Saturday, November 3, 2012

OA no 150 / 2010 on ?????????- 2011



TODAY, THIS THE           DAY OF ................. , 2011


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)


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)


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)


No comments:

Post a Comment