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Judgment
PER: RAJINDER SINGH DOGRA, JUDICIAL MEMBER:
This application has been preferred to seek the following relief:
“8.1.To set aside and quash the impugned order dated 15.12.2023 and to regularise the service of the applicant with retrospective effect providing him all consequential service benefits, including seniority, promotion/upgradation, retrospective regular pay scale by re-fixing his pay, arrear pay etc.
8.2.To direct the respondents to count the service of the applicant from 2003 and 1o regularise his service by taking the provision of various OMs and guidelines as adopted by the Govt. of India, and to grant him all the consequential service benefits (from the date when he had completed 10 years of service) arrear salary, seniority and consequential promotion etc.
8.3.To direct the respondents not to terminate the service of the applicant and to pay his salary regularly.
8.4.Cost of the application.
8.5.Pass any such order/orders as Your Lordships may deem fit and proper.”
That the Applicant has been appointed as Casual Worker by the Respondents in the year 2003 and he has been paid salary regularly. The service of the Applicant has been utilised basically as Computer Operator and he was engaged for designing works. Vide order dated 09.02.2010 (Annexure -4 at Page 20 of the OA) the Head of Tripura Centre of ICAR, wrote a letter to the Director ICAR, Umium for providing Administrative Approval for appointment for the post of Hindi Typist, and such approval was given by the Director ICAR vide his letter dated 14.02.2011. Thereafter, an advertisement dated 05.03.2011 was issued for the post of Hindi Typist amd a selection committee was constituted on 24.06.2011. Applicant was selected for the said post and vide order dated 13.09.2011 he was appointed as Hindi Typist and he joined on 14.09.2011.
Since he had worked under the respondents since 2003, Applicant approached his higher authority for regularisation of his service but same yielded no result in positive. He approached the Hon'ble High Court of Tripura by filing WP (C) No 775/02022 which came to be disposed for want of jurisdiction on 13.09.2022. Thereafter, applicant approached this Tribunal by filing OA No 276/2023 and the said OA was disposed of vide judgment and order dated 12.10.2023 providing liberty to the applicant to approach the concerned authority.
Pursuant to that, applicant preferred representation on 30.10.2023. In response to the representation, respondent authority rejected his claim vide impugned order dated 15.12.2023 (Annexure - 1). He preferred another representation on 30.01.2024 (Annexure -2), but the same remained unanswered. Hence, this O.A.
Respondents have stated that applicant was only appointed as a contractual Hindi Typist and not as a casual worker, he has not attached any documents to establish that he was appointed as a casual worker and is hereby misleading the Court by stating that he has been performing duties like a regular Group C staff.
That pursuant to the advertisement issued for "Contractual Hindi typist", he was engaged as Hindi Typist on contract basis. The memorandum had made it clear that the appointment was purely contractual and co-terminus with an initial period of six months under Rajbhasha and that there will be no liability of the Institute if such scheme/ post was terminated and that the applicant shall have no claim on any post after the termination. The memorandum of the appointment issued to the applicant was clear to the effect that such post being advertised was not a regular post and only contractual in nature and also co-terminus.
Sri S. Sarma, learned counsel for the applicant submits that he has approached this Tribunal praying for setting aside the impugned order dated 15.12.2023, and to regularise his service w.e.f the year 2003, providing all consequential service benefits like regular retrospective pay scale, re-fixing his salary, arrear salary, seniority, and consequential promotion as well as up-gradation etc. with a prayer for continuation of his service. He submits that he has rendered his prime age under the service of the respondents and now he has entered an age where age limit issue would be there for applying for other jobs. He has given his service since 2003 and his case deserves consideration.
Sri Sarma, learned counsel for the applicant submits that the Hon'ble Apex Court in Sripal vs Nagar Nigam Gaziabad (Civil Appeal No 8157/2024) has made it quite clear that Uma Devi, cannot be used as shield to exploit and discard the claim of legitimate casual workers.
He further submits that in Jaggo vs. Union of India, [2024 INSC 1034], the Hon’ble Supreme Court held that long-term temporary or ad-hoc employees who perform essential and perennial duties for over a decade are entitled to regularization
As per the applicant, respondents have not considered the long standing service of the applicant while passing the impugned order. They have not considered the DOPT OM dated 07.10.2020 which talks about regularisation of temporary workers who have put in more than ten years of service clarifying Uma Devi. The instant applicant has put in service since 2003. As such, the impugned order is liable to be set aside and quashed.
Ms. Jupitara Das, learned counsel for the respondents stated that the claim of the applicant for regularisation regarding DOPT O.M Dated 07.10.2020 pertains to regularization of qualified workers appointed against sanctioned post and is not applicable in respect of the applicant because the post offered to the applicant was not a sanctioned post but only a contractual post, temporarily in nature and co-terminus with the scheme.
Learned counsel for the respondents further submits that the representation of the applicant was considered and the respondents vide order dated 15.12.2023 retaliated that the appointment of the applicant was purely contractual with specific reference to the fact that the applicant was appointed as a contractual Hindi typist and that there cannot be any claim on any post with no liability to the Institute post termination. Further the claim made by the applicant that he has been employed since 2003 is completely frivolous in nature as per records his engagement as ICAR RC NEH, Tripura started only on 13.09.2011 as a contractual Hindi typist.
Learned counsel for the respondents further submits that the judgements cited by the applicant does not apply to his case, mere prolong work does not confer right to regularisation, his appointment was purely on contract basis. Even in the judgement of Uma Devi it has been held that appointment comes to an end at the end of the contract and, in this case, the memorandum issued to the applicant serves as a contract.
We have heard the learned counsel for the parties and perused the records and pleadings.
It is an admitted case of the applicant that he has been working under the respondents as casual worker since 2003 and in terms of the advertisement issued by the respondents for the post of Hindi Typist on contractual basis dated 05.03.2011, applicant was appointed on 13.09.2011 as Hindi Typist on contract basis.
The case of the applicant is that, since he has been working as casual labour since 2003 and, thereafter, selected as Hindi Typist pursuant to the advertisement dated 05.03.2011, he should be considered for regularisation against the period he has worked for more than 15 years. The respondents have rejected his prayer for regularisation citing his case does not fall for consideration. Aggrieved, he has approached this Tribunal.
It can be seen that in terms of the advertisement issued by the Respondents ICAR, Tripura Centre, on 05.03.2011 inviting applications for engagement of Contractual Hindi Typist, applicant applied and was appointed on 13.09.2011 with the terms and conditions that, it is purely contractual and co-terminus and there will be no liability with the Institute if termination of the post/scheme and he will have no claim on any post after the termination. Mere working for long period does not confer regularisation. As per the terms and conditions, it was purely contractual which means that if regular appointment is made, he can be terminated. So we cannot direct the respondents to regularise his service.
In regard to prayer 8.3 of the applicant i.e for direction not to terminate his service, it is not in dispute that the applicant had rendered service under the respondents since 2003 as casual labour and subsequently as Hindi Typist on contractual basis since 2011, his service was satisfactory and he had given his prime time. It is a settled position of law by the Hon'ble Apex Court that an ad hoc employee cannot be replaced by another ad hoc employee and can be replaced only by another candidate who is regularly appointed by following a regular procedure prescribed. [State of Haryana & Ors Vs. Piara Singh & Ors. [1992 (4) SCC 118]. Considering his long years of work and in view of the settled law, we direct the respondents not to terminate the service of the applicant and he should be allowed to continue in his service until regular appointment is made.
Before parting we would also like to observe that applicant has given his prime time to the organisation since the last so many years, so we would like to direct the respondents that, in case any policy/scheme is made by the respondents for regularisation of contractual employee, case of the applicant should be considered for the same keeping in view his experience.
With this direction O.A is disposed of. No costs.