Central Administrative Tribunal - Chandigarh
Naresh Chand Mishra vs Chandigarh Administration on 18 August, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
ORIGINAL APPLICATION NO.60/541/2022 and
60/513/2022
DATED THIS THE 1ST DAY OF SEPTEMBER, 2023
(Reserved on 18.08.2023)
CORAM:
HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
HON'BLE MRS. RASHMI SAXENA SAHNI, MEMBER (A)
ORIGINAL APPLICATION NO.60/541/2022
Rajinder Kumar S/o Sh. Om Prakash, age 54 years, presently
working as Sweeper-cum-Chowkidar, office of Permanent Lok
Adalat, Sector 43, Chandigarh- 160022 (R/o house no.10,
Near Shivalik City, Green Villa, Kharar) (Group-D)
.... Applicant
(By Advocate: Sh. Rishav Sharma)
Versus
1. Union of India through its Secretary, Ministry of Home
Affairs (UT), Chandigarh Branch, North Block, New Delhi:
110001
2. U.T. Chandigarh through its Home Secretary, Secretary,
U.T Secretariat, Sector-9, Chandigarh: 160009
3. Member Secretary, State Legal Service Authority, Sector-
9, Chandigarh: 160009.
....Respondents
(By Advocate: Sh. Sanjay Goyal for R. No.1, Sh. Arvind
Moudgil for R. No.2, Ms. Ashima Mor for R. No.3).
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ORIGINAL APPLICATION NO.60/513/2022
Naresh Chand Mishra son of Late Sh. Hansa Dutt Mishra, age
42 years, presently working as Peon in the office of Permanent
Lok Adalat, Sector-43, Chandigarh, resident of House No.
1475/2, Dashmesh Nagar, Nayagaon. (Group-D)
.... Applicant
(By Advocate: Sh. Rishav Sharma)
Versus
1. Union of India through its Secretary, Ministry of Home Affairs
(UT), Chandigarh Branch, North Block, New Delhi: 110001
2. U.T. Chandigarh through its Home Secretary, Secretary, U.T
Secretariat, Sector-9, Chandigarh: 160009
3. Member Secretary, State Legal Services Authority, Sector-9,
Chandigarh: 160009.
....Respondents
(By Advocate: Sh. V.K. Arya for R. No.1, Sh. Arvind Moudgil for
R. No.2, Ms. Ashima Mor for R. No.3).
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O R D E R (ORAL)
PER: RASHMI SAXENA SAHNI, MEMBER (A)
1. With the consent of parties, both the Original Applications No.60/541/2022 and 60/ 513/2022 are taken up together for disposal as common arguments were advanced in both the original applications. They involve same question of law and facts i.e. whether respondent No.3 is competent to change the terms and conditions of appointment after a period of more than 15 years (applicant Rajinder Kumar) and 18 years (applicant Naresh Chand Mishra). However, for convenience, facts are being taken from O.A. No.541/2022 Rajinder Kumar vs. U.T. Chandigarh & Ors.
2. Present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking following reliefs:-
"a. That the decision of the respondents taken in the meeting held on 02.05.2022 to fill up the post of Peon through outsourcing be declared as wholly illegal, arbitrary and against the settled law and Annexure A-2 be also quashed and set aside being against law.
b. That it be declared that applicant is entitled to continue in service till the regular appointment is made on the post of Sweeper-cum-Chowkidar after it is sanctioned and in case the regular selection took place the applicant be considered for same by granting him age relaxation etc. c. That it be declared that the instructions dated 07.11.2014 (A-1) are not applicable in the case of the applicant as the post has not fallen vacant."4
3. Facts of the case are as follows:-
i. State Legal Services Authority U.T. Chandigarh was set up under Legal Services Authority Act, 1987. Under it, permanent Lok Adalat (Public Utility Services), Chandigarh was set up 09.11.2003. The Authority vide its letter No. SLSA-UT-2003/216 dated 03.09.2003 in pursuance of letter of respondent No.2 dated 04.08.2003 sought the sanction of 10 regular posts. Vide letter dated 16.02.2004 Chandigarh Administration granted permission for filling up following posts on contractual basis for smooth functioning of the Permanent Lok Adalat for Public Utility Services in Chandigarh:-
Name of Posts No. of Posts Superintendent 1 Senior Scale Stenographer 1 Reader 1 Almad 1 Clerk/Steno typist 1 Process Server 2 Peon/Orderly 2 Sweeper-cum-Chowkidar 1 Total 10 ii. In pursuance of the sanction accorded, the Member
Secretary, SLSA, U.T. Chandigarh sent requisition to the Employment Exchange, U.T. Chandigarh and also put a notice on notice board.
iii. The applicant Rajinder Kumar in O.A. No.541/2022 applied for the post and was selected on contractual basis at a fixed monthly remuneration of Rs.2520/- plus D.A. vide letter dated 14.03.2007 (Annexure A-3). Accordingly, he joined service and is continuing with SLSA, U.T. Chandigarh since 2007 and has completed 5 more than 15 years of service without break. He has been getting salary from SLSA till April 2022. iv. Similarly in the case of applicant Naresh Chand Mishra in O.A. No.513/2022 applied for the post of Peon and was selected on contractual for one year vide letter dated 16.03.2004. Accordingly, he joined service and is continuing with SLSA, U.T. Chandigarh since 2004 and has completed more than 18 years of service without break. He has been getting salary from SLSA till March 2022. v. The meetings of the SLSA, U.T, Chandigarh were convened from time to time on yearly basis and in the meeting held on 19.09.2007, agenda item No.4 and 5, it was decided to allow the continuation of 10 contractual posts sanctioned for the permanent Lok Adalat and Public Utility Services pending sanction by the competent authority. It was also decided that the staff, "should not be changed from time to time and as such, the staff may not be filled up by way of outsourcing".
vi. Thereafter, in the meeting held on 16.09.2009, in Agenda item No.2, it was also decided that the, "Chandigarh Administration may be requested to reconsider the letter dated 11.06.2008 and accord the sanction or to allow to continue the above contractual posts till sanctioned by the competent authority".
vii. Similar meetings have been convened in 2009 till date and staff has been allowed to continue to work on contract basis till the posts are sanctioned by respondent No.1. In the meeting held on 02.05.2022, this matter was again discussed and it was observed that sanction of regular post of SLSA was sought in the year 2002 and 6 2003 and Joint Secretary Home was directed to take up the matter with Ministry of Home Affairs to get these posts sanctioned on priority basis. Further, in the same meeting it was pointed out that proposal regarding sanction of posts is pending with the Government of India only for Group-C post and no reference is there for Group D posts. However, earlier was a reference to Group D posts also. In view of the above it was decided to outsource service of applicant as well as one Sh. Naresh Chand Mishra who are working since 14.03.2007 and 16.03.2004 respectively.
viii. According to the applicant respondent No.1 cannot be allowed to sit over the proposal for sanction of post for 20 years otherwise whole object of the Act will be defeated. It is further evident that the applicant has been performing duties of sweeper cum Chowkidar which are of permanent nature and that the services of the applicant are governed by Rules issue by Chandigarh Administration known as Chandigarh Administration (Group-D) Service Rules, 1993 (Annexure A-5). Accordingly to these Rules, post of Peon could only be filled up by way of direct recruitment and there is no other mode of recruitment. ix. In pursuance of the decisions SLSA in its meeting held on 02.05.2022, respondent No.3 has written a letter to Chairman, Permanent Lok Adalat, where the applicant is working presently vide letter dated 24.05.2022 received by the applicant on 25.05.2022, that the applicant be engaged through M/s Golden Eagle Security Services on outsource basis. Copy of which has been endorsed to the applicant (Annexure A-2). The applicant is yet to give his 7 willingness in pursuance of aforesaid letter and is presently continuing with the respondents.
4. The applicant has challenged the impugned action of the respondents on following grounds:-
i. The applicant was appointed after positive mode of selection against the post of Sweeper-cum- Chowkidar by the respondents on 14.03.2007 and has been continuing since then. Instead of regularizing the services of the applicant the action of the respondents in filling up the post of Sweeper-cum-Chowkidar on which the applicant is working since long through outsourcing is illegal and arbitrary.
ii. The instructions dated 07.11.2014 are not applicable in the case of the applicant as it states that Group-D posts as when fallen vacant are filled up through outsourcing after following proper procedure. In the present case, the applicant was appointed by positive mode of selection in 2007 and as per Rules his post could be filled only by way of direct recruitment.
iii. The SLSA, U.T, Chandigarh was set up under a Statue and the work is of permanent nature and the respondent Nos. 2 and 3 have been requesting the respondent No.1 for sanction of posts on regular basis as evident from the minutes.
iv. The action of the respondents is also against the law laid down by the Hon'ble Supreme Court in case Hargurpratap Singh Versus State of Punjab and others, 2007 (13) SCC 292 and decision of the Hon'ble High Court in case of Shiv Kumar and another Versus 8 State of Haryana and another, 2017 (1) SCT 197, wherein it has held that contractual employee cannot be replaced by another set of contractual/other mode of recruitment in order to replace the employee already working.
v. The State after permitting the utilization of the services of the applicant for about 15 years cannot take a defence that there is no sanctioned post to absorb/regularize the applicant.
vi. In the impugned order Annexure A-2 it has wrongly been stated that the matter of sanctioning the posts is pending with the Government of India only with regard to Group B and C posts as is evident from the Minutes of Meeting reproduced at para 4.5 and 4.6 of the O.A. vii. The Hon'ble Supreme Court in the identical circumstances in the case of Nihal Singh and others vs. State of Punjab & Ors. decided on 07.08.2013, directed respondents to create the posts and thereafter regularize the services of those employees with all consequential benefits. A copy of the judgment in the aforesaid case is enclosed as Annexure A-6 to this OA.
5. That respondents No.1 and 2 who are competent authority have failed to file their reply despite their action being challenged.
6. Respondent No.3 has filed written statement dated 16.06.2022 through M.A. No.1150/2022 stating therein that:-
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i. Annual General Meeting of the answering respondent held on 02.05.2022, took the decision that the services of Group D employees shall be availed on outsourcing basis which included the services of the present applicant. The said decision was conveyed by the answering respondent vide letter dated 24.05.2022. The sanctioning of posts of Group B & C for PLA (PUS), Chandigarh is pending with respondent No.1 and 2 and there is no reference with regard to sanctioning of Group D posts as per 6 Pay Commission. The outsourcing Agency Golden Eagle Security would be employing the applicant on the post of Sweeper- cum-Chowkidar in the office of PLA(PUS), Chandigarh under the control of the office of the respondent No.3 i.e. the answering respondent. In this regard, it would be pertinent to submit that the applicant was initially appointed on contract basis in the category of Group-D post with the State Legal Services Authority, U.T. Chandigarh since the year 2007. From time to time, the office of the answering respondent made requisition for sanctioning of regular posts of Group B, C and D. However, the sanction of the appointment of regular staff has not been accorded and the staff is working through outsourcing agency.
ii. The Chandigarh Administration vide its letter dated 11.06.2008 conveyed to the office of the answering respondent that contractual appointments beyond the sanctioned strength cannot be approved as the Government of India has imposed ban on creation of new posts and advised the office of the answering respondent to outsource the posts in accordance with the guidelines issued by the Department of Personnel, Chandigarh 10 Administration. However, the AGM of State Legal Services Authority, U.T., Chandigarh held in the year 2008 made a decision that the staff working with them shall be continued on contractual basis till the posts are sanctioned by the Government of India. A request was made to the Chandigarh Administration in the year 2009 to allow this office for continuation of 10 posts of Permanent Lok Adalat as decided in the AGM held in the year 2008. Thereafter, the Department of Home asked the office of the answering respondent in the year 2009 for the status report of the sanctioned posts at the Govt. of India level. Thereafter, in the AGM held on 25.05.2010, it was decided that the employees working on contractual basis shall be continued to do so and be paid remuneration at par with the other contractual employees of the Chandigarh Administration.
iii. The Chandigarh Administration intimated the office of the answering respondent that the case was sent to the Govt. of India and the Govt. of India, who after obtaining the approval of Department of Expenditure, Ministry of Finance returned the same with the advice that the 6th CPC has recommended not to recruit Group D employees in future and asked the office of answering respondent to send the checklist of its employees according to the letter No.9/1/28-IH(8)- 2011/16449 dated 12.09.2011. Thus, there is no filling up of regular posts in Group D in which the present applicant was employed initially. iv. Respondent in para 11 of the reply has submitted that the applicant has been performing the duties of Sweeper- cum-Chowkidar and his services are not being dispensed 11 with, only his services would now be availed through an outsourcing agency as per the guidelines issued by the respondent No.2. Further, as per the order dated 24.05.2022 (Annexure A-2), the answering respondent has ensured the pay protection of the applicant, on the basis of the decision of the AGM held on 02.05.2022, in his interest.
7. We have perused Annexure A-2 and find that Member Secretary, State Legal Service Authority vide detailed order has observed that the service of Group D employees namely Sh. Naresh Chand Mishra, Peon and Sh. Rajinder Kumar, Sweeper-cum-Chokidar will be now availed on outsource basis and both shall be entitled to pay protection which is being paid to them at present and they will be paid salary as applicable to employees on outsource basis as and when pay on outsource basis would become equivalent on higher than their present pay.
8. The applicants have relied upon the case of Nihal Singh (supra) and also Bhupinder Singh & Ors. vs. State of Punjab and others (CWP No.6135 of 2013) but we find the decision is distinguishable. In this case relating to regularization of Special Police Officers selection itself was based on exercise of the statutory power under Section 17 of the Police Act 1861. However, in the case of the 12 applicants, we find that the employment is contractual w.e.f. 14.03.2007 and 16.03.2004 respectively i.e. right from beginning and not under any statute. The fact is that the post was sought to be sanctioned on regular basis along with other posts, but it cannot be said that such posts are governed by statutory rules. Mere request for sanctioning of post cannot be equated to actual sanction of the posts. Even though request for sanction of post was made to respondent No.1 that was not accepted as early as 16.02.2004 itself. We have also perused Annexure A-5 being Rules dated 06.08.1993 regulating appointment of Group D which prescribes mode of appointment for persons appointed to Chandigarh Administration Grade D services. Being a contractual worker as seen from Annexure A-2 and A-3 being the appointment orders of applicants, they were not appointed under the Rules dated 06.08.1993. Annexure WA-7 has been submitted by the applicant (Naresh Chand Mishra) which is copy of daily order dated 03.04.2019 of this Tribunal in the case of Jaspal Singh vs. Director Health Services U.T. where a reference has been made to issue of regularization in para 3 and 4. However, no evidence has been produced by the applicants in confirmation of the said decision, in the circumstances it 13 cannot be relied upon.
9. Further, we agree with the answering respondent that after 6th CPC, there is no appointment to Group D, therefore, Rules issued by Chandigarh Administration know as Chandigarh Administration (Group-D) Service Rules, 1993 would be applicable only for regular appointment against sanctioned post.
10. The contention of the applicant while relying on Hargurpratap Singh (supra) wherein Hon'ble Supreme Court held that contractual employees cannot be replaced by another set of contractual employees already working is also distinguishable. In instant cases, applicants already working are not being replaced, only mode of employment through SLSA has been changed to outsourcing agency which has also been directed to protect pay of the applicants. Claim of the applicants that without their consent, their service has been put on outsource basis is not tenable as on contract basis, their service was liable to be terminated at any time as per appointment letters dated 14.03.2007 of Rajinder Kumar (Annexure A-3) and 16.03.2004 of Naresh Chand Mishra (Annexure A-2). The applicants are bound by the conditions of the contract appointment letter. They are not being replaced by another 14 contractual employee and their pay is being protected as ensured by answering respondent vide letter dated 24.05.2022.
11. However to ensure natural justice we direct the respondents to ensure that out-sourcing agency does not replace the applicants till their age of superannuation and pay to continue to be protected as per letter dated 24.05.2022. In case regular posts are sanctioned before the age of superannuation of the applicants then claim for regularisation of both the applicants may be considered against the vacancies for regularization.
12. In view of the above discussion, the OA being devoid of merit is dismissed.
(RASHMI SAXENA SAHNI) (SURESH KUMAR BATRA) MEMBER (A) MEMBER (J) /kr/