Union Of India vs Ajay Singh
2013 Latest Caselaw 1750 Del

$~7, 8 & 9
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                        Date of Decision: April 18, 2013
+                              W.P.(C) 2807/2012
       UNION OF INDIA                               ..... Petitioner
           Represented by: Mr.Jagdeep Dhankar, Senior Advocate
           instructed by Mr.S.Mathur, Mr.G.Mathur, Advocates.

                               versus
       AJAY SINGH                                   ..... Respondent
           Represented by: Ms.Jyoti Singh, Senior Advocate
           instructed by Mr.Amandeep Joshi and Ms.Tinu Bajwa,
           Advocates.

AND
                               W.P.(C) 2808/2012
       UNION OF INDIA REPRESENTED
       BY: THE SECRETARY. ICAR                       ..... Petitioner
            Represented by: Mr.Jagdeep Dhankar, Senior Advocate
            instructed by Mr.S.Mathur, Mr.G.Mathur, Advocates.

                               versus

       RAMA KANT SHUKLA                            ..... Respondent
          Represented by: Ms. Jyoti Singh, Senior Advocate
          instructed by Mr.Amandeep Joshi and Ms.Tinu Bajwa,
          Advocates.

                               W.P.(C) 2810/2012
       UNION OF INDIA                               ..... Petitioner
           Represented by: Mr.Jagdeep Dhankar, Senior Advocate
           instructed by Mr.S.Mathur, Mr.G.Mathur, Advocates.
                        versus
       MOHIT SHARMA                                 ..... Respondent
           Represented by: Ms. Jyoti Singh, Senior Advocate
           instructed by Mr.Amandeep Joshi and Ms.Tinu Bajwa,
           Advocates.
WP(C) 2807, 2808 & 2810/2012                                Page 1 of 7
        CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE V. KAMESWAR RAO

V. KAMESWAR RAO, J.

1. Since above-captioned writ petitions involve identical issues, arising from a common order passed by the Central Administrative Tribunal, Principal Bench, New Delhi which is dated 29.11.2011 disposing of Review Applications No.200/2011, No.199/2011 and No.54/2011 and an order dated 26.07.2010 disposing of OA No.2190/2000, No.2191/2000 & No.2278/2000, the same are being disposed of a common decision.

2. The Original Applications noted in para 1 above were filed by the respondents herein, challenging their disengagement as daily wage waterman and engagement of 17 fresh daily wage appointees in the next year, on the ground that the appointments were back door entry. The reliefs prayed for in the Original Applications was that the petitioner be directed to engage them as per seniority in the panel and declare the engagement of 17 persons as illegal. In the Original Applications, the respondents herein primarily relied upon the directions of the Tribunal in O.A 517/1999 Yogesh Kumar vs. Union of India.

3. It is not in dispute that the respondents herein were engaged as Daily Wage Water Boys and had served for different periods as under:-

       (a)     Ajay Singh : 1997 - 65 days
       (b)     Ramakant Shukla : 1997 - 107 days and 1998 - 52 days
       (c)     Mohit Sharma : 1997- 64 days and 1998 - 60 days

4. Vide order dated 26.07.2010 relying upon the judgment dated 12.07.2004 of this Court in WP(C) No.483/2003 & 3389/2001 directed the petitioners herein to implement the directions as given in the order dated

12.07.2004. And hence it becomes relevant to note the direction issued by this Court on 12.07.2004. It reads as under:-

"We have considered the submission of learned counsel for the parties. It is not disputed that the minimum qualification for the post to which the aforesaid 17 persons have been appointed is 8th standard pass. Except Kamal Singh none of the respondents have the said qualification. The qualification of 8th standard was acquired by Kamal Singh subsequent to him disengagement from the service of the petitioner. It is stated by the learned counsel for the petitioner that in case any vacancy in the post of messenger arises, Kamal Singh shall be accommodated. In view of the fact that none of the respondents except Kamal Singh has the requisite qualification, we do not find their claim to be tenable and the Tribunal was not right in giving the aforesaid direction. In so far as Kamal Singh is concerned, it has been fairly stated that he will be adjusted as peon as and when a vacancy arises. In this view of the matter the writ petition succeeds and is allowed. The order of the Tribunal is set aside. It is made clear that as and when the vacancy in the post of peon arises, Kamal Singh shall be engaged by the petitioner since he has the requisite qualification."

5. It is thus apparent that this Court took into account the requirement of minimum qualification even in daily wage appointment, for the reason the stand of the petitioners was that whereas Water Boys were engaged during summer months to fill the water tanks of coolers, only those who had passed class-8 were engaged as daily wage messengers since they had to deliver dak.

6. Petitioners herein preferred Review Applications which were dismissed. With reference to the order dated 26.07.2010, review whereof

was prayed for, in the order dated 29.11.2011 dismissing the Review Applications, the Tribunal noted as under:-

"The plain reading of the above order would disclose that High Court had passed the order qua the respondent taking into account the facts presented by him in the CM Application No.10752/2011 conveying that he did not want to press his relief. Due to the above facts, the said judgment does not guide us to decide the OAs and RAs. On the other hand, we have noted in our orders dated 26.07.2010 that orders passed by the High Court in a separate Writ Petition (WP(C) No.3389/2001) was applicable as the issues similar to the ones in the OA have already been decided by the Hon'ble High Court. On the basis of the said directions of the High Court, we disposed of the OA directing the respondents to implement the orders of the Hon'ble High Court in case of the applicants in respective OAs. We note that the copy of the judgment of the High Court in CWP No. 3389/2001 was presented during the hearing which was reproduced in the order. It was decided that the issues in the OAs were similar to the issues decided in the WP(C) No.3389/2001. Therefore, the law laid down by Hon'ble High Court has been directed to be followed by the respondents for the applicants in the said OAs. The review applicants may not be satisfied with our directions, but for that, the review application is not the appropriate process by which they should redress their grievance."

7. Mr. Jagdeep Dhankar, learned senior counsel for the petitioners submitted that the respondents were engaged on need basis as Seasonal Water Boys because the tanks of water coolers had to be filled in the Summer period. Once this period was over, the services of the daily wage water boys were dispensed with. With effect from the year 1999, the job of

filling water in the tanks of water coolers was outsourced to contractors and hence daily wage water boys were not engaged. Requiring messengers, keeping in view the nature of job, only those who had passed class-8 were engaged. Respondents were engaged as Water Boys after sending requisition to the employment exchange with a clear disclosure of information that even illiterate persons could be engaged as water boys. When daily rated messengers were engaged, appointment was restricted to those who had passed at least class-8.

8. Per contra, Ms.Jyoti Singh, learned senior counsel for the respondents referred to the judgment of the Tribunal in O.A.No.517/1999 Yogesh Kumar vs. Union of India & Anr. wherein the Tribunal while disposing of the said OA, gave following directions.

(i) The respondents shall consider re-engaging the applicant for casual jobs in preference to the freshers and new comers.

(ii) The respondents are directed to maintain the seniority list for the purpose of engagement of the casual labourers who shall be engaged on the basis of "First to come last to go" as held in Inder Pal Yadav's case.

(iii) If the projects and jobs are available and if the applicant is senior, he will have the claim for being engaged in preference to the others who have been taken on the roll later on.

9. Learned counsel also urged that the name of the respondent in WP(C) No.2807/2012 had been included at Serial No.47 of panel and therefrom would urge that at least said respondent would have a pre-emptive right for re-engagement vis-a-vis freshers.

10. Regretfully, the impugned decision passed by the Tribunal has not

discussed the effect of the fact, that whereas Water Boys were engaged irrespective of any educational qualifications, messengers were engaged with reference to minimum educational qualification; being class-8 pass.

11. The Tribunal has overlooked the distinction between the job of water boys and messengers. The Tribunal has overlooked that it may be equitable to direct re-engagement of experienced hands; meaning thereby those who had worked in the past to be re-engaged in the future during summer months, but only as water boys. This principle could not be extended to a different daily wage appointment where nature of duties was different.

12. It has to be kept in mind that respondent Ajay Kumar had worked only for 65 days in the year 1997 and Rama Kant Shukla and Mohit Sharma had worked in the year 1997 and the year 1998 for 159 days and 124 days. It was not a case of continuous daily wage appointment for years together.

13. Lastly, the Tribunal misapplied the law declared by this Court when WP(C) No.483/2003 and WP(C) No.3389/2001 were disposed of; ignoring that with respect to 17 new hands whose employment was questioned, the Court found that only one claimant named Kamal Singh had passed class-8 and he alone was held entitled to be adjusted against a future vacancy. No endeavour has been made by the Tribunal to find out the educational qualifications of the three respondents. Assuming they are all class-8 pass, their past service is not for such a long period that an opinion can be formed of they being wronged. After all, when the department was engaging messengers on daily wage basis, a totally new category of employment was being resorted to and it would create administrative problems for the Executive if law would compel them to call all past daily wage employees, irrespective of the duties performed in the past, and then offer appointment with reference to a seniority list drawn with seniority being with reference to

the year of employment.

14. The petitions are allowed. The impugned orders are quashed. Original Applications filed by the respondents are dismissed.

15. No costs.

V.KAMESWAR RAO, J.

PRADEEP NANDRAJOG, J.

APRIL 18, 2013 km