Bombay High Court
Union Of India & Ors vs Mahipal S/O Shalikram Bhaisare on 13 October, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3614/2005
1] Union of India,
through its Secretary,
Ministry of Human Resources Development,
Department of Education, Government of India,
NEW DELHI.
2] Kendriya Vidyalaya Sanghatana
through Commissioner,
16, Institutional Area, Shaheed Bhagat Singh Marg,
NEW DELHI 110 016.
3] Principal,
Kendriya Vidyalaya, Wayusena Nagar, Nagpur. PETITIONERS
.....VERSUS.....
Mahipal s/o Shalikram Bhaisare,
Occ.-Service, Resident of C/o Kendriya Vidyalaya Hostel,
Wayusena Nagar, Nagpur 440007. R
ESPONDENT
Shri R.S. Sundaram, Advocate for the petitioners.
Shri B.N. Mohta, Advocate for the respondent.
Coram : Smt. Vasanti A Naik &
Kum. Indira Jain, JJ.
Dated : 13
October, 2016.
th
ORAL JUDGMENT (Per Smt. Vasanti A Naik, J.)
By this Writ Petition, the petitioners challenge the order of the Central
Administrative Tribunal dated 11-04-2005 allowing the Original Application
filed by the respondent and directing the petitioners to reinstate the
respondent in service without back wages.
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Few facts giving rise to the petition are stated thus :-
The respondent was appointed as an Helper in the hostel of Kendriya
Vidyalaya, Nagpur in July, 1985 on contract basis and as and when his
services were required. The respondent was asked to perform the duties of
Cook in the hostel of the Vidyalaya from 14-07-1986. According to the
respondent, since the respondent was working as a Cook and was also
performing the duties of Gate Keeper, Watchman, Gardner and Peon in the
absence of the regular employees, for more than 240 days, his services were
liable to be regularized. An advertisement was issued by the Vidyalaya in
1999 seeking applications for appointment on the post of Cook. The
respondent challenged the said advertisement in Original Application No.
2200 of 2000 and also sought the regularization of his services. The said
Original Application was disposed of by the Central Administrative Tribunal
on 05-07-2002 as infructuous as the advertisement issued by the petitioners
was cancelled. Since the question of regularization of services of the
respondent was not considered, the respondent filed an Original Application
seeking a review of the order dated 05-07-2002, however, the Original
Application was rejected. The respondent then filed a second Original
Application bearing Original Application No.2024 of 2002 seeking the
regularization of his services, but the said Original Application was also
dismissed. In the meanwhile, the respondent had filed Writ Petition No.1728
of 2003 seeking the regularization of his services and challenging the action
on the part of the petitioners of advertising the post on which the respondent
working. The said Writ Petition was also dismissed as withdrawn by the
order dated 20-06-2003. The respondent again filed Writ Petition No.3360 of
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2003 that was also withdrawn by the respondent after seeking liberty to avail
the alternate remedy. After Writ Petition No.3360 of 2003 was disposed of
the respondent filed the present Original Application seeking the
regularization of his services. The Central Administrative Tribunal, by the
impugned order dated 11-04-2005, partly allowed the Original Application
filed by the respondent and directed the petitioners to reinstate him in service.
When the matter came up for admission in this Court on 29-08-2005,
this Court admitted the Writ Petition and stayed the impugned order of the
Tribunal during the pendency of the Writ Petition. When this Court issued
Rule, the issue in regard to the appointment of the petitioner as a Helper
through the contractor during the pendency of the Writ Petition was kept
open. By a subsequent order dated 01-02-2006 this Court directed that it
would not be possible for the Court to direct the petitioners to employ the
respondent, as prayed by him. In view of the aforesaid, the respondent is not
reinstated by the petitioners in service, till date.
Shri Sundaram, the learned Counsel for the petitioners submitted that
the Tribunal was not justified in allowing the Original Application filed by the
respondent. It is stated that the respondent could not have sought the
regularization of his services by filing a third Original Application when the
two earlier Original Applications filed by him were disposed of without
granting the relief of regularization. It is submitted that in Writ Petition No.
1728 of 2003, this Court had held that it would not be possible for the Court
to entertain the Writ Petition as the Tribunal had not adjudicated on the
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aspect of regularization in the Original Applications filed by him. It is
submitted that the Tribunal ought to have dismissed the Original Application
filed by the respondent on the principles akin to the principles of res judicata.
It is submitted that the Tribunal was not justified in allowing the Original
Application on merits after holding that the respondent was entitled to an
opportunity for showing cause, before his services were terminated on
12-07-2003. It is submitted that the respondent was appointed purely on
contractual basis without issuance of an advertisement and was paid the
remuneration from the hostel funds that comprised of the money collected
from the students residing in the hostel. It is submitted that the Tribunal
committed a serious error in directing the petitioners to reinstate the
respondent, when the respondent did not have any right to continue in the
services, in the circumstances of the case.
Shri Mohta, the learned Counsel for the respondent has supported the
order of the Tribunal. It is submitted that since the respondent was working
on the post of Helper for long, it was necessary for the petitioners to have
absorbed the respondent in the services of the Vidyalaya. It is submitted that
even as a daily wager, the respondent was entitled to a show cause notice
before his services were terminated and the Tribunal has rightly passed the
impugned order as no show cause notice was served on the respondent.
On hearing the learned Counsel for the parties and on a perusal of the
order of the Tribunal, it appears that the Tribunal has committed a serious
error in allowing the application filed by the respondent and directing the
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petitioners to reinstate the respondent in service. Firstly, the issue of
regularization could not have been reopened by the respondent by filing a
third Original Application. Two earlier Original Applications filed by the
respondent were disposed of by the Tribunal without directing the petitioners
to regularize the services of the respondent and without granting any liberty
to the respondent to approach the Tribunal on a third occasion. In the two
earlier Original Applications, the respondent had sought the regularization
and if regularization was not granted, the said prayer was deemed to have
been rejected. It was necessary for the respondent to have challenged the
decisions of the Tribunal in the two Original Applications but the respondent
suffered the same and the said decisions attained finality. It is rightly
submitted on behalf of the petitioners that the third Original Application filed
by the respondent was hit by the principles akin to the principles of
res judicata.
We find that the Tribunal was also not justified in holding that even as
a daily wager, the respondent was entitled to a notice before his services were
terminated. There is no question of granting an opportunity of hearing to an
employee appointed on daily wages. The respondent had never approached
the Labour Court seeking a declaration that he had worked for more than 240
days during each calender year and therefore he was entitled to regularization
of his services. We doubt whether such a case could have been made out by
the respondent, specially when the respondent was appointed as a Helper in
the hostel and was paid the daily wages from the hostel fund. Merely because
bonus was sometimes paid to the respondent by a cheque from Kendriya
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Vidyalaya, the respondent could not have sought the regularization of his
services. In any case since the respondent was appointed temporarily on daily
wages from time to time, as and when his services were required, the Tribunal
committed an error in directing the petitioners to regularize his services.
Hence, for the reasons aforesaid the Writ Petition is allowed. The
impugned order is quashed and set aside. The original application filed by the
respondent is dismissed. Rule is made absolute in the aforesaid terms with no
order as to costs.
JUDGE JUD
GE
Deshmukh
