Central Administrative Tribunal - Chandigarh
Gurmeet Kaur Wife Of Sukhjit Singh vs Union Of India Through The Secretary To ... on 24 February, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
(Order reserved 20.01.2016)
O.A No. 060/00626/2015 Date of decision -24.02.2016
CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J)
HONBLE MR. UDAY KUMAR VARMA, MEMBER (A)
1. Gurmeet Kaur wife of Sukhjit Singh, resident of House No.85, G.K. Vihar, Dhandra Road, Dugri Ludhiana, posted as Stenographer, Grade-III in the Office of Commissioner of Income Tax Appeals-I, Ludhiana.
2. Anju Bala wife of Kamal Kumar, resident of House No.16, Near Rajinder Filling Station, Chandigarh Road, Samrala, District Ludhiana, presently posted as Stenographer, Grade-I, Principal Commissioner of Income Tax (Central), Ludhiana.
3. Amarpreet Kaur wife of Shri Yashpal Singh, resident of House No.157, Rail Vihar, Jalandhar, presently posted as Stenographer Grade-II in the office of Additional Commissioner of Income Tax (Central Range), Jalandhar.
4. Vandana wife of Rajesh Krich, resident of House No.158/7, Krishan Nagar, Jalandhar, posted as Stenographer, Grade-II, in the office of Joint Director of Income Tax (Investigation), Jalandhar.
5. Jeewan Lata wife of Vikas Gautam, resident of Quarter No.3, Type-3, Income Tax Colony, Jalandhar, posted as Stenographer, Grade-II, in the office of Joint Director of Income Tax (Investigation), Jalandhar.
6. Parminder Kaur wife of Charanjit Singh, resident of House No.189/5, Central Town, Jalandhar, posted as Stenographer Grade-II in the office of Joint Commissioner of Income Tax, Range-2, Jalandhar.
7. Baljinder Kaur wife of Sarbjit Singh, resident of C-6, Sewerage Board Colony, Model Town, Patiala, posted at Stenographer Grade-II, Commissioner of Income Tax, Patiala.
8. Ranjana Sahai wife of Vijay Kumar Manocha, resident of Hira Mahal (Near Bansal Hospital), Nabha, District Patiala, presently working as Stenographer in the office of Commissioner of Income Tax, Leela Bhawan, Patiala.
9. Karamjit Sigh son of Mukhtiar Singh, resident of village Rurka, Post Office Dehlon, District Ludhiana, posted as Stenographer Grade-II in the office of Principal Commissioner of Income Tax, Ludhiana.
10. Rajni Bala wife of Vinod Suri, resident of House No.41, Civil City, Chander Nagar, Ludhiana, posted as Stenographer, Grade-II, in the office Additional Commissioner of Income Tax (Central) Range, Ludhiana.
11. Brij Bhuhan son of Shri R.L. Sharma, resident of Krishna Street, Doraha Mandi, Ludhiana, posted as Stenographer Grade-II in the office of Director of Income Tax (Investigation), Ludhiana.
12. Simrenjit Kaur wife of Kultar Singh, resident of House No.300, Ward No.12, Purana Bazar, Fatehgarh Churian, District Amritsar, posted as Stenographer Grade-II in the office of Chief Commissioner of Income Tax, Amritsar.
13. Jasvir Kaur wife of Tejinder Singh, resident of House No.11299, Panditaan Wali Gali, Backside Khalsa High School, Bathinda, presently working as Stenographer Grade-II in the office of Commissioner of Income Tax, Bathinda.
14. Jaswinder Kaur wife of Malwinder Singh, resident of House No.13566, Street No.4, Ganesh Nagar, Bathinda, posted as Stenographer, Grade-II, in the office of Commissioner of Income Tax, Bathinda.
15. Anju wife of Subhash Kumar Garg, resident of House No.399, Outside Colony, Bathinda, posted as Stenographer Grade-II, Office of Commissioner of Income Tax, Grade-I, Bathinda.
APPLICANTS
BY ADVOCATE: Sh. I.D. Singla.
VERSUS
1. Union of India through the Secretary to Government of India, Ministry of Finance, North Block,
New Delhi.
2. Principal Chief Commissioner of Income Tax,
NWR, Aayakar Bhawan, Sector 17-E,
Chandigarh.
3. Principal Commissioner of Income Tax-I,
Ludhiana.
4. Principal Commissioner of Income Tax, Incharge of Examination, Aayakar Bhawan, Maqbool Road, Amritsar.
5. Principal Commissioner of Income Tax-cum-Incharge of Examination, Patiala.
6. Principal Commissioner of Income Tax, Bathinda.
7. Principal Commissioner of Income Tax, Jalandhar.
RESPONDENTS
BY ADVOCATE: Sh. K.K. Thakur.
ORDER
HONBLE MR. SANJEEV KAUSHIK, MEMBER (J):-
Fifteen applicants have jointly filed the present O.A invoking jurisdiction of this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 seeking quashing of Clause (d) of regularization order dated 23.05.2015 (Annexure A-1) which puts a condition for qualifying the skill test (Stenography) for regularization and subsequent proceedings arising therefrom as contained in letter dated 4/5.06.2015 (Annexure A-2) and letter dated 16/17.07.2015.
2. This is a second round of litigation where the respondents have passed the impugned order, though stated to be in furtherance of direction of Honble jurisdictional High Court to regularize services of the applicants in terms of law laid down in case of Secretary, State of Karnataka and Ors. Vs. Uma Devi and Ors., 2006(4) SCC 1 but they have imposed a rider in their order of regularization dated 23.05.2015 in Clause d that the applicants will have to clear the Skill Test (Stenography test; English/Hindi) as per Income Tax Department Stenographer Grade II (earlier Grade III) (Group C) Recruitment Rules, 2010 (in short 2010 Rules). The names of applicants who were fully eligible for appointment to the post of Stenographer, were sponsored by the Employment Exchange and they were selected and offered appointment way back in the month of June 1993 to October 1995 purely on temporary basis in basic pay of Rs. 1200/- + other allowances for 89 days but they are continuing with respondent department as such and now they have rendered more than 20-25 years of service with them. Earlier when the applicants approached this Tribunal with a prayer that their services may be regularized, the case was dismissed vide order dated 02.09.2005 which became subject matter before the Honble High Court in CWP No. 2895/CAT/2006 titled Vandana & Ors. Vs. Union of India and Ors. The said writ petition was allowed vide judgment dated 30.08.2011 with a direction to the respondents to consider the case of the applicants for regularization in terms of judgment of the Honble Supreme Court passed in case Uma Devi (Supra). It is the case of the applicants that when the respondents did not comply with the order of the Honble High Court, they were compelled to file CoCP No. 1004/2013 in the said writ petition and pending contempt proceedings, the respondents passed the order dated 13.05.2015 regularizing the services of the applicants but by imposing, inter-alia, an arbitrary clause (d) to qualify the Skill test in terms of Recruitment Rules 2010. Hence, the present O.A.
3. Sh. I.D. Singla, learned counsel for the applicants submitted that condition of clause (d) in order of regularization is nothing but colourable exercise of power at the hands of the respondents because when the respondents did not comply with order dated 30.08.2011 passed by the Honble High Court, the applicants filed contempt petition and when the respondents were summoned, only to avoid the contempt proceedings, they complied with the order by imposing the condition which otherwise cannot be done. Once they were directed to consider the cases of the applicants for regularization, same was to be considered under the rules which were existing at the time of entry into service of the applicants and they could not impose the condition which were not applicable to them under having come into force in subsequent rules. Once the suitability of the applicants had already been judged by the competent authority at earlier point of time and were found suitable for the post in question, then they cannot be subjected to such arbitrary test once again under the amended / new Rules to pass the Skill Test. While concluding his arguments, he submitted that this exercise of imposing clause d of passing skill test is nothing but to over reach the direction of the Honble High Court with a prejudiced mind.
4. The respondents have resisted the claim of the applicants by filing a detailed written statement wherein they submit that in furtherance of the judgment dated 30.08.2011 of the Honble High Court, the case of the applicants was considered in the light of the advice of the DoPT and orders of regularization were passed which are inconsonance with the provision of Recruitment Rules, 2010. It is also submitted that the applicants did raise any objection at that time, therefore, at this stage, they cannot be allowed to raise objection with regard to orders of regularization at this stage.
5. Sh. K.K. Thakur, learned counsel for the respondents vehemently argued that their cases for regularization have to be considered in the light of the Recruitment Rules, 2010 where condition of qualifying skill test is mandatory, thus, impugned clause is valid and O.A is liable to be dismissed.
6. We have given our thoughtful consideration to the entire matter and have perused the pleadings available on record with the able assistance of the learned counsel for the parties.
7. The applicants, herein as noticed above, were initially appointed purely on temporary basis in basic pay scale of Rs. 1200/-2040/- for a period of 89 days between June, 1993 and Oct, 1995. There is no dispute that their names were duly sponsored by the Employment Exchange and they have been continuing with the respondent department for more than 20-25 years. In the earlier round of litigation, their plea for regularization was accepted by the Honble High Court vide judgment dated 30.08.2011 and in terms of law laid down in case of Uma Devi (supra), directions were issued to the respondents to consider their cases as they fell in exceptions carved in para 53 of the Uma Devi (supra) judgment. The respondents have considered their cases for regularization by passing impugned order but have imposed a condition of qualifying skill test in terms of Recruitment Rules, 2010 which did not exist at the time of applicants entry in service for 89 days. A specific poser was made to the counsel for the respondents as to how they can apply rules retrospectively, which goes unanswered. Concededly the applicants are working with the respondent department and performing/discharging their duties of Stenographer from the last 20-25 years to entire satisfaction of the department. Had they not performed their duty to their superiors satisfaction, they would have been thrown out of the service. Even nothing adverse has been recorded against them till date. In absence of anything adverse against them, the respondents while regularizing their service cannot impose the condition under the amended Rules which were not available at the time of their initial appointment. It also sounds illogical that the persons who have rendered more than of 20-25 years service with the respondent department are subjected to a skill test of Stenography which has been made mandatory in 2010 Rules only. Moreover, 2010 Rules also talks of qualifying the skill test at the entry into service whereas the applicants are already in service and only now their cases have to be considered for regularization in terms of para 53 of Uma Devis case (supra). The Lordship of the Honble Supreme Court in case of Uma Devis case (supra) have considered entire law on the subject and have recorded a finding that if an employee continues in service for more than 10 years and his/her appointment is not illegal and is only irregularly, then his / her case is to be considered for regularization by taking a sympathetic view. After putting 10 years of service, they cannot be thrown out of service as they are not appointed through process of direct recruitment. While recording the findings in para 53 , their Lordships have clarified that there may be cases where irregular appointments (not illegal appointments) as explained in the cases referred therein, of duly qualified persons in duly sanctioned vacant posts have been made, then their cases are to be considered for regularization. A direction was also issued to Government to regular their services as a one time measure.
8. Since the names of applicants herein were sponsored by Employment Exchange as they were having requisite qualification, and accordingly, they were offered appointment, therefore, their cases is to be considered for regularization by the respondents and at this stage, they cannot put the condition of Clause d for passing Skill Test. In view thereof, we find substance in the arguments at the hands of the applicant that clause (d) of the impugned order is illegal and arbitrary and cannot be applied retrospectively. Accordingly, the same is hereby quashed and set aside. The O.A is allowed and the applicants may be granted consequential benefit thereon.
9. No costs.
(SANJEEV KAUSHIK) MEMBER (J) (UDAY KUMAR VARMA) MEMBER (A) Dated: 24.02.2016.
`jk 1 O.A No.060/00626/2015 (GURMEET KAUR & ORS. VS. UOI & Ors.)