Meena vs Union Of India And Ors

This Original Application under Section 19 of the Administrative Tribunals Act, 1985, was filed by the applicant on 24.1.2017 seeking the following reliefs:

"(i) That the Hon"ble Tribunal may graciously be pleased to pass an order directing the respondents to consider and to posthumous regularize the services of the husband of the applicant from 11.12.2006 or at least w.e.f. 15.3.2011 i.e. from the date of regularization of similarly situated persons with all the consequential benefits, including granting family pension, DCRG, CGHS benefits and other benefits to the applicant with interest from the date of death of the husband of the applicant.

(ii) Any other relief which the Hon"ble Tribunal deem fit and proper may also be granted to the applicant along with costs of litigation."

Resisting the O.A., the respondents have filed a counter reply.

The applicant has also filed a rejoinder reply refuting the stand taken by the respondents.

I have carefully perused the records and have heard Mr.Yogesh Sharma, learned counsel  appearing for the applicant, and Mr.Rajinder Nischal, learned counsel appearing for the respondents.

Brief  facts  of  the  case,  which  are  not  in  dispute,  are  that respondent no.4 engaged Shri Sanjeev Kumar, husband of the applicant, as a Casual Labourer, with effect from 8.12.1995. Shri Sanjeev Kumar  was granted Temporary Status with effect from 1.8.2000. He was entitled to the benefits in terms of the DoP&T"s Scheme of Grant of Temporary Status and Regularization of Casual Workers, circulated vide O.M. No.51016/2/90 -Estt. (C), dated 10.9.1993, and the decisions taken by the Government of India from time to time in the matter. While working as a Casual Labourer with Temporary Status, he died on 27.3.2016.

While so, the applicant (widow of Shri Sanjeev Kumar) made a representation dated 10.11.2016 (Annexure A/1) requesting respondent no.4 to regularize the services of her husband with effect from the date of regularization of services of one Shri Surender Pal and Shri Anand Ballabh and to grant her family pension, DCRG, etc., and employment to her son on compassionate grounds. In her representation, the applicant pointed out to respondent no.4 that her husband"s name appeared at sl.no.47 whereas the names of Shri Surender Pal and Shri Anand Ballabh appeared at sl.nos.50 and 64 of the list of Casual Labourers/Daily Wagers who were granted Temporary Status with effect from 1.8.2000, vide office order dated 4.8.2000 (Annexure A/5). The said list was mentioned in the office order dated 4.8.2000 (ibid). It was stated by the applicant that the services of Sri Surender Pal and Shri Anand Ballabh were regularized by respondent no. 4 from 23.4.2008 and 15.3.2011 respectively. There being no response to her representation dated 10.11.2016 from respondent no.4, she filed the present O.A. on 24.1.2017 seeking the reliefs as aforesaid.

5.1 In her O.A. it is stated by the applicant that respondent no.4, by office order dated 21.3.2011 (Annexure A/3), regularized the services of four Casual Labourers with effect from 15.3.2011 and 16.3.2011, but failed to regularize the services of her husband. Respondent no.4, by office orders dated 23.2.2012 and 11.2.2013 (Annexure A/4 and A/5), also regularized the services of eight Casual Labourers from different dates who had died by the dates of issuance of the office orders. It is also alleged by the applicant that respondent no.4 has regularized the services of Casual Labourers by adopting a pick and choose policy. Thus, it is submitted by the applicant that respondent no.4 ought to have regularized the services of her husband with retrospective effect and granted her family pension and other retirement benefits accordingly.

In their counter reply, besides contending that the O.A. filed by the applicant as barred by limitation, the respondents have stated, inter alia, that the services of Casual Labourers with Temporary Status were regularized by respondent no.4 strictly on the basis of final seniority list of Casual Labourers with Temporary Status circulated vide office order dated 5.8.2008. There is no pick and choose policy adopted by respondent no.4 while regularizing the services of Casual Labourers with Temporary Status. It has also been asserted by the respondents that the officials named in the office orders dated 23.2.2012 and 11.2.2013 (Annexure A/4 and A/5 to the O.A.) issued by respondent no.4, were all working as Safaiwali/Wala on regular basis. By the said office orders, those officials were confirmed on the posts held by them with effect from different date(s) when they were in service, although they were dead on the dates of issue of the orders. It has also been asserted by the respondents that respondent no.4 regularizes the services of Casual Labourers with Temporary Status as and when vacancies arise in Group "D" posts. The proposal submitted by respondent no.4 for regularization of services of Casual Labourers with Temporary Status is under consideration of the Director General of Health Services. It has also been stated by the respondents that all the dues payable to the applicant on the death of her husband have been paid to her. In view of the above, the respondents submit that the O.A. is devoid of merit and liable to be dismissed.

By filing a rejoinder reply, the applicant has refuted the stand taken by the respondents. Along with her rejoinder reply, she has also filed a copy of the letter dated 19.2.2008 issued by respondent no.4 to respondent no.2. By the said letter dated 19.2.2008, respondent no.4 has submitted the requisite information/documents, and requested respondent no.2 to initiate the process for regularization of Casual Labourers with Temporary Status named in Annexure I to the said letter.

Mr.Yogesh Sharma, learned counsel appearing for the applicant, drew my attention to the list of Casual Labourers with Temporary Status appended to the letter dated 19.2.2008 addressed by respondent no.4 to respondent no.2, as well as the office order dated 21.3.2011 (Annexure A/3) issued by respondent no.4, and submitted that the name of the applicant"s husband appeared at Sl.No.26 and that of Shri Mahesh Ch.Gaur appeared at sl.no.36 of the said list of Casual Labourers with Temporary Status working under respondent no.4. Thus, Shri Mahesh Ch.Gaur was junior to the applicant"s husband. Respondent no.4, by office order dated 21.3.2011 (Annexure A/3), while regularizing the services of Shri Mahesh Ch.Gaur with effect from 15.3.2011, ought to have regularized the services of the applicant"s husband also with effect from 15.3. 2011. Mr.Yogesh Sharma, learned counsel, also invited my attention to the office orders dated 23.2.2012 and 11.2.2013 (Annexure A/4 and Annexure A/5) issued by respondent no.4, and submitted that though the persons named in the said office orders were dead on the dates of issuance of the orders, yet their services were regularized by respondent no.4 with retrospective effect and, therefore, there was no impediment for respondent no.4 to regularize the services of the applicant"s husband with effect from the date when the services of his junior were regularized.

8.1 In support of the case of the applicant, Mr.Yogesh Sharma, learned counsel, relied upon the order dated 25.9.2014 passed by the Hon"ble Supreme Court in S.P.Uniyal & others Vs. Union of India, Civil appeal No.3488 of 2010, and the decisios of the Tribunal in K.Pattammal Vs. Union of India and others, (1994) 26 ATC 290, and in Smt. Nirdosh Kumari Vs. Govt.of NCT of Delhi and others, O.A.No.1934 of 1999, decided on 6.2.2001.

8.1.1 In  S.P.Uniyal  &  others Vs.  Union  of  India (supra),  the Hon"ble Supreme Court has passed the following order:

"In continuation of the order passed by this Court on 21.08.2014, an affidavit dated 16.09.2014 has been filed on behalf of the respondent-Union of India inter alia indicating as under:

"5. It is further submitted that out of 20 petitioners, fifteen (fourteen from Air Mail Sorting Division and one from New Delhi Sorting Division) have been regularized as MTS in accordance with the recruitment rules on the basis of availability of the vacancies. The remaining petitioners would be regularized in future as per the recruitment rules subject to availability of the vacancies as the Department cannot go beyond the provisions of the recruitment rules."

A perusal of the above factual position depicted in the affidavit dated 16.09.2014 reveals, that out of the 20 appellants before this Court, 15 persons have been regularised as Multi Tasking Staff in accordance with the recruitment rules on the basis of availability of vacancies. It is further submitted, that the remaining appellants would be regularised in future, as per the recruitment rules, as and when the vacancies arise.

We have been informed by the learned senior counsel for the respondent today, that in addition to the factual position depicted in the affidavit dated 16.09.2014, two further appellants have been regularised. It is submitted that one of the appellants, namely, appellant No.4 (Ganesh Singh) has since died and two of the appellants remained to be regularised. It is reiterated, that the remaining two appellants will be regularised as soon as substantive vacancies to accommodate them, become available. With the aforesaid statement made by the learned senior counsel for the respondent, we are satisfied that the main controversy stands settled.

Our only concern is with respect to appellant No.4 (Ganesh Singh), who is stated to have died during the pendency of the instant process of litigation. We were informed, that at least 10 of the workers who have now been regularised, had been inducted into the service of the Railways subsequent to the induction of appellant No.4 (Ganesh Singh), into service. It is therefore clear, that appellant No.4 would also have been regularised, had he been alive. Keeping in mind the aforesaid factual position, we direct the respondent, to consider the claim of the family members of appellant No.4, for grant of family pension and/or other retiral benefits, as are due to regular employees.

The instant appeal is disposed of in the aforesaid terms."

8.1.2 In K.Pattammal Vs. Union of India and others (supra), the Madras Bench of the Tribunal has observed that when an application for regularization is pending with the authorities and the employee dies before the issue is finally settled, the authorities are still required to consider the application on merits and pass orders, since posthumous benefits to the family would depend upon the orders thus passed. It is not open to the authorities to take the line of least resistance and close the issue on the ground that the employee is dead. Every order of a lawfully constituted authority should, within the framework of the rules and regulations, articulate social justice.

8.1.3 In Smt. Nirdosh Kumari Vs. Govt.of NCT of Delhi and others (supra), the applicant"s husband was a Casual Beldar. He died in harness on 7.6.1993. He was continuously working from 1985 till 7.6.1993. After the death of her husband, the applicant made a representation to the competent authority for granting her pensionary benefits and appointment on compassionate grounds. The applicant was appointed on compassionate grounds, but the pensionary benefits were not given to her. It was the plea of the applicant before the Tribunal that the respondent-Department prepared a list of daily wagers, wherein the name of the applicant"s husband appeared at sl.no.608, and the respondent-Department regularized the services of daily wagers up to sl.no.828 with effect from 1989. Thus, it was claimed by the applicant that all the similarly situated persons including juniors of the applicant"s husband were regularized with retrospective effect from the year 1989 and were granted retirement benefits. In the affidavit filed by the respondent-Department it was averred that one Shri Baroo, s/o Shri Lothi Ram, who had expired on 9.8.1995, had got the regularization as work-charged Beldar w.e.f. 1.6.1989 and retirement benefits were paid to his legal heirs. After having found that the case of the applicant was similar to that of Shri Baroo, the Tribunal held that the applicant"s late husband was also entitled to posthumous regularization and consequently the applicant was entitled for the benefits. Accordingly, the O.A. filed by the applicant was allowed and appropriate directions were issued by the Tribunal.

On the other hand, it was submitted by Mr.Rajinder Nischal, learned counsel appearing for the respondents, that as per the final seniority list of Casual Labourers with Temporary Status as on 1.6.1988, dated 5.8.2008 (ibid), the applicant"s husband was junior to S/Shri Mahesh Ch.Gaur and Anand Vallabh whose names appeared at sl.nos.11 and 14 respectively, whereas the name of the applicant"s husband appeared at sl.no.25 of the said seniority list. Respondent no.4, by office order dated 21.3.2011 (Annexure A/3), regularized the services of S/Shri Mahesh Ch.Gaur and Anand Vallabh and others strictly on the basis of the seniority list dated 5.8.2008(ibid). The services of none of the juniors of the applicant"s husband have been regularized with effect from the date preceding the date of death of the applicant"s husband. Therefore, the question of posthumous regularization of services of the applicant"s husband does not arise, and the decisions relied upon by Mr.Yogesh Sharma, learned counsel appearing for the applicant, do not come to the aid of the applicant. It was also submitted by Mr.Rajinder Nischal, learned counsel, that the list of Temporary Status Workers appended to the letter dated 19.2.2008 (ibid), which was relied upon by the applicant, was not final, and the Final Seniority List of Casual Labourers with Temporary Status (ibid) was prepared and published by respondent no.4 on 5.8.2008, wherein the name of the applicant"s husband was at sl.no.25, and the names of S/Shri Mahesh Ch.Gaur and Anand Vallabh were at sl.nos.11 and 14. The applicant"s husband did not challenge the said seniority list dated 5.8.2008 at any point of time till the date of his death, i.e., 27.3.2016, either by making any representation to the respondent-Department and/or by approaching any judicial forum within a reasonable period of time. The representation made by the applicant on 10.11.2016 (Annexure A/1) and the O.A. filed by her on 24.1.2017 are clearly hit by the doctrine of delay and laches. The dues as admissible to the applicant on the death of her husband have been paid to her. Therefore, the O.A, being devoid of any merit, is liable to be dismissed.

After considering the materials available on record and giving my thoughtful consideration to the rival contentions, I have found no substance in the contentions of Mr.Yogesh Sharma, learned counsel appearing for the applicant.

On a perusal of the records, it is found that the list of Casual Labourers/Daily Wagers contained in the office order dated 4.8.2000 (Annexure A/5), which has been referred to by the applicant in her representation dated 10.11.2016(Annexure A/1), is not the seniority list of Casual Labourers/Daily Wagers prepared by respondent no.4. By the office order dated 23.2.2012 (Annexure A/4) and office order dated 11.2.2013(Annexure A/5), to which the attention of the Tribunal has been drawn by Mr.Yogesh Sharma, learned counsel appearing for the applicant, regular Group "D" employees named therein have been confirmed on the posts held by them with effect from different dates when they were in service, but were dead by the date(s) of issue of those office orders. The office order dated 21.3.2011 (Annexure A/3), by which the services of S/Shri Anand Ballabh Bhardwaj and Mahesh Chand Gaur were regularized with effect from 15.3.2011, were senior to the applicant"s husband as per the Final Seniority List of Casual Labourers with Temporary Status as on 1.6.2088, circulated on 5.8.2008, wherein the name of Shri Mahesh Chand Gaur appeared at sl.no.11 and the name of Shri Anand Ballabh Bhardwaj appeared at sl.no.14, whereas the name of the applicant"s husband Shri Sanjeev appeared at sl.no.25. The services of S/Shri Anand Ballabh Bhardwaj and Mahesh Chand Gaur were regularized by respondent no.4 solely on the basis of the said Final Seniority List dated 5.8.2008. During his life time, the applicant"s husband did not question either the said Final Seniority list dated 5.8.2008 or the office order dated 21.3.2011 (ibid), by making any representation to the departmental authorities and/or by approaching any judicial forum. At this belated stage, the applicant cannot be allowed to question the said Seniority List dated 5.8.2008. The list of Casual Labourers with Temporary Status (Annexure I to the letter dated 19.2.2008), to which the attention of the Tribunal has been drawn by Mr.Yogesh Sharma, learned counsel appearing for the applicant, was not the seniority list of Casual Labourers with Temporary Status, and at any event, the same stood superseded by the Final Seniority List dated 5.8.2008. The services of Casual Labourers with Temporary Status are regularized by the employer on the basis of the Seniority List as and when vacancies in Group "D" post become available and at the prescribed ratio, and in the absence of vacancy in Group "D" post in regular establishment, the services of none of the Casual Labourers with Temporary Status can be regularized as per the instructions issued by the Government of India. There are about ten Casual Labourers with Temporary Status who are senior to the applicant"s husband, and there are about 10 Casual Labourers with Temporary Status who are junior to the applicant"s husband as per the Seniority List dated 5.8.2008. The applicant has not produced before this Tribunal any material showing regularization of services of any of the juniors of her husband (as per the Seniority List dated 5.8.2008). In the above view of the matter, I have no hesitation in holding that the O.A. is devoid of any merit and liable to be dismissed.

The decisions relied on by Mr.Yogesh Sharma, learned counsel appearing for the applicant, being distinguishable on facts, do not support the claim of the applicant.

Resultantly, the O.A. is dismissed. No costs.