Kamlesh vs Govt. Of NCT Of Delhi And Ors

Applicant (date of birth 15.04.1978) is widow of one late Shri Jaiveer Singh, a Group 'D' employee who served as Groundsman, Sports Complex, Chhattarsal Stadium, Directorate of Education, GNCTD. She passed secondary school examination on 20.12.2010 and senior secondary school examination on 02.08.2016. She belongs to SC community and is a resident of Rattangarh in Tehsil and District Sonepat.

Shri Jaiveer joined respondents as a casual labourer in 1993 and was granted temporary status on 23.03.2001. Certain part time workers, who were junior, were regularized by the respondents but many of the staff who were similarly placed as Shri Jaiveer, were not regularized and instead a Show Cause Notice was issued to them for termination of their services.

Feeling aggrieved, 22 number of such staff filed OA No. 833/2008. Shri Jaiveer appears as applicant no.5 in this OA. This OA was decided on 30.07.2008 with the following orders:

"10. Accordingly, this OA is allowed quashing the impugned notices dated 03.04.2008. While parting with the case, it may not be out of place for this Tribunal to expect that the State Government would take steps to regularise the services of casual labourers, who have completed 10 years of service in terms of the directions given by the Hon'ble Apex Court in Uma Devi's case. In the circumstances, there will be no order as to costs."

These orders were challenged by the respondents before the Hon'ble High Court of Delhi in WPC No.7246/2006 (Govt. of NCT of Delhi v. Anil Kumar & Ors.). During pendency of this case in Hon'ble High Court of Delhi, Shri Jaiveer unfortunately died on 11.08.2013. This WPC was subsequently dismissed vide orders dated 27.10.2014. The observations and orders by the Hon'ble High Court are as under:

"1. The Government of NCT of Delhi (GNCT) is aggrieved by a decision of the Central Administrative Tribunal (CAT) in O.A. 833/2008, dated 30th July 2008. The CAT quashed its decision and held that the GNCTD would regularize the applicants in Group-D posts.

The applicants were working as Groundmen with the Sports Branch of the Directorate of Education (hereafter "DoE") in schools and other institutions of the GNCTD. Pursuant to office order dated 23.03.2001, they were granted temporary status in accordance with W.P.(C) 7246/2009 Page 2 terms and conditions spelt out in the Central Government, Department of Personnel & Training (DoPT) Office Memorandum (OM) No.51016/2/90-EsttCC/ dated 10.09.1993. That order, (dated 28.03.2001), stated that the employees would not be brought to the permanent establishment unless they were selected through regular selection process for Group-D posts. Though conferred with temporary status, their services could be dispensed with by issuing one month's notice in writing; temporary status did not result in any liability on the part of Directorate of Education to provide regular appointment.

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"11. In view of the above conclusions, the petition has to fail. The GNCTD shall examine the records of the case concerning each of the 23 employees mentioned in its order of 19-03-2008 and pass separate W.P.(C) 7246/2009 Page 8 individual orders, in the light of the directions in Uma Devi (supra) and the vacancies which existed as on the date of the CAT's impugned order, granting benefit of regularization to such of them who fall within the parameters in the said para 44 of Uma Devi (supra). The exercise shall be completed within 6 weeks and consequential orders issued individually by the end of that period. Subject to these directions, the writ petition is dismissed."

(Emphasis supplied)

The respondents challenged the above orders before the Hon'ble Apex Court by filing SLP. However, the SLP was dismissed.

With this, the orders by CAT (para 2 supra) attained finality and were implemented for all the other applicants, except for Shri Jaiveer as he had unfortunately expired on 11.08.2013, i.e., before the process of regularization was initiated by the respondents. At the time of his death, he had completed about 20 years of service with the respondents.

The applicant herein made a representation to the respondents in September 2013 for retiral dues and consideration for compassionate ground appointment in her favour. She pleads that in addition to herself, she has to support three children, namely, one daughter who is 13 years of age and two minor sons who are 10 and 06 years of age. The applicant produced an internal correspondence by the respondents dated 29.01.2014 which was copied to the applicant also. This correspondence indicates that her case was under consideration. However, her case was eventually rejected vide orders dated 28.03.2016. This rejection order reads as under:

"Please refer to the representation of Mrs. Kamlesh W/o Late Sh. Jaiveer on the above cited subject vide which she is requesting for allowing pension, gratuity and compassionate appointment or any other monetary help.

As per her representation, late Sh. Jaiveer was temporary employee with your institution. In this regards, as per rules, there is no provision for the dependent member of the temporary employee while dies in service for appointment of compassionate grounds. Moreover, the case regarding pension & gratuity also does not pertains to this office.

In view of the above, the above mentioned representation in original along with all enclosures, is forwarded for your further action at your end."

Since Shri Jaiveer was not regularized before his death, the applicant herein was denied family pension as well as compassionate grounds appointment.

Feeling aggrieved by this rejection, the instant OA has been filed seeking the following reliefs:

"(a) To quash and set aside the impugned order dated 28.03.2016 and declare the action of respondents in not regularizing the services of her husband from due date as illegal and unjustified.

(b) To direct the respondents to release pension and other pensionary benefits to the applicant and consider her claim for appointment on compassionate grounds.

(c) To issue appropriate directions for treating the applicant's husband as regular for all purposes and direct the respondents to release all the consequential benefits to the applicant by treating her husband as regular employee."

The respondents have submitted their detailed counter reply. It has been pleaded that the 20 petitioners, out of 22 in OA No.833/2008 were regularized by them vide orders dated 09.08.2016. However, Shri Jaiveer, husband of the applicant, had died on 11.08.2013. Hence, the respondents were unable to initiate action for his regularization. Therefore, at the time of his death he was still a temporary employee and accordingly benefits like family pension and compassionate grounds appointment could not be extended to the applicant.

It was further pleaded that compassionate appointment is not a vested right and it is only a benevolent consideration to be extended to the bereaved family. In the instant case, this consideration also could not be extended as Shri Jaiveer was not a regular employee.

It was further pleaded that the instant OA is severely time barred.

On a specific query from the Bench as to what are the activities required for regularization in the instant case, the learned counsel mentioned that it needed verification of the service record available in office and conduct of medical examination. It was pleaded that while service record could be examined but medical examination was not possible since Shri Jaiveer had already expired, hence regularization could not be done.

The respondents relied upon the ratio arrived at by Hon'ble High Court of Delhi in WPC No.8490/2016 (Smt. Subhasini Kumari v. Union of India & Ors.) which was decided on 24.05.2018.

12.1 The petitioner therein was the widow of a contractual employee who was working in the Technology Information, Forecasting & Assessment Council (TIFAC) under Ministry of Science & Technology, Government of India. After the death of her husband, Smt. Subhasini Kumari, the widow, represented for compassionate grounds appointment. This was denied on the plea that her late husband was a contractual employee and there was no scheme for compassionate grounds appointment in TIFAC. The matter was agitated before the Hon'ble High Court of Delhi. In this Writ, the Hon'ble High Court noted that Bye-Law No.9 of TIFAC provided as under:

"The Society/Council shall carry out such directions as may be issued to it from time to time by the Central Government for the efficient administration of the Society."

Accordingly, the Hon'ble High Court gave the following directions vide orders dated 24.05.2018:

"Since the stand taken by second respondent is that the Scheme for compassionate appointment (Annexure A-20) is of the Central Government, therefore a mandamus is issued to first respondent to call upon the second respondent to consider the case of petitioner under the aforesaid Scheme (Annexure A-20) as the object of said Scheme is to provide means of livelihood to the legal heirs of an employee who dies. Let compliance be made by the respondents within a period of twelve weeks and its fate be conveyed to petitioner within a period of two weeks thereafter, so that petitioner may avail of the remedies as available in law, if need be."

12.2 In compliance thereof, the matter was considered by the TIFAC and a reasoned and speaking order was passed and advised to the petitioner on 14.08.2018. The relevant extracts of this order are reproduced below:

"3. The Committee met on 3rd August and 6th August 2018 and perused the details of the subject Court case and the Order dated 24.05.2018 passed by the Hon'ble High Court of Delhi in this regard. The Committee also noted that though late Shri Shambhu Kumar was employed in TIFAC on contractual basis and the scheme of compassionate appointment of Government of India is not applicable for the family member of the deceased contractual employees, yet, in view of the Order dated 24.05.2018 of the Hon'ble High Court of Delhi in WP (C) 8490/2016, the case of Smt. Subhasini Kumari (wife of late Shri Shambhu Kumar is to be considered for Compassionate Appointment under the scheme.

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The Committee after deliberations and keeping in view the existing provisions under the scheme of Compassionate Appointment of Government of India, vis-a-vis the availability of the regular vacant post in Group 'C' in TIFAC, expressed its inability to recommend the appointment of Smt. Subhasini Kumari (W/o Late Shri Shambhu Kumar) in TIFAC on any Group 'C' posts on compassionate grounds."

12.3 Feeling aggrieved at rejection, Smt. Subhasini Kumari approached the Hon'ble High Court again in CONT. CAS (C) No.128/2019. This petition was dismissed as withdrawn with liberty to the petitioner to seek remedies under law vide Hon'ble High Court of Delhi order dated 18.02.2019.

12.4 In this context, the respondents pleaded that the ratio arrived at by the Hon'ble High Court in Smt. Subhasini Kumari, that compassionate grounds appointment cannot be considered and enforced for the bereaved family of a contractual employee, has been upheld.

Accordingly in the instant case also the petitioner being the widow of a temporary employee, who was not regularized, this ratio is applicable and the OA needs to be dismissed.

The matter has been heard. Shri M.K. Bhardwaj, learned counsel represented the applicant and Mrs. Sangita Rai, represented the respondents.

The facts of this case are not in doubt. In the instant case, there was a scheme in existence for regularization of casual labourers. This was not implemented by the respondents for existing casual labourers, even though they were already granted temporary status. Instead the other part time workers were regularized. Aggrieved temporary workers (a total 22 in nos.) agitated the matter in the Tribunal in OA No.833/2008 and they were granted relief vide orders dated 30.07.2008.

This order was challenged by the respondents in Hon'ble High Court of Delhi. However, the orders by CAT were upheld and the respondents were directed to examine the case of all petitioners including Shri Jaiveer, based on the records available with the respondents (para-3 supra). It is unfortunate that Shri Jaiveer died on 11.08.2013 while the matter was still sub-judice before the Hon'ble High Court of Delhi. Thereafter, the respondents challenged the orders by Hon'ble High Court by filing SLP before the Hon'ble Apex Court where the SLP was dismissed.

Accordingly the Tribunal's orders dated 30.07.2008 attained finality and the same has been implemented by the respondents for 20 petitioners out of 22.

In this context it is the view of this Tribunal that the required conditions for regularization were already fulfilled in respect of late Shri Jaiveer and were ordered so by the Tribunal on 30.07.2008. On that date, he had already completed a total of 15 years of service (8 years casual and 7 years temporary). He worked for 5 more years before his death.

Denial of regularization to Shri Jaiveer while other co-petitioners were regularized, has led to denial of social benefits to his widow who is the applicant in the instant OA and her dependent minor children. These social benefits would have been available to her, had Shri Jaiveer been regularized before his unfortunate death in terms of existing policy which was not implemented by respondents and was agitated in OA-833/2008. Even so, regularisation could have been done subsequently also when it was decided so by Tribunal on 30.07.2008 in this OA-833/2008.

Since all conditions for regularization were already met as on 30.07.2008 when the orders were passed by the Tribunal and Shri Jaiveer had remained in service of respondents for a further period of 05 years from that date, non-completion of all formalities for regularization, including non-conducting of medical examination, is considered to be a mere technicality and the same cannot be allowed to hinder the path of substantive justice to his widow and her minor children. Fact remains that his service record was available with respondents and he served the respondents for five years after the decision by Tribunal (i.e. total 20 years out of which eight years was casual and 12 years as temporary). This is indicative of his fitness otherwise.

As for the argument of OA being barred by limitation, put-forth by respondents (para-10 supra), the same is rejected on the face of it, as the death took place on 11.08.2013 and her case was under consideration as of 29.01.2014 and it is the eventual rejection letter dated 28.03.2016 which is under challenge and for which also the instant OA was filed in the year 2016 itself. Thus, there has been no delay on the part of applicant after death of her husband. In respect of earlier period also, there was a judgment dated 30.07.2008 by Tribunal for regularisation. Its non-implementation was due to matter being under challenge in higher courts. Non-implementation at that time cannot be to the account of applicant. Therefore, the plea of limitation does not hold.

In view of above, OA is allowed and the order dated 28.03.2016 is quashed. Further, the respondents are directed to treat Shri Jaiveer as deemed regularized with effect from the date his junior(s) out of the 22 petitioners in OA No.833/2008, were regularized with all consequential benefits to be released to the applicant in respect of all retiral dues, if the same have not been released so far. The break-up of payment details under different heads shall also be advised to the applicant.

The applicant's request for compassionate grounds appointment shall also be considered, taking her to be the dependent widow of a regular employee, and a reasoned and speaking order passed and advised to applicant.

This entire exercise shall be completed within a time period of 03 months, from the date of receipt of a certified copy of this order. In case the due payments are not released in this time limit, the same shall carry interest at GPF rate w.e.f. 12.08.2013 till they are actually paid. The applicant has liberty to approach Tribunal if some grievance still subsists in regard to implementation of these orders. No costs.