Central Administrative Tribunal - Delhi
Kishan Kumar Sharma vs Govt. Of Nctd on 17 December, 2024
1
Item No. 33 (C-4) OA 2162/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A No. 2162/2017 with M.A No. 3456/2017
and M.A No. 3918/2017
Reserved on : 22.11.2024
Pronounced on : 17.12.2024
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member (A)
Kishan Kumar Sharma
S/o Mr. Laxman Prasad Sharma
Ex-CCI/DTPO, ITI, Jijabhai Industrial Training,
Institute for Women Siri Fort New Delhi
R/o. House No. 200, Sannath,
Narela, Delhi - 110 040. ....Applicant
(By Advocate : Mr. Puneet Rathi for Ms. Rashmi Chopra)
Versus
1. The Govt. of NCTD
Through the Chief Secretary,
Delhi Secretariat, New Delhi - 110 013
2. The Director, DTTE,
Department of Training & Education
Pitampura, New Delhi. ...Respondents
(By Advocate : Mr. Amit Anand with Mr. Vineet Yadav,
departmental representative)
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Item No. 33 (C-4) OA 2162/2017
ORDER
Per Hon'ble Dr. Sumeet Jerath, Member (A) :
The present OA has been filed by the applicant Mr. Kishan Kumar Sharma, under Section 19 of the AT Act, 1985 seeking the following reliefs :-
"(a) Allow the Application of the Applicant under section 19 of the Administrative Tribunals Act 1985 with interest.
(b) Direct the respondents to re-engage the applicant on contractual basis till regular employees are appointed in the vacant posts.
(c) any other relief, if any, this Honourable Tribunal deems fit and proper in the facts and circumstances of the case. "
2. The applicant was appointed as a full time Contract Craft Instructor (CCI) in the grade of Desktop Publishing Operator (DTPO) in Jijabai Industrial Training Institute for Women under the Government of NCT of Delhi on 01.11.2013 pursuant to the advertisement issued by them for appointment to the post of Craft Instructors in different grades on contractual basis for a period of one year. The learned counsel of the applicant stated that the applicant responded to the said advertisement and on the basis of his participation therein, appointment was made on contractual basis in different 3 Item No. 33 (C-4) OA 2162/2017 categories, for a period of one year. He further contended that subsequent to transfer/posting of one of the Contract Craft Instructor (CCI) (COPA), the applicant was given full charge of the post. Though, vide order dated 20.08.2014 his services had been renewed for another academic session of 2014-2015, however, his services were terminated before completion of the said contractual period even without serving any notice or any termination order. Aggrieved, the applicant represented to the competent authority on 23.03.2015 against sudden cessation of his employment stating that the services of the applicant has been disengaged orally by the Principal of ITI Siri Fort because of low intake for the academic session 2014-15. He further added that the result of the last year for the students of Desktop Publishing Operator Trade was 100% for whom he was Instructor and he requested for adjustment in DTPO trade or any other computer related trade in any other ITI. The aforesaid representation of the applicant was followed by series of further representations dated 10.09.2015, 17.09.2015, 11.01.2016 and 24.04.2017. However, the said representations had not yielded any fruit.
4Item No. 33 (C-4) OA 2162/2017 Moreover, as per the scheme formulated with regard to re- engagement of contractual employees in preference to the fresh contractual candidates, depending upon the available vacancies till regular selections take place, the applicant is entitled to be re-engaged. In addition to that, the recommendations dated 10.11.2009 of the Principal Secretaries/Secretaries of States who had held their meeting under the Chairmanship of Secretary, Government of India, Ministry of Labour and Employment also favoured the case of the applicant which are as follows :-
""5.3 Instructor Vacancies and Training of Instructors
(a). There are large number of instructor vacancies in ITIs which need to be filled up on priority. The State Governments were advised that they should engage contract faculty till the regular appointment is made.
However, the contract faculty should be paid consolidated emoluments equivalent to the total salary paid to fresh instructor in the scale on regular appointment.
[Action-State Govts.]
(b). Due to large number of vacancies of instructors, most of the States have hired contract faculty. It was recommended that the contract faculty should also be deputed for various training courses being offered under the project. The faculty once trained could be useful as he remains within the system, wherever he is employed later."
The above recommendations were accepted and implemented by the Government vide order dated 30.12.2008 and in 5 Item No. 33 (C-4) OA 2162/2017 compliance of the above policy/instructions, the appointments of Craft Instructors were regulated till regular appointments were made. Relying upon the information sought under RTI about one of such contractual employees namely Ms. Meenakshi Vashist, who was terminated on 02.11.2010 and subsequently was re-engaged on 04.02.2011 whose period of absence was also treated as period spent on duty, the applicant has also prayed for similar treatment as has been given to said Ms. Meenakshi Vashist and that he should have been re- engaged in the vacancies available in other ITIs. The reply of the RTI applications made by the applicant further indicated that vacancy of one DTPO has been still vacant. He stated that with the passage of time, the applicant has gained experience and he deserved to be re-engaged till regular incumbent takes over.
3. The learned counsel of the applicant also stated that the applicant stands on the same footing as the parties to the OA No. 1184/2009 with OA No. 1461/2009 decided on 25.03.2010 of the Coordinate Bench of this Tribunal wherein it was held that 'a set of contractual employee shall not be replaced by another set of contractual employees except if the 6 Item No. 33 (C-4) OA 2162/2017 contractual employees are not working satisfactorily'. Taking strength from this, he argued that the applicant was working to the full satisfaction of the authorities and there was no complaint against him and the action of the respondents in not re-engaging him is in violation of Articles 14, 16 and 21 of the Constitution of India. He also took shelter of the Hon'ble Supreme Court's Judgment in Harminder Kaur & Ors. vs. Union of India & Others. 2009 [7] SCALE 204 which speaks about the age relaxation in the cases of re-engagement.
He also relied upon the judgment of Hon'ble High Court of Delhi in W.P.(C) No. 1741/2014 - Narinder Singh Ahuja vs. Secretary, Ministry of Health and Family Welfare which states that one set of contractual employees cannot be replaced by another set of contractual employees.
4. Raising preliminary objection in his reply, learned counsel of the respondents stated that the OA is statutorily time barred under Section 21 of the A.T Act, 1985 and the same is liable to be dismissed on this ground alone as according to Section 21 of the A.T. Act, 1985 'no application is maintainable unless the same is made within one year from the date on which the final order has been passed'. 7 Item No. 33 (C-4) OA 2162/2017 The points raised by him with regard to the factual aspect of the case are quoted below :-
"Department of Training and Technical Education, GNCTD invited applications in year 2013 for current academic session i.e. 2013-14 from eligible candidates for engagement of Craft Instructors on full time Contract Basis for which the candidates appeared in walk in interview alongwith filled application form and certificates of educational and technical qualifications. The petitioner was one of the candidates who appeared in walk-in- interview and was selected for the post of Craft Instructor on full time contract basis for Desktop Publishing Operator trade. He joined the duties w.e.f. 01.10.2013 at Jijabai ITI for women, Sirifort, New Delhi against vacant post of Craft Instructor with consolidated remuneration, with the approval of the competent authority. Due to poor response of trainees in DTPO trade in the year 2014-15 very less trainees took admission in the trade and only one section could be filled which was being taught by a regular Instructor of DTPO Trade. In view of foregoing, there was no more functional requirement for DTPO Trade in ITI Sirifort as well as in other ITIs in Delhi since Sh. Kishan Kumar was the junior most among CCls of DTPO trade, he was not allowed to continue using the principle "Last in First out (LIFO)" for the academic session 2014-
15. The department decided to review the cadre strength of the ITIs/BTC of Delhi. A committee was constituted keeping in view the deletion/closing of the trades which has been declared outdated by DGE&T on implementation of semester pattern, shifting of courses of 6 months duration from Craftsman Training Scheme to Modular Employment Scheme, closing of Centre of Excellence (CoE) Scheme & introduction of new trades in place of CoE and closing of unpopular and unemployable trades.
The committee submitted its report on dated 8th July 2015.
Based on the recommendations of cadre restructuring committee another committee was constituted to look into the matter regarding adjustment of Craft Instructors & Contractual Craft Instructors who were rendered surplus due to re- structuring and closure of certain trades in ITIs /BTC w.e.f. academic session 2015-16.
8Item No. 33 (C-4) OA 2162/2017 In the mean time Services Department GNCTD issued a circular dated 16.02.2015 regarding engagement of the contractual employees where it is clearly mentioned that services of contractual employees engaged by the departments should not be terminated till further instructions in the matter (Annexure-R-2). Keeping in view the qualifications of the surplus Craft Instructors and Contractual Craft Instructors and circular dated 16.02.2015, the committee recommended the appropriate trades as per functional requirement. The committee also recommended that the contractual Craft Instructors who were terminated due to functional requirement in past may be considered when fresh applications are invited for recruitment of contractual craft instructor against vacant sanctioned posts. (Annexure-R-
3).
However, till date the department has not invited the applications for contractual craft Instructors on full time contract basis. Now, the department has published an advertisement by inviting the application from eligible candidates for instructors on part time basis on dated 19.09.2017 (Annexure-R-4). If the applicant in present OA had applied against the advertisement for the post of instructor (DTPO) part time then his candidature will be considered as per existing policy for engagement of Instructors on part time basis."
5. To support his arguments, learned counsel of the respondents relied on several pronouncements by the Hon'ble Apex Court as well as other Courts, some of them are enumerated below :-
(i) In the case of S. S. Rathore vs. State of MP - (AIR 1990 SC 10) it has been held that 'an aggrieved person must approach the Court for relief within one year, if no representation/appeal has been filed and six months after if 9 Item No. 33 (C-4) OA 2162/2017 an appeal/representation has been preferred'. It is further stated that 'repeated representations do not give rise to fresh cause of action.'
(ii) This view was reiterated in State of Haryana & Ors.
vs. Miss Ajay Walia, - JT 1997(6) SC 592 in which the Hon'ble Supreme Court observed that 'Representation repeatedly given to various authorities do not, furnish her fresh course of action to file writ petition. The High Court is wholly unjustified to have entertained and allowed that writ petition'.
(iii) This view was reiterated in the case of UOI vs. Ratan Chandra Samanta- JT 1993 (3) SC page 418 wherein it has held that 'delay deprives of the remedy available and if the remedy is lost the right also is lost'.
(iv) In the case of ex-Captain Harish Uppal vs. UOI - JT 1994 (3) page 126, the Hon'ble Supreme Court has categorically laid down the law that 'delay defeats equity and the Court should help those who are vigilant and not those who are indolent. The parties are expected to pursue their rights and remedies promptly and if they just slumber over their rights, the Court should decline to interfere'. 10 Item No. 33 (C-4) OA 2162/2017
(v) Hon'ble Supreme Court in the case of D.C.S. Negi vs. UOI- SLP (C) CC No.3709/2011 has advised this Hon'ble Tribunal not to admit cases which are time-Barred as per section 21 of the A.T. Act, 1985 in the below terms :-
"A reading of the plain language of the above reproduced section (i.e. section 21) makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clause (a) and (b) of section 21 (1) or section 21 (2) or an order is passed in the terms of sub-section (3) for entertaining the application after the prescribed period. Since, section 21 (1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is in within limitation. Anhave been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under section 21 (3)."
(vi) The Hon'ble Apex Court has already held in the case of UOI vs. M. K. Sarkar - (2010) 2 SCC 59 vide para 15 that 'when a belated representation in regard to a "stale" or "dead" issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the dead issue or time barred dispute'.
6. The counsel of the respondents further argued that they have full empathy and compassion for the applicant - that 11 Item No. 33 (C-4) OA 2162/2017 they were forced to discharge his services as there were not many students in the ITIs who were opting for his trade-DTPO and being the junior most the applicant was dropped. However, they assured that they are willing to take him back if he applies whenever a fresh advertisement is issued by the respondents.
7. We have heard learned counsel of both sides, examined the documents on record and perused the decisions cited by both sides.
8. We have observed that there has been a technical delay of 1 year, 8 months and 22 days in filing the OA but this can be condoned to meet the ends of justice. Hence, the M.A filed for condoning the delay is allowed. Since there was no more functional requirement of Desk top Publishing Officer (DTPO) Trade in ITI, Sirifort as well as in other ITI's in Delhi due to its decreasing popularity amongst students, hence the applicant Shri Kishan Kumar Sharma being the junior most contractual Craft Instructor (CCI) of DTPO Trade was not allowed to continue in service using the Principle of 'Last in First Out' (LIFO) for the academic session 2014-15. However, the respondents have assured that whenever there is an 12 Item No. 33 (C-4) OA 2162/2017 Advertisement issued to hire CCIs in DTPO Trade in future, the applicant is welcome to apply and his candidature would be considered as per the extant rules and regulations.
In the light of the above, we are of the considered opinion that this OA can be disposed of in terms of the judgment of Hon'ble Delhi High Court in Narinder Singh Ahuja's case (supra) by leaving it open/advising the applicant to apply for the post of CCI - DTPO Trade whenever there is an advertisement issued in future by the respondents and directing the respondents to consider his application favourably in preference to the fresh candidates, giving due weightage to his past service and experience. Further, since DTPO Trade's popularity is on the wane, the applicant is advised to upgrade his knowledge base and skill set in new trades and contemporary disciplines like Artificial Intelligence (AI) - both generative and predictive ; cloud computing, Robotics ; Machine Learning and new computer languages like Python which are job related and becoming more popular amongst students now. This will widen his job prospects and open up new avenues of employment for him. With the above 13 Item No. 33 (C-4) OA 2162/2017 directions, this OA is disposed of. However there shall be no order as to costs.
Pending M.A, if any also stands disposed of accordingly.
(Dr. Sumeet Jerath) (Harvinder Kaur Oberoi)
Member (A) Member (J)
/Mbt/