Ram Bihari Pateriya & Ors. vs Union Of India & Ors.

By Hon’ble Mr. Tarun Shridhar, Member (A)

We have joined this Division Bench online through video conferencing.

Shri K.P. Singh, learned counsel for the applicants and Shri Dharmendra Tiwari, holding brief of Shri N.P. Shukla, learned counsel for the respondents are present.

By virtue of the instant OA, the applicants seek following reliefs: -

The brief facts of the case are that the applicants were engaged by the respondents to work as Porter during the ‘Operation Parakram’. Subsequent to culmination of the said operation, the applicants responded to an invitation for appointment of Conservancy Safaiwalas in various units of the Army. The applicants were duly selected, police verification and medical examination done and were awaiting appointment as Conservancy Safaiwala on the analogy of several other identically placed colleagues, who were appointed in various units / formations of the respondents organization. However, at that stage, the applicants were struck by poor misfortune i.e. (i) a complaint was made by a union leader alleging some irregularities in the selection and appointment of Conservancy Safaiwalas and (ii) a general ban was imposed by the Government of India on regular appointment of Conservancy Safaiwalas. On account of this development, the applicants, who had been duly selected and had gone through the process of police verification and medical examination, could not enjoy the benefits of their selection.

Learned counsel for the applicants briefly takes us through the history of the case and refers to the directions passed by this Tribunal in OA No. 729/2003 – Sriram Singh & others Vs. U.O.I & Ors wherein this Tribunal had sympathetically considered the case of the applicants and directed that, on the basis of the record of engagement of the applicants, they should be accorded priority whenever there is a recruitment for the post of Conservancy Safaiwalas. The present applicants having been successful in the selection process deserve to be given regular appointment, the learned counsel argues. He further submits that the ban on appointment and recruitment of the Conservancy Safaiwalas was imposed after the present applicants had gone through the selection process and hence this ban could not apply retrospectively upon the applicants.

Learned counsel for the respondents while reacting to the arguments made by the learned counsel for the applicants draws attention to a document he has placed at page 36 of his counter affidavit and submits that the respondents are bound by the extant policy and directions of the Government of India with respect to the recruitments and appointments. In the instant matter, it has not been possible for the respondents to recruit the applicants even though they may have been deployed temporarily during ‘Operation Parakram’ as the Government of India had imposed complete ban on the recruitments and appointments to Group ‘D’ posts. He submits that if the respondents were to recruit and appoint the present applicants, their action would be contrary to the rules and instructions of the Government of India. Hence, the respondents have no option but to deny such appointment to the applicants. Moreover, he further submits that in any case, the cadre of Conservancy Safaiwalas has been declared as a dying cadre, therefore, being a dying cadre, there is no scope for any appointment against any of the posts of dying cadre as by the very nomenclature, the dying cadre implies that as and when the present incumbents retire, the post stands extinguished.

The present controversy needs to be dealt with a, compassionate and humanitarian angle rather than strict implementation of the word of law. The facts of the matter are not disputed that the applicants were engaged as Porters / Safaiwalas during the course of ‘Operation Parakram’. They may not have been engaged on a regular basis and may have been engaged to attend to menial tasks but the fact is that they were in a way the part of ‘Operation Parakram’. Moreover, this is also not disputed that several identically placed persons were given regular appointment as Conservancy Safaiwalas. Therefore, it would be in the interest of justice, considering that what they are seeking is appointment to a lowest grade in the organization, to dispose off this matter within element of parameters and sentiments of compassion and sympathy rather than a technical interpretation of the rules and the guidelines of the Government. Learned counsel for the applicants draws attention to a comprehensive representation filed by the applicants before the competent authority in this regard and during the course of the arguments, it has emerged that the respondents were not averse to considering the case of the applicants but are prevented from doing so because of the ban imposed upon recruitment / appointment on Group ‘D’ staff.

In the light of the above, the present OA is disposed off with a direction to the competent authority amongst the respondents to consider the claim of the applicants ignoring the fact that there is a ban on recruitment and appointment. And after such a consideration, submit an appropriate recommendation before the competent authority for providing appointment in relaxation of the ban, if any such provision exists in the guidelines. The representation already submitted by the applicants in this regard before the competent authority as also the contents of the present OA shall also be taken into consideration by the competent authority while taking a decision in this matter. The applicants are also afforded a liberty of two weeks to prefer supplementary representations, if they so wish. The aforesaid direction be complied with by way of a well considered decision in the matter within a period of 12 weeks from the date of the order.

With the above direction, the OA stands disposed off.

We would like to observe that we have not examined or commented upon the legal merits of the claim of the applicants but merely exhorted the respondents to consider the entire matter in the light of compassionate and humanitarian considerations.

No order as to costs.