Rajesh Kumar Pundir & Ors. vs Union Of India & Ors.

Delivered by Hon’ble Ms. Pratima Gupta, Member (J)

Shri A.K. Pandey, learned counsel for the applicants and Shri T.C. Agarwal, learned counsel for the respondents are present.

As the subject matter in both the connected O.As is one and the same and the relief/s sought by the applicants are similar, merely having different dates would not in any way disturb the ultimate finding to be given by this Tribunal. Therefore, as requested by the counsels for the parties, both the T.As have been heard together and are being decided by a common order. For ready reference the facts of the T.A No. 26 of 2018 are taken.

By way of the instant TA’s, the applicants have prayed for following reliefs: -

Brief facts of the case are that the applicants were engaged as Seasonal Khalasi in Water Resources and Flood Forecasting Division, Deharadun under Central Water Commission (in short ‘CWC’). Applicants in TA no.25 have the details as follows:-

Applicant in TA 26/2018 was appointed in March 1985 and worked till October 2004.

The Respondents (CWC) introduced a scheme on 20.06.1997 namely “Grant of Temporary Status and Regularization of Seasonal Khalasis in the work Charge Establishment of Central Water Commission 1997” (referred as ‘Scheme’ hereinafter) (Annexure No. 6 at pg 106 of TA) for grant of temporary status to those ‘Seasonal Khalasis’ and regularization thereafter, who are presently engaged in the respondents department and have completed 120 days in any previous year and are in continuous engagement of the department. The present applicants were working in the respondent department since 1985. However, the benefit of said scheme was not extended to them on the ground that the applicants were not in continuing engagement as on 01.06.1997 as ‘Seasonal Khalasi’. On 04.10.2004, the Executive Engineer passed an order expelling 16 Seasonal Khalasis including the applicants on the ground that their engagement has mistakenly been ordered after the cut off date (Annexure no. 8 pg 112 of TA). The order dated 04.10.2004 was challenged by the applicants before the Hon’ble High Court of Uttrakhand at Nainital by way of Writ Petition no.685/2005. The said Writ Petition was disposed by the Hon’ble High Court vide order dated 29.11.2012 with a direction to the respondents to decide the representation of the petitioners ignoring the stand taken in the counter affidavit and further to consider the same after giving personal hearing to them (Annexure No. 9 page 114 of TA). The operative Para of the order dated 29.11.2012 is reproduced below: -

In compliance of the aforesaid order of Hon’ble High Court, the respondents afforded personal hearing to the applicants on 20.02.2013. The applicants preferred the representation afresh along with an undertaking that they will not make any claim for the intervening period requesting therein to provide a job. The respondents CWC (HQ) considered the case of the applicants, ignoring the fact that there was a complete ban on appointment of fresh seasonal khalasis under the said scheme, and they were engaged after 1997 due to oversight/late receipt of information by the appointing authorities. The CWC (HQ) proposed as under, that these applicants: -

Learned counsel for the applicants submitted that vide the proposal of CWC (HQ), it has been decided that instead of promoting them by treating in continuous service, they may be considered for direct recruitment so that their services need not be conjoined with their earlier engagement as Seasonal Khalasi, and the Government may not suffer any pecuniary loss. But since the 12 applicants may not qualify under the age limit criteria for direct recruitment, therefore, it was decided that the matter may be referred for obtaining the opinion of DoPT before referring the same to the department of Legal Affairs. The matter was referred to the DoPT and thereafter MoWR returned the case with a note that DoPT has advised that they do not consider relaxation in age limit and qualification prescribed for direct recruitment. The matter was again referred by the CWC to the MoWR pointing out that the DoPT has not opined on the option ‘c’ or ‘b’ viz the proposal that affected Seasonal Khalasis may be promoted as SWA ignoring the discontinuance of their service as Seasonal Khalasi during 11.10.2004 till engagement considering the post of SWA as promotion post so far as only for these affected Seasonal Khalasis. The MoWR has again returned the file with a noting that since DoPT is the Nodal Ministry in service matters, therefore, the view/opinion of the Ministry cannot be different from the opinion/advice of the DoPT. The representation of the applicants were rejected by the CWC vide impugned order 03.10.2013. Hence this OA.

The Learned counsel for the applicants has argued by way of written submissions that it was never the case of the applicants that they may be considered as direct recruits by relaxation of age criteria. When the department has considered the case of the applicants, they have made two proposals (I) the petitioners may be considered as direct recruits on the post of SWA by relaxing the RR for qualification and age criteria; or (ii) the petitioners may be considered for being absorbed against promotional seats of SWA by treating them in continuous service as Seasonal Khalasis. The respondents have decided to proceed with the first option as it was a way out traced so as to eschew the inclusion of previous services rendered by the applicants and to avoid the pecuniary losses, for which the approval of DoPT was sought. The DoPT has declined to relax the RR for qualification and age criteria but has never opined upon the alternate proposal and there exists absolutely no declination report upon the proposal of regularization. Even the department admits in the note-sheet itself that no decision has ever been taken by the department regarding the alternate proposal for considering the applicants for promotion against the vacant posts of SWA ignoring their discontinuation. The claim of the applicants cannot be denied by taking aid of the factum of discontinuation. Since it was the respondents themselves who proposed to consider the 12 petitioners (out of which now only 9 applicants are remaining) against the vacant promotional posts of SWA by treating them in continuous service as Seasonal Khalasis and ignoring their discontinuation, therefore, the applicants are entitled for the aforesaid reliefs. The applicants have based their claim on the relaxation clause vested with the respondents.

Shri T.C. Agrawal, learned counsel for the respondents, rebutting the arguments of the learned counsel for the applicants, submitted that the circular dated 22.06.1988 was revived in 1997. After reviewing the position of such seasonal recruits in various Divisions of the Organization, the Central Water Commission has conveyed a scheme which came into force w.e.f. 01.06.1997. The Scheme says that the “Temporary status will be conferred on all those Seasonal Khalasis engaged on work charged establishment of the CWC on the date of commencement of the scheme or any time during the preceding year and have rendered a minimum of 120 days of continuous service preceding such date”. There was a complete ban on recruitment of new seasonal Khalasis after 01.06.1997. Based on the said scheme, 46 seasonal recruits of the previous year were eligible to be recruited as Seasonal Khalasis. The remaining 16 persons of the previous flood season, who were initially recruited in the year 1998 or 1999, were not considered eligible as per the said policy and, therefore, they were not given any offer. The applicants of this TA had earlier filed writ petition no. 658/2005 and in compliance of the direction of the Hon’ble High Court dated 29.11.2012, the SE, HOC, CWC had called upon all the writ petitioners for personal hearing. Thereafter, they submitted their individual representation requesting for regularization of their service against the available vacant posts in the department. Their cases were considered and examined in the light of documents pertaining to their age and qualification etc. and it was found that they did not meet the requirement of age limit and qualification in terms of provisions contained in the Recruitment Rules for appointment to entry level of Group ‘C’ post i.e. Skilled Work Assistant (SWA) in work charged establishment of the department. The provisions of Recruitment Rules for appointment to entry level of Group ‘C’ post i.e. Skilled Work Assistant (SWA) regarding age and qualification are as under: -

We have heard Shri A.K. Pandey, learned counsel for the applicants and Shri T.C. Agrawal, learned counsel for the respondents and perused the records.

It is seen that the applicants have sought extension of benefit of the Scheme of 1997. Though they are aggrieved by the provisions of the said Scheme, they have chosen not to challenge the same. It cannot be denied that the respondents have processed the claim to applicants to their best of intentions, and accordingly, sought exemption from the DoPT; unfortunately the same was not acceded to by the DoPT. It can be concluded that the said process was recommendatory in nature and since the said recommendation did not find merit with the DoPT the Respondents could not take it forward. However, it is true that the said recommendation has given the right of legitimate expectation to the applicants. But then DoPT being the nodal ministry, their advice cannot be ignored. It is also seen that the applicants have though worked intermittently for a period of 11 years, yet the actual period eliminating the period for which they have been disengaged is less than four years. It is also not in dispute that in spite of ban the applicants were allowed to work after 1997. The applicants have been engaged only for seasonal work in the relevant years. It is also seen that in case the applicants have less than 10 to 4 years of service left on account of their age. It is also seen that they have been out of employment for last 17 years. At this stage, we feel that we are not able to grant any relief so prayed by the applicants. We have our sympathy with the applicants, though the same cannot be a substitute of the relief.

The TA’s are dismissed.