Central Administrative Tribunal - Delhi
Kuldeep Kumar Malhotra vs Delhi Development Authority (Dda) on 4 July, 2023
1
O.A. No. 1678/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1678/2022
Reserved on : 12.05.2023
Pronounced on : 04.07.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Tarun Shridhar, Member (A)
1. Shri Kuldeep Kumar Malhotra,
S/o Shri Sohan Lal,
Age about 55 years, Group-C,
Working as Typist-cum-Clerk Under Dy. Director-V & AVO/DC,
Delhi Development Authority, Vikas Sadan, New Delhi- 110 023.
2. Shri Raj Karan Singh,
S/o Late Shri Pirojan Singh,
Age about 61 years, Group-C,
Working as Typist-cum-Clerk Under Land Management, Co-
ordination,
Delhi Development Authority, Vikas Sadan, New Delhi- 110 023.
3. Shri Sebastian Joseph,
S/o Shri Joseph,
Age about 57 years, Group- C,
Working as Typist-cum-Clerk Under Dy. Director(LM), NEZ,
Delhi Development Authority,
Vikas Sadan, New Delhi- 110 023.
4. Shri Surinder Singh Rana,
S/o Shri Maha Singh Rana,
Age about 71 years, Group- C,
Working as Typist-cum-Clerk Under Dy. Director/LM/SZ,
Delhi Development Authority, Vikas Sadan, New Delhi- 110 023.
5. Shri Manoj Sharma,
S/o Shri Visheshwar Dutt,
Age about 51 years, Group- C,
Working as Typist-cum-Clerk Under Law Department,
Delhi Development Authority, Vikas Sadan, New Delhi- 110 023.
6. Shri Kishori Lal Bhatt,
S/o Shri Puspha Nand,
Age about 54 years, Working as Typist-cum-Clerk Under L.M (NDZ),
Delhi Development Authority, Vikas Sadan, New Delhi- 110 023.
7. Shri Subhash Chand Gupta,
S/o Late Shri B.S Gupta,
Age about 62 years, Group- C,
2
O.A. No. 1678/2022
Working as Typist-cum-Clerk Under Dy. Director NL-II (LM),
Delhi Development Authority, Vikas Sadan, New Delhi- 110 023.
8. Shri Pawan Kumar Sharma,
S/o Late Shri Mehar Chand Sharma,
Age about 56 years, Group- C,
Working as Typist-cum-Clerk Under Executive Engineer/Vig-IV,
Delhi Development Authority, Vikas Sadan,
New Delhi- 110 023.
9. Shri Kamal Singh Negi,
S/o Shri G.S Negi, Age about 63 years,
C, Working as Typist-cum-Clerk Under Legal Cell (Accounts
Branch),
Delhi Development Authority, Vikas Sadan, New Delhi- 110 023.
10. Shri Ramesh Nautiyal,
S/o Shri G.L Nautiyal,
Age about 63 years, Group- C,
Working as Typist-cum-Clerk Under Ministry of Housing & Urban
Affairs,
Nirman Bhawan, New Delhi.
11. Shri Ramesh Kumar,
S/o Shri Satvir Singh,
Age about 52 years, Group- C,
Working as Typist-cum-Clerk Under I.L Branch,
Delhi Development Authority, Vikas Sadan, New Delhi- 110 023.
12. Shri Suresh Chand Rastogi,
S/o Late Shri Hardayal,
Age about 61 years, Group- C,
Working as Typist-cum-Clerk Under L.G Secretariat,
6 Raj Niwas, L.G House, New Delhi- 110 054.
13. Shri Prabhakar Pathak,
S/o Late Shri Laxmi Naryan,
Age about 60 years, Group- C,
Working as Typist-cum-Clerk Under L.G Secretariat,
6, Raj Niwas, L.G House, New Delhi- 110 054.
....Applicants
(By Advocate : Mr. M.S. Reen)
VERSUS
Delhi Development Authority & Others : through
1. The Vice-Chairman,
Delhi Development Authority,
Ist Floor, B-Block,
Vikas Sadan
3
O.A. No. 1678/2022
New Delhi-110023
2. The Finance Member,
Delhi Development Authority,
Ist Floor, B-Block,
Vikas Sadan
New Delhi-110023
3. The Director (Personnel),
(II & III),
IIIrd floor, B-Block,
Vikas Sadan,
New Delhi-110023
.... RESPONDENTS
(By Advocate : Mr. Arun Birbal)
4
O.A. No. 1678/2022
ORDER
Hon'ble Mr. Tarun Shridhar, Member (A) The applicants are Ex-Servicemen who retired from the Indian Army on completion of their normal tenure. After their retirement, they were engaged as Typist cum Clerk by the Delhi Development Authority on different dates in the year 2010 on contract basis.
2. The term of the contract was for a period of 6 months on a consolidated monthly remuneration, however, this term was extendable and at the same time, the letter of appointment stipulated that the contract may also be terminated at any time. The applicants continued on the basis of extension on the position of Typist cum Clerk till the year 2022 when a notice of termination was issued to them on 07.06.2022.
3. Aggrieved by the said notice, they have approached this Tribunal seeking the following reliefs :
I. To quash and set-aside the impugned orders dated 07.06.2022 (Annexure A-1 colly), restricting the contractual engagement of the applicants to the post of Typist-cum-Clerk upto 07.07.2022;
II. Quash and set aside the impugned policy dated 05.12.2018 (Annexure-A-1A);
5O.A. No. 1678/2022 III. Direct the respondents to issue necessary appointment orders for extension/engagement of Applicants Contractual services.
IV. Direct the respondents not to replace or substitute the Applicants (Contractual Typist-cum-clerks) unless by way of regular appointment;
V. Accord all consequential benefits.
VI. Award costs of the proceedings in favour of the applicants.
VII. Pass any other order/direction which this Hon'ble Tribunal deem fit and proper in favour of the applicants and against the respondents in the facts and circumstance of the case.
4. In the original OA, one of the reliefs as set forth in para 8 i.e. seeking a quashing of the policy dated 05.12.2018 was not sought for. However, subsequently, the applicants were allowed to amend the OA and in the amended OA apart from seeking the quashing notices of termination dated 07.06.2022, they have also sought the quashing of the policy dated 05.12.2018.
5. Learned counsel for the applicants while tracing the history and background of the case submits that during the engagement of the applicants, they were being governed by the policy notified on 30.12.2017 which stipulated that the age limit of the Consultant would not be beyond 65 years. However, there was a provision that even this age limit of 65 years may be relaxed in public interest in deserving and exceptional circumstances. 6 O.A. No. 1678/2022
6. This policy had been issued after obtaining the approval of the competent authority, in this case the Lieutenant Governor of Delhi who is the Chairman of DDA. However, the policy of 05.12.2018 has restricted the period of contract to only 5 years thus, adversely affecting the engagement of the applicants.
7. Learned counsel would argue that the policy notified on 05.12.2018 has been issued without the approval of the competent authority and draws attention to the concluding paragraph of the policy which states that the same is with the approval of the Vice Chairman / DDA. He submits that it deserves to be set aside on this sole ground itself, since this policy seeks to revise/amend as also supersede the policy notified with the approval of the Lieutenant Governor / Chairman DDA. A subordinate authority cannot overrule a policy or order issued by a senior authority and hence, it is bad in law.
8. Learned counsel further argues that if one were to go through the minutes of the high powered meeting which he has placed on record as Annexure A-5, it is apparent that the respondents are facing acute shortage of officials at all levels and in the said meeting, they had taken a decision 7 O.A. No. 1678/2022 that to manage the ever expanding work, they need to engage Consultant/Advisers in terms of the DDA guidelines which were initially notified on 14.09.2019.
9. Since by their own admission, the respondents are in requirement of additional manpower to be engaged as Consultant/Advisers, the action to terminate the services of the applicants is contrary to it. It is also in contravention of the law laid down by the Hon'ble Supreme Court in the matter of State of Haryana & Ors. vs Piara Singh 1992 (4) SCC 118 wherein the court had categorically held that one set of contractual employees cannot be replaced by another set of contractual employees and that is precisely what the respondents are doing.
10. He further argues that at the time of issuing notice of termination to the applicants, the respondents have extended the contract of some of the other contractual staff even though they have attained the age of 65 years. Thus, the treatment being meted out to the applicants is discriminatory.
11. Learned counsel for the respondents, contesting the averments of the applicants and the arguments put forth 8 O.A. No. 1678/2022 by the learned counsel for the applicants, draws attention to paras h(v) and h(vi) of his amended counter reply.
12. For the sake of clarity, the said paragraphs are being reproduced below :
"(v) That over the years, on account of certain exigencies, DDA has promoted hiring of Outsourcing Staff through a Government Approved Agency (BECIL - A Government of India Enterprise under the Ministry of Information & Broadcasting and A Mini Ratna Company) and hired some staff in 2015 and thereafter.
These Outsource Staff are being paid remuneration under Minimum Wages Act as notified by the Government of NCT of Delhi from time-to-time along with applicable labour laws benefits such as EPF and ESI facilities. Also, before issuing Disengagement Letters to these DGR Personnel/Ex-Serviceman, DDA issued letter to BECIL for hiring of some Outsource Staff and consequently, BECIL issued circular in this regard on its website for calling candidates through Open market. It was open for the present Applicants to apply pursuant to that circular.
(vi) The Authority Resolution No. 208 dated 25.02.1967 lays down that in respect of any item of expenditure not specifically covered by the Resolutions, the Vice-Chairman, DDA shall exercise the powers exercisable by Head of Departments under Central Government. The 'Authority' is constituted under section 3 of the Delhi Development Act, 1957 and is headed by the Hon'ble Lieutenant Governor, Delhi who is also the ex-officio Chairman of DDA. The Vice-Chairman may delegate such administrative and financial powers to any Officer of the Authority as may be considered appropriate by him. The Orders/ Circulars / OMs issued by the DoPT, Ministry of Finance and other Ministries are adopted in DDA with the approval of Vice Chairman, DDA under powers delegated to him 9 O.A. No. 1678/2022 vide Authority Resolution No. 208 dated 25.02.1967. The Applicants are reading the noting dated 20.05.2019 out of context."
13. He further argues that the applicants cannot claim any right over and above what has been set forth in their initial engagement. There is no ambiguity that initially the contract was for six months, no doubt extendable, but at the same time, the respondents also had the right to terminate the same at any point of time. He submits that there was a specific background to the engagement of the applicants as at the time of relevant point of time, additional manpower was required by the DDA due to the additional and heavy workload on account of the impending Commonwealth games.
14. Contractual staff is appointed for specific purposes and such an engagement cannot be for an indefinite period. He further argues that a policy which is general in nature and applicable all across, cannot be a subject of challenge in this Tribunal.
15. In the instant case, initially the DDA had framed its own policies and guidelines but in the year 2018 when the Govt. of India framed uniform guidelines with respect to the engagement of Consultant/Advisers containing terms 10 O.A. No. 1678/2022 and conditions of Consultants etc., DDA, being a government organisation, too adopted those uniform guidelines. The policy of 05.12.2018 which is under challenge in the present OA has been adopted on the basis of the uniform policy notified. He also draws a parallel from the judgment of the Hon'ble High Court of Delhi in Harsh Ajay Singh Vs. Union of India in W.P. (C) No. 457/2022.
16. He argues that since the applicants have been engaged after their retirement, the respondents also enjoy right to look for other younger and efficient manpower. Moreover, the applicants are in receipt of regular pension and post retirement, they cannot claim vested right to continue on an engagement.
17. Learned Senior Counsel further argues that the judgment in the Piara Singh (supra) being relied upon by the applicants would not come to their rescue in the instant matter as the facts of the said judgment do not bear any similarity with the present case and further, the same was considered by a Bench of the Hon'ble Supreme Court in the case of State of Karnataka vs. Uma Devi (2006) 4 SCC 1.
11O.A. No. 1678/2022
18. We have heard the learned counsel for the parties and also carefully gone through the documents on record.
19. It is not disputed that engagement of applicants was strictly on contract for a period of six months. Further, no regular scale of pay was attached to the position on which they were engaged, rather they were paid a consolidated monthly remuneration. While there was a provision for extension of contract, there was also a condition that the contract may be terminated at any time. On account of extension from time to time, the applicants' contract has continued for a period of more than 10 years now.
20. The applicants are primarily resting their case, as argued by their learned counsel, upon the challenge to the policy for engagement of consultants. The main argument put forth before us is that the revised policy dated 05.12.2018 has restricted the period of contract to a maximum of 5 years whereas the earlier policy was that a contract could be extended for any number of years up to the contractual employee attaining the age of 65 yeas; even this period of 65 years was extendable in deserving an exceptional circumstances. Such a revision has been made without the approval of the LG, who is the competent authority.
12O.A. No. 1678/2022
21. We have gone through the provisions of the policy both of the year 2017 and the revised one of 2018. The said policy is for engagement of consultants. We are not sure whether the engagement of the present applicants as Typist cum Clerk would strictly fall within the purview of these policies. However, even if we were to assume that the provisions of this policy would govern their engagement, we are not convinced that the revised policy of 2018 causes any prejudice to the applicants as the policy is applicable for all engagements of consultants in the organisation and it has nowhere been shown that this policy has been enacted only with respect to the present applicants. We are also not convinced that the applicants can nurse any grievance with respect to the discriminatory treatment. Moreover, as elaborately explained by learned counsel for the respondents, the revised policy is on the basis of a uniform policy notified by the Govt. of India and DDA being a subordinate agency of the Union Government, has rightly adopted the same. The argument that it does not have the approval of the LG is therefore, not maintainable. Moreover, a policy cannot be termed bad on a mere technicality.
13O.A. No. 1678/2022
22. The applicants were engaged for a period of six months initially and have continued in this capacity for more than 10 years now. It is pertinent to note that the applicants are Ex-servicemen who retired from the Army on completion of their normal tenure and are drawing pension accordingly. How could they claim an indefinite continuation of a contractual engagement post retirement is inexplicable. The terms and conditions of their initial engagement have no ambiguity. Besides placing a challenge upon the revised policy of the year 2018, the applicants have not been able to show us any decision or action of the respondents which is in violation of the terms and conditions set forth in their engagement.
23. We agree with the arguments put forth by the respondents that contractual staff, as the term itself indicates, is appointed for specific purposes and for a specified period of time. A contractual appointment cannot be open ended. Moreover, the applicants have enjoyed the benefit of continued appointment for more than 10 years. They certainly do not enjoy any vested right for continuation for an indefinite period, as they are contractual staff who were engaged for a limited period and for discharge of certain defined duties.
14O.A. No. 1678/2022
24. We have also carefully gone through the judgments being relied upon by the learned counsel in support of their respective arguments. We have no doubt in our mind that the adjudication of the present issue would rest on the facts of the case rather than any law laid down. Moreover, the support drawn by the applicants from the Hon'ble Supreme Court judgment in Piara Singh (supra) quoted in one of the preceding paragraphs, would not be applicable in the present circumstances as the present applicants have not been appointed on any particular post but merely engaged for a limited period i.e. six months initially and for some specific tasks.
25. In view of what has been discussed in great detail above, we are of the considered view that this OA is bereft of any merit and is hence dismissed.
26. Needless to state that the interim protection awarded to the applicants stands vacated.
There shall be no orders as to costs.
(Tarun Shridhar) (R.N. Singh) Member (A) Member (J) /NISHA/