Central Administrative Tribunal - Delhi
Sanjay Kumar Sharma vs Department Of Education on 27 February, 2025
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Item 68 (C-4) OA 469/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A No. 469/2022
Reserved on : 10.02.2025
Pronounced on : 27.02.2025
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member (A)
Sanjay Kumar Sharma
Aged about 47 years,
S/o Late Sh. Manohar Lal Sharma,
R/o T-21, Baba Faridpuri, West Patel Nagar,
New Delhi-110008
Mob. No. 9711953252
Post: Part Time PGT Vocational Teacher
Group - B ...Applicant
(By Advocate : Mr. Varun Mudgil with Ms. Eti Kushwaha M. Mohit
Mudgal and Mr. Rakesh Kumar)
Versus
1. Directorate of Education
Through its Director
(Vocational Education Branch)
Govt. of NCT of Delhi
2nd Floor Science Centre-3 Building,
Plot No. 3, Link Road,
Karol Bagh, New Delhi-110005
2. Govt. Boys Sr. Sec. School
Through its Principal
Govt. of NCT of Delhi
Sarai Rohilla, Delhi-110035
3. Govt. of NCT of Delhi
Through its Chief Secretary, Delhi Secretariat,
I.P. Estate, New Delhi-110002 ...Respondents
(By Advocate : Mr. H. A. Khan)
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Item 68 (C-4) OA 469/2022
ORDER
Per Hon'ble Dr. Sumeet Jerath, Member (A) :
The present OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs :-
"8 (i) Set aside the impugned Order No. DE-
45/Voc/CAT/2020-21/1314-16 dated 01.11.2021, whereby the claim of the applicant for regularization on the post of PGT Vocational Teacher was rejected by the Directorate of Education/Respondent No.1 herein;
(ii) Direct the respondents to consider the candidature of the applicant for regularization/confirmation/permanency on the post of Vocational Teacher PGT and, after such consideration, regularize/confirm (make permanent) the petitioner on the post of Vocational Teacher PGT w.e.f. the initial date of his appointment with all consequential benefits thereof including difference of arrears of salary, etc.;
(iii) Direct the respondents to pay exemplary compensation, litigation expenses and costs on account of harassment to the applicant; and
(iv) Pass any other order as this Hon'ble Tribunal may deem fit and proper in the interest of justice and in the favour of the applicant."
2. The crux of the case as per the counsel for the applicant is that the applicant was appointed as Part Time Post Graduate Teacher (PGT) Vocational Teacher w.e.f. 04.01.1996 through open advertisement after interview. As per the learned counsel, he fulfilled all the required qualifications in accordance with the Recruitment Rules (RRs) of 1995. Although, he was designated as 'Part time' employee, however, he was discharging the same duties 3 Item 68 (C-4) OA 469/2022 as has been discharged by regular permanent PGTs. Moreover, he was working on full time basis and was performing the same duties as performed by regular PGTs and there has been no distinction in the working of the applicant and that of other regular PGTs. He drew our attention to the Internal Noting dated Nil of the Superintendent, Vocational Education Branch, Directorate of Education, Govt. of NCT of Delhi, which proved that part time teachers are working as 'full time' contract teachers. As per the learned counsel, the applicant holds an unblemished service record and fulfills all the requirements of the RRs of the post in question. Also, the applicant gets salary in the minimum pay scale + DA as applicable to the regular PGTs. Though his salary was revised time and again however, his DA was never revised. At present the applicant is getting Rs.55,692/- as salary including DA (9300 + 4800 + DA@ 65%).
To ventilate his grievance the applicant sent a Legal Notice dated 09.07.2019 through his counsel to the respondents seeking regularization however, the same has not been answered yet. Aggrieved by which, he moved an OA wherein on objection had been raised by the Registry on its maintainability under Section 21 (1) (b) of the AT Act, 1985 which says that an applicant can only approach the Tribunal after a lapse of six months from the date of representation made to the authorities. The applicant was further 4 Item 68 (C-4) OA 469/2022 directed to wait till the expiry of six months. The said objection was upheld by the Tribunal vide order dated 01.08.2019. The OA No. 1067/2020 was disposed of on 17.08.2020 with the following directions :-
"3. The relief claimed in the OA is the one, of direction to the respondents to regularize the services of the applicant. In State of Karnataka vs. Uma Devi, the Hon'ble Supreme Court took exception to the continuance of the employees engaged on contractual basis indefinitely, particularly, against the regular vacancies. As a onetime measure, it was directed that wherever the employees continued for a period of 10 years as on the date of the judgment, against a regular post and he holds the requisite qualification, steps be taken for regularization of their services, by subjecting them to a process of selection. The question as to whether the respondents have framed any Scheme or whether the applicant was not successful in the subsequent selections, is a matter to be verified. We cannot direct the respondents straightway, to regularize the services of contract employees. Much would depend upon the policy decision taken by the Government in this behalf.
4. We therefore dispose of the OA leaving it open to the applicant to make a representation ventilating his grievance, within four weeks from today and direct that the respondents shall pass orders thereon within a period of eight weeks thereafter. We make it clear that we did not express any view on merits. There shall be no order as to costs."
[Underlining Added] Thereafter also the applicant preferred representation dated 09.09.2020 to the respondents which was rejected by passing a detailed impugned order dated 01.11.2021. He again represented through legal notice dated 07.02.2022 which is still pending disposal. Hence, the instant OA.
5Item 68 (C-4) OA 469/2022
3. Various grounds have been raised by the learned counsel of the applicant to support his case which are quoted below :-
'(a) The applicant is working continuously as a Vocational Teacher since 04.01.1996 till date i.e. for more than 25 years and, therefore, he is entitled to be regularized/confirmed in the post of PGT Vocational Teacher.
(b) The applicant fulfills all the requisite qualifications for appointment on the post of Vocational Teacher in terms of the Recruitment Rules framed in the year 1995.
(c) Non-regularization of service of the applicant amounts to unfair labour practice which is a punishable criminal offence under the Industrial Disputes Act, 1947.
(d) There are several posts of Vocational Teachers which are lying vacant against which the applicant can be absorbed/regularized.
(e) The Central Government has a policy of regularizing even a part time employee.
(f) The impugned action on the part of the Govt. of NCT of Delhi in not regularizing the service of the applicant on the post of Vocational Teacher is illegal, unjustified, arbitrary, discriminatory, punitive, unreasonable, unconstitutional, amounts to unfair labour practice, violative of Articles 14, 16 & 21 of the Constitution of India.' 6 Item 68 (C-4) OA 469/2022
4. To strengthen his case, learned counsel for the applicant relied upon various judgments of the Hon'ble Apex Court and Delhi High Court which are enumerated below :-
"1. In Secretary, State of Karnataka & Ors. vs. Uma Devi & Ors. dated 10.04.2006, 2006 (4) SCC 1, the Hon'ble Apex Court categorically declared that 'the employees who had worked for more than 10 years prior to 10.04.2006 were entitled to be considered for regularization in service as a onetime measure.'
2. In Sonika Gandhi and ors. vs. Govt. of NCT of Delhi & Ors. decided on 06.11.2013 in W.P (C) No. 6798/2002, the Hon'ble Delhi High Court categorically directed the Delhi Government to frame a policy for regularizing the services of all the contractual/temporary employee.
3. In State of Karnataka and Ors. vs. M. L. Kesari & Ors. in Civil Appeal No. 6208/2010 decided on 03.08.2010, the Hon'ble Apex Court held as under :-
"13. The Division Bench of the High Court has directed that the cases of the respondents should be considered in accordance with law. The only further direction that needs to be given, in view of Umadevi (3)1, is that the Zila Panchayat, Gadag should now undertake an exercise within six months, as a general one-time regularisation exercise, to find out whether there are any daily- wage/casual/ad hoc employees serving the Zila Panchayat and if so whether such employees (including the respondents) fulfill the requirements mentioned in para 53 of Umadevi (3)¹. If they fulfill them, their services have to be regularised. If such an exercise has already been undertaken by ignoring or omitting the cases of Respondents 1 to 3 because of the pendency of these cases, then their cases shall have to be considered in continuation of the said one-time exercise within three months. It is needless to say that if the respondents do not fulfill the requirements of para 53 of Umadevi (3)¹, their services need not be regularised. If the employees who have completed ten years' service do not possess the educational qualifications prescribed for the post, at the time of their appointment, they may be considered for regularisation in suitable lower posts.
14. This appeal is disposed of accordingly."
4. In Narendra Kumar Tiwari vs. State of Jhankhand & Ors. decided on 01.08.2018 - C.A No. 7423-29 of 2018, following has been observed by the Hon'ble Apex Court :- 7 Item 68 (C-4) OA 469/2022
"7. The purpose and intent of the decision in Umadevi was therefore twofold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3)^2 is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly 9 appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (3)^2 and Kesari³ sought to avoid.
8. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3)2, is to be taken into consideration then no irregularly appointed employee of the State of Jharkhand could ever be regularised since that State came into existence only on 15-11-2000 and the cut-off date was fixed as 10-4- 2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench.
9. The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the b point of view of the interest of the State, financial or otherwise the interest of the employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance.
10. Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation o of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularisation like misconduct, etc.
11. The impugned judgment and order passed by the High Court is set aside in view of our conclusions. The State should take a decision within four months from today on regularisation of the status of the appellants. The appeals are accordingly disposed of.8 Item 68 (C-4) OA 469/2022
12. We may add that that it would be worthwhile for the State of Jharkhand to henceforth consider making regular appointments only and dropping the idea of making irregular appointments so as to short circuit the process of regular appointments."
5. In Sheo Narain Nagar & Ors. vs. State or Uttar Pradesh & Anr. decided on 13.11.2017 - C.A. No. 18510 of 2017, following has been held by the Hon'ble Supreme Court :-
"9. The High Court dismissed the writ application relying on the decision in Umadevi (3. But the appellants were employed basically in the year 1993: they had rendered service for three years, when they were offered the service on contract basis; it was not the case of back door entry; and there were no Rules in place for offering such kind of appointment. Thus, the appointment could not be said to be illegal and in contravention of Rules, as there were no such Rules available at the relevant point of time, when their temporary status was conferred w.e.f. 2-10-2002. The appellants were required to be appointed on regular basis as a one-time measure, as laid down in para 53 of Umadevi (3)4. Since the appellants had completed 10 years of service and temporary status had been given by the respondents with retrospective effect from 2-10-2002, we direct that the services of the appellants be regularised from the said date i.e. 2-10- 2002, consequential benefits and the arrears of pay also to be paid to the appellants within a period of three months from today.
10. Impugned judgment and order and also order terminating the services are hereby quashed. The appeal is, accordingly, allowed. Pending application, stands disposed of."
5. To buttress his claim further, the learned counsel for the applicant handed over across the Bar a copy of the recent ruling of the Coordinate Bench of this Tribunal in OA No. No. 1987/2023 & batch dated 26.04.2024, the excerpt of which are as follows :-
"30. The applicant has sought regularization. Admittedly, she has been working for nearly eleven years continuously now. There is no adverse remark or comment qua her performance. Several other similarly placed employees of 9 Item 68 (C-4) OA 469/2022 the CAT have been regularized periodically. Why should applicant's case be treated differently? Further, by no stretch of imagination can this appointment be termed to be irregular. The applicant has been appointed through an established procedure by way of an open, transparent and fair selection process. She has been appointed on the approval of the competent authority who is no less than the Chairman of the Central Administrative Tribunal. Different Benches of the Tribunal have consistently held that employees who are appointed against sanctioned posts on regular basis by resorting to a transparent selection process have a bona fide claim for regularization.
33. In addition, the Tribunal in the said judgment had also relied upon the judgment of the Hon'ble Apex Court in the matter of State of Karnataka and Ors. v. M.L. Kesari and Ors. to establish that the engagement of the applicant should not be termed as irregular or illegal as defined by the Co-ordinate Bench of the Hon'ble Apex Court in Uma Devi's (supra) case. So would be the case in the present OA."
6. Rebutting the contentions of the learned counsel for the applicant, reply has been filed by the learned counsel for the respondents opposing the OA. The main contention of the respondents is that ever since the applicant was appointed, he worked as PTVT purely on contingent basis whose remuneration has been paid from the contingency fund which has been reflected in his appointment order. Thus it is evident that the applicant accepted the employment on his own volition with open eyes and now he cannot ask for regularisation. Further, the old vocational stream has been replaced by the National Skills Qualification Framework (NSQF), vide which the vocational teachers are hired through outsourced agencies and to do this task an expert committee has been constituted by the department to evaluate subject wise requirement of regular vocational teachers. About their 10 Item 68 (C-4) OA 469/2022 remuneration, learned counsel has also tried to clarify in his reply which is quoted below :-
"Earlier the PTVTs were getting payment on the basis of periods taken by them. Their remuneration was enhanced vide Cabinet Decision No. 1480 dated 08/10/2008 whereby the PTVTs were paid consolidated remuneration @ minimum of basic pay of the PGT+DA i.e. Rs. 13,160/- for qualified PTVTs and Rs. 11,140 for non Qualified PTVTs. In order to increase the remuneration, the PTVTs were allowed to take 32 periods per week. They were allowed to take periods of other similar subjects like SUPW/arrangement periods or other subjects as per their capability/qualification as the enhancement in remuneration of the PTVTS cannot be justified on the basis of the periods taken in only vocational subjects. The notification F.DE-45(847)VE/2008/161-370 dated 6th July 2009 stipulates that the assignment of 32 periods shall not make them eligible for claim of any regularization or any concessions i.e. leave, medical facilities etc. at par with the regular teachers under the Directorate of Education GNCTD.
The PTVTs were assigned 32 periods per week (including periods of Non-Vocational subjects) so that they may get a respectable amount per month. Therefore it is quite unfair to claim that the services of the PTVTs may be regularized on the basis of the 32 periods taken by them as out of these 32 periods most of the periods do not belong to vocational subjects. Whereas, the regular PGTs/teachers take the specified number of periods in their respective subjects."
Learned counsel highlighted that copious tasks/activities apart from teaching are to be done by a regular teacher unlike PTVTs who have much less work load than the regular teachers. Thus, their work cannot be compared and the PTVTs cannot be equated with a regular teacher. Also, the recruitment rules of 1995 of the PGT (Vocational) clearly stipulates that the method of their employment is 100% by way of direct recruitment.
Further, to strengthen his case, learned counsel relied upon DoPT OM No. 490147/7/2020-Estt.(C) dated 07.10.2020 which provides 11 Item 68 (C-4) OA 469/2022 that 'the fact that some persons had been working for a long time would not mean that they had acquired a right for regularisation'. He also relied upon a notification No. F.DE-45(847)VE/2008/161-370 dated 06.07.2009 which stipulates that 'the assignment of 32 periods shall not make them eligible for claim of any regularization or any concessions i.e., leave, medical facilities etc. at par with the regular teachers under the Directorate of Education GNCTD.
As regards the legal notice of the applicant dated 09.07.2019, it is stated that the same has already been answered by way of a detailed speaking order passed by the respondents. With regard to the representation and further litigation before this Tribunal, learned counsel for the respondents stated that while complying with the directions of this Tribunal in OA No. 167/2018, they have passed a well reasoned and detailed speaking order.
7. A copy of the ruling laid down by the Hon'ble Apex Court in the case of State of Rajasthan & Ors. vs. Daya Lal & Ors. in Civil Appeal No. 486/2011 dated 13.01.2011 has been handed over across the Bar during arguments by the learned counsel for the respondents in support of his arguments. The observations made therein and the conclusion are quoted below :-
"Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees. Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal, work. Nor can employees in private employment, 12 Item 68 (C-4) OA 469/2022 even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute. [Para 8] [718-G-H; 719-A-B] Conclusion
13. In view of the above, both the questions are answered in the negative and in favour of the appellants. Therefore, none of the respondents is entitled to any relief. All the appeals are allowed and the orders of the High Court challenged in these appeals are set aside. Consequently, the writ petitions filed by the respondents before the High Court stand dismissed."
Further, Hon'ble Supreme Court in State of Rajasthan & Ors. vs. Daya Lal & Ors. has considered the scope of regularization of irregular or part time appointments in all possible eventualities and laid down that 'well settled principles relating to regularization and parity in pay relevant in the context of the issues involved. Part time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be direction for absorption, regularization or permanent continuance of part time temporary employees. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution. Hence, the request for regularization of service of part time vocational teacher is strongly denied. Part Time employees are not entitled to seek regularization. There cannot be a direction for 13 Item 68 (C-4) OA 469/2022 absorption, regularization or permanent continuance of part-time vocational employees.'
8. Rebutting the reply, the learned counsel for the applicant has filed rejoinder reiterating the facts mentioned in the OA. He denied the contentions of the respondents and stated that the PTVTs and the applicant has to remain in the school full time i.e for the whole Eight Periods and has to do other duties like syllabus formation, CBSE Paper checking duties, On-Job Training during the month of May-June every year, and several other duties similar to the permanent PGTs working with the DoE i.e. the Respondent No.1. Moreover, the Hon'ble Lt. Governor of Delhi, reiterated vide order dated 08/07/2005, that recruitment would be done as per the notified Recruitment Rules (in short 'RR'). However, the respondents had deliberately not done any regular recruitment of Vocational Teachers in the GNCT of Delhi, in-fact they have resorted to engaging of Vocational Part-Time Teachers despite the RR's were notified in the year 1995.
9. To support his claim, learned counsel for the applicant relied upon the decision given by the Hon'ble Delhi High Court in LPA/286/2015 dated 23.05.2018 in Indu Munshi & Ors. v. Union of India wherein it has been held that 'the Kashmiri Migrants Teachers employed by the GNCTD and/or Municipal Corporation of Delhi on contractual basis shall be given the benefit of the 14 Item 68 (C-4) OA 469/2022 regularization as per the decision of Hon'ble Supreme Court in Secretary, State of Karnataka & Ors. v. Uma Devi 2006 (4) SCC 1.'
10. Heard the rival contentions of both the sides, went through the pleadings available on record and perused the rulings cited. We have observed that the applicant was appointed not against any sanctioned/permanent post of Vocational Teacher (VT), but against the temporary posts of Part Time Vocational Teacher (PTVT). The applicant fulfills the first criterion given in Hon'ble Supreme Court Judgments of Uma Devi and M. L. Kesari - meeting the minimum/requisite educational qualification for appointment to the post of Vocational Teacher (VT) but lacks in the second criterion of appointment to a sanctioned post. Thus clearly this case is different from the case considered in Uma Devi and M. L. Kesari. Also the job description, the tasks performed by Vocational Teachers (VTs) are different and more intense than those performed by Part Time Vocational Teachers (PTVTs). VTs teach for 32 periods to students who have opted for vocational studies and also do a host of other activities. PTVTs on the other hand not always teach for 32 periods and even if they do, they are allowed to take periods of other similar subjects as per their capability/qualification like SUPW/arrangement periods. This indulgence is shown by the respondents to the PTVTs so that they get a higher remuneration but they are not entitled to other perks like leave, medical facilities 15 Item 68 (C-4) OA 469/2022 etc which are enjoyed by the VTs under the Directorate of Education (DoE), GNCTD. There is also a new elephant in the drawing room. The respondents have replaced the old vocational system by National Skills Qualification Framework (NSQF) vide which Vocational Teachers are now hired through outsourced agencies. Thus, now there is no longer the 'Master-Servant' relationship or the 'Govt. employer - employee' between the VTs (employees) and Directorate of Education (DoE), GNCTD as employer. The new masters are the private contractors to whom the job of hiring vocational teachers has been passed on by the GNCTD.
11. Given the changed scenario now, DoE, GNCTD cannot be directed to consider regularizing the applicant for PTVT to regular VT. The balance of convenience in this case lies with the respondents. The instant OA lacks merit; deserves to be dismissed and is accordingly dismissed. There will be however no order as to costs.
(Dr. Sumeet Jerath) (Harvinder Kaur Oberoi)
Member (A) Member (J)
/Mbt/