Central Administrative Tribunal - Delhi
Seema Mishra vs M/O Commerce on 23 April, 2018
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2895/2017
MA-4627/2017
Reserved on : 28.02.2018.
Pronounced on : 23.04.2018.
Hon'ble Mr. Raj Vir Sharma, Member (J)
Hon'ble Ms. Praveen Mahajan, Member (A)
Ms. Seema Mishra, 33 yrs.
D/o Sh. Kaushal Kumar Mishra,
R/o House No.44, Royal Enclave,
Delhi Road, Moradabad. .... Applicant
(through Ms. Shobhana Takiar, Advocate)
Versus
1. Union of India,
Ministry of Commerce & Industry,
Department of Commerce,
SEZ Section
through its Secretary,
Udyog Bhawan,
New Delhi-110001.
2. Moradabad Special Economic Zone,
Ministry of Commerce & Industry,
Department of Commerce,
Through its Assistant Development Commissioner,
6th Km, Pakbara-Dhingarpur Road,
Moradabad-244001.
3. Noida Special Economic Zone,
Ministry of Commerce & Industry,
Department of Commerce,
Through its Development Commissioner,
Noida-Dadri Road, Phase-II,
Noida-201305. .... Respondents
(through Sh. R.K. Sharma, Advocate)
2 OA-2895/2017, MA-4627/2017
ORDER
Ms. Praveen Mahajan, Member (A) The applicant in the O.A. states that she was appointed on daily wage basis by respondent No.2 vide letter dated 03.10.2005 for the post of Secretariat Assistant for varying periods. On 31.08.2007, respondent No.2 requested the respondent No.1 to post two Stenographers Grade-III through District Employment Exchange of Moradabad on ad hoc basis. Respondent No.1 vide letter dated 18th/22nd October, 2007 conveyed the approval for filling up the post of two Stenographers Grade-III, on temporary basis, for one year, from local Employment Exchange against the sanctioned posts. The applicant was selected by a duly constituted Committee and she joined her duties on 21.01.2008.
2. On 28.11.2008, the respondent No.2 informed respondent No.1 that though Moradabad SEZ has two sanctioned posts of Stenographer Grade-III, but despite several advertisements etc. and vacancy circulars, no candidate was available. Hence, two posts were sanctioned subject to be filled up through the District Employment Exchange. The Applicant states that she was appointed through the Employment Exchange against one post while the other post is still lying vacant.
3 OA-2895/2017, MA-4627/2017
3. Respondent No.1 vide letters dated 11.05.2009 and 09.06.2009 informed the Zonal Office, (respondent No.3) to fill up the post of Stenographer Grade-III on priority. In the meantime, the post was to be filled up on ad hoc basis for a period of one year w.e.f. 01.03.2009. Vide letters dated 16.03.2009, 06.10.2009, 29.04.2011, 18.08.2011, 17.07.2014 & 14.06.2016, respondent No.2 kept requesting respondent No. 1 that since he was not getting any candidate for the post of Stenographer Grade-III, the applicant's tenure/period should be extended and she should be absorbed in Moradabad SEZ on permanent basis. Each time, respondent No.1, extended the applicant's tenure on ad hoc basis. The applicant has further submitted that while considering the ad hoc appointment of the applicant, at different point of time, certain clarifications were sought from respondent No.2 which were furnished on 04.03.2016 (Annexure A-19). Being satisfied, continuance of 10 temporary posts including that of the applicant till 28.02.2017 was allowed by respondent No.1 vide letter dated 20.12.2016.
4. On 11.01.2017, the applicant again gave a representation to the respondents for extension of her tenure, which has not been decided till date. The applicant submits that she has come to know that respondents have decided not to extend her tenure on the ground that persons on ad hoc basis as Stenographer Grade-III, are to be discontinued. She submits that respondent No.1 had 4 OA-2895/2017, MA-4627/2017 approved her appointment on contractual basis till the availability of a regular incumbent. Though she has worked from April, 2016 to December, 2016 but no salary has been given to her and she has not been allowed to join the office after January 2017 - after availing leave due to her marriage.
5. The applicant avers that it is settled position of law that employees working on ad hoc basis are regularized in service as and when a sanctioned post becomes available. Hence, the action of the respondents in discontinuing her services is totally arbitrary and violative of the principles of equality as enshrined in Article 14 of the Constitution.
6. She has placed reliance on the decision of Hon'ble Supreme Court in the case of Bhagwati Vs. DSMDC, 1989(4)SC 541 wherein the following has been held:-
"....Practical experience would always said and person to effectively discharge the duties and is a sure guide to assist the suitability. Initial minimum educational qualification prescribed for different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. In our view, three years experience, ignoring artificial break in service for short period/periods created by the respondents in the circumstances would be sufficient for confirmation."
7. The applicant has also cited the judgments of Hon'ble Supreme Court in the case of H.C. Puttaswamy Vs. Hon'ble Chief Justice of 5 OA-2895/2017, MA-4627/2017 Karnataka High Court, (1991) Suppl (2) SCC 421 & Baleshwar Dass Vs. State of U.P., (1980) 4 SCC 226, to support her contention.
8. Aggrieved by the action of the respondents, the applicant has filed the current O.A. seeking the following relief:-
"(a) Direct the Respondent no.1 to act in accordance with the law and to regularize the service of the Applicant petitioner in the posts of Stenographer Gr-III.
(b) Direct the respondents to give to the Applicant the same scale of pay & all benefits given to regular employees as the Applicant was discharging the same functions and duties as that of regular Stenographer Gr III and was holding dual post with the respondents from the date of her initial appointment in the respondent department.
(c) Prohibiting the respondents from removing the Applicant from service and making appointment to the post of Stenographer Grade-III during the pendency of the petition without considering the Applicant.
(d) To direct the Respondents to consider the Applicant and to give her regularization of service with back salary w.e.f.
1.4.2016 till date and other benefits.
(e) To call the entire original records of respondent pertaining to this matter to see the injustice being caused to the applicant and to award costs in favour of the Applicant and against the Respondent; and
(f) Award the cost of the petition in favour of the Applicant and against the respondents.
(g) Pass such other or further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
9. Rebutting the averments of the applicant, the respondents in their counter state that the competent authority, vide its letter dated 22.10.2007, had conveyed the approval for filling up two temporary 6 OA-2895/2017, MA-4627/2017 posts of Stenographer Grade-III in the pay scale of Rs. 4000-6000 for a period of one year from Local Employment Exchange against the sanctioned posts. This was subject to fulfillment of requisite requirements as prescribed in the Recruitment Rules of other SEZS. Accordingly, late Dr. Alok Pandey ADC (respondent No. 2) Moradabad SEZ vide letter dated 31st December, 2007 requested the Regional Employment Officer, District Employment Exchange, Moradabad to forward at least three names of candidates fulfilling following eligibility criteria:-
"(i) Age Limit :Between 20-25 years (Note: the crucial date for determining the age limit shall be the date of forwarding the names of the eligible candidates.
(ii) Eligibility: Educational Qualification: Secondary School Leaving Certificate or its Equivalent with a speed of 80 words per minute in English Shorthand and 30 words per minute in English typewriting and/or 3500 key depreciation per hour on a personal computer.
(iii) Desirable: Proficiency in use of Computer applications and some exposure towards the foreign trade and allied issues."
In response, the Regional Employment officer forwarded a list of eligible candidates in which the name of the applicant also figured. A Committee constituted for the purpose recommended the name of the applicant, and she was appointed to the temporary post of Stenographer Grade-III on 21.01.2008 7 OA-2895/2017, MA-4627/2017
10. Subsequently, the Department of Commerce on a proposal from ADC, Moradabad SEZ (respondent No.2) conveyed the approval of Competent Authority for filling up 02 posts of Stenographer Grade-III on ad hoc basis in Moradabad SEZ, for a period of one more year w.e.f. 01/03/2009 or until further orders whichever is earlier. It was also directed to initiate action to fill up these posts on regular basis under intimation to them. DOC vide letter dated 29.09.2014 (Annexure A-16 of OA) conveyed the approval of the competent authority for filling up one post of Stenographer Grade-III for a period of one year. Accordingly, Ms. Mishra was again appointed on ad hoc post of Stenographer Grade-III w.e.f. 01.04.2015, for six months and for another six months w.e.f. 01.10.2015.
11. The Respondents submit that no official record of ad hoc appointment of the applicant for the period from 03.10.2005 to 20.01.2008 (as claimed by her) is available with them. As per their records, the details of the appointment in respect of the applicant are:-
S.No. Period from Period to Post held Nature of Appointment 1 21.01.2008 20.01.2009 Stenographer Ad-hoc Grade-III 2 01.03.2009 28.09.2010 Stenographer Ad-hoc Grade-III 3 01.04.2015 30.09.2015 Stenographer Ad-hoc Grade-III 8 OA-2895/2017, MA-4627/2017 4 01.10.2015 31.03.2016 Stenographer Ad hoc Grade-III
12. Respondents further state that extension for ad-hoc appointment to the applicant has not been granted beyond 31.03.2016 in pursuance to the letter dated 15.07.2016 received from DOC (Deptt.of Commerce). Vide this letter, the request for grant of extension of the post of Stenographer Grade-III was not agreed to.
The applicant left the service after her marriage, after which she neither joined the office nor was any extension granted to her.
13. In support of their averments, the respondents contend that the Hon'ble Supreme Court in the case of State of M.P. and Ors. and Lalit Kumar Verma (2007 Vol.112 F.L.R. Page 345) held that if the applicant is not appointed in terms of Statutory Rules/Provisions then he/she is not entitled to any regular pay scale. Similarly, in the case of Surendra Nath Pandey Vs. U.P. Cooperative Bank Limited, 2010 Vol. F.L.R. page 1045 the Hon'ble Supreme Court held that daily wage employees cannot claim regular pay scale as a matter of right. In the case of Union of India and Ors. Vs. Misranmoysen and Ors., 2007 Vol.115 F.L.R. Page 786 it has been held that the Court cannot fix pay scales that being purely an Executive function. Respondents have also relied upon the decision in the case of State of West Bengal vs. Subhas Kumar Chatterjee and Ors., 2010 Vol.127 F.L.R. page 236, where Hon'ble Supreme Court has held that the 9 OA-2895/2017, MA-4627/2017 Court/Tribunal should avoid giving a declaration granting a particular scale of pay and compel the Government to implement the same.
14. The respondents have cited a large number of other decisions of Hon'ble Supreme Court in their endeavour to show that the claim of the applicant for regularization and regular pay scale is not sustainable. The citations relied upon are:-
i. Dhirendra Chamoli Vs. State of U.P., 1986 Vol. 52 F.L.R. page
148.
ii. Madhymik Sikhs Parishad U.P. Vs. Anil Kumar Mishra and Ors., 1994 Lab. I.C. page 1197.
iii. Delhi Development Horticulture Employees Union Vs. Delhi Administration, 1992 Vol. 643 F.L.R. page 110. iv.Hindustan Aeronautics Limited Vs. Dan Bahadur Singh and Ors., 2007 Vol. 114 F.L.R. page 294.
v. M.P. Housing Board & Ors. Vs. Manoj Srivastava, 2006 Vol.109 F.L.R. page 194.
vi.Indian Drugs and Pharmaceuticals Limited vs. Worker of Indian Drugs and Pharmaceuticals Limited, 2007 Vol. 112 F.L.R. page 474.
vii.State of U.P. Vs. Kaushal Kishore, 1991 Vol. 62 F.L.R. page 35. viii.Triveni Shankar Saxena Vs. State of U.P., 1992 Vol.64 F.L.R. page 330.
ix. Gujarat and another Vs. P.J. Kampavat and Ors., 1994 Vol. 68 F.L.R. page 889.
x. Accounts Officer(A&I)APSRTC and Ors. Vs. K.U. Ramana and Ors., 2007 Vol. 112 F.L.R. page 918.
xi.State of Manipur and Ors. Vs. Sh. Noiranginingathou Singh and Ors., 2007 Vol. 113 F.L.R. page 199.
xii.R.N. Nanjundappa Vs. T. Thimuniash and Ors., 1972(2)SCR page 799.
xiii.Mahendra Lal Jain and Ors. Vs. Indore Development Authority and Ors., 2005 Vol. 104 F.L.R. page 54. xiv.Surinder Prasad Tiwari Vs. U.P. Rajya Krishi Utpadab Mandi Parishad, 2006 Vol.7 SCC 694.
xv.Mahendra Lal Jain and Ors. Vs. Indore Development Authority and Ors., 2005 Vol. 104 F.L.R. page 54. xvi.National Fetilizers Limited Vs. Somvir Singh, 2006 Vol. 110 10 OA-2895/2017, MA-4627/2017 F.L.R. page 211.
xvii.School Education Department Chennai Vs. R. Govinda Swamy, (2014) 4 SCC 769.
xviii.Secretary State of Karnataka and Ors. Vs. Uma Devi and Ors., 2006 Vol. 109 F.L.R. page 826.
xix.State of M.P. Vs. Yogesh Chandra Dubey, 2006 Vol.111 F.L.R. page 332.
xx.Executive Engineer and Ors. Vs. Diagambara Rao and Ors., 2004 Vol. 103 F.L.R. page 460.
xxi.Dhirendra Kumar Singh Vs. U.P. State Road Transport Corporation, 1989 Vol. 58 F.L.R. 440.
xxii.R.N. Nanjundappa Vs. T. Thimmiah and Ors., 1992 Vol.2 SCR
799. xxiii.P.U. Joshi Vs. Accountant General Ahmedabad and Ors., 2003(2) SCC page 632.
xxiv.MSRTC and Anr. Vs. Castribe Rajya P. Karamchari Sangthana, 2009 Vol. 123 F.L.R. page 136.
15. We have carefully considered the arguments of the learned counsels for the parties and have also perused the pleadings and documents annexed thereto.
16. It is not in dispute that the applicant was engaged as Stenographer Grade-III for one year on a temporary post in the pay scale of Rs. 4000-6000 vide Office Order dated 24.01.2008. The Department of Commerce, on a proposal from ADC SEZ, conveyed approval of DOC, for filling up 02 posts of Stenographer Grade-III, on ad hoc basis for a period of one more year w.e.f. 01.03.2009 (or until further orders, whichever is earlier). The respondents in their counter have stated that the records pertaining to appointment of Ms. Mishra from 03.10.2005 to 01.01.2008 and from 08.04.2010 to 11 OA-2895/2017, MA-4627/2017 26.03.2015 (as claimed by her) are not available/traceable in their office.
17. Be that as it may, the undisputed period (by the respondents as well) for which the applicant was working as Stenographer Grade-III, on purely temporary basis is as per the table given below:-
S.No. Period from Period to Post held Nature of Appointment 1 21.01.2008 20.01.2009 Stenographer Ad-hoc Grade-III 2 01.03.2009 28.09.2010 Stenographer Ad-hoc Grade-III 3 01.04.2015 30.09.2015 Stenographer Ad-hoc Grade-III 4 01.01.2015 31.03.2016 Stenographer Ad hoc Grade-III
18. DOC, vide letter dated 15.07.2016 rejected the proposal of respondent No. 2 for grant of extension to Ms. Mishra, on ad hoc basis, w.e.f. 01.04.2016. It was directed therein that:-
"The engagement of the person on ad hoc basis as Stenographer Grade-III in the Zone may be discontinued under intimation to this Department. However, possibility of engaging persons by entering into agreements on contract basis by strictly following the applicable procedures may be explored. DOC vide letter dated 07.11.2016 desired that action taken in pursuance of 15.07.2016 may be intimated. Accordingly, DOC vide this office letter dated 29.12.2016 informed that extension of ad hoc appointment of Ms. Mishra to the post of Stenographer Grade-III beyond 31.03.2016 has not been granted."
Other periods for which the applicant claims to have worked in the SEZ cannot be verified since there are no such documents/orders produced by Ms. Mishra or the respondents in support of her 12 OA-2895/2017, MA-4627/2017 contentions. We, therefore, proceed to adjudicate the case based on available records and averments made by both sides.
19. At the time when Ms. Mishra was initially appointed as Stenographer Grade-III in Moradabad SEZ, the terms of the contractual engagement were clearly spelt out. This is clear from the order dated 03.10.2005 produced by the applicant, which states as under:-
"The Competent Authority has approved the appointment of Ms. Seema Mishra, D/o Shri Kaushal Kumar Mishra for the post of Secretarial Assistant in the office of the Moradabad Special Economic Zone on daily wage basis at the rate of Rs. 151.00 per working day for a period of 89 days with effect from 03-10-2005."
20. It is not clear if the applicant was granted an extension after this order for the intervening period before she joined the SEZ again w.e.f. 21.01.2008 till 20.01.2009. She continued intermittently for three other spells (as shown at para-17 above). No evidence has been produced by the applicant regarding her continuous engagement on this post for the period from 29.09.2010 to 31.03.2014, though a reference has been made in the O.A. to letter dated 20.12.2016 of respondent No.1 allowing continuation of the applicant till 28.02.2017, but no papers to this effect have been produced before us.
21. It seems that for their internal reasons, the respondents could not take up regular recruitments to fill up the posts against which the 13 OA-2895/2017, MA-4627/2017 applicant was engaged on ad hoc basis. Hence, on recommendation of the ADC SEZ grant of extension to the applicant was granted from time to time with some breaks.
22. Based on this intermittent ad hoc engagement, the applicant has prayed that the respondents be prohibited from removing her from service and she should be allowed to rejoin the Moradabad SEZ in the post of Stenographer Grade-III. She has also requested for grant of back wages on the scale of pay as given to regular employees for the period that she claims to have worked for on ad hoc basis.
23. The respondents in their counter have relied upon the citation of the Apex Court in the case of Surinder Prasad Tiwari Vs. U.P. Rajya Krishi Utpadab Mandi Parishad, 2006 Vol.7 SCC 694 wherein it was held that:-
"In view of the clear and unambiguous constitutional scheme, the courts cannot countenance appointments to public office which have been made against the constitutional scheme. In the backdrop of constitutional philosophy, it would be improper for the courts to give directions for regularization of services of the person who is working either as daily-wager, ad hoc employee, probationer, temporary or contractual employee, not appointed following the procedure laid down under Articles 14, 16 and 309 of the Constitution. In our constitutional scheme, there is no room for back door entry in the matter of public employment."
In the case of P.U. Joshi Vs. Accountant General Ahmedabad and Ors., 2003(2)SCC 632 the Hon'ble Supreme Court again observed that:-
14 OA-2895/2017, MA-4627/2017 "Creation and abolition of Posts and Regularization are a purely Executive function. Hence, the Court/Tribunal cannot create a post where none exists. Also, we cannot issue any direction to absorb the respondents or continue them in service or pay them Salaries of Regular employees, as these are purely Executive functions. This Court/Tribunal cannot arrogate to itself the powers of the executive or legislature. There is broad separation of powers under the Constitution and the judiciary, too, must know its limit."
24. Numerous other citations on the subject are not being reproduced here for the sake of brevity. In view of the facts of the foregoing paragraphs, we find that the request of the applicant seeking regularization and back wages on the ground that she has been working on the post as ad hoc employee, is not valid or justified.
25. Hon'ble Apex Court has held in the case of Hindustan Aeronautics Ltd. Vs. Dan Bahadur Singh & Ors., (2007 Vol. 114 F.L.R. Page 294) that mere completion of 240 days of service in a year does not confer the right to regularization.
26. Undoubtedly, the contractual engagement of the applicant was done in a regular manner through a selection process undertaken pursuant to directions of Deptt. of Commerce but that does not bestow any kind of a legal right on the applicant to claim appointment on regular basis. The applicant was only appointed on ad hoc basis, so the question of giving her regular pay scales and other benefits does not arise. Daily wagers cannot claim regular pay scale as a matter of right. Since the respondents were not able to 15 OA-2895/2017, MA-4627/2017 take up regular appointments, to fill up the posts, the applicant was given extension from time to time with some break in service and this continued for some time. At the time of initial appointment, the applicant was well aware of the temporary nature of her tenure as well as the pay scale payable to her. She cannot now turn around and seek enforcement of a right which she was never entitled to. The judgments relied upon by the applicant are not relevant to the facts of the present case.
27. Keeping in view the facts and circumstances of this case as also the principle of law enunciated in the above referred decisions, we are of the opinion that this O.A. is devoid of merit, and hence is liable to be dismissed. We do so accordingly. No costs.
(Praveen Mahajan) (Raj Vir Sharma) Member (A) Member (J) /vinita/