Central Administrative Tribunal - Delhi
R/O Village & Post Upera vs The Director on 24 February, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No. 993/2010 Reserved on :14.2.2012 Pronounced on:24.2.2012 HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE MR. SHAILENDRA PANDEY, MEMBER (A) Shri Umesh (6, Sewerman) S/o Shri Chhidda Lal Office At: Civil Division-IINd D/(TS) All India Institute of Medical Sciences, New Delhi. Also At:- R/o Village & Post Upera Thesil-Hapur, District Ghaziabad UP. Applicant By Advocate: Shri Satish Chand. Versus The Director, All India Institute of Medical Sciences (AIIMS), New Delhi. ..Respondents By Advocate: Shri Sanjeev Joshi. ORDER
By Honble Mrs. Meera Chhibber, Member (J) Applicant had filed Writ Petition No.1257/2010 before the Honble High Court of Delhi which was withdrawn on 3.3.2010 by the applicant to seek appropriate relief before the Central Administrative Tribunal. This is how the present OA has been filed by the applicant seeking the following relief:-
(i) To issue order/direct the respondent to refrain from conducting the arbitrary hidden process of demotion thereby depriving the applicant from legal right of being confirmed and promoted to higher position and benefits in his service and also against the exploitation of the applicant by the respondent.
(i) To protect the service of the applicant so that the respondent may not be able to dismiss, suspend and terminate the applicant.
(iii) To provide adequate compensation to the applicant who is suffering a loss in salary since beginning as the applicant is getting a total pay scale of Rs.2550-3200 instead of Rs.3050-4500 as the nature of work done by the applicant is equivalent to the nature of work done by Group C employees of CPWD, hence the applicant is entitled to be compensated at par with Group C employees of CPWD.
(iv) To pass any other or further order/relief, which this Honble Tribunal deemed fit and proper in favour fo the applicant.
2. The brief facts, as stated by the applicant, are that he was engaged as Sewerman on daily wage basis in 1992 and was given temporary status also as Sewereman w.e.f. 1.1.1996. However, salary is being paid as Group D employee. Since then he is working in AIIMS as Sewerman and is entitled to all the benefits such as Earned leave, Medical Leave, GPF etc and New Pension Scheme. It is further submitted that applicant is entitled to incremental pay scale which is at par with Government of India and is getting a salary in the scale of Rs.2550-55-266-60-3200 since 1996. The post of Sewerman comes under Group C category but he is being paid salary of a Group D employee and is bearing loss in his salary right from the beginning. Applicant is working in AIIMS on the post of Sewerman, which is a technical post and equivalent post in CPWD is in Group C, therefore, he is entitled to the relief, as prayed for.
3. He has further stated that on 23.10.2004, the Administrative Officer of AIIMS Shri B.S. Ahluwalia had issued a letter inquiring about the work and conduct report to be submitted in respect of persons working at Sl.No.1 to 18 on adhoc/daily wages/temporary status at the earliest as the same is required to consider their candidature by the Selection Committee/DPC for appointment to the post of Sewerman on regular basis. Instead of regularizing him, AIIMS issued a letter in 2009 to its employees stating therein that the employees who are working in Group C will be given status on a regular basis in Group D and called upon them to file the affidavit. The relevant portion of the said affidavit by which applicant is aggrieved, reads as under:-
That the deponent worker in Group D was at this initial stage given his consent for his regularization in the service.
That the deponent worker will not pressurize the institute/claim for his regularization in any other post instead of Group D.
4. It is submitted by the counsel for the applicant that even income tax for the year 2009-10 was deducted from the applicant, which can only be done in respect of permanent employees. Moreover, vide Memorandum dated 30.5.2011 certain persons working as Sewerman had been granted MACP whereas applicant, who is a regular employee is being asked to give an affidavit-cum-NOC, which is against the law, as such it is prayed that the OA may be allowed.
5. Counsel for the applicant has placed reliance on the judgment given by the Honble Supreme Court in the case of Delhi Jal Board Vs. National Campaign for Dignity and Rights of Sewerage and Allied Workers and Others reported in 2011 (2) SCC (L&S) 375.
6. Respondents have opposed this OA. They have stated that the present applicant is barred by principles of estoppels and limitation as provided in law as the applicant herein had been enjoying the benefits especially the financial upgradation pursuant to the grant of temporary status in group D, without any reservation. That now at this juncture raising issues about the eligibility as group C is uncalled for and barred by the principles of estoppels and without prejudice, the issue raised in the OA, regarding the proposal for regularization of Group-D Dailywagers/Temporary Status Employees is of 2008 whereas the OA has been filed in 2010, therefore, the present OA is liable to be dismissed on the ground of limitation as well.
7. They have further stated that the applicant was engaged on muster roll in Group D in the exigencies of services and administration for carrying out certain jobs/functions of Sewerman, de hors the rules and without any process of selection or opportunity having been given to eligible persons on daily wages w.e.f. 23.06.1992 in the Engineering Service Department. He was granted temporary status in the pay scale of Rs.2550-3200 (pre-revised) for Group D employee as per guidelines of Department of Personnel & Training OM dated 10.09.1993. The financial upgradation was applicable only to Group D employees and was accepted by the applicant without any reservation. On 07.05.2008, a proposal for regularization of Group D daily wagers/temporary status employees was placed before the Standing Finance Committee whereby those who fulfill the Recruitment Rules of their respective posts were regularised. This issue was considered by the Governing Body of the AIIMS on 13.08.2008 and ratified the recommendations of the SFC in accordance with the policy of the AIIMS which has been upheld by the Division Bench of the Honble High Court of Delhi. In the absence of the said policy, the applicant will have no right of being even considered.
8. They have further stated that the applicant and other candidates were advised to submit an affidavit/undertaking to the effect that they accept the process of consideration for regularization. All other incumbents, who were eligible have been allowed the benefit of the policy and have joined their respective post in Group D category upon such regularization but applicant has not given any such affidavit. The post of Sewerman is a Group C post and is required to be filled up by promotion from amongst the regular Sweeper who fulfills the prescribed eligibility criteria as per the Recruitment Rules. The temporary status Group D employee such as applicant has no legal right to be promoted to the post of Sewerman and there is no provision of temporary status in Group C post. They have thus prayed that the OA may be dismissed.
9. Counsel for the respondents has placed reliance on the following judgments:-
(i) Union of India and Another Vs. Moti Lal and Others reported in 1996 (7) SCC 481.
(ii) TA No. 458/2009 decided on 19.8.2010 in the case of Vinod Kumar and Others Vs. AIIMS and Another.
10. We have heard both the counsel and perused the pleadings as well.
11. Though it is stated by the applicant that he has been working as Sewerman since 1992 and granted temporary status also as Sewerman but no such order is placed on record. Respondents on the other hand have stated that applicant has been granted temporary status in Group D in the pay scale of Rs.2550-3200 w.e.f. 1.1.1996 in terms of OM dated 10.9.1993. It is not disputed by the applicant that he is getting pay as per Group D. If that be so, his cause of action had arisen when he was granted temporary status. Applicant never challenged grant of temporary status as Group D employee meaning thereby he acquiesced to the situation. It is only when respondents wanted to regularize the applicant as Group D and he was asked to submit an affidavit that applicant took objection to it. His only objection is that since he had been working as Sewerman since 1992, he should be regularized as a Sewerman.
12. Respondents have explained that the post of Sewerman is a Group C post and promotional post, therefore, naturally applicant cannot be regularized against a promotional post. Regularisation can be done only at the initial stage. This issue has already been decided by the Honble Supreme Court in the case of U.O.I. Vs. Moti lal.
13. Two questions were framed in the said case viz:-
(1) Is it permissible under Rules to appoint a person directly as Mate in Class III and if not, then whether the factually continuance of the person as a Mate for a considerable period entitles him to be regularised as a Mate ?
(2) Conferment of a temporary status as a Mate whether ipso facto entitles a person to be regularised as a Mate and not as a Gangman ?
14. It was held as follows:-
9. So far as the first question is concerned, on examining the relevant provisions of the Rules as well as the administrative instructions issued by the Railway authorities we are of the considered opinion that it is not permissible to appoint a person directly as a Mate and it is only a promotional post from Class IV post of Gangman and Keyman. These Gangman and Keyman can be promoted to the post of Mate in Class III subject to their suitability and efficiency being tested through trade test. It is no doubt true that these respondents under certain circumstances had been appointed directly as casual Mates and they continued as such and further by virtue of their continuance they acquired temporary status but that by itself does not entitle them to be regularised as Mates since that would be contrary to the Rules in force. In our considered opinion the respondents did not acquire a right for regularisation as Mates from mere fact of their continuance as casual Mate for a considerable period.
10. So far as the second question is concerned, we are also of the considered opinion that conferment of the temporary status as Mate ipso facto does not entitle the person concerned for regular absorption as Mate. In the case of Ram Kumar v. Union of India (Writ Petition Nos. 15863-15906 of 1984 disposed of on 2nd December 1987) (reported in AIR 1988 SC 390), this Court has held that an employee on daily wage basis under the Railway acquires temporary status on completion of a specified number of days in service and with the acquisition of said status such employees are entitled to :-
(1) Termination of service and period of notice (subject to the provisions of Industrial Disputes Act, 1947). (2) Scales of pay.
(3) Compensatory and local allowances. (4) Medical attendance.
(5) Leave rules.
(6) Provident Fund and terminal gratuity. (7) Allotment of railway accommodation and recovery of rent. (8) Railway passes.
(9) Advances.
(10) Any other benefit specially authorised by the Ministry of Railways.
11. Thus it is apparent that a daily wage or casual worker against a particular post when acquires a temporary status having worked against the said post for specified number of days does not acquire a right to be regularised against the said post. He can be considered for regularisation in accordance with the Rules and , therefore, so far as the post of Mate under Railways is concerned, the same has to be filled up by a promotion from the post of Gangman and Keyman in Class IV subject to employees passing the trade test.
12. In this view of the matter the Tribunal was not justified in directing regularisation of the respondents as Mates.
15. The case in hand would be fully covered by the above judgment, therefore, no direction can be given to regularize the applicant as Sewerman, which is a Group C post.
16. In order to do justice to the applicant we direct the respondents to regularize the applicant as Safailwala with effect from the same date when his counter-parts were regularized and consider him for promotion as Sewerman whenever vacancy becomes available and as per his turn.
17. With the above direction, OA is disposed of. No costs.
(Shailendra Pandey) (Mrs. Meera Chhibber)
Member (A) Member (J)
Rakesh