Central Administrative Tribunal - Jodhpur
Jagdish Solanki vs M/O Finance on 29 March, 2019
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CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
O.A. No.290/00259/13
Reserved on : 07.03.2019
Jodhpur, this the 29th March, 2019
CORAM
Hon'ble Smt Hina P. Shah, Judicial Member
Hon'ble Ms Archana Nigam, Administrative Member
Jagdish Solanki S/o Shri Lal Chand, aged about 37 years, resident
of Babu Laxman Singh Colony, Near Afsara ladies Tailor, Outside
3rd Pole, Jodhpur, at present employed as casual worker in the
office of CCIT, Jodhpur.
........Applicants
By Advocate : Mr T.C. Gupta.
Versus
(1) Union of India. through Secretary to Govt. of India,
Ministry of Finance, Central Board of Direct Taxes, North
Block, New Delhi.
(2) Chief commissioner of Income Tax (CCA), C.R. Building,
Statute Circle, B D Road, Jaipur.
(3) Chief Commissioner of Income Tax, Paota C Road,
Jodhpur.
........Respondents
By Advocate : Mr Sunil Bhandari.
ORDER
Per Smt. Hina P. Shah The present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking following reliefs :
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(i) That the impugned order dated 15.03.2013 (Annexure A/1) so far it relates to rejection of claim of the applicant by Committee, order dated 30.04.2013 (Annexure A/2) rejection of representation, passed by 2nd respondent, may be declared illegal and the same may be quashed.
(ii) That the respondents may be directed to reconsider the case of the applicant for regularisation on the basis of his actual working as per report of his controlling authority and allow him all consequential benefits as per rules in force at the relevant time, i.e. 10.04.2006.
(iii) That any other direction, or orders may be passed in favour of the applicants, which may be deemed just and proper under the facts and circumstances of this case in the interest of justice.
2. Brief facts of the case, as averred by the applicant, are that the applicant was initially engaged as daily wages casual worker to work as casual worker Peon/Chowkidar on dated 15th May, 1995 in the office of Income Tax Office, Jodhpur. The applicant is primarily doing the ancillary office jobs from time to time as per orders of his incharge. He is employed on full time duty of eight hours a day. He was also sometimes called upon to work on holidays as per requirement of work. The nature of work entrusted to him is of perennial nature and is the same as that of regular employees. He has been performing his work satisfactorily. Nature of work entrusted to him and that of regular employees is the same. DoPT issued an OM dated 07.06.1988 'Recruitment of casual workers and persons on daily wages- Review of Policy', which inter-alia provides that where the nature of work entrusted to the casual workers and regular employees is the same; the casual workers may be paid at the rate of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance for work of 8 hours a day. The respondents fixed and 3 revised the rate of daily wages of the applicant and other similarly situated casual labour who were doing the same work as that of regular worker from time to time and they were being paid at the 1/30th of the pay at the minimum of the time scale of pay of the Group 'D' staff plus dearness allowances as per the provisions of OM dated 07.06.1988. DoPT had also issued OM dated 31.05.2004 merging 50% of DA with the basic pay. The same was applicable to temporary status casual labour and also to casual workers who are doing the same work as that of regular worker who are entitled to 1/30th of the pay at the minimum of the time scale of pay of the Group 'D' staff plus dearness allowances. 3rd respondent issued an order dated 09.07.2007 for implementation of the same and case of the applicant fell in the latter category. An amount of Rs 164 per day was fixed for such casual workers, which was revised to Rs 222 w.e.f. 01.07.2008 vide order dated 12/17.11.2008 and Rs 292 w.e.f. 01.10.2010. Some similarly situated casual labours successfully challenged the withdrawal of aforesaid OM and claimed that wages @ Rs 292 per day w.e.f. 01.07.2008 and their OAs have been allowed vide order dated 14.08.2012, passed in case of Shri Abdul Kadir and Others Vs Union of India & Ors etc. by this Bench of the Hon'ble Tribunal. However, only those persons who have entered into litigation have only been paid the wages @ Rs 292 per day and not the applicant. The respondent-department floated a Scheme to 4 regularize the casual employees who have served for 10 years or more, in view of the judgment delivered by the Hon'ble Supreme Court in the case of Uma Devi and keeping in view the ratio of the judgment, cases of casual employees working for 10 years or more were processed for regularisation. Ministry of Personnel, Govt. of India issued an Office Memorandum dated 11.12.2006 to regularize the daily wagers completing 10 years continuous service on 10.04.2006 and in pursuant to the OM, respondents constituted a Committee at Jaipur Head Quarter (Annex. A/3). The name of the applicant was also considered since he fulfilled the requisite eligibility conditions of regularization. The applicant was not informed about the same despite the fact that he submitted representations in the matter. He inquired from the concerned officials of the 3rd respondent and was told that the matter of regularisation was under consideration and the requisite records have been called by the 3rd respondent for verification by a Committee constituted for the purpose. A review Committee was also said to have been constituted in the matter, subsequently. The applicant obtained the report of the committee constituted for regularisation of daily wagers vide letter dated 15.03.2013 under RTI Act, 2005 (Annex. A/1). The name of the applicant has been included in the list of eligible candidates but his case has been turned down with the observation that "The DDO's cash book was produced from Sep 5 95 to Aug 99, Apr 2001 to till date. On perusal of the cash book, it was seen that the payment upto July 96 and Feb 97 to Oct 97, Jan and Feb 98 and Apr 99 to Nov 2001 have not been made. Thus there is no continuity of payments as per records." The controlling authority of the applicant had certified that the applicant has continuously worked as Daily Wager ever since his appointment and the committee is inferring interruption in his service on the basis of entries in the cash book. The cash book is not an attendance register. Cash book contains only the total payment made to the individuals and that too even there is no mention of the months for which the particular payment is made. This fact is evident from extract of some pages from cash book even for the period which is included as non-working by the committee (Annex. A/4). Three months payment for the months of April, May and June, 2001 was made vide S.No. 21, 22 and 23 respectively. Similarly payment of Rs 1,320/- was made vide S.No. 81 on 06.09.2001 but it is not indicated as to for which month it was. The applicant got a copy of some of the FAC Bill duly verified and same relates to the so-called interruption period for the months of Feb, 97, March, 97 and Sept, 97 (Annex. A/5). Such bills are prepared by the individuals every month and the payments are made after verification of actual working by their controlling authority. The bills are finally paid by the cashier. The complete records of working of the casual/daily wager are 6 kept/maintained by their controlling officer. The applicant submitted a detailed representation on 22.03.2013 (Annex. A/6) to the 2nd respondent for reconsideration of his case but the same was bruptly rejected vide letter dated 30.04.2013 (Annex. A/2) on the ground of non-verification of service and also by taking subsequent instructions which had no application on the actual date of eligibility, i.e. 10.04.2006 as the instruction being prospective only, i.e. from 18.01.2011. The respondents are in fact adamant in denying the due benefits of regularisation; rather deliberately flouting the judgment of the Apex Court. 3rd respondent verbally instructed the subordinate officers on 17.01.2012 to terminate the services of the applicant and other casual labour/workers. They were told not to come on duty from 18.01.2012. They were also told that the outsourcing of the work being done by them which was to be carried out through contractor as per the orders of 3rd respondent. Therefore, applicant filed an OA No. 119/2012 against his termination and also prayed for regularisation. The same came to be disposed of vide order dated 29.10.2012 and prayer of regularisation was abandoned and not examined on merits since the same was under
active consideration with authorities. Now, 3rd respondent issued an order dated 27.02.2013 for taking back the casual labours who had worked on daily basis/or on contract basis after preferring aforesaid OA before this Tribunal. The applicant was taken back 7 on duty/re-engaged as casual labour on daily wages basis on the job he was earlier working. However, despite working for a long time and specific orders of the Apex Court, he is being deprived of the regularisation in service. Therefore, the applicant has approached this Tribunal seeking regularisation of his services.
3. Respondents filed reply on 02.04.2014 and stated that the present Original Application is barred by the principles of resjudicata/constructive resjudicata as the applicant had earlier filed an Original Application No. 119/2012 before this Tribunal praying that "(B) That the respondent may kindly be directed to regularize the services of the applicant as class IV employees in the office of respondents w.e.f. the date of their employment and further to fix the applicant in regular pay scale of the aforesaid post." However, the prayer for regularization was not pressed by the applicant rather forgone by him and thus it is barred by the principles of resjudicata/constructive resjudicata in praying for the same relief again. The same is nothing but an abuse of the process of law. Prayer not pressed is a prayer given up and rather a prayer declined and cannot be called upon to be prayed in any subsequent case again. Mere submission of representation would not give rise to any cause of action which had been abandoned at the earlier point of time. The Hon'ble Supreme Court has time and again in catena of judgments held that it is not permissible to obtain a second judgment for the same civil relief 8 on the same cause of action or give rise to another cause of action on the same facts. Relief prayed for and not pressed is relief not granted and second application for the same relief is barred by law. The respondents have further stated that the applicant was only assigned miscellaneous type of work which was temporary in nature and his work was never at par with those of regular or permanent employees. OM dated 07.06.1988 prohibits engaging persons on daily wages for attending work of a regular nature and thus, the applicant was never appointed for attending the work of regular nature. In compliance of judgment rendered by Hon'ble Supreme Court in the case of Secretary, State of Karnataka & Ors Vs Uma Devi & Ors and DoPT OM dated 11.12.2006, the Chief Commissioner of Income Tax, Jaipur vide his Order No. 738 dated 16.03.2019 constituted a screening committee with a direction to identify and recommend eligible cases of daily wage workers for regularization who had completed 10 years of continuous service in the department. The said committee was reconstituted vide Order No. 750 dated 19.03.2009. The screening committee examined the record of all the candidates thoroughly and examined each and every aspect of the matter but did not find any of the candidates eligible for regularization in view of the law laid down by the Hon'ble Supreme Court. After examining and verifying the office records of the candidates including the applicant, it was categorically held by the screening committee 9 that as on 10.04.2006, the candidates including the applicant, had not rendered 10 years or more of continuous services in the department as daily wager on duly sanctioned post and the records did not prove the continuity of service of the candidates including the applicant. The screening committee had examined the matter of regularization minutely and in its entirety and then arrived at a categorical finding to that effect. Moreover, a review committee was also constituted for the purpose of consideration of the cases for regularization of daily workers by the order of CCIT (CCA), Jaipur dated 17.08.2011 and modified vide Order dated 12.09.2011 and the said review committee also arrived at the finding that the candidates including the applicant were not eligible for regularization. The report of the screening committee and the review committee are already on record as Annexure A/1 and the original applicant has utterly failed to point out any infirmity, illegality and arbitrariness in the said report and the findings arrived thereto. The applicant has utterly failed to show 10 years or more of continuous service as on 10.04.2006 so as to claim regularization. The rejection of the representation submitted by the applicant was proper, justified and in accordance with law laid down by the Hon'ble Supreme Court in the matter of Secretary, State of Karnataka Vs Uma Devi & Ors and after considering the report and findings of the screening committee as well as the review committee. Moreover, vide 10 notification dated 17.01.2011 the Income Tax Department (Group D) Recruitment rules, 2003 have been superseded by the Income Tax Department (Multi Tasking Staff) Recruitment Rules, 2010 and thus all the Group D posts have been abolished and post of MTS have been created which is Group C post and the appointment on the said post is made 100% by Direct Recruitment through the SSC/Board. The applicant can very well compete for being appointed as MTS through the regular process of selection. Thus, the respondents have prayed for dismissal of the OA.
4. By way of rejoinder, applicant has submitted that finding of the committee was not fair and Committee did not examine the whole and relevant records relating to the verification of continuous service. Only part records were produced before the Committee by the DDOs. The applicant was eligible for regularization w.e.f. 10.04.2006, the date of the Supreme Court decision in the case of Uma Devi. Recruitment Rules of MTS are of no consequences in the case in view of decision dated 07.03.2014 of Hon'ble Supreme Court in the case of Director, Printing and Stationary Department, U.P. Government Press and Others Vs. Motil Lal and Others, Civil Appeal No. 3339-3340 of 2014. The applicant further stated that he has submitted some certificates issued by the different officers/DDOs regarding his continuous service from 15.05.1995. The same has not denied by the respondents. One such certificate was issued on 20.06.2005 by 11 Shri T.C. Gupta, the then ACIT (Admn), O/o the CCIT, Jodhpur. An affidavit of Shri T.C. Gupta presently working as DCIT, regarding regular service of applicant from 15.05.1995 and certificate dated 20.06.2005 has also been annexed. Thus, the applicant denied the averments made by the respondents as not admitted.
5. Heard Shri T.C. Gupta, learned counsel for the applicant and Shri Sunil Bhandari, learned counsel for the respondents and perused material available on record.
6. It is the case of the applicant that he is basically seeking reconsideration of his case for regularization on the basis of his actual working with consequential benefits. He has prayed that order dated 15.03.2013 (Annex. A/1) passed under RTI Act as well as the order dated 30.04.2013 (Annex. A/2) whereby his representation dated 22.02.2013 has been decided, may be quashed and set aside.
7. Ld. counsel for the applicant besides reiterating the facts stated earlier, submits that he is seeking similar relief which has been granted to persons similarly situated while relying upon the judgment of Hon'ble Apex Court in the case of Ravi Verma & Ors Vs. Union of India & Ors passed in Civil Appeal No(s) 2795-2796 of 2018 on 13.03.2018. He stated that since applicant is similarly 12 situated employee as Ravi Verma & Ors (supra), he should be given similar reliefs. His other submissions are that the final relief which has been granted to Mr Kishor Kumar Yadav in OA No. 261/2013 may also be extended to the present applicant. He further stated that since applicant has completed more than 10 years of continuous service as on cut off date of 10.04.2006, his services are deemed to be regularized. He further stated that the respondents have rejected the claim of the applicant in whimsical and arbitrary manner, which cannot be sustained in law. He further stated that the Committee should have evolved its illegal advice to deny regularization to the applicant and other similarly situated persons in general and also to flout the judgment of the Hon'ble Apex Court particularly with regard to the Uma Devi's case. He thus prayed that the relief pertaining to regularization be granted to the applicant with all consequential benefits.
8. On the other hand, Ld. counsel for the respondents besides reiterating the facts and basic grounds on which the OA has been filed by the applicant states that the relief claimed by the applicant pertains to regularization of services. The respondents stated that the applicant earlier had filed OA No. 119/2012 before this Tribunal wherein he has in para 8(b) of the OA prayed for following relief :
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"8(B) That the respondent may kindly be directed to regularize the services of the applicant as class IV employees in the office of respondents w.e.f. the date of their employment and further to fix the applicant in regular pay scale of the aforesaid post."
The submission of the learned counsel for the respondents is that since in the earlier round of litigation, applicant had already prayed for regularization of his services and the same was not pressed by him which is also reiterated in judgment dated 29.10.2012 and this Tribunal had observed in para 1 of the said judgment at internal page 21, which reads as under :
.......The Learned Counsel for the applicants submitted that they are not here for regularization. The law is not a static but a dynamic process......
Learned counsel for the respondents, therefore, stated that once a prayer by the applicant is not pressed for, given up and now the said prayer cannot be again called upon to be prayed in a subsequent case again as the same is barred by principles of res- judicata/constructive res-judicata. Even merely submitting a representation for the same cause of action i.e. regularization of his services which has been decided by the Committee and challenged by the applicant at Annex. A/2 dated 30.04.2013 cannot give a fresh cause of action to the applicant on the ground that the said representation of the applicant has been decided and he has approached the Tribunal within time. It is clear that the applicant had prayed for the said prayer of regularization in the earlier round of litigation, therefore, he is estopped from raising the same issue again. The respondents further stated that in 14 compliance of judgment in the case of Uma Devi as well as DoPT OM dated 11.12.2006, the Chief Commissioner of Income Tax, Jaipur constituted a Screening Committee with the direction to identify and recommend eligible cases of daily wage worker for regularization who is continuously working in the department. The said committee examined each and every case thoroughly on the said issue and have found that the candidates including the applicant were not eligible for regularization. The report of the Screening Committee and Review Committee are challenged at Annex. A/1 which is the information provided to the applicant under RTI Act. The information provided under RTI Act is required to be dealt by the applicant in a separate manner as per law. The rejection of the representation of the applicant is proper, justified and is in accordance with law. Therefore, he prayed that the OA deserves to be dismissed with exemplary costs.
9. Learned counsel for the respondents also drew our attention to the fact that the applicant filed Annex. A/7 document alongwith rejoinder, which is an affidavit filed by Mr T.C. Gupta who is appearing in the present case on behalf of the applicant. The said affidavit dated 26.07.2014 is sworn by Mr T.C. Gupta who was working as Deputy Commissioner of Income Tax (Hqrs) in the office of CIT-IV, Queens Road, Bangalore. This affidavit sworned by the learned counsel for the applicant himself in the capacity of 15 Deputy Commissioner of Income Tax on 27.07.2014.
Subsequently, he is representing the applicant in the present case which is not in a manner of professional ethics. Learned counsel for the respondents submitted that Mr T.C. Gupta could not have represented the applicant who was working with the respondents at that relevant point of time. The respondents especially relied on the judgment of Hon'ble Bombay High Court passed in "Notice of Motion (L) No. 706 of 2017 in Commercial Suit No. 614 of 2017"
dated 05.03.2018. Wherein Hon'ble Bombay High Court has clearly observed at para 2 of the said judgment that :
1. At this point of time, the Judiciary is mired in challenges of a very grave nature, perhaps like never before. It is being observed that there is, amongst some litigants and their Advocates, virtually no fear or hesitation in making false statements and misrepresentations before the Court, which should under any and all circumstances be dealt with the iron hand of the judiciary with zero tolerance for such blatantly unethical and mala-fide behaviour.
2. The dignity and respect of the Court along with its prescribed procedures is being unabashedly violated by certain litigants who are using foul and unfair means to demean and denounce the august Judiciary by making frivolous and baseless allegations against the Judges, and/or their opponents and their Advocates, with a view to rescind and back-track on solemn undertakings and statements earlier made in Court. This malicious modus operandi of certain dishonest litigants is absolutely unacceptable, as it seeks to subvert the very foundations of justice that the Judiciary is committed to uphold. With no merit in their case, and in a bid to avert an unfavourable order being passed against them, such dishonest litigants collude with their Advocates to use underhanded means to ensure favourable orders and their consequent success in litigation instituted or defended by them.
3. Certain Advocates sadly seem to have forgotten the code of eithcs that enjoins upon all Advocates, that they are Officers of the Court first and Advocates of their clients only thereafter. It is anguishing to note that such Advocates facilitate the unethical 16 misadventures of their clients, often encouraging their clients' dishonest practices, causing grave stress to the Judiciary, and unfortunately bringing the entire judicial system to disrepute. It has become a vicious and despicable cycle wherein dishonest litigants with malafide intentions seek out unethical Advocates, who for hefty fee and the lure of attracting similar new and unscrupulous clients, conveniently choose to disregard and/or forget all ethics and the code of conduct enjoined upon this august profession. It is with a heavy heart, that Courts at times note that clients have no hesitation in replacing good and honest Advocates, with unscrupulous ones, who go to any dishonest lengths, merely to secure favourable orders for their clients.
The respondent relied upon the judgment of Hon'ble High Court passed in Mahendra Singh & Ors Vs Union of India & Ors dated 19.03.2015 in DBCWP No. 12786/2012 wherein Hon'ble High Court observed that :
The issue involved in this writ petition has already been examined by this Court in DB Civil Writ Petition No. 1924/2011, Union of India & Ors. V. Jeevan Singh Gehlot & Ors., decided today only.
This writ petition too is disposed of in terms of the judgment referred above. The petitioners shall not be entitled for regularisation of services as the claim in the regard was not pressed before the Central Administrative Tribunal.
Learned counsel for the respondents, therefore, pleaded that present OA filed by the applicant amounts to miscarriage of justice and therefore, deserves to be dismissed.
10. Heard rival contentions of the parties and perused the judgments cited by both the parties.
11. The factual matrix in the present case is that the applicant is seeking regularization of his services on the ground that he is in 17 continuous service with the respondents for more than 10 years on the date of judgment of Secretary, State of Karnataka & Ors Vs Uma Devi & Ors since he has completed 10 years of service as required for regularization. It is clear that the applicant had earlier in OA No. 119/2012 prayed that his casual services need not be terminated as well as his services are required to be regularized. While the matter was finally decided, the applicant had forgone his claim for regularization and only prayed that his adhoc services need not be terminated. Also, when the matter was taken up before the Hon'ble Rajasthan High Court, Hon'ble High Court in its order dated 19.03.2015 in a group of cases wherein the applicant was a party, has decided that since applicants are not claiming for regularization of their services they are not entitled for regularization as the said claim was not pressed before the Central Administrative Tribunal.
12. It is very clear that that the applicant herein again is trying to reopen the issue of regularization on the basis that he has completed 10 years of continuous service required for regularization as per Uma Devi's judgment. The claim for regularization which was given up by the applicant and issue which had already attained finality before Hon'ble High Court, cannot now be reopened. The applicant relied upon the judgment of Hon'ble Apex Court in Ravi Verma's case (supra), 18 which is not applicable as the relief which had already been forgone by the applicant and now the said judgment cannot give him any relief merely on the ground that similarly situated persons have been given a particular relief. Also, the claim of the applicant that he is entitled for final relief as extended to Mr Kishor Kumar Yadav in OA No. 261/2013 cannot be accepted as the prayer of regularization had already been forgone by Mr Jagdish Solanki at the time of final hearing, which is recorded in order dated 29.10.2012 as is evident from the said order that he had only sought for continuation of his adhoc service. Therefore, interim relief granted in the aforesaid case which has not been merged in the final order cannot be granted to the applicant.
Respondents have raised the issue of res-judicata/constructive res-judicata. We observe that in earlier round of litigation in OA No. 119/2012, the applicants had forgone the said prayer which now cannot be reopened by way of present OA. The Hon'ble Rajasthan High Court in the case of Hanuman Singh & Ors vs Board of Revenue and Ors., reported in AIR 2002 Raj 365, 2002 (2) has clearly observed that "A litigant should not be allowed to re- agitate the same cause of action once he has availed of an opportunity to approach the Court with respect thereto." Also, the observation of Hon'ble Supreme Court in the case of Avinash Nagra Vs Navodaya Vidyalaya Samiti and Ors, reported in 1997 SCC (L&S) 565 observed that "The High Court also was right in its 19 conclusion that the second writ petition is not maintainable as the principal of constructive res judicata would apply. He filed the writ petition in first instance but withdrew the same without permission of the Court with liberty to file the second writ petition which was dismissed. Therefore, the second writ petition is not maintainable as held by the High Court in applying the correct principle of law."
13. Now, pertaining to Annex. A/7 affidavit filed by the applicant sworn in by Mr T.C. Gupta on 26.07.2014 who is also appearing on behalf of the applicant in the present case leaves much to answer in view of professional conduct and ethics of Advocate appearing on behalf of the applicant. The judgment relied on by learned counsel for the respondents passed by Hon'ble Bombay High Court in "Notice of Motion (L) No. 706 of 2017 in Commercial Suit No. 614 of 2017" dated 05.03.2018 (supra) is applicable in this case on the ground of professional ethics. It is clear that Shri T.C. Gupta, the Advocate for the applicant sadly seems to have forgotten the professional ethics. However, this Tribunal is not interested to go deep in this issue but cautions Shri T.C. Gupta not to repeat the same in future, else stern action will be taken and dealt with in appropriate manner.
13. It is very clear that since prayer of the applicant for regularization had already been forgone by him in earlier round of litigation, now the same cannot be reagitated in the present OA. 20 Mere disposal of representation by the respondents cannot give rise to a fresh cause of action to the applicant as has been held by the Hon'ble Supreme Court in catena of judgments. Apparently, claim of the applicant in the present OA hinges around the prayer which had already been forgone by him in OA No. 119/2012 earlier, which cannot be reopened now in the present OA as the same has attained finality at the level of Hon'ble High Court vide its order dated 19.03.2015.
15. In view of the observations made hereinabove, the impugned orders dated 15.03.2013 as well as 30.04.2014 cannot be interfered by this Tribunal. Accordingly, OA lacks merit and the same is dismissed with no order as to costs.
[Archana Nigam] [Hina P. Shah] Administrative Member Judicial Member Ss/-