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Judgment
O R D E R
Ms. Urmita Datta (Sen), Judicial Member:
This O.A. No. 351/00406/2017 has been filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:-
“A. An order do issue allowing the applicants to move this application jointly as the cause of action and relief sought is same.
B. An order do issue directing the respondent No. 2 to treat the applicants similarly with those identically situated DRM employed in the Secretariat and the Deputy Resident Commissioner’s Office at New Delhi and of the other department.
C. 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.
D. An order do issue directing the respondent No. 05 to issue appointment order to the applicants to the post of Godown Keeper after the approval of the proposal dated 13.07.2017.
E. Cost and incidentals to this application.”
The facts of the case as narrated by the applicant is that the applicant No.01 was engaged by the Directorate of Civil Supplies, A&N Administration as Computer Operator (DRM) from 04/2007 to 06/2009. He was further engaged again as DRM (Unskilled/Skilled) vide Order dated 10.07.2009 issued by the Assistant Commissioner (R & DM) of Deputy Commissioner’s Office (SA) for a period of six months and thereafter engaged in the Directorate of Disaster Management as Computer Assistant on DRM basis from 02/2010 to till date. He is well conversant in computer work and also attending duty round the clock during emergency/crises situation of this UT.
The applicant No. 02 was engaged as DRM initially for a period of 90 days by the Deputy Commissioner, South Andaman for Disaster Management working vide Order No. 610 dated 19.06.2007 and his engagement has been extended from time to time by the Directorate of Disaster Management till date. The applicant No. 02 is also conversant with the day to day official work of the respondent administration.
Both the applicants were registered with the Employment Exchange and have discharged duties pertaining to disaster management while the Island was severely hit by natural calamities such as flood, cyclone.
The Department of Disaster Management after being established during the year September, 2008 had the approval for creation of 22 posts including two posts of Godown Keeper and one post of Computer Assistant/Data Operator.
Earlier employees from other department in diverted capacity carried relief and disaster management work under District Administration. It is submitted that posts of Mazdoor from other departments were also diverted/transferred and as such the appointment of the applicants cannot be said to be not against sanctioned posts.
Since the applicants did not have any role in creation of posts, as such they cannot be deprived of what they are entitled to in law on the ground of non-availability of sanctioned post.
The applicants claim that B.N. Nagaraju & ors. working 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 service challenging the vacancy notice for filling up various Gr. ‘C’ posts and this Tribunal vide Order dated 24.01.2012 restrained the respondents not to proceed with the declaration of result of the said post alone.
During pendency of the aforesaid O.A. the applicants of that O.A. made a representation dated 09.10.2012 and pursuant to such representation, those applicants and another DRM working in Andaman Bhawan at New Delhi working as DRM/Contract basis were appointed as Multi Tasking Staff in pursuance of DOPT’s O.M. dated 11.12.2006 vide Order dated 10.07.2013.
They have cited the case of various employees working under the Directorate of Transport under the Andaman and Nicobar Administration, who despite not possessing the requisite qualifications have been given regular appointment to the post of Mazdoor during the year 2007 and also to the post of Bus Conductors.
The Directorate of Transport vide Order dated 31.07.2015 had granted payment of wages @ 1/30th of the pay at the minimum of pay scale at Rs. 4400 + 1300/- Rs. 5200/- + 1900 + DA from 01.01.2006 onwards to 152 Bus Drivers, 178 Bus Conductors and 70 Highly Skilled Workmen for work of 08 hours a day with effect from their respective date of appointment but the case of the applicants have not been considered since their engagement as DRM was not against sanctioned post.
The applicants further state that Recruitment Rules for the post of Godown Keeper was notified on 03.07.2012 and the applicants claim that both of them are eligible for the post of Godown Keeper and are entitled to regular appointment in view of the past practice in various departments under A&N Administration Secretariat, Transport etc.
The applicants submitted representations dated 08.01.2016 and 12.01.2016 respective to the Lt. Governor, A&N Islands to consider their case for regularization. However, the case of the applicant No. 01 has been rejected on the ground of overage being above 33 years of age though the applicant claims that he is entitled to age relaxation.
The applicant’s case for regular appointment to the post of Godown Keeper as well for the payment of 1/30th of pay + DA at the minimum of pay scale were recommended favourably but the Deputy Secretary (Perl.) on 17.11.2016 returned the file to Principal Secretary (DM) with the observation that the applicants not being appointed as DRM against the sanctioned post and hence not eligible for 1/30th of pay at the minimum of pay scale plus Dearness Allowance and the case for regular appointment was also turned down by Deputy Director (DM).
Being aggrieved, the applicants have filed the instant Original Application.
The respondents have filed their reply wherein they have contended that the applicant No. 01 is working as DRM in the Directorate of Disaster Management have filed the instant Original Application not to initiate any recruitment process in respect of 02 posts of Godown Keeper and one post of Computer Assistant/Date Entry Operator and directing the respondent authorities to pay 1/30th of pay at the minimum of pay scale + Dearness Allowance from the respective date of appointment.
The respondents have specifically contended that the Directorate of Disaster Management was established in the year 2008 and 22 posts were created by the Ministry of Home Affairs, Govt. of India. Prior to establishment of Directorate of DM, the employees from other Department were engaged in diverted capacity for carrying out relief works. The applicants claim for 1/30th of pay at the minimum of pay scale + Dearness Allowance granted to Bus Driver, Bus Conductor and Mazdoors in Transport Department. He has also submitted a number of representations for regular appointment to the post of Godown Keeper. Their case was sent to the Personnel Wing for consideration but not considered since they were not engaged against any sanctioned post, which shows that they were not engaged for the work of regular nature also not granted 1/30 of pay at the minimum of pay scale + Dearness Allowance for the work of 08 hours of day. Moreover, another representation of Shri Koteswar Rao for appointment against the post of Light Vehicle Driver and Shri Laxmi Narayan & Bhaskar Rao against the post of Godown Keeper was sent from the Department to the Personnel Wing for examination in January, 2017, which was however rejected on the ground that though they were engaged as DRM since 2005 but have not completed 10 years of service and they have not been working against any sanctioned posts. Their terms of appointment clearly stipulates that they will not have any claim for regular appointment hence they were not similarly situated to those MTS, who work for about 07 years against duly sanctioned posts.
The respondents have relied upon a judgment delivered by the Hon’ble Supreme Court dated 10.04.2006 in Civil Appeal No. 3595-3612/1999 in the case of Uma Devi & ors. and have reiterated that any public appointment has to be in terms of the Constitutional Scheme. The Union of India was directed to take appropriate steps to regularize the service of incumbents as a one time measure who were irregularly appointed and have worked for 10 years or more in duly sanctioned posts but were not covered under any Order of Court and Tribunals. Since the applicants did not work for 10 years in duly sanctioned posts and their case also are not similar to that of who are regularize as MTS and worked for about 07 years against duly sanctioned post.
They have stated that the case of Shri B. Nagaraju & ors. are distinct since they were engaged in the Secretariat Establishment as Computer Assistant on Daily Rated/Contract basis from 1999 onwards against the redesignated post of Computer Attendant by extending their contract appointment from time to time.
Therefore, since both the applicants are not eligible for grant of 1/30th of pay at the minimum of pay scale + Dearness Allowance and for regular appointment has done/approved in case of DRM employed in the Secretariat.
The respondents has filed Supplementary Reply wherein they have submitted that the department published vacancy notification for filing for 02 posts of Godown Keeper and one post of LVD published by the Directorate of Disaster Management during the year 2017. In pursuance to the said vacancy, the applicant applied for the post of Godown Keeper along with relevant documents to ascertain the eligibility criteria as per RRs. The applicant has been engaged in the Directorate of Disaster Management & Relief and Rehabilitation, Port Blair on Daily Rated Mazdoor basis only and has not been engaged against any vacant post of the Directorate. The Godown Keeper was sanctioned on 01.05.2012 and the Recruitment Rule was framed and post was published for recruitment through open selection. However, the posts were 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.
The respondents also states that the A&N Administration has filed Miscellaneous Application No. 2531/2023 in C.A. No. 5014/2023 and the Hon’ble Supreme Court vide Order dated 09.09.2024 after hearing the parties was pleased to pass the following Order:-
“ As regards the issue of regularization, it is common ground that the Department of Personnel and 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 claim in accordance with law. The Miscellaneous Application filed by the Union of India is accordingly disposed of as not pressed at this stage.”
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 Godown Keeper 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, 22 posts were 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 applicants were not appointed on regular basis at that point of time but were 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.
Further, 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 2007 & 2009 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.