Central Administrative Tribunal - Delhi
Attar Singh vs The Union Of India Through Secretary on 5 October, 2012
Central Administrative Tribunal Principal Bench OA No.2749/2012 With OA No.2915/2012 Honble Mr. G. Shanthappa, Member (J) Honble Mr. Sudhir Kumar, Member (A) Order Reserved on:24.09.2012 Order pronounced on:05.10.2012. OA No.2749/2012 Attar Singh, aged about 50 years, S/o Shri Ram Swaroop, R/o Village and Post Babugarh, Distt. Hapur (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, 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 (UP). -Respondents (By Advocate Shri D.S. Mahendru) OA No.2915/2003 Shesh Pal, S/o late Shri Sarupa, R/o Ward No.4, Nalapar, Babugarh Cantt, Distt. Hapur (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, 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 (UP). -Respondents (By Advocate Shri D.S. Mahendru) O R D E R Mr. G. Shanthappa, Member (J):
The above applications are filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985, challenging the legality and propriety of the decision taken by the 3rd respondent in considering the existing Casual Labourers with Temporary Status (CLTS) with modified educational qualification of matriculation only being eligibility criteria for their regularization against erstwhile Group D is legally unsustainable as contended in clarification dated 20.09.2011 and 14.06.2012. Further relief of direction to the respondents not to hold any selection of earmarked 2/3 vacancies from amongst the CLTS workers as advertised out of 35 till final decision from Ministry of Defence is assured to fill up in erstwhile Group D post with the modified procedure to meet requirement under revised system as per 6th Pay Revision so far as CLTS workers are concerned. Further relief of direction to respondents to obtain appropriate clarification in regard to existing CLTS for their regularization the manner and extent applicability of provisions contemplated as per DOP&T OM No.490/31/2008-Estt(C) dated 28.01.2012 circulated under MOD are applicable after imparting requisite training which is made applicable w.e.f. 1.1.2006 till then regularization be held in abeyance inter alia keeping vacancies reserved for the Applicant in that category of existing CLTS.
2. The reliefs in both the OAs are common. Accordingly, we have clubbed the two cases and pass common order. We have considered OA-2749/2012 as the leading case.
3. We have heard learned counsel of the respective parties and perused the pleadings available on record.
4. The admitted facts from either side are that the applicants were engaged as casual labourers on daily wage basis, engaged as CLTS workers as Farm Beldar under the 4th respondent. Initially they were engaged on 1.6.1980 and 1983 respectively as daily wagers. Applicants services were conferred with the temporary status by operation of law under DOPT OM dated 10.09.1993 reckoned with effect from 1.7.1996 along with the workers who were engaged under the 4th respondent. It is also an admitted fact that earlier the similarly situated persons filed OA No.2523/2011 and other connected cases and OA NO.318/2012 and connected cases. Those OAs were dismissed by this Tribunal vide order dated 20.07.2012. Applicants in the said OAs have challenged the said order before the Honble High Court of Delhi in Writ Petition (Civil) No.18682-93/2006. The Writ Petitions were disposed of 28.01.2009. Thereafter the applicants filed CP No.123/2010 in WPC No.18682-93/2006 and the said CP was also dismissed on 25.03.2011. As per the direction of the Honble High Court the applicants were allowed to participate in the regularization process held on 7th July 2008 to 12th July, 2008. Total 23 vacancies were advertised out of which 18 posts were for group D and 2/3 of 18 i.e. 12 posts were marked for CLTS. While 02 out of the 12 applicants of WP(C) No.18682-93/2006 were selected by the Board of officers whereas present applicants were not selected being low in merit. It is also an admitted fact that for non-availability certificate the vacancies were advertised in Amar Ujala and Dainik Jagran newspapers on 09.06.2012. There were 09 vacancies for the post of Beldar were available. As per the newspaper publication dated 09.06.2012 with reference to casual labour temporary status it was published CLTS will be absorbed as per Government rules and 2/3rd posts will be reserved for them. All CLTS candidates must mention CLTS on top right hand corner of the application form and envelope also. Paragraph-7 of the instructions of the said advertisement has clearly specified relaxation of age which is read as Relaxation of age limit for various categories as per Government Rules. As per para-7 all Government Rules are applicable to them will be applied at the time of their recruitment.
5. It is the grievance of the applicants that the respondents have not paid the monetary benefits as well as other benefits envisaged under DOPT OM dated 10.09.1993. The said OM related to Grant of Temporary Status and Regularization of Casual Workers for mutation of a scheme in pursuance of CAT Principal Bench New Delhi judgment dated 16.2.1980 in the case of Shri Raj Kamal & Others v. Union of India. According to the said Scheme the applicants are entitled to pay scale of corresponding regular group D official including DA, HRA & CCA, benefits of increments at the same rates as applicable to a group D employees would be taken into account for calculating pro-rata wages for every one year of service subject to performance of duty for at least 240 days and other benefits like maternity leave. 50% of service rendered under Temporary Status would be counted for the purpose of retirement benefits after their regularization as per OM dated 10.09.1993 readwith judgment of the Honble Apex Court in the case of Mohan Pal. Para-10 of the said OM has to be applied, guidelines are contained in OM of DOPT of engagement of casual employees in Central Government offices. Since the applicants are working as CLTS and their service matters were not being regulated by strict application of the Government instructions while they had a legitimate expectation of fair treatment from the Govt. being a model employer. Respondents have not exercised the power of age relaxation as provided under the Rules. Applicants have legitimate expectation from the respondents for regularization of their services by exercising the power of age relaxation. The clarification dated 23.01.2012 and 30.01.2012 with respect of relaxation in educational qualification to the existing CLTS who are granted temporary status under the Government instructions dated 23.01.2012 and 30.01.2012. Because of the action of modifying the educational qualification for applicability of the same in respect of CLTS is highly prejudicial to the applicants being arbitrary in nature. MOD ID No.11(1)/2008-D(Civ-1) dated 30.01.2002 read with DOPT OM dated 23.01.2012 the modification of educational qualification as Matriculation would be unsustainable in view of the Government instruction and judicial pronouncements so far as CLTS workers are concerned. The third respondent has no authority under law to act in arbitrary manner in violation of Articles 14 and 16 of the Constitution until the matter referred to the Govt. is finally decided by the competent authority. The third respondent has wrongly interpreted the provisions of OM dated 23.01.2012 in his own whimsical manner without applying mind to its implications and effects on the existing CLTS who were conferred with temporary status.
6. Respondents have vehemently opposed the OA and denied the allegations and averments made against them except those which are specifically admitted therein. The OAs are barred by the principle of constructive res-judicata as part of the issue involved in the present OAs had already been finally decided and adjudicated by the Tribunal in the earlier OAs.
7. Similarly situated applicants had filed OAs earlier in OA-2523/2011 and connected cases and OA-318/2012 and connected cases. Those OAs were dismissed by the Tribunal on 20.07.2012. Applicants in the said OAs filed Writ Petitions before the Honble High Court which were disposed of. Subsequent to the order passed by the Honble High Court applicants in the said OAs have filed contempt petition. The said contempt petition was closed. The reliefs in the present OAs are hit by the principle of res judicata. The part of the relief in the present OAs had already been adjudicated in the earlier OAs, which had been decided by the Tribunal.
8. Applicants were not employed against the sanctioned posts of Farm Beldar, in fact they were never engaged against any sanctioned post of Farm Beldar. No individual has been granted CLTS status. All the financial benefits have been paid to the applicants as well as CLTS employees who were eligible as per the OM of DoP&T dated 10.09.1993. According to the advertisement in the newspaper all the persons who applied for regularization were duly considered in accordance with the extant recruitment rules and instructions. Since the applicants were over-aged for regularization as per the recruitment rules even after age relaxation given to casual labour hence applicants were not regularized into service. The applicants were screened by the Board of Officers and not selected for recruitment being over-aged. The date of birth of applicant in OA-2749/12 is 02.01.1969 whereas the correct date of birth as per record is 15.06.1962, applicant in OA-2915/2012 was over-aged and low in merit. During the selection process held in the year 2005, total 83 vacancies were advertised out of which 76 were group D posts and 2/3 of 76 i.e. 51 vacancies were marked for CLTS. In the list of CLTS prepared for regularization some of the CLTS were found over-aged as per laid down age limit in recruitment rules SRO 37 (published in gazette of India dated 09 Feb 2002) for group D post Syce of RVC.
9. Applicants have filed rejoinder to the reply statement denying the statement made in the reply statement. The statement made in the rejoinder is as that of repetition of the OA. There is no much clarification to the reply statement. The applicants have relied upon the information obtained under the RTI Act in respect of Harpal, Jaggoo and Ravinder Kumar. Their actual age as on 1.7.1996 was 19 years and six months, 19 years and 22 days and 18 years and 10 months respectively and the orders of the High Court in WP(C) No.18682-93/2006 dated 3.7.2008 and the reply statement filed in the above Writ Petitions. Applicants have also relied upon the policy guidelines in respect of employment of casual labourers policy guidelines vide CPRO 1/98.
10. We have carefully considered the submission of the learned counsel for the respective parties and perused the pleadings available on record.
11. On the admitted facts narrated in the earlier paragraphs, it is evident that the applicants were engaged as casual labourers as Farm Beldars. Respondents have issued the recruitment rules called the Central Civil Services and Civil Posts (Upper Age of Direct Recruitment) Rules, 1998 which came into force w.e.f. 1.4.1999. Those were published under GSR No.758(E) in exercise of the powers conferred by the proviso to Article 309 and Clause (5) of Article 145, of the Constitution. Those rules are applicable in case of increase in the upper age limit, recruitment by the method of direct open competitive examination to the Central Civil Services and Civil Posts specified in the relevant service/recruitment rules on the date of commencement of the Central Civil Services and Civil Posts (Upper Age Limit for Direct Recruitment) Rules, 1998 shall be increased by two years. Under the said recruitment rules at serial No.xii (Annexure A-8, page 38 of the OA) casual labourers for absorption in regular establishment in Group D the extent of age concession period spent as casual labourer, broken period of service rendered as a casual labourer may also be taken into account for the purpose of age relaxation for appointment in regular establishment, provided that one stretch of such service is for more than six months. There is a provision for age concession (Annexure A-8, page 39 of the OA). Similarly situated employees had approached this Tribunal in OA-2445/2005 which was dismissed by this Tribunal. They filed Writ Petition before the Honble High Court in WPC No.18682-93/2006 and the Honble High Court was pleased to allow the Writ Petitions and set aside the orders of the Tribunal. While allowing the Writ Petition there was a direction to the respondents that In so far as other petitioners are concerned, if they were otherwise found eligible for selection as per their merit but were denied only on the ground that they were overage, they shall be entitled to regularization from the date their juniors are regularized. Respondents have invited applications by notifying the vacancies (Annexure A-10, page 57 of the OA) vide notification dated 09.06.2012 in which the 09 vacancies for the post of Farm Beldar (UR-05, OBC-2 and SC-2) age as on 31.01.2012, 18-25 years, age relaxation as per the Government Rules. The essential educational qualification (i) Matriculation passed or equivalent from any recognized Board and (ii) proficiency in trade. Subsequently, a corrigendum was issued to the effect that CLTS will be absorbed as per Government rules and 2/3rd post will be reserved for them. All CLTS candidates must mention CLTS on top right hand corner of the application form and envelope also. Remaining terms and conditions will remain the same. The respondents have considered the cases of the applicants for regularization by applying the relevant OM dated 08.04.1991, 10.09.1993 and 13.10.1993. Respondents have also considered the age relaxation by exercising the power. All the persons who applied for regularization were duly considered in accordance with the extant recruitment rules and the instructions. Since the applicants were over-age for regularization as per the recruitment rules even after the age relaxation awarded to casual labourers, hence they were not regularized into service.
12. We have carefully considered the rival contentions and also the defence taken by the respondents in respect of application of age relaxation. Even after the age relaxation was granted these two applicants were not eligible. The respondents have rightly considered the grievance of the applicants based on the recruitment rules called the Central Civil Services and Civil Posts (Upper Age Limit for Direct Recruitment) Rules, 1998, which provides for age relaxation. The direction of the Honble High Court in WP(C) No.18682-93/2006 has been considered by the respondents.
13. Learned counsel of respondents has raised a legal issue of jurisdiction. The grievance of the applicants against the 3rd respondent, who has issued the order, is at New Delhi, hence this Tribunal has jurisdiction to decide the case. Accordingly, we hold that this Tribunal has jurisdiction to decide the issue.
14. The applicants have taken the legal ground of legitimate expectation for grant of relief. On the facts and circumstances of the case applicants have no legitimate expectation since they have not fulfilled the essential conditions under the recruitment rules for absorption in Group D posts. We have applied the judgment of the Honble Supreme Court in the case of Secretary, State of Karnataka & others v. Umadevi & Another, (2006) 4 SCC 1 at para 46 and also Union of India & Another v. Arulmozhi Iniarasu & Ors., (2011) 7 SCC 397 (paras 16,17, 19 to 25).
15. For the foregoing reasons, we are of the considered view that the applicants have not established their case for grant of relief, as prayed for, in the OAs. Respondents have justified their defence by applying the DOPT OM dated 10.09.1993 in respect of age relaxation and also the relevant recruitment rules, including the Recruitment Rules supra. Even after applying two years of age relaxation the applicants did not fulfill the essential conditions and the applicants were over-aged. Respondents are justified in rejecting the claim of the applicants. Accordingly, the OAs are liable to be dismissed.
16. OAs are dismissed but no order as to costs.
(Sudhir Kumar) (G. Shanthappa) Member (A) Member (J) San.