Full Text
HIGH COURT OF DELHI
W.P.(C) 2193/2017
KRIPA NARAIN SHAHI AND ANR .....Petitioners
Through: Mr. Amit Kumar, Advocate along
Through: Ms. Kanika Singh
HON'BLE MR. JUSTICE AJAY DIGPAUL
JUDGMENT
15.01.2025 C. HARI SHANKAR, J.
1. As per the impugned judgment passed by the Central Administrative Tribunal[1], the Petitioners in this writ petition were appointed as Lift Operator in the New Delhi Municipal Corporation[2] on Temporary Muster Roll basis[3]. Petitioner 1 was appointed as Lift Operator on 5 April 1991. They were brought on Regular Muster Roll[4] with effect from 11 June 2002. The grievance of the petitioners is that they were entitled to be brought on RMR from earlier dates, at par with their juniors. “the Tribunal”, hereinafter “NDMC”, hereinafter “TMR”, hereinafter “RMR”, hereinafter
2. Agitating this cause, the petitioners earlier approached this Court by way of WP (C) 17970/2005[5] and WP (C) 21918/2005[6]. In the said writ petitions, the petitioners assailed the decision of the respondents to bring them on RMR with effect from 11 June 2002 and contended that they were entitled to antedating of their RMR status.
3. The said writ petitions were transferred by this Court to the Central Administrative Tribunal, Principal Bench[7] and renumbered as TA 1076/2009 and TA 1077/2009.
4. By order dated 14 May 2010, the Tribunal disposed of both the TAs with a direction to the respondents to consider the petitioners’ prayer for antedating of their RMR status.
5. In compliance with the directions issued by the Tribunal, the respondents, by a detailed order dated 25 October 2010, rejected the petitioners’ claim for antedating. We may, for ready reference, reproduce the said order in its entirety thus: Reference No. EEI/GAIII//1854 Date: 25/10/10 Subject: Implementation of the Orders of the Hon'ble CAT dated 14.5.2010 in TA No.1076/2009 and TA No. 1077/2009 in respect of Sh. Kripa Narain Shahi & Sh. Abdul Bari Khan, respectively. Hon'ble CAT vide its orders dated 14/5/2010 directed the respondent, N.D.M.C. to examine the issue raised by the applicants for ante-dating their conversion from Temporary Muster Roll to Kripa Narain Shahi v NDMC Abdul Bari Khan v NDMC “the Tribunal”, hereinafter Regular Muster Roll on the basis of the records available with the respondent N.D.M.C. While examining the issue, the respondents have been directed to give an opportunity to applicants to represent and furnish documents and statement, if needed to show how the ante dating would be possible and whether it would be admissible as per the N.D.M.C. Council's Resolution and pass a speaking order.
2. The applicants, as per directions of the Hon'ble CAT, appeared before the Chairperson, NDMC on 14.06.2010 and 21.9.2010. They also appeared before the undersigned on 25.06.2010 and again on 24.9.2010 where Deputy Director (Elect.), Section Officer (Electric Establishment I), and Section Officer, (Civil Establishment II) were also present. The applicants reiterated their claims that Para No.1 of the Writ Petition filed before the High Court may be considered while finalizing their cases.
3. The applicant No. 1, Shri KN Shahi, contended that Para No. 1 of the Writ Petition filed by him before Hon'ble High Court of Delhi may be read as part and parcel of the submission made by him and his case may be considered accordingly. in Para No.1 of WP (C) 17970/05 the applicant had claimed that he was brought on the roll as Regular Muster worker vide Orders dated 11.06.2002, while he was entitled to the same status from at least 09.10.1992 when his juniors, as per details given below, were converted to Regular Muster Roll workers and he is further entitled to be regularised after six years, i.e., w.e.f. 1998: Sl No.
NAME OF THE CANDIDATE NUMBER OF DAYS WORKED AS TMR DATE ON WHICH RMR STATUS GRANTED
4. After going through the records available with the respondent N.D.M.C. and analyzing the facts the position that has emerged is as under:
(i) The applicant No.1, Shri K. N. Shahi was engaged on
Temporary Muster Roll as Khallassie w.e.f. 5.4.91 and applicant No.2, Shri A B Khan was engaged on Temporary Muster Roll on 09.05.1994
(ii) As a welfare measure for N.D.M.C. employees, the
Administrator, N.D.M.C. vide his orders dated 17.03.1992 had decided that those muster roll workers, who were wards of serving regular employees of N.D.M.C. and have rendered a minimum service of 180 days during the period 1 January 1991 to 31 December 1991 with a break not exceeding 60 days at a stretch, may be appointed on Regular Muster Roil subject to availability of vacancies. It is pertinent to mention that the applicant Shri Shahi had completed only 173 days upto 31.12.1991, and Shri Khan was appointed only on 09.05.1994.
(iii) Under Section 38 of the then Punjab Municipal Act, 1911 the Committee through its Administrator was empowered to appoint any person. As per orders of the then Administrator dated 09.10.1992, 40 Temporary Muster Roll Khallasies, reported to be wards of municipal employees, including the 4 persons mentioned in the Para No.3 above, were placed on regular muster roll. The name of the above said officials existed at Sr. No. 31, 36, 29, and 34 of the said orders. A copy of the office order dated 09.10.1992 is annexed as Annexure-1.
(iv) Since this was a scheme meant for the welfare of the employees, only wards of the employees were considered for regularisation on Regular Muster Roll. The cases of the applicants were not considered accordingly.
(v) Vide circular dated 11.05.1994 those muster roll employees who have completed 750 days as on 31.03.1994 were considered for appointment on Regular Muster Roll. A copy of the said circular dated 11.05.1994 is annexed as Annexure-II. Grant of RMR status was not automatic. One had to apply for the same. It has not been claimed that they applied for the same & not considered. As the applicants had not put in 750 days as Temporary Muster Roll worker on 31.03.1994 they were not considered for Regular Muster Roll.
(vi) After enactment of N.D.M.C. Act, 1994, one of the
Member of the Council proposed that all those who have completed 500 days as TMR be regularized. This was not accepted and the Council vide Resolution No.4 (v) dated 23.2.1996 resolved that RMR be linked with availability of vacancies. A copy of the said Resolution dated 23.02.1996 is annexed as Annexure-ІІІ.
(vii) Council vide its Resolution No.3(v) dated 26.02.2002 and 3
(ii) dated 24.05.2002, decided to grant Regular Muster Roll status to the Temporary Muster Roll card holders who had completed 500 days and fulfilled the prescribed conditions. The Council approved the proposal regarding 500 & above days as the criteria for conversion of TMR into RMR as on 31.12.1998. Copies of the Resolutions dated 26.02.2002 and 24.05.2002 are annexed as Annexure IV and Annexure V.
(viii) As per Council Resolution, the seniority of a muster roll worker is not determined as per date of his initial appointment, but number of days worked, as specified in Resolutions made from time to time.
(ix) The applicants having completed more than 500 days upto
31.12.98 were granted Regular Muster Roll status vide Orders dated 11.06.2002. Their names figure at S. No. 7 and 40 of the said orders, whose copy is annexed as Annexure VI.
5. In view of the position discussed here in above claim of the applicants for antedating the grant of Regular Muster Roll from an earlier date is not possible as grant of Regular Muster Roll status to them was as per the extant policy and Committee's decusuib/Council's Resolutions and no discrimination was made against them. As such, their representations are rejected.
6 Claim for relief has been made in 2005 for a period from 9.10.1992. This is after a period of 13 years. As per Supreme Court decision in Pan Singh & Others v NDMC decided on 8.3.07, such a clam cannot stand and has to be rejected.
7. This issue with the approval of the Competent Authority.”
6. Thus, it is seen that the respondents adopted the stand that there were three exercises conducted for bringing TMR Muster Roll Workers to RMR, on 17 March 1992, 11 May 1994 and 24 May 2002. We proceed to examine the petitioner’s entitlement to be brought on RMR, on each of these occasions.
7. Circular dated 17 March 1992 7.[1] The first circular dated 17 March 1992 envisaged Muster Roll employees, who were wards of serving regular employees of the Municipal Corporation of Delhi[8] and who had, to their credit, 180 days’ continuous service with breaks of not more than 60 days during the period of 1 January 1991 to 31 December 1991, being brought on RMR, subject to availability of vacancies. 7.[2] We may straightaway address, at this juncture, the entitlement of the petitioners to be regularized in terms of this circular. 7.[3] The Tribunal has noted that Petitioner 2 had joined service only in 1994 and that this circular could not, therefore, in any event, applied to him. This position is not disputed even by Mr. Amit Kumar, learned Counsel for the petitioners. 7.[4] Insofar as Petitioner 1 is concerned, the Tribunal has observed that he did not have to his credit 180 days of continuous service as envisaged in the Circular dated 17 March 1992 between 1 January 1991 and 31 December 1991. 7.[5] Mr. Amit Kumar disputes this position. He has taken us to the admitted position of the service rendered by Petitioner 1 during the calendar year 1991. This reveals that he served for a period of 90 days from 5 April 1991 to 3 July 1991 and for a period of 88 days from 4 July 1991 to 30 September 1991. 7.[6] Even if these two periods are added, it works out to 178 days of continuous service during the calendar year 1991. Each of the periods from 01 January 1991 to 4 April 1991 and 1 October 1991 to 31 “MCD” hereinafter December 1991 are of more than 60 days and cannot, therefore, be added to the period of continuous service undergone by the petitioner. In any event, they are not breaks during the period of service that the petitioner’s had undergone. 7.[7] Ergo, we are in agreement with the Tribunal that the petitioner did not have, to his credit, 180 days of continuous service during the period 1 January 1991 to 31 December 1991 and could not, therefore, be brought on RMR in terms of the circular dated 17 March 1992. 7.[8] In that view of the matter, we do not enter into the aspect of whether the respondent was or was not justified in limiting the dispensation provided by the circular dated 17 March 1992 only to wards of employees of the NDMC.
8. Circular dated 11 May 1994 8.[1] The second occasion when the exercise of regularization was undertaken was in 1994, vide circular dated 11 May 1994. This circular envisaged that Muster Roll employees who had 750 days of service as on 31 March 1994 would be brought on RMR. 8.[2] As in the case of the earlier Circular dated 17 March 1992, Petitioner 2 had not joined service by that date and could not, therefore, be in any case considered for being brought on RMR as per this Circular. 8.[3] Petitioner 1, too, did not have to his credit 750 days’ continuous service with effect from 31 March 1994 as required by the Circular and could not, therefore, be entitled to its benefit. 8.[4] We, therefore, are in agreement with the Tribunal that neither of the petitioners were entitled to be brought on RMR even as per the circular dated 11 May 1994.
9. MCD Resolution dated 24 May 2002 9.[1] The third exercise of regularization with which we are concerned was in terms of the resolution of the MCD dated 24 May
2002. As per this resolution, Muster Roll employees on TMR, with 500 days of service to their credit as on 31 December 1998 and who fulfilled the conditions envisaged in the Circular, were entitled to be brought on RMR. 9.[2] Both the petitioners were in fact granted the benefit of this Circular as they had completed 500 days of service as on 31 December 1998. As a result, both the petitioners were brought on RMR with effect from 11 June 2002. 9.[3] As already noted, the petitioners’ case before the Tribunal was that they were entitled to antedating of the date from which they were brought on RMR. We have found that the petitioners could not claim entitlement to be brought on RMR in terms of either of the earlier exercises of regularisation undertaken by the respondent. They qualified as per the MCD Resolution dated 24 May 2002 and were correctly given the benefit of the said Resolution. 9.[4] Mr. Amit Kumar, learned Counsel for the petitioners sought to contend that the petitioners would be entitled to be regularized with effect from the date each of them completed 500 days of service from the date of their initial engagement. This, in our view, is an incorrect reading of the Resolution of the MCD. The condition of completion of 500 days of service as TMR was only a condition stipulated for being entitled to be brought on RMR as per the MCD Resolution dated 24 May 2002. There is a difference between a condition so stipulated and the date from which the employee would be entitled to regularization. Merely because the resolution envisaged 31 December 1998 as the terminus ad quem by which date the employee concerned would have to have completed 500 days of service as TMR as the condition for being brought on RMR, would not ipso facto entitle the employee to be brought on RMR with effect from the date she, or he, so completed 500 days of service. The entitlement to regularization would only be prospective from 24 May 2002. The petitioners were correctly given the benefit of RMR from the said date. We cannot agree with Mr. Amit Kumar’s submission that they should have been brought on RMR with effect from the date each of them completed 500 days of service from the date of their initial engagement.
10. Prayer in the OA – Comparison with case of Ramakant Rai 10.[1] In fact, the case that was set up by the petitioner before the Tribunal was not on any of these grounds, but was only predicated on the regularization of one Ramakant Rai. We may, for this purpose, reproduce the prayer clause, in the OA filed by the petitioner: It is, therefore, most respectfully prayed that this Hon’ble Court may kindly be pleased to: a) Direct the respondent to consider the applicants for regularization at the post of Lift Operator on the line of Ramakant Rai. b) Direct the respondent to pay the arrears, bonus etc. of their salary with interest and other consequential benefits; c) Direct the respondent to pay the litigation cost; AND d) pass such order/s or direction/s which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.
11. Insofar as the parity that the petitioner seeks to draw with Ramakant Rai is concerned, the Tribunal has exhaustively dealt with it in paras 7 and 8 of the judgment under challenge, which we, for ready reference reproduce thus:
MANU/DE/1803/2005 2005 (NDMC v Shri Rama Kant Rai); the office order dated 21.5.2009 issued by the respondent-NDMC regularizing the services of Mr. Rama Kant Rai as Caretaker with effect from 2.5.1994; the order dated 22.8.2006 passed by the Hon'ble High Court of Delhi in W.P. (C) No. 18559 of 2004; and the office order dated 16.12.2009 issued by the NDMC regularizing the services of Mr. Shakeel Ahmed as Caretaker with effect from 6.5.1994, i.e., the date of his initial appointment. On a careful perusal of these documents, we have found that prior to their initial appointment as Caretaker on ad hoc basis, S/Shri Rama Kant Rai and Mohd. Shakeel Ahmed were working as Peons with the respondent- NDMC. The dispute between the NDMC and Sh Rama Kant Rai and Mohd. Shakeel Ahmed was referred by the Government of NCT to the Industrial Tribunal for adjudication. The term of reference was as to whether Sh. Rama Kant Rai and Sh. Shakeel Ahmed, Caretakers, were entitled to the pay scale of Rs.4000- 7100/- as was being provided to their regular counterparts and if so, what directions were necessary in that respect. The award was passed by the Industrial Tribunal declaring that Shri Rama Kant Rai (the contesting workman) was entitled to the pay scale of Rs.950-1500/- from 2.5.1994 till 31.12.1995 and pay scale of Rs.4000- 7100/- w.e.f. 1.1.1996 onward till he worked as Caretaker on ad hoc basis. Though the writ petition was filed by the NDMC challenging the Industrial Tribunal's award, yet a compromise was entered into by and between the NDMC and Mr.Rama Kant Rai, as a consequence of which it was agreed by the NDMC to regularize the services of Sh. Rama Kant Rai as Caretaker Grade II from the date of his initial appointment as Caretaker on ad hoc basis w.e.f. 2.5.1994 in the pay scale of Rs.950-1500/- which stood revised to Rs.4000-7000/- with effect from 1.1.1996. An affidavit to that effect was filed by the NDMC before the Hon'ble High Court. In this affidavit it was stated that the said settlement might not be treated as a precedent. In the light of the aforesaid affidavit, the Hon'ble High Court disposed of the writ petition. Accordingly, the NDMC issued office order dated 21.5.2009 regularizing the services of Sh. Rama Kant Rai as Caretaker with effect from 2.5.1994, i.e., the date of his initial appointment as Caretaker on ad hoc basis. The Hon'ble High Court also granted the same relief to Mohd. Shakeel Ahmed in the writ petition filed by him. Consequently, the NDMC issued office order dated 16.12.2009 regularizing the services of Mohd Shakeel Ahmed as Caretaker with effect from 6.5.1994, i.e., the date of his initial engagement as Caretaker on ad hoc basis.
8. From the foregoing, it is clear that the applicants in the present case are not similarly placed as Mr. Rama Kant Rai. While the applicants were initially engaged on TMR, Shri Rama Kant Rai was appointed as Caretaker on ad hoc basis with effect from 2.5.1994. Furthermore, before his ad hoc appointment as Caretaker on ad hoc basis, Shri Rama Kant Rai was working as a Peon with the respondent-NDMC. The NDMC regularized the services of Shri Rama Kant Rai as Caretaker with effect from 2.5.1994, i.e., the date of his initial appointment as Caretaker on ad hoc basis, in compliance with the award passed by the Industrial Tribunal, and the judgment passed by the Hon'ble High Court of Delhi. Therefore, in the present case, the applicants cannot claim to be treated at par with Shri Rama Kant Rai.”
12. The factual narrative, in paras 7 and 8 of the impugned order, is not under challenge.
13. We are in agreement with the Tribunal that, in view of the above facts, the petitioners’ case was completely distinct from that of Ramakant Rai, not in the least because Ramakant Rai was never a Muster Roll employee at all, but was appointed on ad hoc basis after having served as a peon in the NDMC prior thereto.
14. It is clear that the petitioners cannot claim parity with Ramakant Rai.
15. As such, both the petitioners having been brought on TMR with effect from 11 June 2002 as per their entitlement, in terms of the MCD Resolution dated 24 May 2002 and not having any legitimate basis for antedating of the said decision, we find no infirmity with the judgment of the Tribunal which accordingly stands affirmed in its entirety.
16. Mr. Amit Kumar, at this juncture, sought to point out that what he had sought to challenge before the Tribunal was in fact order dated 2 April 2012 passed by the respondent. However, we find that there was no prayer in the OA, to set aside the said Order, as a result of which the Tribunal, has proceeded to examine the petitioners’ claim for antedating of the date from which they were brought on RMR.
17. We, therefore, clarify that this order would not stand in the way of the petitioners, should they so choose, challenging the order dated 2 April 2012 in accordance with law, if so advised.
18. Subject to this limited caveat, the writ petition is dismissed.
C. HARI SHANKAR, J.