Ram Kewal vs Union Of India And Ors

Through the medium of this M.A. filed under Section 24 of Administrative  Tribunals  Act,  1985,  the  applicant  has  prayed  for  the following reliefs:-

"a. direct the respondents to consider the applicant in regular vacancies lying unfilled in Circle Officer and regularise him pursuant to the order of the Hon'ble Supreme Court dated 7.5.2013;

The factual matrix of the case, in brief, is as under:-

2.1 The applicant was engaged as a casual labour by the Department of Telecommunication (DoT), Muzaffarnagar in January 1987 and he worked there till May 1988. On 15.07.1991, he was sent on deputation to Telecommunication Consultants India Limited (TCIL), a Government of India enterprise - respondent No.6 and worked under TCIL till 15.10.1999 and had completed 240 days of working in each year. Thereafter, he was repatriated by TCIL to respondent No.3. He has been seeking regularization and also grant of temporary status (TS) in accordance with DOT letter dated 14.01.1988. As his request was not considered, the applicant filed O.A. No.1470/2000. The said O.A. was disposed of by this Tribunal vide order dated 18.10.2001 with the following directions:-

"(i) the respondents are directed to re-engage the applicant on work and consider him for grant of temporary status in accordance with the Scheme in force;

(ii) the respondents shall also consider their cases for grant of regularisation and other benefits at par with the casual mazdoors serving in the DOT, in the light of the circular dated 14.1.88; and

(iii) these directions shall be complied with by the respondents within a period of three months from the date of receipt of a copy of this order. No costs."

2.2 In the meanwhile, Bharat Sanchar Nigam Limited (BSNL), a corporate entity, came to be carved out of DOT in the year 2000. Thus the applicant had become an engagee of the BSNL.

2.3 The order of the Tribunal dated 18.10.2001 was challenged by the BSNL before the Hon'ble Delhi High Court in W.P. (C) No.8071/2002, which  was  allowed  vide  order  dated  28.04.2011  and  the  order  of  the Tribunal was quashed and set aside, stating that respondent No.1 therein (applicant in this O.A.) was not entitled to reliefs that were granted by the Tribunal. However, the Hon'ble Delhi High Court made a very significant observation, which is reproduced below:-

"8. However, during the course of hearing, it is pointed out that the respondent No.1 has been working with the petitioner since 2001. Learned counsel for the petitioner states that they have no intention to terminate services of the respondent No.1. The said statement is taken on record. It is also clarified that the respondent No.1 must be paid at least minimum wages as stipulated and mandated by law. Learned counsel for the petitioner has further stated that in case there is a regular vacancy, the case of the respondent No.1 will be considered and, if required, age relaxation will be given and his experience will be taken into consideration."

2.4 The applicant, thereafter, approached Hon'ble Supreme Court in SLP (C) No.26636/2011 against the order of the Hon'ble Delhi High Court, which was disposed of vide order dated 07.05.2013 in the following manner:-

"Having heard the learned counsel, in our view, the impugned order passed by the High Court requires only a little clarification.

Accordingly, we clarify that the service of the petitioner from 2001 will be considered for his regularization as and when a regular vacancy arises, by giving age relaxation, if necessary. The petitioner will continue to be engaged in BSNL. With this clarification, this special leave petition is disposed of."

2.5 The respondent-BSNL, in compliance of the ibid order of Apex Court dated 07.05.2013, vide its Annexure A-7 letter dated 30.05.2014, replied to the applicant as under:-

"Sub:- Implementation of the order passed by Hon'ble Supreme Court on 07.05.2013.

Refer to your letter dated 27.08.2013 it is clarified that the post of Regular Mazdoors were sanctioned on the basis of work Load/Assets of BSNL. Now the work Load/Assets of BSNL are decreasing so the Vacancies of Regular Mazdoors are also decreasing. In these circumstances, to say that 53 Regular Mazdoors post are lying unfilled is not true.

At present no recruitment is being done in the cadre of Regular Mazdoors, except a few recruitment to the eligible dependents of deceased employees and no vacancy was advertised for filling up of Vacancies of Regular Mazdoors."

2.6 As the direction contained in the order dated 07.05.2013 of Hon'ble Apex Court was not complied with, the applicant filed I.A. Nos.3/2014 & 4/2014 in SLP (C) No.26636/2011. These I.A.s were disposed of by the Apex Court vide its order dated 10.10.2014, which reads as under:-

"It has been submitted by learned counsel appearing for the BSNL that no person junior to the petitioner has been regularised in service and except on compassionate grounds, no regular appointment has been made after the order of this Court dated 7th May, 2013 has been passed.

It has been assured by the BSNL to this Court that no person junior to the petitioner shall be regularised in service till the petitioner's case is considered for regularisation."

2.7 The applicant thereafter filed another I.A. No.5/2016 in SLP (C) No.26636/2011 before the Hon'ble Supreme Court, which was disposed of vide order dated 16.01.2017, in the following manner:-

"This interlocutory application has been filed in a decided case. There is dispute about the claim raised in the petition. Such dispute has to be raised at appropriate forum. Accordingly, interlocutory application is disposed of without prejudice to any other remedy in accordance with law."

Availing the liberty granted by the Hon'ble Supreme Court vide order dated 16.01.2017, the applicant has filed the present M.A. seeking the relief as indicated in paragraph (1) above.

Pursuant to the notices issued, the respondent No.1 filed its reply and a common reply was filed on behalf of respondent Nos. 2 to 4. There is no representation on behalf of respondent Nos. 5 & 6.

The case was taken up for hearing the arguments of learned counsel for the parties on 27.03.2018. Arguments of Mrs. Rani Chhabra, learned counsel for applicant, Mr. Subhash Gosain, learned counsel for respondent No.1 and Mr. Abhay Gupta, learned counsel for respondent Nos. 4 to 6 were heard.

Mrs. Rani Chhabra, learned counsel for applicant submitted that despite the directions of Hon'ble Apex Court, the respondents are not taking any action to regularize the services of the applicant. She, however, admitted that the applicant has been granted TS.

Mrs. Chhabra drew my attention to an RTI reply furnished by the respondent - BSNL (Annexure A-4), which indicates that there are 118 posts of Regular Mazdoor (RM) in Uttrakhand Circle as on 01.07.2013, out of which only 65 posts have been filled up. She further submitted that in response to yet another RTI query of the applicant, the BSNL, vide its Annexure A-6 letter dated 06.09.2013, has informed that there are 10, 3 and 8 vacant posts of RMs at Dehradun, Rishikesh and Haldwani respectively under the Telecom Project, Dehradun. She thus contended that despite a large number of vacancies of RMs available, the respondents are not regularizing the services of the applicant and thus Court orders are not being implemented and honoured by the respondents.

Per contra, learned counsel for respondent Nos. 2 to 4 drew my attention to Annexure A-7 letter dated 30.05.2014 of BSNL to the applicant wherein it has been stated that the workload/assets of BSNL are decreasing and so also the requirements of RMs. Hence, it is not correct to say that 53 posts of RMs are lying vacant. It is further stated that in the said letter that no recruitment is being done in the cadre of RMs, except a few recruitments of eligible dependents of the deceased employees and that no vacancies have been advertised for filling up the vacancies of RMs.

Mr. Gupta, learned counsel for respondent Nos. 2 & 4 further drew my attention to paragraph 12 of SLP (C) No.26636/2011, which reads as under:-

"12. That inspite of the orders passed by the Hon'ble High Court as well as the Hon'ble Supreme Court no action for regularizing the petitioner has been taken so far, inspite of the fact that Dehradun Circle has sanctioned posts of Regular Mazdoor out of which 65 have been filled up and 53 regular sanctioned vacancies have been lying unfilled. No action so far has been taken and the petitioner is still allowed to continue as casual labourer."

He thus argued that the factum of existence of vacancies had been brought to the notice of Hon'ble Apex Court by the applicant in I.A. Nos.3/2014 & 4/2014 in SLP (C) No.26636/2011, but despite that, the Hon'ble Apex Court declined to order regularization of services of the applicant taking into consideration the state of affairs of BSNL.

The learned counsel also raised a legal point. He stated that this M.A. has been filed under Section 24 of the Administrative Tribunals Act, 1985, which deals with conditions for the Tribunal as to making of interim orders. He said that the prayer made in this M.A. is for execution of the order of the Hon'ble Apex Court dated 07.05.2013 and hence this execution Application ought to have been filed by the applicant under Section 27 of the Administrative Tribunals Act, 1985.

Mr. Subhash Gosain, learned counsel for respondent No.1 submitted that his client has no role to play in the resolution of the controversy.

I have considered the arguments put-forth by the parties and have perused the pleadings and documents on record.

The Hon'ble Apex Court in its order dated 07.05.2013 in SLP (C) No.26636/2011 has only directed that the services of the applicant from 2001 may be considered for regularization as and when regular vacancy arises by giving age relaxation, if necessary, and that he will continue to be engaged in BSNL.

From the averments made by respondent Nos. 2 to 4 and in their reply to the applicant vide their letter dated 30.05.2014 (Annexure A-7), the position of BSNL has been clearly spelt out. Even though there are some vacancies in the cadre of RMs in Uttrakhand circle of BSNL but BSNL is not able to fill up those vacancies on account of their decreasing assets and manpower requirements. The only exception made by the BSNL is in respect of some employees, who died in harness and their wards have been granted compassionate appointments against the posts of RM.

From the averments of respondent Nos. 2 to 4 in their reply, I am quite convinced that the BSNL is not undertaking further recruitments of RMs and hence the question of regularization of the services of the applicant against a post of RM simply does not arise. In view of it, I hold that this M.A. is misdirected and does not call for any specific direction in regard to the prayer made therein.

Accordingly, this M.A. is dismissed being found without any basis. No costs.