AI Structured Summary
Not yet generated for this judgment
Judgment
Jasmine Ahmed, J
This is the second round of litigation. Earlier, in OA 405 of 2011, vide order dated 20-03-2011, this Tribunal passed the following order:-
"5. Accordingly, the present OA is allowed with a direction to the respondents to consider the case of the applicants for regularization as per the recruitment rules in question and also take into account the seniority, within a period of six months and appropriate orders shall be passed in this regard conveying the same to the applicant. ... in case the applicants are still aggrieved, in any manner, they would be at liberty to approach the appropriate forum as per law."
The respondents have passed the impugned order dated 13-02-2015 by which the applicants were no doubt regularized from the date they assume charges of Group D posts after due medical examination. The claim of the applicant in this OA is to the effect that the date of regularization shall have to be advanced to the date when vacancy arose, against which they stand regularized, viz. w.e.f. 10-09-2008 when the respondents admitted that 1115 posts of Class IV employees were lying vacant and/or in alternative w.e.f. 06-01-2011 the day and date when they approached this Tribunal, with all consequential benefits (monetary as well as non monetary). And, arrears shall be incremented by interest at 12% per annum.
Respondents have contested the OA. According to them, the applicants are not entitled to the relief sought since the order in CP No. 12/2012, dated 01-03-2012 in OA No. 405/2011 was under challenge in SLP © 36483 of 2012 which had been dismissed by order dated 25-08-2015 and with the same nothing survived in completion of the compliance of the order. In other words, the fact regularization had already been made of the applicants, would, according to the respondents suffice.
The applicants have filed their rejoinder to the reply filed by the respondents and contended that the respondents have not stated anything in their preliminary submissions why the prayer to the effect of their regularization retrospectively w.e.f. 10-09-2008 or 06-01-2011 be not accepted. And, they have also reiterated their stand in the OA.
Arguments were heard which by and large have been on the basis of the pleadings. The pleadings were also perused.
At the outset, it is to be clarified that as per the respondents, the dismissal of SLP on the grounds that the order of the Tribunal has been complied with and the applicants have been regularized and hence, no relief is available beyond the same cannot be accepted. For, dismissal of the SLP by the Apex Court only confirms that there is no deliberate disobedience or non compliance of the order of the Tribunal but when the order in compliance of the mandate of the judicial body raises a fresh cause of action, the same entitles the aggrieved person to move the matter again. In this regard, support could be had from the judgment of the Apex Court in the case of J.S. Parihar v. Ganpat Duggar, (1996) 6 SCC 291wherein, it has been held as under:-
"1. We have heard the counsel on both sides.
Leave granted.
These appeals by special leave arise from the order of the Division Bench dated 3-4-1996 made in Special Civil Appeals Nos. 1 and 2 of 1995. The facts are not in dispute. The controversy relates to the preparation of the seniority list of the Engineers in Rajasthan Civil Engineering Services (Public Health Branch). In WP No. 560 of 1979 by order dated 6-10-1988 the Division Bench of the High Court declared the seniority list prepared with retrospective effect in terms of the amended Rules as unconstitutional; it accordingly quashed the list and directed preparation of the seniority list afresh to determine the inter se seniority on that basis and to grant promotion to the appellants within the specified time. The same order came to be reiterated by order of another Division Bench dated 9-9-1989 made in WP No. 1074 of 1980. It was further reiterated in the order dated 22-3-1990. When the seniority list came to be prepared, the contempt proceedings were initiated under Section 12 of the Contempt of Courts Act, 1971 (for short "the Act"). The learned Single Judge on consideration of the merits in the seniority held that the respondents had not wilfully disobeyed the orders of the Court and gave directions as under:
"In Gyaneshwar case, only retrospectivity of these amendments was challenged and, therefore, it was felt by the learned Judges of the Division Bench that retrospectivity of these amendments has already been held to be ultra vires in Kailash Chand Goyal case and so, it had not been declared as such afresh. In that case, the notifications whereby amendments were introduced were not challenged but only their retrospectivity was challenged and, therefore, the decision of this Court in Gyaneshwar case does not hold the field. The controversy raised in this case is squarely covered by the decision of this Court in Kailash Chand Goyal case and in Kailash Chand Goyal case, the impugned notifications Annexures 5 to 6 have been quashed in their entirety and so, the seniority of the petitioner has to be determined on the basis of the directions given by this Court in Kailash Chand Goyal case and promotions have to be accorded accordingly. Of course, it appears quite just and reasonable that the non-petitioners did not intend to disobey the directions given by this Court on account of the legal advice that has been tendered to them and on account of certain interpretations put to the judgment rendered in Kailash Chand Goyal case on the basis of Gyaneshwar case and as some confusion prevailed with the non-petitioners on account of that, they could not comply this order. However, the non-petitioners are directed to comply with the order of this Court dated 22-3-1990 by giving effect to the ratio of the decision that has been rendered by a Division Bench of this Court in Kailash Chand Goyal case and the seniority list should be prepared as directed in the judgment in Kailash Chand Goyal case and promotions should be accorded accordingly. If this order is not complied with within a period of six months from today, the petitioner will be free to move a contempt petition afresh against the non-petitioners."
The State had filed appeal against these directions. A preliminary objection was taken on the maintainability of the appeal and also arguments were advanced. The Division Bench while holding the appeal as not maintainable under Section 19 of the Act, held that the appeal would be maintainable as a letters patent appeal as the direction issued by the learned Single Judge would be a judgment within the meaning of Section 18 of the Rajasthan High Court Ordinance. Accordingly the Division Bench set aside the directions issued by the learned Single Judge. Thus these appeals by special leave.
The question is whether an appeal against the directions issued by the learned Single Judge is maintainable under Section 19 of the Act? Section 19 of the Act envisages that:
"An appeal shall lie as of right from any order or decision of the High Court in the exercise of its jurisdiction to punish for contempt-
(a) where the order or decision is that of a Single Judge, to a Bench of not less than two Judges of the Court;"
Therefore, an appeal would lie under Section 19 when an order in exercise of the jurisdiction of the High Court punishing the contemner has been passed. In this case, the finding was that the respondents had not wilfully disobeyed the order. So, there is no order punishing the respondent for violation of the orders of the High Court. Accordingly, an appeal under Section 19 would not lie.
The question then is whether the Division Bench was right in setting aside the direction issued by the learned Single Judge to redraw the seniority list. It is contended by Mr S.K. Jain, the learned counsel appearing for the appellant, that unless the learned Judge goes into the correctness of the decision taken by the Government in preparation of the seniority list in the light of the law laid down by three Benches, the learned Judge cannot come to a conclusion whether or not the respondent had wilfully or deliberately disobeyed the orders of the Court as defined under Section 2(b) of the Act. Therefore, the learned Single Judge of the High Court necessarily has to go into the merits of that question. We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2-7-1991. Subsequently promotions came to be made. The question is whether seniority list is open to review in the contempt proceedings to find out whether it is in conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the wilful violation of the order. After re-exercising the judicial review in contempt proceedings, a fresh direction by the learned Single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the Single Judge; the Division Bench corrected the mistake committed by the learned Single Judge. Therefore, it may not be necessary for the State to file an appeal in this Court against the judgment of the learned Single Judge when the matter was already seized of the Division Bench.
The appeals are accordingly dismissed. It may be open to the aggrieved party to assail the correctness of the seniority list prepared by the State Government, if it is not in conformity with the directions issued by the High Court, if they so advised, in an appropriate forum. No costs."
The ratio in the above judgment has been brought out in the case of Purnendu Mukhopadhyay vs V.K. Kapoor(2008) 14 SCC, 403, where the Apex Court has observed with reference to the case of J.S. Parihar (supra) as under:-
"It is also not a case like J.S. Pariharwhere while implementing the orders, a particular stand has been taken by the employer giving rise to a subsequent cause of action."
In the instant case, the claim of the applicants is regularization of services from the date of availability of vacancy or from the date of filing of the O.A. What the respondents afforded to the applicants was regularization from a prospective date, i.e. date of regularization. Thus, there is a fresh cause of action that has occurred and the case is identical to that of J.S. Parihar. Thus, the OA is fully maintainable. If the stand taken by the respondents is correct and justifiable the OA has to be dismissed and instead, if the applicants have made out a case, the OA would be through, which, of course, would depend upon the merit of the case.
Now, coming to the main meat of the matter, vide Annexure A-7 order, the respondents have already stated that regularization of Part Time Workers is being done from time to time in accordance with Recruitment Rules of Group D posts with the stipulation of availability of vacancies identified for the purpose of regularization i.e. Waterman and Mali. Regularisation is being done in accordance with seniority and Part Time workers with appointment date prior to upto 12-05-1995 have already regularized.
Regularization thus takes place on the basis of seniority and against the vacancies available under the 50% quota as per the Rules. Such regularization has taken place vide Annexure A-11 (Colly) viz., order of regularization dated 22-07-2009, 25-03-2011 and 15-04-2013. In para 2 of the said Orders, uniformly it has been stipulated as under:-
"Their appointment to designated Group-D post shall be deemed from the date they actually report for duty after they have been medically examined and found fit by the Medical Board, Deen Dayal Upadyay Hospital, New Delhi. Their appointment will be further subject to the verification of their character and antecedents satisfactory by the concerned Authority and fulfilment of all Codal formalities."
The claim of the applicants is that when for the first time, in 2009 regularization had taken place against the vacancies, in the event of such vacancies already available on that date for the rest of the Part time labourers on the basis of seniority, those who had been regularized in 2011 as also 2013 and the applicants would have been regularized from 2009 itself when vacancies to accommodate all had been available. It is the delay on the part of the respondents in not regularizing along with those who were regularized as early as in 2009. And as of 2008, as many as 1115 posts of Class IV emplo9yees were lying vacant admittedly in the Department and 1126 posts in the year 2009. Para 4.10 of the OA refers.
The contention of the respondents has been as stated in para 4.9 and 4.10 of the counter, which is as hereunder:-
"4.9. This para is wrong and denied. It is wrong to say that the delay in not regularizing was caused by the respondents intentionally and wilfully despite the fact that they knew that they were having with them 1115 regular full time post of class IV employees and 50% of them were to be filled in as per rules from among class IV part time employees. In this regard, as per provisions laid down in the Recruitment Rules of Group 'D' posts issued vide Notification No. F.2(14)/87-S.II dated 10.06.1987, 50% of the posts of Full Time Waterman, Mail Sweeper and Chowkidar will be filled up by direct recruitment and remaining 50% of Full Time posts will be filled up by regularising the part time Group D workers who have served as Part Time Workers in the local offices of Delhi Administration for a total period of five years failing which by direct recruitment. Copy of Recruitment Rules is annexed as Annexure-3.
Due outsourcing of sanitation and security services in Government schools, regularisation is not being undertaken against the Post of Chowkidar (Regular) and Sweeper (Regular) at present.
There are only 03 (three) categories of posts of Part Time Group-D workers for regularisation, namely, Waterman, Sweeper and Mali. As regards the post of Chowkidar, it is clarified that there is no Part Time worker in the category of Chowkidar. Further, the above stated category of post of Part Timers are identical as per the Notification No. F.2(14)/87-S.II dated 10.06.1987 (Annexure-3) As such the regularisation is to be done on the posts of Waterman Full time and Mali Full Time only on the basis of the seniority of part time workers keeping in view of their date of appointment.
It has been apprised to the departmental screening committee and on the recommendations of the DSC the services of the Part Time Workers regularised from time to time.
The year-wise detail of part time workers appointed to regular Group 'D' posts is mentioned below :-
Sl. No.
Year in which appointed
Total No. of Part time workers appointed to regular Group 'D' posts
Date of appointment order
1.
1996
124
03/07/1996
2.
1998
195
01/09/1998
3.
2003
188
05/08/2003
4.
2005
94
22/07/2005
5.
2007
72
01/06/2007
6
2009
122
22/07/2009
7.
2011
88
25/03/2011
8.
2013
92
15/04/2013
TOTAL :
975
Thus, it is seen from the tabular column as above, that it is from time to time that regularization has been taking place and in all, right from 1996 till 15-04-2013 as many as 975 part time workers have been appointed to regular Group D posts. The procedure adopted for affording seniority to the above 975 cannot be deviated and different treatment applied in respect of the applicants herein. The same procedure which has been adopted since 1996 only has to be adopted with respect to the applicants as well as otherwise it would lead to discrimination which is legally impermissible. Respondents are directed accordingly. Beyond the above, no other benefit could percolate to the applicants in this regard. The OA is disposed of. No costs.