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Judgment
O R D E R
Ms. Urmita Datta (Sen), Judicial Member:
This O.A. No. 351/00412/2017 has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:-
“A. An order do issue directing the respondent No. 2 to treat the applicant similarly with those identically situated DRM employed in the Secretariat and the Deputy Resident Commissioner’s office at New Delhi and of the Transport department.
B. An order be passed directing the respondent No. 2 to accord approval to the proposal dated 13.07.2017 submitted for regular appointment as done/approved in the case of DRM employed in the Secretariat and the Deputy Resident Commissioner’s Office at New Delhi.
C. An order do issue directing the respondent No. 07 to issue order appointing the applicant to the post of Light Vehicle driver after the approval of the proposal dated 13.07.2017.
D. Any such order or orders be passed and or direction or directions be given as this Hon’ble Tribunal may deem fit and proper.
F. Cost and incidentals to this application.”
The facts of the case as narrated by the applicant is that the applicant the applicant received a call letter for attending trade test and personal interview in the Office of the Directorate of Disaster Management on 10.06.2010 since he possessed the requisite qualification of Xth Standard pass and valid Light Motor Vehicle Driving Licence obtained from the State Transport Authority, A&N Islands and was registered with the local Employment Exchange. The applicant appeared in the trade test and after being duly qualified was appointed as Daily Rated Mazdoor (Unskilled) for stevedoring work on daily rated basis @ Rs. 156/- per day for a period of six w.e.f. 01.07.2010 vide Order dated 16.05.2010 and his engagement has been extended from time to time till date and in support of such engagement necessary certificate was issued.
The applicant was assigned duties of Light Vehicle Driver from the initial date of joining and thereby gained more practical experience in the field of driving along with knowledge of Vehicles maintenance and repairing works and by attending emergency duties in crises situation arising on account of unexpected natural calamities. The Government of India, Ministry of Home Affairs vide letter 30.03.2012 has conveyed its approval for the creation of 22 posts for the Directorate of Disaster Management including one post of Light Vehicle Driver. However, the establishment of Directorate of Disaster Management did not fill up the posts for which the applicant was deprived of his legitimate rights.
Shri B.N. Nagaraju & ors. worked against 07 posts of peon of the A&N Secretariat Establishment re-designated as ‘Computer Attendant’ filed O.A. No. 24/AN/2011 seeking regularization of their services challenging the vacancy notice for filling up of various Gr. ‘C’ posts and this Tribunal vide Order dated 24.01.2012 has restrained the respondents not to proceed with the declaration of result of the said post alone.
During pendency of the O.A. No. 24/AN/2011, Shri B. Nagaraju made a representation dated 09.10.2012 and the Secretary to the LG desired examination of the case and a report thereon. However, their case was rejected. Again their case was taken up by the Deputy Secretary (Perl.0 on 04.07.2013, proposal was made on 05.07.2013 and was approved by the Lieutenant Government, A&N Islands and pursuant thereto the applicants therein 06 in number working as DRM and 01 in Andaman Bhawan at New Delhi were appointed as Multi Tasking Staff in pursuance of Govt. of India Order dated 10.07.2013.
Similarly, in the Directorate of Transport under the same Administration, a good number of Daily Rated Mazdoors, not possessing the requisite qualifications, have been given regular appointment to the post of Mazdoor in 2007 and to the post of Bus Conductor and the Lieutenant Governor had approved the regularization of the contractual employees of Andaman Adim Janjati Vikas Samiti and as such there should not be any impediment in granting approval to regular appointment to the applicant being identically situated.
The Competent Authority i.e. the Directorate of Transport vide Order dated 31.07.2015 has granted payment of wages @1/30th of the pay at the minimum of pay scale at Rs. 4400/- + 1300/- Rs. 5200 + 1800/- + DA and Rs. 4400 + 1300/- Rs. 5200/- + 1900/- + DA from 01.01.2006 onwards to 152 Bus Drivers, 178 Bus Conductors and 70 Highly Skilled Workmen from their respective date of appointment but in case of the applicants working in the Directorate of Disaster Management, who are working under the same Administration, the said benefit was refused on the ground that the engagement as DRM is not against sanctioned post.
The applicant further states that the Recruitment Rules for the post of Light Vehicle Driver was notified on 03.07.2012 and as per the said Rules, the essential qualification are as under:-
Must have passed Secondary School Examination (10th Std.) from a recognized Board/Institution.
Must possess a valid Light Motor Vehicle driving license. One year Diploma in Computer Application.
Must qualify in Trade Test/Professional Test.
The applicant possess the prescribed education and other qualification from the initial date of appointment and was recruited through a selection process and after having put in such a long service is denied the benefit of regular appointment.
Being aggrieved, the applicant submitted representation dated 05.02.2016 to the Governor, A&N Islands requesting therein to approve his case for regular appointment to the post of Light Vehicle Driver being in possession of prescribed qualification, appointed through a selection process and identically situated as the DRM working in the Secretariat establishment, the Deputy Resident Commissioner’s Office, New Delhi have given regular appointment.
In the meantime, the proposal for payment of 1/30th pay + DA at the minimum of pay scale recommended favourably was returned by the Deputy Secretary (Perl.) on 17.11.2016 to Principal Secretary (DM) with the observation that the applicant’s engagement as DRM is not against the sanctioned post and the case for regular appointment was also turned down by the Deputy Director (DM).
Subsequently, the applicant made another representation seeking regular appointment against the post of Light Vehicle Driver and based on records, the Assistant Director (DM) (Admn.) prepared a comprehensive note recommending the case for regular appointment after making reference to the case of 06 DRMs engaged as Computer Assistant in the Secretariat and 01 DRM namely, Shri Pradeep Kumar Tyagi was engaged in the office of Deputy Resident Commissioner, New Delhi after granting age relaxation against the vacant post of Multi Tasking Staff of the Secretariat establishment. Being aggrieved with the action of the respondent authorities, the applicant has filed the instant Original Application.
The respondents states that the department published vacancy published vacancy notification for filing of 02 posts of Godown Keeper and 01 post of LVD published by the Directorate of Disaster Management during the year 2017. In pursuance to the said vacancy notice, the applicant applied for the post of Godown Keeper along with relevant documents to ascertain the eligibility criteria as per RRs. However, he was engaged in the Directorate of Disaster Management & Relief and Rehabilitation, Port Blair on Daily Rated Mazdoor basis only and was engaged against 01 vacant post of the Directorate.
According to the respondents, the post of Godown Keeper was sanctioned on 01.05.2012 and the Recruitment Rule was framed and post was published for recruitment through open selection.
The respondents states that the post was not filled up due to the reason that all the posts created for Directorate of Disaster Management are abolished and the Ministry Revived the Posts on 28.11.2023 and subsequently thereafter the Department processed the file for filing the vacancy through common combined recruitment.
This matter went up to the Hon’ble Supreme Court in Miscellaneous Application No. 2531/2023 in CA No. 5014/2023 and the Hon’ble Court after hearing the parties was pleased to pass the following Order:-
“As regard the issue of regularization, it is common ground that the Department of Personnel & Training of Union of India was not a party to the earlier proceedings. In this backdrop, all that needs to be observed at this stage is that if there is any substantive grievance in regard to the Scheme for regularization, it would be open to the respondents to pursue their claims in accordance with law. The Miscellaneous Application filed by the Union of India is accordingly disposed of as not pressed at this stage.”
The respondents have also filed written argument wherein they have contended that the applicant is working as DRM in the Directorate of Disaster Management for stevedoring work vide Order dated 16.06.2010 initially for a period of 06 months w.e.f. 01.07.2010. In pursuance of Administration Order No. 1283 dated 09.05.2023 and Office Memorandum No. 289 dated 23.09.2017, the Lieutenant Governor has ordered for grant of 1/30th minimum pay + Dearness Allowance. The Directorate of Disaster Management vide Order dated 09.06.2023 has ordered for grant of financial benefit of enhanced wages @1/30th of the pay at the minimum of Level -1 as DRM Driver @ 1/30th Basic Pay Rs. 19900 + applicable DA of the pay matrix to the applicant.
The applicant was engaged on DRM basis not against any to the sanctioned post by the competent authority in the Directorate of Disaster Management and thereafter the applicant has created sanctioned 22 nos. of temporary posts in the establishment of DDM, Sri Vijaya Puram dated 01.05.2012 only.
We have heard Ld. Counsel for both sides and perused the materials available on record.
We find that the respondents in their Supplementary Reply categorically have submitted that the department published a vacancy notification for filling up of 02 posts of Godown Keeper and 01 post of LVD published by the Directorate of Disaster Management during the year 2017 and in pursuance to the said vacancy, the applicant applied for the post of Light Vehicle Driver along with relevant documents to ascertain the eligibility criteria as per RRs however it is noted that final result has not been disclosed.
It is further submitted by the respondents that by then the applicant was engaged in the Directorate of Disaster Management & Relief & Rehabilitation, Port Blair on Daily Rated Mazdoor basis only and has not been engaged against any vacant post of the Directorate. Thereafter on 01.05.2012, one post sanctioned and recruitment rule was framed and post was published for recruitment through open selection. However, the post was not filled up due to the reason that all the posts created for Directorate of Disaster Management were abolished and the Ministry Revived the posts on 28.11.2023, and subsequently thereafter the Department processed the file for filling the vacancy through common combined recruitment.
We find that the applicant has sought for a direction upon the respondent No. 2 to accord approval to the proposal dated 13.07.2017 submitted for regular appointment. Therefore, we fail to understand why the respondents did not take any steps to fill up the posts on regular basis for which persons were appointed on adhoc basis in diverted capacity including the applicants herein. Even when 22 sanctioned posts were available, the applicant was not appointed on regular basis at that point of time but was allowed to work from 2009 onwards till date. However, according to the respondents those posts were kept unfilled and subsequently abolished and the Ministry revived the posts on 28.11.2023 and thereafter the Department processed the file for filling the vacancy through common combined recruitment. Further, as per the respondents since the posts were not filled up and subsequently abolished and later on revived on 28.11.2023, however it is noted that the respondents did not take any steps to fill up the post on regular basis, for which persons were appointed on adhoc basis on diverted capacity in the Directorate of Disaster Management including the applicants. In this context, it is worthwhile to rely upon a judgment delivered by the Hon’ble Apex Court in the case of Jaggo v. UOI & ors. reported in 2024 INSC 1034 wherein the Hon’ble Apex Court has laid down a dictum regarding regularization of Casual/Temporary employees. Relevant portion of the said amount is quoted hereunder:-
“…….
25.It is a disconcerting reality that temporary employees, particularly in government institutions, often face multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address short-term or seasonal needs, they have increasingly become a mechanism to evade long- term obligations owed to employees. These practices manifest in several ways:
•Misuse of "Temporary" Labels: Employees engaged for work that is essential, recurring, and integral to the functioning of an institution are often labeled as "temporary" or "contractual," even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, and benefits that regular employees are entitled to, despite performing identical tasks.
•Arbitrary Termination: Temporary employees are frequently dismissed without cause or notice, as seen in the present case. This practice undermines the principles of natural justice and subjects workers to a state of constant insecurity, regardless of the quality or duration of their service.
•Lack of Career Progression: Temporary employees often find themselves excluded from opportunities for skill development, promotions, or incremental pay raises. They remain stagnant in their roles, creating a systemic disparity between them and their regular counterparts, despite their contributions being equally significant.
•Using Outsourcing as a Shield: Institutions increasingly resort to outsourcing roles performed by temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment.
•Denial of Basic Rights and Benefits: Temporary employees are often denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack of social security subjects them and their families to undue hardship, especially in cases of illness, retirement, or unforeseen circumstances.
26.While the judgment in Uma Devi (supra) sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny legitimate claims of long-serving employees. This judgment aimed to distinguish between “illegal” and “irregular” appointments. It categorically held that employees in irregular appointments, who were engaged in duly sanctioned posts and had served continuously for more than ten years, should be considered for regularization as a one-time measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to indiscriminately reject the claims of employees, even in cases where their appointments are not illegal, but merely lack adherence to procedural formalities. Government departments often cite the judgment in Uma Devi (supra) to argue that no vested right to regularization exists for temporary employees, overlooking the judgment's explicit acknowledgment of cases where regularization is appropriate. This selective application distorts the judgment's spirit and purpose, effectively weaponizing it against employees who have rendered indispensable services over decades.
27.In light of these considerations, in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organization's functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment practices, government institutions can reduce the burden of unnecessary litigation, promote job security, and uphold the principles of justice and fairness that they are meant to embody. This approach aligns with international standards and sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the country.
28.In view of the above discussion and findings, the appeals are allowed. The impugned orders passed by the High Court and the Tribunal are set aside and the original application is allowed to the following extent:
i.The termination orders dated 27.10.2018 are quashed;
ii.The appellants shall be taken back on duty forthwith and their services regularised forthwith. However, the appellants shall not be entitled to any pecuniary benefits/back wages for the period they have not worked for but would be entitled to continuity of services for the said period and the same would be counted for their post-retiral benefits.
29.There shall be no order as to costs.”
It is noted that on the one hand, the respondents are rejecting the claim of the applicants by referring to the judgment of Uma Devi (supra) and on the other hand the respondents instead of filling up the posts on regular basis, are appointing incumbents on contractual/adhoc/Casual basis even after selecting them through regular recruitment process even though at that point of time 22 sanctioned posts were available to be filled up which is in total contrary to the dictum laid down by the Hon’ble Apex Court in the case of Uma Devi (supra), wherein the Hon’ble Supreme Court has discouraged the back door entry and directed for appointment through regular recruitment process.
It is noted that the applicant are working in the department for quite a long span of time, which has not been disputed by the respondents, which clearly indicates that they have performed their duties for a substantial length of time in work of a perennial nature.
In view of the above, as they performed their duties for quite a long span of time, their cases ought to be considered in light of the judgment delivered in the case of Jaggo (supra).
Accordingly, the respondents are directed to reconsider the case of the applicants for regularization taking into account of the fact that they have been performing perennial nature and are working since 2010 onwards in light of the judgment cited above.
The entire exercise should be completed by the respondents within a period of 04 months from the date of receipt of a copy of this order.
With the above observations and directions, the O.A. stand disposed of. No order as to costs.