Central Administrative Tribunal - Delhi
R.S. Atal vs Union Of India & Ors on 6 July, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH : NEW DELHI
O.A. NO.1576/2012
New Delhi, this the 6th day of July, 2012
Coram: Honble Dr. Veena Chhotray, Member (A)
Honble Dr. Dharam Paul Sharma, Member (J)
R.S. Atal,
S/o Late Shri Dharam Singh,
Working as Museum Lecturer,
National Museum, New Delhi
R/o H-15, Raja Bajar,
Gol Market, Sector-4,
New Delhi 110 001
..Applicant
(By Advocate: Shri M.K. Bhardwaj)
Versus
Union of India & Ors
Through
1. Secretary,
Ministry of Tourism & Culture,
Shastri Bhawan, New Delhi
2. Director General,
Department of Culture,
National Museum, Janpath,
New Delhi
..Respondents
(By Advocate: Shri Rajesh Katyal)
O R D E R
By Dr. Veena Chhotray:
The applicant working as a Museum Lecturer, re-designated as Assistant Curator (Education) in the National Museum, under the Union Ministry of Culture, is seeking the following reliefs through this OA.
8 (i) to quash and set aside the order dated 26.4.2012 (A-1).
(ii) to direct the respondents to consider the case of the applicant for regularization/appointment to the post of Asstt. Curator.
(iii) to direct the respondents to relax the recruitment rules of the post of Museum Lecturer (re-designated as Asst. Curator).
(iv) to declare the action of the respondents in making appointment to the post of Asst. curator (Education) on contract basis as illegal, arbitrary and unconstitutional.
2. The present order is being passed after hearing Shri M.K. Bhardwaj and Shri Rajesh Katyal, the counsels representing the applicant and the respondents respectively.
3.1 The brief background of the case is that the applicant had been appointed to the post of Museum Lecturer on ad hoc basis in the year 1996. This is a Group C post. The records reveal that the appointment in question had been made by inviting applications through the Employment Exchange and after circulating the vacancy among various departments and sanctional heads. Further, this was after due recommendation of the Departmental Selection Committee. The relevant Office Orders dated 27.9.1996 and 30.11.1996 have been enclosed with the OA respectively as Annex A/6 and A/7. As per the order it was a temporary appointment on ad 3hoc basis for a period of six months or the filling up of the post on regular basis, whichever is earlier. The applicant was appointed against this post.
3.2 Even though the Office Order clearly stated about the appointment being in the pay scale of Rs.1400-2300, the applicant was not granted the same and instead was paid only a monthly honorarium. It was only after the directions of the Tribunal in the OA 1438/2002, vide the order dated 28.1.2003, that the applicant was granted the benefit of the pay scale with arrears (Annex. A/3). At one point of time, the respondents had also under consideration the regularization of the applicant. In support, the copy of a letter dated 7.6.2003 addressed to the Registrar Meerut University requesting for providing the original MA certificate had been enclosed as Annex. A/2. Be that as it may, the services of the applicant were continued.
3.3 The applicant on his part had been agitating the claims for his regularization by approaching the Tribunal. Even in the aforesaid OA 1438/2002, the main prayer made was a direction for regularization of his services as a Museum Lecturer with consequential benefits. This however, had not been found tenable, as not being covered by the Recruitment Rules. In another OA No.516/2006 vide the Tribunals order dated 10.3.2006, while considering the case of the applicant, certain directions were issued regarding consideration of the case of the applicant after amendment of RRs and maintenance of the status quo in respect of the post held by him till that time. As these directions have been referred in their arguments and counter arguments by both the sides, we are extracting the relevant portions below:
2. In the earlier OA filed by the applicant, i.e. OA 1438/2002, Tribunal vide order dated 28.1.2003 while rejecting the request of the applicant for regularization as his case was not covered under the Recruitment rules, pay and allowances have been directed to be paid to him. By an order dated 12.2.2004, it was decided by the respondents on payment of arrears that as the post held by him is not in the feeder grade for the post of Assistant Curator (Education), he is not eligible. However, our attention has been drawn to letter dated 6.2.2004 issued with the approval of the Director General, National Museum wherein it has been decided on information to the applicant that case for filling up the post will be taken up after the necessary amendment of the Recruitment Rules. As no further process has been communicated, this OA stands disposed of with directions to the respondents to complete the process of amendment of Recruitment Rules within a period of three months from the date of receipt of a copy of this order and thereafter consider the case of the applicant. Till then, status-quo as of today shall be maintained in respect of the post held by the applicant. OA stands disposed of accordingly. A Writ Petition No.1966/2007 filed by the Respondent against the aforesaid order was withdrawn stating that the order had been implemented (Delhi High Courts order dated 16.4.2012, Annex. A-18).
3.4 The amended RRs were notified on 12.7.2008. Vide the Office Order dated 26.4.2012, the respondents issued the order that on consideration of his case in the light of the amended RRs, the applicant was not found to be eligible for the post of Museum Lecturer re-designated as Assistant Curator (Education). The two fold reasons given were: (i) the prescribed methodology being only direct recruitment and (ii) the maximum age limit being 30 years relaxable upto 5 years in case of Government servants. In addition, the following orders were also passed:
In view of this, Shri Rajvir Singh Atal, Gallery Attendant, National Museum is hereby directed to exclusively look after his duties in the Security Section. Henceforth, he need not attend to the occasional work of guiding the visitors. The Office Order was addressed to the applicant with the designation Gallery Attendant. It was also purported to have been passed in full compliance of the CATs directions dated 10.3.2006 in the OA 516/2006. This is the impugned order in the instant OA.
4. As the respondents had in the meanwhile initiated a process for filling up the post of Assistant Curator (Education) on contractual basis, the applicant once again approached the Tribunal through the present OA with the grievance that the Respondents were not finalizing the selection for the post in question and instead of continuing the applicant against the post, had reverted him to the post of Gallery Attendant. This was averred to be in violation of the Tribunals order dated 10.3.2006 in the OA 516/2006. On 1.6.2012, the following interim relief as prayed for in Para -9 of the OA was granted till the next date:
Pending final adjudication of the OA, it is most humbly prayed that this Honble Tribunal may be pleased to stay the impugned order dated 24.4.2012 and restrain the respondents from appointing outsiders against the post of Asst. Curator (Education) on contract basis.
5. The main contentions by Shri M.K. Bhardwaj, the learned counsel for the applicant, would be: (i) The act of the respondents in filling up the post not on regular basis but by resorting to contractual appointment. The Apex Courts judgment in Piara Singhs case (1992 AIR 2130), holding that a set of ad hoc employees cannot be replaced by another set would be cited; (ii) The applicant had been working since 1996 and was duly qualified for the post; (iii) The act of reverting the applicant to a group D post barely a few months before the date of his superannuation would be submitted as humiliating and prompted by mala-fide.
6. Opposing the claims in the OA, Shri Rajesh Katyal, the learned counsel for the respondents would submit: (i) The prayer for regularization was hit by res judicata in view of a similar prayer having been made in the OA 1438/2002 and the rejection of the same by the Tribunal on merit. The aforesaid order having attained finality for want of challenge by the applicant would also be submitted; (ii) The reliance by the applicants counsel on the directions of the Tribunal in the OA 516/2006 would be averred to be misplaced. As per Shri Katyal, the respondents had not only amended the Rules but also considered the case of the applicant in the light of the amended Rules, but not found him as eligible. The directions for maintenance of status quo in respect of the applicant against the post, were thus no more applicable; (iii) The applicant who had initially been appointed only on ad hoc basis would be submitted to have no legal claim to the post and could be reverted at any time. The decision of the Apex Court in Sodagar Singh vs State of Punjab & Ors; [1997] INSC 72 would be adverted to contend that an ad hoc employee had only a limited right and could not claim indefinite continuance. Further, the Delhi High Courts decision dated 11.11.2009 in WP (C) No. 1657/2007 (Shri Sant Ram & Anr vs UOI & Ors) would be referred to argue about the period of employment of ad hoc employees coming to an end as per the terms of employment and its by very nature such employees not acquiring any right; (iv) The decision of the respondents regarding age relaxation would be sought to be justified by citing the apex courts decision UOI & Anr Vs Arulmozhi Iniarasu & Ors {(2011) UBSC 588} and arguing that even engagement for a long period did not confer any legal rights on a person for seeking a mandamus for relaxation of age limit.
The main thrust of the respondents learned counsel would be on the applicant having no locus to question the modus operandi of filling up of the post.
7. We have carefully considered the facts of the case, the written submissions as well as the arguments by both the learned counsels. The following aspects are found to be relevant while taking a final view in the matter:-
7.1 The reliefs sought regarding regularization / appointment of the applicant to the post of Assistant Curator as per sub-paras (ii) and (iii) of para 8 are not found to be tenable, inter alia, as being barred by res judicata.
7.2 Qua the impugned order dated 26.4.2012, it is the segment relating to the order regarding the applicants functioning exclusively as a Gallery Attendant, that draws our attention. It is noted that the directions in question have been communicated without issuance of any formal reversion order.
These directions are found to be patently iniquitous for a variety of reasons: (i) The reversion from the post of Museum Lecturer, re-designated as Assistant Curator (Education) (a Group C post) to the post of Gallery Attendant (a Group D post) has been effected after the applicant having worked against it for nearly 18 years; (ii) The initial appointment of the applicant on ad hoc basis is stated to have been made after following due procedure. It is not a case of back door appointment; (iii) The applicant has been allowed to continue functioning against this post by the respondents for a long period, out of which only a small chunk was in pursuance of the judicial directions; (iv) As per the Tribunals directions dated 10.3.2006 in the OA 516/2006, the Respondents were directed to make necessary amendments in the Rules within three months and consider the case of the applicant thereafter. In this case the respondents have not only taken a much longer period of two years in amending the Rules, but thereafter also took another four years to consider the case of the applicant and issue the impugned order dated 26.4.2012; (v) The dislodging of the applicant from a post occupied for nearly two decades is not in the context of its being filled up by a regularly appointed person. On the other hand, this is only by making an appointment on contractual basis. As submitted by the respondents learned counsel, even the process for contractual appointment is in the initial stage of asking for applications and is yet to be finalized; (vi) The last and not the least, the directions for reversion have been passed barely three months before the scheduled date for superannuation of the applicant.
7.3 The emphasis by the respondents counsel on the legal aspects is found to represent only half the picture. It omits consideration of the aforesaid vital aspects. We find it appropriate to reiterate the observations of the Honble Apex Court in Man Singh Vs. State of Haryana and Ors.(2008 (1) Scale 750):
..any act of repository of power whether legislative or administrative or quasi judicial is open to challenge, if it is so arbitrary or unreasonable that no fair minded authority could ever have had it
8. For the foregoing reasons, the OA is partly allowed by quashing the impugned order dated 26.4.2012 to the extent of the portions In View of this, Shri Rajvir Singh Atal, Gallery Attendant, National Museum is hereby directed to exclusively look after his duties in the Security Section. Henceforth, he need not attend to the occasional work of guiding the visitors. Further, making our interim directions dated 1.6.2012 absolute, the respondents are restrained from appointing outsiders against the post of Assistant Curator (Education) on contract basis till 31.7.2012, the date of superannuation of the applicant. No costs.
(Dr. Dharam Paul Sharma) (Dr. Veena Chhotray)
Member (J) Member (A)
/pkr/m