the reasoned and speaking order which is impugned in the instant OA has altogether ignored the MOD instructions and had passed the impugned order at their own whims and fancies without getting the same vetted the same by the Ministry of Defence.
6. The respondents have filed their counter reply opposing the Application wherein a preliminary objection is taken by the respondents that OA is barred by principle of constructive res judicata, as issues involved in the present OA have already been decided and adjudicated by this Honble Tribunal in earlier OA between the same parties. The bone of contention in this OA is stated to be twofold, i.e., (i) regularizing the applicant i.e. Group D employee through direct selection; and (ii) awarding the benefits as contained in para 5 of the DOP&T O.M. dated 10.09.1993. It has further been submitted that matter regarding regularization of casual labour has already been attained finality by the judgment of the Honble Supreme Court in the case of Secretary, State of Karnataka v/s Smt. Uma Devi, 2006 (4) SCC 1. It has further been submitted by the respondents in their counter reply that the applicant was given temporary status in July, 1996, which was later on found to be erroneous as the applicant was not in employment with the respondents on 10.9.1993, which was one of the mandatory criteria as laid down in Para 4 of the DOP&T OM dated 10.9.1993. The applicant has challenged the respondents action in OA No.2248/2011 and once it was decided, further necessary action would be taken by the respondents accordingly. It has further been submitted by the respondents that the applicant had earlier filed OA No.2444/2005 challenging the selection process held in 2005. The said OA was dismissed by this Tribunal vide its order dated 4.3.2006. The said order was challenged by the applicant in Writ Petition (Civil) Nos.18682-93 of 2006, which were decided by the Honble High Court of Delhi vide its judgment dated 28.1.2009. A Contempt Petition (Civil) No.123/2010 was filed in the aforesaid Writ Petitions, which was dismissed in favour of the respondents. Then again, the applicant along with 11 others challenged the selection list of 2008 in this Tribunal by filing OA 3561/2009. The same was decided vide order dated 10.12.2009 holding that the respondents have complied with all the requirements of law in the matter. This was challenged by the applicant in Writ Petition (Civil) No.2736/2010, which was dismissed on the very first hearing on 27.7.2010. In view of the aforesaid, the respondents have pleaded that the present OA is barred by principle of constructive res judicata as the part issue involved in the present OA has already been finally adjudicated and decided by this Tribunal in earlier OAs between the same parties. As regards grounds taken by the applicant in Paras 5.1 to 5.9 of the Original Application, the respondents have controverted the same being false and fabricated and prayed for dismissal of the OA with exemplary fine.
7. The applicant has filed a rejoinder wherein while controverting the preliminary objection of constructive res judicata raised by the respondents, the averments made in the OA have been reiterated by the applicant.
8. During the pendency of this OA, the respondents have issued recruitment notification dated 9.6.2012 as appeared in Hindi Daily News Paper Dainik Jagran as well as also by circular letter of Directorate General of RVS (RV-1) QMGs Branch AHQ bearing No.80289/RV-1 dt. 20.9.2011. The applicant filed MA No.1722/2012 in OA No.2523/2011 seeking ad interim injunction order staying further proceeding in selection process contemplated in respect of the aforesaid recruitment notification until final disposal of the present OA, as the recruitment notification is opposed to the existing revised Government policy with regard to the employment of the casual workers and their substantive absorptions. In this MA, the applicant assails the legality and correctness of the impugned recruitment notification on the grounds mentioned therein. This MA came up for hearing before the Vacation Bench on 22.6.2012 when the respondents were directed not to proceed with the procedure for recruitment until the next date of hearing i.e. 16.7.2012. On 16.7.2012, all these cases were heard and orders were reserved with liberty to the parties to file their written submissions, if any, within three days. The applicants counsel has filed his written submissions.
9. We have given our careful consideration to the respective submissions made by both the parties and we have also carefully perused the records of the case.
10. Insofar as the preliminary objection raised by the respondents that Application is being barred by principle of constructive res judicata is concerned, we do not find much force in it, as the Application is essentially directed against the order dated 29.4.2011 passed by the respondents in compliance with the directions issued by this Tribunal vide its order dated 25.3.2011 in OA No.652/2011. This impugned order has not been the subject matter of adjudication in any of the earlier proceedings. As such, the question pertaining to correctness and legality of this order cannot be said to be barred by principle of constructive res judicata.
11. As regards recruitment notification as at Annexure MA-1 of MA 1722/2012 in OA 2523/2011, it is seen that certain Group C erstwhile Group D vacancies have been released by the IHQ of MOD (Army), which are proposed to be filled up as per the applicable rules. The grievance of the applicant, inter alia, is that the educational qualifications are being modified to the prejudice of the applicant. The correctness and legality of this cannot be impugned by the applicant by way of Misc. Application in the present proceedings, as it is altogether a distinct and independent cause of action in respect of which it will be open to the applicant to seek redressal in appropriate proceedings on the original side.
12. We may now proceed to deal with the legality of the impugned order and the relief sought for by the applicant in these proceedings. The applicant has, inter alia, sought a declaration to the effect that the impugned order is not in consonance with the spirit of para 53 of Uma Devis Judgment (supra). The directions have further been sought to the respondents to set in motion the process as envisaged in para 53 of the aforesaid judgment. In this regard, it would be expedient to refer to para 53 of the judgment in Uma Devis case (supra). The said para 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. Narayanappa11 (supra), R.N. Nanjundappa12 (supra), and B.N. Nagarajan8 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. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
13. The learned counsel for the applicant referred to the case of State of Karnataka and others vs. M.L. Kesari and others, (2010) 9 SCC 247. In this case, the Honble Supreme Court, inter alia, dealt with the exception contained in para 53 of Uma Devis case (supra) for regularization of irregular appointments as a one-time measure (to be initiated within six months from 10.4.2006). The question that came up for consideration before the Honble Supreme Court has been whether eligible persons are entitled to be considered even if the said six months period had expired if such eligible persons are left out of consideration for any reason. While explaining the meaning and significance of one-time measure, the Honble Supreme Court held that process of regularization as a one-time measure would not be complete till all eligible persons who have right to be considered in terms of para 53 of Uma Devis case (supra) are considered. Such persons if not considered within sox months commencing from 10.4.2006 are entitled to be considered now. While dealing with the entitlement to the benefit of exception contained in para 53 of judgment of the Uma Devis case (supra), for regularization of irregular appointments as a one-time measure, the Honble Supreme Court clarified two mandate and cumulative preconditions for this purpose. While doing so, the difference between irregular appointments in contrast to illegal appointments was clarified and accordingly, it was held that appointments of qualified persons made against sanctioned posts without following process of open competition were irregular appointments. As against this, appointments made not against sanctioned posts or appointments of unqualified persons, were illegal appointments. It was held that only irregular appointees are entitled to regularization in terms of para 53 of Uma Devis case (supra). Para 9 of the impugned order which has been referred to herein above clearly reveals that the applicant was given an opportunity for regularization as one time measure in terms of the Honble Supreme Courts judgment in Uma Devis case (supra) by allowing him to participate in the selection process held w.e.f. 7.7.2008 to 12.7.2008. However, the applicant was not successful in the selection process, as he was low in merit as compared to other CLTS as per the Recruitment Rules. Therefore, he was not regularized in service. It has also been clarified that in the year 2008, 23 vacancies were released for Group C and D employees. 18 vacancies were meant for Group D and 2/3rd out of 18 vacancies, i.e., 12 vacancies were marked for CLTS (Casual Labour with Temporary Status) and the same were duly advertised in the newspaper. The applicant, who applied for regularization was duly considered in accordance with the extant recruitment rules and instructions by an independent Board of officers. It has further been stated in the impugned order that the object of 1993 scheme towards regularization of CLTS is also being followed in letter and spirit. Accordingly, as and when such vacancies are released in future, the applicant may again appear for regularization. The correctness of these averments in the impugned order has not been controverted by the applicant. Instead, he insisted that he ought to have been granted temporary status with the main object of substantial absorption in regular Group D post. This is stated to be the underlying object of DOP&T OM dated 10.9.1993. Since the applicant has already been allowed to participate in the regularization process, as a one time measure in terms of the Honble Supreme Courts judgment in Uma Devis case (supra), we do not find any warrant to issue any further directions to the respondents, as sought by the applicant, to set in motion as envisaged in para 53 of the Honble Supreme Courts judgment in Uma Devis case (supra). Clause (b) of Para 8 of the relief clause in the OA may be referred to in this regard. Furthermore, vide Office Memorandum dated 11.12.2006, the Government has circulated copy of the judgment of the Honble Supreme Court in Uma Devis case among all the Ministries/Departments for implementation of the directions contained therein. This does not in any way touches upon the impugned order dated 29.4.2011 warranting its quashing as stated by the applicant in clause (b) of the relief clause referred to above.
14. We do not find any force in the applicants contention that he ought to have been substantially absorbed in regular Group D post as a matter of routine for having been granted temporary status. Para 4 (iv) of DOP&T OM dated 10.9.1993 expressly provides that such casual labourers who acquire temporary status will not however, be brought on to the permanent establishment unless they are selected through regular selection process for Group D posts. Para 8 of the said OM provides for procedure for filling up of Group D posts, which reads as follows:-
I) Two out of very three vacancies in Group D cadres in respective offices where the casual labourers have been working would be filled up as per extant recruitment rules and in accordance with the instructions issued by Department of Personnel & Training from amongst casual workers with temporary status. However, regular Group D staff rendered surplus for any, reason will have prior claim for absorption against existing future vacancies. In case of illiterate casual labourers or those who fall to fulfill the minimum qualification prescribed for post regularization will be considered only against those posts in respect of which literacy or lack of minimum qualification will not be a requisite qualification. They would be allowed any relaxation equivalent to the period for which they have worked continuously as casual labourer. Para 9 of the said OM further provides that on regularization of casual worker with temporary status, no substitute in his place would be appointed, as he was not holding any post and any violation of this would be viewed very seriously and might even attract suitable disciplinary action against the officers violating these instructions.
15. Since the casual labourers with temporary status are required to qualify the regular selection process before they are brought on to the permanent establishment, the question of seniority would not apparently be relevant in this regard. One has to compete in the matter as per the extant recruitment rules and in accordance with the instructions issued from time to time by the Government in the matter. Furthermore the respondents have clarified in their impugned order that no separate seniority list is being maintained for casual labours. All the applicants herein were granted temporary status w.e.f. 1.7.1996 and since then the casual labourers with temporary status are being regularized in Group D vacancies as and when vacancies are released by headquarters by constituting an independent Board of officers and the selection is based on personal merit of the individual i.e. performance in the examination rather than seniority. It has further been clarified that list of casual labours with temporary status prepared by the Board of officers for recruitment during 2005 was not the seniority list. The respondents have also stated anomalous situations that might emerge, if seniority is required to be prepared as per the initial engagement. In this regard, it is stated by the respondents that some people have not worked regularly and there are long gaps in service while others may have joined later but rendered more service. This will lead to anomalous situation amongst CLTS with regard to seniority.
16. The learned counsel for the applicant has placed strong reliance on the age relaxation to which the applicant is entitled. Since the applicant has already been allowed to participate in the regularization process without disqualifying him for being over-aged, the question of age relaxation no longer remains relevant in this matter. Furthermore, the Scheme of regularization of Casual Labourers provides for age relaxation having regard to the services that has been rendered by a casual employee. It appears that earlier the respondents have denied the benefit of age relaxation to the applicant in respect of selection process of 2005. However, the same did not find favour with the High Court when the respondents were directed to provide age relaxation to the applicant. Accordingly, the applicant has been allowed to participate in the selection process held in 2008. The issue of age relaxation which has been agitated by the applicants counsel in detail at the time of hearing of the Applications as well as in his written submissions, becomes a matter of history and no longer remains relevant in view of the fact that the applicant has indeed been allowed to participate in the regularization process held in 2008.
17. It would be relevant to note in this regard that benefit of one time measure in terms of the Honble Supreme Courts judgment in Uma Devis case (supra) is to be accorded in case of irregular appointments made against sanctioned posts. The respondents have stated in the impugned order that the applicant was not appointed against sanctioned post and as such, is not entitled to the benefit of the exception as contained in the Honble Supreme Courts judgment in Uma Devis case. Nonetheless, the applicant has not only been allowed to participate in the regularization process in terms of DOP&T OM of 1993 but also allowed to participate in such process in future as per the extant rules. The applicant has alleged violation of Government instructions and judicial pronouncements as well as ignoring the avowed object of substantive absorption mentioned in DOP&T OM dated 10.9.1993 without furnishing any details thereof. Having given our careful consideration upon perusal of the records of the case, we do not find any merit in these allegations. The only exception to this is with regard to the instructions of implementation of the Courts orders, copy of which is annexed as Annexure A/8, wherein lower formations have been instructed to invariably apprise the Ministry and get speaking orders or draft affidavits vetted wherever Defence Secretary is cited as respondent in any Court case. The applicants grievance is that the impugned orders passed in this case has not been vetted by the Ministry of Defence in terms of these instructions. Though this contention appears to be convincing on the face of it yet upon examination in depth, we find that these instructions are in relation of internal working of the Ministry and do not confer any right upon the applicant herein. Any order or affidavit filed by the Ministry would not be vitiated in law for it is not having been vetted in terms of these instructions. Of course, an officer who is responsible for non-compliance of these instructions may attract administrative action. Nonetheless, it would not confer any right upon the applicant. Nor it will vitiate the order/affidavit which is otherwise legally in order. An objection has also been raised by the applicants counsel that in para 6 of the impugned order the respondents have stated that para 53 of the judgment of the Honble Supreme Court in Uma Devis case does not exist at all, as the judgment has only 49 paragraphs. This is stated to be not factually correct by the applicants counsel, this aspect has, however, been clarified by the respondents vide their affidavit filed on 30.4.2012. In this affidavit, the position has thus been clarified as follows:-
2. It is clarified that Honble Supreme Court judgment in the case of Secretary, State of Karnataka and others versus Uma Devi (3) and others fwd to this establishment vide DOP&T OM dt 11 Dec 06 through IHQ of MoD (Army) letter No.80273/QRV-1 dt 19 Aug 08 contained only 49 paragraphs. Similarly the judgment available on the website of the Supreme Court also contained only 49 paragraphs, hence it was mentioned in the speaking order dt 29.04.2011 that Para 53 does not exist at all in Uma Devis case (Supra). However, later a copy of the Honble Supreme Court judgment in the case of Secretary, State of Karnataka and others versus Uma Devi (3) and others (2006-4-SCC-1) was received by this establishment from the applicants counsel. Accordingly the speaking order issued on the subject after 29.04.2011 were duly amended. It is pertinent to mentioned that both versions of the Honble Supreme Court judgment are absolutely same, only some sub paragraphs of the judgment have been given new paragraph Nos in the copy of the judgment order (2006-4-SCC-1) received from the applicants counsel.
18. As stated earlier, the learned counsel for the applicants has not argued all these Applications individually but put forth his submissions only in OA No.2523/2011 taking it as a lead case. That being so, for parity of reasons, the views expressed hereinabove will also hold good for all other Applications as well.
19. Having bestowed our careful consideration we are of the considered view that the impugned order is not open to any objection in law.
20. In the facts and circumstances and for the reasons stated above, we find that the applicants have not been able to make out a case for grant of reliefs prayed for by them. These Applications are accordingly dismissed being devoid of substance. No costs.
A copy of this order be placed in other connected OAs as well.
(Dr. Dharam Paul Sharma) (S.P. Singh)
Member (J) Member (A)
/ravi/