Central Administrative Tribunal - Mumbai
Dated This Wednesday vs Union Of India on 12 April, 2013
1 O.A. No. 859/2011 CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI. ORIGINAL APPLICATION NO.: 859 of 2011. Dated this Wednesday, the 4th day of December, 2013. CORAM : Hon'ble Smt. Chameli Majumdar, Member (J). Hon'ble Shri Mrutyunjay Sarangi, Member (A). Mr. Sandeep V. Puralkar 2/3-B, Parel House, Opp. KEM Hospital, Parel, Mumbai 400 012. Office: DG(TECH), Mercantile Marine Department, 101, M.K. Road, Mumbai 400 028. ... Applicant (By Advocate Shri Arshab Shaikh) VERSUS 1. Union of India, The Secretary Ministry of Shipping Road Transport and High ways, 1, Sansad Marg, New Delhi 110 001. 2. Director General of Shipping Jahaj Bhavan Walchand, Hirachand Marg, Mumbai 400 001. 3. Principal Officer Cum Joint D.G. (Tech), MercantileMarine Dept., 101, MaharshiKarve Road, Mumbai 400 028. ... Respondents (By Advocate Shri V.S. Masurkar alongwith Shri S.G. Pillai) O R D E R
Per : Smt. Chameli Majumdar, Member (J).
The applicant has challenged the Office Memorandum dated 17.06.2010 written by Principal 2 O.A. No. 859/2011 Officercum-Joint DG (Tech.), Mercantile Marine Department, Mumbai, whereby the appointment of the applicant as Safaiwala was terminated from 17.06.2010.
2. The brief facts of the case, as made out by the applicant, are as follows :
That the applicant served the respondents for more than 11 years. Although he was initially appointed on the post of Hamal with effect from 08.04.2002 but his post was changed to Safaiwala.
The applicant was selected for the post of Hamal after his name was sponsored by the Employment Exchange for the said post of Hamal along with 25 other candidates who appeared for the interview before a duly constituted selection committee. In the offer of appointment it was mentioned that the appointment was purely on ad hoc basis. However, he accepted the job and joined as Hamal. His appointment was extended from time to time till 02.09.2005. Thereafter, an order dated 21.09.2005 was issued appointing the applicant purely as a casual worker for performing the duties of Safiawala. Being aggrieved by such action of the respondents, the applicant filed an Original Application No.687/2005. This Tribunal, while disposing of the O.A. on 19.06.2006, held that the 3 O.A. No. 859/2011 initial requisition sent to the Employment Exchange for the post of Hamal was to be filled up purely on temporary basis for a period of one year. Such extension, however, did not confer any legally enforceable right on the applicant. The administrative decision taken by the Government for limiting the recruitment to 1% of the sanctioned post was not open to judicial review. The Screening Committee recommended the abolition of a good number of posts. The Tribunal, however, in the penultimate paragraph held as follows:
10. Keeping in view the fact that the applicant vide order dated 27.03.2002 was given offer of appointment for a period of one year only, I do not see anything wrong with the impugned order dated 21.09.2005 in appointing the applicant as a casual worker and the same is upheld as legally sustainable. However, since the applicant was selected by a duly constituted committee, though for a short duration post, he will have the first right on the vacancy of Hamal as and when the respondents decide to fill up such a post. The O.A. is disposed of on above terms. No order as to costs.
3. We have heard Shri Arshab Shaikh, learned counsel for the applicant at length. He submits that by virtue of this order it was incumbent upon the respondents to appoint the applicant in the post of Hamal when the said post was filled up. He further submits that the applicant was continued to work as Safaiwala in an arbitrary and illegal manner. The respondents have terminated the service of the applicant even as a Safiawala vide impugned 4 O.A. No. 859/2011 order dated 17.06.2010.
4. The applicant has prayed for quashing of the said order of termination and also direction to the respondents to regularize the service of the applicant on the post of Hamal with all consequential benefits.
5. The respondents have filed their reply. The contentions of the respondents are inter alia as follows:(
a) The applicant was well aware that there was no sanctioned post and that his engagement was not for regular post.
(b) After renovation of the building of Jahaz Bhawan i.e. Directorate General of Shipping, the house keeping work such as sweeping and cleaning has been entrusted to the private Contractor by inviting quotations from the service providers. As such no work was left for Hamals working in the Directorate either on regular basis or on ad-hoc basis.
(c) Way back in the year 2001 the Central Government has taken a policy decision to abolish 2% of sanctioned strength of all Ministries and Departments right from 2001-2002 to 2005-2006 and all Ministries and Departments were directed to limit the vacancies of Direct Recruitment to 1% of 5 O.A. No. 859/2011 total civilian staff strength while preparing annual recruitment plan. Such plan had to be cleared by the Screening Committee headed by the Secretary of that Ministry/Department. The first meeting of the Screening Committee headed by the Secretary of the Ministry and the Chairman of the Screening Committee for Group 'B', 'C' and 'D' was held on 30.12.2005. In the said meeting it was decided to abolish 161 posts and to fill up only 11 posts. It was also decided that the posts which are not cleared by the Screening Committee will not be filled up and these post will stand abolished. Finally, the Ministry vide letter dated 27.10.2009 gave its NOC for filling up 56 posts (Group 'A'11 posts and Group 'B' & 'C'-45 posts) and communicated that in the light of DOPT's Memoranda dated 16th May, 2001 and 6/18th June, 2002, 161 posts recommended for abolition by the Screening Committee stands abolished. Accordingly, 161 posts of D.G. Shipping and its allied offices have been abolished which included one post of Hamal in the Directorate.
(d) The Sixth Central Pay Commission recommended that hence forth no recruitment shall be made in Group 'D' employees and all Group 'D' employees should be placed in Group 'C' with Grade 6 O.A. No. 859/2011 Pay of Rs. 1800/-and this has been accepted by the Government. The engagement of the applicant was changed by the office order of the Directorate vide order dated 22.07.2005 to Respondent No. 3 for a period of 45 days as Safaiwala. Thereafter he was with Respondent No. 3 as Safailwala on daily wage up to 17.06.2010 at the rate of 1/30th of Rs. 4440/plus Grade Pay Rs. 1300/-plus Dearness Allowance admissible from time to time in accordance with DOPT O.M. dated 07.06.1988.
(e) Since the work of house-keeping jobs such as cleaning and sweeping was awarded to private contractor, no work was left for incumbents holding the post of Hamal. Therefore, it was decided to divert their services to other posts where there was shortage of that particular category. Out of 4 posts of Hamal, two posts of Hamals were shifted to Peon and two persons have been shifted to the post of Watchman. As such, no available in the Office of Directorate. post of Hamal was
(f) The respondents have vacancies of upgraded Group given d'C' posts etails with of new nomenclature of Multi Tasking Force as follows :
There were total six vacant posts of Multi Tasking Staff in the office of the Respondent No.
2. Offer of appointment letter to 2 Multi Tasking 7 O.A. No. 859/2011 Staff have been sent and their response was awaited. Staff Selection Commission, Mumbai, was yet to send two dossiers of Multi Tasking Staff and requisition for two Multi Tasking Staff was yet to be sent to Staff Selection Commission, Mumbai and for two vacant posts of MTS in the office of Respondent No. 3 Staff Selection Commission was yet to send two dossiers of Multi Tasking Staff. As per DOPT O.M. dated 30.04.2010 the minimum qualification for Multi Tasking Staff was 10th Standard.
6. We have heard Shri V.S. Masurkar, Learned Counsel for the Respondents. He submits that the question of appointment of the applicant to the post of Hamal does not arise since the posts of Hamals were abolished. He further submits that the DOPT O.M. dated 30.04.2010 says that there will be no further recruitment in Group 'D'. After 6th Pay Commission recommendations, Group 'D' posts were upgraded to Group 'C'. The minimum qualification for appointment to these redesignated posts of Multi Tasking Staff will be either 10th pass or ITI equivalent and the mode of recruitment will be by Direct Recruitment.
7. Shri Masurkar, Learned Counsel for respondents, relying on the judgment of Secretary, State 8 O.A. No. 859/2011 of Karnataka & Others Vs. Uma Devi & Others [AIR 2006 SC 1806] and Official Liquidator Vs. Dayanand & Others [2008 (10) SCC 1] submitted that the applicant cannot ask for regularisation of his service either as Hamal or as Safaiwala.
8. The Hon'ble Supreme Court in the case of State of Karnataka Vs. Umadevi & Others (supra) and in number of decisions subsequent to decision in Umadevi has held that persons appointed on ad hoc or casual or temporary or stop gap basis do not have any right to hold any posts. However, some exceptions have been carved out in those decisions by distinguishing 'irregular appointment' and 'illegal appointment'. The Hon'ble Apex Court at para 44 held as follows :
44. One aspect needs to be clarified.
There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA [AIR 1967 (1) SC 1071] , R.N. NANJUNDAPPA [AIR 1972 SC 1767], and B.N. NAGARAJAN [AIR 1979 SC 1676] and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of 9 O.A. No. 859/2011 orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
9. This Tribunal while disposing of the earlier O.A. No. 687/2005 filed by the applicant, vide its order dated 19.06.2006, observed that "since the applicant was selected by a duly constituted committee, though for a short duration post, he will have the first right on the vacancy of Hamal as and when the respondents decide to fill up such a post". The said order, not having been challenged by the respondents, the respondents are bound by the order of this Tribunal and have to consider the appointment of the applicant in a suitable and equivalent post of Hamal.
10. From paragraph 11 of the reply of the respondents it appears that the respondents have admitted that the work of House-Keeping jobs such as cleaning and sweeping were awarded to private contractors. The applicant has also contended in the O.A. that the respondent no.2 signed an agreement dated 12.04.2010 with M/s. Impressive (I) 10 O.A. No. 859/2011 to provide manpower for housekeeping work, including the work attached to the posts of Hamal, Safaiwala and Janitor (Watchman). The respondents have not denied and admitted that they are outsourcing the services for House Keeping.
11. For substantial compliance of the order of this Tribunal dated 19.06.2006, which has not been set aside, varied or modified, in the changed scenario, the respondent authorities have to engage the applicant through outside agency for Housekeeping job.
12. The Hon'ble Apex Court in para 46 of the same judgment issued directions in the following terms :
"If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in C.A. Nos. 3595-3612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them."
13. Having regard to the changed position of law, the applicant now has to compete with other eligible candidates for selection and appointment on a suitable base post. The Hon'ble Supreme Court exercises its power under Article 142 of the 11 O.A. No. 859/2011 Constitution. We do not have that power. However, we may direct the respondents to consider the case of the applicant sympathetically and allow the applicant to compete with others in the selection process, if he applies, and if he is otherwise eligible, after waiving the restriction of age.
14. In the backdrop of the facts and law, as discussed above, the respondents are directed to consider and pass an order regarding engagement of the applicant through outsourcing agency or otherwise for the House-Keeping job within four weeks from the date of receipt of a copy of the order. The respondents will also consider to allow the applicant to compete with others in the selection process for appointment to any suitable post, if he so applies and if he is otherwise eligible, waiving the restriction of age.
15. The O.A. is disposed of in terms of the above directions. No order as to costs. (Dr. Mrutyunjay Sarangi) (Smt. Chameli Majumdar) Member (A) Member (J) ma/os*