Central Administrative Tribunal - Jabalpur
Rohit Sharma vs Union Of India Through The Comptroller ... on 20 December, 2013
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
CIRCUIT SITTING : GWALIOR
ORIGINAL APPLICATION NO. 18 OF 2010
Gwalior, this Friday, the 20th day of December, 2013
HONBLE SHRI JUSTICE DHIRENDRA MISHRA, JUDICIAL MEMBER
HONBLE SHRI G.P.SINGHAL, ADMINISTRATIVE MEMBER
Rohit Sharma, S/o Late Shri P.N.Sharma,
Aged 35 years, Occupation Unemployed,
R/o Prem Kanchan Bhawan, Teli Ki Bajaria Kampoo,
Lashkar, Gwalior 474009. - Applicant
(By Advocate Shri Alok Sharma)
V e r s u s
1. Union of India through the Comptroller and
Auditor General of India, 10, Bahadur Shah Zafar Marg,
New Delhi 110002.
2. Principal Accountant General-I,
Office of Accountant General, M.P.Gwalior-474002.
3. Deputy Accountant General (Administration)
Office of Accountant General M.P. Gwalior-474002 Respondents
(By Advocate Shri J.P.Saxena)
O R D E R
By G.P.Singhal, A.M.-
The applicant has prayed for the following reliefs in this Original Application:-
(i) That, a direction may kindly be made to the Respondents to re-instate the applicant in service and after re-instating him, regularize his service at par with his co-employees namely Deepak Bajpai and Mahadev with all consequential benefits.
(ii) Any other suitable relief which this Honble Tribunal deem fit and proper in the circumstances of the case may also be given to the applicant along with cost of this litigation.
2. The brief facts of the case, according to the applicant, are that he was initially engaged in the year 1988 as Hot Weather employee. Thereafter, in the April, 1993 and the subsequent years till 1997, he was engaged as Casual Labour for certain periods every year. However, on 12.04.1997, the applicants services were terminated, which was challenged by him by filing Original Application No.831/1997. This Original Application was disposed of vide order dated 22.12.1997 (Annexure A-3) with the direction to pass a speaking order, in consequence of which, the respondents passed the order dated 24.3.1998 (Annexure A-4), wherein, the applicant was informed that he was disengaged as he was found to be overage for Casual Labour. Thereafter, the applicant filed Original Application No.450/1999, challenging the order dated 24.3.1998, which was disposed of vide the order dated 24.2.2004, with the following directions:
6(i) In the event the respondents have availability of work which has been earlier performed by the applicant, he shall be considered for re-engagement in preference to juniors and outsiders.
(ii) Respondents shall also consider regularizing applicant against group D posts subject to his eligibility and as per rules and availability of vacancy.
3. On non compliance of the order dated 24.2.2004 ibid, the applicant filed Contempt Petition No.01/2005. This petition was dismissed on the submission made by the respondents that, a decision has been taken by them to re-engage the applicant. It was further submitted therein by the respondents counsel that the applicant will be re-engaged immediately after he reports for the duty and thereafter he will be considered for regularization in accordance with rules and law. The applicant was thereafter re-engaged in service and has completed 280 days in the year 2006, 260 days in the year 2007 and 269 days in the year 2008. However, vide the order dated 16.4.2009 (Annexure A-8), the applicant, along with two other persons namely Deepak Bajpai and Mahadev, has been terminated from service.
4. The applicants contention is that he has completed more than 240 days service in an year, and therefore, as per the policy of Government of India dated 10.9.1993, he is entitled to grant of temporary status and regularization on a Group-D post. The applicant further submitted that the other two employees, Shri Deepak Bajpai and Mahadev, who were juniors to the applicant, have not only been reinstated back on duties but have been regularized vide the orders dated 29.9.2009 (Annexure A-11). These two persons, along with one Shri Govind Singh Bhadoriya, had filed Writ Petition No.14848/2006 before the Honble High Court of Madhya Pradesh, wherein, vide the order dated 4.11.2008, the respondents were directed to consider the case of the applicants for regularization. In compliance of this direction, these employees have been regularized. However, the applicant, in spite of clear direction of this Tribunal in OA No.450/1999, and submission made on behalf of the respondents in CCP No.01/2005, has not been regularized. The case of the applicant is also similar to that of these two employees who were also junior to him and therefore, the applicant too deserves to be regularized at par with these employees.
5. The respondents, in their reply, have submitted that in pursuance of Circular No.07 dated 9.2.2009 (Annexure R-1), casual workers/labours are now employed by outsourcing, w.e.f. 1.4.2009. Therefore, the applicant cannot be now engaged as casual worker by the respondents. The position of law on the issue of regularization of a casual labour is no more res integra after the judgment of Honble Supreme Court in the matters of Secretary, State of Karnataka Vs. Umadevi {(2006) 4 SCC 1}, wherein, it has been held that unless the appointment is in terms of the relevant rules, the same would not confer any right on the appointee. The applicant worked for only 58 days in 1988. Thereafter, he worked for 61 days in 1993, 72 days in 1994, 47 days in 1995, 13 days in 1996 and 12 days in 1997. Thus, he was never engaged for 240/206 days in any year and therefore, he cannot be considered for regularization. Though the applicant was engaged as casual labour after calling nomination from Employment Exchange, Gwalior, but, the nominations were called for work of Casual/Intermittent and Seasonal nature only and not for regular appointment as per the rules.
6. The respondents further submitted that the applicant does not get any benefit under the policy of 1993 (Annexure A-7) as, according to Clause 4 of it, such a benefit is available only to those employees, who were in employment on the date of commencement of the scheme, i.e. 10.09.1993, and had rendered a continuous service of at least one year, i.e. 240/206 days. The applicant was not in employment with the respondents on 10.9.1993 and had not completed 240/206 days of continuous service in any year up to the cut-off date i.e. 10.9.1993.
7. The respondents submitted that case of the applicant is not similar to that of Deepak Bajpai and Mahadev, and therefore, the applicant cannot claim any relief on that basis. However, the applicant and other similarly situated persons will be allowed to compete in the regular recruitment in Group-D cadre, in the light of direction dated 24.2.2004 given by this Tribunal in OA No.450/1999. Thus, the present Original Application, being without any merit deserves to be dismissed.
8. We have heard the learned counsel for the parties and perused the pleadings and documents annexed therewith. We have also gone through the written submissions filed on behalf of the applicant and the respondents.
9. The applicant has also filed Annexure A-16, A-17 and A-18 with his written submission. Thus, on 27.2.2013, the respondents were asked by us to clarify their stand in regard to these documents. In compliance of this direction, the respondents have filed their response on 23.9.2013. The respondents have clarified that the case of the applicant has no parity with the case of Deepak Bajpai and Mahadev. The Honble High Court has observed in the order dated 4.11.2008 in Writ Petition No.14848/2006(S) {Deepak Bajpai and others Vs. Union of India and others} that, Apex Court in Uma Devis case has held that such employee, who have worked for 10 years be regularized as one time measure. With respect to right of regularization, the decision of Honble Apex Court in Uma Devis case (supra) has not been properly appreciated by the CAT, though the Honble Apex Court has held that regularization is not a proper mode and cannot be made but at the same time the Honble Apex Court directed the regularization of an employee to be made in the exigency specified in the order passed by the Honble Apex Court. The Honble Apex Court has dealt with the matter of regularization and as one time measure, regularization of employees, who have rendered service more than 10 years, have been ordered.
10. According to the respondents, Shri Deepak Bajpai and Shri Mahadev Prasad have been regularized as they had completed 10 years of service up to 2006, when the decision in Uma Devis case (supra) was delivered, and therefore, their cases were covered by the judgment of Honble Apex Court in Uma Devis case. On the contrary, the applicant in the instant OA had not completed 10 years of service as Daily Wager up to the year 2006. Therefore, applicants case is not comparable with the cases of Deepak Bajpai and Mahadev.
11. The respondents have further clarified that the department has not made any recruitment from 2005 to 2010 on Group-D posts except as per the Honble High Courts direction dated 4.11.2008 given in Deepak Bajpai and Mahadev Prasads case. Thereafter, the applications for appointment to the post of Multi Tasking Staff were called through advertisement published in Employment News dated 17/23.04.2010. In response to it, the name of applicant was also considered by duly constituted selection committee and after consideration it was found that the applicants age on the closing date of notification, i.e. 16.05.2010, was 38 years, 8 months and 28 days. As per para 3 (B) (viii) of above notification, age relaxation to casual workers was granted for 10 years in upper age, and thus, even after granting this relaxation, the applicant was overage by 1 year 8 months and 28 days. Therefore, the applicant was not considered for appointment.
12. In regard to the applicants contention pertaining to the note-sheet dated 1.12.2006 (Annexure A-17), the respondents have submitted that in this note-sheet, orders were given to re-engage the applicant as Casual Labour as was the position of Deepak Bajpai and Mahadev Prasad and these orders were not for regularizing any person against Groupd-D post.
13. In regard to Annexure A-18 filed by the applicant, the respondents have submitted that the facts and circumstances of the case referred by the applicant i.e. Writ Petition No.3198/2007 are entirely different from the instant case and therefore, the judgment dated 20.11.2012 in that case is of no assistance to the applicant.
14. In regard to applicants contention that he is senior to Deepak Bajpai and Mahadev Prasad, the respondents submitted that no seniority list of Daily Wagers is maintained in the organization, as Daily Wagers do not hold any post. Daily Wagers are engaged according to the availability of work of casual nature and they are disengaged after completion of work.
15. During arguments, the learned counsel for the applicant submitted that the Honble Supreme Court in the case of Nihal Singh & Others Vs. State of Punjab & Others {2013 STPL (Web) 618 SC} has held that Uma Devi (supra) judgment cannot become license for exploitation by the State and its instrumentalities. The applicant in the instant case was engaged after calling nomination from Employment Exchange and he has continuously served the department for very long period. Since he was first time engaged in 1988, he is senior to Deepak Bajpai and Mahadev, who were first time engaged in 1992 and 1993. Thus, the respondents cannot take the shelter of the judgment in Uma Devis case for denying regularization to the applicant.
16. In Nihal Singhs case the matter involved was that of regularization of Special Police Officers (SPOs), who were enrolled under Section 17 of the Police Act, 1861. These SPOs were engaged continuously for very long period, by Government of Punjab, for posting with the Public Sector Banks, who paid for their remuneration. The powers, privileges and protection available to the SPOs appointed in exercise of the powers under Section 17 of the Act was similar to that of ordinary officers of Police. As regard to their process of selection for engagement, the Honble Apex Cour has observed in para 29, 30 and 32 thus:
29. The abovementioned process clearly indicates it is not a case where persons like the appellants were arbitrarily chosen to the exclusion of other eligible candidates. It required all able bodied persons to be considered by the SSP who was charged with the responsibility of selecting suitable candidates.
30. Such a process of selection is sanctioned by law under section 17 of the Act. Viewed in the context of the situation prevailing at that point of time in the State of Punjab, such a process cannot be said to be irrational. The need was to obtain the services of persons who had some experience and training in handling an extraordinary situation of dealing with armed miscreants.
32. Therefore, we are of the opinion that the process of selection adopted in identifying the appellants herein cannot be said to be unreasonable or arbitrary in the sense that it was devised to eliminate other eligible candidates. It may be worthwhile to note that in Umadevis case, this Court was dealing with appointments made without following any rational procedure in the lower rungs of various services of the Union and the States.
17. Thus, the facts and circumstances of the present case are quite different from Nihal Singhs (supra) case and the applicant does not get any benefit of Honble Apex Courts judgment in that case.
18. In the case of applicant, this Tribunal in its order dated 24.2.2004 ibid has given direction to consider his case for regularization against Group-D post, subject to his eligibility as per rules and availability of vacancy. The respondents have considered his case in 2010 in view of the notification issued for appointment on the post of Multi Tasking Staff published in the Employment News dated 17/23.4.2010 and the applicants case has been rejected, as he was found to be overage even after giving relaxation of 10 years in upper age limit, as provided in the employment notification. Since, the applicants case has no parity with the cases of Deepak Bajpai and Mahadev, as has been demonstrated by the respondents in their submissions, as he had not completed 10 years of service in 2006, the applicant cannot claim regularization on that ground also.
19. In view of the aforesaid discussions, we do not find any justification to grant the reliefs prayed for by the applicant in this Original Application. Thus, the OA is dismissed with no order as to costs.
(G.P.Singhal) (Dhirendra Mishra) Administrative Member Judicial Member am 7 OA No.18/2010 Page 7 of 7