Central Administrative Tribunal - Allahabad
Unknown vs In on 7 April, 2011
C.C.A. No. 40/2001In O.A. No.895/1992 07.04.2011 HONBLE MR. JUSTICE S. C. SHARMA, J.M. HONBLE MRS. MANJULIKA GAUTAM, A.M. Vide order dated 13th January, 2011 the Contempt Notice was issued to Sri Dharmbir Sharma, the then Superintendent Archeology, Agra for issuing Office Memorandum dated 07th February, 2011 and in para 01 of this Office Memorandum it has been mentioned that by approaching the Tribunal the applicant has not only committed the violation of the CCS(CCA) rules but they have committed heinous offence. We have taken it very seriously that is why we suo-moto issued contempt notice to the Respondents to explain that under what circumstances this Office Memorandum, was issued and whether approaching the judicial forum for redressal of grievance is an offence.
Sri Dharmbir Sharma personally appeared before us and tendered his unconditional and unequivocal apology and expressed his regret. He also stated that in Agra division there is huge rush of work and he remained busy in his academic work and he paid no attention to such an official matters and un-deliberately he signed the Office Memorandum to that effect.
We feel that Sri Dharmbir Sharma is really repenting for issuing such Office Memorandum and he tendered his unconditional apology hence his unconditional apology is accepted and we are not intending to proceed further in this contempt proceeding against Sri Dharmbir Sharma/Contemnor. Under these circumstances the contempt notice issued against Sri Dharmbir Sharma is withdrawn and he need not to appear in future in the case.
We have heard Mr. M. S. Solanki, Advocate for the applicant and Mr. Manoj Kumar, Advocate for the respondents and perused the entire facts of the case. We have perused the order passed by the Tribunal in O.A. No. 895 of 1992 on dated 06th September, 2000 Khubi Ram (applicant) had filed the O.A. and it was decided with direction to the respondents in order to regularize the services of the applicant as and when the vacancy available in Group-D posts strictly in accordance with seniority reflected in the combined seniority of daily wages casual labours and further direction was also given to the respondents not to make any recruitment from the outside unless and until these applicants are absorbed as per rules and further direction was also given in order to consider the case of the applicant of O.A. No. 1159 of 1992.
It has been argued by the learned counsel for the applicant that as per direction of the Tribunal applicant is to be regularized according to rule and according to seniority and out of turn he is not to be regularized. Learned counsel for the respondents argued that the respondents moved to Director General, ASI, New Delhi in order to approve regularization/appointment on the vacant post. Learned counsel for the respondents also stated that at present 114 posts are lying vacant in Group-D post, but the problem with respondents is that they can not regularize the service of the applicant and others without approval of the Director General, ASI, New Delhi, only with the approval of the Director General, ASI, New Delhi the posts are to be regularized and approval has not been given to the respondents in order to regularize all the persons shown in the list in order to fill up 114 vacant posts. And as there is direction of the Tribunal hence the respondents will have to comply with the order of the Tribunal as per rules and strictly in accordance with the seniority and according to the unified seniority list the applicant is at serial No.98 and separate list has also been drawn according to the seniority of O.B.C. and the applicant has been placed in that list at serial No. 43 that in all circumstances the respondents are required to consider the applicants for regularization as per rules and as per direction and when the approval is received from the Director General, ASI, New Delhi according to regularization scheme. That they have not appointed any body out side and also have not regularized anybody against the seniority list and they will regularize service of the applicant on his turn.
That Director General, ASI, New Delhi is not party to this Contempt Petition although he was party in the O.A.. Although, learned counsel for the respondents stated that the Union of India was sued through Director General, ASI, New Delhi and in this manner the Director General, ASI, New Delhi was not sued properly but even then Director General, ASI, New Delhi was party to the O.A.. Hence inspite of the fact the Director General, ASI, New Delhi has not been arrayed as party. But ultimately in the Contempt Petition according to the regularization scheme the order is to be executed as per the direction and with approval of the Director General. Learned counsel for the respondents conceded that as per scheme of regularization there is no provision for regularizing the service of Group-D employee with the approval of the Director General, ASI, New Delhi for all purposes the Contemnors is the appointing authority and they have got the right, but learned counsel for the respondents argued that there is no condition in the regularization scheme even then there are certain other direction and circular not to regularize or appoint in Group-D post without approval of the Director General, ASI, New Delhi. We have not come acrossed such circular letter etc. which prohibits the appointing authority not to make appointment against the sanctioned strength. The superior authority can impose restriction on filling up the vacant posts due to the financial constraint but in normal circumstances the appointing authority is fully competent to make appointment. And moreover, as Director General is not a party in this Contempt petition but he was the party in the O.A. hence direction can be given to him to comply with orders of the Tribunal. Under these circumstances we are not satisfied with the reply of the respondents in not executing the order of the Tribunal. If the implementation of the order is to be allowed according to wishes and whims of the respondents then in very near future the order of the Tribunal is not going to be implemented and the applicants have to wait for a long period for implementation of the order. It is correct that as per direction of the Tribunal the services of the applicant is to be regularized in Group-D post strictly in accordance with the seniority reflected in the combined seniority of daily wages casual labours and we also expect that respondents regularize the services of the applicant on his turn. But we failed to understand that as to why these vacant posts are not being filled up, it is only on the pretext that Director General, ASI, New Delhi has not given approval but even without approval of the Director General, ASI, New Delhi for implementation of order of the Tribunal or Court appointing authority is competent to fill up the vacant post and in our opinion this is the lame excuse in not executing the order. Learned counsel for the respondents argued that the applicants shown in the seniority list are waiting since 2000 for regularization and in the meantime two applicants had already died and we expect that all the applicants may reap the fruits during their life time and it may be inferred that by slow process of the respondents it amounted to denial of justice. We expect that the order must be complied with within reasonable time.
For the reasons mentioned above we direct the Contemnor/Superintendent, ASI, Agra to seek necessary approval of the Director General, ASI, New Delhi in order to permit him to regularize the services of the applicants according to the seniority list. Moreover, as the Director General, ASI, New Delhi was a party to the O.A. and we considered it just and appropriate that he may also be impleaded as party to this Contempt Petition because he is the main hindrance in due execution of the order and notices must be issued to him. Although, it is not necessary to implead formerly the Director General, ASI, New Delhi when he was party to the O.A. and also the direction was given to all the respondents but even then the applicant shall move an application in order to implead the Director General, ASI, New Delhi as party to this Contempt Petition and, thereafter, notices be issued to him to show cause as why contempt proceedings may not initiated against him for not complying with the orders of the Tribunal passed in O.A. No. 895 of 1992 on dated 06th September, 2000. Reply be submitted within a period of two months from the date of service. Director General, ASI, New Delhi be impleaded as party to this Contempt Petition.
List on 06th July, 2011
[Manjulika Gautam] [Justice S. C. Sharma]
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