Central Administrative Tribunal - Delhi
Sh. Sarwar Singh vs Municipal Corporation Of Delhi on 26 March, 2010
Central Administrative Tribunal
Principal Bench, New Delhi.
TA-509/2009
New Delhi this the 26th day of March, 2010.
Honble Mrs. Meera Chhibber, Member(J)
Honble Mr. N.D. Dayal, Member(A)
1. Sh. Sarwar Singh,
S/o Sh. Udham Singh,
SO(H), Karol Bagh Zone,
MCD, R/o C-1278, LIG DDA
Flats, East of Loni Road,
Delhi-93.
2. Sh. Narender Singh,
S/o sh. Late Pritam Singh,
Plot No. 15, House No. 501,
AHCGHS Ltd. Sec 9,
Dwarka, New Delhi.
3. Sh. Pramod Kr. Shrivashtava,
S/o Sh. Gautam Pd. Shrivastav,
House No. T-12A,
Sukar Bazar, Uttam Nagar,
New Delhi.
4. Sh. Vijay Pal Sharma,
S/o Sh. Vishamber Sahai,
E-5, Mata Wali Gali,
Johripur, Delhi.
5. Sh. Sube Singh,
S/o Sh. Jai Kanwar Singh,
House No. R-2, Navind Shahdara,
Delhi-32.
6. Sh. Inder Pal,
S/o Sh. Rajpal Singh,
House No. 95, N-Colony,
MCD Flats, Delhi.
7. Sh. Karey Singh,
S/o Sh. Bali ram,
R/o L-194 (Ext.), Mohan Garden,
Uttam Nagar, New Delhi
8. Sh. Shashi Kant Sharma,
S/o Sh. J.P. Sharma,
R/o B-10/225B,
Sector-34, Noida,
UP.
9. Sh. Jagpal Singh,
S/o sh. Prem Singh,
B-42, Gali No.1,
Ganga Vihar,
Delhi-94. Applicants
(through Ms. Rekha Palli, Advocate)
Versus
1. Municipal Corporation of Delhi
through its Commissioner,
Town Hall, Chandni Chowk,
Delhi.
2. The Commissioner,
Municipal Corporation of Delhi,
Town Hall, Chandni chowk,
Delhi.
3. Director (Horticulture),
Municipal Corporation of Delhi,
Old Tourist Camp Site,
J.J. Nehru Marg, Delhi. . Respondents
(None even on revised call)
O R D E R
Mr. N.D. Dayal, Member (A) This matter had been filed as Writ Petition (Civil) No.4236/2008 before the Honble High Court. On 03.02.2009 pursuant to Notification of Central Government No. SO (E) dated 01.12.2008 this matter was transferred to the Tribunal.
2. The nine applicants herein are seeking a direction upon the respondents to place them in the seniority list of Garden Chaudharies as per the dates of their respective engagement instead of the dates of their regularization with consequential benefits. It is submitted that although regular vacancies existed they were initially appointed only on muster roll basis and regularized much later. But they were paid as per regular pay scale of Garden Chaudharies. One Sh. Ravinder Kumar who was regularized on 01.02.1986 but had been engaged earlier on 31.05.1983 as a muster roll Garden Chaudhary, raised an Industrial Dispute No. 750/90 and copy of the decision by the Presiding Officer rendered on 08.10.1993 has been enclosed with the OA at Anneuxre P-2. The decision contained in Para-12 of the award was as under:-
12. It is accordingly held that the workman is entitled to be treated as a regular Garden Chowdhary w.e.f. 31.5.83 in all consequential benefits. This is, however without prejudice to the rights of other Garden Chowdharies who have been employed prior to 31.5.83. The reference is answered and Award is passed accordingly.
3. The applicants submit that most of them were initially engaged earlier than Sh. Ravinder Kumar although regularized later than him. The tabulation of dates of initial appointment and regularization has been given in Para-3 of the OA which shows that all the applicants were initially appointed on various dates during the years 1981-1983 but before 31.05.1983, which was the date of initial appointment of Sh. Ravinder Kumar, except applicant No.7 who was initially appointed on 01.08.1983. However, all of them were regularized after 01.02.1986. The reason for later regularization despite earlier initial engagement is not clarified. The applicants have stated that their repeated requests to give them seniority according to their original dates of appointment brought no result. Instead they were told that as per policy decision, Garden Chaudharies were being placed in the seniority list as per their dates of regularization, and accordingly the seniority list dated 10.10.1997 at Annexure P-1 was circulated.
4. In 2002 an order was issued by the respondents for regularization of Sh. Ravinder Kumar from 31.05.1983 and making necessary entry in his service-book. This was followed by an order dated 10.07.2007 as at Annexure P-3 whereby the seniority list of 10.10.1997 was to be modified by placing his name in the provisional seniority list of Garden Chaudharies at the proper place. This was ordered when WP(C) No.136/2007 was filed before the Honble High court of Delhi. As such Sh. Ravinder Kumar was shifted from S.No.61 to just below Sh. Harbans Lal (S.No.16) and above Sh. Mewa Ram Pal (S.No.16A). No copy of judgment in WP(C) No. 136/2007 has been produced.
5. According to the applicants the seniority of other Garden Chaudharies, who were initially engaged before Sh. Ravinder Kumar, was thus adversely affected and one Sh. Nahar Singh stated to have been engaged on 25.03.1982 and regularized on 03.05.1985 filed WP(C) No. 5978/2007 for being placed in the seniority list as per his date of initial engagement. The applicants point out that the Court by order placed at Annexure P-4 passed on 17.08.2007 noted the contention of the respondents that the petitioner shall be placed in the seniority list as per the date of engagement and subject to any further criteria, if any. The respondents were directed to declare the seniority list within six weeks.
6. The applicants say that they have learnt that Sh. Nahar Singh has also been placed in the seniority list as per the date of his engagement and not as per his regularization. Although the applicants are now in the grade of Section Officer but since the same benefit has not been granted to them as given to Sh. Ravinder Kumar and Sh. Nahar Singh, their incorrect seniority in the list of Garden Chaudharies will adversely affect further promotion and seniority. They argue that respondents were bound by the award of the Industrial Tribunal which made clear that the decision in case of Ravinder Kumar was without prejudice to the rights of other Garden Chaudharies employed prior to 31.05.1983. They should have kept this in mind while revising the seniority list. The applicants have relied upon an order dated 13.01.2006 passed in OA-526/2005 to contend that similarly situated persons cannot be ignored in the matter of extending the same benefit to them.
7. The respondents by their counter affidavit have pointed out that 20 years have elapsed since the applicants were regularized in 1988-89 and at this stage if there is any change in the policy of regularization it will jeopardize the position of a large number of similarly placed employees. It is pointed out that the Honble High Court of Delhi in CWP-17932/2004 titled MCD Vs. Brij Mohan had held that the workman is entitled to be regularized as per the policy of MCD and the award passed by the Trial Court was set aside. It is contended that the present application is not maintainable in view of judgment dated 31.08.1999 passed by the Honble High Court in CWP No. 601/97 titled MCD Vs. Gauri Shanker and others, 1999 V AD (Delhi) 905. The respondents have further submitted that this matter is covered by the judgment of the Constitution Bench of the Apex Court in Secretary, State of Karnataka & Ors. Vs. Uma Deva(3) & Ors, 2006(4)SCC 1. It is clarified that the award in Industrial Dispute No. 750/90 in favour of Sh. Ravinder Kumar could not be challenged because of inordinate delay and it cannot be held as precedent which would violate the policy of regularization of MCD which has been accepted by the Court. It is argued that the order of the Honble High Court in the case of Sh. Nahar Singh was passed with the consent of the Advocate for MCD which statement was made by him without any instructions. It is denied that Sh. Nahar Singh has been placed in the seniority list as per the date of his engagement.
8. By their rejoinder the applicants have denied the stand taken by the respondents and pointed out that their dates of initial engagement have not been disputed. The issue is mainly of counting seniority as given to certain other similar persons. It is pointed out that denial of the benefit would result in disharmony. The award has been treated as a precedent because benefit has been extended to several others including Sh. Altesh Kumar and Sh. Mewa Ram. The applicants have filed additional documents which appear to be query under RTI Act, 2005 by one Sh. Mahipal Singh with copy of note sheet, relating to his case for being treated as regular Chaudhary from the date of initial appointment, which mentions regarding his juniors having been treated as regular.
9. The respondents have filed an additional affidavit to give the background in which Sh. Ravinder Kumar was treated as regular from 31.05.1983, the date of his initial appointment, although he had been regularized later on w.e.f. 01.02.1986. The averments made therein inform that when Sh. Ravinder Kumar approached the Honble High Court for prosecution of the Commissioner MCD, orders were given on 04.02.2002 to implement the Industrial Award in favour of Sh. Ravinder Kumar. The background with regard to Sh. Altesh Kumar and Sh. Mewa Ram has also been explained to assert that Sh. Altesh Kumar was initially engaged on 13.12.1982 and regularized on 25.11.1983 whereas Sh. Mewa Ram was engaged on 15.12.1983 and regularized on 02.07.1984. Thus both these persons were regularized but not from the dates of their initial engagement. With regard to Sh. Nahar Singh it has been informed that the order passed by the Honble High Court in WP(C) No. 5978/2007 dated 17.08.2007 (Annexure P-4) had been contested by filing Review Petition, which was allowed on 18.12.2009 and the earlier order dated 17.08.2007 was recalled by listing WP(C) No. 5978/2007 for preliminary hearing and admission before the appropriate bench. The Court, inter alia, took into account the Industrial Award dated 08.10.1993 in favour of Sh. Ravinder Kumar as well as the judgment of the Honble High Court of Delhi in Gauri Shanker and Anr.(supra). A copy of the order of the Honble High Court has been annexed with the additional affidavit. The respondents have made clear that it was only Sh. Ravinder Kumar who had been regularized from the date of initial engagement. These contentions have remained uncontroverted by any further documents placed before us.
10. We have heard the learned counsel for the applicants. There was no representation on behalf of the respondents. The matter has been taken up under Rule 16 of the Central Administrative Tribunal (Procedure) Rules, 1987. Neither Sh. Ravinder Kumar nor Sh. Nahar Singh or any others have been impleaded in this case.
11. A perusal of the Industrial Award dated 08.10.1993 in favour of sh. Ravinder Kumar indicates that the latter was seeking regularization as Garden Chaudhary from the initial date of appointment. He was a daily rated muster roll Garden Chaudhary engaged on 31.05.1983. The Industrial Tribunal observed that he had been serving continuously which led to the conclusion that his post was permanent. Since he was doing the same duties as regular Garden Chaudharies, there could be no reason not to give him the same pay and benefits. The judgments in the case of Jeet Singh Vs. MCD, AIR 1987 EC 1781, Dhirender Chamoli Vs. State of UP, 1986(4) KLJ 11 (SC), Surinder Singh and Anr.Vs. The Engineer-in-Chief CPWD, 1986 (4) ELJ 136 SC & Suresh Kumar,Civil Writ No. 3442/87 were noticed to hold that Sh. Ravinder Kumar was entitled to be paid similarly as other Garden Chaudharies since 31.05.1983 and having worked for more than 240 days in a year the appointment would need to be regarded as regular. Besides, the continuation of the post of Garden Chaudhary held by him should have been anticipated so that regular appointment was made from 31.05.1983 itself. In this background, the directions were passed in favour of Sh. Ravinder Kumar as already extracted in Para-2 above.
12. Significantly, the Honble High Court in the case of Gauri Shanker & Ors. (supra) decided on 31.08.1999 has taken note of the same judgments in addition to others. The petitioners therein were also claiming regularization from the date of initial joining. The issues before the Court were similar to those before the Industrial Tribunal. It was observed that if a person continues on casual basis for long, it would not follow that there was a substantive post available or that the person had been working against a permanent post. Even if such long continuation may amount to unfair labour practice or that the wages given may be similar to those paid to regular employees, these aspects are totally different from the question raised with regard to regular appointment from the date of initial employment. It was not the case of the authorities that any post was advertised and petitioners called for consideration along with others leading to selection by a properly constituted Committee in accordance with Recruitment Rules. It was noted that where employees have come to the Court in such a matter, regularization has taken place from the date of direction given by the Court or the date when action is taken pursuant to such directions. Having taken into account the various judgments relied upon by the parties, the Court noticed that although directions had been given from time to time for regularization of those working for a number of years there had been no direction that they should be regularized from the date of initial appointment. On the contrary the direction was to regularize on the basis of seniority. It was therefore held that as per the Scheme of MCD, casual workers were to be regularized in terms of their seniority subject to availability of vacancies and the petitioner having been regularized in his turn, it could be inferred that he was not engaged against permanent or substantive post. If the date of regularization is taken to be from the date of initial appointment it would lead to discrimination in the category of casual workers regularized after that date but before date of regularization of the petitioner in question as they would become his junior.
13. The Constitution Bench of the Honble Supreme Court in the case of Uma Devi (3) (supra) has held that an appointment against a vacancy was to be made as per the Constitutional Scheme of Public Employment contained in Articles 14 and 16. Any engagement without extending opportunity to all eligible persons in accordance with Rules and without carrying out selection as per prescribed procedure would not give any legal right. It was made clear that past judgments running counter to such decision would be denuded of their status as precedent. The Courts have been precluded from passing directions for regularization which is not a mode of recruitment by which an illegality could be cured.
14. If in the case of Sh. Ravinder Kumar, the Industrial Award has become final that could be applicable only in his case and reliance upon the same would not succeed in the light of the above discussion. Besides, those who are similarly situated cannot legitimately claim benefit by way of negative equality. It is noteworthy that the award in the case of Sh. Ravinder Kumar was passed in 1993 and order issued by the respondents in 2002, but the documents enclosed with the OA do not include any representations made by the applicants or other attempt on their part to exercise their rights at any point in time.
15. In view of the fact that no one has been impleaded as private respondent, we make no comment upon the regularization or otherwise of those whose cases have been referred to by the applicants to justify their claim in this OA. However, in the above facts and circumstances, we do not find any merit in the prayer of the applicants. The OA is dismissed but without any order as to costs.
(N.D. Dayal (Meera Chhibber) Member(A) Member(J) /vv/