Central Administrative Tribunal - Delhi
Dev Raj Singh S/O Shri Sukh Lal vs Govt. Of Nct Of Delhi on 2 May, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.3972/2013
M.A. No.371/2014
with
O.A. No.666/2014
New Delhi, this the 2nd day of May, 2014
HONBLE SHRI V. AJAY KUMAR, MEMBER (J)
HONBLE SHRI P.K. BASU, MEMBER (A)
O.A. No.3972/2013
1. Dev Raj Singh S/o Shri Sukh Lal,
R/o B-201, 2nd Floor, Pandav Nagar,
Near Shadipur, Patel Nagar
Delhi-8
2. Ms. Preeti Pathak S/o Shri Awadesh Kumar Jha,
R/o E-109, Astha Kunj Apartment,
Sec.18, Rohini, Delhi
3. Ms. Preeta S/o Shri Chankya Sindhu,
R/o 431, V.P.O. Pehaladpur
Delhi-110042
4. Ms. Pooja Mehrotra w/o Vikram Saigal,
R/o Ha/124, Sec. 16, Rohini,
Delhi-85
5. Sudhir Kumar Jaiswal,
S/o Sh. K.L.Jaiswal,
R/o Flat No. 114, B-9/14,
Bhagirathi Apartment, Sec-62,
Noida-201301
6. Ms. Seema Pathak,
D/o K.K.Pathak,
R/o B-27, Sec.53, Noida (UP).
7. Alanksha Sharma D/o C.P.Sharma,
R/o F-104, Kirti Nagar.
8. Ms. Rakshi Arora D/o late Anil Arora,
R/o F-1st/278, Madangiri,
New Delhi-110062.
9. Ms. Meera Pandey w/o Priya Ranjan Mishra,
R/o B-10, Kiran Garden, Uttam Nagar West,
Delhi.
10. Mrs. Kavita Gupta w/o Mr. Ashish Kumar Jain,
R/o N-15, Naveen Shahdara, Delhi-110032
11. Mohd. Taj Uddin S/o Late Mohd. Kalm Uddin,
R/o B-277, Kousar Appartments,
I.P.Extension, Street No.2, New Delhi-110092
12. Priyanka Anand W/o Abhay Anand,
R/o Flat No. 22, Janaki Apartment,
Sec.22, Dwarka, New Delhi-77
13. Ms Rashmi Sharma D/o Rahtsh Kumar,
R/o G-259, Rishi Nagar, Rani Bagh,
New Delhi-110034
14. Ranjeet Chaoudhary S/o Sh. Jagraj Choudhary,
R/o Flat No. 46, DDA LIG Flat,
Pocket-4, Sec.11, Dwarka,
Delhi-09 .. Applicants
(Through Shri Nilansh Gaur, Advocate)
Versus
1. Govt. of NCT of Delhi,
Through the Chief Secretary,
New Sectt., Building, I.P.Estate,
New Delhi.
2. The Secretary,
Department of Social Welfare & Women
& Child Development,
Govt. of NCT of Delhi, GLNS Complex,
Delhi Gate, Delhi.
3. The Director,
Department of Women & Child Development,
Govt. of NCT of Delhi, Canning Lane,
K.G.Marg, New Delhi.
(Through Shri Vijay Pandita, Advocate)
O.A. No.666/2014
Ms. Geeta Rani
D/o Shri Balwant Singh
R/o 908, VPO-Pooth Khurd
Delhi-110039 ....Applicant
(Appeared in person)
Versus
1. The Secretary,
Department of Social Welfare,
Govt. of NCT of Delhi
GLNS Complex, Delhi Gate,
New Delhi-110002
2. Department of Social Welfare through
The Director,
Govt. of NCT of Delhi
GLNS Complex, Delhi Gate,
New Delhi-110002
3. Department of Women Child Development through
The Director,
1, Canning Lane,
Kasturba Gandhi Marg,
New Delhi-1
4. Shri Devesh Singh
Special Director,
Department of Women Child Development
1, Canning Lane,
Kasturba Gandhi Marg,
New Delhi-1 .Respondents
(Through Shri Vijay Pandita, Advocate)
ORDER
Mr. P.K. Basu, Member (A):
By this common order, we propose to dispose of OA 3972/2013 and OA 666/2014 together as facts and issues involved in both the OAs are identical.
2. The applicants in these OAs were appointed against sanctioned posts of Welfare Officer on contract basis between the years 2008 and 2010. The appointments were made through an advertisement in national newspapers and then screening/ interview having been conducted, meaning thereby that the respondents had gone through a proper procedure in appointing the applicants on contractual basis and not on an ad hoc basis. They were appointed initially for six months and thereafter were continued for other periods of six months. The last extension was vide order dated 11.07.2012, which means the six months period would have expired in January 2013 but were allowed to cotninue. Vide order dated 8.11.2013, services of 23 such contractual Welfare Officers were discontinued with effect from 31.10.2013 i.e. with retrospective effect. It is also alleged that since May 2013, the respondents are not releasing the salary of the applicants though they have been working even beyond 8.11.2013. The prayer of the applicants is that the order dated 8.11.2013 be quashed and the respondents be directed to release salary for the period for which they have worked and not paid so far. It is further prayed that the respondents be also directed not to replace the services of the applicants by any other sources except by way of regular appointment and allowing the applicants to serve the department till the regular appointment on the posts.
3. Heard both the parties.
4. The applicants state that prior to 2008, there was only one department i.e. Department of Social Welfare in the Government of National Capital Territory of Delhi (GNCT of Delhi). Thereafter the Department of Social Welfare has been bifurcated into two departments i.e. Department of Social Welfare and the Department of Woman and Child Development but still the cadre controlling authority for all purposes including appointment, disciplinary action etc. is only the Department of Social Welfare and that is why the applicants were also appointed by the Department of Social Welfare. It is stated that after their appointment, the applicants were sent to Department of Woman and Child Development whereas some of the persons appointed along with the applicants were posted in the Department of Social Welfare. This was purely fortuitous without following any particular policy. When their salary was stopped in May 2013, the applicants approached the department and were told that the Finance Department had not released their salary and it had been decided to disengage their services in the Department of Woman and Child Development. The other persons appointed along with the applicants and assigned to Department of Social Welfare were not affected by this order though many of them were junior to the applicants in respect of their initial date of joining. The first objection, therefore, of the applicants is that even if they were to be discontinued, the respondents should have followed the principle of first come last go i.e. those who were appointed later, their services should have been discontinued first before discontinuation of services of the applicants who came much earlier. In this fashion, 50 Welfare Officers who were appointed after appointment of the applicants on contract basis, are still working in the department.
5. It is further pointed out that it is not a case that the posts against which the applicants were appointed have been abolished and there is no work in the department. The termination is primarily because the Finance Department refused to release the budget. It is argued that it is well settled principle of law laid down by the Chandigarh Bench of the Central Administrative Tribunal in the case of Dr. Manish Arora & ors. Vs. Union of India and ors., OA No.350-CH-2005 that contractual employees should not normally be replaced by another set of contractual employees, unless the work and conduct of the earlier appointee is found to be not satisfactory or lacking in any respect and that the case of the applicants is fully covered by this judgment. Reliance is also placed on the judgment of the Honble Supreme Court in Abdul Kadir and anr. Vs. Director General of Police, Assam & ors., 2010 (1) AISLJ 126. Further the order of this Tribunal in Suraj Kumar & ors. Vs. GNCT of Delhi in OA 4267/2011 decided on 27.02.2012 is also cited in which the directions given were respondents not to replace the applicants by another set of contractual employees. Objection is also raised on discontinuation of service from retrospective effect. Applicants also allege that CCS (CCA) Rules 1965 have been violated as no procedure was followed before terminating their employment.
6. In support of their case, the applicants further rely on the judgment of the Honble Delhi High Court in Sonia Gandhi & ors. Vs. Govt. of NCT of Delhi & ors., W.P.(C) No.6798/2002 in which the Court directed as follows:
Held, good governance would require the Government to ensure regular posts being sanctioned commensurate to the public need Respondent directed to carry out a manpower requirement assessment in all its departments keeping in view the fact that population in Delhi has crossed 1.7 crore persons Such number of posts shall be sanctioned as necessary to provide services to the citizens of Delhi A one time policy of regularization shall be framed and existing rules pertaining to service in different departments shall be amended Existing contractual employees shall be considered for appointment to these new posts as per a policy framed Writ petitions disposed of. Similarly, in the case of Dilip Kumar Jha and ors. Vs. New Delhi Municipal Council, W.P. (Civil) No.16499/2004, the Honble High Court of Delhi held that:
6.. the respondent will not replace the petitioners with other contractual employees and in case by virtue of regular appointment the petitioners become surplus, the respondent will follow the rule of last come first go.
7. First, the respondents have clarified that in accordance with corrigendum dated 13.01.2014, the date of discontinuation of services of all the 23 contractual Welfare Officers mentioned in order dated 8.11.2003 will be treated as 8.11.2013. Therefore, the question of termination of service with retrospective effect is no longer an issue. The respondents have further clarified that despite the order dated 8.11.2013, several officers in the field continued to engage them beyond 8.11.2013, without any authorization and, therefore, the department has issued show cause notice to such officers for the act of disobedience of orders of the government. The respondents relied on the judgment of the Honble Supreme Court in Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs & Pharmaceuticals Ltd., (2007) 1 SCC 408 in which it has been held as follows to argue that regularization cannot be made:
Service Law Appointment Modes of appointment Held, regularization cannot be a mode of appointment Rules of recruitment cannot be relaxed and the court/ tribunal cannot direct regularization of temporary appointees dehors the rules State Owned/ Operated Corporations Public Sector Labour Law Regularization Held, not a permissible mode of appointment. On the question of applicants raising the issue of violation of CCS (CCA) Rules, 1965, it is stated that these Rules are not applicable in case of contractual employees. Thus, no Rule has been violated by terminating the services of the applicants and clearly as per the judgment of the Honble Supreme Court in Indian Drugs & Pharmaceuticals Ltd. (surpa), there is no binding on the respondents to create posts for regularizing the applicants.
8. On the question of `first come last go, the learned counsel for the respondents argued that since the applicants belong to the Department of Woman and Child Development and that department was not provided the funds, there was no alternative for the respondents but to terminate their services. It is stated that all the staff are transferable from Social Welfare to Woman and Child Development and vice versa depending upon the requirement of both departments and availability of the vacancies. The applicants cannot claim as a matter of right posting in any one department. The respondents also assured that the matter regarding releasing salary is being processed and it will be released soon after due approval of concerned authority i.e. the Finance Department.
9. We have heard both the sides and perused the relevant rules and judgments cited.
10. On the principle of last in first out, we feel the applicants argument is valid. Since the appointing authority was the Department of Social Welfare and the posting of the selected candidates was on pick and choose, the respondents cannot take the plea that since the applicants are in the Department of Women and Child Development for which funds have not been provided by the Finance Department, their services can be terminated and those similarly appointed but luckily allocated to the Department of Social Welfare would continue despite having been appointed after the applicants. Since the appointing authority for both the wings is the same i.e. the Department of Social Welfare, the termination, if at all, should have followed the principle of last in first out. To that extent, the impugned order cannot be sustained. It also appears that the respondents need the services of Welfare Officers because the proposal was sent to the Finance Department seeking extension of the term of contractual staff. The applicants have pointed out that in Dr. Manish Aroras case (supra), it has been clearly held that contractual employees should not normally be replaced by another set of contractual employees, unless the work and conduct of the earlier appointee is found to be not satisfactory or lacking in any respect. This is supported by the law laid down by the Honble Supreme Court in Abdul Kadirs case (supra).
11. The respondents are going in for regular appointments as is informed by both sides and the examination for that purpose is scheduled in the near future. Therefore, it cannot be said that the respondents do not need the services of such Welfare Officers. Moreover, because once the regular persons are appointed, they would have to be paid, funds do not seem to be a problem. The respondents stand seems to be ambiguous because while on the one hand, they are ready to recruit persons on regular basis for which much more funds would be needed as compared to contractual employees, on the other hand, they are not ready to continue these contractual appointees till the regular persons come in.
12. Under these circumstances, we tend to agree with the prayer of the applicants that they be allowed to continue till regular persons are appointed, which will be in the near future. The Honble Supreme Court has held in Indian Drugs & Pharmaceuticals Ltd. (supra) that temporary employees have no right to the post and that regularization can only be done in accordance with the rules and not de hors the rules. In this case, the applicants are not asking for regularization rather they are ready to face the examination and come in through the normal selection procedure. As stated earlier, the respondents case is that they need these hands as is evident from their action of recruiting Welfare Officers on regular basis. Therefore, the principle laid down in the aforesaid judgment will not be violated as regularization will only be done as per rules. All that is being prayed is that these young boys and girls who have worked for considerable time and whose services are still required by the respondents, be continued till the regular employees are in place.
13. We, therefore, set aside the order dated 8.11.2013 and direct the respondents to release the salary of the applicants for the period upto 8.11.2013 and beyond (i.e. till the date they have actually worked) within a period of one month from the receipt of a copy of this order. The respondents may complete the process of regular appointment expeditiously and till such time allow the applicants to continue. If after the regular appointments are made some number of contractual Welfare Officers are declared surplus, respondents will follow the principle of last in first out to terminate their service. No costs.
( P.K. Basu ) ( V. Ajay Kumar ) Member (A) Member (J) /dkm/