Central Administrative Tribunal - Delhi
Shri Shyam Kumar Thakur vs Union Of India & Ors Through on 18 April, 2011
Central Administrative Tribunal
Principal Bench
OA No.226/2009
New Delhi, this the 18th day of April, 2011
Honble Dr. Ramesh Chandra Panda, Member (A)
Honble Dr. Dharam Paul Sharma, Member (J)
Shri Shyam Kumar Thakur,
Aged about 51 years,
S/o Shri Ram Sagar Thakur,
Production Assistant,
Director General, Doordarshan,
Mandi House,
New Delhi.
Applicant
(By Advocate : Shri L.B. Rai)
Versus
Union of India & Ors through :
1. The Secretary,
Ministry of Information & Broadcasting,
New Delhi.
2. The Director General,
Doordarshan,
Mandi House,
New Delhi.
3. The Director,
Doordarshan Kendra,
New Delhi.
. Respondents
( By Advocate : Shri S.M. Arif)
: O R D E R :
Honble Dr. Ramesh Chandra Panda, Member (A) :
Retrospective regularisation w.e.f. 14.12.1992 is the claim of the Applicant in the present OA comparing himself with the case of Production Assistants ( PA) at Sl. No.286 to 291 and also in the case of Anil Kumar Mathur and Rejender Prasad Sharma, Floor Assistants
2. The genesis of the case can be traced to 5.4.1981 (page 14) when the Applicant was engaged in the services of the Respondents as Casual Production Assistant in Upgrah Doordarshan Kendra, New Delhi. Pursuant to the direction of this Tribunal in a batch of 4 OAs (OA No.563/1986 and 3 other OAs) on 14.2.1992 (OA No.896/1988 relates to the Applicant), to finalise a scheme to consider eligible casual artists/workers for regularisation against available vacancies, the Respondents designed a scheme. Since the Applicant alongwith another were not placed in the panel, they approached the Tribunal in OA No.1402/2004 which was disposed of with the direction to consider the representation and pass a speaking order. It is the Applicants case that Respondents by an order dated 03.03.2005 issued a final seniority list of Production Assistant whereby the Applicant in the present OA was aggrieved, as it was alleged that his name was shown against the initial date of booking as 15.6.1987, whereas it should have been 5.4.1981. He, therefore, came again to the Tribunal in OA No.2863/2005 which was decided on 9.5.2007 in the following terms :-
6. We have heard both the learned counsels for the parties, perused all the relevant documents as well the Court judgments referred to.
7. The main contention of the applicants is that the initial date of their booking in DDK New Delhi has been incorrectly shown as 15.6.1987 and 18.12.1988 instead of 5.4.1981 and 7.1.1985 respectively. They based this claim on documents dated 23.5.87 and dated 5.9.1984, which detail their experience in one case and a contract given in the other. However, the very basis of these certificates has been challenged by the respondents, who argued that these certificates were issued by officials who did not have the authority and competence to issue them and they are not the competent authority to do so. Hence, no reliance can be placed on such documents. In fact, the onus is on the applicants to show the correct documents of initial appointments since they challenge this fact.
8. The applicants have further claimed that when there was an advertisement on 2/4/1984 for filling up of available 15 vacancies, they had a rightful claim to be considered against these posts. It is seen that the applicants were appointed under the Casual Regularization Scheme which began in 1992 and revised in 1994. It is also noted that Scheme was begun due to Tribunals order dated 14.2.1992. However, the advertisement of 1994 was for direct recruitment from the open market and inapplicable to the applicants, who had been appointed under an entirely different scheme. Moreover, they did not challenge this matter at an initial stage, i.e. in 1992 and 1995 when the list was prepared on the basis of these advertised vacancies. Since they had not immediately challenged the seniority lists on which, in the first place they have no claim, they cannot do so now. However, in spite of this, when new persons were appointed as a one time measure, their cases were also considered (even though their OA had been dismissed) and their seniority lists were revised.
9. The above was done on the basis of decision of the High Court in the case of Raja Ram Tiwari and Others Vs. Union of India and Others ( W.P. [C] 6045/2003). Hence, the applicants cannot claim any discrimination made against them. They have also not alleged any mala fide on the part of the respondents in any of their actions. Also, it is to be remembered that it is not for the first time that they are coming to the court in the present OA It will be recalled, that in 2005, their revised seniority list had been undertaken on the basis of a court case wherein they were given necessary reliefs.
10. In view of the order passed by the Tribunal in OA No.1402/2004, no speaking order is required to be passed since respondents have already issued a seniority list of Production Assistants on 3.3.2005 and applicants cannot have a grievance on this point since they were employed under another scheme.
11. The learned counsel of the respondents has been able to prove that the points raised by the applicants regarding the incorrect dates and the fact that they must be considered against the vacancies advertised in 1984 for direct recruits is not justifiable. On the basis of earlier OAs, filed by the applicants, necessary reliefs have already been granted to them and moreover at one time measure, they were also allowed to be placed in the new seniority list. To now re-agitate such a long pending matter, which even if they had any grievance, ought to have been done in 1992 and 1995, appears to have no force. It is also to be noted that applicants have failed to produce any relevant documents of competent authority, as required by the respondents to substantiate their claims. Moreover, no mala fide has been alleged by the applicants against the respondents.
12. As far ante-dating their seniority is concerned, there is no prayer in this regard and claim is also untenable and hence rejected.
13. In view of the above, the OA is bereft of merit and is accordingly dismissed. No costs.
3. It is the case of the Applicant that the candidates at Sl. No.286 to 291 were regularized as Production Assistants w.e.f. 1992 vide order dated 28.3.2003 (Annexure-P4 Colly). It is further averred by the Applicant that the Respondents issued a seniority list of Production Assistant on 13.12.2006 in which the Applicant was put at seniority No.575 whereas he should have been at Sl. No.292 on the ground that he was senior to those who had been assigned higher seniority. Feeling aggrieved by the action of the Respondents, he submitted a representation on 10.01.2008 (Annexure-P5) and as he did not receive any response from the Respondents, he is before the Tribunal once again demanding the following relief(s) :-
(A) To quash and set aside the seniority list of Production Assistants prepared by the respondents.
(B) To direct the respondent No.2 to give the regularization of the service to the applicant as in the case of other Production Assistants at Sl No.286 to 291 and also in the case of Anil Kumar Mathur and Rajender Prasad Sharma, Floor Assistants from 14.12.1992 because the applicant is less over aged to both of them.
(C) Pass such other or further order as this Honble Tribunal may deem fit and proper in the facts of the case.
4. On behalf of the Applicant, Shri L. B. Rai, learned Counsel contended that the Respondents did not apply their mind and did not appreciate the point that candidates at Sl. No.286 to 291 who were working at Doordarshan Kendra Delhi alongwith the Applicant were regularized in the year 1992 but in case of Applicant it was stated that there was no vacant post in 1992. It is further contended that Shri Anil Kumar Mathur and Shri Rajender Prashad Sharma working as Casual Floor Assistant have been given age relaxation immediately whereas in case of Applicant age relaxation for regularization has been granted belatedly. His contention is that though the Applicant has been regularized w.e.f. 21.3.1994, the regularisation should be ante dated to 14.12.1992 on par with the Production Assistants at Sl. No.286 to 291 and two Floor Assistants.
5. On receipt of notice from the Tribunal, the Respondents have submitted their reply affidavit on 18.12.2009 to which the Applicant has filed his rejoinder on 09.01.2010. Further, through an additional affidavit, the Respondents have brought on record the amended counter reply on behalf of the Respondents, besides, a copy of the Tribunals order dated 09.05.2007 in OA No.2863/2005 and copy of the order passed by the Honble High Court of Delhi in WP(C) No. 6544/2007 and copies of regularisation scheme issued by the Respondents department dated 09.06.1992 and 17.03.1994. Applicant also filed further rejoinder on the said additional reply affidavit vide his affidavit dated 31.03.2011. Finally the case was heard by us on 04.04.2011.
6. Shri S.M. Arif, the learned counsel for respondents very vehemently opposed the contentions raised by Shri L.B. Rai, the learned counsel for Applicant. Shri Arifs main preliminary objection was that the Applicant has not come to the Tribunal with clean hands, as he has deliberately suppressed the material facts that the Applicant was regularized w.e.f. 21.03.1994 and he was well aware of the date of regularisation. It is further contended by Shri Arif that the seniority list has been issued on the basis of the date of regualrisation and Applicants seniority list has accordingly been fixed. His contention is that ante-dating of Applicants regularisation to 14.12.1992 is not maintainable and the said relief has been rejected by this Tribunal while dismissing the OA No.2863/2005 on 09.05.2007. Further, the Applicant gave mis-leading information averring that Shri Anil Kumar Mathur and Shri Rajender Prasad Sharma were Production Assistants whereas they were not Production Assistants but Floor Assistants. Moreover, he has not brought out the correct facts that the regularisation is done on the basis of the vacancy Kendra-wise taking into account the seniority and eligibility of candidates available in the Kendra concerned. Only after getting regularized in each kendra on the basis of date of regularisation, they come to the all India Seniority List in the respective categories. His contention is that the matter having been settled in the year 1994 and having accepted the facts, the Applicant was estopped to raise the issue after so many years before the Tribunal. He also submits that the examples of the candidates given by the Applicant were working as Floor Assistants not as Production Assistants. After regularisation in the post of Floor Assistants, they get promoted to the post of Floor Manager; whereas the Applicant is in the different line and he has been regularized in the post of Production Assistant and his line of promotion to the higher post is Programme Executive. Citing the judgment of Honble High Court of Delhi, Respondents in WP(C) No.6544/2007, Shri Arif submits that after the regularisation the minimum of the pay scale would be admissible to the regularized employees of the Respondents in various cadres and in the case of the Applicant, the same has been given effect to.
7. In view of the above, Shri Arif pleads that the OA is not only time barred but also repetitive in nature and, therefore, the OA should be dismissed with exemplary cost imposed on the Applicant.
8. We have very carefully considered the above contentions of the counsel for the parties and with their assistance, we have gone through the pleadings as well. The controversy for our determination is in narrow compass. The issue is whether the Applicants regularisation can be ante-dated and if so from what date.
9.1 Even though there is a repetition of the some of the facts, it would be appropriate to en-capsule some of the facts which are very relevant for determining the above issue.
9.2 Applicant was working as Casual Artist with the Respondents and was regularized in the post of Production Assistant.
9.3 Production Assistant and Floor Assistant are two distinct and separate cadres. The post of Production Assistant and Floor Assistant are different carrying different functions and responsibilities.
9.4 The Production Assistant post is the feeder category for Programme Executive. The Floor Assistants post is the feeder category for Floor Manager post.
9.5 Admittedly, the scheme of regularization of Casual Artists was issued by the Respondents in a Scheme dated 09.06.1992. The said scheme of 1992 for regularisation was liberalized vide order dated 17.03.1994. The para 3 of the Scheme of 1992 envisaged that separately eligibility panels would be prepared for each category of posts, Kendra-wise, depending on length of service of Casual Artists and they would be considered for regulrisation in the order of their seniority against the available vacancies in that particular Kendra.
9.6 The Applicant could not be regularized under the Scheme dated 09.06.1992 and could be regularized only after the liberalized scheme was introduced in 1994 when the vacancy was existing. As such he was regularized w.e.f. 21.03.1994.
9.7 It is admitted fact that the regularisation used to take place kendrawise and the same was done as per the Scheme of 1992 and 1994, subject to the availability of vacancies. It is found from the averments that the vacancies in the Kendra in which Applicant was working was not available in 1992 and he could be regularized in March, 1994. Nowhere, the Applicant has demonstrated that vacancies existed in his Kendra. Vacancies available in other Kendras cannot be the ground for regularizing the Applicant in his Kendra in the post of Production Assistant.
9.8 The seniority list enclosed as Annexure P5 Colly at pages 39 to 52 is the seniority list of Floor Assistants. The examples of Shri Nagendra Kumar Rao, Shri M.S. Dhapola, Shri Rajesh Kumar Dhingra, Shri Ashok Kumar Rai, Shri T.P. Rai and Smt. Sunita Raju, who have been shown to have been regularized in the year 1992 are Production Assistants but they were regularized in the vacancies of their respective Kendras. Applicant comparing himself with the above candidates does not show any logic or rationality. It was contended by the Applicants counsel that Shri A.K. Mathur and Shri Rajender Prasad Sharma were regularized in 1992 and parity with them was claimed for the Applicant. They are Floor Assistants. Applicant is Production Assistant. Hence, the incomparables cannot be compared since the applicant belongs to category of a Production Assistant whereas those who have been shown as juniors belong to the Floor Assistants cadre.
10. Once the candidates are regularized either as Production Assistant or Floor Assistant, they go to their respective streams and cadres on the basis of date of regularisation, they get fitted into the appropriate seniority list on the All India basis.
11. Considering the above facts and circumstances of the case, and the provisions in the Regularisation Scheme of 1992 and 1994, we are of the considered conclusion that there is no merit in the Applicants case for ante-dating his regularisation to 1992. There are no legal issues involved in this case. On the basis of the facts, the Applicant has not convinced us as to on what ground we can interfere in the decision taken by the respondents. The Applicant has been properly regularized by the Respondents. In the result, the Original Application being devoid of merits is dismissed.
12. It is also noted by us that Applicant has been agitating off and on and on the same or similar issues and raising the ground which are frivolous and mis-leading. Therefore, we are of the considered opinion that the Respondents are entitled to get the cost of litigation from the Applicant. We, therefore, fix `5,000/- as the cost of litigation to be paid by the Applicant to the Respondents within six weeks from the date of receipt of copy of this order.
(Dr. Dharam Paul Sharma) (Dr. Ramesh Chandra Panda)
Member (J) Member (A)
rk