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Judgment
O R D E R
Mr. Sudhi Ranjan Mishra, J.M.
The applicant challenging the order dated 29.09.2017 (A/15) whereby respondents has rejected his prayer for antedating his regularization w.e.f. the date of his initial appointment has filed this OA praying for following reliefs:
a)To quash the order dated 29.09.2017 under Annexure A/15;
b)To direct the respondents to extend the similar benefits as extended to others in the matter of regularize their services from the date of their initial appointment for all purposes such as ACP, MACP etc in view of Hon’ble CAT, Bombay Bench dated 02.04.2014 under Annexure A/11;
c)To direct the Respondents to grant him all service and financial benefits consequent upon granting him the past service benefits for all purposes retrospectively;
d)To pass any other order/orders as deem fit and proper.
Heard both sides, perused the records and citations relied by the parties.
The brief facts of the case is that the applicant after his name being sponsored from Employment Exchange was appointed as LDC on temporary basis in the respondent department on 06.10.1980. Thereafter as per conditions stipulated in the recruitment rules dated 15.02.1984 wherein it was stipulated the applicant after successfully passing the special qualifying examination held in July 1985 was regularized w.e.f 13.02.1986. It is submitted that similarly placed persons like the applicant in Directorate of Census Operation, Bombay had filed OA No. 60/1995 before CAT, Bombay Bench and vide order dated 31.12.2001 directed the respondents to consider their case. It is submitted that similarly placed other employees approached Hon’ble High Court of Bombay in WP (C) no. 543/2002 which was disposed of vide order dated 18.12.2012 holding that both the petitioners therein are entitled to be regularized as LDC’s from the date of their initial appointed with consequential benefits for the purpose of fixation of their pension. It is submitted that similar views have been taken by different Benches of this Tribunal and High Courts.
The respondents on the other hand in their counter raised the point of delay and laches of applicant raising the matter after passage of several years. It is further submitted that in terms of Government of India Resolution dated 04.11.1975 recruitment in Group C Non technical post of Govt. of India is to be made through Staff Selection Commission. It is submitted that the same has been clearly stipulated in the order at R/9 at clause (i) that the applicant has to pass the relevant examination conducted by the Staff Selection Commission for his regular appointment in the post and the ad-hoc appointment will not bestow any claim for regular appointment and the adhoc service rendered by him will not count towards seniority and promotion.
The applicant has filed rejoinder and the respondents reply to rejoinder reiterating their stands taken in the OA and counter.
Hon’ble High Court of Bombay while deciding on similar matters in WP No. 543/2002 with WP No. 1652/2003 where the applicants were also initially recruited as LDC through employment exchange and subsequently regularized after qualifying SSC examination, Hon’ble High Court in its order had held:
“… However, unfortunately, it is not mentioned in the said Rules as to how direct recruits are to be appointed. Secondly, there is no reference to an examination being held by SSC for the purpose of regularization of such employees which are appointed through the Employment Exchange. The submission of the learned counsel appearing on behalf of Union of India, therefore, that these employees could be regularized only after passing the examination held by SSC is without any substance and has no legal basis. The very action, therefore, of directing the petitioners to appear for the examination held in 1993 by SSC, therefore, appears to be without any legal basis. As of today, the question of regularization of services of the Petitioners is not in dispute since they have been regularized with effect from 31/12/2001. The only question therefore which remains is regarding the date from which they should be regularized. In our view, since the learned counsel appearing on behalf of Union of India was unable to point out any legal provision or rule which makes it necessary for these employees to pass the examination held by SSC, these employees ought to be regularized from the date of their initial appointment, as has been done in respect of all other employees in the Census Department in all other states. Apex Court also in a similar case has given the similar directions. Both these petitions, therefore, will have to be allowed”.
It is seen from Annexure A/11 & A/12 dated 02.04.2014 that the petitioners in the said writ petition before Hon’ble High Court were regularized w.e.f. their date of initial appointment by the respondents. In similar matters in OA No. 521/2008, this Tribunal vide order dated 21.09.2010 had allowed the prayer of the applicants i.e. Assistant Compiler, therein. The same was confirmed by Hon’ble High Court but the matter was remanded back by Hon’ble Apex Court to Hon’ble High Court for fresh adjudication. Hon’ble High Court of Orissa after giving fresh hearing vide order dated 02.04.2014 had held as follows:
“6.It is submitted that the Ministry of Home Affairs and the Department of Personnel and Training after obtaining opinion of the legal affairs from the Ministry of law and Justice has directed the implementation of the order of the Hon’ble Guwahati High Court which has been affirmed by the Hon’ble Supreme Court. The Ministry of Home Affairs in the Office of the Registrar General of India by its letter dated 04.07.2013 requested to the Controlling Officer, All DCOs to inform the cases of direct recruitees appointed on adhoc basis in all cadres who have not been regularized from initial date of joining.
7.It is fairly submitted by the Asst. Solicitor General that in views of the aforesaid direction of the Ministry of Home Affairs and order dated 05.06.2009 of the Guwahti High Court as affirmed by the Hon’ble Supreme Court, the writ petition has become infructous in the meantime and nothing remains for adjudication.
8.In view of the above, since the writ petition has become infructous, this Court considers it appropriate to give direction to the concerned Offices of the Government of India in the Department of Census to comply with its request issued vide letter dated 04.07.2013 by the Registrar General of India, Ministry of Home Affairs, to provide necessary details of the employees who are yet to be regularized to the Government of India for necessary action and decision at their end.
9.Since, it is further submitted on behalf of the opposite parties that pursuant to such request, the details of the employees who await regularization have already been provided to the Government of India, the concerned department of the Government of India is directed to take immediate steps to regularize the services of the employees as expeditiously as possible keeping in view the judgment dated 05.06.2009 passed by the Hon’ble Guwahati High Court in WP (C) no. 4997 of 2002.
10.With the aforesaid observation and direction, the writ petition stands dismissed as infructous”.
It is seen from Annexure A/10 series that in pursuance to order of Hon’ble High Court of Guwahati which was confirmed by Hon’ble Apex Court the respondents had called for information of cases of direct recruitees appointed on adhoc basis who have not been regularized from initial date of joining. It is seen that in the information provided, name of applicant is found at Sl No. 2 with comments that he can be regularized w.e.f. initial date of appointment. Hon’ble High Court of Orissa in its order (quoted above) had in view of submission of respondents disposed of the said writ petition to regularize the services of the employees as expeditiously as possible.
It is not known what action was taken by the respondents in pursuance to letter at Annexure A/10 series where the name of the applicant finds place. Since no action was taken preferred representation on 16.06.2015, 07.08.2015, 15.12.2015 and 05.07.2016 and then approached this Tribunal in OA No. 769/2016 which was disposed of on 09.11.2016 directing the respondents to consider and dispose of the representation. The respondents in compliance to order of this Tribunal disposed of the representation of the applicant vide order dated 29.09.2017 which is extracted below:
“XXXX The petitioners in their representations have mainly submitted the following; To consider his case for regularization with effect from date of initial appointment i.e. 13.10.1980 with all consequential benefits, on the line of equality and justice. Whereas, the representation of the applicant have been considered by the Competent Authority in consultation with Department of Personnel & Training and observed that:
(i)Constitution Bench of the Hon’ble Supreme Court of India vide para 46 of its order in Uma Devi case had held that in cases where services of workers engaged on daily wages get regularized, such workers cannot claim parity with regular employees with regard to the payment of salary and other allowances for the period prior to their regularization of their service.
(ii)Uma Devi judgment provides for regularizing of services of irregular appointees on fulfillment of the conditions that the employee should have been appointed against a sanctioned post and should have completed 10 years of service till the date of judgment i.e. 10.04.2006.
(iii)The service of the applicant herein had already been regularized after six years of service. It has been stated in the judgment dated 10.4.2006 of the Constitution Bench of the Hon’ble Supreme Court in the case of Uma Devi Vs Union of India that regularization if any already made, but not subjudice, need not be reopened based on this judgment.
(iv)Regularization of the services of the applicant can be considered only with effect from the date of judgment of the Constitution Bench of the Supreme Court in Uma Devi case.
4.However, the representation of the applicants in O ANO. 769/2016 has been considered but since the request of the applicant is in contradiction with the judgment of the Constitution Bench of the Supreme Court of India in the matter of Uma Devi vs Union of India & others the same cannot be acceded to”.
From the above order this Tribunal fails to understand what the judgment of Hon’ble Apex Court in the case of Uma Devi has to do with the prayer of the applicant for antedating his date of regularization. The service of the applicant has already been regularized and his case is not for regularization but for ante dating his date of regularization in consonance with orders of Hon’ble Guwahti Bench confirmed by Hon’ble Apex Court and subsequent decision of the respondents in implementing it and also implementing it in case of some similarly situated employees. The respondents in their own submission before Hon’ble High Court of Orissa in WP (C) No. 3268/2011 had stated that vide letter dated 04.07.2013 they have requested to the Controlling Officer to inform the cases of direct recruitees appointed on adhoc basis in all cadres who have not been regularized from initial date of joining and it was further directed by Hon’ble High Court of Orissa in the said order to take immediate steps to regularize the services of the employees as expeditiously as possible. It is seen from Annexure A/10 which was issued in pursuance to letter dated 04.07.2013 and in compliance to order of Hon’ble High Court of Guwahati confirmed by Hon’ble Apex Court that name of the applicant has been recommended for regularization of his service from date of initial appointment. Since no action was taken by the respondents, the applicant submitted representations. It is also seen from Annexure A/17 that the Office of the Registrar General, India had once again requested all DCO to send recommendations for regularization of Adhoc service which was replied vide order dated 29.01.2019 that information has been sent. No averment to what action has been taken is forthcoming from the side of the respondents. Therefore there is no question of delay on the part of the applicant and accordingly the point of delay and laches raised by the respondents in the counter is not applicable to this case.
The decision cited by learned counsel for the respondents i.e. decision of Hon’ble High Court of Karnataka at Bengaluru in WP No. 52467/2019 is also therefore not applicable to the circumstances of this case since the same was dismissed solely on the ground of limitation.
It is clear from order of Hon’ble High Court of Orissa in WP (C) No. 3268/2011 that all employees should be regularized from date of their initial joining and the respondents having taken action in pursuance to that should have regularized the services of the applicant from the date of his initial joining as done in case of other employees. The order dated 29.09.2017 passed by the respondents is complete non application of mind and passed without even expressing opinion on their stand taken before Hon’ble High Court and subsequent actions taken by them. The action of the respondents in not treating the applicant similar to other employees who were given benefits is in violation of Article 14 of the Constitution and settled law.
In view of the discussion above, the order dated 29.09.2017 (A/15) is quashed since it is illegal and arbitrary. Consequently the respondents are directed to extend similar benefits as granted to other similarly situated employees and regularize the service of the applicant from his initial date of joining and grant him all consequential benefits for the purpose of ACP, MACP and pensionary benefits. The entire exercise shall be carried out within a period of 90 days from date of receipt of copy of this order.
The OA is accordingly allowed. No costs.