Central Administrative Tribunal - Chandigarh
Nirbhay Tiwari vs Ut Administration Of Chandigarh on 10 January, 2019
Author: P. Gopinath
Bench: P. Gopinath
1 O.A. N0.060/00379/2018
CENTRAL ADMINISTRATIVE TRIBUNAL,
CHANDIGARH BENCH
O.A.No.060/00379/2018 Orders pronounced on: 10.01.2019
(Orders reserved on: 19.11.2018)
CORAM:HON'BLE MR. SANJEEV KAUSHIK, MEMBER (J) &
HON'BLE MS. P. GOPINATH, MEMBER (A)
Nirbhay Tiwari
S/o Shri Hari Narayan,
Aged 40 years,
working as Driver
in the office of
Director Public Relations,
Chandigarh Administration,
R/o House No. 2045, Pipliwala Town,
Manimajra, Chandigarh (Group „C‟).
Applicant
(BY: MR. RAMAN. B.GARG, ADVOCATE)
Versus
1. Union Territory of Chandigarh
through its Secretary of Public Relations,
U.T. Secretariat,
Sector 9-D,
Chandigarh.
2. Director Public Relations,
Union Territory Secretariat,
Ground Floor,
Sector 9,
Chandigarh.
(BY: MR. RAKESH PUNJ, ADVOCATE)
... Respondents
ORDER
2 O.A. N0.060/00379/2018 HON'BLE MR. SANJEEV KAUSHIK, MEMBER (J) In this Original Application under section 19 of the Administrative Tribunals Act, 1985, the applicant has sought quashing of the impugned order dated 12.12.2017 (Annexure A-
10) vide which his claim for regularization of service as Driver has been rejected and for issuance of direction to the respondents No. 1 and 2 to regularize his service, as such, after taking into consideration his excellent performance since January, 2003 and his lawful selection amongst all eligible candidates in consonance with recruitment rules and Articles 14 and 16 of the Constitution of India.
2. By and large, the facts of the case are not in dispute. The respondents issued an advertisement in Dainik Bhaskar, in addition to requisition sent to Regional Employment Exchange, U.T. Chandigarh, inviting applications for appointment to the post of Driver, on contract basis, against salary comprising of basic pay of the pay scale of the Driver plus Dearness Allowance as admissible from time to time, against a regular sanctioned post. The eligibility criteria was of Matriculation with 5 years of experience of Light Transport Vehicle (LTV), Holder of a valid driving licence of (LTV) and prescribed age limit was 18 to 25 years. The applicant also submitted his application against the post. The interview took place on 15.1.2003 and on being found meritorious, he was placed at Sr. No. 1 in merit lit. He was issued an appointment order dated 21.1.2003 (Annexure A-2) initially for a period of six months. This tenure has been extended from time to time, with notional breaks. He claims that there was no deficiency in his work and conduct. He has been serving the respondents without any break and even during break periods, as well as, during holidays. He has performed VIP duties at U.T. 3 O.A. N0.060/00379/2018 Guest House, Chandigarh, for about 8 years regularly without any deficiency or demur. He has also been assigned duties of Peon and watchman in addition to his duties as driver from time to time. His duty hours are from 06.30 A.M. to 9.00 PM. He has by now worked for more than 15 years and yet his regularization is yet to see light of the day despite the fact that 5 Assistant Medical Officers, working on contractual basis, were regularized on 2.9.2011 (Annexure A-4). Chandigarh Sports Council has also regularized 4 coaches on 10.4.2013 (Annexure A-5). Though Administration itself has issued policy guidelines for regularization of daily wagers vide letters dated 10.2.2014 and 13.3.2015 but no such decision in respect of contractual staff has been taken by them. The applicant has been selected as per prescribed procedure, through open selection, against a regular post, and as such, he is entitled to regularization. Reliance in support thereof is placed on directions issued in the case of SECRETARY, STATE OF KARNATAKA VS. UMADEVI, 2006 (2) SCT 462. The applicant preferred a representation dated 23.4.2015 upon which no decision has been taken by respondents. Then he filed O.A. No. 060/00228/2016 for regularization of his services which was allowed on 16.12.2016 (Annexure A-9) with a direction to the respondents to consider the claim of the applicant and pass necessary orders. However, the claim of the applicant has ultimately been rejected vide order dated 12.2.2017 (Annexure A-10). They further proceeded to fill up the post of Driver vide advertisement dated 22.2.2018 (Annexure A-11). Hence the O.A.
3. Upon Notice, the respondents have resisted the Original Application by filing a detailed reply. They submit that the post of Driver against which the applicant is working is meant for OBC category (backlog), as per Roster vetted by Department of 4 O.A. N0.060/00379/2018 Social Welfare, Chandigarh Administration vide letter dated 12.4.2016. As per terms of his appointment letter, the applicant cannot claim regularization, which was duly accepted by him in 2003 by furnishing an affidavit. Thus, he is estopped from claiming regularization. They have given detail of his working from 22.1.2003 to 31.8.2018 which contains breaks of 1, 2, 3 and in one case 10 days on such extensions. It is claimed that there is no policy for regularization of employees working on contract basis. The applicant was afforded an opportunity to compete in selection process against regular post of Driver (General Category) in 2009 wherein he was kept at Sr. No.1 of waiting list. Since, DoP of Chandigarh Administration has not issued any policy / instructions for regularization of contractual employees, thus, claim of applicant has been rejected. As per law, the contractual employees have no right for regularization of their services. Thus, process was initiated to fill up the post from open market reserved for OBC category.
4. The applicant has filed a replication to controvert the pleas taken by the respondents. It is pleaded that earlier litigation has attained finality in which claim of the applicant was allowed. That being the position, the respondents cannot take a different stand or same stand to reject the claim of the applicant as they have accepted the judicial pronouncement of this Court.
5. We have heard learned counsel for the parties and examined the material available on the file.
6. It is not in dispute that the issue as raised in this case was raised in earlier round of litigation which was disposed of on 16.12.2016 and the decision has attained finality. The finding recorded and order passed by the Court is reproduced as under
:-
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6. A conjunctive reading of the pleadings would show that the applicant was selected and appointed against the post of Diver out of an open selection on 21.1.2003 and has been working since then on extensions being given from time to time with artificial breaks of a day or two and at one point of time it was for 10 days. The applicant continues to be in employment of the respondents till date. He has not been a back door entrant in the department. His work and conduct has also not been questioned by the respondents. The post is available with the respondents, though the same is termed to be reserved for OBC category. Two posts were available with the respondents. The applicant has been working as general category since 2003. The denial of regularization is made on three points that the applicant had accepted terms and conditions of appointment which prevents him from claiming regularization. The post against which the applicant is working is meant for OBC and that there is no policy framed from regularization of contractual employees.
7. In so far as first plea of applicant being estopped from claiming regularization is concerned, we find that a person who seeks employment is not in a position to bargain with the mighty department when question is about earning his livelihood. The Department cannot put certain conditions in letter of appointment which would bar a remedy for an aggrieved party to claim a relief from a court of law, like regularization based on articles 14 and 16 of the Constitution of India. Such conditions would have to be treated as void ab initio and cannot be used against a person to a contract who was not in a bargaining position and as such objection raised by the respondents qua estopple of applicant to claim regularization is rejected being opposed to law.
8. The second plea raised by the respondents is that the post is reserved for OBC category. The applicant has explained in detail that as per information sought for by him under RTI Act (Annexure A-7), the existing vacancy of Driver belongs to un-reserved category. He has explained that new vacancy of Driver was to be filled up is 3 rd replacement under the unreserved category. The relevant Register has also not shown Sh. Joginder Singh, Driver, who was appointed prior to Sh. Kishori Lal, who retired on 31.1.1987 (Annexure A-8) and if his appointment is reflected in the Roster, the existing vacancy of Driver would be 4th replacement which is shown to be a vacancy meant for SC category and same has to be filled up from un-reserved category. As per noting dated 23.2.2011, one post of Driver under un-reserved category was lying vacant. If only one vacancy occurs in initial recruitment year and is reserved for SC/ST/OBC, it has to be treated as unreserved. These pleadings have not been rebutted by the respondents by filing any documents or clarification and as such same have to be accepted on the face of the record and it has to be held that the post is un-
reserved. In any case, if a person has been working for the last 13 years and if he is regularized, the vacancy can be carried forward for being filled up from OBC category. There does not appear to be any legal impediment in doing so.
9. In so far as non availability of any policy instructions for regularization of contractual workers is concerned, the Chandigarh Administration itself has regularized services of 5 Assistant Medical Officers in grade pay of Rs.4400/- vide order dated 2.9.2011 (Annexure A-4), though in pursuance of directions of this Tribunal in O.A.No. 93-CH-2009 decided on 17.8.2010. Junior Coaches have also been regularized vide order dated 26.3.2013 (Annexure A-5) by Chandigarh Sports Council.
10. Learned counsel for the applicant placed reliance on a decision of this Tribunal in O.A.No. 060/00734/2014 (Satinder Pal etc. Vs. UOI etc.) decided on 22.1.2016, which was a case relating to regularization of contractual Data Entry Operators. The Bench has held that the applicants therein had been working with the department for 6 O.A. N0.060/00379/2018 periods ranging between 13 to 19 years and were appointed as DEOs on contractual basis, through a formal process of selection. Large number of vacancies of clerks were available. The Bench held that keeping in mind the long years of service rendered by them with respondents, and dim prospects of their getting job outside the Administration, having become overage, the respondents were directed to consider regularization of their services against vacancies of Clerks. Reliance was also placed upon decision of Hon‟ble Apex Court on Nihal Singh & Others Vs. State of Punjab & Others, 2013 (5) SLR 436 (S.C) and Amarendra Kumar Mohapatra & Ors. Vs. State of Orissa & Others, 2014 (3) SLR, 496 (SC).
11. On the other hand, learned counsel for the respondents has placed reliance on a decision of Punjab and Haryana High Court on Vijay Kumar Vs. State T.B. Control Society, Haryana, 2007 (3) SCT 145 in which claim of regularization of adhoc / contractual employees was rejected on the ground that appointments were made by Society to control the cases of tuberculosis in the State of Haryana upto 2010. No person was to be appointed on regular basis against a project which was to be completed by 2010. Thus, their claim was rejected. Apparently, that decision would be of no help to the respondents as claim in this case is against a post which is regular one and applicant is working against same since 2003.
12. The Hon‟ble Apex Court in the case of Uma Devi (supra) has held in para 44 as under :-
"44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a onetime measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
13. If there are no rules to govern a field, the Courts adopt the path of justice, equity and good conscious. The basic parameters for regularization have been laid down in the case of Uma Devi (supra) in which direction was issued to irregularly appointed casual employees for regularization, who have worked for ten years or more, against duly sanctioned post and not under cover of orders of courts or Tribunal. In this case, the applicant has worked for more than 10 years since 2003. His continuation is not under any order of a Court of law or Tribunal and it is against a duly sanctioned post. Added to this is the action of respondents in regularization services of other contractual employees as mentioned in order dated 2.9.2011, Annexure A-4 and 10.4.2013, Annexure A-5. In this view of the matter, we have no hesitation in holding that the applicant is also entitled to be considered for regularization.
7 O.A. N0.060/00379/2018
14. The Original Application is accordingly allowed. The respondents are directed to consider the claim of the applicant for regularization and pass necessary orders within a period of three months from the date of receipt of copy of this order. No costs."
7. It is not in dispute that the respondents have allowed the aforesaid order to attain finality having not challenged the same in higher court of law or challenge any finding on any other ground like error by filing any review petition. In short, the findings recorded by this Court, which at the cost of repetition are again mentioned here that, if there are no rules to govern a field, the Courts adopt the path of justice, equity and good conscious. The basic parameters for regularization have been laid down in the case of Uma Devi (supra) in which direction was issued to irregularly appointed casual employees for regularization, who have worked for ten years or more, against duly sanctioned post and not under cover of orders of courts or Tribunal. The applicant has worked for more than 10 years since 2003 and his continuation is not under any order of a Court of law or Tribunal and it is against a duly sanctioned post. Not only that, the action of respondents in regularization services of other contractual employees as mentioned in order dated 2.9.2011, Annexure A-4 and 10.4.2013, Annexure A-5 and as such Court specifically held that the applicant is also entitled to be considered for regularization. However, again we find that the respondents have rejected the claim of applicant on similar grounds which have been brushed aside by this Court. Though this is a fit case for proceeding against contempt against the officers of the department for showing obduracy, but we are restraining ourselves from doing so.
8. It is well settled law that the celebrated audi alteram partem rule one of the facets of the principles of natural justice is that the authority deciding the matter must apply its mind to the 8 O.A. N0.060/00379/2018 attendant facts and circumstances while taking a view one way or the other. Non-application of mind is a defect that is fatal to any adjudication. Application of mind is best demonstrated by disclosure of the mind and disclosure of mind is best done by recording reasons in support of the decision which the court or authority is taking. The requirement that an adjudicatory authority must apply its mind is, in that view, so deeply embedded in our jurisprudence that it can be described as a fundamental policy of Indian law. The decision which is perverse or so irrational that no reasonable person would have arrived at the same will not be sustained in a court of law. Perversity or irrationality of decisions is tested on the touchstone of Wednesbury principle. Reference is made to ASSOCIATED PROVINCIAL PICTURE HOUSES LTD. V. WEDNESBURY CORPN., (1948) 1 KB 223: (1947) 2 All ER 680 (CA)]. It has been held that decisions that fall short of the standards of reasonableness are open to challenge in a court of law
9. Examining the facts of this case in the light of above proposition of law, we find that just because in earlier case direction was issued to the respondents to consider the claim of the applicant does not mean that the respondents could ignore the findings in the back ground of which the consideration had to take place. The meaning of word consideration is careful thought and it is not a mere formality carried out to reject the claim of a litigant even though there be directions and findings by court of law in his favour. This kind of consideration carried out by respondents cannot be accepted by court and the impugned order, Annexure A-10, to say the least, tries to over reach the findings and directions contained in earlier round of litigation. In this view of the matter, it is held that the applicant 9 O.A. N0.060/00379/2018 is entitled to regularization in view of findings recorded in earlier round of litigation, which have attained finality.
10. In the case of UNION OF INDIA & ANR. VS. ASHOK KUMAR AGGARWAL [Civil Appeal No. 9454 of 2013] decided on 22.11.2013, the Hon‟ble Apex Court has settled that in such like cases, that the claim cannot be rejected by passing a similar order disregarding the directions issued by courts. The observations made therein are as under:-
"K. The respondent challenged the said orders dated 12.1.2012 and 3.2.2012 by filing OA No.495 of 2012 before the Tribunal and the Tribunal allowed the said OA vide order dated 1.6.2012 holding that the earlier directions given by the Tribunal on 16.12.2011 had not been complied with while passing the impugned orders dated 12.1.2012 and 3.2.2012 and thus, the continuation of suspension was not tenable. The said orders were accordingly quashed by the Tribunal.
L. Aggrieved by the order dated 1.6.2012 passed by the Tribunal, the appellants preferred Writ Petition No.5247 of 2012 before the High Court of Delhi which was dismissed vide judgment and order impugned dated 17.9.2012.
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31. In view of above, we are of the considered opinion that it was not permissible for the appellants to consider the renewal of the suspension order or to pass a fresh order without challenging the order of the Tribunal dated 1.6.2012 and such an attitude tantamounts to contempt of court and arbitrariness as it is not permissible for the executive to scrutinize the order of the court.
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42. Considering the case in totality, we are of the view that the appellants have acted in contravention of the final order passed by the Tribunal dated 1.6.2012 and therefore, there was no occasion for the appellants for passing the order dated 31.7.2012 or any subsequent order. The orders passed by the appellants had been in contravention of not only of the order of the court but also to the office memorandum and statutory rules. In view thereof, we do not find any force in this appeal. The appeal lacks merit and is accordingly dismissed. There will be no order as to costs.
24. It is astonishing that in spite of quashing of the suspension order and direction issued by the Tribunal to re- instate the respondent, his suspension was directed to be continued, though for a period of six months, subject to review and further subject to the outcome of the challenge of the Tribunal's order before the High Court. The High Court affirmed the judgment and order of the Tribunal dismissing the case of the appellants vide impugned judgment and order dated 17.9.2012. Even then the authorities did not consider it proper to revoke the suspension order.
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42. Considering the case in totality, we are of the view that the appellants have acted in contravention of the final order passed by the Tribunal dated 1.6.2012 and therefore, there was no occasion for the appellants for passing the order dated 31.7.2012 or any subsequent order. The orders passed by the appellants had been in contravention of not only of the order of the court but also to the office memorandum and statutory rules. In view thereof, we do not find any force in this appeal. The appeal lacks merit and is accordingly dismissed. There will be no order as to costs."
10. In the wake of above discussion, this Original Application is allowed. The respondents are directed to consider the claim of the applicant for regularization and pass necessary orders keeping in view the findings recorded in favour of the applicant in earlier round of litigation, as discussed above, within a period of two months from the date of receipt of copy of this order.
11. The parties are, however, left to bear their own costs.
(SANJEEV KAUSHIK) MEMBER (J) (P. GOPINATH) MEMBER (A) Place: Chandigarh Dated: 10.01.2019 HC*