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Judgment
Nita Chowdhury, J
Heard learned counsel for the parties.
By filing this OA, the applicant is seeking the following reliefs:-
"(a) To quash/set aside the impugned order dated 31.07.2013 and direct the respondents to reinstate the applicant with the continuity of service as peon and release all consequential benefits of the services.
(b) To direct the respondents to release the arrears of salary as per pay commission directives alongwith calculated interest @ 18% per annum w.e.f. 31.07.2013.
(c) Any other relief which this Hon'ble Tribunal deem fit and proper may also be passed in the facts and circumstances of the case in favour of the applicant."
In this case, the applicant is aggrieved by the order of surrendering of her service as part-time Sweeper with SDM (Election), Distt. North-West with immediate effect vide order dated 31.7.2013, which was later on modified vide order dated 14.8.2013 to the extent that services of the applicant, PT Sweeper may be read as terminated w.e.f. 31-07-2013 in place of surrender of services.
The applicant's counsel contended that applicant was initially appointed as Peon in September 2009 and after six months in February 2010, the applicant has been assigned the work of Sweeper instead of Peon and the salary of the applicant has also been reduced to Rs.1600/- p.m. from Rs.4500/- p.m. He further submitted that applicant has made several representations regarding of her salary and nature of work to various authorities but nothing fruitful has come out as no action has been taken by the authorities in this regard.
4.1 Counsel further submitted that however, on 31.7.2013, the applicant received an order dated 31.7.2013 regarding surrender of her services to SDM (Election) without any reason or rhyme. Thereafter the applicant has received another order dated 14.8.2013 vide which modification has been made in earlier order dated 31.7.2013 to the extent that services of the applicant has been terminated w.e.f. 31.7.2013.
4.2 Counsel for the applicant also submitted that during service tenure the applicant has performed her duties with dedication, devotion, sincerely, diligently and has never given any opportunity to her superiors of any complaint.
4.3 Counsel further submitted that applicant, who had worked with the respondents no.3 since last about four years without any break with dedication and sincerely and had worked for more than 120 & 180 days in a calendar year, is entitled to all the benefits after 120 days of continuous service and till the actual consequential benefits such as fixation of pay, revision of pay in accordance with the recommendations of the Pay Commission made from time to time but the respondents have terminated her services illegally, unlawfully in a mechanical manner abruptly and without considering the facts and circumstances of her case and without any reason. Counsel further submitted that no show cause notice has been served upon the applicant before issuing the impugned orders.
4.4 Counsel for the applicant submitted that applicant has also filed her statutory appeal on 26.8.2013 before the respondent no.2 and when no decision on the same has been taken by the respondents, the applicant sent RTI application dated 24.9.2013 to the respondent no.2 to which the respondents have given reply dated 24.10.2013 whereby called the applicant to appear in person before the concerned authority on 6.11.2013. Thereafter applicant appeared in person before the office of D.C. i.e., respondent no.2 but according to the applicant, the concerned authority orally told her that matter is pending before the competent authority and the same will be decided very shortly but despite expiry of more than 3 months, the respondent no.2 has not decided the same till date.
On the other hand counsel for the respondents by referring to their counter reply submitted that the applicant was engaged by M/s Prince Services, 213, V & PO Kakrola, New Delhi-110078 to whom work order dated 29.01.2008 related to sanitation/cleaning of the 70 VREC's was awarded by the respondents. The applicant was hired by outsourced agency and not appointed by the respondents on contract basis.
5.1 Counsel for the respondents further submitted that applicant claiming herself to be an employee of the respondents organization but she neither filed any documents in support to substantiate her claim nor filed any appointment letter issued by the respondents.
5.2 Counsel also submitted that the services of the Vender M/s Prince Services were discontinued w.e.f. 31.1.2009 vide letter dated 31.1.2009. However, after expiry of the contract with M/s Prince Services, the District Election Officer were directed to make alternative arrangements till such time as a fresh agency is appointed and as such as an alternative arrangement due to exigencies of service, the applicant was allowed to continue in accordance with the order dated 3.9.2009, which clearly stipulates as under:-
"I am directed to convey an expenditure sanction of Rs.12,00,000/- only (Rs.Twelve Lacs only) towards part time engagement of one sanitation staff per VREC for 5 hours a day @ Rs.1400/- per month (1200 X 12X 70) for a period of one year since date of engagement of sanitation staff at the VRECs. The engagement of sanitation staff shall strictly be outsourced through placement agencies after fulfilling all codal formalities. The proposal has already been concurred by Finance Deptt. GNCT of Delhi vide UO No.644/Exp-I dated 26.08.09."
After hearing the arguments of learned counsel for the parties and after perusing the pleadings on record, this Court finds that applicant was initially appointed as part time sweeper by a service provider. In this convoluted circumstances, I think it only appropriate to consider the question regarding the impact of decision of the Constitution Bench of Hon'ble Supreme Court in Secretary, State of Karnataka and Others v. Umadevi and Others (2006) 4 SCC 1, before dealing with the aforesaid rival contentions. When regular vacancies in the posts in governmental departments or public sector undertakings are to be filled up, a regular process of recruitment or appointment has to be resorted to in terms of the constitutional scheme and that cannot be done in a haphazard manner based on patronage and other considerations, so held by the Hon'ble Apex Court in many a cases. It was held in Umadevi case by the Hon'ble Apex Court that persons appointed on contractual basis without following procedures for regular recruitment cannot be regularised into regular service. Though regular appointment as per constitutional scheme for public employment must be the rule, there is nothing in the constitutional scheme which prohibits the Union or the State Government or their instrumentalities from engaging persons temporarily or on daily wage basis, in spite of the constitutional scheme for governmental or public employment without following the required procedures, solely to meet the needs of the situation. The Hon'ble Apex Court further held that consistent with the scheme for public employment unless the appointment is made in terms of the relevant rules and after a proper competition amongst qualified persons, the same would not confirm or confer any right on the appointees.
In this OA, the respondents have been able to show that sanitation/cleaning work of 70 VRECs was awarded to M/s Prince Services, 213, V&PO Kakrola, New Dehi vide work order dated 29.1.2008 and the said services were discontinued from 31.1.2009. The applicant was clearly, therefore, not employed by the respondents for any service at all. Later another order was issued on 3.9.2009 as indicated in para 5.2 above in which the District Election Officer was conveyed the sanction of part-time engagement of one sanitation staff per VREC for 5 hours a day @ Rs.1400/- per month for a period of one year. Again it was clearly written in the said sanction order that the engagement of sanitation staff shall strictly be outsourced through placement agencies after fulfilling all codal formalities. The proposal has already been concurred by Finance Deptt. GNCT of Delhi vide UO No.644/Exp-I dated 26.08.09. Hence, neither was any post created by the respondents for sanitation services nor was the applicant appointed after following the prescribed procedure for recruitment as the said work was to be a outsource work and for only 5 hours per day on a fixed payment of Rs.1400/-per month for a limited period of one year and the proposal as cleared does not provide for a full time post with the respondent. Therefore, the applicant has not been able to show that she was ever recruited by the respondents. Hence, her working in the office of the respondents as a part-time employee would not confer any long term benefits on her. It is well settled law that for disengaging the part-time employee, there is no requirement for issuance of show cause notice. As such having regard to the submissions of the respondents, we do not find any illegality in the action of the respondents.
In the above facts and circumstances of the case and for the foregoing reasons, this Court does not find any merit in this case and the same is accordingly dismissed. There shall be no order as to costs.