Union Of India And Ors. vs Bal Kishan
2014 Latest Caselaw 5255 Del

$~11
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                               DECIDED ON: 27.10.2014


+                        W.P. (C) 2444/2014
                         C.M. Nos.5099-5101/2014

       UNION OF INDIA & ORS                                  ..... Petitioners

                         Through: Mr. Ruchir Mishra, Advocate.

                         versus

       BAL KISHAN                                           ..... Respondent

Through: Mr. Sarvesh Bisaria with Mr. Prakash Chandra Sharma, Advocates.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI

S.RAVINDRA BHAT, J. (OPEN COURT)

1. The petitioner, Union of India, claims to be aggrieved by two orders of the Central Administrative Tribunal (hereafter referred to as 'CAT') dated 27.08.2013 in OA 3651/2012 and dated 06.11.2013 in in review proceedings.

2. The grievance pertains to the directions issued by the CAT in respect of the claim for regularisation made by the respondent (hereafter referred to

W.P. (C)2444/2014 Page 1 as 'applicant'). The applicant is a seasonal Anti-Malaria Lascar engaged periodically during malaria occurring season. By a Scheme published on 21.08.1997, the Union of India had put in place the conditions for grant of temporary status to such seasonal employees and their subsequent regularisation in group 'D' posts. This Scheme was operationalized in the form of guidelines, relevant portions of which read as follows: -

"TEMPORARY STATUS

(i) Temporary status is to be granted to Anti Malaria Lascars after 165 days of work in offices observing 06 days a week and after 150 days in offices observing 05 days a week for two consecutive years.

(ii) Such Anti Malaria Lascars who have completed 650 days in the last consecutive 04 years in offices observing 06 days a week and 600 days in offices observing 05 days a week would be eligible for regularisation against a regular vacant Gp 'D' post.

(iii) The conferment of temporary status on SAMLs would be without reference to creation/availability of regular group 'D' posts.

(iv) The conferment of temporary status on the SAMLs would not involve any change in his duties and responsibilities.

(v) The SAMLs granted temporary status will not however, be brought on permanent establishment unless they are selected through regular selection process for group 'D' posts."

XXX XXX XXX PROCEDURE FOR FILLING UP GP 'D' POSTS.

4. The broad outlines of the procedure for filling up group 'D' posts by SAMLS with Temporary Status will be as under:

W.P. (C)2444/2014                                                        Page 2
        (i)    The selection will be made by following due procedure in

accordance with the recruitment rules and subject to medical fitness by a panel of Air Force Doctors and verification of antecedents etc.

(ii) A Combined station-wise Seniority List of SAMLS granted Temporary status would be maintained on the basis of number of years of temporary service.

(iii) SAMLs would be allowed age-relaxation equivalent to the period for which they have worked continuously as SAMLs.

(iv) The rules on reservation for SC/ST/OBC shall be strictly adhered to while filling up the regular vacancies.

(v) The final orders for grant of Temporary status and regularisation against Gp 'D' vacancies will be issued after obtaining approval from Air Headquarters."

3. The applicant had approached the CAT on an earlier occasion complaining that his right under the Scheme to work as a temporary employee had not been honoured. On that occasion, the CAT vide order dated 9.11.2004 partly allowed the application and directed the petitioner to engage the applicant immediately as Anti-Malaria Lascar and consider him for grant of temporary status, as if he had worked for requisite 165 days in terms of the Scheme. This order was challenged in proceedings under Article 226 of the Constitution of India and subsequently before the Supreme Court by filing SLP, but unsuccessfully. Eventually, on 15.3.2012, the Union of India issued the following order: -

"Approval is hereby accorded for grant of temporary status to Shri Balkishan in pursuance to Hon'ble High Court of Delhi

W.P. (C)2444/2014 Page 3 order dated 07 Dec 2010 in WP No.6025/2005 filed by UOI against the orders of Hon'ble CAT (PB) New Delhi in OA No.1020/2004 filed by Shri Balkishan Vs UOI and subsequent approval accorded vide Air HQ letters Air HQ/23064/28/1/AML/Court Case/PC-4 dated 09 Jan 12 and Air HQ/23064/1/AML/Court Case/PC-4 dated 28 Feb 12, on the subject."

4. The applicant approached the CAT questioning two orders, i.e., 25.1.2012 (by which he was sought to be reengaged on purely temporary basis), and subsequent order dated 1.10.2012 which is to the following effect: -

"1. It is intimated that the services of Seasonal Anti Malaria Lascar (SAML) are governed by the terms and condition as contained in the Seasonal Anti Malaria Lascar Grant of Temporary Status and Regularisation; Scheme of Indian Air Force, 1997. In accordance with the police in force, you will be dis-engaged from the service of SAML with effect from 01 November 2012 that is at the end of the present malaria season, and will be engaged again as S/ML with effect from 01 May 2013 that is on commencement of the next malaria season.

2. As per the said SAML Scheme, only, after the completion of consecutive 4 years of service and that too with 650 days of engagement, your case will be considered for regularisation."

5. The CAT by the impugned order allowed the application and directed the Union of India to regularize the applicant from the date his junior was regularized and grant seniority on notional basis. It is urged on behalf of the Union of India that the impugned order is untenable, given the dictates of the Scheme. Learned counsel points out that in terms of the Scheme, the controlling conditions are that not only must the temporary employees have

W.P. (C)2444/2014 Page 4 worked continuously for four successive years for a requisite number of days, i.e., 600 or 650 days as the case may be, but regularisation would be subject to existence of vacancies and fulfilment of selection criteria. A blanket direction to regularise, in these circumstances, was not warranted. It was highlighted that CAT completely overlooked the order granting temporary status to the respondent/applicant on 15.3.2012 which has remained unchallenged.

6. Counsel for the applicant urged that the impugned order ought not to be disturbed, given that the Union of India did not show any meaningful compliance with the previous directions of the Tribunal dated 9.11.2004 - the correctness of which was tested up to the highest Court. It was also argued that the applicant was unfairly kept away from work, and the petitioners have falsely alleged that the letters were issued, but he failed to report. All these were facts which the CAT considered and thereafter, in the light of the submissions made, issued the orders of regularisation.

7. It is evident from the Scheme - the relevant portions of which have been extracted above, that the grant of temporary status preceeds claim for regularisation. Temporary status depends upon the seasonal workers having been in employment for two successive seasons and worked for not less than 165/150 days depending upon the number of days of the working week. In case of any claim for regularisation, the temporary employee would have had to fulfil the conditions of having worked for not less than 600/650 days - depending upon the working week, in the consecutive four years. The CAT, no doubt, has directed the regularisation of the applicant; however, this Court is of the opinion that there is no material to support this order, save and except that the applicant's juniors were given the status of

W.P. (C)2444/2014 Page 5 temporary employees and subsequently regularised. Whilst the CAT would be within it right to return the findings and make appropriate orders even for regularisation - if the circumstances so warrant and justify, when such rights and obligations can be drawn from an expressed policy or rule of the executive agency or government, they ought to be, in the opinion of the Court, be strictly adhered to before any such directions are issued. In the present case, the only basis for this direction appears to be that some juniors of the applicant were regularised. The applicant's contentions before the CAT was that he was denied employment during consecutive years unfairly. There is, however, no such finding. In the present case, the applicant did not even challenge the order dated 15.3.2012 by which the temporary status was granted to him. This was premised upon his working for the requisite period of 150/165 days in two consecutive years. In these circumstances, the only surviving claim before the Tribunal was that his case for regularisation ought to be considered, given the dictates of the Scheme, whenever his turn comes. That would have arisen at the earliest (in view of the said order of 15.3.2012) after 16.3.2014, provided he fulfilled all the conditions spelt out under the Scheme for regularisation.

8. For the forgoing reasons, the operative directions of the CAT in the impugned order cannot be sustained. They are hereby set aside and substituted with direction to the petitioner to consider the respondent/applicant's case as on date having regard to the fact that he was granted temporary status on 15.3.2012 and by taking into account his period or periods of employment thereafter to see whether he is entitled for regularisation after satisfying all other criteria applicable in that regard. An appropriate order in this regard shall be made and communicated to the

W.P. (C)2444/2014 Page 6 applicant within six weeks from today.

9. The writ petition is partly allowed in the above terms.

S. RAVINDRA BHAT (JUDGE)

VIPIN SANGHI (JUDGE)

OCTOBER 27, 2014 /vikas/

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