Central Administrative Tribunal - Ernakulam
R.Indira Devi vs Union Of India on 10 November, 2010
1
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.862/2009
Wednesday, this, the 10th day of November, 2010
CORAM:
HON'BLE MR.JUSTICE K.THANKAPPAN, JUDICIAL MEMBER
HON'BLE MR.K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER
R.Indira Devi,
Hari Sree Nivas,
Kannamkarakonam,
Attingal P.O., Pin-695 101
Thiruvananthapuram District. .. Applicant
By Advocate:Shri Martin G.Thottan & Mr.Thomas Mathew
vs.
1. Union of India,
Represented by the Secretary,
Department of Telecommunications,
Ministry of Communications,
Sanchar Bhavan, New Delhi.
2. The Chief General Manager,
Telecom, BSNL, Thiruvananthapuram,
Pin-695 033.
3. The Principal General Manager,
Telecom, BSNL,
Thiruvanthapuram.
4. The Sub Divisional Officer,
Telecom, BSNL, Attingal.
5. Asst. Director General(Pers-iv),
BSNL Corporate Office, New Delhi. .. Respondents
By Advocate: Shri Thomas Mathew Nellimoottil, ACGSC(R1)
Mr.Johnson Gomez(R2-5)
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ORDER
HON'BLE MR.JUSTICE K.THANKAPPAN, JUDICIAL MEMBER:-
The applicant is the widow of one S.Babu, a casual mazdoor who has been working at the office of D Sub Divisional Engineer, Telecom, Attingal who died on 21.1.2009.The applicant filed this Original Application aggrieved by the order dated 5th January, 2008 issued by the BSNL at the office of the Principal General Manager, Telecomunications, BSNL Bhavan, Trivandrum, by which the request for regularisation of the services of the said Babu, a casual mazdoor, has been rejected. The applicant also prayed in the O.A. that the deceased Babu, the husband of the applicant, is entitled to be regularised with effect from 1.10.2000 or even at least with effect from 1.4.2003 and that the applicant is entitled to family pension with effect from the date of the death of her husband with all consequential benefits and arrears. The applicant also prayed that the respondents may be directed to pay the arrears of wages of her deceased husband to the applicant which he was entitled.
2. The brief facts which are necessary to decide the O.A. are as follows. The husband of the applicant was engaged as casual mazdoor and was working in the office of the Sub Divisional Engineer, Telecom, Attingal from January 1985 and he was disengaged for want of 3 sponsorship by the Employment Exchange. However the casual labourers who had been engaged prior to 7.5.85 were exempted from sponsorship by the Employment Exchange and hence the husband of the applicant filed O.A.No.270/1991 and the said O.A. has been disposed of by this Tribunal directing the husband of the applicant to file a representation to the Telecom District Manager with necessary documents to pass an order in the representation. Consequently the applicant was issued the casual labour card No.TV/TD/38 dated 1.2.1993 and an identity card also has been issued and as the husband of the applicant worked from 1993 onwards up to 1996 for different periods covering more than 362 days average in an year, the applicant's husband became eligible for assignment of temporary status under the provisions of the Casual Labourers(Grant of Temporary Status and Regularisation)Scheme issued the Department and as per the subsequent clarifications issued. However as temporary status has not been assigned to the husband of the applicant, the husband of the applicant filed O.A. 1453/97 and as the orders issued by this Tribunal in the above O.A. has not been complied, the husband of the applicant filed O.A.No.1723/98 and the said O.A. has been disposed of by this Tribunal by the order dated 7th July, 2001 declaring that the husband of the applicant was entitled to assign temporary status as per the Casual Labourers (Grant of Temporary Status & Regularisation)Scheme with effect from 1.4.1994 on which date he had 4 completed one year of casual service with all consequential benefits. The said order of this Tribunal has been challenged before the Hon'ble High Court of Kerala in O.P.No.1315/2002. However the Writ Petition was dismissed confirming the order passed by this Tribunal. In spite of the dismissal of the Writ Petition the respondents have not conferred the temporary status to the applicant's husband. Again the applicant's husband filed a contempt case against the respondents as C.P(C) No.20/2002 and thereafter the respondents conferred temporary status to the husband of the applicant in the light of the findings entered into by this Tribunal and the husband of the applicant was paid a lumpsum of Rs.19,444/- as his arrears of the wages including DA,HRA and CCA etc. In spite of the order passed by this Tribunal as the respondents had not given the entire benefits of the husband of the applicant he filed a representation to the third respondent which was again reminded by another representation. As these representations were not considered properly, the husband of the applicant was compelled to file W.P.(C) No.559/2006 before the Hon'ble High Court of Kerala for a declaration that the husband of the applicant is entitled to be regularized in service with all consequential benefits. The said W.P. Was disposed of by the Hon'ble High Court as per the judgment dated 11.1.2006 by directing the third respondent to consider the case of the husband of the applicant by disposing of the representation. 5 Consequently the present impugned order has been passed on 5.1.2008, a copy of which is produced in the O.A. as Annexure A19.
3. The O.A. has been admitted by this Tribunal and in pursuance to the receipt of the notice ordered by this Tribunal, a reply statement has been filed for and on behalf of the respondents 2 to 5. The main stand taken in the reply statement filed on behalf of the respondents 2 to 5 are that the present applicant has no locus standi to file the O.A. as the respondents have not infringed any of the legal rights or constitutional right of the applicant. Since the applicant wants to enforce a right which has not accrued on the deceased Babu, the husband of the applicant, the applicant cannot challenge the order impugned as the claim of the applicant was personal. Further it is stated that as the order of this Tribunal has been complied conferring the temporary status on the husband of the applicant with effect from 1.4.1994 on the basis of the order given by this Tribunal in O.A. 1723/98 and the husband of the applicant has already expired on 1.1.2009 the applicant cannot file an O.A. for enforcement of a right of her deceased husband. Further it is stated that the husband of the applicant was paid an amount of Rs.19,444/- on 23.4.2002 as arrears and the calculations made thereunder of the order issued was correct and the claim now put forward for more amount by the applicant, is misconceived. Further 6 there is no cadre as temporary status mazdoor in BSNL. Even if a temporary status mazdoor happens to be in BSNL he shall be treated as unabsorbed category of employees in the BSNL. The wages and all other benefits were already granted to the husband of the applicant as a Group D employee on assigning him the temporary status mazdoor in the parent Department and his wages were already calculated applying the pattern of wages applicable to CDA category of regular Group D employees. Further it is stated that the rejection of the representation filed by the husband of the applicant for regularization has been based on the judgment of the Apex Court pronounced in Secretary, State of Karnataka and others vs. Uma Devi and others and applying the principle it is found that the husband of the applicant is not entitled for regularization. It is further stated in the reply statement that even though as per the direction given in the of W.P. No.55/2006, steps were taken with the BSNL Corporate Office, New Delhi, for approval. The decision of the Hon'ble Apex Court in Uma Devi's case came into force and applying the principle laid down by the Apex Court the impugned order has been passed. It is further stated in paragraph 19 of the reply statement as follows:-
"19. With regard to the averments in paragraph 4(23) of the original application, it is submitted that the principle of law laid down by the Hon'ble Supreme Court in Para 34 of Umadevi's case is not applicable in the case of Shri S.Babu is made out of misconception and the same is made intentionally 7 to mislead the Hon'ble Tribunal. The selection of Sri S.Babu as casual mazdoor and as Temporary Status Mazdoor has never been through any process of selection nor his appointment been in terms of the relevant rules. Sri S.Babu was issued casual labour card as directed by the Tribunal in O.A. 1121/1991 and he was conferred with temporary status based on the directions of the Tribunal in O.A. 1723/1998 and these cannot be said to be the due selection procedure as per the rules. The Casual Labourers(Grant of Temporary Status and Regularization) Scheme of the Department of Telecommunications 1989 under the provisions of which Sri S.Babu was ordered to be conferred with temporary status with effect from 01.04.1994 by the Tribunal was a one time scheme and not an ongoing scheme as held by the Hon. Tribunal through various decisions. The scheme being a one time scheme cannot be made applicable in the case of Sri S.Babu who was not a Casual Mazdoor on 01.10.1989 with the Department of Telecommunications. The Hon'ble Tribunal in O.A 605/2002 and other cases had held citing the decision of the Apex Court in Union of India .v. Mohanpal that "the scheme not being an ongoing one but only a one time dispensation, the applicants who did not satisfy the requirement of the scheme cannot claim grant of temporary status". In the very recent case T.A. 75/2008, the Hon'ble Tribunal has declared that a casual labourer ought to be in casual service on the crucial date 01.10.1989 as provided in the Casual Labourers(Grant of Temporary Status and Regularization)Scheme 1989 for becoming eligible for the benefits available under the scheme. The Hon'ble Supreme Court of India also has held that the scheme is a one time scheme and not an ongoing scheme. According to the scheme temporary status would be conferred on all casual labourers currently employed on 01.10.1989 and who have rendered a continuous service of at least one year, out of which they must have been engaged on work for a period of 240 days (206 days in the case offices observing five day week) and they must have been engaged as Casual Labourers for the first time prior to 30.03.1985, the date of ban on engagement of Casual Mazdoors in the Department of Telecommunications. Sri S.Babu had no case that he was currently engaged as a casual labourer on 01.10.1989 and hence he would not come under the purview of the 1989 scheme. The Hon'ble Tribunal in O.A. 1723/1998 had made the scheme an ongoing one and 8 ordered the respondents herein to extend the benefits available under the scheme to Sri S.Babu. In the circumstances, the rejection of the claim for regularisation in the case of Shri S.Babu is fair and is in order. The stipulation in the 1989 scheme that vacancies in Group D post should be filled by regularization of Casual Labourers means that Group D post will be filled by regularizing Casual Labourers who become eligible for the same at the appropriate time. It does not speak of regularization of those who do not fulfil the conditions for regularisation. Sri S.Babu has no case that these respondents have appointed people to the cadre of Group D through other means. These respondents have not made any new appointment in the cadre of Group D after 1986 in view of the ban on appointments imposed by the Government. Sri S.Babu who was granted Temporary Status as per the direction of the Hon'ble Central Administrative Tribunal, Ernakulam Bench does not become eligible for regularisation in view of the decision of the Hon'ble Supreme Court in the case of Umadevi & Other. As already submitted, the case involved in O.A. 45/2000 is different from that of Sri S.Babu. "
Further it is stated in paragraph 25 of the reply statement as follows:-
"25. With regard to the contentions in Ground B of the original application, it is submitted that Annexure A19 order passed by the respondents rejecting the claim of Shri S.Babu for regularization was based on the latest position of the rules governing the matter. The A19 order was passed in the light of the law laid down by the Hon'ble Supreme Court of India in Secretary, State of Karnataka & others. vs. Umadevi & Others and the said decision is fully applicable in the case of Sri B.Babu. Sri S.Babu has not come through any due process of selection based on the rules. On the contrary he was issued casual labour card and conferred with Temporary Status as per the directions of the Tribunal. This cannot be understood to be the due selection process. The Hon'ble Tribunal had directed conferment of Temporary Status on Sri S.Babu under the provisions of the Casual Labourers (Conferment of Temporary Status and Regularisation) Scheme,1989 which was a onetime scheme and not an ongoing scheme as held by the Hon'ble Tribunal itself, the High Court and the Supreme Court on many occasions. The 9 scheme was applicable in the case of those casual labourers who were currently employed as casual labourers on 01.10.1989. Despite the above position, the Hon'ble Tribunal proceeded to order conferment of Temporary status on Sri B.Babu in contravention of the provisions of the scheme and the law declared by the Tribunal and the courts including the Apex Court. These respondents made correspondence with their corporate office at Delhi requesting sanction for regularizing the services of Sri S.Babu being quite unaware of the decision of the Apex Court. Had the said decision come to the notice of these respondents, they would not have referred the case to corporate office, instead, an order denying regularization would have been issued to Sri S.Babu much earlier. Hence, the rejection of the claim for regularization through the A19 order is just, legal and proper."
Finally it is stated that CCS Pension Rules are not applicable to the case of the husband of the applicant as the same are applicable to regular employees and if so, the applicant's husband is not entitled for getting a pension on regularization of the husband of the applicant in service with effect from 2000 or 2003.
4. On receipt of the reply statement a rejoinder has been filed on behalf of the applicant reiterating the grounds urged in the O.A. and further it is contended that the husband of the applicant was entitled to be regularized with effect from 1.10.2000 in view of the fact that several other casual labourers who have been granted temporary status with effect from 1.10.1995 have been regularized in service with effect from 1.10.2000.To prove the above, Annexures A12 to A14 were also produced 10 alongwith the rejoinder filed on behalf of the applicant.
5. On receipt of the rejoinder an additional reply statement also has been filed on behalf of the respondents 2 to 5. In the additional reply statement the same stand taken in the earlier reply statement has been reproduced and further stated that the husband of the applicant is not entitled to get the benefit of an order passed by this Tribunal in O.A.No.45/2000 and the case of the applicant's husband has been properly considered and issued the impugned order.
6. We have heard the learned counsel appearing for the applicant Mr.Martin G.Thottan, Mr.Varghese John for Mr.Thomas Mathew Nellimoottil(R1) and Mr.Johnson Gomez for Respondents 2 to 5.
7. The contention of the counsel for the applicant Mr.Martin G.Thottan are of threefold. Firstly the learned counsel submits that as the husband of the applicant was conferred temporary status with effect from . 1.4.1994 on the basis of the order passed by this Tribunal all monetary benefits entitled by the husband of the applicant from 1.4.1994 to 30.4.2002 has to be granted to the applicant as the applicant alone is the legal heir to succeed the assets of the deceased husband of the applicant. The total amount due to the husband of the applicant with effect 11 from 1994 to 2002 as furnished by the second respondent does not contain any details such as DA,HRA,CCA etc. applicable to a Group D employee. The counsel further submits that as per the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme, hereinafter to be referred as the 'Scheme' (a copy of which is produced as Annexure A6) the husband of the applicant is entitled to all monetary benefits which are applicable to a Group D employee. If calculation is made under the Scheme the deceased husband of the applicant should get more than Rs.65000/- and if so on this score itself Annexure A19 has to be quashed by this Tribunal. Secondly the counsel submits that as the husband of the applicant has been conferred with temporary status on the basis of the findings entered and the order made by this Tribunal in O.A.No.1723/98 and there are vacancies existed to regularize the husband of the applicant considering the grant of temporary status with effect from 1994 and the reason that there existed vacancies and the applicant's husband was allowed to continue in service till 2009 the services of the husband of the applicant ought to have been regularized at least with effect from the formation of the BSNL by the Department, namely with effect from 1.10.2000. Further the counsel submits that as the husband of the applicant was selected as a casual mazdoor issuing a casual labour card numbered as TV/TD/38 dated 1.2.1993 and was conferred temporary status with effect from 1.4.1994 the services ought to have been 12 regularized as the husband of the applicant rendered a continuous service of more than 15 years and the husband of the applicant also has fulfilled the required educational qualification and conditions contained in the Scheme for regularization on conferring temporary status. The counsel also submits that vacancies in Group D in various offices of the Department of Telecommunications were there after the conferment of temporary status to the husband of the applicant and till the regularization of the services of the applicant's husband has not been considered by the Department. It is also submitted by the counsel that as per the order issued by the BSNL, Department of Telecom Service dated 25.9.2000, a copy of which is produced as Annexure A10, all the casual labourers not eligible for temporary status as on 1.9.98 were to be discharged forthwith and all employees who have been conferred temporary status have to be regularized. It is held further in that order that the casual labourers working in the Department including those who have been granted temporary status with effect from 1.10.2000, if so, the services of the husband of the applicant ought to have been regularized with effect from 1.10.2000. Thirdly the counsel contends that as per the order passed by this Tribunal in O.A. No.45/2000 similarly situated applicants were given regularization with effect from 1.4.2003 on the basis of the order passed by this Tribunal in O.A.No.45/2000 an complied by the order dated 14.1.2004 issued by the BSNL, a copy of 13 which is also produced as Annexure A14. The husband of the applicant has got the required educational qualification and who rendered a continuous service of more than 15 years conferred with temporary status with effect from 1.4.1994 and there were vacancies to regularize the temporary status employees as ordered by this Tribunal in several Original Applications, the same benefit can also be granted to the husband of the applicant.
8. In the light of the arguments of the learned counsel appearing for the parties and the stand taken in the reply statement it is to be decided that whether the applicant is entitled for the reliefs which he claimed or not. The applicant claims that her husband was appointed as a casual mazdoor after undergoing a selection process and as per the Scheme for assignment of temporary status. Her husband was confirmed as a temporary status employee with effect from 1.4.1994 and if so, he is entitled for getting all the benefits available to a casual employee who was conferred with temporary status as per the Scheme as DA,HRA,CCA etc. and on calculation the applicant's husband is entitled to more than Rs.65,000/-. This was answered in the reply statement and was contended by the respondents that the calculation was already made by the Department and an amount of Rs.19,444/- was already paid to the husband of the applicant. But on going through these contentions, it reveals that nowhere in the reply statement or any other document produced on behalf 14 of the respondents as to how they have arrived to such a calculation and if the husband of the applicant has been already conferred with the temporary status with effect from 1.4.1994, he is entitled for all the benefits available to such employees who are assigned with temporary status. This aspect has not been answered properly. If so, the claim of the applicant in this regard has to be reconsidered . Then the next question to be answered is that whether the husband of the applicant is entitled for regularization of his services at least with effect from 1.4.2000 or not. It is a fact revealed before us that as per the order passed by this Tribunal in O.A.No.1723/98 temporary status was conferred by the Department and the husband of the applicant was permitted to continue till his death on 1.1.2009 and it is brought to our notice that there were vacancies available to regularize the services of the husband of the applicant and the applicant's husband was in the seniority list or rather considered as senior to be regularized as per the findings entered by this Tribunal as well as in the light of the order passed by the Department dated 29.9.2000(Annexure A10). Even though it is the case stated in the reply statement that the conferment of temporary status and regularization as per Annexure A6 Scheme is not an ongoing process but intended as a one time measure, if any casual employees who fulfills the conditions contained in Annexure A6 Scheme is entitled for conferment of temporary status and regularization. In the above circumstances, the 15 stand taken in the reply statement is that since the judgment of the Apex Court in Uma Devi's case contemplates that the application of Annexure A6 Scheme is restricted to such casual employees who were appointed or engaged after undergoing a process of selection the Department has no case that the selection of the applicant as casual mazdoor was not based on any process of selection, but at the same time this contention was already considered by this Tribunal in O.A.No.1723/98 while ordering the conferment of temporary status to the husband of the applicant. Apart from that the order given by this Tribunal in O.A.No.45/2000 the similar stand taken was rejected by this Tribunal and granted the benefits of regularization. If so, the same yardstick can be used in the case of the husband of the applicant. Consequently the stand taken in Annexure A19 that the decision of the Apex Court in Uma Devi's case is applicable to the case of the husband of the applicant is incorrect and not the factual position. It is also brought to our notice that the husband of the applicant was continued as a casual employee for more than 15 years and got the temporary status with effect from 1.4.1994 and in the mean while all other casual employees who are conferred with temporary status have been regularized by the Department. If so, the husband of the applicant also is entitled for regularization. It is also brought to our notice that the stand taken in the reply statement that the case of the applicant would not come under the purview of Annexure A6 Scheme is not tenable as the 16 husband of the applicant fulfills the conditions laid down in the Scheme as he has completed more than 240 days (206 days in one year) and it is the case of the applicant that the husband of the applicant has worked more than 360 days for several years from 1.2.1993 on which date the husband of the applicant was issued with a casual labour card as TV/TD/38 and an identity card also has been issued and the husband of the applicant worked up to 1996 in different periods covering more than 362 days and it is proved that the applicant's husband has continued in the Department without regularization and not due to any fault on his part. In the above circumstances we are of the considered view that the husband of the applicant is entitled to be regularized at least with effect from 1.10.2000, the date of formal formulation of the BSNL or to be treated as permanently absorbed in the B.S.N.L. If such regularization is ordered in favour of the husband of the applicant he will be entitled for pension under the existing rules regarding pension and it is also the law that half of the period of the casual service can be counted for calculation of pension.
9. In the light of the discussions made in this order and the findings entered by us, the Original Application has to be allowed. Accordingly we quash Annexure A19 and direct the respondents to reconsider the case of the applicant by passing appropriate orders as early as possible, at any 17 rate within 90 days of the receipt of a copy of this order. Ordered accordingly.
(K.George Joseph) (Justice K.Thankappan) Member(A) Member(J) /njj/