CENTRAL
ADMINISTRATIVE TRIBUNAL
BANGALORE
BENCH : BANGALORE
ORIGINAL
APPLICATION No.150/2010
TODAY,
THIS THE DAY OF
................. , 2011
HON'BLE
SMT. LEENA MEHENDALE ...MEMBER(A)
HON'BLE
SHRI V.AJAY KUMAR ...MEMBER(J)
1. Sri B.S. Siddamadaiah,
S/o Sri
Siddaramaiah,
Aged
about 50 years,
R/at
Bevooru Village (Post),
Channapatna Taluk,
Ramanagara District.
2. Sri M. Jagadeesha,
S/o Sri
K. Madappa,
Aged
about 45 years,
R/at
No.190, Shiva Nilaya,
2nd
Cross, 4th Main Road,
Hongasandra, Begoor Road,
Bangalore
– 560 068.
3. Sri Hanuma Naik,
S/o Sri
Bheena Naik,
Aged
about 47 years,
R/at Old
Gurappana Main Road,
Tavarakere Post,
Bangalore
– 560 081. ... Applicants
(By
Advocate Shri V.S. Naik and Mrs. Manjula N. Kulkarni)
Vs.
1. The Director of Census Operations,
Government of India,
Ministry
of Home Affairs,
7th
Floor, Kendriya Sadan,
Koramangala, Bangalore – 560 034.
2. The Registrar General, India,
No.2/A,
Mansingh Road,
New Delhi
– 110 011.
3. Union
of India,
Represented by the Secretary to the Govt.,
Ministry
of Home Affairs, Govt. of India,
New Delhi
– 110 001. ... Respondents
(By
Advocate Shri S. Kalyan Basavaraj,
Addl.
Central Govt. Standing Counsel)
O R D E R
Hon'ble Smt. Leena Mehendale, Member (A) :
This OA filed under Section 19 of
the Administrative Tribunals Act, 1985, on 5.3.2010, is a case of failure of
the institutional memory which resulted in the subsequent officers not
following up and delivering what was promised by the predecessor, thus,
requiring the applicants to approach this Tribunal again and again.
2. The brief facts of the case are that
the 3 applicants, viz., B.S. Siddamadaiah, M. Jagadeesha and Hanuma Naik, are
physically handicapped. They were
engaged in the Department of Census for the purpose of compilation of the 1991
census on a consolidated salary of Rs.1,050/- per month and assigned the work
of checker/coder. Their services were
terminated in the year 1994 by different orders and on different dates. They and some other applicants whose services
were also terminated apprached this Tribunal in OA Nos.8/1994 and 197 to
206/1994 (11 O.As in all). The Tribunal
by order dated 22.02.1994 directed the Respondents as under:-
"2. We hope that in future if any vacancy
arises which can be manned by these applicants subject to their eligibility
under Rules, their cases must be considered on top priority basis. It will be advisable for the department to
maintain a comprehensive list of employees whose services are terminated in the
manner indicated under the impugned orders.
The department should not follow the policy of pick and choose, instead
strictly recall the candidates in accordance with their seniority reflected by
the said list and appoint them in a regular fashion."
It is clear that this order is an order in rem and the direction given
to the Department would apply to all the employees who served the Department of
Census Operations for some time and whose services are terminated.
3.
It is pertinent to note that a sizeable portion of
the work of the Census Department is of a seasonal nature. During the active period of census, their
manpower requirement suddenly goes up.
The order of the Tribunal to maintain the seniority list of all the
candidates and recall them strictly as per the seniority and not on pick and
choose basis has to be appreciated in the light of this fact. As the Respondents did not take such action,
the applicants once again approached the Tribunal in OA No.392/2000 and
401/2000. The Tribunal passed orders on
11.4.2002 directing the Respondents to consider the case of the applicants in
the light of earlier quoted judgments which in itself supported by the judgment
of the Supreme Court reported in 1997 (1) SCC 530, mandating that retrenched
employees are required to be given preference.
The Writ Petition of the Respondents against this order was also
dismissed by order dated 18.3.2005.
4. As no relief was
forthcoming, the 2nd and 3rd applicant had also filed
Contempt Petition No.03/2008 in OA No.401 &402/2000. The contempt proceedings were dropped on
9.1.2009 with the following observation:
"........ When the matter came up for hearing today,
the Counsel for the respondents has produced a letter dated 07.01.2009
undertaking that the Orders have been complied with. Copy of the letter may be kept on record. Both Counsels agreed that the Contempt
Petition be closed. In the circumstances
Contempt Petition is dropped. No costs.
Notices issued if any is withdrawn."
5. The letter dated 7.1.2009 quoted above,
however, categorically states that "the applicants shall be
considered in accordance with the law and as per their eligibility
criteria." Thus, the
contempt was dropped not because the applicants were given preference but
because an assurance was given that they shall be considered as per law.
6.
The applicants submit that despite the
undertaking, the Respondents have not given justice and employment to the
applicants. They have simply sent a
letter dated 07.08.2009 (Annexure-A/10), to say that "the matter is
in process and on completion of the same, the applicants would be communicated
shortly". An identical
reply was also given on 24.8.2009 for the Respondent No.3.
7.
When no relief came forth, the 3 applicants have
filed this OA praying for the following reliefs:-
i) to direct the respondents to immediately
consider the case of the applicants and provide them suitable employment in
pursuance of Annexure-A/8, dated 7.1.2009 and
(ii) to grant such other relief/s as this Tribunal
deems fit in the circumstances of the case.
8. In the reply statement as well as
during hearing, the learned counsel for respondents have relied on the wordings
of the respondent's letter dated 07.01.2009 which says that "the
applicants shall be considered in accordance with the law and as per their
eligibility criteria". The
learned consel would submit that the applicants must undergo the process of
departmental examination and also must satisfy educational criterion. He has referred to Annexure-R/7 which is a
notification published in the Employment News for the week 4-10 December, 2010
wherein the scheduled date of applying was upto 31st December, 2010
and examination was 27.2.2011. He
pointed out that the applicants have neither applied nor offered to take up the
examination and hence, they cannot be accommodated. The learned counsel, however, conceded that
all the applicants possess the required educational qualification, viz.,
passing of matric/equivalent qualification and that they are physically
handicapped and that they have rendered 2-3 years of continuous service before
they were terminated in 1994 and also that the matter is being agitated since
1994.
9. During the pendency of the OA, the
applicants were forced to file M.A. No.17/2011 on 17.01.20011 with an interim
prayer. The learned counsel for
applicants pointed out to Annexure-A/13, which is the same notification quoted
at Annexure-R/7. A mere glance would
show that several vacancies are available with the Respondents. The applicants claim that in view of the
matter being agitated before this Tribunal since 1994 and in view of the
undertaking given by the Respondents, the applicants are entitled to be
appointed against the 3 available vacant posts.
The interim prayer was therefore made for reserving 3 posts under Group
'C' for the applicants. After noting
that the MA has been served on the Respondents a week before, the Tribunal
examined it and passed the interim order directing the Respondents to reserve 3
posts under the category for the instant applicants from out of the 8 vacancies
that were available as per Annexure-A/13.
It is noted that the actual number of vacancies may be 7, yet, the
effective direction is to reserve 3 posts irrespective of the number of
vacancies. The Tribunal has also noted
that although, no interim prayer has been made in the Original Application, the
applicants had trusted the assurances given by the Respondents in not asking
for any interim order earlier, but, are now compelled in view of the employment
notification.
10. We have heard both the counsels at length
and also perused all the pleadings as well as the judgments. We are of the view that the Respondent
department has not acted in a fair manner.
We do not agree with the contention of the Respondents that the
applicants have to be subjected to the process of selection by way of
examination as prescribed in notification.
This interpretation of the undertaking dated 07.01.2009 given by the
Respondents is not acceptable. The
Respondents were under obligation to comply with the order dated 22.02.1994
passed by this Tribunal in OA No.8/1994 and 197 to 206/1994 wherein they were
specifically directed to maintain a comprehensive list of employees whose
services were terminated and appoint them in a regular manner as and when the
vacancies arises. The wording used
therein, viz., "subject to their eligibility under the rules" can
only be construed as the required educational qualification and age criterion
as on the date of their termination which is 1994. All the judgments including the judgment of
the Hon'ble High Court of Karnataka in WP No.34689 & 36561 of 2002 (S-CAT),
do not stipulate that the applicants who have already rendered 2-3 years of
useful service in the department as early as in 1994, should be subjected to
qualifying examination.
11. In view of the above, the OA is
allowed. The Respondents are directed to
appoint the 3 applicants in the regular vacant posts forthwith. This exercise shall be completed within a
period of one month from the date of receipt of a copy of this order. The Respondent No.1, i.e., Union of India,
Ministry of Home Affairs, will also pay a token cost of Rs.2,000/- to each of
the 3 applicants for failure of their officers from 1994 onwards to comply with
the direction given in OA No.197 to 206 of 1997.
(V. AJAY
KUMAR) (LEENA
MEHENDALE)
MEMBER (J) MEMBER (A)
psp.
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