Central Administrative Tribunal - Delhi
Shri K. Kannan vs The Chairperson on 10 July, 2012
Central Administrative Tribunal Principal Bench New Delhi OA No. 4181/2011 MA No. 3114/2011 Reserved on : 04.07.2012 Pronounced on : 10.07.2012 Honble Mr. Justice Alok Kumar Singh, Acting Chairman Honble Dr. Ramesh Chandra Panda, Member (A) 1. Shri K. Kannan, Peon MTS S/o Shri Kanda Swamy, R/o D-770, Kidwai Nagar (East) New Delhi. 2. Shri Kuldeep Singh Ranga, LDC S/o Shri Jai Bhagwan, R/o 154-A, Chanchal Park, Nangloi-Najafgarh Road, Delhi 43. 3. Smt. Shweta, LDC W/o Shri Kamal Kumar, R/o WZ-126, Om Vihar, Uttam Nagar, Delhi 59. 4. Shri Dwijen Deka S/o Shri Bhabit Deka, R/o Qtr. No. 42/12, Sector 1 MB Road, New Delhi. 5. Shri Ajay Kumar Nath S/o Nareshwar Nath, R/o D-680, Kidwai Nagar (East) INA, New Delhi. 6. Shri Mahender Singh Rawat, S/o Shri Satender Singh Rawat, R/o WC/7-53, Prem Nagar, Lodhi Colony, New Delhi 110 003. Applicants (By Advocate: Mr. Nilansh Gaur) Versus The Chairperson, National Human Rights Commission, Faridkot House, Copernicus Marg, New Delhi 110 001. Respondent (By Advocate: Mr. R.N.Singh for Mr. R.V. Sinha) O R D E R Dr. Ramesh Chandra Panda, Member (A):
Six applicants (two LDCs and four Peons) working from July, 2008 on ad hoc basis in the National Human Rights Commission (NHRC) whose temporary service has not been extended, have joined together in the present OA seeking following relief(s):
8.1 To direct the respondent to consider the applicants for appointment on regular basis in the cadre of LDCs and Peon at par with the similarly circumstances officials who have been offered regular appointments;
8.2 To set aside the impugned order dated 03.08.2011 passed by the respondent thereby not extending and terminating the ad hoc service of the applicants; or 8.3 In the alternative to direct the respondent to consider extending the ad hoc service of the applicants till the regular appointees join the posts;
8.4 Any other relief which this Honble Tribunal may deem fit and appropriate, in the circumstances of the case.
2. Brief factual matrix of the case would disclose that the NHRC had 61 and 40 sanctioned posts of Peons and LDCs at the relevant period of time. Prior to 6th Central Pay Commission (CPC) period, the NHRC had the Recruitment Rules (RRs) for the post of Peon by which direct recruitment used to take place, but on the basis of 6th CPC recommendations, all Group D posts (Daftry, Peon Library Attendant, Farash and Safai Karamchari) had been re-designated as Multi Tasking Staff (MTS). On the other hand, the RRs of LDCs envisaged 10% of posts for appointment by promotion failing which by direct recruitment and balance 90% by direct recruitment failing which by absorption/deputation. It is noticed that in the year 2008, as many of regular LDCs and Peons of the NHRC went on deputation, temporary vacancies arose in both categories. In case of 7 temporary vacancies of Peons, a panel of 20 persons was prepared out of which 5 were appointed to those vacancies in July, 2008 on ad hoc basis and later on 4 more persons were appointed as Peon on ad hoc basis. Their appointment against those temporary vacancies was periodically extended upto a period of 3 years and as those temporary vacancies existed, lastly, they were reappointed on ad hoc basis w.e.f. 2.8.2011 for a period of 3 months which ended on 01.11.2011. Subsequently, on return of regular MTS from deputation, there was no temporary vacancies for those ad hoc appointees and they were not further engaged. In respect of LDCs, to fill up temporary vacancies on ad hoc basis, written test of candidates was held on 04.05.2008 and skill test was conducted on 24.05.2008, on the basis of which 2 candidates (2nd and 3rd applicants in the OA) were offered appointment for a period of one year purely on ad hoc basis. Their ad hoc appointment as LDCs continued for a period of 3 years which ended on 03/14.07.2011. On receipt of their representation, they were reappointed afresh again on ad hoc basis w.e.f. 20.07.2011 for a period of three months which concluded on 19.10.2011. The applicants feeling aggrieved by the action of the respondent in not extending their ad hoc appointment and not offering regular appointment and raising the ground of discrimination, the applicants approached the Tribunal in OA No.3909/2011, which was dismissed as withdrawn in following terms:
The applicants were given ad hoc appointment in the year 2008 which is being extended from time to time and today may be their last working day, the only grievance of the applicants in the present OA is that there were others also, who were appointed on ad hoc basis in the year 2007-2008, whose services have been regularised, whereas, the applicants have been shown the exit door. We could understand the only plea raised by the applicants based on discrimination if the pleadings had shown that the applicants are similarly situate as those who have been regularized. The minimum requirement to show so was that the applicants should have placed on record their appointment letters and of those who have been regularized. Only then, some comparison between the two sets of employees could be made. The applicants have brought neither their orders of appointment, nor of those who have been regularized in service.
2. Confronted with the position aforesaid, counsel for the applicants seeks permission to withdraw this OA with liberty to the applicants to file fresh one, wherein pleadings shall be made showing similarity of conditions of service of the applicants with those who have been regularised, which may also be supported by documentary evidence.
3. With leave and liberty as asked for, the present Original Application is dismissed as withdrawn. In furtherance of the above orders, they have approached this Tribunal in the instant OA. All the applicants have prayed for their appointment on regular basis to the posts of LDC and Peon as similarly circumstanced ad hoc officials have been offered regular appointments. They have enclosed in Annexure A-5 copy of orders received under the Right to Information Act in support of their claim that 6 persons initially appointed on ad hoc basis in the posts of Peon/LDC were offered regular appointments. Therefore, they claim that they should be treated alike and offered regular appointments.
3. We heard Shri Nilansh Gaur, learned counsel for the applicants. Highlighting the background of the case, Shri Gaur would raise the principal ground of invidious discrimination meted out to the applicants. He submits that their termination in the light of DoP&T OM dated 14.11.2007 is not only discriminatory but also arbitrary as a differential treatment with no intelligible differentia with the object sought to be achieved by regularizing the ad hoc services of 6 identically situated ad hoc employees and denying the same to the applicants. Further, it is contended that the applicants having worked on ad hoc basis for more than 3 years have legitimate expectation to be regularized in their respective posts. Responding to the arguments advanced by the learned counsel for the respondent NHRC that the Honble High Court of Delhi in the WP (C) No.1268/2012 NHRC and Another Versus Sheenu Saxena and Others decided on 01.06.2012 considered the issues raised in the present OA and set aside the order of the Tribunal passed on 01.02.2012 in OA No.3469/2011 while allowing grant of age relaxation to the respondents, Shri Gaur, learned counsel for the applicants would submit that all the applicants in the present OA should be extended same benefit of age relaxation.
4. Shri R.N. Singh, learned counsel for respondent-NHRC, raised a preliminary objection in the sense that MA No.3114/2011 wherein 4 belonged to the category of ad hoc Peons and 2 were ad hoc LDCs joined together in the OA, should be dismissed for mis-joinder of parties. The objection was repelled by the counsel for the applicants stating that the cause of action and relief sought being the same, all the six applicants have joined together in the OA. We have considered the preliminary objection. It is admitted fact that all the applicants were appointed on ad hoc basis though in two different posts and on conclusion of their ad hoc period, they were not engaged by the respondent. This Tribunal issued notice to the respondent on 23.11.2011 in the OA and MA. Had the above preliminary objection been raised at the initial stage by the respondent, the issue could have been then decided. At the present stage, where the reply affidavit of respondent and rejoinder of the applicants have been filed and the case was heard by us on merits, we therefore, intend to decide the OA on merits.
5. On receipt of notice from the Tribunal the respondent-NHRC has submitted the reply affidavit on 24.02.2012 and contested the case of the applicants. Shri R.N. Singh, learned senior Central Government counsel, placed before us a copy of the judgment of Honble High Court in Sheenu Saxenas case (supra) and extensively referred to the same to submit that the grounds raised in this OA have been addressed in the said judgment of Honble High Court wherein it was held that the applicants did not have any right to claim the relief of regularization. He also relied on a catena of judgments of Honble Apex Court viz. Secretary, State of Karanataka and Others versus Uma Devi and Others [2006-4-SCC-1]; Indian Drugs and Pharmaceuticals Ltd. Versus Workmen, Indian Drugs and Pharmaceuticals Ltd. [2007-1-SCC-408] and State of UP versus Desh Raj [2007-1-SCC-257]. It is submitted that four applicants who were Peon on ad hoc basis could not be regularized as per the law laid by Honble Supreme Court in Uma Devis case (supra), the case of two LDC being squarely covered by the judgment in Sheenu Saxenas case (supra), Shri R.N. Singh fairly concedes that the decision of the Honble High Court in the said judgment will be binding as the two applicants (LDC) in the instant OA are similarly circumstanced as the respondents in Sheenu Saxenas case (supra).
6. Having heard the contentions of the counsel of the rival parties, with their assistance we perused the pleadings of the case and the relied on judgments.
7. It had been the case of the applicants that they were appointed to the respective posts on ad hoc basis through regular prescribed selection process, and some of the persons placed in the panel and that too on ad hoc basis had been regularized and they could not be discriminated arbitrarily as they had the legitimate expectation to be regularized. We note that these two principal grounds have been analyzed and binding decision have been given by the Honble High Court of Delhi in its judgment in Sheenu Saxenas case (supra). We may refer to the said judgment in the following paragraphs, as we consider that the reasons advanced by the applicants in the present OA have been addressed therein.
8. In Sheenu Saxenas case (supra), the respondents before the High Court of Delhi earlier came to this Tribunal impugning the orders passed by NHRC dated 15.09.2011 whereby they were informed that their ad hoc appointment had not been extended beyond 06.09.2011. The Tribunal in OA No. 3469/2011 decided on 01.02.2012 quashed the NHRC letter dated 15.09.2011 directing the NHRC to continue the ad hoc service of the applicants beyond 06.09.2011 with a further direction to NHRC to consider their case for existing regular vacancies of LDCs in un-reserved categories. Aggrieved against the said order of this Tribunal, the respondent-NHRC moved the Honble High Court of Delhi [WP(C) No. 1268/2012] in NHRC and Anr. Versus Sheenu Saxena and Ors. The Honble High Court passed its judgment on 01.06.2012 wherein the Tribunals order dated 01.02.2012 in the said OA was set aside. However, the respondents in the writ petition were allowed four weeks time to apply pursuant to the advertisement by NHRC and granted requisite age relaxation to them.
9. In the background of these developments, we notice that the Honble High Court has touched all the grounds taken by the applicants in the present OA. With regard to the issue of applicability of DOP&T OM dated 14.11.2007 which prohibits ad hoc appointment beyond three years and a copy of which has been enclosed to the reply affidavit by the respondent-NHRC, the Honble High Court came to the considered conclusion that there was no question of protecting the appointment of the respondents beyond 06.09.2011 as they were appointed on ad hoc basis. It is apt for us to take the relevant part of the High Courts judgment which reads thus:
Neither of these judgments helps the respondents for the simple reasons that neither there is any emergent situation, warranting regularization of respondents nor has any policy decision been taken by the petitioners to exhaust the panel prepared in February, 2004 or to regularize the respondents before making fresh appointment on regular basis. Unlike Amlan Jyoti Borooah (supra), the case before us does not involve challenge to appointments, by those who are still in the panel of extra candidates. Therefore, there is no question of protecting the appointment of the respondents, who were appointed purely on ad hoc basis and whose ad hoc appointment was not extended beyond 06.09.2011. Moreover, even if any decision is taken by the petitioners to regularize the respondents, such a decision would be illegal being contrary to OM, issued by DOP&T on 14.11.2007, which prohibits ad hoc appointment beyond three years.
10. Further taking into account the issue of discrimination raised by the respondents in the said writ petition which has also been raised by the applicants in the present OA, the Honble High Court has considered catena of judgments relied upon by the parties and more specifically dwelt on Mukul Saikia and Ors. v. State of Assam and Ors, (2009) 1 SCC 386; Union of India and Anr. v. Arulmozhi Iniarasu and Ors., (2011) 7 SCC 397; Nagendra Chandra v. State of Jharkhand, (2008) 1 SCC 798 and Sethi Auto Service Station v. DDA, (2009) 1 SCC 180, and decided that the illegality which had been caused by regularizing some of the ad hoc employees would not be directed to be perpetuated since no equality in any illegality could be claimed as a matter of right. Therefore, the issue of discrimination was rejected by the Honble High Court in the said Sheenu Saxenas case (supra) in the following terms:
As regards the contention that the action of the appellants was discriminatory inasmuch as some similar situated persons being appointed/absorbed as Sepoys, it was observed that a writ of mandamus can be issued by the High Court only when there exists a legal right in the writ petitioners and corresponding legal obligation on the State. It was further observed that only because an illegality had been committed, the same cannot be directed to be perpetuated, since there can be no equality in any illegality.
We fail to appreciate how this case in any manner advances the case of the respondents. This judgment, in fact, goes against the respondents before this Court. The Supreme Court in this case, not only rejected the plea of legitimate expectation but also the plea of hostile discrimination. The Court also set aside the order of the High Court granting age relaxation to the respondents.
11. Further, the issue of legitimate expectation has also been considered by the Honble High Court in the said writ petition. Referring to the judgment of Honble Supreme Court in Uma Devis case (supra), it has been held that the legitimate expectation cannot be invoked in favour of the employees who are either on contract or temporary or ad hoc basis.
12. In the said writ petition the Honble High Court has considered the entire gamut of issues involving discrimination, legitimate expectation and regularization of ad hoc employees and has come to the following conclusion:-
17. We have also examined the other decisions, copies of which have been submitted by the learned senior Counsel for the respondents but none of them lays down any such proposition of law which may be of any help to the respondents. We cannot while deciding this petition lose sight of the fact that a vast number of persons, who would not be eligible at the time vacancies were notified vide advertisement dated 16.7.2003 must by now have become eligible to apply for the post of LDCs in NHRC. It would mean denial of their fundamental rights, guaranteed to them under Article 14 & 16(1) of the Constitution, if they do not get any opportunity to compete for the posts which have fallen vacant in NHRC, and are now sought to be filled by making regular appointments. No vested right for regularization or regular appointment has accrued to the respondents on account of their ad hoc appointment to these posts. It would be an improper exercise of jurisdiction on our part to direct regularization of the respondents at the cost of vast number of persons, who are entitled to apply for these posts pursuant to the advertisement issued by NHRC to fill up these posts on regular basis. It would also be conducive to the efficiency of administration, if, only the best persons are appointed to the public offices. We see no good reason for the respondents not competing with the other persons in seeking appointment to these posts. If they are better than others, they would be appointed against these posts and if other candidates are found to be better than them there would be no reason for not appointing those persons.
We are conscious of the fact that some of the respondents may have become overage by this time. However, during arguments before us, the learned counsel for the petitioners stated, on instructions, that if the respondents apply pursuant to the advertisement issued by NHRC, the requisite age relaxation would be granted to them. This concession, on the part of the petitioners, would adequately meet the ends of justice and satisfy whatever equities the respondent have in their favour on account of their engagement on ad hoc basis.
18. For the reasons stated hereinabove, the writ petition is allowed and the impugned order dated 1.2.2012 passed in OA No. 3469/2011 is hereby set aside. However, if the respondents apply pursuant to the advertisement issued by NHRC, within 04 weeks from today, requisite age relaxation shall be granted to them by the petitioners. In the facts and circumstances of the case, there shall be no order as to costs. The above decisions in the background of the facts of the case are mutatis mutandis applicable in the present OA. We do not find any other ground to distinguish the above judgment for the purpose of deciding the issues involved in the present OA. We, therefore, follow the above judicial precedent for deciding the present OA in terms of the above directions of the Honble High Court in Sheenu Saxenas case (supra).
13. Having considered the totality of facts and circumstances of the case and placing our reliance on the judgment of Honble High Court of Delhi in Sheenu Saxenas case (supra), we are of the considered view that the present OA does not deserve any further consideration and needs to be dismissed. We order accordingly. However, as decided by Honble High Court of Delhi in Sheenu Saxenas case (supra) if the applicants have already applied or to apply in near future for the relevant vacant post(s) in NHRC, the requisite age relaxation shall be granted by the NHRC to the applicants in their respective categories (LDC/Peon/MTS). In the peculiar circumstances of the case, the cost is made easy.
(Dr. Ramesh Chandra Panda) (Alok Kumar Singh)
Member (A) Acting Chairman
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