Central Administrative Tribunal - Delhi
Narendra Singh vs North Delhi Municipal Corporation on 25 January, 2019
Central Administrative Tribunal Principal Bench, New Delhi OA No. 2288/2016 New Delhi this the 25thday of January, 2019 Hon'ble Sh. Pradeep Kumar, Member (A)
1. Sh. Narendra Singh S/o Late Sh. Rajpal Singh Aged about 34 years, Presently posted at DHO Office City Zone North MCD
2. Sh. Vindo Kumar Sharma S/o Sh. Pyare Lal Sharma Aged about 29 years, Presently posted at DHO Office City Zone
3. Sh. Yogendra Maurya S/o Sh. Ram Bharose Lal Maurya Aged about 28 years, Presently posted at DHO Office City Zone North MCD
4. Sh. Gulshan Kumar S/o Sh. Bhim Singh Aged about 35 years, Presently posted at DHO Office Rohini Zone North MCD
5. Sh. Arvin Mann S/o Sh. Satbir Singh Mann Aged about 30 years, Presently posted at DHO Office Rohini Zone North MCD
6. Sh. Rajneesh Kumar S/o Sh. Ramjeet Aged about 30 years, Presently posted at DHO Office Rohini Zone North MCD
7. Ms. Shilpa Bhushan D/o Sh. Sajjan Kumar Aged about 30 years Presently posted at DHO Office Rohini Zone North MCD
8. Ms. Sangeeta Mann D/o Sh. Sahab Singh Aged about 33 years Presently posted at DHO Office Rohini Zone 2 O.A. No. 2288/2016 North MCD
9. Sh. Naresh Kumar S/o Sh. Subhash Chand Aged about 31 years, Presently posted at DHO Office Rohini Zone North MCD
10. Sh. Kapil Khatri S/o Sh. Ramesh Chand Khatri Aged about 34 years, Presently posted at DHO Office Shahdara Zone East MCD
11. Sh. Pramod Kumar Singh, S/o Sh. Mahavir Singh, Aged about 31 Presently posted at DHO Office Shahdara North Zone East MCD
12. Sh. Sahdeep Kumar, S/o Sh. Bhanwar Singh Aged about 34 years, Presently posted at DHO Office Shahdara North Zone East MCD
13. Sh. Amit Kumar, S/o Sh. Surender Kumar, Aged about 28 years, Presently posted at DHO Office Shahdara North Zone East MCD
14. Sh. Vivek Kumar Pal, S/o Sh. Amar Singh Pal, Aged about 32 years, Presently posted at DHO Offfice Shahdara North Zone East MCD
15. Sh. Dheeraj Kumar, S/o Sh. Ram Dayal, Aged about 33 years, Presently posted at DHO Office Shahdara North Zone East MCD
16. Tahir Husain S/o Ismile Aged about 26 years Presently posted at DHO Office Shahdara North Zone East MCD
17. Sh. Rupesh Kumar Moolchand Kataria 3 O.A. No. 2288/2016 Aged about 33 years Presently posted at DHO Office Shahdara North Zone East MCD
18. Sh. Ishtiyaq Ahmed S/o Abdul Salam Aged about 30 years, Presently posted at DHO Office Shahdara North Zone East MCD ..Applicants (By Advocate : Ms. Pragnya Routray ) Versus
1. Secretary, Urban Development & Director Of Local Bodies Govt. of NCT of Delhi 9th Level „C‟ Wing Delhi Secretariat New Delhi
2. North Delhi Municipal Corporation Through its Commissioner, Civic Centre, Minto Road, New Delhi - 110002
3. East Delhi Municipal Corporation Through its Commissioner HQ, Patparganj Industrial Area, Delhi-92
4. Delhi Subordinate Service Selection Board Through its Chairman FC-18, Institutional Area, Karkardooma Delhi - 110092. ..Respondents (By Advocate : Sh. Umesh Joshi-R-3 ,Ms. Asiya for Ms. Rashmi Chopra and Sh. Amit Sinha-R-4) Order (Oral) The instant case is filed by the applicants who are engaged for the post of Assistant Malaria Inspectors on contractual basis 4 O.A. No. 2288/2016 having been appointed by the respondent Corporation way back in the year 2010. One such appointment letter reads as under :-
"On having accepted the terms & conditions of offer letter No. Epid/2010/929, dated 19/9/2010 and signing the contract agreement, Sh. Narendra, S/o Rajpal Singh is hereby allowed as AMI on contract basis on the consolidated emolument of Rs. 10,300/- per month for a period of six month ending on 28.03.2011 and posed in City Zone."
Learned counsel for the applicants mentioned that for engaging the staff on contractual basis, one advertisement was issued in the year 2009 and it was only thereafter that these applicants were engaged on contractual basis. Such contractual appointment has thereafter, been extended from time to time and is continuing even at present also.
2. The respondent corporation as per their minutes of the meeting dated 09.01.2014, had passed a Resolution No.49 which reads as under :-
"Resolved that the following resolution moved by Shri Bharat Bhushan Madan and Shri Devender Solanki & Seconded by Shri Mohan Prasad Bhardwaj, be approved and sent to the Commissioner for further necessary action.
x x x x x x x x Therefore, this meeting of the Delhi Municipal Corporation pledges that the all types of daily wagers, contract employees, part time employees and data entry operators working in the above mention (sic) different Departments of Corporation would be regularized so that they should also get the emoluments for the work they have been doing till now."5 O.A. No. 2288/2016
3. Subsequent to this resolution, one advertisement to fill vacancies, has been issued by respondents vide Advertisement No. 01/14 by Delhi Subordinate Services Selection Board (DSSSB), wherein a large number of posts have been indicated. DSSSB is the recruiting agency on behalf of respondents. The applicants are aggrieved by Post No. 21/14 which is for the post of Assistant Malaria Inspector (AMI), wherein a total of 302 posts have been advertised for filling on regular basis. The opening date of making the applications was 27.1.2014 and the closing date of making such the applications was 27.2.2014. The fee was to be deposited by 28.2.2014.
On seeing this advertisement, the applicants apprehended that their contractual engagement, instead of being regularized as per above resolution (para 2 supra), will come to a close and they will lose their employment and livelihood. Feeling aggrieved they had filed the instant OA, seeking following reliefs :-
"(a) Issue an order/direction to the respondents to treat the Applicants as regular AMIs and grant them salary and other benefits as being given to other regular AMISs (sic) from the date of their initial appointment and other consequential benefits thereof.
(b) Issue appropriate order/direction to the respondents to consider the case of the applicants and grant the Applicants regularization of service on the post of AMI from the date of their initial appointment and all consequential benefits thereof;
(c) Issue direction to the respondents to quash the advertisement as issued vide the advertisement No. 01/14 to the extent of filling up the 302 posts of AMI vide post code 21/14 as and declare the same as arbitrary and discriminatory 6 O.A. No. 2288/2016
(d) Issue an order/direction to impose exemplary cost on the respondent.
(e) And pass such other or further order(s) as may be deemed fit and proper in facts and circumstances of the present case."
Interim relief has also been sough as under :
"(I) The respondents be restrained from conducting the recruitment process for filling up the post of AMIs or in the alternative the respondents be directed to reserve equal number of posts of AMI as those of the applicants. The respondents be further restrained from terminating the services of the Applicants pending disposal of the present proceedings."
4. The applicants have relied upon, a judgment passed by the Tribunal in TA No. 352/2009, wherein judgment was pronounced on 29.09.2015. This case pertains to certain Entomologists, who were working on contractual basis under North Delhi Municipal Corporation and had sought similar reliefs. The Tribunal had granted the following reliefs :-
"32. In the circumstances, the TA is allowed and the respondents are directed to consider the cases of the applicants for regularization as Entomologists, w.e.f. the date of their appointment, by granting relaxations, such as age, etc., wherever necessary, with all consequential benefits. This exercise shall be completed within a period of three months from the date of receipt of a copy of this order. No order as to costs."
5. Another judgment relied upon by the applicants is WP(C) No. 3769/2013, wherein the judgment was delivered by Hon‟ble High Court of Delhi on 4.7.2013. In this case also, the petitioners were appointed on contract basis as Staff Nurses and para-medics by the Municipal Corporation of Delhi. The petitioners sought certain reliefs. This W.P (C) was allowed by the Hon‟ble High Court with the following directions :-
7O.A. No. 2288/2016
"18. We allow the writ petition directing the second respondent to pay salary and allowances to the petitioners as also to all other Staff Nurses and para-medics by including therein not only the Basic Pay, Grade Pay and Dearness Allowance but such other allowances as are being paid by the Government of NCT of Delhi to its contract appointed employees as per the letter dated November 19, 2012."
6. The applicants pleaded that same reliefs (para 4 and 5 supra) need to be granted them also.
They further brought out that some similarly placed other applicants, who were working as Assistant Public Health Inspectors (APHI) in East Municipal Corporation of Delhi and who were contractual appointees, had also approached the Tribunal in OA No. 4289/2015 wherein the judgment was pronounced on 16.02.2018. In this said OA, the contractual appointees had requested for their regularization. However, their OA was dismissed by the Tribunal.
Thereafter, the applicants therein had approached the Hon‟ble High Court of Delhi by filing a Writ. This has been admitted and is slated for hearing on 26.03.2019. The applicants pleaded that their case is also similar, and the judgment by Hon‟ble High Court will become applicable upon the instant applicants also and hence they requested for adjournment of the matter till this is decided by the Hon‟ble High Court.
In the instant case, when the matter had come up for hearing for the first time on 16.7.2016, Tribunal had directed to maintain 8 O.A. No. 2288/2016 status quo in respect of applicants. Thereafter, the applicants have been pleadings to await the decision of Hon‟ble High Court. Respondents have been opposing this.
7. The respondents opposed the OA. They brought out that these applicants are contractual appointees, who by the very nature of this appointment, were very well aware as to the time duration and other conditions associated with such contractual appointment. It is only providence that their contractual engagement has been extended from time to time but they still continue to be on contractual basis only.
It is now the decision of the respondents to engage the Staff on regular basis, for which a decision has been taken and thereafter, the advertisement no. 1/14 has been issued. This advertisement specifically provides the following conditions in respect of the post of Assistant Malaria Inspector under post code No. 21/14.
"Essential Qualification (i) 10th pass under 10+2 system or higher secondary system from a recognized Board/School or equivalent (ii) Sanitary Inspector Diploma from a recognized institutes or equivalent.
Desirable : Knowledge of Hindi Pay Scale : Rs. 5200-20200 +Grade Pay Rs. 2400 Age Limit : Between 18-27 years (relaxation for SC/ST-05 yrs, OBC-03 yrs, PH & SC/ST-15 yrs. PH & OBC-13 yrs. Department candidates up to 40 yrs, SC/ST-05 yrs)."
It is clear that departmental candidates, up to 40 years of age can apply against this advertisement. The applicants can apply 9 O.A. No. 2288/2016 and take part in the process of selection. There is no case for the selection to be kept on hold till decision by Hon‟ble Court. In any case the instant applicants are not a party in the said writ in Hon‟ble High Court. Acoordingly, applicants have no case and the OA is required to be dismissed.
8. Further, in regard to the plea of regularization of contractual staff, respondents relied upon the judgment by Hon‟ble High Court of Delhi in Mrs. Seema Bansal vs. University of Delhi & Others in WP (C) No. 1771/2003, delivered on 14.3.2017. The petition therein pleaded that the post in question was advertised as a permanent post in the year 1995, but the petitioner was appointed only on temporary basis. Petitioners services were terminated on 30.4.1996. Petitioner pleaded that she was selected by the due process against a clear substantive vacancy. The Hon‟ble High Court considered the matter and gave following directions:
"7. In view of the above discussion it is seen that a person who is appointed on ad hoc/temporary post cannot seek regularisation inasmuch as there cannot be regularisation unless posts were advertised as permanent/regular posts, hence the petitioner cannot successfully seek the relief of regularization as is claimed through this writ petition.
8. Dismissed."
In the instant case also, the petitioner were appointed as contractual staff for six months. They were fully aware of terms and 10 O.A. No. 2288/2016 conditions. It is not permissible that they can be regularised without following the due procedure. For this due procedure the notice No. 1/14 has been issued.
9. Matter was heard at length. Ms. Pragnya Routrary, the learned counsel represented for the applicants and Sh. Umesh Joshii, the learned counsel represented the respondent No. 3 and Sh. Amit Sinha, learned counsel, represented on behalf of respondent No.4 and Ms. Asiya, proxy counsel represented on behalf of other respondents.
10. The facts of the case are not in dispute. The applicants were appointed on contractual basis way back in the year 2010 and the initial appointment was for a period of six months only and there was consolidated payments to be made every month. The contractual engagement has been extended from time to time and is still continuing.
In terms of the decision taken by the respondents, steps have been initiated to recruit the staff on regular basis. This process neither can be faulted nor can it be put on hold. The said recruitment needs to be finalised.
The recruitment notice specifies that for departmental candidates, the age relaxation is also admissible up to 40 years of age. Therefore, the applicants herein can also apply against this advertisement and may have already done so. Such of the 11 O.A. No. 2288/2016 applicants who had applied, within the specified date of closing, shall be considered for age relaxation as specified therein (para 7 supra).
With this, the respondents shall proceed ahead with the selection and complete the same.
11. There are many judgments upholding the principle of equal pay for equal work. Accordingly, the contractual employees, if they are doing the same type of work as regular employees, have been granted the benefit of same pay and dearness allowances, though at minimum of the relevant pay scales and without annual increment. The same needs to be considered to the applicants also.
12. As regards, the plea of regularisation of applicants, the same has no merit as they were contractual staff to start with and that also for six months only. The extension of this contractual arrangement from time to time, does not create any vested right for regularisation. For this, the applicants shall have to appear in the relevant recruitment process and be considered, if they succeed in said process.
13. In view of foregoing, the following directions are given :_
(i) The respondents shall consider and pass a reasoned and speaking order, within a period of eight weeks of receipt of certified copy of these orders, as to whether applicants are doing work exactly similar to those who were regularly appointed and if so, respondents shall grant the applicants same scale of pay and dearness 12 O.A. No. 2288/2016 allowance, though at minimum of relevant scale and excluding annual increments. However, it is clarified that if such scales are granted, this shall apply from the date of this judgment only.
(ii) The respondents shall consider the applications, filed by the applicants against the Post Code No. 21/14 of advertisement no. 1/14, as were received within the prescribed due date, by granting them age relaxation to the extent of their working as contractual AMI with respondents, subject to a maximum age as is prescribed for department candidates.
(iii) The recruitment process under Post Code No. 21/14 in advertisement no. 1/14 shall be completed expeditiously.
No order as to costs.
(Pradeep Kumar) Member (A) sarita