Central Administrative Tribunal - Delhi
Mithilesh Tyagi vs M/O Home Affairs on 25 September, 2018
Central Administrative Tribunal
Principal Bench
OA No. 3904/2017
Order reserved on: 06.09.2018
Order pronounced on : 25.09.2018
Hon'ble Mr. Pradeep Kumar, Member (A)
Mrs. Mithilesh Tyagi,
Wife of Mr. Mahesh Chand Tyagi,
Aged about 70 years,
Resident of House No.6H/107,
Sector-5, Rajinder Nagar,
Sahibabad,
Ghaziabad,
Uttar Pradesh-201005.
... Applicant
(By Advocate: Mr. D. Ashok Rajagopalan with Mr. Sidharth Tyagi)
Versus
1. Union of India,
Through Secretary,
Ministry of Home Affairs,
Department of Home Affairs,
Department of Official Language,
Lok Nayak Bhawan,
New Delhi-110003.
2. Central Hindi Training Institute,
Through its Director,
7th floor, Parayavaran Bhawan,
C.G.O.Complex,
Lodhi Road,
New Delhi-110003.
... Respondents
(By Advocate: Ms. Harvinder Oberoi)
2 OA No.3904/2017
ORDER
Mr. D. Ashok Rajagopalan with Mr. Sidharth Tyagi, learned counsel appears for the applicant and Ms. Harvinder Oberoi, learned counsel appears for the respondents.
2. The applicant was appointed as an ad hoc Teacher in Kendriya Vidyalaya on 09.08.1982. Thereafter, she was appointed on ad hoc basis as Hindi Pradhyapak under Department of Official Language on 20.01.1983. She had continued to serve as Hindi Pradhyapak in 14 broken spells up to 30.11.1989 (Total period worked about 4 years). Thereafter the services were discontinued. She filed an OA No.2234/1990 (decided on 10.07.1992) wherein the respondents were directed to consider ad hoc appointment to the applicant till such time regularly selected candidates become available. Thereafter the respondents had appointed her on ad hoc basis on 08.02.1993 and she had continued to work up to 31.05.2008 in 32 broken spells (Total period worked about 13.5 years), when she attained the age of 60 years, and her services have been discontinued since 31.05.2008. As a result of this service from 20.01.1983 to 31.05.2008, total about 17.5 years, though in 46 broken spells, she is seeking retiral benefits. She had made a representation for the same to the respondents. This was finally replied on 27/29.06.2017 wherein such benefits were refused. This is the grievance in the instant OA.
3 OA No.3904/2017
3. The applicant drew attention to the vacancy notice in respect of Hindi Pradhyapak. There were 200 permanent posts and 45 temporary posts in the scale of pay of Rs.550-25-750-EB-30-900. Certain educational qualifications were also prescribed. It was also specified that age limit shall be between 21-30 years, which is relaxable for Government servants up to 35 years.
4. The applicant pleads that she was an ad hoc teacher in Kendriya Vidyalaya prior to being selected as Hindi Pradhyapak and as such she is entitled for consideration for age relaxation when she applied for the post of Hindi Pradhyapak. However, despite representations, this age relaxation was not considered in her case and she had been ventilating this grievance through a spate of litigations as under:
(1) OA No.2234/1990 decided on 10.07.1992 as mentioned above.
(2) OA No.831/1995 decided on 19.02.1996 (3) OA No. 1366/2003 decided on 29.05.2003 (4) Writ Petition (C) No.5224/2003 decided on 05.12.2005 by Hon'ble High Court of Delhi (5) Civil Appeal No.7084/2008 decided on 08.04.2015 by Hon'ble Supreme Court (6) The instant OA.4 OA No.3904/2017
5. These judgments (para 4 supra) were also brought out wherein it is seen that common theme running throughout is that the candidate was taken to be overage at the time she applied for the post of Hindi Pradhyapak and on this basis the petitions of the applicant were rejected in all these judicial fora. Since the question in respect of educational qualification was never raised, it is presumed that she had the prescribed qualification for Hindi Pradhyapak.
6. The applicant also brought out that she had appeared in the recruitment exam conducted by Staff Selection Commission for the said post of Hindi Pradhyapak. However, those results were also not declared.
7. It is seen from a letter dated 04.08.2015, written by Director, Rajbhasha Vibhag, Ministry of Home Affairs to the applicant, which has been annexed to the counter of the respondents, that the age of applicant at the time of ad-hoc appointment as Hindi Pradhyapak, is stated to be more than 34 years in para 3 thereof while in para 4 of the same letter it is stated to be 35 years 4 months. It thus appears that there continues to be some confusion about the age of the applicant right from the time of her ad-hoc appointment and even upto 04.08.2015 despite a spate of litigations in between.
It, therefore, stands to reason that all these litigations referred in para 4 above may have been decided assuming her to be overage 5 OA No.3904/2017 beyond 35 years and thus beyond the realm of any relaxation. It is pleaded by applicant that all her representations and all the litigations were perhaps decided against her taking into account such confusion about her age in the pleas of respondents at various fora.
8. The applicant also brought out her 10th class certificate based upon which the date of birth comes out to be 04.07.1948. If this is true, then she was 34 years and 6.5 months of age i.e. below 35 years of age at the time of her initial ad hoc appointment as Hindi Pradhyapak and thus within the relaxable age of 35 years, as the claim of the applicant is that since she was already working as ad hoc teacher in Kendriya Vidyalaya, and as such she is entitled to be considered for this age relaxation and in that event for further regularisation in service and consequential benefits. The applicant pleaded that the posts of Hindi Pradhyapak, against which she was appointed were of permanent nature, carried a regular scale and since she continued to work on the same till attaining 60 years of age, she is entitled to be regularised and granted benefit.
9. The respondents brought out that there had been certain confusion about the age, as is also reflected in the reply brought out in their counter and as indicated in para 7 above. However, since the matter had already seen a spate of litigations as brought out in para 4 above, the instant OA is not maintainable now and this 6 OA No.3904/2017 Tribunal cannot sit in judgment which has already been decided up to the Hon'ble Apex Court level.
10. Respondents also brought out that Rule 10 of Administrative Tribunals Act prohibits seeking of multiple reliefs and on that count also the instant OA is not maintainable.
11. The respondents also brought out Rule 2 of the CCS (Pension) Rules reproduced below and since the applicant is not covered under any of these categories 'a to h', no such retiral benefit can be extended:
"2. Application Save as otherwise provided in these rules, these rules shall apply to Government servants appointed on or before 31st day of December,2003 including civilian Government servants in the Defence Services appointed substantively to civil services and posts in connection with the affairs of the Union which are borne on pensionable establishments, but shall not apply to -
(a) railway servants ;
(b) persons in casual and daily rated employment ;
(c) persons paid from contingencies ;
(d) persons entitled to the benefit of a Contributory Provident Fund ;
(e) members of the All India Services ;
(f) persons locally recruited for service in diplomatic, consular or other Indian establishments in foreign countries ;
(g) persons employed on contract except when the contract provides otherwise ;
and 7 OA No.3904/2017
(h) persons whose terms and conditions of service are regulated by or under the provisions of the Constitution or any other law for the time being in force.
12. Further, no rules are brought out by which the applicant can be declared as regular. The respondents further brought out that for grant of age relaxation the nature of the earlier employment of the applicant also needs to be taken into account.
In nutshell, the respondents' plea is that the present OA is not maintainable and no benefit can be extended.
13. The applicant brought out that in terms of judgment of Hon'ble Supreme Court titled Secretary, State of Karnataka and ors. Vs. Uma Devi and ors., (2006) 4 SCC 1, wherein the Government were given directions to give one time relaxation and regularise all the ad hoc or temporary employees. This decision is applicable in the case of the applicant also. The relevant part of this judgment is extracted as under:
"44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered 8 OA No.3904/2017 on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
14. Attention of the Tribunal was also drawn to another judgment of the Hon'ble Supreme Court titled K. Anbazhagan & Anr. Vs. The Registrar General High Court of Madras & Anr., CA No.8216- 8217 of 2018 delivered on 13.08.2018, wherein even ad hoc Judges were granted the benefit of regular employment. The relevant para is extracted as under:
"3. There are five appellants in these three appeals, who were appointed as Fast Track Judges from the Bar in the State of Tamil Nadu, consequent to creation of Fast Track Courts under the Eleventh Finance Commission Report of the Government of India.
4. After creation of Fast Track Courts under Eleventh Finance Commission, the Madras High Court vide its order dated.21.11.2001issued an order pertaining terms and conditions for the Additional District Judges for the Fast Track Courts and the instructions thereon. The High Court vide its Notification dated 19.12.2001 invited applications from the practicing 9 OA No.3904/2017 Advocates for the post of Additional District Judges(Fast Track Court) on ad hoc basis for a period of five years. The terms of the notification provided that applicants should have completed 45 years of age and shall not have reached 55 years as on 01.01.2002.
5 The High Court vide its order dated 14.02.2002 appointed the appellants, who all were advocates as Additional District and Sessions Judge (Fast Track Courts) on Ad hoc Basis. The initial ad hoc appointment of all the appellants was for five years, which was extended. All the appellants were subsequently relieved from their assignments. In the year 2011/2012, appellants also filed different writ petitions for their absorption as Additional District and Sessions Judge in the regular cadre, which writ petitions were dismissed by the High Court. After the orders rejecting the claim of the appellants for absorption in regular cadre of Additional District Judges, the appellants filed representations praying for grant of pension and other retiral benefits, which were rejected by the High Court. Second round of litigation was initiated by the appellants claiming retiral benefits including pension, gratuity, and leave encashment, which has been dismissed by the High Court by its common judgment dated 01.04.2015.
Xxx xxx xxx
30. In service jurisprudence, the appointments are made by employer with different nomenclature/characteristics. Appointments are made both on permanent or temporary basis against permanent post or temporary post. The appointm ent can also be made on ad-hoc basis on permanent or temporary post. There is one common feature of appointments of permanent, temporary or ad-hoc appointment i.e. those appointments are made against the post whether permanent or temporary. On the contrary, for contractual appointment, there is no requirement of existence of any post. A Contractual appointment is not normally made against a post. Further, contractual appointments are also not normally on Pay Scale. On the mere fact that the advertisement as well as the appointment was made initially for a 10 OA No.3904/2017 period of five years, the nature of appointment of the appellants cannot be termed as contr actual appointment. When a Government servant is contemplated to hold a certain post for a limited period it is a Tenure Post.
xxx xxx xxx
58. In view of the foregoing discussions, we allow these appeals in the following manner:
(1) The judgment of the High Court dated 01.04.2005 is set aside and the Civil Appeals filed by the appellants are allowed.
(2) The respondents are directed to sanction
superannuation pension to
appellants K. Anbazhagan and P.G. Rajagopal in accordance with 1978 Rules.
(3) The respondents are directed to sanction compensation pension to the applicants, namely, Selvi G. Savithri, R. Radha and A.S. Hassina.
(4) All the appellants are entitled for payment of gratuity in accordance with 1978 Rules.
(5) The respondents are also directed to permit encashment of earned leave to the credit of the appellants subject to a maximum of 240 days.
(6) All above retiral benefits be computed and paid to the appellants within a period of two months from today. In the even payments are made after two months, the appellants shall be entitled for such payments alongwith the simple interest @ 7% per annum.
(7) The parties shall bear their own costs."
15. Applicant pleads that both these judgments (para 13 & 14 supra) are applicable in her case and she deserves the benefit which flows from these judgments.
11 OA No.3904/2017
16. Matter has been heard at length. What comes out is that there were some 200 permanent posts of Hindi Pradhyapak available wherein the applicant had been appointed on ad hoc basis and had worked in 46 broken spells from 20.01.1983 to 31.05.2008 for a period of about 17.5 years, which indicates that there was a continuous necessity of the same. The applicant had appeared in the relevant recruitment exam also, held by the Staff Selection Commission. Thereafter the applicant had sought regularisation seeking age relaxation also at various fora, but in view of the confusion about the age which continues till date (para 7 supra), she was treated as over age and thus beyond the scope of relaxation and accordingly all such efforts for regularisation had failed. She continued to serve at far flung places in the cause of Rajbhasha for her entire life, as ad hoc employee, though on a regular pay scale.
17. India is a welfare State wherein the rightful dues to the employees should be granted and not rejected under a misrepresentation on any count. Keeping in view the long service rendered by the applicant, it would be in fitness of things that whatever is due to her within the parameters of the rules is not denied and specially so in view of a Circular dated 10.04.1969, issued by Ministry of Home Affairs on the subject of "Direct Recruitment by Selection-Relaxation of the prescribed age limit in favour of Government Servants who are appointed on an ad hoc 12 OA No.3904/2017 basis", which the applicant had came to know only recently but which had actually pre-existed when she was appointed as ad hoc Hindi Pradhyapak and as such she ought to have been given the benefit thereof. The relevant para of this circular is reproduced below:
"The undersigned is directed to say that the Union Public Service Commission generally indicate in their advertisements for posts to be filled by direct recruitment through selection that the prescribed age limits are relaxable for Government servants, such a provision is also generally included in the Recruitment Rules framed in consultation with them. While this provision is, strictly speaking, intended for persons who are regular Government servants, the concession is, in practice extended to even those who have been appointed to posts on an ad hoc basis as it is not always practicable for the Commission to make a distinction (at the stage of scrutiny of applications) between a person who holds an appointment on an ad hoc basis and another who holds it on a regular basis, especially in view of the fact that there are instances where a person holds an ad hoc appointment in a particular post and applies in response to an advertisement for another post. The clause regarding relaxation of age limit for Government servants, irrespective of whether they hold appointment on ad hoc basis or otherwise. At the same time, it is necessary to ensure that the benefit of age relaxation is not extended to the over- aged ad hoc appointees. If, therefore, it becomes necessary for the Ministries/Departments to make ad hoc appointments pending selection through the Commission, they should make sure that the persons so appointed conform to the age limits prescribed in the Recruitment Rules."
17. The Tribunal is of the view that any confusion about her age needs to be set at rest by relying on her 10th class certificate. Therefore, it would be in the interest of justice that applicant makes 13 OA No.3904/2017 a formal representation to the respondents duly appending all documents in support of her claim within four weeks. On receipt of such a representation, the respondents shall give a reasoned and speaking order within a period of six months duly considering the applicability of Apex Court judgments quoted in para 13 & 14 above and the policy circular dated 10.04.1969 quoted in para 17 above and critically examining any similarities therein with that of applicant. In case, the applicant becomes eligible for certain benefits, as a result of this exercise, these shall also be extended to her within a further period of eight weeks. The OA is disposed off with these directions at this stage. No order as to costs.
( Pradeep Kumar ) Member (A) 'sd'