Central Administrative Tribunal - Delhi
Daya Chand S/O Shri Hargyan vs Nct Of Delhi Through The Chief Secretary on 22 May, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.621 of 2010 Orders reserved on : 20.5.2015 Orders pronounced on : 22.05.2015 HONBLE SHRI SHEKHAR AGARWAL, MEMBER (A) HONBLE SHRI RAJ VIR SHARMA, MEMBER (J) 1. Daya Chand s/o Shri HarGyan working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 2. Om Prakash s/o Shri Chander Singh working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 3. Ashok Kumar s/o Shri Budh Sen working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 4. Satbir Singh s/o Shri Pokhar Mal working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 5. Pappu s/o Shri Raju working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 6. Arjun s/o Shri Ganu Sada working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 7. Prem Chand s/o Shri Chedi Lal working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 8. Ombir s/o Shri Khem Chand working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 9. Bhagwat Prasad s/o Shri Lal Chand working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 10. Jagdish s/o Shri Manglu working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 11. Amana Khatun s/o late Shri Liyakat Ali working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 12. Tej Singh s/o Shri Hukum Singh working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 13. Bijender Singh s/o Shri Kartar Singh working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 14. Parmanand s/o Shri Sube Singh working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 15. Shankar Rai s/o Shri Ram Nandan Rai working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 16. Munna Lal s/o Shri Bansi Lal working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 17. Sat Narain s/o Shri Tara Chand working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 18. Rama Nand s/o Shri Mange Ram working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 19. Lallan Prasad s/o Shri Gorakh Prasad working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 20. Gopi Chand s/o Shri Chotu Ram working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 21. Kuseshwar Rai s/o Shri Dorik Rai working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 22. Kamal Singh s/o Shri Itwari Lal working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 23. Jai Bhagwan s/o Shri Surajmal Yadav working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 24. Devinder Singh s/o Shri Rajinder Singh working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 25. Ram Charitra Mandel s/o Shri R R Mandal working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 26. Natwar Lal Jha s/o Shri Pramod Jha working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 27. Mahinder Singh s/o Shri Hoshiar Singh working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 28. Rajbir s/o Shri Ram Dhan working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 29. Hari Singh s/o Shri Dharam Singh working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 30. Deconis Kajur s/o Shri S Kajur working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 31. Anand Singh s/o Shri Nandan Singh working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 32. Lachman Singh s/o Shri Rattan Singh working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi 33. Jagbir s/o Shri Sube Singh working as Bailar in Irrigation and Flood Department Govt. of NCT of Delhi, Kashmere Gate, Delhi ..Applicants (By Advocate: Shri Yogesh Sharma) Versus 1. NCT of Delhi through the Chief Secretary New Sectt., New Delhi 2. The Chief Engineer Irrigation and Flood Department Govt. of NCT of Delhi IV Floor, ISBT Building, New Delhi ..Respondents (By Advocate: Shri Ankur Chhibber) O R D E R SHRI SHEKHAR AGARWAL, MEMBER (A):
In this OA, the applicants, who were working as Baildar on work charged basis in various divisions of Irrigation & Flood Department, Govt. of NCT since last several years, are seeking backdated regularization. Some similarly situated persons had approached the Honble Supreme Court by means of Writ Petition No.253/1988 in which the Honble Supreme Court on 31.10.1988 had passed the following order:-
We have heard learned counsel for both the parties. The respondents are directed to frame a scheme for the regularization of the services of all the petitioners and persons similarly situated who have been in service for more than one year. Until the scheme is so framed and the question of regularization of the petitioners is considered in the light of the scheme and final orders are passed thereon by the respondents, their services shall not be terminated. Until the question of regularization is so determined the petitioner shall be paid with effect from 1st November, 1988 the minimum salary payable to a person regularly appointed and doing the same kind of work in the Department. The Writ Petition is disposed of.
2. Thereafter, on 16.11.1988, this Order was partially modified as follows:-
The direction issued by this Court on 31st October, 1988 directing the respondents in this writ petition to prepare a scheme for the regularization of the employees concerned shall be complied with within six months from today. The order dated 31st October, 1988 stands modified to this extent.
3. In compliance thereof, the respondents framed a scheme for regularization of Daily Wages Workers who had worked for more than 240 days in the department upto 16.5.1989. Under this Scheme, many of the persons similarly situated as the applicants herein were regularized w.e.f. 1989. However, the applicants were left out and were regularized only on different dates between 2002 and 2009. They, therefore, approached this Tribunal by filing this OA. This was disposed of by Order dated 21.10.2010 by this Tribunal. The operative part of the Order reads as follows:-
9. No doubt, regularization is not a mode of appointment but once a right has been accrued pursuant upon the directions of Apex Court, which has been implemented by the respondents by regularizing these persons, this regularization should not have been a prospective one and would be restricted to retrospective basis within six months from 1.1.1989. The stand of the respondents taken in the reply as to applicants being declared surplus is not found authentic. Had the applicants been declared surplus at the appropriate time, i.e., within six months in pursuance of the order of Apex Court, they would have certainly been, under the Re-deployment of Service Rules, absorbed by continuing them to a regular scale with all benefits at par with regular employees. Non-grant of regularization from a retrospective date has deprived the applicants their rightful claim to the service rendered by them, which shall now be counted as a qualifying service and as eligibility service for promotion and seniority. This has greatly prejudiced them. The decision in Gehar Singhs case (supra), in all fours, covers the present issue. As such, our considered view is that the applicants should now be given retrospective regularization, so that their services after six months from the date of decision of Apex Court would be utilized for all purposes for upholding their fundamental right for consideration of their promotion.
10. Resultantly, the OA is allowed to the extent of directing the respondents to consider regularizing the applicants w.e.f. 16.5.1989, with all consequences, within a period of three months from the date of receipt of a copy of this order. No costs.
4. The aforesaid Order of the Tribunal was challenged by the Government of NCT of Delhi before Honble High Court of Delhi by means of Writ Petition (Civil) No.4702 of 2011. This was disposed of by the Honble High Court on 21.10.2013 by their Order which reads as follows:-
1. The only issue which needs to be considered is whether the respondents (applicants before the Tribunal) would be entitled to their services regularized with effect from May 16, 1989, as directed by the Tribunal vide impugned order dated October 21, 2010.
2. Wherefrom is the date May 16, 1989 emerging? The impugned order does not bring that out at all, except the possible requirement of the scheme to be framed with reference to the decision dated October 31, 1988 passed by the Supreme Court in WP(C) No.253/1988.
3. Whereas learned counsel appearing for the respondents would seek to urge that information received by the respondents through RTI would reveal availability of adequate vacancies as of May 16, 1989 thereby justifying the direction that the scheme for regularization framed pursuant to the orders passed by the Supreme Court warranted respondents? regularization from said date.
4. But, concededly we do not find any discussion in the impugned order with reference to the RTI queries and the response given thereto.
5. Under the circumstances noting the fact that the services of the respondents have since been regularized but the issue remains as to the date wherefrom regularization has to take place, the writ petition stands disposed of setting aside the impugned order dated October 21, 2010 in so far as it directs services of respondents to be regularized with effect from May 16, 1989 and remanding the matter to the Tribunal. At the remanded stage the Tribunal would determine, with reasons, the date wherefrom it holds services of the respondents to be regularized.
6. Parties shall appear before the Registrar of the Tribunal on November 25, 2013 who shall list O.A.No.621/2010, which stands revived by us, before the appropriate Bench for fresh adjudication.
7. No costs.
8. Dasti.
CM No.9535/2011 (stay) Disposed of as infructuous.
5. Accordingly this OA has been heard again by us.
6. The contention of the applicants is that Honble Supreme Court had directed that regularization of the work charged employees be considered by framing a scheme of regularization and that such consideration was to be done within six months of passing of the Order dated 16.11.1988. Six months period expired on 16.5.1989. As such the applicants were entitled for regularization from 16.5.1989.
7. In reply, the respondents have stated that in compliance of the Order of the Honble Supreme Court, a scheme for regularization was framed by them under which 848 posts were created. A large number of employees were regularized w.e.f. 1989. The applicants could not be so regularized from that day as no vacancies were available. The regularization was done strictly in accordance with the seniority list and nobody junior to the applicants was regularized before them. The applicants were also regularized in turn as and when vacancies arose.
8. We have heard both sides and have perused the material on record.
9. We find that the directions of the Honble Supreme Court in their Orders dated 31.10.1988 and 16.11.1988 were to frame a scheme of regularization of persons similarly placed as the applicants herein within six months from the date of the Order. The directions were only to frame a scheme for regularization within six months. There was no direction to also regularize all the employees within this period. The regularization, no doubt, would have remained contingent to availability of posts. As such, there is no merit in the contention of the applicants that under Orders of the Honble Supreme Court, they all deserved to be regularized w.e.f. 1989.
10. Learned counsel for the applicants has also contended that the respondents should have placed the applicants in surplus pool, if no posts were available in the Irrigation Department so that they could have been absorbed in some other department. According to him, in the scheme of regularization the following was contained:-
iii) The Administrative deptt. Shall conduct the studies and surplus staff, if any, shall be placed in the surplus pool for six months to absorb in other departments.
11. We do not find much merit in this argument. The respondents have not submitted that the applicants were surplus as no work was available for them. They were surplus to the extent that no posts were available for their regularization. However, since enough work was available they were continued as work charged employees. Hence, the question of declaring them surplus did not arise. There was no direction from the Honble Supreme Court either to discontinue the practice of engaging the employees on work charged basis. Their only direction was not to terminate the services of the employees till the question of their regularization was considered and to also pay them minimum salary payable to a person regularly appointed and doing the same kind of work in the department. We find the respondents have followed these directions.
12. We also find that applicants approached this Tribunal in the year 2010. If they were aggrieved by not being placed in the surplus pool, they should have approached this Tribunal earlier. At this belated stage, this prayer cannot be considered.
13. We, therefore, find no merit in this OA and the same is dismissed. No costs.
(RAJ VIR SHARMA) (SHEKHAR AGARWAL)
MEMBER (J) MEMBER (A)
/ravi/