Ramesh Chander Singh and Others vs Union Territory, Chandigarh Administration and Others

Rajwant Sandhu, J.—This OA has been filed u/s 19 of the Administrative Tribunals Act, 1985 seeking the following relief: (i) Direction to Respondent be issued to consider case of all the four applicants for regularization of their services as Drivers strictly in terms of Government of Punjab order dated 15.12.2006 (Annexure A-10) and recent order issued on 18.3.2011 (Annexure A-1) and also taking into consideration judgment passed by the Hon''ble Supreme Court of India in Dharam Pals case (Annexure A-7) and judgment passed by this Hon''ble Tribunal (Annexure A-8) and further direct the respondent to declare the applicants as regular Drivers against the available posts on which applicants are working for the last 18/23 years continuously as per their seniority as daily wage drivers and further grant all consequential benefits to which they may be found entitled to under the rules and law.

(ii) The vires of the notified rules dated 7.2.2007 (Annexure A-2) called Engineering Department, Project Public Health Circle, Union Territory, Chandigarh Group D Field Staff, Recruitment Rules, 2007 which have been assailed by the applicants being unconstitutional to the extent 50% of the posts meant for promotion quota from amongst Group D employees of Public Health Circle with five years service be modified by inclusion of the case of applicants working as Daily Wage Drivers, under the promotion quota treating them casual employees of the Public Health Wing having more than 18 years/23 years of service alongwith other Group D staff performing the duties of driver against 50% quota meant for promotion, in the interest of justice.

Brief facts of the case are that the four applicants who have filed the present application jointly, claim to possess valid driving licences of Transport Vehicles, Motor Vehicles and Light Motor Vehicles and have been performing their duties of Daily Wage Drivers under Executive Engineer, Project Public Health Division No. 8, UT Chandigarh for the last 18/23 years continuously. The details of the four applicants are given below:

A copy of the Seniority List of Drivers (Daily Wages) working in Public Health Circle U.T. Chandigarh (as on 1.1.2006) issued by the office of Respondent No. 4 is annexed as Annexure A-3. Although four applicants have been performing their duties in the office of Respondent No. 4 and driving heavy vehicles for the last 18/23 years as detailed above, the cases of the applicants have not been considered for their regularization on the available sanctioned posts of Drivers. Hence this OA.

1-a. Averment has been made in the OA that in spite of the Notification dated 13.1.1992 issued by the Government of India (Annexure A-5), framing rules called Conditions of Service of Union Territory of Chandigarh Employees Rules, 1992 and order No. 25012/1/93-EW.2 dated 13.07.1995 (Annexure A-6), addressed to the Home Secretary, Chandigarh Administration conveying the decision taken by the Government of India in favour of casual employees of UT Chandigarh mentioning therein that they shall also be governed by the provisions as applicable to casual employees in the Government of Punjab, the services of the applicants have not been regularized till date. It is claimed that the case of the applicants is fully covered by the judgment passed by this Tribunal in O.A. No. 821 /CH/1994 titled Nirmal Singh and Others v. Union of India and Others, decided on 15.2.1996 (Annexure A-8) which pertained to the Drivers who were working as such on daily wage basis. Reliance has also been placed on respondent letter dated 23.2.2011 (Annexure A-9) wherein the judgment of the Apex Court dated 29.3.1996 in Dharam Pal v. Chandigarh Administration has been referred and it has been directed that work charged employees with five years service and daily wagers with ten years service are to be regularized by conversion/adjustment in the regular cadre. The applicants have also placed reliance on Government of Punjab, Department of Personnel order dated 15.1.2006 (Annexure A-10) on the subject Regularization of services of Work-charged/Daily wage workers and employees working on 89 days/Ad hoc/Temporary basis-regarding policy thereof and it is averred that these instructions issued by the Punjab Government are ipso-facto applicable to the Chandigarh Administration as per Government of India orders (Annexures A-5 and A-6 respectively).

Averment has further been made in the OA that the applicants moved detailed representation through their Union on 11.4.2011, addressed to Respondent No. 1 (Annexure A-11), on the subject Regularization of Daily Wages and Work charged workers in different Departments in U.T. Chandigarh, inviting reference to Government of India''s orders dated 13.7.1995 as well as Government of Punjab, Personnel Department Scheme on regularization of daily wage workers who have completed ten years service, as issued by the Punjab Government vide letter dated 18.3.2011 which was also attached, but no action has been taken by the respondent till date. The applicants also place reliance on judgment passed by the Hon''ble Punjab and Haryana High Court in case titled Baldev Singh v. State of Punjab, 1993 (3) SCT 240 (Annexure A-14). It is claimed that the ratio of this judgment also covers the case of the applicants as the applicants are continuing as daily wage drivers for the last 18/123 years. The case of the applicants is also claimed to be covered pursuant to the recent order dated 18.3.2011 issued by the Government of Punjab/Personnel Wing, Chandigarh, vide which certain terms and conditions have been laid down for regularization of services of daily wage employees as one time measure. Consequently, in view of the orders passed by the Government of Punjab (Annexure A-1), case of the applicants being covered case as per recent orders dated 18.3.2011, respondents are bound to consider the case of the applicants for their regularization against the available post of Driver without taking into consideration the notified Recruitment Rules issued on 7.2.2007 (Annexure A-2) The applicants have challenged the vires of Notification dated 7.2.2007 promulgating rules called Engineering Department, Project Public Health Circle, Union Territory, Chandigarh Group D Field Staff, Recruitment Rules, 2007 (Annexure A-2) to the extent of inclusion of 50% promotion quota from Group D employees of Public Health with five years experience, which provision is ultra vires to the Constitution of India, as Group D employees working as Peon/Chowkidar/Waterman cannot perform the duties of Driver.

Interim relief was also sought on the plea that the respondent were proposing to promote one Sh. Ajmer Singh, working as Chowkidar in Public Health Division No. 3 as regular Driver. This contention was denied by the respondents at the hearing on 29.7.2011 and hence claim for interim relief was not pressed.

In the counter reply filed on behalf of the respondent, it has been stated that Sh. Ramesh Chander, Applicant No. 1, got a legal notice dated 17.5.2004 (Annexure R-l) served upon the answering Respondent No. 3 and 4 claiming correct seniority and regularization of his services referring to earlier litigation and the OA filed by him. Perusal of the Legal Notice showed that though the matter went to the Hon''ble High Court but benefit of regularization was not granted and the applicants in that litigation (including the applicant) were held entitled to minimum of the pay scale plus dear-ness allowance. Thereafter, the Applicant No. 1 filed O.A. No. 698/CH/2004 tiled as Ramesh Chander Singh Negi v. UT Administration through Advisor, UT Chandigarh and Others, claiming the following relief:

Issuance of directions to quash Annexure P-1 with the directions to the official respondent to correct the seniority list at S. No. 9 over and above private respondent No. 5 and 6 and consequently consider him against the regular posts lying vacant in the department.

Although the applicant claimed relief of regularization, vide order dated 6.7.2005 (Annexure R-2), the O.A. No. 698/CH/2004 was disposed of giving the applicant liberty to file a fresh representation before the authorities concerned alongwith all relevant documents attached with the OA within a period of two weeks from the date of receipt of copy of the order with a further direction that on receipt of fresh representation, the authorities were to pass reasoned and speaking orders within a period of three months. It is stated by the respondents that the Applicant No. 1 neither filed any representation nor did he avail any opportunity of personal hearing granted by the authorities at the relevant point of time. Ultimately, the seniority list of the Daily Wage drivers was finalized vide order dated 27.1.2006 (Annexure R-3) and the applicant was intimated this fact vide order No. 77 dated 4.10.2006 (Annexure R-4) duly received by the applicant on 17.10.2006. It is, therefore, stated by the respondents that it is clear that the claim of the applicant already stands adjudicated upon and rejected by this Tribunal as well as by the Hon''ble Punjab and Haryana High Court and as such he is not entitled to raise this issue again by way of the present OA.

It has further been stated that the post of Driver in question in the present case is governed by Engineering Department, Project Public Health Circle, Union Territory, Chandigarh Group C Field Staff, Recruitment Rules, 2007 (Annexure A-2). As per these Rules, there are six sanctioned posts of drivers out of which, 50% are to be filled by promotion failing which by direct recruitment and 50% by direct recruitment. Vacancy of promotion quota is to be filled in from Group D employees of Public Health Wing with five years regular service in the cadre and who are matriculate with valid heavy driving license, subject to passing of departmental test conducted by the competent authority. Of the six sanctioned posts of drivers, five are manned by regular incumbents and the process for filling up of the sixth post has been initiated in accordance with the Rules. Besides, appointment can be of two types only i.e. either permanent or temporary and there can be no other nature of appointment. Undisputedly, the daily wage engagement is temporary appointment as the same is for a temporary period and can come to an end at any time until and unless extended. Thus, a daily wage employee cannot seek regularization of his/her services merely on the ground that he/she has continued working on casual basis for a considerable time.

Respondents have cited Indian Drugs and Pharmaceuticals Ltd. Vs. Workman, Indian Drugs and Pharmaceuticals Ltd., State of Karnataka and Others Vs. KGSD Canteen Employees Welfare Association and Others, and Secretary, State of Karnataka and Others Vs. Umadevi and Others, in support of the contention that the applicants are not eligible for regularization since they have been working as Drivers on daily wage basis only and there are no posts available for their regularization. Regarding vires of the Rules of 2007, reference has been made to The State of West Bengal Vs. Anwar Ali Sarkar, and Confederation of Ex-Servicemen Associations and Others Vs. Union of India (UOI) and Others, to support their contention that these Rules are not discriminatory and are not violative of Article 14 of the Constitution.

Arguments advanced by the learned counsel for the parties were heard. At the very outset, learned counsel for the applicant stated at the Bar that the Applicant No. 4, Sh. Tarsem Chand, had been given appointment as Truck Driver on regular basis through order dated 8.8.2012. Hence, the present application was pressed only in respect of applicants No. 1-3. Learned counsel for the applicants reiterated the facts and the grounds taken in the OA. He stated that the applicants were getting pay at par with the regular drivers except for HRA which was not admissible to them. The applicants had completed ten years service much earlier than the date when decision in Secretary, State of Karnataka and Others v. Uma Devi and Others (supra) was pronounced and in terms of para 44 of this judgment, the applicants were entitled to the regularization of their services. Moreover, decision in O.A.. 235/CH/2013 was squarely applicable to this matter as in that case also regularization of services of the applicants had been directed as per the decision in 2006.

Learned counsel for the respondents stated that there was no vacancy of driver available as on date and hence, there was no scope for regularization of the services of the applicants. Moreover, the Recruitment Rules for the post of Driver had been notified on 7.2.2007 and the respondents did not meet the criteria for appointment either under the promotion quota or in the direct recruitment quota. The promotion quota was available only to Group D employees while the applicants were daily wage Drivers. They were also overage and could not be considered for direct recruitment as they also did not possess the requisite educational qualifications. Learned counsel also stressed that the Applicant No. 1 had approached the Tribunal as well as the jurisdictional High Court seeking the benefit of regularization, but had not met with success and could not raise the same plea again before the Tribunal by way of the present OA.

We have given our careful consideration to the matter. It is seen that the Government of Punjab issued letter dated 15.12.2006 (Annexure A-10) on the subject of regularization of services of work charge/daily wage workers and employees working on 89 days/ad hoc/temporary basis as a follow up to judgment of the Apex Court in Secretary, State of Karnataka and Others v. Uma Devi and Others (supra). Para 2 of the judgment reads as follows:

While considering the cases for regularization of the services of such irregularly appointed workers/employees as a one time measure, the following guidelines are to be followed in letter and spirit, namely:

(i) the employee should have worked for not less than 10 (ten) years as on 10.4.2006 without the intervention of the orders of the Courts or Tribunals against duly sanctioned posts;

(ii) the employee fulfils the minimum basic qualifications for the post against which he was appointed.

Para 3 reads as under:

Apart from the above, the worker/employee concerned should also fulfil the following requirements; that:

(a) he possessed qualification for the post at the time of original appointment and satisfied all eligibility conditions as per service rules;

It is also seen that endorsement No. 11/8/2009-4 PP 3/397 was issued by the Punjab Government on 18.3.2011 (Annexure A-1), giving directions for the regular appointment of employees working on daily wages/work charge in different departments as a follow-up of Secretary State of Karnataka and Others v. Uma Devi and Others (supra). Reference is made therein to the earlier instructions of 15.12.2006 also. In the endorsement of 18.3.2011, directions have been given as under:

(i) Those daily wages/work charge employees who completed 10 years service in December, 2006, for regularization of their services in the concerned department, post be created and against these posts employees who are covered with the rules, orders and possess the requisite qualifications, be appointed on regular basis.

Since the applicants have been working as daily wagers for the last 18-23 years while at the same time, the respondents have stated that there were only six posts of sanctioned drivers in the office of the respondents, it is obvious that work is available for additional hands although regular posts have not been sanctioned for this purpose. The contention that rules notified in 2007 do not permit the regularization of the applicants as they do not fulfil the conditions for appointment by way of promotion or direct recruitment, amounts to unjust treatment to the employees who have rendered long years of service to the department, but have not been provided any avenue for regularization of their services in spite of the directions in Dharam Pal v. Chandigarh Administration (supra) and Baldev Singh v. State of Punjab (supra) and in para 44 of the judgment in Secretary State of Karnataka and Others v. Uma Devi and Others (supra). Regularization was not effected as per the earlier instructions of 15.12.2006 when no Recruitment and Promotion Rules had been notified for the category of Drivers in the Respondent Department perhaps because regularly sanctioned posts were not available. Now when as per the instructions of 2011, there is requirement to create the posts so that eligible persons can be regularized, the stand of the respondents is that they are not qualified as per the Recruitment Rules of 2007. Here is would be pertinent to refer to Dharam Pal v. Chandigarh Administration (supra) which specifically relates to Chandigarh Administration wherein Scheme approved by the Central Government for regularization of casual/daily wagers finds reference as follows:

Scheme of Regularization of Casual/Daily Wagers

(v) Workers working as Casual labourers in works which have more or less fixed period of completion will be eligible for payment of benefits as admissible to them under rules. However, they will not be considered for regularization automatically. Their requirement has to be reassessed after commissioning the work. Thus, the workers will be liable to be retrenched on completion of works except categories in limited numbers who are required for the operation of maintenance of the completed works. In their cases specific approval of the Home Department should be taken.

(vi) Daily wage employees who have completed 10 years or more service as on 31.8.1995 shall be considered for regularization w.e.f. 31.8.1995 on the availability of posts. Such employees shall be entitled for minimum of the scale w.e.f. the date of their regularization. On regularization, these employees shall be liable for transfer anywhere within the Engineering Department, UT Chandigarh.

(vii) In respect of all such daily wages employees, who have not yet completed ten years service, a special review should be carried out at the level of Head of Department regarding their requirement.

(viii) In the case of those employees whose services are no longer required and have been taken after 6.1.1992 and specific approval of Home Department, Chandigarh Administration does not exist, they may be relieved of their duties at the earliest possible.

And further the Apex Court had directed:

Those who could not be regularized are directed to be regularized in the order of seniority as and when vacancies arise. Work would be continued to be taken from them as long as the work exists.

So far as the issue of lack of educational qualifications of the applicants as per the Recruitment Rules of 2007 is concerned, reference may be made to Bhagwati Prasad Vs. Delhi State Mineral Development Corporation, when the Apex Court while dealing with a situation similar to that of the applicants observed as under:- Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments of petitioners were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications.

Regarding contention of the respondents that Applicant No. 1 Sh. Ramesh Chander Singh is not entitled to raise the matter regarding his regularization since the same has already been considered by the Tribunal as well as the Jurisdictional High Court, it is observed that in O.A. 698/CH/2004, the issue of regularization was left open since direction was given to the respondents only to finalise the Seniority List of the daily wage Drivers after giving an opportunity of hearing to the applicant. The order passed by the Superintending Engineer, Project PH Circle, UT Chandigarh on 4.10.2006, also makes it clear that the seniority list is finalized. No order of the High Court has been provided as referred by the respondents. Hence, Applicant No. 1 is not debarred from pressing his claim for regularization through the present OA.

The above narration of the matter relating to regularization of daily wage Drivers makes it quite clear that the respondents have not adhered to the policy guidelines issued by the Punjab Government regarding regularization of daily wagers and such other staff issued in 2006 or in 2011. The settled case law in this regard as per Dharam Pal v. Chandigarh Administration (supra), Nirmal Singh and Others v. Union of India and Others (supra), Baldev Singh v. State of Punjab (supra); Secretary, State of Karnataka and Others v. Uma Devi and Others (supra), has not been followed in letter and spirit. Keeping in view the long years of service already put in by the applicants, driving the vehicles of the respondent department, and the requirement as per policy guidelines of 18.3.2011 that for regularization, the posts were required to be created, the respondents are hereby directed to create three posts of drivers so that the applicants who are entitled for regularization, can be so regularized. The lack of educational qualifications or age beyond that prescribed for direct recruitment or any other condition as per the Recruitment Rules of 2007 shall not stand in the way of the regularization of the applicants as their entitlement to such regularization accrued much before the notification of these Rules. Necessary action in the matter may be taken within a period of three months of the date of a certified copy of this order being served upon the respondents. The OA is allowed with the above observations. No order as to costs.