Central Administrative Tribunal - Delhi
Ashok Kumar vs Govt. Of Nctd on 5 September, 2016
1 OA No.1312/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.1312/2015
New Delhi this the 5th day of September, 2016
HON'BLE MR. JUSTICE M.S. SULLAR, MEMBER (J)
HON'BLE DR. B.K. SINHA, MEMBER (A)
Shri Ashok Kumar
(Aged about 50 years)
S/o Shri Pritam Singh
R/o A-179, Sangam Park,
Rana Pratap Bagh, Delhi-110007. ...Applicant
Presently: Ex.Junior Engineer ( C)/DSIIDC
(Argued by: Shri R.A. Sharma, Advocate)
Versus
1. Delhi State Industrial & Infrastructure
Development Corporation Ltd. (DSIIDC)
Through Chairman-cum-Managing Director
N-36, Bombay Life Building Connaught Place,
New Delhi-110001
2. Delhi Subordinate Services Selection Board
(DSSSB),
Through its Secretary,
3rd Floor,
UTCS Building,
Vishwas Nagar,
Shahdara,
Delhi-110032.
3. Sh. Arun Kumar
JE (Posted in the office of EE/SWD),
DSIIDC Technical Centre Building,
Wazirpur, Delhi-110052.
4. Sh. Shyam Lal
JE (Posted in the office of EE/UC-I),
DSIIDC Technical Centre Building,
Wazirpur, Delhi-110052.
5. Shri D.D. Sharma
JE (Posted in the office of EE/CD-XXII),
DSIIDC Technical Centre Building,
Wazirpur, Delhi-110052.
2 OA No.1312/2015
6. Shri Sunil Dabas
JE (Posted in the office of EE/CD-3),
DSIIDC, MCD House Tax Building,
Lajpat Nagar, New Delhi-110052. ...Respondents
(By Advocate:Ms. Ishita Baruah for Shri Gaurang Kanth)
ORDER (ORAL)
Justice M. S. Sullar, Member (J) The challenge in this Original Application (OA), filed by the applicant, Ashok Kumar, is to the impugned order dated 10.03.2015 (Annexure A-1), by virtue of which his services were dispensed with by the competent authority.
2. The pith and substance of the facts and material, relevant for deciding the instant OA, and exposited from the record, is that, applicant, belongs to Scheduled Caste (SC) category. He was appointed as Junior Engineer (Civil) [for brevity "JE( C)"] on contract basis and on a consolidated salary of Rs.8400/-p.m., vide Office Memorandum dated 04.10.2000 (Annexure A-3. Colly.).
3. Thereafter, TA Nos. 261 and 262 of 2009, filed by the applicant and other similarly situated JEs, were disposed of, vide order dated 08.07.2009 (Annexure A-4) by a Co-ordinate Bench of this Tribunal. The operative part of the said order reads as under:-
"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".3 OA No.1312/2015
4. The Hon'ble High Court of Delhi, ultimately modified the order of this Tribunal in the following manner, vide order dated 09.01.2013 in Writ Petition (C) bearing No.14160/2009 (Annexure A-5):-
"27. Before issuing the formal direction we need to note that whereas the DSIDC correctly understood the law declared by the Supreme Court in Umadevi's case, much prior to when the opinion was pronounced in Umadevi's case inasmuch as on September 19, 2002 it made a request to the Government of NCT of Delhi to permit it, as a one-time measure, to regularize the services of people working as Engineers with it whose initial appointment was irregular but against vacant sanctioned posts, vide its response dated February 20, 2003 the Government of NCT of Delhi refused to accord the necessary approval.
28. Since appointment of the petitioners was irregular and not illegal, in that, their existed vacant posts of Engineers in DSIDC when petitioners were inducted as Engineers and the petitioners were qualified, we dispose of the writ petition confirming the impugned decision pronounced by the Tribunal but modify the same with reference to direction issued to advertise the posts and effect selection through DSSSB : by substituting the direction that the respondents would devise a suitable methodology to subject the writ petitioners to an induction test which would be designed with reference to application and not theory. Age relaxation benefit would be granted to the petitioners. As noted by us the fact not in dispute is that the petitioners possess the necessary educational qualifications.
28. Such petitioners who clear the selection process, which would be limited to the writ petitioners, would be inducted permanently against the posts they are currently holding.
29. The process be completed as early as possible and preferably within one year from today".
5. Meanwhile, the official respondents, i.e., Delhi State Industrial & Infrastructure Development Corporation Ltd. (DSIIDC), have dispensed with the services of the applicant, vide order dated 24.06.2013.
6. Feeling aggrieved thereby, the OA bearing No.956/2014 filed by the applicant was disposed of and the respondents were permitted to withdraw the impugned order dated 24.06.2013 (therein). However, they were directed to pay all the consequential benefits flowing from the withdrawal of the 4 OA No.1312/2015 termination order of the applicant, vide order dated 28.01.2015 (Annexure A-17) by this Tribunal.
7. Again, the Corporation-DSIIDC has issued impugned order dated 10.03.2015 (Annexure A-1) terminating the services of the applicant on the basis of Induction Test held on 04.12.2014, result of which was declared on 08.12.2014 (Annexure A-2).
8. Aggrieved thereby, the applicant has preferred the instant OA, challenging the impugned order (Annexure A-1) on the following grounds, invoking the provisions of Section 19 of the Administrative Tribunals Act, 1985:-
"(A) Because the Hon'ble Delhi High Court had directed the respondent Corporation to devise a suitable methodology to submit the petitioners in the WP (C) No. 14160/2009 to an induction test which would be designed with reference to application and not theory. But it is with great regret the applicant points out that the respondent Corporation never intimated nor circulated the methodology framed if any, for information of the petitioners in the writ petition, which was to be followed for conducting the induction test.
The petitioners were kept in dark even after the petitioners wrote letter (Annexure A-14), to the respondent Corporation as well as the DSSSB well before the date of induction Test. Everything was shrouded with mystery giving rise to suspicion. Thus, High Court's directions were violated with impunity. Therefore, the termination of the applicant by the respondent Corporation is bad in law, illegal and non-est. (B) Because the High Court had categorically directed that the induction test shall be restricted to the petitioners (in the Writ Petition) only. It is a settled law that a Court's order is to be (sic) implemented in the manner in which it is directed. On the contrary, the respondent Corporation has allowed (Private) respondents No. 3 to 6 also to sit for the said induction Test when they clearly were without any authority to do so. Therefore, the termination of the applicant is bad in law and the action of the DSIIDC stood vitiated on the above ground alone.
(C ) Because the act of the respondent Corporation to terminate applicant's services also stood vitiated by mala fide and bias in as much as had (private) respondents No. 3 to 6 not been allowed to participate in the induction test, the applicant might not have been rejected and his services might not have been terminated.
(D) Because the applicant possessed the required qualification of a Diploma in Civil Engineering for the post of JE (Civil) and during his service in the respondent Corporation, he had successfully supervised the construction of a large no. of works worth crores of rupees to the entire satisfaction of his superiors. Therefore, termination of the services of the applicant was bad in law, illegal and non-est. (E) Because the respondent Corporation had not specified and circulated for the information of the petitioners (in the Writ-Petition No. 14160/2009) 5 OA No.1312/2015 including the applicant about the maximum marks, minimum passing marks for the general as well as SC/ST category. Even no criteria for the reservation of posts for SC/ST candidates was decided nor acted upon. Rule 12 (d) (vii) of the DSIDC Ltd. (Staff Service) Rules, 1978 pertaining to Direct Recruitment provided that in the preparation of penal, the Selection Committee shall pay due attention to the circular/orders/instructions issued by the Delhi Admin./Central Govt. from time in the matter of the safeguarding adequate representation of members of the Scheduled Castes/Scheduled Tribes. It is pointed that applicant belongs to Scheduled Castes category and by terminating his service the protection guaranteed to the applicant under the constitution has been denied to him.
(F) Because the respondent Corporation has failed to act as a model employer so much so that it failed to recognize the fact that the applicant belonged to SC Category and comes from a lower strata of the society. He is of 50 years of age and has 8 members in his family to support, viz., besides himself, his wife, his 70 years old aged father, four daughters and one son, all going to school and he is not having other source of income except the contractual employment with the respondent Corporation. The Corporation has deprived the applicant his right to life which includes right to livelihood also. At this age, the applicant cannot get any employment and, thus, unfair and arbitrary action of the respondent Corporation has led the applicant and his family to starvation.
(G) Because the applicant had earlier challenged his termination vide order dated 24.06.2013 issued on the basis of a charge sheet dated 27.06.2012 without holding any inquiry and affording him a reasonable opportunity to defend against the alleged charges. The OA No. 956/2014 filed by the applicant in this Hon'ble Tribunal was allowed by the Tribunal vide order dated 28.01.2015 to the extent that the respondent Corporation shall withdraw the termination order dated 24.01.2013 & shall grant all consequential benefits of service flowing from the withdrawal of the termination order.
(H) According to the applicant, the impugned order (Annexure A-1) is arbitrary, illegal and without jurisdiction. On the strength of the aforesaid grounds, he has sought to quash the impugned order in the manner indicated hereinabove.
9. The respondents refuted the claim of the applicant. The respondents No.1 and 2 have filed their written statement, inter alia, pleading certain preliminary objection of the maintainability of the petition, cause of action and locus standi of the applicant, whereas remaining contesting respondents have filed their written statements, wherein it was pleaded, that the competent authority has held the Induction test in pursuance of the order of Hon'ble High Court, but the applicant remained unsuccessful. However, it was admitted that the department has enough vacancies to accommodate all 6 OA No.1312/2015 the work charged JEs. There were 52 available vacancies, which were to be filled by direct recruitment.
10. The case of the respondents further proceeds that, applicant and other similarly situated persons participated in the Induction test in pursuance of the order of Hon'ble High Court of Delhi. However, the applicant remained unsuccessful in the said test. Therefore, his services could not be regularized. The services of the applicant were stated to have rightly been dispensed with, vide impugned order (Annexure A-
1) in terms of appointment letter.
11. Virtually acknowledging the factual matrix and reiterating the validity of the impugned order, the respondents have stoutly denied all other allegations and grounds contained in the OA, and prayed for its dismissal.
12. Controverting the pleadings in the reply and reiterating the grounds contained in the OA, the applicant has filed his rejoinder. That is how we are seized of the matter.
13. As indicated hereinabove, the applicant has challenged the impugned order on various pleaded grounds, but during the course of argument, the learned counsel for the applicant has confined his argument only to the limited extent of parity with other similarly situated persons/applicants in OA No.465/2015 titled as Vineet Gaur & Others Vs. DSIIDC and Others decided on 18.05.2016 (Annexure A-18).
7 OA No.1312/2015
14. Learned counsel for the applicant, in this regard has contended with some amount of vehemence, that S/Shri Vineet Gaur, Ishwar Chand, Surjeet Singh and Kishan Sharma, similarly situated JEs, had filed the above mentioned OA in which termination orders were set aside and the respondents were directed to reengage the applicants (therein) in service, till all the existing vacancies of Junior Engineers are filled up on regular basis, vide order dated 18.05.2016 (Annexure A-18) by a Coordinate Bench of this Tribunal. Thus, he prayed that same benefit be granted to the applicant.
15. On the contrary, learned counsel for the respondents has fairly acknowledged, that although case of the applicant is covered but since the judgment of this Tribunal (Annexure A-
18) has not attained the finality, so he is not entitled for the same relief. Learned counsel for the respondents, has not placed on record, any material to show either the judgment of this Tribunal (Annexure A-18) was challenged or any higher court has stayed its operation.
16. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after considering the entire matter, we are of the considered opinion that the instant OA deserves to be partly accepted, in the following manner.
17. As is evident from the record, that applicant Vineet Kumar and Others, similarly situated JEs, had filed OA 8 OA No.1312/2015 bearing No.465/2015 in which it was held, that the applicants (therein) having participated in the Induction test conducted by Delhi Subordinate Services Selection Board (DSSSB), without any prejudice, cannot now contend that the said test was not conducted as per the direction of the Hon'ble High Court of Delhi, after they were declared unsuccessful. All other pleas of the applicants (therein) with regard to the conduct of Induction test were negated. At the same time, the respondents were directed to re-engage the applicants in service, vide order dated 18.05.2016 (Annexure A-18) by this Tribunal, which, in substance, is as under:-
"18. However, it is to be seen that the applicants initiated the legal proceedings seeking regularization of their services. The Hon'ble High Court noticing that the appointment of the applicants is irregular but not illegal, since they were possessing the requisite educational qualifications and were working against sanctioned posts, directed the respondents to conduct the induction test limited to the contract Junior Engineers and such contract Junior Engineers, who cleared the selection process, be inducted permanently against the posts they are currently holding. It is to be seen that the Hon'ble High Court, while passing the said orders, has not observed that if any of the petitioners failed to clear the selection process, their services, even as contractual Junior Engineers, should be terminated, and the respondents cannot utilise the services of the applicants even on contract basis against the available existing vacancies, even before the respondents fill up all the OA 465/2015 12 existing vacancies by way of regular recruitment, as per rules. It is also not the case of the respondents that there are no existing sanctioned vacancies and that there is no work or necessity to engage the applicants on contract basis even.
19. In the circumstances and for the aforesaid reasons, the OA is partly allowed. The impugned Annexure A (Colly.) termination orders dated 08.12.2014, are quashed and the respondents are directed to re-engage the applicants in service within 60 days on the same terms and conditions as they were working prior to the termination orders, till all the existing Junior Engineer (Civil) vacancies are filled up on regular basis. However, the applicants are not entitled for any arrears or benefits for the break period. The respondents are further directed to permit the applicants to participate in the selection process, along with others, if taken up by the respondents to fill up the vacancies on regular basis, by granting appropriate age relaxation, if required. No costs".
18. Meaning thereby, the case of the applicant is squarely covered and he is entitled to the same treatment/benefit, which was granted to the similarly situated persons in Vineet Gaur's case (supra), by this Tribunal on the Doctrine of 9 OA No.1312/2015 parity, particularly when it is not a matter of dispute that the vacancies of JE are still available.
19. Therefore, we are of the considered opinion that judgment (Annexure A-18) in case of similarly situated persons is relevant and applicant is also entitled to the same benefit/relief on the principle of stare decisis and parity, as enshrined under Articles 14 & 16 of the Constitution of India. This matter is no more res integra.
20. An identical question came to be decided by the Hon'ble Apex Court in case of Man Singh Vs. State of Haryana and others AIR 2008 SC 2481 wherein it was ruled that the concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equal is to be treated equally even in the matter of executive or administrative action. As a matter of fact, the Doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. It was also held that the administrative action should be just on the test of 'fair play' and reasonableness. The same view was again reiterated by Hon'ble Supreme Court in case Rajendra Yadav Vs. State of M.P. and Others 2013 (2) AISLJ 120.
10 OA No.1312/2015
21. Therefore, the protection under Article 14 and 16 of the Constitution of India and principle of equality, parity and the ratio of law laid down by Hon'ble Apex Court is mutatis mutandis applicable to the facts of the present controversy and is a complete answer to the problem in hand.
22. In the light of the aforesaid reasons, the OA is partly accepted. The impugned order dated 10.03.2015 (Annexure A-
1) is quashed and the respondents are directed to reengage the applicant in service within a period of 60 days on the same terms and conditions as he was working prior to the termination order, till all the existing vacancies of Junior Engineer (Civil) are filled up on regular basis. The respondents are further directed to permit the applicant to participate in the selection process, along with others, if taken up by the respondents to fill up the vacancy on regular basis, by granting appropriate age relaxation, if required on the same terms and conditions, as set out in the judgment dated 18.05.2016 (Annexure A-18). However, the parties are left to bear their own costs.
Needless to mention that applicant would not be entitled for any arrears of back wages for break-up period on the "principle of no work no pay".
(DR. B.K. SINHA) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J)
05.09.2016
Rakesh