Central Administrative Tribunal - Delhi
Bhopal Singh vs New Delhi Municipal Council on 23 February, 2012
Central Administrative Tribunal Principal Bench OA No.587/2012 New Delhi this the 23rd day of February, 2012. Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam, Member (A) 1. Bhopal Singh, Wife of Shari Hari Singh, R/o B-533, Jwala Puri, Sunder Vihar, Delhi-110087. 2. Ravi Bhardwaj, S/o late Shri Krishan Bhardwaj, R/o 6/169, Railway Line Par, Johari Nagar, Bahadurgarh, Distt. Jhajjar, Haryana. -Applicants (By Advocate Shri Pramod Kumar Sharma) -Versus- New Delhi Municipal Council Through its Director (P), Parliament Street, Palika Kendra, New Delhi. -Respondents O R D E R (ORAL) Mr. M.L. Chauhan, Member (J):
This is the second round of litigation. Earlier the applicant had filed OA No.3656/2009, which was disposed of by this Tribunal by giving direction to the respondents to treat the OA as a representation of the applicants and consider and redress their claim as made in the said OA. Pursuant to the direction given by this Tribunal respondents have passed order dated 15.12.2011 (Annexure A-1), whereby the claim of the applicants for their regularization on the posts of Pump Attendant has been declined. At this stage, it will be useful to quote the said order in extenso, which thus reads:
NEW DELHI MUNICIPAL COUNCIL PALIKA KENDRA: NEW DELHI EDUCATION ESTABLISHMENT-II No.:42/4/SA-I/Edn.Estt.II./2011 Dated:15.12.2011 ORDER Vide its orders dated 10.09.2010, the Honble Central Administrative Tribunal, Principal Bench in OA No.3656/2009 directed the respondent, i.e. NDMC to treat the OA as a representation of the applicants and consider/redress their claims as made in the said OA.
2. The applicants had sought following relief in para 8 of the said OA:
a) To regularize the services of the applicants on the post of the Pump Attendant w.e.f. 02.01.2007 either against the two vacant posts of the pump-attendant in the BM-I and BM-II Division of Electric Department or against the any other posts of pump attendant in other department of NDMC along with all the consequential benefits; or
b) To create two posts of the pump attendant in the Education Department and to absorb the applicants against the same; or
c) At least regularize the applicants against any other similar semi-skilled technical post like Asstt. Pump Operator instead of unskilled post of Helper.
d) Any other order or direction as the Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
3. The claims made in the said Original Application have been examined and considered in terms of the directions issued by the Honble Tribunal vide its order dated 10.09.2010 and it has been noticed as under:
(i) The Council vide its Resolution dated 14.02.97 had resolved that all the RMR workers should be regularized only against Group D posts. Even if a man is working on RMR against a Group C post, the person should be regularized in Group D. The Council in its subsequent meeting held on 18.03.99 resolved that Group C RMR will be covered by the same policy subject to the condition that the Government of NCT of Delhi be requested to agree to one time relaxation from the purview of Section 42 of the NDMC Act. The subsequent resolutions dated 05.05.2001/17.05.2001 and 27.03.2002 reiterated that there shall be no regularization against Group C posts.
(ii) Section 42 of the NDMC Act, 1994 prescribe that direct recruitment to category D and C posts may be made by the Government through such agencies as may be prescribed for it. Government of NCT of Delhi has already set up Delhi Subordinate Services Selection Board (DSSSB) to recruit candidates for Group B and C posts. As such, the Council is not competent to fill direct recruitment quota seats under category B and C. The recruitment/regularization if any, made to Group C posts was only as per court directions/relaxation obtained from GNCTD.
(iii) In the Office Order dated 01.08.2002, while granting the RMR status to the applicants it was indicated that their regularization would be considered only for Group D post in the department they are working.
(iv) As per RRs, the post of Pump Attendant is a promotional post from Khallasie, failing which by direct recruitment. As the department regularizes RMR to the promotional post of Pump Attendant.
(v) The post of Pump Attendant was in the pre-revised pay scale of Rs.3200-5155/- which is a Group C post as per classification of posts issued by DOP&Ts OM No.13012/1/98 Estt. (D) dated 20.04.1998.
(vi) As per Councils resolution dated 05.05.2001/17.05.2001 workers being considered for regularization must fulfill the eligibility conditions as per RRs in respect of qualification/age on the date of conversion into RMR. The Applicant No.1 has himself admitted to be not in possession of requisite qualifications at the time of performing the duties of the posts.
(vii) The services of the applicants have already been regularized to the Group D post of Helper in the Education Department.
4. Further, the Honble Supreme Court in the case of Uma Devi v/s Govt. of Karnataka has held that employees who are not recruited in accordance with the rules have no right to claim appointment or regularization to the given post. It has been further held that contract/ad-hoc/Muster Roll employees have no claim for regularization.
5. In view of the position indicated above, the claim of applicants for regularization to Group C post is rejected being devoid of any merit.
This issues with the approval of the Competent Authority.
(Rajesh Tingal) Director (Education) To:-
1.Shri Bhopal Singh R/o B-533, Jwala Puri, Sunder Vihar, Delhi-110087.
2. Shri Ravi Bhardwaj R/o 6/196, Railway Line par, Johari Nagar, Bahadurgarh, Distt. Jhajjar, Haryana.
2. Applicant has filed this OA for the same relief, which he had sought in the earlier OA and has been reproduced in para-2 of the judgment besides making an additional prayer for quashing the impugned order dated 15.12.2011.
3. We have heard learned counsel of applicants at the admission stage. We are of the view that the applicants are not entitled to any relief for the reason already given by the competent authority in the impugned order, as reproduced above. The case projected by the applicants is that they were initially engaged as Pump Operators on temporary muster roll in the years 1993 and 1998 respectively and thereafter in the year 2002 they were granted the status of regular muster roll (RMR) under the designation of Pump Attendant. It is further averred that they were regularized on the unskilled post of Helper Group-D instead of the post of Pump Attendant by passing an office order dated 15.05.2008.
4. The question, which requires our consideration is whether the applicants who were initially engaged on casual basis as Pump Operators, can their services be directly regularized against the said post, which admittedly is a Group C post and the action of the respondents in regularizing the services of the applicant as Helper in a lower post is justified?
5. Learned counsel of applicants has drawn our attention to page-49 of the paper-book whereby a note has been made by the Head Assistant. Perusal of this note reveals that Chairperson, NDMC vide orders dated 21.3.2007 has granted regular status to the RMR workers working prior to 1999 against group D posts. Out of total 20 RMR employees of Education Department and Social Education Department 18 RMR employees have already been appointed against the group D posts. Two RMR workers, who are applicants in this case and working as Pump Attendant could not get regular appointment till date as the post of Pump Attendant was not available in Education Department. It was recommended that the applicants may be regularized as Pump Attendant against two vacant posts in Electric Department by giving relaxation in technical qualification in respect of Shri Bhopal Singh, as he is working as Pump Attendant from the last more than 08 years. On this basis of this noting made by the Head Assistant learned counsel of applicants argued that applicants are entitled to regularization of their services on the posts of Pump Attendant. However, the recommendation so made by the Head Assistant was not accepted by the higher authorities for a valid reason, viz. as per condition No.5 regularization of workers in future was subject to against group D posts in the department they were working. Since the applicants were working in the Education department they were regularized against group D posts of Helper in the Education Department. Thus, applicants were treated along with other persons who like the applicants were RMR workers working prior to 1999 and all of them were regularized against group D posts. Thus, the applicants cannot take any assistance from the recommendations made by the lower functionary of the Department to consider the case of the applicants for regularization against group C posts in other Department contrary to condition No.5, especially when applicant No.1 did not possess the requisite qualification at the time of performing the duties of the post. In other words, his initially appointment against the post of Pump Attendant was illegal, as he did not possess the educational qualification at the relevant time and services of applicants could not have been regularized in view of the law laid down by the Apex Court in the case of Secretary, State of Karnataka & Ors. v. Umadevi (3) & others, (2006) 4 SCC 1.
6. That apart, as can be seen from para-3 (iv) of the impugned order, relevant portion of which has been reproduced in earlier part of the judgment, as per RRs the post of Pump Attendant is a promotional post from Khallasi, failing which by direct recruitment. Thus, no appointment by way of direct recruitment could be made to such post being a promotional post. Thus, the services of the applicants could not have been regularized against the post of Pump Attendant. The issue on this point is no more res integra and the same is covered by the decision of the Apex Court. At this stage, we wish to quote the decision of the Apex Court in Union of India and another v. Moti Lal and others, 1996 SCC (L&S) 613. The questions, which were under consideration before the Apex Court were:
(1) Is it permissible under Rules to appoint a person directly as Mate in Class III and if not, then whether the factually continuance of the person as a Mate for a considerable period entitles him to be regularised as a Mate ? (2) Conferment of a temporary status as a Mate whether ipso facto entitles a person to be regularised as a Mate and not as a Gangman?
7. That was a case where the respondents before the Apex Court were appointed directly as casual Mates and continued to work on the said post for a period of 22-25 years but their services were regularized on the lower class IV post of Gangman whereas the post of Mate was a Group C post. While answering the aforesaid questions the Apex Court in paras 9-11 has held as under:
9. So far as the first question is concerned, on examining the relevant provisions of the Rules as well as the administrative instructions issued by the Railway authorities we are of the considered opinion that it is not permissible to appoint a person directly as a Mate and it is only a promotional post from Class IV post of Gangman and Keyman. These Gangman and Keyman can be promoted to the post of Mate in Class III subject to their suitability and efficiency being tested through trade test. It is no doubt true that these respondents under certain circumstances had been appointed directly as casual Mates and they continued as such and further by virtue of their continuance they acquired temporary status but that by itself does not entitle them to be regularised as Mates since that would be contrary to the Rules in force. In our considered opinion the respondents did not acquire a right for regularisation as Mates from mere fact of their continuance as casual Mate for a considerable period.
10. So far as the second question is concerned, we are also of the considered opinion that conferment of the temporary status as Mate ipso facto does not entitle the person concerned for regular absorption as Mate. In the case of Ram Kumar v. Union of India (Writ Petition Nos. 15863-15906 of 1984 disposed of on 2nd December 1987) (reported in AIR 1988 SC 390), this Court has held that an employee on daily wage basis under the Railway acquires temporary status on completion of a specified number of days in service and with the acquisition of said status such employees are entitled to :-
(1) Termination of service and period of notice (subject to the provisions of Industrial Disputes Act, 1947). (2) Scales of pay.
(3) Compensatory and local allowances.
(4) Medical attendance.
(5) Leave rules.
(6) Provident Fund and terminal gratuity.
(7) Allotment of railway accommodation and recovery of rent.
(8) Railway passes.
(9) Advances.
(10) Any other benefit specially authorised by the Ministry of Railways.
11. Thus it is apparent that a daily wage or casual worker against a particular post when acquires a temporary status having worked against the said post for specified number of days does not acquire a right to be regularised against the said post. He can be considered for regularisation in accordance with the Rules and , therefore, so far as the post of Mate under Railways is concerned, the same has to be filled up by a promotion from the post of Gangman and Keyman in Class IV subject to employees passing the trade test.
8. The ratio, as laid down by the Apex Court in the case of Moti Lal (supra) is squarely applicable in the facts and circumstances of this case. In this case also the post of Pump Attendant is a promotional post to be filled in from Khallasi. As such, the services of the applicants could not be regularized against the posts of Pump Operators.
9. To the similar effect is the decision of the Apex Court in the case of Bhadei Rai v. Union of India and others, 2006 SCC (L&S) 89. The appellant before the Apex Court was a daily rated worker was given temporary status on that post with effect from 1.1.1982. He was granted promotion on 31.3.1985 purely on ad hoc basis to the post of Rigger. For a long period between 1985 and 1999 the appellant continued to work on the promoted post of Rigger carrying higher scale of pay. The post of Rigger was Group C post but the appellant was regularized and absorbed in lower Group D post on 5.10.1999. The claim of the appellant for his regularization against the higher group C post of Rigger was rejected by the Central Administrative Tribunal and the High Court. The judgment of the Tribunal as well as High Court was upheld by the Apex Court.
10. Thus, in view of what has been stated above, we are of the view that the applicants are not entitled to any relief. The alternate prayer of the applicants that at least regularize them against any other similar semi-skilled Technical post like Assistant Pump Operator instead of unskilled post of Helper cannot be accepted, inasmuch as applicants were working in the Education Department and in terms of condition No.5 they were entitled to be absorbed against group D post in Education Department. Since 18 persons were already regularized in the Education Department against Group D posts applicants were also subsequently regularized against Group D posts of Helper in the Education Department and thus applicants could not be absorbed in another Department.
11. In the result, for the foregoing reasons, OA is found bereft of merit, which is accordingly dismissed at the admission stage itself with no order as to costs.
(Manjulika Gautam) (M.L. Chauhan) Member (A) Member (J) San.