Brij Mohan vs Union of India and Others

K.M. Joseph, C.J—Petitioner has approached this Court seeking the following prayers:--

(i) a writ, order or direction in the nature of certiorari quashing the impugned order dated 19.05.2010 passed by the Central Administrative Tribunal Allahabad Bench Allahabad, letter dated 08.09.04 subsequent order dated 28.03.2005 and advertisement dated 26.09.04 issued by the respondents inviting applications for the post of Watchman, Washerman, and Sweeper falling in Class IV category Group ''D'' in the office of respondent No. 3 and also all subsequent process thereof.

(ii) a writ, order or direction in the nature of mandamus commanding respondents to permit the petitioner continue on the post of Barber till regularization of his service and further direct to regularize the services of petitioner on the post of Barber on which he was working ever since from 12.05.96 without any days break although on ad hoc basis and also to pay his salary continuously.

By the impugned order the Tribunal has found that the petitioner was engaged as a Barber on casual basis; it is without following the procedure and recruitment rules. The Tribunal also referred to a judgment of the Hon''ble Apex Court, reported in Avas Vikas Sansthan and Another Vs. Avas Vikas Sansthan Engineers Assn. and Others, AIR 2006 SC 3413 : (2006) 109 FLR 648 : (2006) 4 JT 118 : (2006) 2 LLJ 516 : (2006) 3 SCALE 583 : (2006) 4 SCC 132 : (2006) SCC(L&S) 613 : (2006) 3 SLJ 145 : (2006) AIRSCW 1797 : (2006) 4 Supreme 361 , wherein the Hon''ble Court held that the power to abolish any civil post is inherent in every sovereign government. The application before the Tribunal was filed by the petitioner challenging the letter dated 05.09.2004 and the advertisement dated 26.09.2004. By letter dated 05.09.2004, it was ordered as follows:--

ABOLITION OF GROUP ''C'' AND ''D'' VACANCIES:

ANNUAL DIRECT RECRUITMENT PLAN 2000-01 AND 2001-02

As per the provisions of DOP & T OM No. 2/8/2001 - PIC dated 10 May, 2001 and 6/18 Jun 2002, approval of Screening Committee under the Chairmanship of Defence Secretary has been accorded for making direct recruitment to the posts in the lower formations of Army for the ARP years 2000-01 and 2001-02. The vacancies in Group ''C and ''D'' categories were released to various Units/Estts of ASC vide this HQ letter 78855/ADRP/Q/ST-12 (Civ) dated 26 July, 2004.

The above Screening Committee has also abolished certain Group ''C'' and ''D'' posts pertaining to ASC Units/Estts for the ARP years 2000-2001 and 2001-2002. Keeping in view the abolition approved by the Govt. and details of Authorization/Holding submitted by you, the vacancies mentioned in Appendix ''A'' pertaining to your Unit/Estt are hereby abolished. You are requested to take necessary action to amend your PE/WE suitably.

A confirmation to this effect may be communicated to this office at the earliest.

(R.K. Gupta) Col Director (Pers)"

We notice that the counter-affidavit had been filed by the respondents before the Tribunal. We deem it proper to refer to paragraph 17 of the counter-affidavit of the respondents, which reads as follows:--

"17. That in reply to the contents of paragraph No. 4(15) of the Original Application it is stated that the applicant was working on casual basis for intermittent period against the then existing deficiency of one Barber. There has been no continuous retention/employment of Shri Brij Mohan, by 297 Coy ASC (Sup) Type ''C'' Roorkee at any point of time. He has only been employed on as required basis for broken period of 8 to 18 days in a month on daily wages and thus does not enjoy the status of regular casuals. Shri Mohd. Faukh and Shri Surender have been appointed as washerman and Safaiwala respectively as per direct recruitment policy as per guidelines/procedural formalities for filling up of Group ''C'' and ''D'' vacancies through direct recruitment as per Directorate General of Supplies & Transport, Quartermasters General''s Branch, Army Headquarters letter No. 15251/ST/MP-4(Civ) (b)/Phase-II dated 25 May, 2004 and against the vacancies released to 297 Coy ASC (Sup) Type ''C'' Roorkee vide Directorate General of Supplies & Transport Quartermaster General''s Branch Army Headquarters New Delhi letter No. 15251/ST/NP-4 (Civ) (b)/Phase-II dated 25 May, 2004 and their letter No. 78855/ADRP/Q/ST-12 (Civ) dated 26 July, 2004.

One vacancy each of Chowkidar, Wahserman and Safaiwala released to 297 Coy ASC (Sup) Type ''C'' Roorkee as mentioned above was filled by appointing the candidates from General Category through advertisement in news paper since the authorized number vacancies of SC/ST/OBC etc. were already filled in accordance with the existing reservation policy. On the date of examination/interview i.e. on 27 Oct., 2004, the age of applicant of the general category for filling up the post of Chowkidar, Washerman and Safaiwala was not to exceed 25 years of age as per QR laid down vide recruitment rules issued by Govt. of India vide Gazette Notification of India dated 09 Feb. 2002, SRO 37/01 (Army Group ''D'' (Non-Industrial), Recruitment Rules, 2001).

In his application dated 12 Oct., 2004, the applicant has mentioned date of birth as 10 June, 1978 while applying for the post of Chowkidar, thereby his age on 27 Oct., 2004, was more than 25 years and therefore he was not eligible for applying in the general category for the post of Chowkidar, hence the application was rejected by the Board of Officers constituted for selection of candidates for filling up the post of Chowkidar with 297 Coy ASC (Sup) Type ''C'' Roorkee. Therefore contention of applicant is not correct. Further Mohd. Faukh and Shri Surender were selected for the post of Washerman and Safaiwala respectively in the general category and for these posts, the applicant has even not submitted any application."

We heard learned counsel for the petitioner. There is no representation for the respondents. Learned counsel for the petitioner would submit that the petitioner was not able to complete 10 years and had he completed 10 years, he could have sought regularization in terms of Secretary, State of Karnataka and Others Vs. Umadevi and Others, AIR 2006 SC 1806 : (2006) 6 CompLJ 1 : (2006) 4 JT 420 : (2006) 2 LLJ 722 : (2006) 4 SCALE 197 : (2006) 4 SCC 1 : (2006) 3 SLJ 1 : (2006) AIRSCW 1991 : (2006) 3 Supreme 415 . He would also submit that after 18 days of abolition, the post was again advertised and there is mala fide, but we find that the post of Barber was not advertised again. Admittedly, the posts of Chowkidar, Dhobi and Safaiwala were advertised. As far as abolition of post is concerned, it is executive decision with which the Court will not have any concern unless it is proved to be mala fide. In the facts of this case, we are not in a position to infer mala fide. The fact of the matter is that there is a finding rendered by the Tribunal that appointment of the petitioner was casual and without following the rules and in such circumstances, we see no reason at all to interfere with the impugned order or to grant the direction as sought for. Accordingly, the writ petition fails and is dismissed. No order as to costs.