Central Administrative Tribunal - Delhi
S.K. Chaudhory vs Govt. Of Nct Of Delhi on 8 July, 2009
Central Administrative Tribunal Principal Bench TA No.261/2009 TA No.262/2009 New Delhi this the 8th day of July, 2009. Hon'ble Mr. Shanker Raju, Member (J) Hon'ble Dr. Veena Chhotray, Member (A) TA No.261/2009 1. S.K. Chaudhory, S/o Shri Ramrup Chaudhory, R/o 8817, Shakarpur, Gali No.1, Delhi-110 092. 2. Surender Kumar, S/o Shri Ram Kumar, R/o H.No.316, Vill. & P.O. Kutub Garh, Delhi-110 039. 3. Ashok Kumar, S/o Shri Pritam Singh, R.o A-179, Sangam Park, Rama Partap Bagh, Delhi. 4. Jai Dev Sharma, S/o Shri R.D. Sharma, R/o C-13/114, Sector-3, Rohini, Delhi-110 085. 5. Gopi Ram, S/o Shri Parshuram, R/o H. No. 14, Mukund Pur, Village & P.O. Samaypur Badli, Delhi. 6. Ajay Aggarwal, S/o Sh. R.P. Aggarwal, R/o RV-221, Pitampura, Near Power House, Delhi-110 088. 7. Rakesh Nain, S/o Shri Attar Singh, R/o Village & P.O. Jat Khor, Delhi-110 039. 8. Naresh Kumar, S/o Shri Om Parkash, R/o Flat No.62, Type-III, Ambedkar Hospital, Rohini, Sector-6, Delhi-110 085. 9. Ravinder Sirohi, S/o Sh. Deshpal, R/o House No.25, Block-A, Village Rajpur Khurd Colony, Mehrauli, P.O. Maidan Garhi, Near Chatarpur Mandir, Delhi. 10. Subhash Sharma, S/o Shri Suresh Chandra, R/o House No.1208, Panna Paposiya, Narela, Delhi. 11. Atul Sharma, S/o Shri R.N. Sharma, R/o A-173, Meera Bagh, New Delhi. -Applicants (By Senior Counsel Shri G.D. Gupta with Shri S.K. Gupta, Advocate) -Versus- 1. Govt. of NCT of Delhi, through Chief Secretary, Delhi Secretariat, Players Building, I.P. Estate, New Delhi-110 002. 2. Delhi State Industrial Development Corporation, through its Managing Director, N-36, Bombay Life Building, Connaught Circus, New Delhi-110 001. (By Advocate Shri Anand Prakash with Ms. Babita Seth, Advocate) TA No.262/2009 1. Surjeet Singh, S/o Shri Samey Singh, R/o B-37, Majlish Park, Adarsh Nagar, New Delhi-33. 2. Dinesh Chand S/o late Shri B.P. Sharma, R/o C-79-A, Jitar Nagar, New Pirwana Road, Delhi-51. 3. Ishwar Chand S/o Late Sh. Sarni Mal, R/o A-1/13, Netaji Subhsh Marg, East Babar Pur, Shahdara, Delhi-32. 4. Vipin Sharma S/o Sh. R.D. Sharma, C/o C-10/36, Yamuna Vihar, Delhi-53. 5. Krishan Sharma S/o Sh. S.L. Sharma, R/o 10340, Gali No.1, West Gorakh Park, Shahdara, Delhi-32. 6. Vineet Gaur S/o Sh. Babu Ram Gaur, R/o H. No.178, Nathu Ram Building, Ghondli, Krishan Nagar, Delhi-51. 7. Dhirender Kumar, S/o Sh. Sahab Singh, R/o 97, Vaishali Pitampura, Delhi-88. 8. Akash Goel S/o Sh. Ved Prakash Goel, R/o AG-435, Shalimar Bagh, Delhi-88. 9. Vikas Sharma S/o Sh. P.N. Sharma, R/o 27/78, Gali No.8, Viswas Nagar, Shahdara, Delhi-32. -Applicants (By Advocate Shri Varun Prasad) -Versus- 1. Govt. of NCT of Delhi, through Chief Secretary, Delhi Secretariat, Players Building, I.P. Estate, New Delhi-110 002. 2. Delhi State Industrial Development Corporation, through its Managing Director, N-36, Bombay Life Building, Connaught Circus, New Delhi-110 001. -Respondents (By Advocate Shri Anand Prakash with Ms. Babita Seth, Advocate) O R D E R Hon'ble Mr. Shanker Raju, Member (J):
As the facts are common with an identical question of law, these TAs are disposed of by this common order.
2. In TA-261/2009 applicants who are working on contract as Junior Engineers (JEs) have sought regularization on the posts of JE with difference of salary w.e.f. 4.10.2000. Likewise, in TA-262/2009 applicants, another set of contract JEs have sought an identical relief. Status quo, as of 27.5.2005, as to the continuance of the applicants on contract as JEs, has been maintained by the High Court of Delhi.
4. Applicants were appointed on different dates as Work Assistants on muster roll basis from May, 1995 to February, 1998. An order passed on 15.4.1998 by the respondents acknowledging working of the applicants as Technical Supervisor without any break on humane consideration they are deemed to be employed by the Corporation, i.e., Delhi State Industrial Development Corporation (DSIDC) on muster roll from the date of their initial appointments for the purpose of seniority and with a view to give them fair chance to be considered for regularization as per Rules and availability of vacancies. On 14.12.1999 a report submitted on restructuring by the Engineering Wing of DSIDC ruled out dispensation of muster roll employees. However, applicants were appointed on the next promotional post of JE but on a consolidated salary. A meeting of the Board of Directors held on 26.12.2001 left the issue of regularization of applicants as per the decision of the Court and on 7.6.2002 another meeting of the Board of Directors talked of only regularization of class IV employees. Applicants made representations, which were not responded to. By an order passed on 24.3.1998 one Sunil Dutt, a senior to the applicants, was appointed temporarily on an initial pay of Rs.4500/- per month as JE and the same person was further appointed as Assistant Executive Engineer (Civil) in the pay scale of Rs.8000-13500.
4. Learned Senior Counsel Shri G.D. Gupta contended that the applicants who have been continued on muster roll, which is to be reckoned towards seniority, despite the seniors have been regularized, have been meted out a differential treatment, which is invidious and violative of Articles 14 and 16 of the Constitution of India.
5. Learned Senior Counsel would invoke the exception carved out in the Constitution Bench decision of the Apex Court in Secretary, State of Karnataka and others v. Umadevi and others, JT 2006 (4) SC 420 to treat them as a special class. Learned counsel would contend that applicants are fulfilling the minimum criteria laid down under the Rules and also possess requisite educational qualifications and despite the Board has espoused their case, yet their claim for regularization has not been considered. Shri G.D. Gupta would also contend that as many as 30 vacancies are lying vacant, which should be utilized for the applicants to be considered for regularization.
6. Shri Varun Prasad, learned counsel for applicants in TA-262/2009 invoked the principle of equality in pay to state that having performed same functions, applicants cannot be denied equal wages as of regular JE in a definite pay scale. Learned counsel has also relied upon the decision of the Constitution Bench of the Apex Court in Roshan Lal Tandon v. Union of India, AIR 1967 SC 1889 to strengthen his plea. It is stated that since five senior persons, who are also appointed on muster roll, were regularized as JEs and also promoted on ad hoc basis, applicants being identically situated cannot be treated differently.
7. On the other hand, learned counsel of respondents would vehemently oppose the contentions and while relying upon decision of the Apex Court in Umadevi (supra) would contend that regularization not being a mode of appointment, any appointment would be de hors the Constitution of India. Learned counsel would also rely upon the decision regarding equal pay for equal work in the case of Union of India and Anr. v. Manu Dev Arya, JT 2004 (Suppl.2) SC 161. Reliance has also been placed on the decision of State of Gujarat & Anr. v. Karshanbhai Rabari & Ors., JT 2006 (7) SC 56 to strengthen his plea. Decision of the High Court of Delhi in Indian Tourism Development Corpn. Ltd. v. Poonam Rai, 2006 (86) DRJ 540 (DB) is also relied upon.
8. On careful consideration of the rival contentions of the parties we find from the record that a proposal for regularization of applicants was taken by the Board of Directors before the Govt. of NCT of Delhi in its meeting held on 29.12.2006, keeping in light the recruitment rules for filling up the posts of JE, which is 100% by direct recruitment and through DSSSB. It is contended that as per the Principal Secretary (Industries) one time relaxation was sought for filling up the vacant posts of JE, falling under Group C, but the Services Department has decided otherwise, as it is DSSSB, which shall undertake the task of selection and recruitment, for which it is mandated. The respondents have contended that the applicants were appointed on muster roll and as regards the claim of other five seniors who were regularized on 24.3.1998, it is denied that they were promoted to the posts of JE from muster roll. Regarding Kuldeep and Sunil, who have been further promoted as AEE on ad hoc basis, it is stated that their recruitment was on ad hoc basis. It is contended that an illegality committed earlier would not invest applicants an indefeasible right to be regularized, as negative equality has no role to play. Learned Senior counsel has alleged invidious discrimination and has relied upon the decision of the Apex Court in U.P. State Electrity Board v. Pooran Chandra Pandey, 2007 (11) SCC 92 to substantiate his plea.
9. In our considered view the decision in Pooran Chandra Pandey (supra) has been held to be an obiter in a larger Bench of the Apex Court in Official Liquidator v. Dayanand, 2008 (10) SCC 1. However, an exception carved out in Umadevi (supra) clearly signifies that if the initial appointment is irregular by virtue of being continued for 10 years, one has a right to be considered on one time measure for substantive appointment. Keeping in light the scheme in vogue under the Rules for engagement of muster roll employees and deeming status of the applicants granted by the respondents from their initial joining and reckoning this period for the purpose of seniority and sending a proposal clearly shows that the engagement of applicants and their subsequent appointment was not illegal. However, we find that the recruitment rules for the posts of JE do not stipulate promotion or regularization as a mode of appointment. It is 100% by selection and the only agency to undertake such a selection is DSSSB. However, the applicants who are now since continuing for more than 10 years and some of them for more than 15 years have exceeded the exterior age limit prescribed under the Rules for the post of JE, but are qualified educationally and technically as per the recruitment rules. In such view of the matter, if the respondents hold a selection through DSSSB for filling up the vacant posts of JE, which is not disputed in the instant cases, not only the applicants have a right to participate and to be considered in the selection but also desirability on relaxing the age limit and consideration of their experience is mandated in view of the recent decision of the Apex Court, taking cognizance of Umadevi (supra) in Harminder Kaur v. Union of India, 2009 (7) SCALE 204.
10. In the result, for the foregoing reasons, these TAs are disposed of with a direction to the respondents to hold a selection for the posts of JE through DSSSB and in such an event applicants who are eligible under the recruitment rules shall be considered, giving due weightage to their experience on relaxing the age. On results of such selection, law shall take its own course. Till then status quo, as of date, shall be maintained in respect of the applicants. No costs.
Let a copy of this order be also kept in TA-262/2009.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.