Central Administrative Tribunal Principal Bench, New

O.A. No.2235/2015

This the 30th day of September, 2016

Hon’ble Shri P.K. Basu, Member (A)

1. Smt. Beena Devi, Aged 35 years W/o Sh. Guru Sharan Working as Cook in G.S.S.S.B.B. Sewakutir Kingsway Camp, Delhi-09 R/o H.No.79, Block-B, Gali No.2 Kadi Vihar, Delhi-110036.

2. Shivam, Aged 27 years, S/o Sh. Sukai Working as Kitchen Helper in H.C.G.B.S. Sewakutir Kingsway Camp, Delhi-09 R/o 75, T-Huts Outram Line G.T.B. Nagar, Delhi.

3. Upender Yadav, Aged 30 years S/o Sh. Charitra Yadav Working as Kitchen Helper (Cook) in H.C.G.B.S. Sewakutir Kingsway Camp, Delhi-09 R/o 31, T-Huts, Gopal Pur Village Dr. Mukerjee Nagar, Delhi-110009.

4. Smt. Bimala, Aged 41 years W/o Sh. Sanjeevan Working as Cook in G.S.S.S.B.B. Sewakutir Kingsway Camp, Delhi-09 R/o 75, T-Huts, Outram Line G.T.B. Nagar, Delhi.

5. Smt. Anita Devi, Aged 43 years W/o Sh. Jhabbar Singh Rawat Working as Cook in G.S.S.S.B.B.. Sewakutir Kingsway Camp, Delhi-09 R/o D-990, Gali No.7, Village Nathupura , Delhi-110084.

6. Smt. Renu Devi, Aged 29 years W/o Shri Vinod, Working as Kitchen Helper in G.S.S.S.B.B. Sewakutir Kingsway Camp, Delhi-09 R/o 159, Gali No.1, Gopalpur Village 2 OA No.2235/2015

Dr. Mukerjee Nagar, S.O. North West Delhi

Delhi-110009.

7. Smt. Sushma, Aged 35 years W/o Shri Jai Prakash Working as Aaya in G.S.S.S.B.B. Sewakutir Kingsway Camp, Delhi-09 R/o H.No. 389, Gali No.7B Surender Colony, Part-II, Jharoda, Burari Delhi-110084.

8. Smt. Jasman, Aged 31 years W/o Shri Temba Tirkey Working as Kitchen Helper in G.S.S.S.B.B. Sewakutir Kingsway Camp, Delhi-09 R/o H.No.139, Gali No.1, Village Gopalpur North West Delhi, Delhi-09.

9. Smt. Seema, Aged 43 years W/o Shri Ashok Kumar Working as Safaiwala in G.S.S.S.B.B. Sewakutir Kingsway Camp, Delhi-09 R/o H.No.2613, Jahangirpuri EE .

10. Smt. Samima Khatoon, Aged 31 years W/o Shri Subhan Ansari Working as Aaya in G.S.S.S.B.B. Sewakutir Kingsway Camp, Delhi-09 R/o Gali No.49, Hanuman Kunj B-Block, Sant Nagar, Burari, Delhi-110084. ..Applicants

(By Advocate: Shri Yogesh Sharma)

Versus

1. Govt. of NCT of Delhi Through the Chief Secretary New Sectt. Building, IP Estate New Delhi.

2. The Secretary Department of Social Welfare Govt. of NCT of Delhi, GLNS Complex Delhi Gate, Delhi.

3. The Director Department of Social Welfare Govt. of NCT of Delhi, GLNS Complex 3 OA No.2235/2015

Delhi Gate, Delhi. …Respondents

(By Advocate: Ms. Sumedha Sharma)

O R D E R (ORAL)

The applicants admittedly are appointed on Daily Wage basis to work as Cooks(3), Kitchen Helpers(4), Aaya (2) and

Safaiwala(1). Learned counsel for the applicant states that they have been working on daily wage basis in the Blind Boys school for a long period of time as indicated by them in para 4.1 which is reproduced below:-

S.No. Name Date of Appointment 1. Beena Devi, Cook 2003 2. Shivam, Kitchen Helper 2011 3. Upender Yadav, Kitchen Helper 2003 4. Smt. Bimala, Cook 2009 5. Smt. Anita Devi, Cook 2005 6. Renu Devi, Kitcher Helper 2011 7. Sushma, (Aaya) 2012 8. Jasmani, Kitchen Helper 2004 9. Seems, Safaiwala 2009 10. Samima, Aaya 2011

2. It is further stated by learned counsel for the applicants that all of a sudden w.e.f. 24.06.2015 these applicants have not been allotted any work and their services discontinued. When they inquired about this from the department, they were told that the

Govt. has decided to outsource their jobs on the direction of

Finance Department.

3. Learned counsel for the respondents relies on judgment of this Tribunal in OA No.3972/2013 with OA No.666/2014 dated

02.05.2014 in which Welfare Officers appointed on ‘contract basis’ 4 OA No.2235/2015

had approached this Tribunal and after considering various judgments of Hon’ble Supreme Court/High Courts, this Tribunal had directed that the applicants in that OA would be allowed to continue till process of regular appointment is completed. The relevant part of the said order reads thus:-

“12. Under these circumstances, we tend to agree with the prayer of the applicants that they be allowed to continue till regular persons are appointed, which will be in the near future. The Honble Supreme Court has held in Indian Drugs & Pharmaceuticals Ltd. (supra) that temporary employees have no right to the post and that regularization can only be done in accordance with the rules and not de hors the rules. In this case, the applicants are not asking for regularization rather they are ready to face the examination and come in through the normal selection procedure. As stated earlier, the respondentscase is that they need these hands as is evident from their action of recruiting Welfare Officers on regular basis. Therefore, the principle laid down in the aforesaid judgment will not be violated as regularization will only be done as per rules. All that is being prayed is that these young boys and girls who have worked for considerable time and whose services are still required by the respondents, be continued till the regular employees are in place.

13. We, therefore, set aside the order dated 8.11.2013 and direct the respondents to release the salary of the applicants for the period upto 8.11.2013 and beyond (i.e. till the date they have actually worked) within a period of one month from the receipt of a copy of this order. The respondents may complete the process of regular appointment expeditiously and till such time allow the applicants to continue. If after the regular appointments are made some number of contractual Welfare Officers are declared surplus, respondents will follow the principle of last in first outto terminate their service. No costs.”

4. Learned counsel further relies on order dated 30.07.2014 passed in OA No.1359/2013 which was disposed of in terms of the

Order dated 02.05.2014 passed in OA No. 3972/2013, quoted 5 OA No.2235/2015

above. He also relied on the order in OA No.2149 dated

12.08.2016, which had been filed by Programme Assistants hired on ‘contract basis’ in which the Tribunal relied on the judgment dated 03.11.2014 passed by the Hon’ble High Court of Delhi in

WP(C) No.1741/2014 in which the Hon’ble High Court had basically laid down the principle that even outsourcing would tantamount to mean replacing one set of contract employees with another set of contract employees which was against the principle laid down by the Hon’ble Apex Court.

5. Learned counsel for the respondents first of all clarified that the applicants are hired on daily wage basis from the open market.

It is stated that the House Father of the hostel/School gets the menial work through open labour market according to the day-to- day requirement of work. She further contended that in all the cases cited by the learned counsel for the applicants, the applicants were working on ‘contract basis’ whereas in the present case, the applicants were appointed on daily wage basis.

Therefore, it is her contention that none of those judgments can be cited as precedents.

6. I have heard the learned counsel for both the parties and also perused the various judgments cited by both sides. From the office order annexed to the OA dated 08.02.2013, it is clear that the applicants have been appointed on daily wage basis. However, the contention of the learned counsel for the respondents does not seem to be acceptable that Cooks and the Helpers have been 6 OA No.2235/2015

picked up from open market at random on daily basis. I cannot over look the fact that this is a school meant for specially abled children such as children who are blind, deaf and dumb. I do not suppose Delhi Govt. to be as callous as to appoint every day someone as a Helper or Aaya or Cook on a day-to-day basis. It is difficult to understand how the House Father of the hostel, looking at a crowd of men/women in open market will decide which one of them is competent enough to be a cook, helper and Aaya to the specially abled children. The fact, therefore, remains that, though on daily wages, the applicants have been retained by the respondents on a continuous basis. It is agreed that the applicants in this case are Daily Wagers whereas the applicants in the cases cited by the learned counsel for the applicants were all on contract basis but the basis principle laid down by the Hon’ble

High Court in its judgment dated 03.11.2014 remains and the respondents’ argument is rejected.

7. I, therefore, dispose of this OA with a direction to the respondents to continue the services of the applicants till such time they are replaced by candidates who are appointed through a regular procedure. No costs.

( P.K. Basu ) Member (A) /vb/