Bal Kishan vs Union Of India And Ors

The applicant has filed this Original Application under Section 19 of the Administrative Tribunals, 1985 seeking the following relief:-

"It is, therefore, most respectfully prayed that your Lordships may graciously be pleased to quash/set aside the order dated 5.8.2015 passed by the respondents, denying the benefit of regularization of service and further direct the respondent to regularize the service of the applicant as Anti Malaria Luskar with all consequential benefits w.e.f. the dates when the juniors of the applicant were regularized by the respondents and further be pleased to direct the respondent to grant relaxation in terms of SRO of 2012 or may pass any other order or directions as may deem fit and proper in the interest of justice with costs."

The brief facts of the case are that the applicant was called through employment exchange to work as Casual Anti Malaria Luskar w.e.f. 12.09.1990 to 31st October, 1990 and thereafter he was disengaged. However, he was again engaged in the same capacity on 04.05.1992 and he worked till 17.10.1992. Despite his willingness to work under the respondents, he was left out whereas certain fresh persons were appointed in the year 1993 for the reasons best known to them. The applicant submits that the respondents framed a scheme to regularize the services of casual labourers working under them in the year 1994 in terms of various judicial pronouncements of Hon'ble Apex Court and the Tribunal from time to time. It is further submitted that he was again called to work as Anti Malaria Luskar for the year 1994 and he accordingly worked from 01.05.1994 to 31.10.1994 with entire sincerity, integrity and devotion to duty. The applicant contends that he was issued letter for interview on 31.03.1995 but he was denied fresh engagement. Likewise, in the year 1996 he was asked to submit his willingness to work as Anti Malaria Luskar, which he indeed submit, but he was not engaged again. However, in the year 1997, he was appointed as Anti Malaria Luskar on daily wages from 01.05.1997 to 31.10.1997 and he discharged his duties most efficiently and diligently. It is pertinent to mention here that the applicant was issued letter dated 27.10.1997 granting temporary status with direction to submit the proforma enclosed with the letter for willingness, which the applicant submitted in time. Notwithstanding the above, the applicant was ignored for appointment as Anti Malaria Luskar in the years 1998, 1999, 2000, 2001, 2002 and 2003 whereas his juniors/fresher were appointed in an arbitrary and illegal manner.

The applicant submits that he came to know from some reliable sources that some of his juniors were regularized by the respondents ignoring him, the details of those juniors are as under:-

Name

Date of birth

Date of Regular appointment on Group 'D' post.

Sh. Dhani Ram

06.06.1966

17.07.1998

Sh.Ramphal

15.05.1966

21.01.2002

Sh. Kishor Kumar

05.02.1976

06.03.2002

Aggrieved, the applicant submitted a detailed representation to the respondents on 26.05.2003 for regularization of his services, but the respondent did not respond to the same. It is submitted that as per the policy framed by the respondents, persons having worked for 165 days in office observing 6 days a week and after 180 days of office observing 5 days a week shall be entitled to get temporary status and the Anti Malaria Luskar having completed 650 days in 4 years, shall be entitled for regularization against Group 'D' post. He also learnt that one Lilu, junior to him, filed OA NO.2810/1990 decided on 12.10.2000 was considered and regularized in Group 'D' post with all consequential benefits. When the applicant failed to get any response from the end of the respondents, he approached this Tribunal by way of OA No.3075/2003 which was decided vide order dated 19.12.2003 directing the respondents to dispose of the applicant's representation. The applicant contends that the respondents in compliance of the Tribunal's order passed an order dated 17.03.2004 rejected his representation stating that he cannot be regularized in Group-D- post. Aggrieved, the applicant filed yet another OA No.1020/2004, which was partly allowed vide order dated 09.11.2004 with a direction to the respondents to engage the applicant immediately as AML and consider him for according temporary status as if he had worked for the requisite 165 days under the Scheme. The respondents were further directed to consider applicant's case for regularization in service in case he was found to have worked for 650 days in consecutive 4 years in terms of the Scheme formulated by the respondents. It was also directed that while applicant should be accorded temporary status within a period of one month, the respondents shall also consider him for regularization of his services within another two months.

The applicant submits that the respondents instead of complying with the direction of the Tribunal, preferred Writ Petition before the Hon'ble High Court and Special Leave Petition before the Hon'ble Apex Court and both the above petitions were dismissed vide order dated 07.12.2010 and 28.11.2011 respectively. Consequently, the applicant preferred Contempt Petition before the Tribunal and during the pendency of the CP, and the Tribunal vide its order dated 24.01.2012 directed the respondents to allow the applicant to join his duties on the very next day i.e. 25.01.2012 positively at 10.00am and further directed that he would report to the Station Commander so that he may be able to join duty without any further delay. The respondents filed compliance affidavit in the CP stating that the applicant has been re-engaged on 24.01.2012. Therefore, the CP was closed vide order dated 22.03.2012 with liberty to the applicant to challenge the aforesaid letter dated 24.01.2012 in accordance with rules.

The applicant submits that he was shocked to receive a letter dated 01.10.2012 from the respondents disengaging his services and, therefore, the applicant was compelled to move another OA No.3651/2012, which was allowed by the Tribunal vide order dated 27.08.2013 in the following terms:-

"3. Original Application is allowed. Applicant is directed to regularize the service of the applicant from the date his junior was regularized. Applicant at this point of time claims for consequential benefits. Only consequential benefit he can be granted is that his seniority can be given but only on notional basis. No back-wages or connected payment can be availed of. No order as to costs."

The respondents being aggrieved by the aforesaid order of the Tribunal, preferred CWP No.2444/2014 before the Hon'ble High Court of Delhi which was disposed of vide order dated 27.10.2014, operative part whereof reads as under:-

"8. For the foregoing reasons, the operative directions of the CAT in the impugned order cannot be sustained. They are hereby set aside and substituted with direction to the petitioner to consider the respondent/ applicant's case as on date having regard to the fact that he was granted temporary status on 15.03.2012 and by taking into account his period or periods of employment thereafter to see whether he is entitled for regularization after satisfying all other criteria applicable in that regard. An appropriate order in this regard shall be made and communicated to the applicant within six weeks from today."

It is the contention of the applicant that the respondents consequent upon the decision of the High Court of Delhi passed an order dated 16.12.2014 informing that the applicant shall be eligible for regularization against a regular vacant post as per the provisions of the Scheme of 1997. The respondents vide letter dated 16.02.2015, asked applicant to submit the requisite documents for regularization of his services. However, vide order dated 05.08.2015, the respondents rejected the claim of the applicant for regularization only on the ground that as per the rule framed by them on 24th June, 2012, he does not have the required educational qualification being only 7th pass completely ignoring the terms of their own Policy of 1997.

The applicant submits that due to his best efforts, he could lay his hands over the SRO dated 25.06.2012 providing relaxation of any of the provisions of the said SRO and the Policy of 1997, in no way, has been superseded. It is further submitted that the applicant was again engaged on 01.05.2015 till 31.10.2015 and has since been disengaged.

The applicant contends that the respondents have not considered his claim for grant of temporary status as also regularization of his services despite several rounds of litigation in an arbitrary, illegal and discriminatory manner by violating the principles of natural justice.

The respondents in their reply stated that the applicant was engaged off and on and he did not work as AML in 1995, 1996, 1998, 2000 after he was given an opportunity to send his willingness to accept the offer of AML. Hence, he has not fulfilled the requirement as provided in the Scheme of 1997 for AML with regard to grant of temporary status and regularization of service. They have further submitted that in terms of the direction of the Hon'ble High Court in CWP No.2444/2014 (supra), it is clear that regularization of the applicant can be effected only after he fulfills the applicable criteria. It is mandatory that the person has to be at least matriculate for regularization against erstwhile Group-D or equivalent post. Since the applicant is only 7th pass, the respondents have rightly not regularized his services. It is further submitted that the respondents have complied with all the decisions of the Tribunal and of the Hon'ble High Court preferred by the respective parties in letter and spirit and the respondents have, therefore, not violated any statutory rules, Policy or the judicial pronouncements.

I have carefully gone through the pleadings of the case and heard the arguments so advanced by the learned counsel for both the parties.

The contention of the applicant in this case is that even though the High Court's order dated 27.10.2014 in CWP No.2444/2014 (Supra) does not specifically mention the other aspect of relief, namely, that the regularization should be effected from the date his junior was regularized as also the benefit of seniority and consequential benefits, the same were the matter of adjudication in the Tribunal in OA No.3651/2012 decided on 27.08.2013, and the Tribunal had given specific orders on these two issues. It is contended by the applicant that firstly the respondents have not passed an order which makes it clear that the applicant has been regularized; secondly, the respondents have not at all taken any action with regard to the date with which regularization will come into effect, which should have been from the date his juniors were regularized, as also grant of consequential benefits.

On the other hand, the respondents argued that they have followed the direction of the Hon'ble High Court of Delhi in letter and spirit. They have further stated that the High Court has directed them to consider the applicant's claim as on date having regard to the fact that he was granted temporary status on 15.03.2012 by taking into account his period or periods of employment and nowhere this order indicates that if the regularization is decided by the respondents, it has to be with effect from the date when his juniors were regularized. Therefore, there is no relief that is outstanding against the applicant.

Paragraph 8 of the High Court needs to be perused carefully. This order states that the operative directions of the CAT dated 22.08.2013 cannot be sustained and are set aside. Therefore, every direction in that order of the Tribunal, which includes that of regularization from the date when applicant's juniors were regularized, consequential benefits and seniority, all have become non est. Instead, the High Court substituted the direction and the wording of the High Court's direction suggests that the applicant's case as on date was to be considered for regularization. The contention of the respondents is that the order passed by them during the currency of this OA dated 10.08.2016 appointing the applicant as MTS in the Pay Band Rs.5200-20200+1800 Grade Pay with a rider that he will be on probation for a period of two years from the date of his appointment subject to fulfillment of all service conditions, amounts to implementation of the High Court's decision and a step further towards his regularization. Since the applicant has not impugned this order by way of amendment of O.A., it is presumed that he accepts this order as a matter of appointment order otherwise he could have objected to it. Therefore, I have no option but to accept it as an appropriate implementation of the direction of the Hon'ble High Court.

As regards other relief of regularization of applicant's service from the date his juniors were regularized and consequential benefits including the seniority etc., the correct course for the applicant is to move the High Court of Delhi for clarification and if necessary, amplification of their order to include the reliefs like regularization from the date the applicant's junior was regularized and consequent benefits etc. and then proceed further. At this juncture, it will be inappropriate for the Tribunal to interfere in this matter, in view of the fact that Tribunal's earlier order dated 22.8.2013 giving these reliefs was set aside by the High Court by their order dated 27.10.2014.

Viewed in the light of discussion in the preceding paragraphs, I am of the clear view that the OA, the way it has been presented and the terms of relief the applicant is claiming in it, are bereft of merit and the same is accordingly dismissed. No costs.