Central Administrative Tribunal - Delhi
Shri Devender Kumar vs Union Of India Through The on 21 February, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.179/2012 Order reserved on:14.02.2014 Order pronounced on:21.02.2014 Honble Shri G.George Paracken, Member (J) Honble Shri Shekhar Agarwal, Member(A) Shri Devender Kumar S/o Late Shri Ramji Lal Ex-Part Time Employee of Krishna Nagar Head Post Office, Delhi-110051 R/o E.4/189, Nand Nagri, Delhgi-110093. Address for service of Notice C/o Shri Sant Lal, Advocate, CAT Bar Room, New Delhi-110001. Applicant By Advocate: Shri Pradeep Kumar. Versus 1. Union of India through the Secretary, M.O. Communication and I.T. Department of Posts, Dak Bhawan, New Delhi-110001. 2. The Chief Postmaster General Delhi Circle, Meghdoot Bhawan, New Delhi-110001. 3. The Sr. Supdt. Of Post Offices, Delhi East Dn. Delhi-110051. 4. The Senior Post Master Krishna Nagar, Head Post Office, Delhi110051. ..Respondents By Advocate: Shri B.K. Berera. ORDER
Shri G.George Paracken, M(J) The grievance of the Applicant is that even after he has been duly selected for appointment as Gramin Dak Sewak (GDS for short) Packer, the Respondents have illegally and arbitrarily not issued him the appointment letter.
2. The brief facts of the case are that Applicant was initially engaged as a Part Time Casual Labourer in Krishna Nagar Head Post Office (KNHPO for short) with effect from 15.01.1996. While he was working in the said capacity, the Chief Postmaster KNHPO issued an Employment Notice dated 15.09.2008 inviting applications from Casual Labourers/ Part Time Employees of the KNHPO who are willing to be appointed against two vacant posts of GDS. The conditions to be fulfilled for such appointment were as under:-
(i) Applicant should have rendered service as Casual Laboour/Part Time Casual Labour for complete one year;
(ii) Applicant engagement should have been made through Employment Exchange; and
(iii) Applicant should possess the educational qualification of VIIIth pass. But the Applicant with Xth Class qualification will be prepared.
3. As the Applicant fulfilled the aforesaid conditions, he applied for one of the two posts of GDS vide his application dated 22.09.2008. Along with the same, he has submitted his educational qualification certificate, caste certificate and employment registration card. On his selection, the Senior Postmaster, Krishna Nagar H.O. got all the pre-appointment formalities of verification of character, antecedents and medical examination done during March, 2009. The concerned Deputy Commissioner of Police verified his character and antecedents and certified to be satisfactory. The Chief Medical Officer has also certified him to be medically fit for the said appointment. Thereafter, vide Annexure A-2 letter dated 29.04.2009, the Senior Postmaster, KNHPO sought the approval of the SSPOs giving him appointment as GDS Packer in the Head Office. In the said letter, the Senior Postmaster has also stated that due to shortage of Group D staff, the office is facing lot of hardships. Again, the Senior Postmaster, KNHPO, vide his Annexure A-4 letter dated 03.07.2010, addressed to the Assistant Director in the Recruitment Office of the CPMG Delhi Circle stated that as per letter received from DPS(P), permission for filling up two posts of GDS was given vide Estt./MISC-01/DA-IV/06 dated 17.05.2007. Accordingly, Notification was issued on 15.09.2008 for inviting the applications from Casual Labourers/Part Time Casual Labourers for filling up those posts. Since there was only one Part Time Causal Labourer, namely, the Applicant and he fulfilled all the conditions of appointment as GDS, he was selected but the appointment letter could not be issued for want of approval for making appointment from the competent authority. The Applicant had also made a representation dated 26.04.2010 stating that despite the completion of pre-appointment formalities, the appointment order was not issued to him even after a period of one year. He has also pointed out that Casual Labourers should be given preference in the matter of appointment of E.D. Agents (Gramin Dak Sewaks) in terms of para 2 of the D.G. Posts letter dated 6.6.1988 which reads as under:-
2. Since the number of vacancies of Group D is limited and the number of ED employees eligible for recruitment as Group D is comparatively large, the casual labourers and part time casual labourers hardly get any change of their being absorbed as Group D. Thus majority of casual labourers with long service are left without any prospect of their getting absorbed in Group D cadre.
4. Again, since there was no response from the authorities concerned, he made an application on 09.08.2010 under Right to Information Act, 2005 as to why his appointment letter has been held up. The Respondents, vide their letter dated 16.10.2010, informed him that the approval from the Circle Office was still awaited and reminders have been sent to them. Thereafter, he made another two more applications on 17.01.2011 and 31.01.2011 respectively seeking information as to what steps the Respondents have taken during the last 2 years to finalize the matter and to grant him appointment. In the meanwhile, vide letter dated 10.04.2011, the Respondents have terminated the services of the Applicant itself as a Part Time (Sweeper). He has made a representation against the aforesaid action of the Respondents vide Annexure A-12 letter dated 02.11.2011 stating that the aforesaid action of terminating his service was absolutely illegal and arbitrary and his livelihood has been snatched by the Respondents. He has also stated that he has no income to educate his school going children. His request to allow him to work as daily wager or Part Time Causal Labourer was not allowed by the Respondents. As the Respondents have not taken any action in the matter, he has approached this Tribunal vide this OA seeking the following reliefs and interim reliefs:-
Reliefs (i) To direct Respondents No.2 and 5 to issue necessary approval to Respondent No.4 (Competent Authority) for which he has already made references vide his letters dated 29.04.2009, 02.07.2010 and to issue order of appointment of the Applicant for which he had already been selected for appointment as GDS Packer and his pre-appointment formalities having been completed;
(ii) To grant such other/further reliefs this Tribunal deem fit in the facts and circumstances of the case; and
(iii) To award the costs of the application.
Interim Relief Pending final decision of this application the Respondents may kindly be directed to restore the posting of the Applicant as Part Time Sweeper Krishna Nagar Head Office which he was holding on 10.04.2011 while he was awaiting his appointment as GDS Packer.
5. The Respondents have filed their reply stating that the Applicant was engaged as Part Time Casual Labourer in Laxmi Nagar Post Office in January, 1999. The Senior Postmaster, KNHPO initiated the process for filing up two vacant posts of GDS from Full Time/Part Time Casual Labourers on 15.09.2008. While the process for filling up those posts was underway, the Competent Authority decided to reassess the justification for filling up the posts of GDS vide letter No.Staff/R-11/Misc./2009 dated 06.02.2009. They have also stated that there was complete ban for engagement of Casual Labourers after 01.01.1993 and the said fact was reiterated by the Department of Posts vide their letter dated 04.02.1997 addressed to all the Heads of Postal Circle. The said letter reads as under:-
As you are aware that there is a complete ban on creation and recruitment of Casual Labourers in the entire Department including the Civil Wing at all levels. Instructions in this regard have also been issued from time to time. In spite of this, it has come to the notice of the Directorate that some Circles still appoint Casual Labourers, Casual Drivers etc. on their own and then ask for creation of posts in order to regularize the services of these Casual Labourers.
After the judgment of Honble Supreme Court in 1987 to regularize the services of the Casual Vendors, the Department had issued instructions from time to time not to deploy any Casual Labourers without the express approval of the Directorate but some of the Circles Offices even after issue of instructions are appointed Casual Workers on their own. All the Circle Offices are, therefore, requested not to appoint any Casual Labourers, if absolutely necessary, may be referred for approval of this Directorate. All such proposals should have the express approval of the IFA concerned. Engagement of Casual Labourers in anticipation of approval of the Directorate is also totally prohibited. Heads of Circles will be held personally responsible for violation of these instructions.
These instructions may be brought to the notice of all concerned immediately for necessary action.
The receipt of this letter may be acknowledged to the undersigned.
6. They have also stated that the Respondents have issued instructions vide letter No.4-4/2009-PCC dated 19.11.2010 stating that there was need to streamline the work entrusted to the Casual Labourers engaged in the Department of Posts, the Competent Authority has ordered the following:-
(i) No Casual Labourers shall be engaged in the Administrative Offices, i.e., CO/RO/DO/PAO w.e.f. Ist December, 2010.
(ii) The work of sweepers and scavengers should be combined or the same may be outsourced wherever feasible.
(iii) Since duties of waterman, watch and ward, gardening, cleaning etc. are now part of duties assigned to Multi Tasking Staff, the existing practice of engaging Casual Labourer as waterman, gardener, watch and ward or any other miscellaneous category shall be dispensed with w.e.f. Ist December, 2010.
In spite of the aforesaid direction, the Applicant was appointed as a Part Time Casual Labourer. In this regard they have relied upon an order of this Tribunal in OA No.702/2011 Md. Faiyazuddin and Others Vs. Ministry of Communications and I.R. & Another decided by this Tribunal on 05.07.2011. The relevant part of the said order reads as under:-
8. It is now settled law that if applicants claim to be workman and wish to claim benefit of Industrial Disputes Act, 1947, then they have to approach the Labour Court. This Tribunal cannot deal with the issues raised under Industrial Disputes Act, 1947.
9. At this juncture it would be relevant to refer to the judgment of Honble Supreme Court in the case of Chandrakant Tukaram Nikam & Others Vs. Municipal Corporation of Ahmedabad and Another reported in AISLJ 2002 (2) SC 389. In the said case it was held as follows:-
(2) Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act.
(3 ) Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1946 - which can be called sister enactmentsto Industrial Disputes Act and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided their constitute industrial disputes within the meaning of Section 2 (k) and Section 2-A of Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to Civil Court is open.
Similarly in Krishan Prasad Gupta Vs. Controller, Printing & Stationery reported in 1996 (32) ATC 211 it was held as follows:-
In view of the provisions of Section 14, 28 and 19 of the Administrative Tribunals Act, 1985, the jurisdiction of the Industrial Tribunal, Labour Courts or other authorities, under the Industrial Disputes Acts or Authority created under any other corresponding law remains unaffected.
Therefore, violation of Section 25-F of the Industrial Disputes Act, 1947, or non-issuance of notice or compensation in lieu thereof can neither be challenged nor entertained by this Tribunal.
10. The only contention raised by the counsel for the applicants is that the applicants have now become overaged and have families to support. They were appointed after they were sponsored by the employment exchange and have already worked for more than 14 years with the respondents, therefore, their services could not have been terminated. All these points have already been discussed by the Honble Supreme Court in the case of Uma Devi (supra) wherein it has been held as under:-
When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
11. It has further been held by the Honble Supreme Court as follows:-
While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.
12. From above, it is clear that simply because applicants have worked with the respondents for 14 years, it does not give them any legal right to claim regularization. Counsel for the applicants could not show us any legal right in support of applicants claim to be reinstated as casual workers especially when respondents have explained that there was total ban on engagement of causal workers from 1.9.1993 onwards and their engagement itself was contrary to the instructions issued by the department. It is also relevant to note that the duties of chowkidars, mali, waterman etc. have been assigned to Multi Tasking Staff, therefore, the services of casual workers were not required any more. In these circumstances if services of applicants who were working as casual labour part-timers were to be dispensed with effect from 1.12.2010 it calls for no interference.
13. In view of above, the relief, as claimed by the applicants, cannot be granted. The OA is accordingly dismissed. No order as to costs.
7. In the rejoinder, the Applicant has denied the contention of the Respondents that he was engaged as Part Time Casual Labourer only with effect from January, 1999. On the other hand, he has reiterated that he was appointed as a Part Time Casual Labourer in Laxmi Nagar Post Office under Krishna Nagar Head Office w.e.f 15.01.1996 and those details are very much available with the Respondents and they are deliberately not disclosing them. He has also submitted that the contention of the Respondents that they have assessed their requirement for GDS after they got approval of the Competent Authority from the Circle Office before making any appointment. He has also stated that the Unit, i.e., Krishna Nagar Head Office had assessed the requirement and had obtained the permission from the Circle Office before initiating the process of selection and making appointments.
8. The learned counsel for the Applicant has also relied upon an order of this Tribunal in OA No. 363/1989 Nirmal Kumari and Another Vs. Delhi Administration and Others decided on 30.10.1989 wherein it has been held that the rule is, once a person is declared successful according to the merit list of selected candidates, which is based on the declared number of vacancies, the Appointing Authority has the responsibility to appoint him even if the number of vacancies undergoes a change, after his name has been included in the list of selected candidates.
9. We have heard the learned counsel for the Applicant Mr. Pradeep Kumar and the learned counsel for the Respondents Mr. B.K. Berara. Admittedly, the Applicant was working as Part Time Casual Labourer in the Laxmi Nagar Post Office under the Krishna Nagar Head Office. According to the Applicant, he has been working in the said capacity from 15.01.1996 and according to the Respondents, from January, 1999. The record would show the correct date of the appointment of the Applicant. But the material fact in this case is that the Applicants service has been terminated, after over 11 years on 10.04.2011, admittedly without any notice to him. Therefore, first of all, the said termination is against the principles of natural justice and, therefore, it cannot be justified. Further, as held by the Apex Court in the case of Secretary, State of Karnataka and Others Vs. Uma Devi and Ors. 2006 (4) SCC 1 the appointment of the Applicant was at best irregular but not in any way illegal. He was appointed after following the due process against the available position. Therefore, the Respondents ought to have regularized the services of appointment as a Part Time Casual Labourer way back in 2006 as per the claim of the Applicant and in 2009 as per the admitted position by the Respondents. The relevant part of the said judgment is as under:-
53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. 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.
10. Therefore, in our considered view, the termination of the Applicant as a Part Time Casual Labourer is absolutely illegal and arbitrary. As the Applicant has been working as a Part Time Casual Labourer w.e.f. 15.01.1996 (according to the Respondents w.e.f. January, 1999) suddenly his services should not have been terminated w.e.f. 10.04.2011 without even a show cause notice or without assigning any reasons. As held by the Apex Court in State of Uttaranchal Vs. Sunil Kumar Singh Negi 2008 (2) SCC 205, one of the statutory requirement of natural justice is spelling out reasons for the order made. The relevant part of the said judgment reads as under:-
11. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made.
Again, in Rajendra Vs. State of Maharashtra 2008(3) SCC 90, the Apex Court held as under:-
14 It is really strange that it should have dawned on the second respondent that the approval granted earlier was wrongly given only after 17 months. It was not as if the appointment was made keeping the second respondent in dark about it. The second respondent was informed by the letter dated 7.2.2001 about the advertisement given as also the appointment made. Along with this communication dated 7.2.2001, the Managing Committee had sent the proposal in the proper form and the other papers regarding the whole selection process starting from the advertisement to the list of employees. This also included a copy of the roster which would have given the complete idea to the second respondent about the nature of the post as also the manner in which the appellant came to be selected. In pursuance of the above communication the approval came to be granted by the second respondent by its order dated 17.3.2000. Therefore, the action taken after about 17 months on 30.5.2002 of withdrawing the approval appears to be high handed. The only reason given in the communication dated 30.5.2002 is that the appointment made on 17.3.2001 is unlawful and is completely against the settled position of law and, therefore, it stood cancelled. In our opinion this is a totally incorrect action on the part of the authorities. No reasons have been given in this order. Very strangely even the subsequent letters sent on behalf of the appellant and the Managing Committee of the school were also not replied to nor were the reasons informed. We totally disapprove of this abrupt action and that too without hearing the petitioner and further not giving the reasons for the same.
11. We, therefore, in the first instance order that the Applicant be reinstated as Part Time Casual Labourer with effect from the date of his termination, i.e., 10.04.2011. Since the aforesaid termination was without any notice to him and was in total violation of principles of natural justice, he is entitled for all consequential benefits including back wages from the date of his termination till the date of his reinstatement.
12. As regards the appointment of the Applicant as Gramin Dak Sewak Packer is concerned, it is a fact that he had undergone the entire selection process. The Respondents themselves have found him to be eligible for that post and they had all the intention to engage him to that post. They have also completed all pre-appointment formalities like verification of character, antecedents and medical examination etc. All those criteria have also been fulfilled by the Applicant. However, he has not been appointed to that post on the ground that approval of the Competent Authority has not been accorded. The first reason for not giving approval for his appointment is that there is a complete ban on engagement of Casual Labourers after 01.01.1993. Since the Applicant has been appointed as Casual Labourer ignoring the aforesaid ban, his appointment as Casual Labourer itself is not maintainable. The second reason given by the Respondents is that the Unit will have to assess their requirement and get the approval of the Competent Authority from Circle Office before making any appointment. In our considered view, both the aforesaid reasons given by the Respondents are not tenable as they are afterthoughts. According to the letter dated 29.04.2009 of the Senior Postmaster, Krishna Nagar HO (supra), as per the letter received by him from DPS (P) for filling up two posts of Gramin Dak Sewaks, permission was given vide letter No.ESTT./Misc.01/DA-IV/06 dated 17.05.2007. It was on that basis the Notification was issued by the Respondents on 15.09.2008 inviting applications from Casual Labourers/Part Time Casual Labourers for filling up those posts as prescribed under the rules. The said Senior Postmaster has very clearly stated that the Applicant was fulfilling all the requisite conditions for appointment as Gramin Dak Sewak. He has also stated that all the pre-appointment formalities were fulfilled by the Applicant. The Senior Postmaster, Krishna Nagar H.O. again reiterated the aforesaid position, vide his letter dated 02.10.2012 (supra), and requested the approval for making appointment of the Applicant as Gramin Dak Sewak Packer. He has also stated that due to non-availability of the Gramin Dak Sewak Packer, the office is facing serious hardships. We are, therefore, of the considered view that the view taken by the Respondents after the selection of the Applicant is quite extraneous and not based on the facts on record.
13. We, in the above facts and circumstances of the case, further direct the Respondents to offer the appointment to the Applicant as Gramin Dak Sewak Packer immediately as the pre-appointment formalities have already been, admittedly, completed successfully. If there are no vacancies of Gramin Dak Sewak Packer in Laxmi Nagar Post Office under the Krishna Nagar Head Office, he can be appointed against any other existing vacancy under the Senior Postmaster, Krishna Nagar Head Office. The Respondents shall also pass appropriate orders complying with the aforesaid directions within a period of 2 months from the date of receipt of a copy of this order.
14. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh