Central Administrative Tribunal - Kolkata
Asma Bibi vs Andaman & Nicobar Admn. on 8 December, 2022
a ee : 4 . . 2 " p , '. : . . Hi ao 3 Croyle H 2 * oa, ; . . thow 4 fF sth : CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH KOLKATA ye O.A.No.351/122/2022 Date of order : An M.A.No.351/42/2022 M.A.No.351/825/2022 Coram : Hon'ble Mr. Jayesh V. Bhairavia, Judicial Member Hon'ble Mr. Anindo Majumdar, Administrative Member . Ms, Asma Bibi . Mrs. Vanitha . Mrs. Beulah Raj Kumari . 5imt. Koteshwari . Smt. Shamima Rehman . Smt. Nazreen Bibi . Smt. R. Nirmala . Smt. P, Ramulaxmi . Smt. P. Thangamani 10.Smi. Matilda Kerketta 11.Shri Pabdul Sattar 12. Smt. Palaniamma 13. Shri Sonu Kumar WOWMWNAUNRWNE eseeeones Applicants -VERSUS- 1. Union of india service through the Thorough the Secretary, Ministry of Home Affairs, Govt. of India, Central Secretariat, North Block, New Delhi -110 001; 2, The Hon'ble Lt. Governor, Andaman & Nicobar Islands, Raj Niwas, Port Blair-744101, 3. The Chief Secretary, Andaman and Nicobar Administration, Secretariat, Port Blair-744101,; A. The Principal, The Andaman and Nicobar College(ANCOL), Chakragaon, Port Blair, South Andaman District-744112 seasenteeeaees Respondents Forthe applicant : Mr. G.B. Kumar, counsel | For the respondents : Mr. R. Halder, counsel (x x 2 te ORDER
Jayesh V. Bhairavia, Jucticia! Member The applicant hes filed this O.A. under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
"A) (i) An order to rescind, recall, withdraw the Notice dated 16/1/2022 issued by the respondent No.4 whereby invited applications to fill up 19 post of daily rated mazdoors (17 Unskilled and 02 Highly Skilled) under the respondent No.4 for a period of six months for performing multi-tasking work;
(ii) An order to be passed directing the respondent No.4 to further extend the period of contract appointment of the applicants te the post of daily rated mazdoors and allow the applicants to continue to discharge duties and responsibilities to the post of daily rated mazdoors under the respondent No.4 untill regular selection process is initiated by the respondent No.4;
(iii) An order be passed directing the respondent authorities to consider the case of the applicants for regularisation to the post of daily rated mazdoors under the respondent No.4;
B) An order be passed directing the respondent authorities to transmit the original records of the case before this Hon'ble court, so that after perusing the same conscionable justice may be rendered to the applicants;
C) Any other relief or reliefs, order or orders, direction or directions as your Honor deem fit and proper." --
2. The applicants have filed M.A.No.351/42/A&N/2022 to move the O0.A. jointly under Rule 4(5)(a}, which stands allowed.
3. The applicants have also filed M.A.No.351/825/A&N/2022 to bring on record the order dated 16.11.2022 passed by Hon'ble High Court in WPCT. No.27/2022 whereby this Tribunal was requested to conclude the original application No.0.A.351/122/2022 expeditiously iL on merits.
O.A. In view of the ortiz' 2¥ Hon'ble High Court dated 16.11.2022, the is taken us for consideration. Accordingly the M.A.351/825/A&N/20°.© stcnds disposed of. 4, In the O.A., woo hearing Learned Counsel for both sides, following orders were pessec on 25.01.2022:-
"Heard both.
The applicants 13 in numbers are aggrieved due to the impugned notification whereby and whereunder the department is proposing to fill up the vacancies by a Gifjerect set of contractual employees although these applicants have re:ccrcd service since 2014. According to Id. Counsel for applicants, all the coticants are continued as on the date which is contradicted by th: {c. Counsel for respondents, Mr. R. Halder who submits that some of the cpplicants have been discontinued by the respondent authorities.
However, Id. Counse! jcr applicant would place a decision of the Hon'ble High Court where tie Gen'ble High Court has held that one set of contractual employees cannot <2 ziuced by another set of contractual employees and restrained the responde.its which is ANIMS from appointing any person on temporary basis ir resect of the 139 posts that the decision speaks of, in terms of the impugned vecancy notice dated 04.12.2021 until further orders of the Court. ' Ld. Counsel for the )1!'.:7t seeks an identical restraining order, id. Counsel would also cite o sijzrent order from this Tribunal to seek an order restraining the responcent authorities from proceeding with the vacancy notice impugned in tis ;vesent OA.
in the event, some of th : coplicants are said to be continued till this date, let them not be dis-continucd till the next date.
The respondents stiaii fic reply to show cause why the benefits of the judgment of the Hon'ilc High Court as cited shall not be given to the present applicants and til ihe next date the posts be not filled up.
Ld. Counsel for resnoivents submits that trade tests have been completed however, no appoi.:r22.11 orders have been issued so far.
Let reply be filed by 2 weeks, List on 17.02.2022.
Liberty to communica' th gist of the order.
Plain copy of this order ve handed over to the Id. Counsel for both sides."
Gc
5. | The "matter appeared . on 17.02.2022, "40.03.2022 and on | 11.03.2022 when the interim order was continued, On 11.03.2022, Mr. R. Halder, Learned Counsel for the respondents had prayed for filling. | | up of at least six vacancies out of the 19 vacancies available, keeping aside the rest 13 vacancies assigned for consideration of the present applicants depending upon the outcome of the present O.A. Recorded | order is as follows:-
"Both the - 'parties are present and are satisfied with the quality. of audio/videc during hearing. -
Ld. Counsel for respondents submits that 19 vacancies have been advertised and applicants are 13 in number. He prays that at least 6 vacancies should be filled up -keeping aside 13 to be filled: up depending upon the out come of the present OA.
Therefore, respondents are given liberty to fill up 6 posts and the remaining vacancies to be filled up depending upon the out come of the present O.A. --
Ld, Counsei for the respondents also undertakes to file written notes of arguments by 2 weeks.
List on 31.03.2022 for final disposal.
Interim.order, if any, to continue till the next date of listing."
| 6. | The applicants have claimed that they were. engaged as daily . rated mazdoors (unskilled and highly skilled), hereinafter referred to as DRM, for a specific period which was extended from time to time and _ lastly i was extended upto 34.12.2021, That,-an advertisement dated 16.01.2022 was published in the Daily Telegram inviting. 19 numbers of Daily Rated Mazdoor (DRM in short) out of which 17 for unskilled and ) .
- for Highly Skilled for performing Multi Tasking. work for a period of 6 months including safai karmachari for which trade t test was scheduled pl on 24.01.2020. Challenging the same the present applicants preferred this original application.
eo | . tt is stated by the applicants that after filing of this application 'the respondents, particularly the Respondent No.4 stopped assigning any duty to the present applicants but at least 5 Daily Rated Mazdoors (DRMs in short), namely, Shri G. Laxman Rao, Shri Sujit Singh, G. Vijay Kumar, Shri Nagraj and Risbha who were engaged along with the applicants and did not challenge the vacancy notice dated 16.10.2022, were allowed to work continuously under the Respondent No.4.
8. Learned Counsel for the applicants mentioned that despite grant _ of interim order the applicants have not been allowed to resume their duties, 'Learned Counsel! vociferously would submit that one set of DRMs could not be replaced by another set and to that effect he would place the following decisions:-
4. State of Haryana and others vs. Piara Singh and Others, 1992(4) SCC 118; .
2. Hargurpratap Singh-vs-State of Punjab and Others, 2007 (13) sec 292;
3. Union Public Service Commission vs. Dr. Jamuna Kurup and ' Others, 2008.(13}SCC 40; . .
4, Unreported Judgment | of Himachal Pradesh High Court dated April 30, 2021 in the case of cwP No. 2693 of 2021; By Unreported Judgment dated March 29, 2019 in Nagendra Kumar Vs. State of Uttarakhand and another;
6. Andaman and Nicobar Rajya Karmachari NMiahasangh and another Vs. The Lieutenant Governor and Others, WPA/295/2021; |
7. Patrick Ekka and others vs. Education (ARN),
0.A.351/00060; 2615 dated 16.06.2016. fl é
9. Per contra the respondents would also rely on the judgment of Hon'ble High Court dated 10.12.2021 in WPA 295/2021 (Andaman and Nicobar Rajya Karmachari Mahasangh and Another Vs. The Lieutenant Governor and Others), where reference was made to TN. civil Supplies Corporation V/orkers' Union vs. TAN. Civil Supplies Corporation Limited anc! Others (2001(4) SCC 469 wherein a writ petition was filed claiming a blanket injunction that the workers should not be relieved frorm their work. The relief sought by the writ petitioners were in respect of the employees whose services were terminated. Hon'ble High Court opined that it was for such employees to seek remedies ina manner known to law, which squarely apply to. the present set of applicants. The respondents have pleaded as under:-
$4 The applicants were engaged as Daily Rated Mazdoor(DRM | _ in short) between 2014 to 2017 and as such they have not completed 10 years of continuous service on daily rate | basis and as they have not been performing duties against any regular senctioned posts, no regular engagement could be considered in absence of any due selaction process, Further, the Hon'ble Apex Court in Civil Appeal No.486 of 2011(State of Rajasthan & Others vs. Daya Lal & Others) held that High Courts in exercising the power under Article
-- 226 of the Constitution will not issue . directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been of 9.2 9.3 appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts.
There are no sanctioned post of MTS/DRM in ANCOL and that the applicants were not granted extension beyond 31*
- December, 2021. As such, extending the benefit of 1/30"
of pay of relevant pay scale does not arise. The respondents have, however, admitted that the Andaman College popularly known as ANCOL has been functioning since 2014 and catering to the needs of students hailing from the Islands in respect of their higher education. It is providing 8 undergraduate courses' and has an intake capacity of 396 students per year with a total strength of 4116 students in the institution. In view of the fact that there was acute shortage of sanctioned posts against which employees could be engaged, the institution initially started running by outsourcing employees from other devartments with further move to create requisite posts for the ANCOL.
On 25.10.2021 a communication was received from Deputy Secretary (Higher Education), | Andaman and Nicobar Administration that the Department may adopt other options to reduce further recurring costs by outsourcing in various posts viz. MTS(10), - £o0k(8), Hostel A a i e. a total 25 posts 2 as instructed by. the MHRD letter dated -
94. was not having any staff as DRM/MTS for carrying out ~_DRMs from Personnel Department of the Administration were placed ond iverted capacity to carry out the essential ; works of the college.
: To cater to the requirement of employees for running the , institution, a proposal was moved by the Principal, ANCOL basis, whereby the A&N Administration vide letter dated - 10Nos DRMs. Accordingly 2 an order dated 07. 10. 2015 was period of six months. "The said 'engagement continued thereafter with the "approval of the Administration on . every occasion and with intermittent breaks between each . increased to cope up with the immediate requirement of oe workers i in the college.
. Hence, a proposal for extension. of engagement of 15"
: DRMs collectively. for another six months \ was sent by the
- Principal ANCOL on 25. 11. 2019. which was approved vide ; 'Superintendent(2), lib. attendant (4), Security Officer(1) - 30, 05. 2016. That, 'since inception of ANCOL the college =
-esseitial works of the institution. For time being few | : on 16.01.2015 for engaging 26 Nos. of employees on DRM _ ; 06. 07. 2015 had initially conveyed approval for engaging . issued by the college engaging 10 DRMs for a imited ao |
-etigagerent, The: 'intake of. the said DRMs eradualy 7 , on 9.5 9.6 9.7 letter dated 20.01.2020 for their extension from 02.01.2020 to 30.06.2020, That, in the same way, the last working orders No.155 & 156 were issued by the Principal ANCOL 'after getting . approval from the A&N Administration wherein working tenure of the DRMs | was 'increased upto 31.12. 2021 and not beyond that date. Thus' 'the. applicants were discontinued due to non-extension of their engagement beyond 31.12.2021.
The respondents have further pleaded that their engagement was only for a specific period of 2months/3 months/6 months and such engagement did not confer any right upon them to claim any regular appointment either in the college or in any department under Andaman. and Nicobar Administration. Had their services been found unsatisfactory, they could have been terminated. DRMs are to perform 8 hours duty per day. Their services of engagement would automatically be terminated on the -- expiry of the period of their engagement. The respondents would further assert that after expiry of their engagement period their prayer for continuation as DRM is ~ hot maintainable.
That by a recent order No.79 dated 12.01.2022 the Andaman and Nicobar Administration with the approval 9.8 10 conveyed by the Ministry' of Education has sanctioned . 'creation of a total 21 posts for ANCOL, but no MTS or equivalent post of erstwhile Group 'D' has been created, _ Further that, upon implementation of the 6" Central Pay _ Commission's recommendations, essential qualification for the erstwhile Group 'D' Members were enhanced to Class-Xth pass. All-Group 'D' posts have been. newly designated as MTS vide Administration's order dated 10.02.2012. Recruitment Rules for the post of MTS have also been framed.
The Jawaharlal Nehru 'ajkeya Mahavidyalaya Une in short). Port Blair (formerly Govt. College, Port Blair) has notified identical. Recruitment Rules for. the post of MTS on 21.05.2013, wherein the essential qualification was set as Xth Standard pass which is at par with recommendations of the vl Central Pay Commission, That, there is no provision for automatic regularisation of any contract/part time posts. The recruitment is 100% by direct recruitment following prescribed age limit of 18 to 33 years for a male candidate and 18-38 fora female. The respondents have clarified that the following -- . applicants do not POSSESS | essential qualification - 9h ii SI. No. Name of DRM R. Nirmala P. Ramu Laxmi Koteshwari 'Nazreen Bibi Palaniamma UT Bw [ro tps 9.9 Respondents have further stated that maximum of the applicants have become overaged during their initial induction as DRMs and as such they are not eligible for continuation as per Recruitment Rules. The specific candidates are as follows:-
SI. No, | Name DOB © Initial _ | Age at initial engagement | engagement
1. N. Asma Bibi | 16/07/1972 16/08/2014 | 42 years
2. R. Vanitha 07/06/1977 07/10/2015 | 38.4 years 3, R. Nirmala 01/01/1975 | 23/01/2017 | 42 years
4. Ramu Laxmi | 20/04/1977 | 02/02/2017 | 39.10 years 5, Matilda -- | 15/03/1979 | 19.09.2017 | 33.6 Years Kerketta That, the Administration has issued a notification in the Daily Telegram dated 16.01.2022 asking the candidates whose name has been sponsored by the Employment Exchange, Port Blair to attend trade test at 9 A.M. on 24.01.2022. They have allowed eligible candidates willing to perform multi tasking work to participate in the eligibility trade test conducted on 24.01.2022, all ent ite Mrs, Sonasaee ts rf 13 mr December, 2021 would draw my attention to the Order No.3 dated 11.01.2022 as well as the Attendance Roll for the month of January and a further extension of order dated 28.02.2022 of JNRM.
12. Heard the Learned counsel for the parties and perused the -
materials on record.
13. | It is noted that in each of the judgments cited by the Learned Counsel for the respondents the DRMs/Casual/Contractual employees have been terminated before they can approach the various fora to"
seek their claim in regard to regularisation. in the present case, it is noted that the Hon'ble High Court in its Circuit Bench at Port Blair in' WPA 295/2021 wherein the question "whether ANIMS can substitute one employee appointed on contractual basis with another employee again on contractual basis 'particularly when subsequent to the appointment of the first employee on contractual basis a post was created and there is no impediment. on ANIMS to appoint a person to such post on permanent basis" was raised, the Hon'ble High Court opined as under:-
" winthe balance of convenience 'and' inconvenience lies overwhelmingly in favour of the petitioners in granting interim relief. ANIMS cannot appoint a contractual employee in respect of the sanctioned posts particularly when there is a existing contractual employee for such sanctioned post. The question would-be different if ANIMS wanted to appoint permanent employees in respect of the sanctioned post. The same not being the case. it_would be appropriate to restrain ANIIMS from appointing any person on temporary basis in respect of the 139 posts that the petitioners speaks:of, in terms of the impugned vacancy notice dated December 4, 2021 un til further orders of the Court.
It is clarified that this order will not prevent ANIIMS in proceeding to appoint permanent employees in respect of 425 posts created by the order dated March, 4, 2020 in any manner whatsoever."
je 44 'It is clarified that this order will not prevent ANIIMS in proceeding to - appoint permanent employees in respect of 425 posts created by the order dated March, 4, 2020 in any manner whatsoever. "
14. No order has been placed on record to show that the said interim protection granted to the petitioners was modified/vacated by the Hon'ble Court or interferec. with by the higher fora. Since the present , applicants are identically circumstanced. having rendered services against the present respondenis since 2014 albeit with intermittent breaks, the respondents are to consider each of the present applicants against the 13 vacancies available for their consideration which were kept aside in terms of the order clated 11.03.2022 (extracted supra). if required, 'they shall be granted due relaxation regarding their educational qualification and age. Since the respondents are proposing to engage employees by way of outsourcing or otherwise on contractual basis they shall allow the present applicants to be engaged against the vacancies in question. Appropriate orders shall be issued within 3 months from the date of receipt of a copy of this order. gf
45. The O.A. stands disposed of. No order as to costs. _ {Anindo Majumdar) (Jayesh V. Bhairavia) Administrative Member oe, Judicial Member sb