Central Administrative Tribunal - Delhi
Sh. Om Prakash vs Commissioner on 27 May, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
T.A. NO.198/2009
New Delhi, this the 27th day of May, 2009
HONBLE MRS. MEERA CHHIBBER, MEMBER (J)
HONBLE SHRI SHAILENDRA PANDEY, MEMBER (A)
Sh. Om Prakash
S/o Sh. Take Chand
Vill Bilock Pur Distt
Bagpath UP working
Was as Muster Roll Beldar. .. Applicant
(By Advocate: Sh. Lalta Prasad)
Versus
Commissioner
Municipal Corporation of Delhi
Chandani Chowk
Delhi.
Dy. Commissioner
Municipal Corporation of Delhi
G.T.Road, Shahdara
Delhi.
Executive Engineer
Zonal Engineer Div.
Water Works G.T.Road
Shahdara
Delhi.
Chief Executive Officer
Delhi Jal Board (Varunalya)
Near Jhandenealan, Karol Bagh
New Delhi. Respondents
(By Advocate: Sh. Himanshu Upadhyay with Sh. Nishakant Pandy and
Shri Nitin Kumar)
O R D E R (Oral)
By Mrs. Meera Chhibber, Member (J):
The applicant, in this OA, has sought a direction to reinstate him in service and to pay all consequential benefits like promotion, arrears, pay, etc. It is submitted by the applicant that he was initially engaged on muster roll in May, 1988 and worked with the respondents till April, 1998. He was regularized but unfortunately in 1998, he had fever, therefore, after informing the mate went to his village where TB was diagnosed. He was under treatment of the Doctor from 1.5.1998 to 19.11.1999 which is evident from the certificate annexed (page 23) with the application. He was declared fit on 12.11.1999 (Page 24). He reported for work and gave his representation but neither his representation was decided nor he was allowed to work, therefore, finding no other remedy, he had to file Writ Petition No.6869/2008 before the Honble High Court of Delhi which has now been transferred to this Tribunal by the Honble High Court of Delhi vide order dated 27.01.2009 and numbered as TA 198/2009.
2. Respondents have opposed the petition. They have stated that the applicant was appointed as muster roll employee for working as Baildar under the Municipal Corporation of Delhi in the Division of Water Works Section in Zone East, Shahdara, Delhi. He was never regularized on the said post. He had left job in the year 1998 on his own without any intimation. He is not entitled for the relief as his case is fully covered by the Judgement of the Honble Supreme Court in the case of State of Karnataka vs. Uma Devi. They have also denied that his juniors were promoted to the next post as alleged by him. Since the applicant was not even a confirmed employee of the MCD, there is no question of considering him for promotion. They have also specifically stated that neither his family members nor he intimated the department about his sickness. They have thus prayed that the application may be dismissed.
3. The applicant has also impleaded Delhi Jal Board as a party but Shri Nitish Kumar, counsel appearing on behalf of Delhi Jal Board states that they have wrongly been impleaded as applicant had not worked with the Delhi Jal Board at any stage. Applicant has not annexed any document to substantiate his claim, therefore, they may be deleted from the array of parties.
4. We have heard all the counsel and perused the pleadings as well.
5. As per the applicants own case, he had left for his hometown in the year 1998. In order to substantiate his averments that he was sick, during this period, he has produced a medical certificate at page 23 but nether it is issued by a Government Hospital nor there is any registration number on the said medical certificate or there is any stamp of the Doctor who has certified. He has annexed another certificate on page 24 (A) but perusal of same shows, it had been issued by a child specialist, which is evident from the stamp on the certificate. Why applicant should have approached a child specialist when he was suffering from Tuberculosis and Typhoid could not be explained by the counsel. Even this certificate has not been issued by any Government Hospital nor it bears any registration number, therefore, no credibility can be given to these kind of medical certificates.
6. Respondents have specifically stated no intimation was given to them by the applicant or his family members. Applicant has not annexed any document to show that he had informed the authorities about his sickness. In these circumstances he cannot come after a long gap of period and claim reengagement.
7. It is relevant to note that applicant did not approach the Court in 1999 when he was denied the work. He has filed the present application only in the year 2008, when no fresh cause of action had arisen in his favour and that too without seeking condonation of delay. Therefore, this application is liable to be dismissed on the ground of delay and latches itself.
8. At this juncture, it would be relevant to refer the Judgement of Honble Supreme Court in the case of Ratam Chandra Sammanta & Others vs. Union of India & Others, JT 1993 (3) SC 418. In the said case, the applicants therein had approached that after 15 years seeking reengagement, it was stated by them that they had worked as Casual Labour with the Railways. However, even before the Honble Supreme Court, the applicants had not filed any certificates or documents to demonstrate that they had indeed worked with the Railways. In those circumstances, the Honble Supreme Court held as under:
6. Two questions arise, one, if the petitioners are entitled as a matter of law for re-employment and other if they have lost their right, if any, due to delay. Right of casual labourer employed in projects, to be re-employed in railways has been recognized both by the Railways and this Court. But unfortunately the petitioners did not take any step to enforce their claim before the Railways except sending a vague representation nor did they even care to produce any material to satisfy this Court that they were covered in the scheme framed by the Railways. It was urged by the learned Counsel for petitioners that they may be permitted to produce their identity cards etc., before opposite parties who may accept or reject the same after verification. We are afraid it would be too dangerous to permit this exercise. A writ is issued by this Court in favour of a person who has some right. And not for sake of roving enquiry leaving scope for manoeuvring. Delay itself deprives a person of his remedy available in law. In absence of any fresh cause of action or any legislation a person who has lost his remedy by lapse of time loses his right as well.
9. Subsequently, the Constitution Bench of the Honble Surpeme Court in State of Karnataka & Others vs. Uma Devi, 2006 (4) SCC 1 held that casual labour has no right to seek regularization. It was held as under:
34. In A. Umarani Vs. Registrar, Cooperative Societies and Others (2004 (7) SCC 112), a three judge bench made a survey of the authorities and held that when appointments were made in contravention of mandatory provisions of the Act and statutory rules framed thereunder and by ignoring essential qualifications, the appointments would be illegal and cannot be regularized by the State. The State could not invoke its power under Article 162 of the Constitution to regularize such appointments. This Court also held that regularization is not and cannot be a mode of recruitment by any State within the meaning of Article 12 of the Constitution of India or any body or authority governed by a statutory Act or the Rules framed thereunder. Regularization furthermore cannot give permanence to an employee whose services are ad hoc in nature. It was also held that the fact that some persons had been working for a long time would not mean that they had acquired a right for regularization. 43. .It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. 45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently.. 47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post. 49. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.
10. In view of above, it is settled law that casual labour has no right to claim regularization. Moreover, the applicant has not been able to demonstrate any legal right for claiming the relief as prayed by him.
11. Apart from merits of the case, the applicant has not even explained the delay as to why he has approached the Court after over 9 years. A person who comes to the Court with an inordinate delay, looses his remedy as well. It is a settled principle of law. Therefore, on both these grounds, the TA is dismissed. No order as to costs.
(Shailendra Pandey) (Meera Chhibber)
Member (A) Member (J)
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