Central Administrative Tribunal - Delhi
Daya Chand S/O Shri Hargyan vs Nct Of Delhi Through The Chief Secretary on 21 October, 2010
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.621/2010 This the 21st day of October 2010 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) 1. Daya Chand s/o Shri HarGyan working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 2. Om Prakash s/o Shri Chander Singh working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 3. Ashok Kumar s/o Shri Budh Sen working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 4. Satbir Singh s/o Shri Pokhar Mal working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 5. Pappu s/o Shri Raju working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 6. Arjun s/o Shri Ganu Sada working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 7. Prem Chand s/o Shri Chedi Lal working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 8. Ombir s/o Shri Khem Chand working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 9. Bhagwat Prasad s/o Shri Lal Chand working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 10. Jagdish s/o Shri Manglu working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 11. Amana Khatun s/o late Shri Liyakat Ali working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 12. Tej Singh s/o Shri Hukum Singh working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 13. Bijender Singh s/o Shri Kartar Singh working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 14. Parmanand s/o Shri Sube Singh working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 15. Shankar Rai s/o Shri Ram Nandan Rai working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 16. Munna Lal s/o Shri Bansi Lal working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 17. Sat Narain s/o Shri Tara Chand working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 18. Rama Nand s/o Shri Mange Ram working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 19. Lallan Prasad s/o Shri Gorakh Prasad working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 20. Gopi Chand s/o Shri Chotu Ram working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 21. Kuseshwar Rai s/o Shri Dorik Rai working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 22. Kamal Singh s/o Shri Itwari Lal working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 23. Jai Bhagwan s/o Shri Surajmal Yadav working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 24. Devinder Singh s/o Shri Rajinder Singh working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 25. Ram Charitra Mandel s/o Shri R R Mandal working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 26. Natwar Lal Jha s/o Shri Pramod Jha working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 27. Mahinder Singh s/o Shri Hoshiar Singh working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 28. Rajbir s/o Shri Ram Dhan working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 29. Hari Singh s/o Shri Dharam Singh working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 30. Deconis Kajur s/o Shri S Kajur working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 31. Anand Singh s/o Shri Nandan Singh working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 32. Lachman Singh s/o Shri Rattan Singh working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 33. Jagbir s/o Shri Sube Singh working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi ..Applicants (By Advocate: Shri Yogesh Sharma) Versus 1. NCT of Delhi through the Chief Secretary New Sectt., New Delhi 2. The Chief Engineer Irrigation and Flood Department Govt. of NCT of Delhi IV Floor, ISBT Building, New Delhi ..Respondents (By Advocate: Shri Rishi Prakash) O R D E R
Shri Shanker Raju:
Regularized Beldars in various Divisions of Irrigation & Flood Department of Govt. of NCT of Delhi, through this OA, are seeking regularization from 16.6.1989 and quashing of the orders whereby they have regularized from different dates prospectively in the years 2008 and 2009. Applicants have been working for the last 22 years in the Irrigation & Flood Department as Beldars with temporary status on Work-Charged basis. Similarly circumstanced have approached the Apex Court by filing Writ Petition (C) No.253 of 1988 wherein vide order dated 31.10.1988 respondents have been directed to frame a scheme for the regularization of the services of those who have been in service for more than one year and till the scheme is framed and the question of regularisation of the petitioners therein is considered in the light of the scheme and final orders are passed thereon by the respondents, their services shall not be terminated, though they have been directed to pay w.e.f. 1.1.1988 the minimum salary to a person regularly appointed. This was modified by the Apex Court vide its order dated 16.11.1988 to comply with the directions within six months.
2. In pursuant thereof, a scheme was framed whereby those having worked more than 240 days upto 16.9.1989, a list was prepared and the Administrative department shall conduct the studies and surplus staff, if any, shall be placed in the surplus pool for six months to absorb in other departments. Applicants continued to perform the duties and were getting all benefits at par with the regular employees. As regularization has not been done, OA-1735/2006 was filed by the applicants before the Tribunal wherein vide order dated 23.7.2007 this Tribunal directed the respondents to consider appointing them on regular basis and thereafter orders have been issued whereby the applicants vide order dated 14.2.2008 and 2.3.2009 have been regularized on Group D post on substantive basis.
3. This has led to the present litigation whereby applicants learned counsel states that not regularizing the applicants from back date is in violation of the directions issued by the Apex Court whereby regularization was to be done of those who had completed one year service on the cut-off date within six months. He relies upon the decision of the Apex Court in State of H.P. & others v. Gehar Singh, JT 2007 (8) 458 to contend that despite taking note of the decision in Secretary, State of Karnataka & others v. Umadevi & others, (2006) 4 SCC 1, once the scheme has been framed pursuant upon the directions of the Apex court, the regularization would be retrospective.
4. Learned counsel has also relied upon the decision of High Court of Delhi in Shri Omkar Sharma v. Delhi Development Authority & others (CW No.1118/1991) decided on 22.1.2004 whereby directions have been issued to accord the arrears of salary and regularization as well as seniority from the back date.
5. Learned counsel would further contend that the only difference with retrospective regularization would make the applicants entitled through their consideration for promotion as fundamental right and seniority, which cannot be denied to them, as for 22 years even after the decision of Apex Court they have been appointed on the regular post but without any regularization. As such, the years of service would go waste and would not be reckoned for any purpose, which causes great prejudice to the applicants.
6. On the other hand, learned counsel for respondents relies upon the decision of Secretary, State of Karnataka (supra) and stated that applicants have been regularized in their turn when vacancies arose. The scheme when formulated, 828 daily wagers have been regularized w.e.f. 1.6.1989. However, rest of them, who have been left out numbering 328, are surplus to the requirement whereby the applicants were declared surplus and their services as per Apex Courts decision were not dispensed with. It is stated that there is no legal infirmity in the action of the respondents.
7. With the rejoinder, applicant has appended the minutes of meeting dated 23.5.1989 whereby it has been decided in paragraph 4 by the respondents that number of persons under various categories, as assessed to be needed for the jobs by the A.R. Department shall be regularized as Work-Charged employees. The other persons shall be kept in a surplus pool to which the usual instructions issued by the Government of India from time to time shall apply. In this backdrop, it is stated that had the applicants been incorporated in the surplus list at the appropriate time on or before 1.1.1989, they would have remained in other departments.
8. We have carefully considered the rival contentions of the parties and perused the records.
9. No doubt, regularization is not a mode of appointment but once a right has been accrued pursuant upon the directions of Apex Court, which has been implemented by the respondents by regularizing these persons, this regularization should not have been a prospective one and would be restricted to retrospective basis within six months from 1.1.1989. The stand of the respondents taken in the reply as to applicants being declared surplus is not found authentic. Had the applicants been declared surplus at the appropriate time, i.e., within six months in pursuance of the order of Apex Court, they would have certainly been, under the Re-deployment of Service Rules, absorbed by continuing them to a regular scale with all benefits at par with regular employees. Non-grant of regularization from a retrospective date has deprived the applicants their rightful claim to the service rendered by them, which shall now be counted as a qualifying service and as eligibility service for promotion and seniority. This has greatly prejudiced them. The decision in Gehar Singhs case (supra), in all fours, covers the present issue. As such, our considered view is that the applicants should now be given retrospective regularization, so that their services after six months from the date of decision of Apex Court would be utilized for all purposes for upholding their fundamental right for consideration of their promotion.
10. Resultantly, the OA is allowed to the extent of directing the respondents to consider regularizing the applicants w.e.f. 16.5.1989, with all consequences, within a period of three months from the date of receipt of a copy of this order. No costs.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/