Central Administrative Tribunal - Delhi
Gyan Prakash S/O Tura Ram vs Government Of Nct Of Delhi Through on 25 September, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.187/2008 M.A. NO.1545/2008 This the 25th day of September, 2008 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) 1. Gyan Prakash S/O Tura Ram, R/O B-661, New Seema Puri, New Delhi-110095. 2. Mukesh Kumar S/O Fateh Singh, R/O H.No.1164, Jatav Mohalla, Najafgarh, New Delhi-110043. 3. Ram Pratap S/O Ram Khelawan, R/O A-3/460, Nand Nagri, New Delhi-110093. 4. Jai Prakash S/O Tura Ram, R/O B-661, New Seema Puri, New Delhi-110095. 5. Deepak Kumar S/O Shriniwas, R/O Qr. No.2, B Block, Govt. Girls Sr. Sec. School No.1, Yamuna Vihar, Delhi-110053. 6. Rajesh Kumar S/O Kishan Lal, R/O A-200, Sector-1, Dwarka, New Delhi-110075. Applicants ( By Shri K. N. Bahuguna, Advocate ) Versus 1. Government of NCT of Delhi through Chief Secretary, Players Building, Delhi Secretariat, ITO Complex, New Delhi-110002. 2. Director of Education, Government of NT of Delhi, Players Building, Delhi Secretariat, ITO Complex, New Delhi-110002. Respondents O R D E R Justice V. K. Bali, Chairman:
Gyan Prakash and five others, part-time Safai Karamcharis, Malis, Chowkidars and Peons, have filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking direction to the respondents to engage them as freshers in service and regularize them.
2. Brief facts on the basis of which the relief aforesaid is sought to rest, reveal that the applicants were appointed as part-time workers. It is their case that while deploying them, recruitment procedure was followed as their names were sponsored by the employment exchange on demand of the respondents; they were interviewed by a duly constituted selection committee and engaged as Safai Karamcharis, Malis, Chowkidars and Peons; their salaries were to be paid out of the contingent fund; they were doing full time duties as their duty hours were from 7.00 am to 1.30 pm, i.e., from opening of the school till closing, like duties of teachers. It is further the case of the applicants that whereas, other part-time workers were continued in service, the respondents chose to terminate their services stating that there is a ban on recruitment. Such termination order came into being on 22.10.2002 (Annexure A/1). The plea of the applicants may be that their services were terminated by stating that there is a ban on recruitment, but the order dated 22.10.2002 annexed with the Application as Annexure A/1, insofar as the same is relevant, reads as follows:
The appointment of the following Part-Time Class IV Sweeper/Mali is in contravention of the order No.F.3/61/98/S-II/3344-49 dated 21.10.98 of Principal Secretary (Services). Accordingly all appointments of this category of people are banned with immediate effect. Aggrieved of the order aforesaid, applicants 5 and 6 herein along with many others, approached this Tribunal by way of two separate Original Applications bearing No.3206/2002 and 3170/2002 respectively. Both the Applications were dismissed vide Annexure A/2 order dated 25.8.2003. The operative part of the order contained in para 22 of the judgment reads as follows:
22. I also find that the DDE despite the ban had kept on engaging part time workers, as such they have been restrained from making any appointment on part time basis, failing which serious view was to be taken. The appointments of applicants being against the ban and being irregular and de hors the policy decision of Government would not vest any indefeasible right to continue further. As held by the Apex Court in Pavitra Mohan Das v. State of Orissa, (2001) 2 SCC 480 an irregular/illegal appointment cannot be perpetuated by issuing directions. Aggrieved, the applicant filed WP(C) No.3660-64/2004 before the Honble High Court of Delhi, wherein a direction was given to the respondents to consider engagement of the applicants, on the assurance of the respondents that they would engage them in service. The operative part of the order passed by the High Court dated 23.3.2004 reads as follows:
On consideration of the matter, respondents counsel was required to seek instructions whether they could accommodate these petitioners in case of need/requirement. Their counsel, Mr. Madan on instructions states that petitioners be considered for engagement as and when any such exercise was undertaken in efflux of time. Petition is dismissed. It is also directed that the petitioners can seek appropriate consideration for their engagement as and when any such exercise arise to their knowledge.
3. It is the case of the applicants that the respondents remained totally silent insofar as, engagement of the applicants is concerned, whereas they had regularized services of one Smt. Vidyawati who was a part-time employee and was being paid from PTA funds. The applicants have thus averred that the respondents did not engage them despite the assurance given by them before the Honble High Court. In the circumstances as mentioned above, the applicants filed another OA bearing No.1764/2004, and this Tribunal vide orders dated 23.7.2004 directed the respondents to consider their case for engagement. As the direction issued by this Tribunal was not complied with, the applicants filed a contempt petition bearing CP No.411/2004 in OA No.1764/2004. The respondents filed reply in the contempt petition aforesaid and along with that enclosed as Annexure R-1 copy of an order dated 9.2.2005, wherein it was inter alia mentioned that the ban imposed was still continuing and, therefore, it would not be possible to re-engage the applicants. It is the case of the applicants that the respondents have been engaging/regularizing contract employees in their various departments, while despite the orders passed by this Tribunal and the High Court, as mentioned above, they are not being engaged.
4. When the matter came up for hearing on 21.1.2008, we passed the following order:
After arguing for some time, counsel seeks adjournment to place on record the order that may have been passed by respondents in pursuance to directions given by this Tribunal in OA No.1764/2004 as also the order of this Tribunal passed in contempt matter arising from non-compliance of the orders in the OA, referred to above. List the matter for hearing as and when the needful is done. The applicants, on 22.9.2008, filed a misc. application bearing MA No.1545/2008 seeking revival of the case, wherein, besides some other documents, order dated 9.2.2005 has been annexed, which appears to be an order attached with the reply in CP No.411/2004. In the order aforesaid, after referring to the background of the case and various court cases filed by the applicants, it has been mentioned as follows:
Therefore, in the aforesaid facts and circumstances of the case and in implementation of the directions of the Honble CAT, the request of aforesaid persons for re-engagement as part-time employees has been re-considered. The policy of the Govt. to ban all part-time employees is still continuing. No exercise to engage any part-time worker in the Department has been initiated or in progress. It is, therefore, regretted that the request of the applicants for the re-engagement cannot be acceded. (Emphasis supplied).
5. No arguments at all have been raised to challenge the order dated 9.2.2005. In fact, this order ought to have been challenged, but, as mentioned above, the same has only been placed on record pursuant to directions issued by this Tribunal as reproduced above. The part-time engagement of the applicants was de hors the rules and in violation of the ban imposed, and the same would certainly not bestow upon them any right to seek re-engagement. It is the positive case of the respondents that no exercise to engage any part-time workers has been initiated or is in progress. All that has been pleaded is that the respondents have been engaging/regularizing contract workers. No particulars of such workmen have been given at all. That being so, nothing based upon the averment in the OA, as mentioned above, was urged before this Tribunal. Shri Bahuguna, learned counsel representing the applicants would only urge that one Smt. Vidyawati who was a part-time employee being paid from PTA funds has been re-engaged. In order to substantiate that Smt. Vidyawati has been appointed, an incomplete document starting with employee at serial number 483 (Smt. Raj Bala) up to 490 (Smt. Vidyawati) has been annexed with the misc. application mentioned above. When confronted as to where is the complete document that may show engagement of as many as 490 persons, no reply is forthcoming. What all we find from the document mentioned above is that against the name of Smt. Vidyawati at Sl. No.490, it has been mentioned that Court order No. OA 2722/99, CP-391/01 & OA 1500/02 dated 04.08.02. Age relaxation obtained vide order dated 17.10.2001 from Honble LG. As to what were the circumstances under which Vidyawati was appointed, what was the court case, and what were the directions issued therein or the order passed thereon, nothing at all has been mentioned. No case of discrimination on the basis of pleadings and documents referred to above is thus made out.
6. Before we may, however, part with this order, we may mention that with the OA at Annexure A/5, an order dated 1.10.2007 has been placed on record. The same shows that 20 peons who were engaged on contract basis were directed to report for duty to Deputy Director (ICDS), Department of Social Welfare, Government of NCT of Delhi, and six peons so engaged were directed to report to the concerned branch incharge. The applicants, surely, cannot compare their case with employees working on contract basis. If as per policy of the respondents no engagement of part-time workers is being made, and instead, if appointments on contract basis are being made, the applicants cannot complain of any discrimination meted out to them.
7. Finding no merit in this Application, we dismiss the same.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/