Central Administrative Tribunal - Delhi
Shri Ranvir Singh vs Delhi State Industrial Development ... on 24 February, 2010
Central Administrative Tribunal Principal Bench TA No.67/2009 New Delhi this the 25th day of February, 2010. Honble Mr. Shanker Raju, Member (J) Honble Dr. Ramesh Chandra Panda, Member (A) 1. Shri Ranvir Singh, S/o Sh. Sardar Singh, C/o Chandan Singh, Vill: & P.O. Madan Pur Dabas, Delhi-81. 2. Shri Inder Singh, S/o Sh. Balbir Singh, Vill: & P.O. Jaunti, Delhi-81. 3. Shri Rajesh Mathur, S/o late Sh. Lal Bahadur Mathur, 119, Lawrence Road, Jwar Market, Mall Road, Delhi-7. 4. Shri Naresh Kumar Vats, S/o Shri Parmanand, Vill: & P.O. Mundka, Delhi-41/ 5. Shri Gulam Nabi, S/o Shri Mohd. Umar, B-13, A.E.F., Okha, New Delhi-110025. 6. Shri Gambir Singh, S/o Shri Ganesh Pal Singh, C-1027, Sangam Vihar, New Delhi-62. 7. Shri Kishan Chand, S/o Shri Ram Rikhi, R/o 229/33-A, Mandowli, Delhi-92. 8. Shri Ashok Kumar, S/o Shri Rattan Lal Sharma, 139/3, Ganga Ram Nagar, Gali Bara Thakur Dwara, Delhi-32. 9. Shri Sat Dev, S/o Shri Mahesh Ram, 449, Budh Vihar Extn., Delhi. 10. Shri Jagat Singh Negi, S/o Shri Bachan Singh, D-905, Mangolpuri, Delhi-83. 11. Shri Mohan Lal, S/o Shri Ram Nath, C-7/55-A, Lawrence Road, Delhi-35. 12. Shri Kailash Chand Gupta, S/o Shri Munshi Ram, House No.R-18, Gali No.1, Swatantar Nagar, Narela, Delhi-40. 13. Shri Nafe Singh, S/o Shri Mange Ram, House No.3/472, Gali NO.1, Nai Basti Post Office, Bahadurgarh Rohtak (Haryana). 14. Shri Puran Chand Saini, S/o Shri Brij Lal Saini, 8348, Aryan agar, Paharganj, Delhi-55. -Applicants (By Senior Advocate Shri G.D. Gupta and Shri Piyush Sharma, Advocate along with him) -Versus- 1. Delhi State Industrial Development Corporation Ltd., through its Chairman, N-36, Bombay Life Building, Connaught Circus, New Delhi-110001. 2. The Managing Director, Delhi State Industrial Development Corporation Ltd., N-36, Bombay Life Building, Connaught Circus, New Delhi-110001. The Chief Secretary, Delhi Administration, Old Secretariat, Sham Nath Marg, Delhi. -Respondents (By Advocate Shri Rajeev Jain for Ms. Ruchir Mishra) O R D E R Honble Mr. Shanker Raju, Member (J):
Applicants, work charge employees, enjoying all benefits as admissible to regular employees, through this TA filed long back in 1999 had impugned respondents order dated 11.1.1990 whereby certain employees had been regularized as Assistant Grade-III (AG-III). Quashing of the aforesaid order with a direction to regularize them as Typists/Clerks w.e.f. 1980 with payment of wages on promotion as AG-III with seniority and consequential benefits from the date juniors have been accorded, are the reliefs claimed.
2. Applicants, who were engaged on daily wages as Mate/Pump Operator/Chowkidar during the period 1976-1999, possessed qualification from higher secondary to post graduation and had worked till 1990. In Delhi State Industrial Development Corporation (DSIDC) on 19.2.1980 an office order was issued appointing the applicants on minimum of the pay scales as work charge employees with different designations. On 2.7.1981 a circular was issued by the respondents whereby a decision was taken up to fill up the vacant posts of Junior Assistants amongst employees of various categories working on daily wages, work charge and regular employees. There has been a reference to the eligibility criteria of recruitment rules, i.e., higher secondary or equivalent with proficiency in typing. Whosoever interested was directed to send applications. Applicants applied for the same.
3. An office order dated 12.12.1983 was issued whereby a typing test was scheduled to be held on 8.1.1984 the officials working as AG-III, group D employees as well as daily wagers, who were yet to qualify typing test were allowed to appear in the test. However, a stipulation was added that mere qualifying the test would not be construed as eligibility for the test but would provide better chances for regularization in future as and when vacancy arises. Applicants, except applicant No.14, appeared in the typing test and had qualified it. Applicants from time to time performed the clerical jobs but were paid salary of work charge employee.
4. On representation as to regularization as Junior Assistants functions of that post had already been shouldered by the applicants and it had been informed to them by letter dated 10.7.1981 that they had to apply for the post as per circular of 1981 and qualify the typing test. As the respondents have invited applicants in interview, which was postponed from time to time, they consistently prayed through their representation for their regularization as per DSIDC Staff Service Rules, 1978. As per definition of employee even persons in regular service is construed to be an employee but a daily wager was not included. But there is no stipulation as to exclusion of the category of work charged employees. However, regulation 3 (iv) defines temporary employee who have not completed three years continued service. As per regulation at serial No.53 the post of Junior Assistant, Group C in the then pay scale of Rs.260-400 10% of the vacancies are to be filled by promotion from Group D employees having put in three years service in the Corporation with higher secondary or equivalent as an educational qualification and proficiency in typing with a speed of 30 w.p.m.
5. An order issued on 4.9.1992 entitled the applicants to all the benefits as admissible to regular employees but without change of their designation by Chairman-cum-Managing Director of DSIDC. An order passed on 11.1.1990 regularized certain daily wagers and employees who had appeared along with applicants in the typing test but applicants were not considered, ignoring their claim. A Writ Petition has been filed and on 11.10.1990 action to be taken by the respondents has been made subject to final outcome.
6. On 23.9.1992 in CM No.4859/90 on the basis of the contentions put-forth by the applicants that they had been working as Typists, Clerks, Supervisors for the last 10 years yet paid the salary of class IV Mate, affidavits have been sought from the applicants detailing the averments as to working of higher posts with documents, which had been complied with by the applicants.
7. On 23.4.1993 on CM-3357/1993 while putting the respondents on service applicants have been allowed to take written as well as typing test pursuant to the selection held for appointment to Group C posts vide circulars dated 28.1.1993 and 16.2.1993. On 14.5.2008 the short affidavit was called from respondents to indicate total number of posts of AG-III from 1st January onwards and also the vacancy position. It was also directed to state as to how many posts were filled through direct recruitment and whether 10% posts were filled through group D employees. It was also sought as to whether regular appointments were made after proper selection as prescribed in the recruitment rules and whether consequent to promotions made in 1990 there were any vacant posts of AG-III. This has not been responded to till the matter was transferred on assumption of jurisdiction to the Tribunal on 19.12.2008. An order passed on 3.9.2009 by the Tribunal accorded last opportunity to the respondents to file affidavit failing which their right shall be forfeited. When this has not been complied with, opportunity was forfeited by an order dated 8.12.2009. However, written arguments have been filed without seeking permission by the respondents yet taken on record on 8.12.2009 by the Tribunal.
8. Learned Senior Counsel Shri G.D. Gupta along with Shri Piyush Sharma by referring to the decision of a Division Bench of the High Court in Delhi Development Authority v. Virender Kumar Tyagi, 1997 VI AD (DELHI) 41 contended that once a person has shouldered higher responsibilities he cannot be denied pay of the higher post. Quantum proportion principle has been invoked by further relying upon the decision of the Apex Court in Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma, (1998) 5 SCC 87, it is stated that since 1980 applicants had been performing the duties of Typists/AG-III yet are to be paid salary attached to the posts. Learned counsel would contend that as per the recruitment rules applicants were eligible and on grant of regular status they are employees of DSIDC and having qualified on application the typing test, non-promotion to the posts of AG-III where juniors and even daily wagers have been regularized and appointed on regular basis, namely Lalit Mehta and Rajender Soni, Mates, exclusion of applicants is an invidious discrimination violative of Articles 14 and 16 of the Constitution of India. Learned counsel states that once in compliance of the High Court order affidavits of working on higher posts have been filed and on non-filing of reply by the respondents the pleadings are deemed to have been admitted. Learned counsel states that the respondents issued a circular on 4.9.1992 whereby all work charge employees are treated insofar as benefits are concerned in pari materia with regular employees of Corporation regarding pay scales etc. and in 1995 similarly situated work charge employees had been promoted as Junior Engineers, non-consideration of applicants on the ground that they are not the employees of the Corporation is not correct in law.
9. Learned counsel states that 10% of the vacancies shall have to be filled through promotion from Group D employees and as vacancy position has not been disclosed, as per Staff Service Rules, 1978, applicants are liable to be appointed as AG-III w.e.f. 11.1.1990.
10. On the other hand, learned counsel of respondents would vehemently oppose the contentions and stated that persons regularized vide order dated 11.1.1990 are those who had already been working on daily wages as AG-III posts, whereas applicants who are only Mate/Pump Operator/Chowkidar cannot claim regularization. It is stated that initial appointment of applicants was not following the rules and as they are not employees of Corporation they could not be considered as feeder category for promotion as AG-III. Their status is of work charge employees, even if getting the pay scale of regular employees. It is also stated that merely passing typing test, which has not given any right to appointment but right to future consideration, mere possession of educational qualification does not entitle applicants to claim regularization. It is stated that the decision of the DSIDC dated 2.7.1981 to fill up the vacant posts of AG-III and their subsequent order dated 12.12.1983 does not give any right to the applicants. Learned counsel would further contend that as per Regulation 2 (h) of the Regulations applicants do not fall within the definition of an employee and as for the last several years selection to these posts is done by DSSSB regularization not being a mode of appointment, reliance has been placed on a decision of the Apex Court in Secretary, State of Karnataka and others v. Umadevi and Others, (2006) 4 SCC 1 and National Fertilizer Corporation and others v. Somvir Singh, (2006) 5 SCC 493.
11. We have carefully considered the rival contentions of the parties and perused the material on record.
12. On quantum proportion principle and when equal pay for equal work has partaken the character of a Fundamental Right as per the decision of the Apex Court in State of Kerala v. B. Renjith Kumar, (2009) 1 SCC (L&S) 142 overwhelming evidence filed in the form of documents deputing the applicants to work as Supervisor/Clerk/Typist shows that despite their status of work charge Mate etc. of Group D posts the entire period from 1980 till date applicants have been assigned officially to discharge duties and responsibilities attached to the higher post. In the above view of the matter, non-filing of reply and affidavits filed by the respondents as per the direction of the High Court as well as the Tribunal we are competent in law to take an adverse inference in view of the decision of the Apex Court in Bharat Heavy Electric Ltd. v. State of U.P., (2004) SCC (L&S) 506. As such the contentions put-forth by the applicants as to their having discharged duties and responsibilities of the higher posts in Group C in various capacities not being refuted is deemed to have been accepted by the respondents. Accordingly, in the light of the decision of the Apex Court in Hariom Sharma (supra) and the decision of the Delhi High Court in Virender Kumar Tyagi (supra) applicants are entitled for difference of salary attached to the posts of their original status of work charge as well as the higher posts since the time they started performing their duties till date, denial thereof would infringe their statutory right.
13. As regards regularization, regularization to a Government servant on a civil post or under the Government whether an autonomous organization controlled by the Government, as in the present case, not being the mode of appointment, has been held to be illegal by the Constitution Bench in Umadevis case (supra). It has been further reiterated in Official Liquidator v. Dayanand and others, (2008) 10 SCC 1.
14. However, insofar as DSIDC Staff Service Rules are concerned, an employee in definition clause 2 (h) has been a person who is in whole time regular service of the Corporation but does not include a daily wager or a person having consolidated pay. It is relevant to know that the work charge employee does not come as an excluded category. Once the respondents themselves on 30.3.1995 appointed work charge Assistants as Junior Engineers in the promotion quota, there is no impediment for the applicants to be considered accordingly. Moreover, in 1990 those who had qualified the test earlier being daily wagers once considered for promotion under 10% quota applicants being eligible and the fact that even daily wagers were not coming under the category of employee, yet treating them as feeder category candidates their promotion causes invidious discrimination to the applicants, which cannot be countenanced under Articles 14 and 16 of the Constitution of India. Moreover, the applicants have been accorded a regular status as work charge employees for the last several years and had been utilized to discharge duties and responsibilities attached to the work charge status but had been performing the duties of the higher posts after having qualified in the test, where applications were invited even from work charge employees. On clearing the typing test and thereafter not considering them for promotion deeming them to be feeder category candidates whereas considering daily wagers merely because they are performing the duties of AG-III whereas applicants are also performing identical duties does not pass the twin tests of reasonableness enshrined under Article 14 of the Constitution of India. Segregating and discriminating applicants, work charge employees and daily wagers in the matter of their consideration for promotion despite availability of vacancies at that time simply on the basis of their designation held on daily wagers as AG-III, we do not find any intelligible differentia having reasonable nexus with the object sought to be achieved. As such, this non-consideration of the applicants is deprivation of their Fundamental Right for promotion. No doubt, the test held in 1981, which was qualified by the applicants, except applicant No.14, a subsequent notification of 1983 though stipulated that mere qualifying the test do not make them eligible for regularization but better chances of regularization in future and those counterparts, who qualified the test along with applicants when considered, non-consideration of applicants for regular appointments cannot be countenanced in law being discriminatory.
15. Applicants, who have been performing the duties attached to the higher post deserve consideration, which has been denied even without apprising despite direction of the High Court as to the factual position regarding filling up of the vacancies etc. is not only a willful disobedience of the directions but also lackadaisical attitude of the respondents is reflected, which constraints us to take an adverse inference in the circumstances.
16. Accordingly, noting the above constraints as per the decision of the Apex Court in Umadevi (supra) we dispose of this TA with a direction to the respondents to pay to the applicants difference of their salary within a period of three months from the date of receipt of a copy of this order, as discussed earlier in the body of the order and also consider appointing applicants by an apt methodology in law to the higher post on which duties had been entrusted to the applicants as Assistant Grade-III/JE on year-wise vacancies, deeming them to be employees of the Corporation from the date(s) identically situated have been considered in 1995 or earlier in 1990 by a speaking order to be passed within the aforesaid period. No costs.
(Dr. Ramesh Chandra Panda)) (Shanker Raju) Member (A) Member (J) San.