Union of India vs M. Jabastian

The first respondent, who was the applicant before the Central Administrative Tribunal, Madras Bench, claimed appointment as MATE which remained unfilled in the office of the third respondent therein. Pursuant to the advertisement issued in December, 2011 for the selection to the post of MATE in various categories, the first respondent made an application.

The case of the first respondent / applicant is that the first respondent was eligible for consideration under paragraph 5-C, which requires that departmental candidates shall be considered for selection who have rendered not less then three years of continuous service in the organization. The first respondent was provisionally selected for the interview. He attended the interview held in November, 2012. In the final list, the first respondent was not found successful and 27 vacancies as notified remained unfilled.

The case of the petitioners herein / respondents before the Tribunal was that the first respondent was not an employee of the defence establishment. He was only engaged as a casual labourer for the purpose of miscellaneous works. The first respondent belongs to OBC category, wherein passing cut-off mark was 45. The first respondent obtained only 40 marks. Thus, he could not be selected.

The learned Tribunal held that the first respondent / applicant was engaged as casual labourer nearly for a period of 10 years and it appeared that there was permanent need to engage the service of the first respondent / applicant. However, during the pendency of the application, he was asked not to attend the work with effect from 30.12.2013. Relying on a decision rendered by a Division Bench of this Court in Union of India (UOI) Vs. Smt. S. Rita Mary and The Central Administrative Tribunal , the Tribunal directed the petitioners herein / respondents before the Tribunal, to appoint the first respondent herein / applicant in the post of MATE in any existing vacancies and further, if no vacancy is available, a supernumerary post shall be created and the applicant shall be appointed in the said post, which may be adjusted in future vacancy. The learned Tribunal clearly observed that the Division Bench of this court, as aforestated, directed to consider the applicants therein for regularization subject to eligibility and qualification including the age relaxation.

However, in the case on hand, after relying on the law on regularization propounded by the Supreme Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, and State of Karnataka and Others Vs. M.L. Kesari and Others, , the Tribunal, without giving an opportunity to the employer to consider the case of the first respondent / applicant on the post of MATE, has directed them to appoint the first respondent herein in the post of MATE. We are of the view that the Tribunal had exceeded its jurisdiction, as it is well settled law that no Court / Tribunal can direct appointment without considering other relevant factors, which are necessary for appointment and the same falls within the domain of the employer''s jurisdiction (See State of U.P and another Vs Krishna Lal Sehgal [ (2005) 12 SCC 193].

The learned counsel appearing for the first respondent fairly submits that the first respondent was working as daily wager and he may be allowed to continue till the case of the first respondent is considered for regularization in accordance with law and on its own merit, to which the learned counsel appearing for the writ petitioner does not have much to contest.

We feel it proper and appropriate in the facts of the case that when the first respondent has been working as daily wager continuously and his services were discontinued only after filing of the present application before the Tribunal for regularization, the first respondent / applicant may be allowed to continue as daily wager and thereafter, the petitioners herein may consider the case of the first respondent for regularization in accordance with their own scheme and law. We dispose of the writ petition accordingly and the impugned order passed by the Tribunal dated 17.02.2014 is set aside. No costs. Consequently connected miscellaneous petition is closed.