Full Judgment
HON’BLE SHRI GEORGE PARACKEN:
1. Both these OAs are identical and, therefore, they are disposed of by this common order. The main prayer in these OAs is to direct the respondents to allow them to perform their duties as Safaikaramchari till regular incumbents are recruited.
2. According to the respondents, the first applicant in OA-1252/2011, namely, Ms. Kanta was engaged as substitute Safaikaramchari in DMS w.e.f. 16.3.2008 and she worked there upto June 2009. Similarly, the applicant No.2 Ms. Rekha was engaged w.e.f. 1.2.2007 and there she worked upto December 2008.
3. In the case of OA-1228/2011 applicant No.1, Sh. Sunil Kumar was engaged w.e.f. 2.5.2008 and he worked upto March 2009, the applicant No.2 Sh. Hari Prakash was engaged w.e.f. 2.6.2007 and he worked upto May 2009, the applicant No.3 Sh. Rajesh was engaged w.e.f. 2.6.2007 and he worked upto May 2009, the applicant No.4, Sh. Krishan Kumar was engaged w.e.f. 2.4.2008 and he worked upto May 2009, the applicant No.5 Seema Devi was engaged w.e.f. 4.12.2006 and he worked upto June 2009, the applicant No.6 Sunita was engaged w.e.f. 1.2.2008 and he worked upto April 2009 and the applicant No.7 Sh. Sandeep was engaged w.e.f. 10.12.2008 and he worked upto June 2009.
4. They have also submitted that none of the aforementioned applicants have completed 240 days in any calendar year.
5. Further, they have submitted that the applicants have suppressed certain material facts and tried to mislead this Tribunal. According to them, two panels of 3772 and 2299 substitute Safaikaramcharis were prepared by the department concerned but the same was scraped by the competent authority by order dated 31.10.2008 on account of certain irregularities in the preparation of the said panels. Thereafter, a panel of 10393 substitute Safaikaramcharis was prepared by the then Dy. Commissioner, Najafgarh whereas he was directed to prepare a panel of only 2500 substitute Safaikaramcharis. Therefore, the said panel was also scraped by the competent authority vide its order dated 2.6.2009. Applicants were included in the aforesaid panels. Thereafter the respondents have directed the Dy. Commissioner Najafgarh Zone vide letter dated 28.8.2009 to prepare a fresh panel of about 2500 substitute Safaikaramcharis on the basis of certain prescribed criteria. The applicants’ name did not figure in the said list as they did not fulfil those conditions. Therefore, these OAs are liable to be dismissed.
6. According to the learned counsel for applicants in these OAs, the applicants are not seeking any regularization of service for the time being and therefore the question of 240 days casual service by them in any calendar year does not arise. On the other hand, the relief sought by the applicants is only to limited extent that they should be allowed to continue to work as Safaikaramcharis as the work is available and they shall not be replaced by any freshers and outsiders.
7. The learned counsel has also submitted that respondents have not given any reason as to why they have not been included in the new panel of 2500 Safaikaramcharis prepared by the Dy. Commissioner, Najafgarh zone in terms of the respondents’ letter dated 28.8.2009. Even though the respondents in OA-1228/2011 have submitted very vaguely that they were not fulfilling the criteria fixed for such empanelment, in OA-1228/2011, what they have stated is that their claim is hit by limitation.
8. The learned counsel for applicant, Sh. Apurb Lal has also relied upon the judgment of the Apex Court in the State of Haryana Vs. Piara Singh, 1992 (4) SLR 770. The relevant part of the said judgment reads as under:
“25. Before parting with this case, we think it appropriate to say a few words concerning the issue of regularisation of ad hoc/temporary employees in government service.
The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employees by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/ appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc /temporary employee.
Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee should not be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response there to should be considered fairly.
An unqualified person ought to be appointed only when qualified persons are not available through the above processes.
If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.
The proper course would be that each State prepares a scheme, if one is not already i n vogue, for regularisation of such employees consistent with its reservation policy and if a scheme is already framed, the same may be made consistent with our observations herein so as to reduce avoidable litigation in this behalf. If and when such person is regularised he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be.
So far as the work-charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell - say two or three years -- a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this court, security of tenure is necessary for an employee to give his best to the job. In this behalf, we do commend the orders of the Government of Haryana (contained in its letter dated 6-4-90 referred to hereinbefore) both in relation to work charged employees as well as casual labour.
We must also say that the orders issued by the Governments of Punjab and Haryana providing for regularisation of ad hoc/temporary employees who have put in two years/ one year of service are quite generous and leave no room for any legitimate grievance by any one.
These are but a few observations which we thought it necessary to make, impelled by the facts of this case, and the spate of litigation by such employees. They are not exhaustive nor can they be understood as immutable. Each Government or authority has to devise its own criteria or principles for regularisation having regard to all the relevant circumstances, but while doing so, it should bear in mind the- observations made herein.”
9. We have heard the learned counsel for the parties. First of all, we find from the respondents’ own submission that the fresh panel of 2500 Safaikaramcharis has been prepared by them in exclusion of the applicants. It is not clear from their reply as to when the actual panel has been prepared. In any case, the applicants’ grievance arises only when they are not re-engaged. Therefore, there is no question of any limitation in this case. Secondly, the contention of the respondents is that in the panel of 2500 Safaikaramcharis prepared by the respondents, the applicants were not included because they have not fulfilled the prescribed criteria. Even in the reply affidavit, they have not mentioned what those criteria are and what way the applicants do not fulfill them.
10. In view of the above facts and circumstances of the case, we dispose of both these OAs with the direction to the respondents to individually inform the applicants, the criteria fixed by them for inclusion of names in the panel of Safaikaramcharis prepared by them in terms of their letter dated 28.8.2009 and what way the applicants in these cases have not fulfilled those criteria. The respondents shall pass detailed and speaking order in their cases under intimation to them within a period of two months from the date of receipt of a copy of this order. However, if the respondents find that the applicants are excluded without sufficient reasons, they shall include their names in the panel considering the earlier service rendered by them. However, if the decision of the respondents’ goes against the applicants, they are at liberty to challenge the orders passed in their respective cases. There shall be no order as to costs.