Central Administrative Tribunal - Delhi
Shri Ombir vs The Union Of India on 13 May, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 3844/2013 Reserved On:29.04.2015 Pronounced On:13.05.2015 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Shri Ombir S/o Shri Suraj Mall, R/o H.No.198, Badarpur, New Delhi-110044. ..Applicant By Advocate: Shri P.S. Mahendru. Versus 1. The Union of India, Through the Secretary, Ministry of Telecommunication & Broadcasting, Secretariat, New Delhi. 2. The Sr. Superintendent of Posts, New Delhi South West Division, New Delhi-110021. Respondents By Advocate: Shri Deepak Bhardwaj. ORDER
G. George Paracken, Member(J) The grievance of the Applicant in this Original Application is that the Respondents have arbitrarily removed him from service without any prior notice.
2. According to the Applicant, on 19.03.1992 he got his name registered with the Employment Exchange under the Directorate of Employment, Delhi Administration and his Registration No. was M/30716/2012. In 1993, the Assistant Superintendent of Post Offices (Respondent No.2) sent a requisition to the Employment Exchange for sponsoring candidates for the post of Part Time Chowkidars and the Employment Exchange sponsored candidates including him for the aforesaid post. The Respondent No.2 selected him and directed him to report for duty with his educational certificate showing his date of birth, caste certificate, if any, Employment Exchange Card and Ration Card for verification vide his order dated 27.10.1993. After verifying the aforesaid documents, he was appointed to the aforesaid post vide Respondents letter dated 29.10.1993 and he joined duty on 01.11.1993. Initially he was posted with Shahdara Post Office, Delhi-11032 and thereafter with other Post Offices. In some of the Post Offices he worked as Night Chowkidar and in others, as Waterman. Suddenly on 28.12.2010, Respondent No.2 orally informed him that his services were no more required and it removed him from service. As he was not aware as to why he was abruptly removed from service without giving any prior notice, he made representations on 19.01.2011 and on 29.02.2013 seeking reasons. He has also requested Respondent No.2 to allow him to resume his duty as he could not have been terminated in such a manner after 17 years of service. Further, he made a representation dated 26.06.2012 to the Minister of Telecommunication and IT requesting him to interfere in the matter and to help him to get his job back. As no action was taken by the Respondents, he has filed this Original Application on 23.10.2013 seeking a direction to the Respondents to reinstate him in service from the date of his removal, i.e., 28.10.2010 with all consequential benefits. He has also requested the Respondents to regularize him in service in accordance with the relevant rules and the law on the issue.
3. The Respondents have filed their reply stating that the Applicant was engaged as Part Time Chowkidar on purely temporary basis despite the ban imposed by the Department of Posts against engaging casual labourers after 01.09.1993, i.e., prior to his engagement. The said ban was continued vide their letter No.2-10/88/PE-I dated 04.02.1997. They have also stated that the Applicant was appointed as Part Time Chowkidar without adopting the process of selection for the said post as per the guidelines on the subject. Further, according to them, since he was appointed on temporary and ad hoc basis his services could be terminated at any time without issuing any notice or assigning any reasons.
4. Further, the Respondents have stated that pursuant to the recommendations of the 6th Pay Commission, revised duty have been assigned to the erstwhile Group D staff as Multi Tasking Group C Staff. According to the said recommendations, the watch and ward/caretaker duties, and general cleanliness and upkeep of section/unit/office including dusting of furniture, cleaning of building rooms and fixtures, gardening will also be the duties of Multi Tasking Staff Group C, in addition to duties already entrusted to them. Thus the job of the casual laborers is now looked after by the regular Multi Tasking Staff (Group C) or otherwise outsourcing the work.
5. They have also stated that since there were instances of breach of the mandatory instructions on ban on engagement of casual labourers, the Postal Directorate vide letter No.4-4/2009/PCC dated 19.11.2010 ordered as under:-
(a) No casual labourers shall be engaged in the Administrative Offices w.e.f. 01.12.2010.
(b) The work of sweepers and scanvengers should be combined or the same may be outsourced wherever feasible.
( c) Since duties of waterman, watch and ward, gardening, cleaning etc. are now part of the duties assigned to Multi Tasking Staff, the existing practice of engaging casual labourers as waterman, gardener, watch and ward or any other miscellaneous category shall be dispensed w.e.f. 01.12.2010.
6. They have also relied upon the judgment of the Apex Court in the case of Chief Executive Engineer, Pondicherry Khadi and Village Industries Board and Another Vs. K. Aroquia Radja and Others 2013 (1) SCC (L&S) 813 wherein it has been held that the respondents who had taken coterminous appointment with full understanding of the same cannot be permitted to challenge their disengagement when the tenure of the Chairman was over. Further, they have relied upon the judgment in the case of Secretary, State of Karnataka and Others Vs. Uma Devi and Others 2006(4) SCC 1 wherein it has been stated that if the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularized. The relevant part of the said judgment reads as under:-
17. One aspect arises. Obviously, the State is also controlled by economic considerations and financial implications of any public employment. The viability of the department or the instrumentality or of the project is also of equal concern for the State. The State works out the scheme taking into consideration the financial implications and the economic aspects. Can the court impose on the State a financial burden of this nature by insisting on regularization or permanence in employment, when those employed temporarily are not needed permanently or regularly? As an example, we can envisage a direction to give permanent employment to all those who are being temporarily or casually employed in a public sector undertaking. The burden may become so heavy by such a direction that the undertaking itself may collapse under its own weight. It is not as if this had not happened. So, the court ought not to impose a financial burden on the State by such directions, as such directions may turn counter- productive.
18. The Decision in Dharwad Distt. P.W.D. Literate Daily Wage Employees Association & ors. Vs. State of Karnataka & Ors. (1990 (1) SCR 544) dealt with a scheme framed by the State of Karnataka, though at the instance of the court. The scheme was essentially relating to the application of the concept of equal pay for equal work but it also provided for making permanent, or what it called regularization, without keeping the distinction in mind, of employees who had been appointed ad hoc, casually, temporarily or on daily wage basis. In other words, employees who had been appointed without following the procedure established by law for such appointments. This Court, at the threshold, stated that it should individualize justice to suit a given situation. With respect, it is not possible to accept the statement, unqualified as it appears to be. This Court is not only the constitutional court, it is also the highest court in the country, the final court of appeal. By virtue of Article 141 of the Constitution of India, what this Court lays down is the law of the land. Its decisions are binding on all the courts. Its main role is to interpret the constitutional and other statutory provisions bearing in mind the fundamental philosophy of the Constitution. We have given unto ourselves a system of governance by rule of law. The role of the Supreme Court is to render justice according to law. As one jurist put it, the Supreme Court is expected to decide questions of law for the country and not to decide individual cases without reference to such principles of law. Consistency is a virtue. Passing orders not consistent with its own decisions on law, is bound to send out confusing signals and usher in judicial chaos. Its role, therefore, is really to interpret the law and decide cases coming before it, according to law. Orders which are inconsistent with the legal conclusions arrived at by the court in the self same judgment not only create confusion but also tend to usher in arbitrariness highlighting the statement, that equity tends to vary with the Chancellor's foot.
19. In Dharwad case, this Court was actually dealing with the question of 'equal pay for equal work' and had directed the State of Karnataka to frame a scheme in that behalf. In paragraph 17 of the judgment, this Court stated that the precedents obliged the State of Karnataka to regularize the services of the casual or daily/monthly rated employees and to make them the same payment as regular employees were getting. Actually, this Court took note of the argument of counsel for the State that in reality and as a matter of statecraft, implementation of such a direction was an economic impossibility and at best only a scheme could be framed. Thus a scheme for absorption of casual/daily rated employees appointed on or before 1.7.1984 was framed and accepted. The economic consequences of its direction were taken note of by this Court in the following words.
"We are alive to the position that the scheme which we have finalized is not the ideal one but as we have already stated, it is the obligation of the court to individualize justice to suit a given situation in a set of facts that are placed before it. Under the scheme of the Constitution, the purse remains in the hands of the executive. The legislature of the State controls the Consolidated Fund out of which the expenditure to be incurred, in giving effect to the scheme, will have to be met. The flow into the Consolidated Fund depends upon the policy of taxation depending perhaps on the capacity of the payer. Therefore, unduly burdening the State for implementing the constitutional obligation forthwith would create problems which the State may not be able to stand. We have, therefore, made our directions with judicious restraint with the hope and trust that both parties would appreciate and understand the situation. The instrumentality of the State must realize that it is charged with a big trust. The money that flows into the Consolidated Fund and constitutes the resources of the State comes from the people and the welfare expenditure that is meted out goes from the same Fund back to the people. May be that in every situation the same tax payer is not the beneficiary. That is an incident of taxation and a necessary concomitant of living within a welfare society."
20. With respect, it appears to us that the question whether the jettisoning of the constitutional scheme of appointment can be approved, was not considered or decided. The distinction emphasized in R.N. NANJUNDAPPA Vs T. THIMMIAH & ANR. (supra), was also not kept in mind. The Court appears to have been dealing with a scheme for 'equal pay for equal work' and in the process, without an actual discussion of the question, had approved a scheme put forward by the State, prepared obviously at the direction of the Court, to order permanent absorption of such daily rated workers. With respect to the learned judges, the decision cannot be said to lay down any law, that all those engaged on daily wages, casually, temporarily, or when no sanctioned post or vacancy existed and without following the rules of selection, should be absorbed or made permanent though not at a stretch, but gradually. If that were the ratio, with respect, we have to disagree with it.
7. We have heard the learned counsel for the Applicant Shri P.S. Mahendru and the learned counsel for the Respondents Shri Deepak Bhardwaj. We have also perused the documents available on record. It is seen that the Applicant was removed from service on the basis of the Respondents order dated 28.12.2010 and it reads as under:-
DEPARTMENT OF POSTS OFFICE OF THE CHIEF POST MASTER GENERAL DELHI CIRCLE, NEW DELHI 110001 To All Heads of Units Delhi Circle No. Staff/R-9/Misc/2008-DA-6 Dated 28.12.2010 Sub: Review of instructions on engagement of Casual Labourers in the light of the guidelines on outsourcing.
This is in continuation of this office endorsement No.Staff/R-9/Misc/2008/DA-6 dated 15.11.2010 and 24.11.2010. In this respect, it is clarified that services of Casual Labourers appointed before 1.9.93 is not to be dispensed with at present. If any such engagement has been terminated that may be restored immediately.
2. Further as per letter No.4-4/2009-PCC dated 29.10.2010 endorsed dated 15.11.2010 by this office, a review was to be undertaken as to examine whether currently engaged Casual Labourers were recruited by due process of selection as per DOPT guidelines. The same may be completed within a weeks time and a report be submitted.
3. It is further reiterated and enjoined upon all concerned that in no case Casual Labourers were to be engaged for regular nature of duties or against the Casual Labourers who vacate the work due to his death or otherwise. If any such Casual Labourers are still working the same may be intimated to this office immediately.
4. It is also reiterated that engagement of part time workers as Chowkidars in house keeping maintenance like sweeping, scavenging gardening should be stopped forthwith, especially the contingencies paid Chowkidars, who are oftenly engaged for extended hours of duty during the night.
8. In our considered view, the Respondent No.2 wrongly applied the aforesaid letter in the case of the Applicant. It merely says that those Casual Labourers appointed prior to 01.09.1993 shall not be dispensed with and a review was to be undertaken to examine whether they have been engaged following due process of selection as per DOPT guidelines. It also says that in no case Casual Labourers were to be engaged for regular nature of duties or against the Casual Labourers who vacate the work due to his death or otherwise and engagement of part time workers as Chowkidars, in house keeping maintenance like sweeping, scavenging gardening should be stopped forthwith, especially the contingencies paid Chowkidars, who are often engaged for extended hours of duty during the night. In the said letter, there was no direction whatsoever from the Department of Posts to terminate the service of the casual labourers like the Applicant who was appointed as night part-time watchman on temporary basis followed by engagement on full time basis on other posts. Admittedly, the Applicant was selected through the due process of law at the relevant time. As he was a registered candidate with the Employment Exchange and when the vacancy of Part Time Chowkidar occurred, the Respondent No.2 rightly made requisition to the Employment Exchange to sponsor the eligible candidates for consideration. Accordingly, the Employment Exchange sponsored many registered candidates including the Applicant but the Respondent No.2 selected the Applicant and he has engaged with effect from 01.11.1993. From that date, he has been working continuously for the last over 17 years performing various duties assigned to the regular erstwhile Group D employees. With the introduction of the recommendations of the 6th Central Pay Commission w.e.f. 01.01.2006, all those Group D employees have been designated as Multi Tasking Staff (MTS for short). Therefore, the Respondents could not have terminated his service on the basis of the aforesaid letter. Instead, they should have considered him for appointment as MTS.
9. Further it is seen the justification given by the Respondents in their reply affidavit for terminating the service of the Applicant based on the judgments of the Apex Court in the case of K. Aroquia Radja and Others (supra) and paras 17 to 20 in the case of Uma Devi (supra) are not relevant. The judgment in the case of the former deals with persons appointed on co-terminus basis but the Applicant is admittedly appointed on temporary basis. As regards the judgment in Uma Devis case (supra) is concerned, the Respondents have not bothered to see that the Apex Court in the same judgment held that an employee who has worked for more than 10 years should not be disengaged in such arbitrary manner. The relevant part of the said judgment reads as under:-
44. The concept of 'equal pay for equal work' is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the Rules.
This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after the Dharwad decision, the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution of India permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality.
45. 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.
46. Learned Senior Counsel for some of the respondents argued that on the basis of the doctrine of legitimate expectation, the employees, especially of the Commercial Taxes Department, should be directed to be regularized since the decisions in Dharwad (supra), Piara Singh (supra), Jacob, and Gujarat Agricultural University and the like, have given rise to an expectation in them that their services would also be regularized. The doctrine can be invoked if the decisions of the Administrative Authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn {See Lord Diplock in Council of Civil Service Unions V. Minister for the Civil Service (1985 Appeal Cases 374), National Buildings Construction Corpn. Vs. S. Raghunathan, (1998 (7) SCC 66) and Dr. Chanchal Goyal Vs. State of Rajasthan (2003 (3) SCC 485). There is no case that any assurance was given by the Government or the concerned department while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it. The very engagement was against the constitutional scheme. Though, the Commissioner of the Commercial Taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out. No such promise could also have been held out in view of the circulars and directives issued by the Government after the Dharwad decision. Though, there is a case that the State had made regularizations in the past of similarly situated employees, the fact remains that such regularizations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some case by this Court. Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularized in the service though they had not been selected in terms of the rules for appointment. The fact that in certain cases the court had directed regularization of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation. The argument if accepted would also run counter to the constitutional mandate. The argument in that behalf has therefore to be rejected.
10. It is also seen that after the aforesaid judgment in Uma Devis case (supra), the Respondents themselves have issued instruction vide OM No. No.49019/1/2006-Estt) dated 11.12.2006 to regularize as a one time measure the services of such irregularly appointed, who are duly qualified persons in terms of the statutory recruitment rules for the post and who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or tribunals. The said OM reads as under:-
No.49019/1/2006-Estt) Govt. of India Ministry of Personnel, Public Grievances & Pensions (Department of Personnel & Training) New Delhi, dated the 11th December,2006 OFFICE MEMORANDUM Subject: Regularisation of qualified workers appointed against sanctioned posts in irregular manner.
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The undersigned is directed to say that the instructious for engagement of casual workers enunciated in this Departments OM No. 49014/2/86 Estt.(C) dated 7th June, 1988 as amplified from time to time, inter-alia provided that casual workers and persons on daily wages should not be recruited for work of regular nature. They could be engaged only for work of casual or seasonal or intermittent nature, or for work which is not of full time nature for which regular post can not be created. Attention is also invited to this Departments OM No. 28036/1/2001-Estt. (D) dated 23rd July, 2001 wherein it was provided that no appointment shall be made on ad-hoc basis by direct recruitment from open market.
2. A Constitution bench of the Supreme Court in civil appeal No. 3595-3612/1999 etc. in the case of Secretary State of Karnataka and Ors. Vs Uma Devi and others has reiterated that any public appointment has to be in terms of the Constitutional scheme. However, the Supreme Court in para 44 of the aforesaid judgement dated 10.4.2006 has directed that 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 are duly qualified persons in terms of the statutory recruitment rules for the post and who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or tribunals. The Apex Court has clarified that if such appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularized.
3. Accordingly the copy of the above judgement is forwarded to all Ministries/Departments for implementation of the aforesaid direction of the Supreme Court.
Sd./-
(C.A. Subramanian) Director.
11. Interpreting the aforesaid Memorandum dated 11.12.2006, the Punjab and Haryana High Court in CWP No.20521 of 2012 (O&M) Union of India and Others Vs. Ganga Ram and Another decided on 12.10.2012 held that once the Respondent No.1 therein (the employee concerned) had completed more than 10 years of service as on 11.05.2005, he was certainly entitled to be considered for regularization in compliance of the directions of the Apex Court in Uma Devis case (supra). The relevant part of the said order reads as under:-
CWP No. 20521 of 2012 (O&M):The Tribunal after considering the submissions made by respondent No.1 and objections raised by the petitioners, allowed the O.A. and held that respondent No.1 who has been working for more than 8 hours a day is to be treated as full-time Chowkidar and he is entitled to wages of full-time Chowkidar. It has been held that the issue with regard to treating such part-time Chowkidars as full-time Chowkidars is covered by number of decisions of the Tribunal in the case of Rattan Chand Versus Union of India and another (O.A. No.822/HP/1998 decided on 15.5.2000) ; Puran Chand Versus Union of India and another (O.A. No.1084/HP/1994 decided on 29.10.1996) and Narain Singh Versus Union of India and another, (O.A. No.861/CH/1999 decided on 25.4.2000) and accordingly the petitioners were directed to grant wages of casual full-time Chowkidar to respondent No.1 and the arrears were restricted to three years prior to the filing of the O.A. Learned counsel for the petitioners could not controvert the aforesaid legal position. In view of the fact that respondent No.1 has been working for more than 8 hours a day as Chowkidar of the petitioner Department, he is entitled to the wages of casual full-time Chowkidar. Thus, in our opinion the Tribunal has rightly granted the said benefit to respondent No.1 while restricting his claim to three years. Learned counsel for the petitioner hotly contested the second direction issued to the petitioners by the Tribunal, i.e. to consider the case of respondent No.1 for regularization in terms of the Instructions dated 11.12.2006 based on the judgment in Umadevi's case (supra) against the sanctioned post whenever available as per his seniority. The learned counsel argued that the appointment of respondent No.1 as part-time Chowkidar was irregular, therefore, keeping in view the observations made by the Supreme Court in para 44 of the judgment in Umadevi's case (supra), he could not have been considered for regularization. However, it has not been disputed that all those casual workers who had been appointed before 1993 had been conferred with Temporary Status and later on were regularized on completion of 10 years of service as Group `D' employees according to the instructions dated 11.12.2006. However, respondent No.1 cannot be granted the said benefit because he was appointed in the year 1995, but it is a matter of fact that when the Instructions dated 11.12.2006 came into existence, respondent No.1 had completed more than 10 years of service and according to those Instructions the petitioners are required to consider his case for regularization against the vacant available posts. It has been found by the Tribunal that respondent No.1 though was appointed as Part-time Chowkidar, but he is entitled to full wages being full-time casual worker. Therefore, in our opinion, such type of worker is to be considered for regularization on completion of 10 years of service. In the facts of the present case it cannot be said that the appointment of respondent No.1 was irregular. It has not been disputed before us that such appointments are being made by the petitioners in their Post Offices at various places. Respondent No.1 has been working in the petitioner Department since 1995 against the sanctioned post. It is not the case of the petitioners that no post of Chowkidar is available with the petitioner Department. It is also not the case of the petitioners that respondent No.1 was not qualified for appointment on the said post. Once respondent No.1 has completed more than 10 years of service as on 11.5.2005, he is certainly entitled to be considered for regularization in view of the Instructions dated 11.12.2006 issued by the petitioners in compliance with the directions given by the Supreme Court in Umadevi's case (supra). Respondent No.1, who is a poor person and working as Chowkidar for the last more than 17 years, cannot be denied the benefit of regularization on the ground that his appointment was irregular, particularly when there is no such material on the record. At no point of time the petitioners had ever written to respondent No.1 that his appointment was irregular. Only to defeat his claim for regularization, such plea has been taken by the petitioners so that respondent No.1 may not get the benefit of full-time Chowkidar despite the fact that he has been continuously working as night Chowkidar with the petitioner Department. In view of the above, we do not find any illegality in the impugned order passed by the Tribunal while granting the aforesaid two relief to respondent No.1.
No merits. Dismissed.
12. The Honble High Court of Delhi also, in its recent judgment dated 28.02.2015 in W.P. ( C) No.9371/2014 and connected matters Meenu and Others Vs. Integrated District Health Society and Others observed that the Apex Court in Uma Devis case (supra) has made an exception in the case of casual labourers who have put in 10 years or more service prior to passing that judgment while the said judgment was passed in the year 2006. The Applicant was appointed way back on 01.11.1993. The relevant part of the said judgment reads as under:-
3. There are three exceptions to the ratio of the judgment in the case of Umadevi & Ors. (supra). The first exception is that as per para 53 of the judgment in the case of Umadevi & Ors. (supra) and which provided that those employees who had worked for ten years prior to passing of the judgment in the case of Umadevi & Ors. (supra) if they were selected by regular recruitment process and qualified persons were appointed against vacancies in sanctioned posts, government will prepare a scheme for regularizing such employees who have worked in such posts for 10 years without having benefit of any stay order from any Court or Tribunal. The second exception with respect to the judgment in the case of Umadevi & Ors. (supra) is that a contractual employee or project employee cannot be terminated from service for being replaced by another contractual employee or a project employee. This was so held by the Supreme Court in the case of State of Haryana and Ors. etc. etc. Vs. Piara Singh and Ors. etc. etc. (1992) 4 SCC 118 and whose ratio that one contractual employee cannot be replaced by another contractual employee was approved by the Constitution Bench in the case of Umadevi & Ors. (supra). The third exception is an exception which is carved out in view of the judgment of the Supreme Court in the case of Mohd. Abdul Kadir and Anr. Vs. Director General of Police, Assam and Ors. (2009) 6 SCC 611 and which exception is that where persons have already worked for decades in the posts which were not sanctioned posts, since the work is perennial in nature because of which the employment has continued for decades, government has been ordered to consider creation of appropriate posts and regularization of the persons who have been working for decades in the posts in contractual/project posts.
13. In the above facts and circumstances of the case, it is seen that the initial appointment of the Applicant itself was on regular basis strictly following the prescribed recruitment process by the competent authority. Further according to the Respondents themselves, his appointment was on temporary basis and not as a casual labourer. Therefore, the Respondents should have considered him for regualrization in service in due course. In any case, they could not have disengaged him after 17 years of his continuous service as Chowkidar, Waterman etc. We, therefore, hold that the oral termination of the Applicant from service based on the Respondents letter dated 28.12.2010 is arbitrary and illegal. On the other hand, even if the Applicant is considered as a causal labourer, on the basis of the judgment in the case of Uma Devi (supra), he was entitled to be considered for regularization as a Group D employee w.e.f. 01.11.2003, i.e., 10 years after his engagement and then as MTS after 01.01.2006.
14. In the result, the Applicant succeeds and the OA is allowed with the directions to the Respondents to reinstate the Applicant in service immediately with retrospective effect from 28.12.2010 with continuity of service and other consequential benefits. They shall also consider him for regularization of his service as Group D employee retrospectively w.e.f. 01.11.2003 and if is found suitable, his service shall be so regularized from that date with all consequential benefits. Thereafter, he shall also be considered for appointment as MTS from the due date. The aforesaid directions shall be complied with, under intimation to the Applicant within a period of one month from the date of receipt of a copy of this order. As the Applicant has not prayed for any cost in this case, we refrain from awarding any cost to the Respondents.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh