Central Administrative Tribunal - Hyderabad
B E T W E E N vs K.B.N. Visweshwara Rao & Ors. Reported ... on 11 August, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH AT HYDERABAD O.A. No.892 of 2007 DATE OF ORDER 11/08/2008 B E T W E E N: N. Venkateshwarulu, S/o. N. Koteshwar Rao, Aged about 31 years, Occ: SAML, R/o. Sungarapuram, D.No. 6-10-84, Bapatla, Guntur District- 522 101 ....Applicant A N D 1. The Commanding Officer, 401, Air Force Station, Suryalanka, Baptla (PO), Guntur District, A.P.; 2. Station Commander, 401, Air Force Station, Suryalanka, Bapatla (PO), Guntur District, A.P.; 3. The A.O.C. Incharge, Head Quarters, Southern Air Command, Trivendrum. ...Respondents. Counsel for the applicant : Mr. K. Ajay Kumar for Smt T.M. Sudha Counsel for the Respondents: Mr. Y. Vivekanandaswamy, Sr. CGSC. CORAM: HON'BLE MRS. BHARATI RAY, JUDICIAL MEMBER ORAL ORDER
( HON'BLE MRS. BHARATI RAY, MEMBER(J).) Heard Mr. K. Ajaya Kumar for Smt. Sudha, leaned counsel for the applicant and Mr. Y. Vivekananda Swamy, learned counsel for the respondents.
2. The undisputed facts of the case are that in the year 2001, one vacancy of SAML was released at 401 AF Station Suryalanka because of the regularization of SAML service of Shri P. Poulas, SAML. The concerned station called for candidates from employment exchange Guntur for filling up the vacancy of SAML. However, the local employment exchange had informed that due to computer system failure, they were unable to send the list of candidates vide their letter No. C/1392/2001 dated 02 June 2001. Copy of which is enclosed as Annexure -I to their counter reply. It is also not in dispute that since the Employment Exchange had expressed its inability to furnish the details of candidates, the Station had given publicity regarding the vacancy locally. In this context, the learned counsel for the applicant has produced before me the notice that was issued by Sqn. Ldr, OIC Legal Cell, 404 AF Stn. for filling up of the vacancies. The same is extracted hereunder:-
"N O T I C E It is intimated that 02 vacancies of Seasonal Anti Malaria Lascar ( Temporary Service) are vacant at this station. Eligible candidates are to apply to Station Commander, Air Force Station, Suryalanka, Bapatla and appear for selection by Board of Officers, with original documents at 10.00 hrs on 21 Jun 2001. Last date of received applications 21 Jun 2001.
Terms and conditions:
a)Minimum Educational Qualification: VIIIth Standard
b)Duration of Job : 01Jul 2001 to 31 Dec 2001(06 month)
c) Pay Scale: Rs. 2550/-+D.A.( As applicable per month)
d)Age : 18 years to 25 years
e)Other Qualifications: Must have a valid of Employment Registration Card."
3. It is seen from para-4 of the counter reply filed by the respondents that on 29.06.2001 a Board of Officers was constituted and Shri N. Venkateswarlu, the applicant herein was selected as a SAML and since then he rendered service up to 31.12.2003. However, from sub para iv) of para-4 of the O.A., I find that the applicant continued up to 31.12.2004 and completed more than 650 man-days in 4 consecutive years ( Aug. 2001 to 31 Dec. 2004). It is therefore the case of the applicant that he is entitled for temporary status as well as regularization of his service as per the guidelines mentioned in para -4 of the 1997 scheme. The applicant has approached this Tribunal earlier by filing O.A. No. 28 of 2006 seeking for the following reliefs:-
"To hold the action of the respondent in not permitting the applicant to discharge his duties and also nor regularizing the services of the applicant as illegal, arbitrary and unjustified and amounts to unfair labour practice and direct the respondent to regularize the services of the applicant and grant all consequential benefits in the interest of justice and fair play."
4. This Tribunal in the said case found that the applicant submitted a representation on 06.08.2004 to the A.O.C. in-charge requesting him to consider his service as SAML for regularization against a regular vacancy of SAML or for any Group D post by conferring him temporary status. The respondents have disposed of the said representation vide letter dated 25.8.2005 intimating the applicant that his case has been objected by HQ SAC, IAF stating that his name has not been sponsored by the local employment exchange, Guntur at the time of initial appointment as a casual labour ( SAML) and, therefore, he was directed to approach the District Employment Officer for obtaining the same for further course of action in regard to his application. Considering the issue involved in the case, this Tribunal disposed of the said O.A. on 27.4.2006 with the following order:-
"7. In the letter dated 25.08.2006 enclosed at page 17 of the OA, the HQ has objected on the ground that he was not sponsored by the local Employment Exchange. Therefore, I am of the view that justice would be met if a direction is given to the respondents to consider the case of the applicant as to whether the applicant comes within the purview of the scheme for grant of temporary status and has fulfilled the conditions stipulated in the scheme and if it is found that the applicant has fulfilled the conditions stipulated to get the benefit of the scheme, the respondents shall pass appropriate order and if it is found that the benefit of the scheme cannot be extended to the applicant the said decision shall be communicated to the applicant with a reasonable order.
8. The OA is disposed of accordingly with a further direction to complete the entire exercise within a period of two months from the date of communication of this order. No costs."
5. Pursuant to the said direction of this Tribunal, the respondents have passed the order dated 27.06.2006 which reads as under:-
"1. Pursuant to the direction of Hon'ble CAT Hyderabad issued on 27 Apr. 06 in O.A. No. 28/06, the case has been examined in accordance with the SAML Policy in vogue and Govt. Orders, instruction on the subject.
2. It is observed that you were not sponsored by local employment exchange at the time of initial engagement. This is contrary to our policy of 1997, which makes it is mandatory to engage casual employees through Employment Exchange. Since the appointment of Seasonal Anti Malaria Lascar without being sponsored by Employment Exchange is irregular and contravention to the policy ibid, you cannot be bestowed with temporary status and the benefits of the scheme cannot be extended to you.
3. This speaking order is being issued in compliance of directions enumerated in para 7 & 8 of order referred above."
6. Questioning the said order, the applicant has once again approached this Tribunal by filing O.A. No. 603 of 2006 seeking for the following reliefs:-
"(i) to set aside the speaking order dated 27.6.2006 passed by the respondent and direct the respondent to regularize the services of the applicant as per the Seasonal Anti Malaria Lascars ( Grant of Temporary Status and Regularization) Scheme of I.A.F. 1997 and grant all consequential benefits; and
(ii) direct the respondents to continue the applicant in service in the interest of justice and fair play and pas such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Otherwise this applicant would suffer serious hardship and irreparable loss."
In the said O.A., drawing the attention of this Tribunal to para -7 of the implementation of Seasonal Anti-Malaria Lascars ( Grant of temporary status & regularization) Scheme of IAF, 1997, the learned counsel for the applicant submits that in sub para (i) of para 7, it is made clear that the scheme is applicable to Seasonal Anti-Malaria Lscars in the employment of IAF and further submitted that the para-4 is relevant where the guidelines have been laid down for the purpose of grant of temporary status. In this context, para-4 of the said scheme is reproduced herein below:-
"4. As a sequel to the Court judgment and in consultation with HOD/DOP&T a separate set of norms have been designed to resolve this vexatious issue. These are as under:
i. Temporary status be granted to Anti Malaria Lascars after 165 days of work in offices observing 06 days a week and after 150 days in officers observing 05 days in a week for two consecutive years. ii. Such Anti Malaria Lascars who have completed 650 days in the last consecutive 04 years in offices observing 06 days a week and 600 days in offices observing 05 days in a week would be eligible for regularization against a regular vacant GP "D" post."
7. The Tribunal in the said case found that the case of the applicant for grant of temporary status was pending consideration before the Air HQ, disposed of the said O.A. on 14.6.2007 by directing the respondents to take final decision in view of the observations made therein and pass appropriate orders within three months.
8. Pursuant to the above direction of the Tribunal in O.A. No. 603 of 2006 dated 14.06.2007, the respondent management has intimated the applicant the decision vide letter dated 13.09.2007. The contents of which are extracted herein below:-
"1. Pursuant to the direction of Hon'ble CAT, Hyderabad issued on 14 Jun 07 in OA No. 603 /2006, the case has been re-examined at Air HQs in accordance with the SAML Policy in vogue and Govt. Orders/Instructions on the subject.
2. It is observed that you were not sponsored by Local Employment Exchange at the time of initial engagement. This is contrary to SAML Policy of 1997. Since it is mandatory to engage casual employment through employment exchange, the appointment of SAMLs without sponsorship of employment exchange is irregular. Hence, such SAMLs/yourself cannot be bestowed with temporary status.
3. In view of the foregoing, your are hereby informed that you cannot be bestowed with temporary status.
4. This speaking order is being issued in compliance of directions enumerated in Para 10 of CAT order referred above."
9. Questioning the said order, the applicant has once again approached this Tribunal by filing the instant O.A. seeking for the following reliefs:-
"(i) to set aside the speaking order dated 13.09.2007 passed by the respondent and declare inaction of the respondent in not considering the case of the applicant for the grant of temporary status and not extending the benefits as per the Seasonal Anti Malaria Lascars ( Grant of Temporary Status and Regularization) Scheme of I.A.F., 1997 scheme as illegal and unjustified; and
(ii) to direct the respondents to consider the case of the applicant under the SAML ( Grant of Temporary Status and Regularization) Scheme of IAF, 1997 and also extend the benefits of the said scheme on par with other regular employees namely S. Guruvaiah and G. Venkateswarulu and other employees who are juniors to the applicant;
(iii) direct the respondent to continue the applicant in service and grant all the other attendant benefits on par with other regular employees in the interest of justice and fair play and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case otherwise this applicant would suffer serious hardship and irreparable loss."
10. In para 4 (i) of the application, the applicant has categorically stated that he was registered with Employment Exchange vide Registration No. F1/1991/19135 dt. 4.12.1991. In support of his contention he has produced a copy of the Employment Registration Card dated 4.12.1991. It is therefore the contention of the learned counsel for the applicant that the applicant was already in possession of the employment exchange card when he was appointed as SAML in the year 2001. In para 4 (ii) of the O.A., the applicant has submitted that in response to the notification dated 17.6.2001 published by the respondents calling for applications for the post of SAML, the applicant has applied for the said post and undergone selection process and got selected for the said post of SAML. The contention of the applicant that he was in possession of the Employment Exchange Card as mentioned in para (i) of the O.A. has not been categorically denied by the respondents in para -2 of their counter reply while replying the said paragraph. It is only stated in para -2 of the counter reply that applicant was initially appointed on 01 Aug, 2001 without sponsorship of local employment exchange, Guntur.
11. It is not in dispute that at the time the applicant was appointed, no candidate was sponsored by the local employment exchange. Therefore, respondents have issued notification to fill up the vacancies and applicant applied for the same and got selected and appointed. Therefore, the fact remains that when the applicant was engaged in the year 2001, he was very much in possession of the Employment Exchange Card and got selected and appointed as SAML by the respondents pursuant to the notification issued by them to fill up the vacancies of SAML. It is no one's case that the respondents received the applications from the candidates who were sponsored by the Employment Exchange and the applicant was not sponsored by the employment exchange.
12. In view of the above undisputed facts, this Tribunal earlier directed the respondents to consider the case of the applicant in view of the observation made therein the order dated 14.6.2007 passed in O.A. No. 603 of 2006. However, from the impugned order, I find that the order do not speak anything as to whether Sub para (i) and (ii) of para-1 of Seasonal Anti-Malaria Lascars ( Grant of Temporary Status and Regularization) Scheme of Indian Air Force, 1997 and para -4 of the implementation of the scheme 1997 had been taken care of by the authority. I find that this Tribunal in O.A. No.603 of 2006 dated 14.06.2007 has observed in para -9 of the said judgment that in para -4 of the said scheme contains a separate set of norms as extracted therein.
13. I find that when the applicant was very much in possession of the employment exchange card and appointed by the respondents in pursuance to the notification issued by them and undisputedly the said notification was issued by the respondents because no candidate was sponsored by the employment exchange at the relevant point of time when the applications were called for the post of SAML. It will not be out of place to mention herein that the decision of the Hon'ble Supreme Court in the case of Excise Superintendent Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao & Ors. reported in 1996 SCC ( L &S) 1420 wherein it was held that restricting the selection only to the candidates sponsored by employment exchange not proper. In addition to requisitioning the names from employment exchange, names should also be called for by publication in newspapers, having wide circulation and display on office notice boards or announcement on radio, television and employment news bulletins, such a procedure would sub-serve fair play. However, it appears that the HOD/DOP&T set out separate set of norms to solve the issue as under:-
i. Temporary status be granted to Anti Malaria Lascars after 165 days of work in offices observing 06 days a week and after 150 days in officers observing 05 days in a week for two consecutive years.
ii. Such Anti Malaria Lascars who have completed 650 days in the last consecutive 04 years in offices observing 06 days a week and 600 days in offices observing 05 days in a week would be eligible for regularization against a regular vacant GP "D" post."
14. I find that this is the 3rd round of litigation and the respondents have issued the impugned order without going through the judgments properly and observation made by the Tribunal therein. It appears that the respondents have also not considered that the applicant was appointed by them on being selected pursuant to the notification issued by them to fill up the vacancy of SAML in the year 2001 when no candidates were sponsored by the employment exchange. I therefore find it just and proper to direct the respondents to pass appropriate orders considering the above observation and observations made in earlier O.A. i.e. O.A. No. 603 of 2006 dated 14.6.2007 and pass appropriate speaking orders within a period of two months from the date of receipt of copy of this order
15. Since the impugned order is a non-speaking order and has been passed without considering the observations of the Tribunal as discussed above, without taking into account that the applicant was very much in possession of the employment exchange card, the same is liable to be quashed and set aside and the same is hereby quashed and set aside.
16. The O.A. is disposed of accordingly. However, there shall be no order as to costs.
17. Xerox copies of the Notice, applicant's employment exchange card produced by the learned counsel for the applicant be kept with the record.
(BHARATI RAY) MEMBER(J) Dated 11th August, 2008 (Dictated in open court)