Union Of India vs Sh.Wilson Massey & Ors
2010 Latest Caselaw 1874 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          WP(C) No.2331/2010
%
                        Date of Decision: 09.04.2010

Union of India                                             .... Petitioner
                     Through Mr.D.S.Mahendru, Advocate.

                                Versus

Sh.Wilson Massey & Ors                                  .... Respondents
                 Through      Nemo.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.    Whether reporters of Local papers may be            YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?               NO
3.    Whether the judgment should be reported              NO
      in the Digest?


ANIL KUMAR, J.

*

The petitioner has challenged the order dated 30th July, 2009

passed by the Central Administrative Tribunal, Principal Bench, New

Delhi in O.A No.218/2009 titled as Sh.Wilson Massey & Anr v. Director

General of Works and Ors holding that the action of the petitioner

regularizing prospectively the services of the respondents cannot be

found faulty within law, however, that will not preclude the petitioner

from operating and regulating the erstwhile period for the purpose of

qualifying service under the provisions of CCS (Pension) Rules, 1972.

The respondents were continuously working with the petitioner

without any break since 1988. Respondents contended that the juniors

to them namely Sh.V.S.Rawat and Gurdeep Singh had been regularized.

The respondents, therefore, filed an O.A No.309/2005 which was

allowed by the order dated 4th April, 2006. According to respondents,

the petitioners were directed to reconsider the regularization of the

respondent by passing a detailed order.

No appeal was filed by the petitioner against the said order,

however, the order was not implemented and consequently, the

respondent filed a M.A No.166/2008. In reply to the M.A filed, it was

submitted by the petitioners that they had reconsidered the case of the

respondents and had passed a detailed office order dated 16th June,

2006 holding that the regularization of the respondents could not be

considered as no vacancy existed for accommodating the respondents

and no persons junior to the respondent had been regularized as per

the decisions of the Supreme Court reported in JT 2006(4) SC 420.

Aggrieved by the order dated 16th June, 2006 the respondents

filed O.A No.218/2009 titled Wilson Massey and Anr v. Director General

of Works and sought setting aside of office order dated 16th June, 2006

and directions to the petitioners for grant of regularization to the

respondent.

The Tribunal relying on the decision in Shiela Rani v. Union of

India and Ors decided by the Apex Court in C.A No.5666/2006 holding

that the regularization should not upset the seniority of regular

appointees and must take into prospectively, has held that though the

respondents are entitled for regularization, however, they could be

regularized only prospectively. The Tribunal has also held that the

decision of the petitioners, not to regularize respondent retrospectively

cannot be faulted. The Tribunal, however, relying on G.M.South Central

Railway Nilayam, Secunderabad, A.P and Anr v. Sheik Abdul Khader,

2004(4) ATJ (SC) 23 holding that in the matter of reckoning qualifying

service of casual workers later on regularized, full service from

temporary status till regularization is done, has to be reckoned as

qualifying service for pension. In the order dated 30th July, 2009

impugned before us, it has been held that petitioners will not be

precluded from operating and regulating the erstwhile period for the

purpose of qualifying service under the provisions of CCS (Pension)

Rules, 1972.

The learned counsel for the petitioner has very emphatically

contended that the relief regarding the qualifying service under the

provisions of CCS (Pension) Rules, 1972 was not sought by the

respondent and in the circumstances the said relief could not be

granted to the respondents and consequently the Tribunal has

committed an irregularity.

This cannot be disputed that the dispute before the Tribunal was

whether the respondents are entitled for regularization from their initial

date of appointment or prospectively when the respondents were

regularized. Relying on the decision of Shiela Rani's case where the

Apex Court had held that regularization should not upset the seniority

of regular appointees and must take effect prospectively, the decision

dated 16th June, 2006 has been upheld. Whether this period that is

when the respondents were temporarily employed till they were

regularized was also material and had to be adjudicated by the Tribunal

and in the circumstances relying on G.M.South Central Railway

Nilayam, Secunderabad, A.P (Supra) if it has been held that the

erstwhile period for the purpose of qualifying service under the

provisions of CCS (Pension) Rules, 1972 shall be taken into

consideration, it cannot be held that it was not a dispute before the

Tribunal and should not have been so held by the Tribunal.

The learned counsel for the petitioner has not been able to show

any other precedent that for the purpose of pension for the qualifying

service, the time spent by the respondents is not to be counted nor the

petitioners counsel has been able to show that the ratio laid down in

G.M.South Central Railway Nilayam, Secunderabad, A.P (Supra) is not

applicable in the present facts and circumstances. In the

circumstances, this Court does not find any such irregularity and

illegality in the order of the Tribunal which should require any

interference by this Court. The writ petition in the facts and

circumstances is without any merit and it is, therefore, dismissed.

ANIL KUMAR, J.

APRIL 09, 2010                                 MOOL CHAND GARG, J.
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