Central Administrative Tribunal - Delhi
Nisha vs Govt. Of Nctd on 7 February, 2023
1
OA 1339/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1339/2020
M.A. No. 1685/2020
Reserved on: 19.12.2022
Pronounced on:
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
1. Ms. Nisha
Aged about 31 years
D/o Mr. Vimal Prakash
R/o X/2166, Raghubar Pura,
No.1, Gandhi Nagar,
Delhi-110031
Post : Basic Cosmetology
College : ITI Mori Gate
2. Ms. Ekta
Age 33 years
D/o Mr. Dalbir Singh
R/o C-68, Bhagwati Garden Extension,
Kakrola Mor, New Delhi-110059
Post : Sewing Technology
College : ITI Hastsal, Uttam Nagar
3. Mr. Rajesh Kumar Gupta
Age about 30 years
S/o Mr. Swami Nath Gupta,
R/o L-1 304/5 Sangam Vihar ND
Post - Plumber
College - ITI Arab-Ki-Sarai (AKS)
4. Ms. Renu Maan
Age about 30 years
D/o Mr. Ram Rattan Maan,
R/o RZ-47, N-Block,
Maharishi Dayanand Marg,
Gopal Nagar, Najafgarh,
Delhi-110043
Post - Architecture Draftsman
College - Siri Fort ITI
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OA 1339/2020
5. Ms. Pragya
Age 30 years.
D/o Shri Satyapal Singh
R/o Flat No.282,
Lumbani Apartment, Kaushambi,
Ghaziabad, U.P. 201010
Post - Fashion Designing and Technology,
College, ITI H.J. Bhabha, Mayur Vihar
6. Ms. Sandhya
Age about 29 years,
D/o Mr. Sukhbir Singh
R/o Near Railway Crossing,
Chetak General Store, Bijwasan,
New Delhi-110061
Post - ITI Instructor (Fashion Design & Technology)
College - ITI Nand Nagari, Shahdara
7. Mr. Pankaj
Aged about 26 years,
S/o Mr. Jai Prakash Sharma,
R/o DD 39 A, Shyam Nagar Colony,
Palwal, Haryana
Post - Instructor of MAEE
(Mechanic Auto Electrical & Electronics)
College - ITI Arab-Ki-Sarai (AKS) ... Applicants
(Through Ms. Rashmi Chopra, Advocate)
Versus
1. Govt. of NCT of Delhi
Through Chief Secretary,
Delhi Secretariat, I.P. Estate,
Delhi-110002
2. The Principal Secretary,
Department of Training & Technical Education
Muni Maya Ram Marg,
Pitam Pura, New Delhi-110034
3. The Joint Director,
Department of Training & Technical Education
Muni Maya Ram Marg,
Pitam Pura, New Delhi-110034 ... Respondents
(Through: Mr. Amit Anand, Advocate)
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OA 1339/2020
ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
In the instant OA filed under Section 19 of the Administrative Tribunals Act, 1985, it has been contended by the applicants that they were appointed as Craft Instructors [CI(s)] on contract (part time basis) in the ITI(s) between 2017 and 2019, under the Department of Training and Technical Education (DTTE), GNCTD. As the respondent department continued with contractual appointments on the post of CI(s), the contract of the applicants was extended as the performance of the applicants was exemplary with 100% results of the students taught by them. In the year 2019-20, the respondent department sought to throw out the applicants along with the other similarly situated CIs and replace them with others on the same terms and conditions as the existing Contractual Craft Instructors. An advertisement seeking fresh recruitment on the posts occupied by the contractual CI(s) was published to make fresh recruitment on contract. The posts were increased to 200 in the said advertisement.
2. Some of the similarly situated Craft Instructors impugned this illegal act of replacement of the contractual employees with similarly situated employees against the trite position in law. The Tribunal was pleased to withhold the result of the interviews to be held in consequence of the impugned advertisement by directing the same to be kept in a sealed cover and to be subject 4 OA 1339/2020 to outcome of OA No.2302/2019 titled Ms. Kavita & ors. Vs. Govt. of NCT of Delhi & ors. Applicants were told that the Craft Inspector(s) who have approached the Tribunal shall not be given any renewal/appointment and the others shall be continued after vacation of the stay orders passed by the Tribunal. Thus the applicants out of fear of losing their jobs and the promise made by the department, refrained from becoming a party to the pending litigation.
3. On an application moved by the respondent department, the Tribunal directed that the result of the applicants of the OA shall not be declared whilst directing that the remaining posts may be filled up. Between December 2019 and January, 2020, 109 posts of Craft Instructor(s) were filled up, however, the name of the applicants appeared on the waiting list and on inquiry were told that they had cleared the interview and would also be appointed. O.A.2302/2019 was allowed by this Tribunal holding that Contractual Craft Instructor(s) shall not be replaced by other Contractual Instructors in terms of the judicial precedents. Applicants continued to hold their post, however, the respondent department changed their stand by stating that the department will appeal against the order of the Tribunal (supra) and thereafter make further appointments. The applicants were assured that they will be appointed as many vacancies existed.
5OA 1339/2020
4. In the meanwhile, World was hit with COVID-19 pandemic including India. Classes at ITI(s) were made online, albeit, neither the applicants of the OA nor the applicants herein were given any appointment despite the existence of vacancies and requirement of work. The Delhi Govt. issued an order that none of the contractual staff shall be removed during COVID-19 pandemic. The said circular was passed to combat the economic regression and the unemployment leading to chaos on daily sustenance, such action was likely to cause. Despite the online classes being held the department neither appointed the applicants herein nor appealed against the order of this Tribunal. Ultimately, a Contempt Petition i.e. CP No.114/2020 was filed wherein the counsel for the respondent sought time on the ground that the department was filing appeal before the Hon'ble High Court and the matter was thus adjourned to 26.08.2020. The fate of the applicants was in limbo.
5. In compliance of the order dated 23.01.2020 passed by the Tribunal, the respondent department passed order directing the re-engagement of only the applicants of the OA neglecting the applicants who are similarly situated and also being replaced by other contractual staff. Applicants represented as they would be the only ones now left out from the batch of 2017-2018 and 2018-2019 for extension of their contract and requested for appointment/extension as also the vacancies still exists. In fact the subject data base has been expanded by the institute 6 OA 1339/2020 requiring more teachers, the respondent department will essentially have the requirement. The applicants' appointments were also wrongly terminated and contracts not extended.
6. Thus the instant OA has been filed as the respondents deny extension to the applicants on the sole ground that the applicants were not a part of the OA no.2302/2019 and hence their contractual services can be replaced by others on contract.
7. Further, in their rejoinder, the applicants have submitted that in the above mentioned case of Kavita, two applicants were initially denied employment on the ground that they did not form a part of the original 53 applicants of OA No.2302/2019 and that the order of the Tribunal only pertained to 53 applicants. On rejection of their claim, the Hon'ble High Court remanded the matter back to the Tribunal.
8. Subsequently, the two left out similarly situated employees i.e. Pinki and Jyoti were also permitted to rejoin on their respective posts. In this manner, all the contractual employees which were sought to be replaced by identically situated candidates vis-à-vis the service conditions have been restituted on their respective posts in the department.
9. It is also contended by the applicants that even though the contract of the applicants was till 30.07.2019, for some of the applicants the same was curtailed on 19.07.2019 to defeat the legitimate right of the contractual staff. Moreover, their juniors 7 OA 1339/2020 have been engaged as part-time Instructors. Yet they are not being considered as the department has decided to appoint fresh persons on similar contract posts.
10. It is further stated that currently only seven applicants who are not permitted to join back on their respective posts despite vacancies as well as functional requirement. Therefore, they have sought the following relief:
(a) To direct the respondents to apply the Office Order No.F.32(48)/CC/Trg. Admn./2019/407 dated 25.08.2020 on the applicants of the present Original Application;
(b) To grant the same relief to the applicants as granted to the applicants of OA No.2302/2019;
(c) To extend the contracts of the applicants for session 2020-
2021 as done to other similarly situated employees;
(d) To declare that the contractual employees cannot be replaced by other contract employees.
(e) To direct the respondents not to replace the service of the applicants by any other sources except the way of regular appointment and to declare that the applicants to serve the respondent department till the regular appointment on the posts.
(f) Accord all consequential benefits.
(g) Award cost of the proceedings.
8OA 1339/2020
(h) Pass any other order as deemed fit and proper in the facts and circumstances of the case and allow cost in favour of the applicant.
11. The basic contention of the applicants is that the applicants cannot be removed by fresh candidates in similar nature of employment because of the established principle based on various judgments of the Hon'ble Courts holding that contractual ad hoc/temporary employees cannot be replaced by persons employed in a similar manner.
Towards this, they have cited a catena of judgments:
(a) Jagdish Saran Vs. Union of India, (1980) 2 SCC 768
(ii) State of Haryana Vs. Piara Singh & ors., (1992) 4 SCC 118
(iii) Narender Singh Ahuja Vs. The Secretary, Ministry of Health and Family Welfare and ors.
(iv) Chameli Singh Vs. State of U.P., (1996) 2 SCC 549
(v) P.G. Gupta Vs. State of Gujarat, 1995 Supp (2) SCC 182.
(vi) D.S. Nakara Vs. Union of India, (1983) 1 SCC 305.
(vii) Harjinder Singh Vs. Punjab State Warehousing Corpn., (2010) 3 SCC 192.
(viii) Y.A. Mamarde Vs. Authority under the Minimum Wages Act, (1972) 2 SCC 108
(ix) Balbir Kaur Vs. SAIL, (2000) 6 SCC 493
(x) Commissioner KVS Vs. Anil Kumar Singh, 2010 (3) 9 OA 1339/2020 SCC 284
(xi) Ramon Services (P) Ltd. Vs. Subhash Kapoor, (2001) 1 SCC 118
12. Through the above mentioned judgments, broadly the following principles have been highlighted:
(i) Constitutional law is not an omnipotent abstraction or distant idealism but a principle yet pragmatic value ridden and result oriented proposition applicable to and conditioned by the development of the nation.
(ii) The right of everyone to an adequate standard of life for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions should be recognized.
(iii) Contractual ad hoc/temporary employees cannot be replaced by persons employed in a similar manner.
13. Though the issues of livelihood and social justice have been invoked variously, the import of the citations is that the contract employees cannot be replaced by another set of contract employees and thus the said posts cannot be filled through fresh recruitment replacing the existing contractual Craft Instructors.
14. At the outset, respondents in their submissions have tried to bring out that the applicants were not engaged as contractual Craft Instructors but, in fact, were engaged as Part-time Instructors on hourly basis and it is wrong and denied that they were selected after adopting due selection from DSSSB/GNCTD. All these people engaged as Craft Instructors have worked for staggered timing in a 10 OA 1339/2020 day according to functional requirement. Many times they just sit in the premises at their own will and it does not justify the fact that they are working full time. However, as per the direction of the Tribunal, the 53 applicants have been continued and two more applicants have been added to the list who were not a part of OA- 2302/2019.
15. They have also contended that due to Covid 19 and non completion of admission process, at present one year certificate courses and first year classes and the two year the two year courses are being taken on time by regular Craft Instructors and contractual Craft Instructors. One to availability of Craft Instructors and non completion of admission, at present there is no functional requirement of part time Instructors.
16. Respondents have relied on the following judgments in support of their contentions:
(i) State of U.P. & ors. Vs. Arvind Kumar Srivatava & ors., Civil Appeal No. 9849/2014
(ii) Asok Kumar Das Vs. Paschim Banga Gramin Bank & ors., W.P. No.18263 (W) of 2007 By Hon'ble Calcutta High Court
(iii) Shweta Jaswal & anr. Vs. State of Punjab & anr., C.W.P. No.2634/2016 by Hon'ble Punjab & Haryana High Court
(iv) New Delhi Municipal Council Vs. Krishan Lal & ors., 11 OA 1339/2020 W.P. (C)No.3287/2013 by Hon'ble Delhi High Court
17. The basic import of these judgments is the principle that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit is subject to well-recognized exceptions in the form of laches, delay as well as acquiescence. A person who is not vigilant of his right and acquiesces with the situation cannot be heard after couple of years on the ground that the same relief was granted to a person similarly situated.
18. We have perused the pleadings and heard the learned counsels for both sides based on which the issues which are identified for deliberation are as follows:
(i) Since the basic principle invoked in the submission made by the applicant through the catena of judgments cited is that the contractual employee cannot be replaced by another set of contractual employee, the question is whether the applicants are contractual/ad hoc employees or not. Respondents have claimed that they cannot be treated as contractual given the nature of their work. This issue has been deliberated in detail while disposing M.A.3924/2019 and OA 2302/019 by the Tribunal in their order pronounced on 23.01.2020 which held as follows:
"From the facts and circumstances of the case, it is clear that though the applicants were engaged as per the offer of appointment letters under the alleged scheme and policy referred to above, on part time hourly basis and though the respondents have submitted that the applicants can work in the remaining time after 32 hours per week anywhere else, but however, in view of the monthly biometric attendance 12 OA 1339/2020 sheet shown to us, it is clear that the applicants are actually working regularly for 7 to 9 hours a day and moreover as per paras 6 & 11 of the terms and condition of offer of appointment extracted above, their original certificates were kept with the respondents as such practically they are not allowed to work for any other employer, we are of the view that engagements of the applicants are nothing but a new device of engagement to deprive the applicants the status of contract engagement so as to deny them the benefit of even continuity of engagement, in accordance with the law laid down by the Hon'ble Supreme Court in catena of cases right from 1992 in the above said Piara Singh's case (supra) and in Uma Devi's case (supra) which has been emphatically stated in the above extracted portion of the judgment in Sheo Narain case (supra), until regular appointments are made to the said posts and, therefore, the action of the respondents including the above extracted scheme and policy are against the principles of law laid down by the Hon'ble Supreme Court in the above referred cases and also against the principles underlying Article 14, 16 of the Constitution of India as stated in the above said case of Sheo Narain and are in contravention of the duty enjoined on the respondent-state under Article 37 read with Article 39 (d) and (e) of the Constitution of India and also in view of the experience gained by the applicants for having worked with the respondents from the academic year 2017-2018, the respondents are bound by the law laid down by the Hon'ble Supreme Court referred to and extracted above to continue the applicants until the respondents make regular appointments as per Recruitment Rules."
Thus, the contractual/ad hoc status of the applicants is no more an issue of contention and consequently well settled principal as established by a catena of judgments that they cannot be replaced till regular appointments are made, does not require further elaboration.
(ii) The second issue is and which is also the crux of the submission made by the applicants is regarding granting same relief to the applicants as granted to the applicants of OA No.2302/2019 as they are similarly situated. It is not in dispute that the 53 applicants were given relief based on the relevant order of the Tribunal and the relevant order was passed retaining their services. The two applicants who were added to the list subsequently had approached the 13 OA 1339/2020 Tribunal through MA No. 3924/20019 on 06.12.2019 by submitting as follows:-
"4. That a typographical error has crept in the memo of parties of the OA as the name of two applicants i.e. Pinki Rani & jyoti has inadvertently been omitted in the memo of parties. The said name are duly mentioned in the chart on the details of the applicants at para 4.1. of the OA albeit, the same could not appear in the memo of parties due to a typing mistake.
5. That the mistake/error/omission in advertent and of the same is not corrected shall cause irreparable injury and loss to the applicants."
However, the Tribunal in its order dated 18.09.2020 disposed the matter with the following observation:
"6. We may also clarify here that it is admitted fact that though the applicants of the aforesaid OA have made certain averments qua 55 applicants in the OA, however, in the Memo of Parties there were 53 applicants only.
Learned counsel for the applicants in the OA has admittedly filed a Misc. Application, seeking modification in the Memo of Parties of the OA and sought addition of two more applicants. However, admittedly the same was never allowed.
In such facts and circumstances, we are of the view that the directions in the aforesaid order/judgment dated 23.01.2020 will be treated as order/judgment in respect of 53 applicants only whose names have been placed in the original Memo of Parties of the OA."
Following this, the applicants approached the Hon'ble High Court in Writ Petition No.8193/2020. Vide its judgment delivered on 19.10.2020, the Hon'ble High Court observed the following:
"5. It is evident that when the said OA No.2302/2019 was finally disposed of by the learned Tribunal vide its order dated 23.01.2020, the M.A. No.3924/2019, instituted on behalf of the petitioners herein, had not been adjudicated upon.
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7. The solitary grievance urged on behalf of the petitioners herein is that, as a consequence of the impugned order, the petitioners ought to have been impleaded as parties to the said O.A.2302/2019, have not been so impleaded and have, 14 OA 1339/2020 consequently, been denied the benefits of the directions issued in the said O.A. xxxx xxxx xxxx
10. Having heard learned counsel appearing on behalf of the parties, the only course that commends itself to us is to direct the learned Tribunal to hear M.A. No.3924/2019, filed on behalf of the petitioners herein in O.A. No.2302/2019, afresh and dispose it of by way of a speaking order, in accordance with law.
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13. List before the learned Tribunal, for the said purpose, in the first instance, on 26.10.2020."
19. From the relevant records, it appears that the said matter was listed before the Tribunal on 26.02.2021 and during the subsequent proceeding, the Tribunal was informed by the learned counsel for respondents that "applicants have preferred representation to the Director, Directorate of Technical Education, Govt. of National Capital Territory of Delhi as they have been advised." It was also submitted that the applicants are hopeful of getting their representations disposed of within 10 days. After this nothing was heard in regard to disposal of their representations but during the hearing, as per submissions made by the learned counsel for the respondents on 31.01.2023, it was noted that the remaining two applicants were included and were re-engaged. This was also reflected in the rejoinder/written statement filed by the learned counsel of applicants.
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20. Be as it may, the fact of the matter is that the two applicants were subsequently included and got the same relief as the initial 53 applicants.
21. The plea taken by the 7 applicants is that they did not try for inclusion of their names because they were afraid that their cases will not be considered if they are part of the OA.
22. While we are not in a position to consider this plea in absence of any supporting evidence, the fact remains that the seven applicants in question are similarly placed and they had approached the Tribunal on 14.09.2021 i.e. immediately after rejection of their claim by the respondents on 25.08.2021. Thus there has not been any significant delay in approaching the competent court of law and as such the recognized exceptions of laches, delay and acquiescence do not strictly apply in the instant case.
23. However, it may be mentioned here that with passage of time some of the reliefs sought have become infructuous e.g. the plea to extend the contracts of the applicant for session 2020-2021 as done to other similarly situated employees, is no more relevant as the session 2020-2021 is long over. Similarly, the interim relief as prayed for by the applicants that during the pendency of the present application the 16 OA 1339/2020 applicants may be permitted to join as part time Instructors for the session 2020-21 is no more relevant.
24. But, it is not in dispute that the applicants were engaged as Craft Instructors by the respondents and they have discharged their duty and there is nothing adverse against them. As such, their case needs to be considered with an open mind. Also the submission made by the respondents earlier about the prevailing Covid 19 situation and resultant non-completion of the admission process, one year certificate course and Ist year classes and non- starting of the two year trades may have undergone change presently after easing out of Covid situation. Thus there may be a functional requirement for the applicants now.
25. In view of the above, respondents may reassess the functional requirement of Craft Instructors and take a considered decision to re-engage them as has been done in the case of 55 applicants, if there is a requirement for such posts and also if their juniors have been engaged overlooking the principle of "last come first go." Such decision may be taken by the concerned authority amongst respondents expeditiously and communicated to the applicants preferably within six weeks of receipt of this order. While doing so, the requisite relaxations, if any, in terms of the age etc. may also be considered as per the extant Recruitment Rules. However, the applicants will earn wages from the day of their engagement if any 17 OA 1339/2020 and will not be entitled to any back wages. OA is disposed accordingly. No order as to costs.
(Sanjeeva Kumar) (Manish Garg)
Member (A) Member (J)
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