Central Administrative Tribunal - Delhi
Ms. Usha Sharma D/O T. R. Sharma vs New Delhi Municipal Committee Through ... on 7 May, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI T.A. No.229/2009 with T.A. Nos.356, 364, 165, 166, 167, 193, 196, 199 & 250/2009 This the 7th day of May, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) T.A. NO.229/2009 Ms. Usha Sharma D/O T. R. Sharma, House No.10, AGCR Enclave, I.P.Extension, Part-II, Delhi-110092. Applicant Versus 1. New Delhi Municipal Committee through its Secretary, Palika Kendra, Sansad Marg, New Delhi. 2. Administrator, New Delhi Municipal Committee, Palika Kendra, Sansad Marg, New Delhi. Respondents T.A.NO. 356/2009 Mrs. Nirmal Bhatia W/O S. P. Bhatia, R/O E-1, Prithvi Raj Lane, New Delhi. Applicant Versus 1. New Delhi Municipal Committee through its Secretary, Palika Kendra, Sansad Marg, New Delhi. 2. Administrator, New Delhi Municipal Committee, Palika Kendra, Sansad Marg, New Delhi. Respondents T.A. NO.364/2009 Ms. Veena Sharma D/O B. S. Sharma, 48, Sukh Vihar, Delhi- 110051. Applicant Versus 1. New Delhi Municipal Committee through its Secretary, Palika Kendra, Sansad Marg, New Delhi. 2. Administrator, New Delhi Municipal Committee, Palika Kendra, Sansad Marg, New Delhi. Respondents T.A. NO.165/2009 Smt. Neeta Issar W/O D. K. Issar, R/O J-24, Rajouri Garden, New delhi-110027. Applicant Versus 1. New Delhi Municipal Committee through its Secretary, Palika Kendra, Sansad Marg, New Delhi. 2. Administrator, New Delhi Municipal Committee, Palika Kendra, Sansad Marg, New Delhi. Respondents T.A. NO.166/2009 Ms. Prem Lata Sharma D/O B. N. Sharma, G-1729, Laxmi Bai Nagar, New Delhi-110023. Applicant Versus 1. New Delhi Municipal Committee through its Secretary, Palika Kendra, Sansad Marg, New Delhi. 2. Administrator, New Delhi Municipal Committee, Palika Kendra, Sansad Marg, New Delhi. Respondents T.A. NO.167/2009 Smt. Shashi Arora W/O Anil Arora, R/O House No.2628, Bhagat Singh Street No.9, Chunna Mandi, Paharganj, New Delhi-110055, and C/O Shri H. C. Batra, 17/III, Lal Bahadur Sadan, Gole Market, New Delhi. Applicant Versus 1. New Delhi Municipal Committee through its Secretary, Palika Kendra, Sansad Marg, New Delhi. 2. Administrator, New Delhi Municipal Committee, Palika Kendra, Sansad Marg, New Delhi. Respondents T.A. NO.193/2009 Mrs. Arti Goel (earlier known as Ms. Arti Bansal) W/O L. K. Goel, R/O c-8/152, Yamuna Vihar, Delhi. Applicant Versus 1. New Delhi Municipal Committee through its Secretary, Palika Kendra, Sansad Marg, New Delhi. 2. Administrator, New Delhi Municipal Committee, Palika Kendra, Sansad Marg, New Delhi. Respondents T.A. NO.196/2009 Smt. Varinder Kaur W/O Narotam Singh, R/O III-B/15, Lajpat Nagar, New Delhi. Applicant Versus 1. New Delhi Municipal Committee through its Secretary, Palika Kendra, Sansad Marg, New Delhi. 2. Administrator, New Delhi Municipal Committee, Palika Kendra, Sansad Marg, New Delhi. Respondents T.A. NO.199/2009 Smt. Usha (Kush) Sharma W/O Naresh Kush Sharma, R/O 142, New Lalpur Colony, Krishna Nagar, Delhi-110051. Applicant Versus 1. New Delhi Municipal Committee through its Secretary, Palika Kendra, Sansad Marg, New Delhi. 2. Administrator, New Delhi Municipal Committee, Palika Kendra, Sansad Marg, New Delhi. Respondents T.A. NO.250/2009 Ms. Kamna Bhardwaj D/O Hans Raj Bhardwaj, R/O H. No.385, Village & P.O. Bijwasan, New Delhi-110061. Applicant Versus 1. New Delhi Municipal Committee through its Secretary, Palika Kendra, Sansad Marg, New Delhi. 2. Administrator, New Delhi Municipal Committee, Palika Kendra, Sansad Marg, New Delhi. Respondents Advocates: Shri G. D. Gupta, Sr. Adv. and with him Shri S. K. Sinha for applicants in all TAs, except TA No.167/2009 (Shri M. L. Kasturi). Shri Padma Kumar S. for Ms. Jyoti Singh for Respondents. O R D E R Justice V. K. Bali, Chairman:
By this common order, we propose to dispose of ten connected Transferred Applications, as common questions of law and facts arise in all the matters. Learned counsel representing the parties also suggest likewise. The bare minimum facts as may need necessary mention have been extracted from T.A. No.229/2009 in the matter of Ms. Usha Sharma v New Delhi Municipal Committee. The litigation between the applicants and the respondent NDMC surfaced in 1993, when, as per case set up by the applicants, their appointments even though regularized, they were shown the exit door without any show cause, hearing or enquiry, on the sole ground that their names were not sponsored by the employment exchange. Whereas, Mrs. Nirmal Bhatia, applicant in TA No.356/2009, because of long pendency of the case has since already retired and is stated to be getting all post-retiral dues, some of the applicants, we are further informed, are on the verge of retirement. The writ petitions seeking setting aside of the orders of termination passed on different dates in May, 1993 were filed before the Honble High Court of Delhi in the year 1993, and came to be transferred to this Tribunal, as primary jurisdiction to deal with such matters came to be vested with the Tribunal vide Government notification dated 1.12.2008, vide orders dated 21.1.2009. After completion of records and service, the matters were listed for hearing before us on 26.5.2009.
2. Before we may proceed any further, we may mention that the High Court while issuing notice in WP(C) No.2640/1993 in the matter of Ms. Usha Sharma to the respondents to show cause as to why rule nisi be not issued, on 25.5.1993, by interim orders protected the applicant by granting status quo regarding her services to be maintained till next date, which was continued from time to time, and was made absolute on 9.8.1994. Similar orders were passed in other writ petitions as well, though on different dates. The applicants are thus continuing in service till date. While making the rule absolute, the Honble Judge dealing with the matter, placed reliance upon the judgment of the Honble Supreme Court Union of India & others v N. Hargopal & others [AIR 1987 SC 1227].
3. Usha Sharma, applicant in TA No.229/2009, as per the case set up by her, was appointed to the post of Assistant Teacher in Nagar Palika Primary School, Sangli Mess, New Delhi, after her interview and selection by a duly constituted selection committee in its meeting held on 1st and 2md July, 1992. She was placed at serial number 31 in the panel prepared by the selection committee. Before appointing the applicant as Assistant Teacher, the respondent NDMC had desired her and other candidates to appear for an interview before the selection committee on 2.7.1992. Appointment of the applicant was on the basis of her educational qualifications and performance in the interview before the selection committee constituted by the respondent. The applicant is registered with employment exchange. She has also placed copy of her registration certificate in that regard at annexure A-2. The applicant after her selection was appointed as Assistant Teacher on a consolidated salary of Rs.2447/- initially on ad hoc basis for a period of three months in the first instance. The appointment letter dated 18.8.1992 further provided that she would be regularized on receipt of satisfactory report after the said period. It is the case of the applicant that the respondent thereafter on having received report with regard to her satisfactory performance, regularized her services as Assistant Teacher vide letter dated 19.3.1993 and placed her on probation for a period of one year with retrospective effect from 27.8.1992, the date of her joining. She was granted the regular pay scale of Rs.1200-2040 plus usual allowances. It is further the case of the applicant that the respondent NDMC for years together has been resorting to recruiting teachers and other categories of employees for the schools run by it in New Delhi Area out of the candidates sponsored by employment exchange and from amongst those directly applying, and their appointments, to begin with, are invariably on ad hoc basis either after due process of selection through interview, or purely on ad hoc basis for ascertaining suitability for the job as teacher, after trial for a limited period. The applicant was selected after interview of 133 candidates and on merits was placed at serial number 31 in the panel of 47 in general category. The respondent had issued interview letters to as many as 237 applicants/candidates out of whom only 133 appeared and selection after interview was made out of these 133 candidates only. Similarly, an earlier selection was made in the year 1991 when through a similar process, nearly 90 candidates were selected, who are stated to have been working as teachers after regular appointments, without any threat of termination of services. It is the case of the applicant that even after her selection, 30 more teachers had been appointed purely on ad hoc basis based on their applications or otherwise without any interview and/or any one of them having been sponsored by the employment exchange, and that they are also continuing as teachers unhindered without any threat of termination of services. The applicant has given specific names of Ms. Meena Garg and Ms. Niharika Sharma, who were appointed on ad hoc basis and are stated to be working in Nagar Palika School No.II, Sher Shah Mess, New Delhi. Insofar as, the work and conduct of the applicant is concerned, the same was always, it is her case, found to be satisfactory. The applicant was shocked to learn that her services had been terminated vide orders dated 21.5.1993, and the reason for the same, as the applicant gathered, was only that her name had not been sponsored by employment exchange. There are some other averments made in the Application, but in the context of the controversy raised before us for adjudication, there may not be any need to make reference to such pleadings. We may, however, refer to the order of appointment of the applicant as Assistant Teacher dated 18.8.1992. As per clause 1(a) of the said order, the applicant was appointed on ad hoc basis for a period of three months in the first instance and was to be regularized on receipt of a satisfactory report after the said period. As per clause (d), her appointment was to be on probation for a period of one year (applicable only in case of appointment made on probation). Clause (e) provided that in the event of the appointment being regularized, confirmation would depend upon availability of permanent post, position in seniority list and good report about work and conduct. Vide office order dated 19.9.1993, appointments of number of Assistant Teachers, including the applicant shown at serial number 5, were regularized in the pay scale of Rs.1200-2040 plus usual allowances, from the dates of their joining. The date of joining of the applicant in the order aforesaid was shown as 27.8.1992. Even though, services of the applicant were regularized, yet in the same very order, it came to be recorded that the appointment was purely temporary on ad hoc basis and could be terminated at any time without any notice and reason being assigned. Order dated 21.5.1993 showing the applicant exit door, reads as follows:
Under order of the administrator, N.D.M.C., New Delhi, the services of Miss Usha Sharma, Asstt. Teacher, N.P. Primary School, Sangli Mess, New Delhi are terminated with immediate effect under Section 45 of the Punjab Municipal Act, 1911.
A cheque dated 21.5.93 drawn on State Bank of India, New Delhi for Rs.2,699.00 on account of one months pay and allowances in lieu of one months notice is also enclosed. Insofar as, Section 45 of the Punjab Municipal Act, 1911 (hereinafter to be referred as the Act of 1911) is concerned, the same reads as follows:
NOTICE BEFORE DISCHARGE (1) In the absence of a written contract to the contrary, every officer or servant employed by a Committee shall be entitled to one months notice before discharge (or to one months wages in lieu thereof)* unless he is discharged during a period of probation or for misconduct or so engaged for a specified term and discharged at the end of it.
( )* Deleted.
4. Pursuant to notice issued by the High Court, the respondent NDMC put in appearance and filed its counter reply contesting the cause of the applicant. The averment that the respondent had been resorting to similar mode of selection on earlier occasions as also later, as contained in para 8 of the Application, has been partly admitted in the corresponding para of the reply. It is, however, further pleaded that some persons were appointed on ad hoc basis as Assistant Teacher after expiry of the panel formed vide resolution no.31 dated 30.7.1992 in the interest of studies of the students and that their ad hoc appointments were made for a specific period, whereafter the same had been discontinued. No specific denial is made with regard to the averment made in the Application that in an earlier selection in the year 1991, the respondent had resorted to same method of selection, wherein nearly 90 candidates were selected who have been working as teachers after their regular appointments, without any threat of termination of services. There is no specific denial to the pleading made in the Application that even after selection of the applicant, 30 more teachers had been appointed on ad hoc basis on the basis of applications received from them or otherwise, without any interview and/or any one of them having been sponsored by employment exchange. There is no denial either to the averment made with regard to two employees, namely, Ms. Meena Garg and Ms. Niharika Sharma, having been appointed on ad hoc basis and continuing unhindered in service. The only reason asking the applicant to quit, as mentioned in the counter reply, is that her services were temporary in nature and were terminated under Section 45 of the Act of 1911, under orders of Administrator, NDMC, who found that the selection of the applicant was irregular as her name was not sponsored for regular selection by the employment exchange. That is indeed the only reason for terminating the services of the applicant.
5. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. The applicant vide order dated 18.8.1992 was appointed as Assistant Teacher on ad hoc basis for a period of three months in the first instance, and her services were to be regularized on receipt of satisfactory report after the said period. Seven months after the said order was passed, order dated 19.3.1993 came to be passed regularizing services of the applicant among others. It appears to this Tribunal that regularization of the applicant came about in terms clause 1(a) of her order of appointment dated 18.8.1992, whereby she was to be regularized in consideration of her performance after three months. Once, the applicant was regularized, it is not understandable as to how in the very order dated 19.3.1993 it came to be mentioned that the appointment was purely temporary on ad hoc basis and could be terminated at any time without notice and reason being assigned. If the applicant was a regular employee, the respondent could not, while dispensing with her services, resort to Section 45 of the Act of 1911 as that would be violative of Article 14 of the Constitution, and an unconscionable term in the contract or rule in that regard would be would be void. We need not delve any more into the issue, as such a rule or term of contract has been held to be violative of Article 14 and a void contract under Section 23 of the Contract Act. Reference in this connection be made to the judgments of Honble Supreme Court in Central Inland water Transport corporation Ltd. & Others v Brojo Nath Ganguli & Another [(1986) 3 SCC 156], and Delhi Transport Corporation v DTC Mazdoor congress & Others [1991 Supp. (1) SCC 600]. Even if, for some reason it may be imagined that despite regularization of services, the applicants were still ad hoc, the only reason asking them to quit that their names were not sponsored by the employment exchange, would be wholly illegal. In that connection, we may refer to another authoritative pronouncement of the Honble Supreme Court in Excise Superintendent Malkapatnam, Krishna district, A.P. v K.B.N. Visweshwara Rao & Others [1996 (6) SCALE 676]. The facts of the case aforesaid reveal that the employees, who were applicants before the State Administrative Tribunal, were not sponsored through the employment exchange for selection to the 723 posts sought to be filled up from the candidates sponsored through the medium of employment exchange. They had, like the applicants before us, independently applied for consideration of their claims. They were, unlike the applicants before us, however, not considered. Aggrieved thus, they approached the Tribunal and sought direction for their appointment. Interim directions were issued to consider their cases and to appoint, if selected by the selecting authority. One of the issues involved was as to whether the sponsorship of the candidates through the medium of employment exchange was valid and not violative of Articles 14 and 16 of the Constitution. In that regard, it appears, there was a difference of opinion between the Members constituting the Bench. However, inasmuch as, in terms of the interim directions, many candidates came to be selected, orders were issued to appoint them. Aggrieved thus, the employer filed an appeal against the order of the Tribunal. Whereas, on behalf of the employer it was urged that directions issued by the Tribunal were not in accordance with law, counsel representing the employees urged that restriction of the field of choice to the selected candidates sponsored through the medium of employment of exchange would prohibit the right to be considered for employment to a post under the State and many people cannot reach the employment exchange to get their names sponsored and the employment exchanges are not adopting fair means and procedure to send the names strictly according to seniority in their record, and, therefore, the better course would be to adopt both the mediums, viz., of employment exchange and publication in the newspaper as that would serve the public purpose better. Of the two rival contentions as noted above, the Honble Supreme Court accepted the one advanced by the employees, and observed as follows:
6. Having regard to the respective contentions, we are of the view that contention of the respondents is more acceptable which would be consistent with the principles of fair play, justice and equal opportunity. It is common knowledge that many a candidates are unable to have the names sponsored, though their names are either registered or are waiting to be registered in the employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidates are deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning Departments for selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate Department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates. The appeal filed by the employer was dismissed, thus upholding the order of the Tribunal. In the case in hand, may be the applicants had not made their applications pursuant to any advertisement etc., but so was the position with regard to the case dealt with by the Honble Supreme Court as well. It may be recalled that the High Court while making absolute the interim directions issued by it, vide order dated 9.8.1994, also relied upon the judgment of the Honble Supreme Court in Union of India & Others v N. Hargopal & Others [AIR 1987 SC 1227]. It is not for the first time that the respondent resorted to selection and appointment of the candidates sponsored by employment exchange as also those who had independently applied. They had been resorting to that procedure earlier and later as well. No action like the one taken against the applicants was taken in cases of others.
6. For the reasons as mentioned above, finding considerable merit in these Applications, we allow the same. Consequently impugned orders terminating the services of the applicants are set aside. Inasmuch as, the applicants are in service because of the interim directions issued by the High Court, and are continuing till date, there may not arise the need to pass orders with regard to consequential benefits, particularly when we are informed that one of the applicants, namely, Mrs. Nirmal Bhatia, who has retired, is getting regular pension, and others, as may appear from the additional affidavit filed by applicant Usha Sharma, are getting everything that they may be entitled to. However, as a matter of abundant caution, we may mention that if because of pendency of present litigation, the applicants may not have been given some benefits as may otherwise accrue to them under rules, the same shall be given to them. In the peculiar facts and circumstances of the case, however, costs of the litigation are made easy.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/