Central Administrative Tribunal - Delhi
Shri Bihari Lal S/O Shri Ram Bodh vs Municipal Corporation Of Delhi on 4 August, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.2806/2011 Thursday, this the 4th day of August 2011 Honble Shri M. L. Chauhan, Member (J) Shri Bihari Lal s/o Shri Ram Bodh r/o Quarter No.11 Railway Colony Shakti Nagar, Delhi-7 ..Applicant (By Advocate: Shri Anuj Aggarwal) Versus Municipal Corporation of Delhi Through its Commissioner 4th Floor, SPM Civic Centre Minto Road, New Delhi ..Respondent O R D E R (ORAL)
The applicant has filed this OA, thereby praying for the following reliefs:
(i) issue an appropriate order or direction thereby directing the Respondent / Management to regularize the services of the Applicant on the post of Beldar, retrospective w.e.f. 01.04.1978, in terms of the policy, as adopted by the MCD.
(ii) issue an appropriate order or direction thereby directing the Respondent / Management to pay to the applicant the arrears of difference of wages and all other consequential benefits (monetary as well as non-monetary).
(iii) pass any such other or further order (s) as this Honble Tribunal may deem fit and proper in the interest of justice and in favour of the Applicant;
(iv) allow the present Application with cost.
2. Briefly stated, facts of the case, as projected by the applicant, is that he was engaged as Beldar on daily wage basis by the Municipal Corporation of Delhi (MCD) on 1.1.1969 and worked continuously upto 15.1.1994 when his services were terminated. It is further pleaded that against his illegal termination, he raised an industrial dispute, being I.D.No.68/1996, which culminated into an award dated 23.11.2005 whereby the applicant was held entitled to the relief of reinstatement on the same terms and conditions on which he was working at the time of his illegal termination.
3. Apart from relief of reinstatement, the applicant was also granted a sum of Rs.20000/-. It is also stated that instead of implementing the said award dated 23.11.2005, the MCD challenged the same by filing writ petition, being WP (C) No.8081/2008, which was subsequently dismissed as withdrawn vide the order dated 1.2.2011. It is further stated that the respondents reinstated the applicant on 9.8.2010 and since then he is continuously working and is in employment of the MCD. It is on the basis of these facts the applicant has prayed that his services may be regularized.
4. I have heard the learned counsel for the applicant at admission stage and perused the record. I am of the view that the applicant is not entitled to any relief. From the facts, as stated above, it is evident that the applicant was working as Beldar on daily wage basis. It is also an admitted fact that the applicant was reinstated on 9.8.2010 pursuant to the impugned order dated 23.11.2005. At this stage, it will be useful to quote paragraph 8 of the aforesaid award, which thus reads:-
8. So far as the relief is concerned even the daily rated workman there is no regular appointment. In the facts and circumstances though I grant the relief of reinstatement to the workman on the same terms and conditions. So far the back wages are concerned in view of the judgment of General Manager, Haryana Roadways Vs. Ruddal Singh, 2005 LLR 849, I grant a sum of Rs.20,000/- to be paid to the workman by the management as the management is also guilty of not answering the legal notice.
5. Thus, as can be seen from the portion, as quoted above, the applicant was reinstated fresh as workman on the same terms and conditions, i.e., in daily wage capacity. The Apex Court in the case of Secretary, State of Karnataka & others v. Umadevi & others, JT 2006 (4) SC 420 has categorically held that all appointments should be made as per the constitutional scheme by advertising the post, inviting applications from open market and to fill up the same in accordance with the recruitment rules and the services of the daily wager/ad hoc or contractual employee cannot be regularized. The Apex Court, however, made one exception to the above position, which thus reads:
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [1967 (1) SCR 128] : (AIR 1967 SC 1071); R.N. Nanjundappa [1972 (1) SCC 409] : (AIR . 1972 SC 1767) and B.N. Nagarajan [1979 (4) SCC 507] : (AIR 1979 SC 1676) and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of 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 regu-larize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date....." (Emphasis given to underline)
6. It is evident from the above that there is an exception to the general principles against 'regularization' enunciated in Umadevis (supra), if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those ir-regularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006).
7. The term 'one-time measure' has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (supra) each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services.
8. The object behind the said direction in para 53 of Umadevi is two- fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularization in view of their long service`. Second is to ensure that the departments/ instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization.
9. Since the applicant was working as casual labour on daily wage basis and he was not working against a sanctioned post and also that when the judgment of the Apex Court in the case of Umadevis case (supra) was delivered on 10.4.2006, the applicant was not in service of the MCD, as such the services of the applicant cannot be regularized.
10. Learned counsel for the applicant has drawn my attention to the Corporation Resolution No.709 dated 20.11.1978 (page 19 of the paper book) and submitted that it has been the policy of the Corporation to regularize the services of the persons, as such direction may be issued to the MCD to regularize the services of the applicant.
11. From the perusal of the aforesaid Resolution, it is evident that the daily wagers as well as class-IV employees, who were engaged on different spells ranging from 1.4.1978 to 1.4.2006, their services were regularized. All these regularizations have been done by the Corporation prior to the judgment rendered by the Apex Court in the case of Umadevi (supra) as such the applicant cannot take any assistance from this Resolution, referred to above.
12. Learned counsel has also drawn my attention to an order passed by this Tribunal in Shri Amar Pal & another v. Municipal Corporation of Delhi (OA-3003/2009) decided on 23.4.2010 whereby the directions were given to the Corporation to offer regular appointment to the applicants therein. According to me, the applicant herein cannot take any assistance from this order, inasmuch as the directions were given to the respondent-MCD to reinstate the applicants therein by quashing the termination order with continuity of service and consequential benefits. Further in paragraph 4 of the aforesaid order, this Tribunal has held that the appointment of the applicants was against the sanctioned post. Thus, the applicant herein cannot take any assistance from this order.
13. In view of what has been stated above, the OA, being bereft of merit, is accordingly dismissed at admission stage.
( M.L. Chauhan ) Member (J) /sunil/