Central Administrative Tribunal - Delhi
Amit Kumar Sharma vs Government Of Nct Of Delhi on 27 May, 2009
Central Administrative Tribunal Principal Bench OA No. 607/2009 MA No.398/2009 New Delhi, this the 27th day of May, 2009 Honble Dr. Ramesh Chandra Panda, Member (A) 1. Amit Kumar Sharma, S/o Shri Ved Prakash Sharma, R/o E-6/15, 33 Futa Road, Dayalpur, Delhi. 2. Basanti, D/o Shri Purshutam Bhatt, R/o E-20/13, Subhash Vihar, Gali No.8 Ghonda, Delhi-110053. 3. Hem Raj Chandan, S/o Shri Dhira Lal, R/o BII-440, Raghubir Nagar, New Delhi. 4. Laxman Singh Rawat, S/o Shri Rattan Singh Rawat, F-2, Block-24, Kalyan Vas, Delhi. 5. Mahesh, S/o Shri Ram Chander, R/o A-131, Minto Road, New Delhi. 6. Mirza Mohmad Beg, S/o Shri Mirza Maqbool Beg, R/o House No.J-17/8, Street No.6, KWM, Banger, Delhi. 7. Ajay, S/o Shri Gokul Prasad, R/o C-1/722, Gali No.10, Sonia Vihar, Delhi 8. Pankaj, S/o Shri Ved Prakash, R/o B-8, 207, Sector-3, Rohini, Delhi. 9. Vikramaditya, S/o Shri Vir Singh, R/o C-506, Mangolpuri, Delhi. 10. Sumit Kumar Pandey, S/o Shri Kant Pandey, R/o 1277, Type-II, Gulabi Bagh, Delhi-110007. 11. Sanjay Kumar, S/o Shri Bhagwan Das, R/o D-3/10, Amit Niwas Dayalpur, Delhi. 12. Arun Khari, S/o Shri Raje Ram, R/o V-Tugalakabad, House No.483 Jalim Mohalla, Delhi. 13. Vinod Kumar, S/o Shri Chandsehwar, R/o A-10, Sewa Kutir, GTB Nagar, Delhi. 14. Parveen Kumar, S/o Shri Badri Prasad, R/o House No.590, Bhim Gali Sabzi Mandi, Delhi. 15. Rajni Kant, S/o Shri Ram Darash Ram, R/o 133, Type-I, Delhi Administration Flats, Gulabi Bagh, Delhi-110007. 16. Anil Kumar, S/o Shri Dinanath Manjhi, R/o House No.1423, Gali No.13, Nathu Colony, Delhi-110084. 17. Amit Kumar, S/o Shri Rajender Mandal, R/o E-32/106, East Vinod Nagar, Delhi. 18. Chander Mohan, S/o Shri Mohan Singh, R/o D-112, Jal Vihar Colony, Najafgarh, New Delhi, 19. Surender Kumar, S/o Shri Gyasi Ram, R/o SQ No.1, Children Observation Court, Delhi. 20. Nitin Kumar, S/o Shri Desh Raj, R/o House No.58-A, Masjid Moth, Delhi. 21. Nitin Sharma, S/o Shri Shripal Sharma, R/o House No.30/108, Gali No.7, Vishwas Nagar, Delhi. 22. Vineet Singh, S/o Shri Chander Singh Negi, R/o House No.G-1, B-23, Kalyan Vas, Delhi. Applicants (By Advocate: Shri Rajinder Nischal with Shri Ashish Nischal) Versus Government of NCT of Delhi, Through Secretary, Department of Women & Child Development 1-Canning Lane, K.G.Marg, New Delhi-110001. Respondent (By Advocate: Mrs. P.K.Gupta) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri Amit Kumar Sharma and 21 others, the Applicants herein, have approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 with a common prayer to quash and set aside (i) the advertisement dated 23.02.2009 issued by the Respondent and (ii) their termination notice dated 4.12.2008. They have also prayed to direct the Respondent to allow the Applicants to continue on the post of Peon till the regular incumbent are recruited.
2. At the admission stage, the request to maintain status quo was considered and the same was granted, as a result of which, all the Applicants are presently continuing in their respective posts.
3. The brief facts of the case are that the Department of Women and Child Development (WCD) of Government of NCT of Delhi implementing integrated Child Development Scheme (ICDS) have sanctioned many ICDS projects as well as the staff required for each project. The Government of India has sanctioned 55 ICDS Projects for the Government of NCTD, out of which, 5 projects were sanctioned recently i.e. on 2.3.2009, which are yet to become operational. Earlier, the Respondent Department appointed CDPOs, Supervisors and Peons on regular basis after following the respective recruitment rules for those posts. Further, they have also posted LDCs, UDCs and Statistical Assistants as per the sanction accorded by the Government of NCTD. In January-October 2007, 16 new ICDS Projects were sanctioned pursuant to the directions of Honble Supreme Court of India in CWP No.196/2001 and, therefore, the Respondent has made contractual engagements of persons for various posts including the Peons in the month of September 2007. It is the Applicants claim that the Respondent Department engaged them as Peons on contractual basis w.e.f. 14/17.9.2007 on a consolidated salary of Rs.4000/- per month. They were appointed through the public advertisement in August 2007 and proper selection process had been followed. Their contracts have been extended lastly on 13.08.2008 for a period of six months. In the meantime, the Respondent has issued a letter dated 4.12.2008 wherein it has been stated that the services of the Applicants on contract basis will be up to 31.3.2009 and thereafter their services would stand discontinued. Consequent to the said letter, the Respondent has also issued an advertisement in the News Paper on 23.02.2009 calling for applications to fill up various posts on contractual basis including the post of 31 Peons. The apprehension of the Applicants is that they will be replaced by new set of contractual Peons. They point out that their work and conduct has been satisfactory all through and there has been no complaint against the Applicants from the officers with whom they have been working.
4. Shri Ashish Nischal, Learned Counsel for the Applicants, argues that the notice issued to the Applicants intends to remove and terminate the contract as on 31.3.2009. He submits that the Applicants have not been demanding regularization as Peons in the Respondent Department. His short point is that Applicants are working satisfactorily and with good conduct as Peon on contractual basis and they cannot be replaced by another set of Peon on similar contract basis. In this context, he relied on the judgments of the Honble High Court of Delhi in WP(C) Nos.16499-16502/2004 decided on 1.9.2006 in the case between Dalip Kumar Jha and others vs. New Delhi Municipal Council. The brief point he brought to my notice from the judgment of Honble High Court is that while the petitioners prayer for regularization was dismissed but the Honble High Court issued the directions to the Respondent not to replace the petitioners with other contractual employees.
5. On the other hand, Mrs. P. K. Gupta, Learned Counsel for Respondent, submitted her contentions to state that Child and Women Welfare Department of the Government of NCTD had been getting good number of ICDS Projects consequent to the directions of Honble Supreme Court. The Applicants were taken purely on contract basis for a period of 6 months. They do not have right to continue beyond 6 months once the contract is over. The Respondent has already taken steps to process for regular appointment to various posts. For the regular appointment to the post of Peons, the Respondent is processing the proposal to take similar steps for regular appointment. In this backdrop, she contended that the Peons on contract basis would be terminated and appointment of fresh contract Peons would be taken up till regular appointment. She also adds that some of the Applicants being eligible have applied for the contractual appointment as Peon on a consolidated salary. The Respondent is very responsive to the request and if the Department find such Applicants eligible in the selection process started with the advertisements, such Applicants would be selected for the post of contractual Peons. The selection, she submitted, would be done in a proper manner.
6. Having heard the rival contentions of the parties, the short question is whether the Applicants being on contract basis in the post of Peons in the Respondent Department, have the right to continue and not to be replaced by separate sets of contractual Peons?
7. Learned Counsel for the Applicant very clearly informed that the Applicants are not praying for regularization of their services since they have been on contract basis. He also cited the judgment of Honble High Court of Delhi in Dalip Kumar Jha & ors.(supra). It is appropriate for me to indicate that the Petition filed by the petitioners in the said Writ Petitions were dismissed since the petitioners were seeking a direction of the Honble High court of Delhi to the Respondent NDMC to regularize their services as TG (Teachers) and to prohibit the Respondent from terminating their services. The facts of that case are that the petitioners are appointed as Teachers on contract basis to the post of TGTs in different subjects on the basis of an advertisement issued in the News Paper. That case though was for the Teachers, is akin to the present case, which is for the Peons on contract basis, the same type of advertisement was issued for selecting the contract Peons in the present case. However, the Honble High Court while deciding the Writ Petitions dismissed the Applicants claim with the direction to the Respondent not to 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.
8. In the written submissions, the Respondent has submitted the following :-
The Department has taken up the matter with competent authorities for making regular appointments to the posts of Supervisor, LDC and Statistical Assistant. In the meanwhile, the Department also decided to make fresh engagement of Supervisors, Clerks/Typist and Peons, on contract basis, till the regularly selected persons are appointed. Moreover, it is pertinent to mention that the applicants contractual engagement was subject to mention that the applicants contractual engagement was subject to the condition that the department reserves the right to cancel the contractual engagement any time during their tenure without any notice. Accordingly, the department published an advertisement in the leading newspapers (a copy of the advertisement is enclosed at Page-28/C) for filling up the following posts on contract basis.
NAME OF POST NUMBER OF POSTS Statistical Assistant 31 Supervisor 108 Clerks/Typist 31 Peon 31 Here it is pointed out that the fresh engagement process is open for the present set of contractual appointees also, provided they fulfill the eligibility criteria. 1318 applications for the post of peon have been received up to the closing date. The Department, therefore, prays to the court to allow it to go ahead with the fresh contractual engagement process which has already been initiated.
9. Having considered the whole case, I come to the following facts which are undisputed:-
Applicants are on contract basis for the post of Peon on a consolidated salary.
The contract is for a specified period and has expired on 31.3.2009.
The Peons on contract are still working on the basis of the interim stay granted by this Tribunal.
The Respondent has begun the process of regular appointment to various posts including the Peons.
Applicants have also applied for the Peon Posts on contract basis.
The Respondent would consider the eligible Applicants along with others.
10. Learned Counsel for the Applicants would argue that such regular selection process for Peon Posts had not been started. On the contrary, Mrs. Gupta, informs that the posts of Peons would also be regularly filled up as per the Recruitment Rules but confronted with a question she hastened to add that she did not know the time frame in which such appointment would be done.
11. In view of the legal position in the matters of contractual appointment it is noted that the Government has the full right and powers to appoint persons on contract for a specified period. The Honourable Supreme Court in a recent judgment in Union Public Service Commission Vs. Girish Jayanti Lal Vaghela[2006 -AIR-( SC)1165] decided on 2-2-2006 citing its previous judgments decided that the persons employed on contract do not have any right to continue as such. The relevant para reads "In Director, Institute of Management Development v. Pushpa Srivastava ((1992) 4 SCC 33 : 1992 SCC (L&S) 767 : (1992) 21 ATC 377 : AIR 1992 SC 2070) it was held that where the appointment is purely on ad hoc basis and is contractual and by efflux of time the appointment comes to an end, the person holding such post can have no right to continue in the post. It was further held that this is so even if the person is continued from time to time on ad hoc basis for more than a year. In State of Haryana v. Surinder Kumar ((1997) 3 SCC 633 : 1997 SCC (L&S) 844) the Respondent were appointed as clerks on contract basis. They filed a writ petition in the High Court for their regularisation which was allowed and a direction was issued for payment of wages on the principle of 'equal pay for equal work' and also regularisation of their services. In appeal this Court reversed the judgment of the High Court holding that as the Respondent' recruitment was not made in accordance with the rules and they were appointed on contract basis on daily wages, they cannot have any right to the post as such until they are duly selected and appointed. This decision was followed by a three-Judge Bench in State of Haryana v. Charanjit Singh (JT 2005 (12) 475 CC 321) and it was held that where a person is employed under a contract, it is the contract which will govern the terms of contract of service and not the rules framed under Article 309 of the Constitution governing the conditions of service to the post on which he is employed. It is, therefore, clear that respondent No. 1 did not have any right to continue as Drugs Inspector after expiry of the six months period for which he had been appointed." The same stand was reiterated in Honourable Supreme Court judgment in B. Srinivasa Reddy Vs.Karnataka Urban Water Supply & Drainage Board Employees Association [2006 - AIR(SC)3106] decided on 28.8.2006 which laid the ratio that the Government has absolute right to appoint persons on contract basis. The Government has no doubt power to make contractual appointment until further orders. The power included the power to make appointment on substantive basis temporary, officiating basis, ad hoc basis, daily wages or contractual basis.
12. In the present case, the appointment is also for specified period and second round of advertisement has come to fill up 31 posts of Peons on contract basis with consolidated pay. The Applicants are 22 in number whereas the number of posts advertised are 31 in Peon category. This advertisement inter alia includes three more categories of posts and meant for specific projects. Even it is assumed that all the 22 applicants would be continued in the changed scenario of advertisement, still 9 more posts needs to be filled by the Respondent Government. The Applicants plea to quash and set aside such an advertisement would jeopardize the project interest and as such is not rational or logical in the eyes of law. It is also admitted by the parties that the present applicants are eligible and have applied for the same posts of Peon on contract basis. The counsel for the Applicant clearly indicates that in view of the judgment of Hon'ble Supreme Court in Uma Devi's Case, the applicants are not seeking regularization on the posts of Peons but only request continuance of their contractual appointment as Peon and replacement to be stopped. This argument does not sound good and rational since their may be some of the applicants who might not be working satisfactorily and as such the Respondent would have right to get them replaced and take new ones as peons on contract basis.
13. Taking into account the above facts and circumstances of the case and legal position on the controversy, I come to the considered conclusion that the Respondent Government has the power and right to appoint Peons on contract basis and they are to follow the laid down procedure including the advertisement. The Applicants have the legal right to be considered, if eligible otherwise for the said contractual posts of Peons but this doesn't give the right to the Applicants to continue endlessly.
14. The Respondent has the legal rights to terminate the contractual appointment as per the terms and conditions of contract. Further, the Applicants do not have legally enforceable right to continue on the post of contractual Peons when the period of contract has expired.
15. In the result, I do not find any merit in the Applicants case. The Advertisement dated 23.2.2009 and the notice dated 4.12.2008 issued by the Respondent are upheld as valid in law. As such, the Original Application is dismissed on merits with direction to the Respondent that if the Applicants fulfilled the eligibility criteria, having applied for the posts of Peons on contract basis in the said advertisement, they may be considered on merits as per the extant procedure. The interim stay granted by this Tribunal is vacated. No costs.
(Dr. Ramesh Chandra Panda) Member (A) /pj/