Central Administrative Tribunal - Delhi
Vandana W/O Mr. Rohan vs Govt. Of Nct Of Delhi on 19 September, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.4115/2013 Friday, this the 19th day of September, 2014 Honble Mr. A.K. Bhardwaj, Member (J) Honble Mr. V.N. Gaur, Member (A) Vandana w/o Mr. Rohan r/o F-255 Vikaspuri New Delhi-18 .. Applicant (By Advocate: Mr. S N Gupta) Versus 1. Govt. of NCT of Delhi Through its Chief Secretary I P Sachivalaya, New Delhi 2. Medical Superintendent Din Dayal Hospital Hari Nagar New Delhi ..Respondents (By Advocates: Mr. Vijay Pandita and Mr. Anmol Pandita) O R D E R (ORAL)
Mr. A.K. Bhardwaj:
The applicant herein was appointed as Technical Assistant in Deen Dayal Upadhaya Hospital, Hari Nagar, New Delhi on contract basis for 89 days w.e.f. 15.2.2001. She continued in service with technical breaks from time to time. In the present Original Application filed by her, a prayer has been made for issuance of direction to the respondents to release her salary not paid since June 2013 and to consider her case for regularization in the light of the judgment of the Honble High Court in Govt. of NCT of Delhi v. Smt. Suman Singh (W.P. (C) No.4641/2012) decided on 20.3.2013 and Sonia Gandhi & others v. Govt. of NCT of Delhi & others (W.P. (C) No.6798/2002 with connected petition) decided on 6.11.2013.
2. Mr. S N Gupta, learned counsel for applicant read out the judgment of Honble High Court in Sonia Gandhis case (supra) and submitted that the respondents need to regulate the service conditions and claim of the applicant for regularization in terms of the said judgment. He also relied upon the following Orders of this Tribunal:
i) Suresh Chand & another v. N.C.T. of Delhi & others (O.A.No.355/2014) decided on 3.2.2014
ii) Delhi Nurses Union through its President Leeladhar Ramchandani & others v. Govt. of NCT of Delhi & others (O.A.No.1680/2014) decided on 15.5.2014.
iii) Ashok Kumar & others v. N.C.T. of Delhi & another (O.A.No.1737/2014) decided on 20.5.2014.
iv) Dinesh Kumar Parewa & others v. N.C.T. of Delhi & another (O.A.No.1763/2014) decided on 20.5.2014.
v) Paras Nath & others v. N.C.T. of Delhi & another (O.A.No.1756/2014) decided on 20.5.2014.
3. On the other hand, Mr. Vijay Pandita, learned counsel for respondents relied upon the judgment of Honble Supreme Court in Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd. (2007) 1 SCC 408 and submitted:
i) The Court should decide the cases on legal principles and not on the basis of emotions and sympathies.
ii) Before making appointment on regular basis, there should be creation and sanction of the post and even the employees not appointed against a sanctioned post are not entitled to release of their pay.
iii) Creation and abolition of posts and regularization are purely the functions of Executive and the Courts cannot create post where none exists.
iv) The Court must exercise judicial restraint and not encroach into the Executive or legislative domain.
v) The Court and Tribunal cannot direct regularization of temporary appointee dehors the Rules.
In this regard, paragraphs 16, 18, 37, 40 and 43 of the said judgment read thus:
16. We are afraid that the Labour Court and High Court have passed their orders on the basis of emotions and sympathies, but cases in Court have to be decided on legal principles and not on the basis of emotions and sympathies.
xx xx xx
18. In State of M.P. and others vs. Yogesh Chandra Dubey and others 2006 (8) SCC 67, this Court held that a post must be created and/or sanctioned before filling it up. If an employee is not appointed against a sanctioned post he is not entitled to any scale of pay. In our opinion, the ratio of the aforesaid decision squarely applies to the facts of the present case also.
xx xx xx
37. Creation and abolition of posts and regularization are a purely executive function vide P.U. Joshi vs. Accountant General, Ahmedabad & others 2003(2) SCC 632. Hence, the court cannot create a post where none exists. Also, we cannot issue any direction to absorb the respondents or continue them in service, or pay them salaries of regular employees, as these are purely executive functions. This Court cannot arrogate to itself the powers of the executive or legislature. There is broad separation of powers under the Constitution, and the judiciary, too, must know its limits.
xx xx xx
40. The courts must, therefore, exercise judicial restraint, and not encroach into the executive or legislative domain. Orders for creation of posts, appointment on these posts, regularization, fixing pay scales, continuation in service, promotions, etc. are all executive or legislative functions, and it is highly improper for Judges to step into this sphere, except in a rare and exceptional case. The relevant case law and philosophy of judicial restraint has been laid down by the Madras High Court in great detail in Rama Muthuramalingam vs. Dy. S.P. AIR 2005 Mad 1, and we fully agree with the views expressed therein.
xx xx xx
43. In view of the above observations of this Court it has to be held that the rules of recruitment cannot be relaxed and the court/Tribunal cannot direct regularization of temporary appointees de hors the rules, nor can it direct continuation of service of a temporary employee (whether called a casual, ad hoc or daily rate employee) or payment of regular salaries to them.
4. With reference to the judgment dated 25.9.2013 passed by the Honble High Court in W.P.(C) No.6120/2013 Balbir Singh v. Govt. of NCT of Delhi & others, Mr. Pandita submitted that the Tribunal cannot issue direction for regularization of contractual employees. According to him, as has been ruled by the Honble Supreme Court in B.T. Krishnamurthy v. Sri Basaveswara Education society & others (2013) 4 SCC 490, the Tribunal would be misdirecting itself in passing any order of regularization of service of the applicant. Paragraph 23 of the said judgment reads thus:
23. In our considered opinion, the Tribunal completely misdirected itself in passing such an order of regularisation and reinstatement in a case where the respondent allegedly worked in the College as part- time Lecturer without any appointment letter and without any selection process. Since the Society never issued any letter of appointment a letter of termination was also not served upon the respondent.
5. He also relied upon the judgments of Honble Supreme Court in Dr. Chanchal Goyal v. State of Rajasthan (2003) 3 SCC 485 and Dr. Arundhati Ajit Paragaonkar v. State of Maharasthra & another, JT 1994 (5) SC 378. According to him, eligibility and continuous working for howsoever long period should not be permitted to overreach the law and law must take its course. Paragraph 7 of the said judgment is reproduced hereinbelow:-
7. Nor the claim of the appellant, that she having worked as Lecturer without break for nine years on the date the advertisement was issued she should be deemed to have been regularised appears to be well founded. Eligibility and continuous working for howsoever long period should not be permitted to over-reach the law. Requirement of rules of selection through Commission cannot be substituted by humane considerations. Law must take its course. Consequently, the applicant was not entitled to claim that she should have been deemed to have been regularised as she had been working without break for nine years.
6. Rejoining the submissions, Mr. S N Gupta, learned counsel for applicant submitted that it is not his case that the Tribunal should give a direction to the respondents to regularize the services of the applicant, rather the submission of the applicant is that the respondents should do their duty of assessing the present situation in the NCT of Delhi and discharge its function as a model State, as directed by the Honble High Court.
7. We heard the learned counsels for the parties and perused the record.
8. There can be no doubt that the aforementioned judgments, relied upon by Mr. Pandita, are binding on us and in view of the law so declared we cannot issue any direction to the respondents to regularize the services of the applicant or to frame any policy in this regard in a particular manner. It is open to the Executive to address to the problems pertaining to the field required to be regulated and governed by it. Nevertheless, as and when the Executive is ignorant of its power, function and duty, in judicial review, the Court may remind it of its duty and wake it up to the occasion to discharge the same. What the Honble High Court has directed in the case of Sonia Gandhis case (supra) is only a reminder to the Executive to be awakened of the fact that the population in Delhi has crossed 1.7 crore persons and there is a need to carry out a manpower requirement assessment in the services of the State. It is left open only to the Executive to make such assessment and to sanction the posts only to the extent required to provide service to the citizens of Delhi. There is no such direction issued by the Honble High Court to the Govt. of NCT of Delhi to frame any policy in any particular manner and it is left only to the Executive to have a policy decision and it may frame only such policy, which suits best to its requirement. In the said judgment, Honble High Court had noted the judgment of Honble Supreme Court in paragraph 20 of the judgment and having due regard to the said judgment, it noted that even the Honble Supreme Court had also observed that in respect of irregular appointees, who had worked for more than 10 years, as a one-time measure, the Government should consider regularization. Thus it is not the ramification of the judgment of Honble High Court that the respondents will have to disregard the judgment of Honble Supreme Court. While acting as per the directions contained in paragraph 22 of the judgment in the case of Sonia Gandhi (supra), the respondents would be at liberty to have due regard to the judgment of the Honble Supreme Court in the case of Secretary, State of Karnataka & others v. Umadevi & others, (2006) 4 SCC 1 as also other judgments on the subject. Paragraphs 20 to 22 of the judgment in Sonia Gandhis case (supra) read thus:-
20. The Constitution Bench decision of the Supreme Court reported as 2006 (4) SCC 1 Secretary State of Karnataka & Ors. Vs. Uma Devi & Ors. held that creation of posts falls within the domain of the executive and Courts cannot issue directions to create post. The Bench also observed that in respect of irregular appointees who have worked for more than 10 years, as a one time measure, the Government should consider regularization.
21. Dealing with a camouflage appointment ostensibly through NGOs, but on lifting the veil, found to be a case of direct appointment by the Government of NCT Delhi of Laboratory Technicians and Radiographers at the Central Jail Tihar, a Division Bench of this Court of which one of us: Pradeep Nandrajog, J. was a Member of had directed the Government to assess requirement of para-medics at Tihar Jail keeping in view the fact that the Original Cadre was sanctioned when in the year 1996 Tihar Jail had a stated capacity of 3600 inmates which grew to 11000 inmates as of the year 2010. The Divison Bench directed a one time scheme of regularization to be brought into force on the subject of age bar, the Division Bench noted that the contract appointed employees could not be visited with a disability due to unfair labour policies adopted by the Government.
22. Accordingly, we issue another direction and simultaneously dispose of the two writ petitions. The direction would be that the Government of NCT Delhi would carry out a manpower requirement assessment in all its departments keeping in view the fact that the population in Delhi has crossed 1.7 crore persons. Such number of posts shall be sanctioned as are necessary to provide services to the citizens of Delhi. A one time policy of regularization shall be framed and existing rules pertaining to service in different departments shall be amended. Existing contractual employees shall be considered for appointment to these new posts as per a policy framed.
9. In Paragraphs 15 to 17 the Honble High Court addressed the issue of entitlement of contractual employees for leave and salary. In view of the judgment passed by Honble High Court in the case of Sonia Gandhi (supra), this Tribunal has so far passed the aforementioned orders relied upon by learned counsel for applicant. Paragraph 8 of the order passed by this Tribunal in Ashok Kumar & others v. N.C.T. of Delhi & another (O.A. No.1737/2014) (supra) reads thus:-
8. In the circumstances, we deem it appropriate to dispose of the Original Application with a direction to respondent No.1 Chief Secretary, Govt. of NCT of Delhi to take a decision in the aforementioned representation dated 09.05.2014(colly.) thereon, in terms of the judgment of the Honble High Court of Delhi in the case of Sonia Gandhis (supra), as clarified, vide its order dated 2.5.2014 in Review Petition Nos.198/2014 and 202/2014 (supra) within eight weeks, therefrom. Till then, the services of the applicants shall not be discontinued.
10. When we are bound by the law declared by the Honble Supreme Court and Honble High Court, in view of the law declared by the Honble Supreme Court in S.I. Rooplal & another v. Lt. Governor through Chief Secretary, Delhi & others, (2000) 1 SCC 644, we cannot disagree the orders passed by the coordinate Bench of the Tribunal. Even when we hold a view different from the view taken by the coordinate Bench, the proper course for us is to refer the point of difference to the Larger Bench. In the present case, we do not find any reason to take a view different from the one taken by the coordinate Bench. The denouement in S.I. Rooplals case (supra) reads thus:-
12. At the outset, we must express our serious dissatisfaction in regard to the manner in which a Coordinate Bench of the tribunal has overruled, in effect, an earlier judgment of another Coordinate Bench of the same tribunal. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the tribunal was of the opinion that the earlier view taken by the Coordinate Bench of the same tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two Coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but knowingly it proceeded to disagree with the said judgment against all known rules of precedents. Precedents which enunciate rules of law form the foundation of administration of justice under our system. This is a fundamental principle which every Presiding Officer of a Judicial Forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate Court is bound by the enunciation of law made by the superior Courts. A coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement. This Court in the case of Tribhuivandas Purshottamdas Thakur v. Ratilal Motilal Patel, (1968) 1 SCR 455 : (AIR 1968 SC 372) while dealing with a case in which a Judge of the High Court had failed to follow the earlier judgment of a larger Bench of the same Court observed thus (para 11 of AIR) :-
"The judgment of the Full Bench of the Gujarat High Court was bidning upon Raju, J. If the learned Judge was of the view that the decision of Bhagwati, J. in Pinjare Karimbhai's case (1962 (3) Guj LR 529) and of Macleod, C.J., in Haridas's case (AIR 1922 Bom 149) did not lay down the correct law or rule of practice, it was open to him to recommend to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that he should not ignore it. Our system of administration of justice aims at certainty in the law and that can be achieved only if Judges do not ignore decisions by Courts of coordinate authority or of superior authority. Gajendragadkar, C. J. observed in Lala Bhagwan v. Ram Chand, (AIR 1965 SC 1767).
"It is hardly necessary to emphasis that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be re-considered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety."
13. We are indeed sorry to note the attitude of the tribunal in this case which, after noticing the earlier judgment of a coordinate Bench and after noticing the judgment of this Court, has still thought it fit to proceed to take a view totally contrary to the view taken in the earlier judgment thereby creating a judicial uncertainty in regard to the declaration of law involved in this case. Because of this approach of the latter Bench of the tribunal in this case, a lot of valuable time of the Court is wasted and the parties to this case have been put to considerable hardship.
11. Under the circumstances, we dispose of the present Original Application with direction to the respondents to examine the claim of the applicant espoused in the present Original Application, keeping in view the judgment of Honble High Court in Sonia Gandhis case (supra) as also the judgments of Honble Supreme Court relied upon by Mr. Pandita, learned counsel for respondents, referred to above. It goes without saying that the present Order would remain subject to the outcome of the SLP CC No.21950/2013 preferred by the respondents in Suman Singhs case (supra) as also any other Appeal preferred or likely to be preferred by the respondents against the judgment of Honble High Court in Sonia Gandhis case. It is made clear that till the final decision, as directed by the Honble High Court in the case of Sonia Gandhi (supra), is taken or services of the applicant are substituted by the regularly selected employee or the respondents arrive at a decision that the services of the applicant (contractual employee) are no longer required, the applicant would continue in the service of the respondents on contract basis on the terms and conditions as applicable to her as on date. In other words, the services of the applicant may be dispensed with but would not be substituted by fresh contractual employees. No costs.
( V.N. Gaur ) ( A.K. Bhardwaj ) Member (A) Member (J) 19th September 2014 /sunil/