Central Administrative Tribunal - Delhi
Mrs. Parveen Khan vs Govt. Of Nct Of Delhi on 15 September, 2009
Central Administrative Tribunal
Principal Bench
O.A. No.1184/2009
With
O.A. No.1461/2009
New Delhi this the 15th day of September, 2009
HONBLE MR.L.K.JOSHI, VICE CHAIRMAN(A)
HONBLE MRS.MEERA CHHIBBER, MEMBER(J)
1. Mrs. Parveen Khan,
Aged about 36 years,
W/o Sh.Waseem Khan,
R/o 149, Basti Khajah Meerdard
Buran Road, Delhi.
2. Talt Jahan
Aged about 44 years,
W/o Sh. Anjum Akher,
R/o 518, G.R.D.Nagar,
Laxmi Nagar, Delhi.
3. Parveen Sharma,
Aged about 44 years,
W/o Sh.Mudit Sharma
R/o 589, Gali No.38,
D.Molarband,
Bardarpur, Delhi.
4. Anita Kaushik,
Aged about 45 years,
W/o Sh.Rakesh Kaushik,
R/o D-38, East Uttam Nagar,
New Delhi.110059.
5. Poonam Sharma,
Aged about 43 years,
W/o Sh.Madanlal Sharma,
R/o K-159, Kangra Niketan
Vikas Puri, New Delhi.
6. Shashi Sharma,
Aged about 42 years,
W/o Sh.Purshottam Lal Sharma,
R/o B-1567, Shastri Nagar, Delhi.
7. Rashmi Bhatnagar,
Aged about 42 years,
W/o Sh.Rajesh Bhatnagar,
R/o J-74D,Ashok Vihar, Phase-I,
Delhi-110052.
8. Sunita Jain,
Aged about 40 years,
W/o Sh.Mukesh Kumar Jain,
R/o X/2780, Gali No.6C, Raghuwar Pura,
No.2, Gandhi Nagar, Delhi-110031.
9. Kusum Bala,
Aged about 40 years,
W/o Sh.Ram Ratan Singh,
R/o 8-A, Pocekt-12, DDA Flats,
Jasola, Delhi.
10. Manju Jhamb,
Aged about 37 years,
W/o Sh. Hukum Chand,
R/o D/5, 495, Sangam Vihar,
Delhi.
11. Pushpa Rani,
Aged about 44 years,
W/o Sh.Vijender Singh,
R/o Gali No.I House No.106,
Village Wazirabad Post Office Burari,
Delhi.
12. Nirmala Devi,
Aged about 29 years,
W/o Sh.Umesh Kumar Sharma,
R/o 348, Gali No.2, Chanderlok Colony,
Mandoli Road, Shahadra, Delhi-92.
13. Manju
Aged about 44 years,
W/o Sh.Omprakash,
R/o Y-1220, Mangol Puri,
New Delhi.
14. Indu
Aged about 47 years,
W/o Sh.Ashok Kumar,
R/o IG-II/76,
Vikas Puri, New Delhi.
15. Babli Nagar,
Aged about 42 years,
W/o Sh.Tej Pal,
R/o 17/145,Gali No.5,
Anand Parvat, New Delhi-05.
16. Bhagwati Rawat,
Aged about 38 years,
W/o Sh.Prem Singh,
R/o H.No.43,Gali No.I, Uttaranchal Enclave,
Kamalpur, Burari, Delhi.
17. Shanta,
Aged about 42 years,
W/o Sh.Naresh Kumar,
R/o 470,Type-I, Gulabi Bagh,
Delhi-07.
18. Geeta Devi,
Aged about 43 years,
W/o Sh.Ramesh Kumar,
R/o D-64, Yadav Nagar,
Sameypur, Delhi-42.
19. Babita,
Aged about 41 years,
W/o Sh.D.K.Goswami,
R/o 124-C, G&J (U), Pitam Pura,
Delhi.
20. Vijay Laxmi
Aged about 44 years,
W/o Sh.Raj Kamal Sharma,
R/o D-Block, Gali No.5, House No.82,
Omnagar, Delhi-44.
21. Krishna Sharma,
Aged about 42 years,
W/o Sh.Sanjay Sharma
R/o A-86/3, Sourab Vihar, Jaipur,
Badarpur, New Delhi-44.
22. Nasrin Bano,
Aged about 44 years,
W/o Sh.Mohd. Yusuf,
R/o B-46/3, Abul Eayal Enclave,
PointII, Okhla, New Delhi.
23. Munesh Rani,
Aged about 41 years,
W/o Sh.Gazander Singh,
R/o A-316, Mandoli, Bhudha Marg,
Delhi.
24. Uma Bist,
Aged about 41 years,
W/o Sh.Manohar Singh,
R/o B-33, Gali No.2, Laxmi Nagar,
Delhi.
25. Anita Bindal,
Aged about 42 years,
W/o Sh.Satish Bindal
R/o B-51, Molar Band Village,
Near Bharti Public School, Delhi.
26. Jaya Jastlo,
Aged about 42 years,
W/o Sh.D.C.Joshi,
R/o F-35, Dilshad Garden,
Delhi.
27. Kusum,
Aged about 41 years,
W/o Sh.Kishore Kumar,
R/o E-2/437, Nand Nagari,
Delhi.
28. Kamlesh,
Aged about 40 years,
W/o Sh.Laxmi Chand,
R/o 13/367, Geeta Colony,
Delhi.
29. Parvati,
Aged about 46 years,
W/o Sh.Vishnu Singh
R/o 5/180, 3rd Floor,
Subhash Nagar, Delhi.
30. Saroj
Aged about 43 years,
W/o Sh.Krishan Kumar,
R/o H.No.958, Pana Paposion,
Narela, Delhi-40.
31. Nirmala
Aged about 42 years,
W/o Sh.Vijay,
R/o H.No.499, Pana Nagar,
Narela, Delhi. .. Applicants
(By Advocate: Shri G.D. Gupta, Sr. Counsel with Shri S.K. Gupta)
Versus
1. Govt. of NCT of Delhi
Through Chief Secretary,
Delhi Secretariat,
I.P.Estate,
New Delhi.
2. Secretary,
Directorate of Social Welfare,
Govt. of NCT of Delhi
Delhi Gate, Delhi.
3. Director,
Department of Women and Child
Development,
Directorate of Social Welfare,
1, Canning Lane,
New Delhi-1. Respondents.
(By Advocate: Mrs. Pratima Gupta)
OA-1461/2009
1. Sulekha D/o Sh.Bhagwas Das,
R/o C-1/48 Raju Colony,Devli Road,
Khanpur, Delhi-62.
2. Ravi Prakash S/o Sh.Chaturbhuj Tiwari
R/o M Block, H.No.159, Sunder Nagri
Shahdra, Delhi-93.
3. Beena Rani D/o Sh.C.Lal Bhardwaj,
R/o 82 A LIG Flats Pocket-E,
GTB Enclave, Nand Nagari, Delhi-92.
4. Parul Kaushik D/o Sh.R.P.Kaushik,
R/o C-I/57 Krishna Vihar,
Delhi-86.
5. Deepika Sharma D/o Sh.I.K.Sharma,
R/o C-44/245B, Street No.12
Gamri Extension, Delhi-53.
6. Pratibha Kaushik D/o Sh.Ramesh Chandra Kaushik,
R/o H.No. 557/5, Haider Pur
Delhi-88.
7. Deepika, D/o Sh.Shiv Kumar Verma
R/o RZD 1A/12A, Gali No.5,
Mahavir Enclave, New Delhi.
8. Preeti Verma D/o Sh. Om Prakash Verma
R/o RZF-100 Gali No.41, Sadhnagar,
Palam Colony, New Delhi-45. . Applicants
(By Advocate: Shri U. Srivastava)
Versus
1. Govt. of NCTD through
The Chief Secretary
Govt. of NCT of Delhi, Delhi Secretariat
New Delhi
2. The Secretary,
GNCT of Delhi, Department of Women and
Child Development,
1-Canning Lane, K.G. Marg,
New Delhi.
3. The Deputy Director Admn.
Department of Social Welfare
Govt. of NCT Delhi,
GLNS Complex, Delhi Gate,
New Delhi. . Respondents
(By Advocate: Mrs. Pratima Gupta)
ORDER
By Honble Mrs. Meera Chhibber, Memebr (J) Since in both these OAs, facts are common and question of law raised is same, therefore, with the consent of all the parties, they are being decided by a common judgment. For the purposes of narrating facts, OA No. 1184/2009 is being taken as lead case.
2. OA No. 1184/2009 has been filed by 31 applicants, who had originally claimed the following relief:-
(i) to quash the fresh advertisement dated 23.2.209 (Annexure A-10), to the extent the respondents are intending to fill up the post of Supervisor Grade-II (Woman) as the applicants are already holding since September, 2007;
(ii) to declare the appointment of the applicants as regular, being in the quota of Anganwari Workers as per Statutory Rules, right from September, 2007 with all consequential benefits like salary, seniority etc. and treat the appointment of the applicants on contract basis and on consolidated salary as misnomer and contrary to well established principle of law; and
(iii) to further declare that under the circumstances, the applicants cannot be allowed to undergo the process of fresh selection to the post of Supervisor Grade-II (Woman) and they are entitled to continue on the post of Supervisor Grade-II (Woman) which they are holding in their quota of Anganwari Workers as per Recruitment Rules.
3. However, today when the matter was called out, counsel for the applicants fairly conceded that the applicants are not insisting for relief No.(ii) and (iii) in view of settled law by Honble Supreme Court in the case of Secretary, State of Karnataka and Ors. v. Uma Devi and Ors. reported in 2006 (4) SCC 1. All that they are praying is, that since they were appointed on contract basis as Supervisor Grade-II (Women) and have been working satisfactorily, they should not be replaced by another set of contractual employees specially when there is a specific provision in the RRs for reserving 25% of the posts of Supervisors Grade-II for Anganwari Workers with 10 years of service with matriculation.
4. The brief facts as stated by the applicants are that they were initially engaged as Anganwari Workers and had completed more than 10 years of service as Anganwari Workers. An advertisement was issued by the respondents in August, 2007 (page 38A) for filling up 88 posts of Supervisors on contract basis for six months on a consolidated salary of Rs.9,000/- (page 38-A). Since all the applicants fulfilled the requirement as mentioned in the above said notice, they applied and were duly selected and were appointed on contract basis for six months (page 40). Learned counsel for the applicants invited our attention to page 42 to show that even the approval of competent authority was taken before engaging the applicants and for fixing their salary. From this order it is clear that most of the applicants were engaged since September, 2007. These posts were increased to 183 vide order dated 14.11.2007 page 36-B. It is specific case of the applicants that the contract engagement of the applicants was extended from time to time. Respondents issued order dated 4.12.2008 whereby their contract appointment was extended up to 31.3.2009 but in this order it was specifically mentioned that their services would be discontinued after 31.3.2009 without any formal order. Even though respondents had extended the appointment of the applicants up to 31.3.2009 by the above said order, yet their appointment was further extended up to 30.6.2009 vide subsequent order dated 26.3.209 (page 56). In this order once again it was reiterated that their services would stand discontinued after 30.6.2009 without any formal order.
5. The grievance of the applicants in this case arose, when respondents issued another advertisement dated 23.2.2009 (page 52) for filling up 108 posts of Supervisors afresh on contract basis for six months.
6. It is strenuously argued by the learned senior counsel for the applicants that initially the posts of Supervisor were 88 when the first notice was issued but on 14.11.2007 (page 36-B) these posts were increased to 183. Now respondents are resorting to fresh engagement of Supervisors once again on contract basis. He strenuously argued that one set of contractual employees cannot be replaced by another set of contractual employees, therefore, advertisement dated 21.3.2009 as far as it relates to the Supervisors is liable to be quashed and set aside. He conceded that the applicants can be replaced by regularly selected Supervisors.
7. He relied on the judgment of Honble Supreme Court in the case of State of Haryana Vs. Pyara Singh reported in 1992 (4) SLR 770 and judgment of Honble High Court of Delhi in the case of Dalip Kumar Jha and Others Vs. New Delhi Municpal Council decided on 1.9.2006.
8. Respondents have opposed this OA. They have explained that the Department of Women & Child Development was bifurcated from Department of Social Welfare on 14.11.2007 in principle and w.e.f. 1.1.2008 for all practical purposes. Since it was a newly created department and the ICDS Projects were functioning under this department, they were facing teething problems. Moreover, the cadre controlling authority still vests with the Director, Social Welfare, therefore, in compliance with the directions given by the Honble Supreme Court in the case of Peoples Union for Civil Liberties Vs. Union of India and Others, contractual appointments were made in various categories of staff on six monthly basis.
9. Department has already taken up the matter with Delhi Subordinate Services Selection Board (hereinafter referred to as DSSSB) for making regular appointments to the post of Supervisors, LDCs and Statistical Assistants. Simultaneously it was also decided to make fresh engagement of Supervisors, Clerks/Typists and Peon on contract basis till the regularly selected persons are appointed. Since applicants were appointed on contract basis for six months only, they have no right to continue on the said posts beyond the period of their contract. The fresh engagement process will be open to the present set of contractual employees also provided they fulfilled the eligibility criteria. DSSSB has received 1699 applications for the post of Supervisors so far. They have thus stated that the applicants have no right to continue in the post of Supervisors beyond the date of their contract nor can they continue on the said posts indefinitely or claim regularization on the said posts. They have relied on the judgments given by this Tribunal in the case of Amit Kumar Sharma and Others Vs. Government of NCT of Delhi in OA No. 607/2009 decided on 27.5.2009 and also in the case of Ruchi Singh and Others Vs. Ministry of Social Welfare and others decided on 10.8.2009. They have thus prayed that the OA may be dismissed.
10. Counsel for the respondents produced for our perusal letter dated 30.4.2009 issued by the DSSSB to show that the recruitment process has already been initiated by the respondents for regular appointment.
11. Counsel for the applicants vehemently argued that the Division Bench of Honble Mr. Shanker Raju, Member (J) and Honble Dr. Veena Chhotray, Member (A) had placed reliance on the judgment of Honble Supreme Court in the case of Harminder Kaur & Others Vs. U.O.I. & Others reported in 2009 (7) SCALE 204 while dismissing the said OA but that judgment has been misread and does not help the respondents in view of the only relief pressed by the applicants now. On the contrary this issue is decided in favour of the applicants. Similarly he took us through the various judgments referred to in OA No. 607/2009 for example Union Public Service Commission Vs. Girish Jayanti Lal Vaghela reported in 2006 AIR(SC) page 1165, Director, Institute of Management Development Vs. Pushpa Srivastava reported in 1992 (4) SCC 33, State of Haryana Vs. Surinder Kumar reported in 1997 (3) SCC 633, State of Haryana Vs. Charanjit Singh reported in JT 2005 (12) 475 CC 321 and B. Srinivasa Reddy Vs. Karnataka Urban Water Supply and Drainage Board Employees Association reported in 2006 AIR (SC) 3106 to demonstrate that those judgments are not relevant inasmuch as the question raised by the applicants now is concerned viz. that one set of contractual employees cannot be replaced by another set of contractual employees. Moreover, he submitted that in OA No. 607/2009 reliance was placed by the applicants therein on the judgment of Honble High Court of Delhi in the case of Dalip Kumar Jha and Others Vs. New Delhi Municpal Council decided on 1.9.2006. Though it was noted by the Tribunal but it has not been discussed ultimately and the question whether one set of contractual employees could have been replaced by another set of contractual employees has not been dealt with. Learned counsel for the applicants thus prayed that the OA may be allowed.
12. We have heard both the counsel and perused the pleadings as well as the judgments relied upon by both the counsel.
13. It is not disputed by the respondents at all, that as on date, there are 183 posts of Supervisors Grade-II (Women) with the respondents and they have advertised on 23.2.2009 108 posts of Supervisors to be filled on contract basis only (page 53). The only question which has been argued and needs consideration by us is, whether it is open to the respondents to replace one set of contractual employees with another set of contractual employees, that too when process for regular appointment has already been initiated. This need not detain us for long as this issue has already been decided by the Honble Supreme Court followed by Honble High Court in number of cases. In State of Haryana Vs. Pyara Singh reported in 1992 (4) SLR 770 and Dr. A.K. Jain and Others Vs. U.O.I. and Others reported in 1987 (Supp) SCC 497. Honble Supreme Court had categorically observed that one set of contractual employees should not be replaced by another set of contractual employees unless it is found by the authorities that the persons working on contractual basis are not working satisfactorily. Of course, contractual employees can always be replaced by regularly selected persons. Even in the case of Harminder Kaur (Supra) Honble Supreme Court had held as under in the operative portion:-
We were, however, informed that 800 posts of teachers are lying vacant. Ms. Kamini Jaiswal informed that the Administration is ready and willing to fill up the said posts on a regular basis. While doing so, we have no doubt in our mind that the cases of the appellants shall also be taken into consideration and the Administrator may consider the desirability of relaxing the age limit provided for in the Rules.
14. If the facts of the present case are tested in above backdrop, we find applicants had been working with the respondents on contract basis with effect from September, 2007 initially for 6 months but the period was extended from time to time. It is not the case of the respondents that any of the applicants is not working satisfactorily with them. The only stand taken by them is that since applicants were appointed on contract basis they have no right to continue beyond the period of their contract. It is true that when the person is appointed on a contract basis for a limited period, his appointment comes to an end on the expiry of the said period and thereafter a person cannot have any right to continue on the said post nor can claim regularization but that would be in those cases where respondents decide not to engage any other person on the same post on contract basis or are filling the post by regularly selected persons.
15. The factual position in the instance case is however slightly different. Undisputed facts are that the work is still available with the respondents and admittedly they want to fill the same posts, which are occupied by the applicants by a new set of employees again on contract basis. This approach, according to us, is not correct specially when respondents have already initiated the process of filling up the posts of Supervisors Grade-II (Women) for regular appointment through DSSSB. Since process for regularly appointment has already been initiated, hopefully it should be completed within the next few months. In these circumstances, we see no justification why applicants should be replaced by another set of contractual employees or why respondents should even undertake the process once again for filling the same posts on contract basis for the small intervening period. It is pertinent to mention here that all the applicants herein were initially engaged as Anganwari Workers and have already put in more that 10 years of services as Anganwari Workers. In the RRs for the post of Supervisor (page 34 at 35) 25% posts are reserved for Anganwari Workers, therefore, applicants have a right to be considered for these posts as per the RRs even for regular appointment, therefore, we are of the considered opinion that till regularly appointed candidates are available, applicants should not be replaced by another set of contractual employees. Relevant portion of RR for the post of Supervisor is quoted below:-
Method of recruitment whether by direct recruitment or by promotion or by deputation/absorption and percentage of posts to be filled by various methods
-------------------------------------------------------------------
100% Direct Recruitment Note: 25% of the total number of sanctioned posts of Supervisor, Grade-II (Women) in the pay scale of Rs.4500-7000 are reserved for Anganwari Workers who are matriculate and have put in minimum of 10 years of service.
It means though the post of Supervisors are to be filled 100% by way of direct recruitment but 25% of the total number of sanctioned posts are reserved for Anganwari Workers who are matriculate and have put in minimum of 10 years of service. In these circumstances, when the applicants are alleged to have worked as Anganwari Workers for more than 10 years and claim to be matriculate also, we see no justification as to why they should be replaced by another set of contractual employees. In fact, in case all the applicants fulfill the requirement as mentioned in the RRs, as quoted above, they would have a right to be considered for regular appointment as well. In these peculiar facts and circumstances, we are of the considered opinion that the applicants should be allowed to continue on contract basis till regularly selected candidates are available to replace the applicants on the post of Supervisors Grade-II (Women) and they should not be replaced by another set of contractual employees. In taking this view we are supported by the judgment of Delhi High Court in the case of Dalip Kumar Jha and Others Vs. New Delhi Municipal Council decided on 1.9.2006 wherein it was held as under:-
6. Writ Petitions are accordingly dismissed, subject to the direction that the respondent will not replace the petitioners with other contractual employees and in case by virtue of regular appointment the petitioners become surplus, the respondent will follow the rule of last come first go.
16. We would be failing in our duty if we do not refer to the judgments relied upon by the counsel for the respondents.
17. Counsel for the respondents had placed reliance on the judgment dated 10.8.2009 in Ruchi Singh and Others Vs. Ministry of Social Welfare and Others passed by this Tribunal which was dismissed by observing as follows:-
As contract employees, even if working for a number of years, no regularisation is permissible de hors the rules. Moreover, the Apex Court has recently in Harminder Kaur and Others Vs. UOI and Others, (2009) 7 SCALE 204, ruled that in such an even the contract workers can be replaced by another set of contract workers and they cannot seek regularization as a matter of right. However, they are free to participate in the selection process in which the question of relaxation in age has to be considered.
18. With utmost respect to the Honble Members, we do not agree with the reasoning given above because in the judgment of Harminder Kaur (Supra) it is nowhere stated that one set of contractual employee can be replaced by another set of contractual employee. On the contrary, in para 3 of the judgment it was observed that the teachers on contract basis should not be replaced by another set of contractual employees.
19. To demonstrate it more effectively it would be necessary to give the facts of the said case. The appellants therein were appointed for a specified period as teachers when the incumbent of the post had proceeded on leave or was not available for teaching beyond the period of 45 days meaning thereby it was a stop gap arrangement. The appellants therein had filed the Ist case before the Tribunal claiming regularization on the ground that they fulfilled the requisite educational qualification and were drawing salary on a scale of pay and continued on the post for a long period. The respondents in the said case had issued advertisement for fresh appointment of teachers which was challenged by the appellants. The said OA was allowed to the extent that they may not be replaced or substituted by another set of teachers appointed on contract basis. These facts are specifically mentioned in para 3 of the said judgment. The judgment in Ist OA was not challenged before the Honble Supreme Court, therefore, the above directions had attained finality.
20. From the facts as narrated in the judgment, it is clear that thereafter another O.A. was filed by the appellants seeking a direction to the respondents to frame a scheme or policy to regularise their services and respondents be restrained from appointing or recruiting regular teachers. The second OA was dismissed by the Tribunal by observing that their appointment has to come to an end by the regularly selected teachers. Appellants had filed Writ Petitions against this judgment in 2nd OA which was also dismissed by the Honble High Court of Punjab & Haryana. It was against this judgment that the appeal was filed in the Honble Supreme Court by the appellants.
21. From the facts as narrated above, it is clear that the only issue before the Honble Supreme Court in the case of Harminder Kaur was whether the appellants had any right to be regularised and whether they could be replaced by the regularly selected teachers or not, whereas in the present case, it is conceded by the applicants that they have no right of regularization and can be replaced by a regularly selected candidate, therefore, this judgment with utmost respect, would not be applicable in the present case because the issue which is raised before us was not even the subject matter in the case of Harminder Kaur.
22. Since we are taking a different view in this matter than what has been taken by a co-ordinate Division Bench in the case of Ruchi Singh and Others, therefore, judicial discipline requires that we should refer this case to the Full Bench.
23. Similarly in the case of Amit Kumar Sharma and Others Vs. Govt. of NCT of Delhi also, the question whether one set of contractual employees could have been replaced by another set of contractual employees has not been dealt with, therefore, that judgment is distinguishable.
24. In view of above, let this matter be placed before the Honble Chairman on administrative side for constituting a Full Bench to decide the issue authoritatively whether one set of contractual employees can be replaced by others when process for regular selection has already been initiated.
(MRS. MEERA CHHIBBER) (L.K. JOSHI) MEMBER (J) VICE CHAIRMAN (A) Rakesh