Ashok Kumar v. Union of India

1. The petitioner instituted OA 1325/2021 before the Central Administrative Tribunal[1], contending that, he had worked with the respondent since 2001, even though he was substantively appointed only in 2009 and regularized in 2011. His claim before the Tribunal was for continuity of service from the year 2001.

2. The Tribunal has, even while recognizing the fact that, in certain circumstances, a claim for continuity of service could lie, 1 “the Tribunal” hereinafter noted that the petitioner did not have, with him, any appointment order or any other documents showing that he was a regular employee of the respondent from 2001. The petitioner candidly acknowledged, before the Tribunal, that he had no appointment order. The petitioner was only relying on certain identity cards which have been issued to him by the respondent. The photocopies of the said identity cards have also been placed on record. The Tribunal has held, in the impugned order, that issuance a mere identity card and entry passes do not confer right to an employee to claim continuity of service.

3. Following this reasoning, the Tribunal has dismissed the petitioner’s OA against which the petitioner has approached this Court.

4. We have heard Mr. Nitin Singh, learned Counsel for the petitioner, and Mr. Vikrant N. Goyal, learned Senior Panel Counsel for the respondent, at some length.

5. We regret our inability to come to the aid of the petitioner. It is trite that, in order to seek a remedy, a right must exist[2]. The right must be predicated on cogent and acceptable material. There is admittedly no appointment order appointing the petitioner from 2001. There are no salary slips reflecting payment of salary to the petitioner. On this aspect, Mr. Nitin Singh’s contention is that his client was always paid in cash. No proof of such payment is forthcoming. There

2 Ubi jus, ibi remedium are no attendance registers recording the petitioner’s attendance, and it is not even the petitioner’s case before the Tribunal that any such attendance registers were maintained. There is nothing to indicate that the petitioner was, even with some degree of regularity, serving the respondent from 2001 to 2009. The respondent’s case is that the petitioner was only called intermittently for duty as and when occasion arose, for which he was regularly paid.

6. Clearly, in the face of these facts, no right enures in favour of the petitioner to seek continuity of service from 2001.

7. Mr. Nitin Singh has also sought to place reliance on the judgment of the Supreme Court in the case of Prem Singh v State of Uttar Pradesh[3] and has specifically drawn attention to para 33 of the report in that case which read thus:

8. Prem Singh, in our view, is clearly distinguishable. That was a case in which there was proof of appointment of the petitioner Prem Singh from 1965, albeit on work charge basis. The factors which have persuaded in the Supreme Court to grant relief to Prem Singh, as envisaged in para 33, clearly do not apply to the petitioner. The issue before the Supreme Court in that case was the constitutionality of Rule 3(8) of the U.P. Retirement Benefit Rules 1961, which reads as under: