A Game-Changer Verdict

 

 

By Adv. R. S. Agrawal 

 

 

IN A very candid decision, the Judicial Member, R N Singh and Administrative Member, Tarun Shridhar, at the Principal Bench of the Central Administrative Tribunal, have , reiterated on April 26, 2024, that the Tribunal “cannot, under any circumstances, allow a situation where the order/decision even though administrative, of the Chairman, CAT who “is or has been a Judge of a High Court” to be overruled by an official of the Government as has been in this case. Further, the CAT took strong objection to the contentions of the respondents that “directions issued to the Ministers and Departments of the Government are to be followed by the Tribunal. We are at loss to absorb that the deposition of the Tribunal in the affidavit conveys surrender to executive control in blatant disregard to the constitutional principles as interpreted by the Hon’ble Supreme Court.” The applicants in all the three Original Applications (OAs) are Stenographers, Grade-D, appointed and working on adhoc basis in the Central Administrative Tribunal (CAT). All of them are aggrieved by an order vide which the terms and conditions of their appointments have been revised to their detriment and all of them also seek on regularisation, on account of a long and continuous period of service they possess. Accordingly, at the suggestion of lawyers representing both the applicants and respondents, all the three OAs have been clubbed together and have been disposed of through this common order, on the basis of the facts in the OA 1987/ 2023. During the year, 2012, the respondent-2, CAT sent a requisition to the concerned employment exchange seeking appropriate names for appointment as Stenographer Grade-D on adhoc basis.

 

Through an order of November 22, 2012, the applicant was given appointment as Stenographer Grade-D at the Principal Bench of CAT in the regular scale of pay, in Pay Band –Rs 5200-20200 plus Grade Pay of Rs 2400/-. While the said order mentioned that this appointment will not bestow any claim for regular appointment. It also mentioned that the initial appointment was only for three months or till the posts are filled up on regular basis, whichever is earlier. The said order contained another stipulation that the adhoc appointment can both be extended or curtailed in administrative exigencies. It so happened that this appointment which was for a period of three months or till the posts are filled on regular basis, has continued since then till date uninterruptedly, barring a artificial/technical break of one day. The appointment has also continued on carrying a regular scale of pay carrying a Grade Pay till February 27, 2023, when the impugned order was passed and the services on adhoc basis were disengaged and the applicant was re-appointed as Stenographer Class-D, however now on contract basis on a fixed remuneration of Rs 40,000/-, instead of the regular scale of pay including Grade Pay. This time, the order of re-engagement mentioned the initial engagement for a period of six months or till the posts are filled up on regular basis or until further orders, whichever is earlier. This engagement also continued beyond six months since then continuously and uninterruptedly. The applicant has sought regularisation. Admittedly, she has been working for nearly 11 years continuously now. There is no adverse remark or comment qua her performance. Several other similarly placed employees of the CAT have been regularised periodically.

 

Why should the applicant’s case be treated differently. Further, by no stretch of imagination can this appointment be termed to be irregular. The applicant has been appointed through an established procedure by way of an open, transparent and fair selection process. She has been appointed on the approval of the competent authority who has been no less than the Chairman, Central Administrative Tribunal. Different Benches of the Tribunal have consistently held that employees who are appointed against sanctioned posts on regular basis by resorting to a transparent selection process have a bona fide claim for regularisation. The Court has recalled that just a few days back, a co-ordinate Bench of the CAT in which “one of us” was a Member, in OA No. 2525/2023 titled Anita Kumari v. Municipal Corporation of Delhi (MCD) & Another has considered the principle and issue of regularisation of a contract/ adhoc employee threadbare. The applicant herein was a Primary Teacher appointed on adhoc basis in the MCD. She too had claimed regularisation, and in that case, amongst other grounds, one of the grounds taken by the respondents was that the applicant had been engaged in a Society and not MCD per se. Even against that background and circumstances, the Tribunal had held the applicant to be entitled for regularisation w.e.f. the date of her initial appointment.

 

While deciding the O.A. the primary consideration which the Co-ordinate Bench had given weightage to, were: (a) the applicant had been continuing in service for nearly 20 years, (b)she was performing all such duties and responsibilities as are discharged by regular employees,(c)there was no adverse comment with respect to her conduct and comment and performance. Accordingly, it had been held that since the duties and responsibilities were akin to those performed by regular employees, denial of regularisation and consequential benefits would be violative of the principle of equality as enshrined in the Constitution of India. The Central Administrative Tribunal has allowed the Original Application with following order(s) and directions: (i) The CAT held and declared the engagement of the applicant as Stenographer Grade-D on adhoc/contract basis with intermittent break, as arbitrary and violative of the provisions of Articles 14 and 16 of the Constitution of India; (ii) Consequently, the CAT directed the competent authority amongst the respondents to pass an order for the regular appointment of the applicant as Stenographer Grade-D with effect from the date of her initial appointment /engagement, that is November 22, 2012; (iii) To fix the pay of the applicant as a regular Stenographer Grade-D on November 22, 2012 and grant annual increment (s) as admissible, and also to consider her for promotion/grant of benefits under ACP/MACP scheme(s) as per the extant Rules and instructions in this regard; and further to award her other entitlements such as leave, medical cover etc.; besides the rest of the consequential benefits arising out of this order. The Tribunal has directed compliance with these directions by the respondents within six weeks of receipt of copy of this Order. The respondents shall undertake review, if required. These directions shall apply to all the three OAs, without any reservation.