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Judgment
By filing the instant OA, the applicants have sought the following reliefs:-
"(a) direct respondents their office bearers, agents & officers to appointment them as per scheme for compassionate appointment &/or as per policy of regularization with all consequential service and monetary benefits & interest @ 18% p.a. on all arrears of pay and allowances etc.
(b) to allow this application with costs in favour of applicant and against respondents.
(c) Pass such other & further order(s) as this Hon'ble
Court may deem fit & proper in the facts & circumstances of this case."
Brief facts of the case, as stated in the OA, are that the applicants are working continuously with respondents on the post of Field Worker Malaria Beldar on contract basis on consolidated/fixed emolument initially @ Rs.3633/- and at present @ Rs.8054/- p.m. since 2009 for more than five years now.
2.1 On the strength of aforesaid working periods and Resolution no.406 dated 26.8.1968 prescribing RRs for appointment of dependents of Municipal employees with respect to appointment of sons/daughter of permanent employees dying during tenure of their service, which was subsequently modified and further vide office order dated 21.3.2001, clause 3 of which provides available clear vacancies of Daily Wagers shall be filled first by persons eligible for placement on compassionate ground, the applicants claim that the respondents are duty bound to act and follow the scheme and office orders immediately at least in the year 2009 when applicants were engaged on contract basis and as such the action of the respondents in not providing compassionate appointment to the applicants is discriminatory, malafide and illegal.
2.2 Applicants further contended that vide Resolution No.709 dated 20.11.1978, the MCD has formulated a policy for regularization of daily wagers/muster roll employees. Under the said policy, the services of the persons engaged in a block of two years were being regularized in a year. The said policy was first extended vide Resolution No.936 dated 16.2.1984 and then subsequently on 27.6.1988 and the said policy is still being followed by the Corporation and the services of the daily wagers/muster roll employees who have been working continuously and their engagements are duly approved from the competent authority, are being regularized from time to time.
2.3 Being aggrieved by action of the respondents denying the applicants employment in place of their deceased father(s) who were regular and permanent employee of the respondents, the applicants have filed this OA seeking the reliefs as quoted above.
Pursuant to notice issued to the respondents, they have filed their reply in which they stated that vide Circular dated 16.12.2008, the earlier policy for the welfare measures for the dependents of the deceased regular Municipal Employees circulated vide circular dated 11.10.2007 was amended. According to the said circular 16.12.2008, it was stipulated that one of the dependent members of the deceased regular Municipal employee can apply under this Welfare Measure Scheme for his contractual engagement for Class-IV post on prevailing minimum wages as permissible under the rule for a period of one year, extendable on year to year basis on having satisfactory work and conduct report, maximum for a period of five year. In terms of the aforesaid policy dated 16.12.2008, the applicant nos.13, 15, 14, 16, 17, 18 and 22 were engaged on contract basis vide orders dated 20.7.2009. Applicant nos.11 and 21 were engaged on contract basis vide orders dated 23.10.2009. Applicant no.20 was engaged as such vide order dated 14.2.2011. Likewise, applicant no.19 was engaged vide order dated 24.11.2011. The period of five years in respect of applicant nos.11, 13, 15, 14, 16, 17, 18, 21 and 22 have already been expired in the year 2014.
3.1 They further stated that vide circular dated 11.8.2014, a policy has been circulated for extension of service of class IV employees engaged under Welfare Measures Scheme for the dependents of deceased regular municipal employees. The said circular has been issued in pursuance of Resolution No.95 dated 7.7.2014 passed by North DMC. According to the said circular, the contract period of employees engaged under Welfare Measure Scheme has been extended for a further period of one year, on year to year basis subject to maximum of 5 years on having satisfactory work and conduct report. In view of the said circular, the contract of applicant nos.11, 13, 15, 14, 16, 17, 18, 21 and 22 has been further extended. The applicant nos.11 and 13 to 22 are working on contract basis under the said scheme in North Delhi Municipal Corporation. They further submitted that however there is no policy for regularization of employees engaged in contract basis under the said welfare scheme in North Delhi Municipal Corporation.
3.2 Respondents further stated that the Hon'ble Supreme Court has passed directions regarding regularization of irregularly engaged persons vide its order dated 10.4.2006 in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi and others, AIR 2006 SC 1806. The relevant para of the said judgment contained the directions as reproduced below:-
"44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
3.3 Lastly they contended that the instant OA deserves to be dismissed by this Tribunal.
The applicant has also filed his rejoinder reiterating the averments made in the OA and denying the averments of the counter affidavit filed by the respondents.
Head learned counsel for the parties and have perused the material placed on record.
During the course of hearing, counsel for the applicants besides reiterating the averments made in the OA submitted that despite having been granted appointment on contractual basis as Malaria Belders as per the aforesaid Welfare Scheme, the respondents action of denial of grant of compassionate appointment is discriminatory, illegal, malafide and arbitrary.
Counsel for the respondents also reiterated the stand taken by them in the counter affidavit.
It is not disputed that applicants have been engaged on contractual basis as Malaria Belders pursuant to the said Welfare Scheme being the wards of the deceased regular employees. As such the issue required to be adjudicated in this case is whether the contractual beldars, who are a casual labourer and have been engaged on contract basis, can be said to be a Govt. servant and falls within the definition of Govt. servants in terms of the compassionate appointment scheme. According to this Court, the daily wager cannot be said to be a Govt. servant thus the question of applicability of the compassionate appointment scheme does not arise, as such applicants are not entitled to the benefit of the compassionate appointment scheme.
Further the applicants are seeking grant of compassionate appointment or regularization. So far as the grievance of grant of compassionate appointment is concerned, as per the scheme of Compassionate Appointment, each case has to be decided on the basis of its merit and availability of vacancies in this regard. However, since the applicants are claiming this relief jointly, this Court is not inclined to entertain this claim. Reason is obvious that each applicant has to show that he/she is more deserving candidate and there is availability of vacancies meant for this purpose. In the absence of these requirements, this relief cannot be entertained in this OA.
So far as applicant's grievance of regularization of their services is concerned, admittedly the applicants are working as contractual employees in pursuance of the said Welfare Scheme and it is now no longer res integra that in terms of the Constitution Bench judgment of the Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi (3) and Others, 2006 (4) SCC 1, before a person can seek regularization, four aspects must exist viz first is of there existing sanctioned posts, second of there existing vacancies in sanctioned posts for which there exists authority/entitlement to fill up, thirdly that the persons who are appointed in vacancies against sanctioned posts are duly qualified persons, and fourthly appointment is made of persons who have been called through advertisements widely circulated so that there is open competition among the eligible persons. None of the aforesaid requirements have been fulfilled by the applicants in this case. As such the present OA being devoid of merit is liable to be dismissed.
In the result, the present OA is dismissed. There shall be no order as to costs.