Central Administrative Tribunal - Delhi
Smt. Kuntesh vs Mahanagar Telephone Nigam Ltd on 28 March, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.144 OF 2013
New Delhi, this the 28th day of March, 2014
CORAM:
HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
1. Smt. Kuntesh,
Age 38 years,
w/o late Sh.Ram Kishan
2. Mohit Kumar,
Age 18 years,
s/o late Sh.Ram Kishran
Both residing at R/o H.No.647, Kamla Nehru Nagar
Ghaziabad (UP) .. Applicants
(By Advocate: Shri S.K.Gupta)
Vrs.
Union of India through
1. Secretary,
Department of Ayush,
Ministry of Health & Family Welfare,
IRCS Building, New Delhi 110001.
2. Director,
Pharmacopoeial Laboratory for Indian Medicine,
Department of Ayush,
Ministry of Health & Family Welfare,
Kamla Nehru Nagar,
Ghaziabad 2120002 Respondents
(By Advocate: Shri T.C.Gupta)
ORDER
Raj Vir Sharma, Member(J):
In this Original Application, the applicants have prayed for the following relief:
(i) quash and set aside the communication dated 16.10.2012 (Annexure A-1);
consider the case of the applicant No.2 for compassionate appointment with a view to provide immediate assistance to the family of deceased employee;
May also pass any further order (s), direction(s) as be deemed just and proper to meet the ends of justice.
2. Brief facts of the applicants case run thus: Applicant no.1 Smt. Kuntesh is the widow, and applicant no.2 Shri Mohit Kumar is the son, of Shri Ram Kishan, the deceased casual employee with temporary status. Shri Ram Kishan was initially engaged by respondent no.2 on casual basis in the year 1988 and was conferred temporary status with effect from 1.12.1993, vide office order dated 17.12.1993 (Annexure A-5), in accordance with the Casual Labourers (Grant of Temporary Status and Regularization) Scheme of the Government of India, 1993 (Annexure A-4). Though he worked for more than 10 years from the date of conferment of temporary status and was thus entitled to be regularized in service in the year 2003 as per the decision of the Honble Supreme Court in the case of State of Karnataka v. Uma Devi, (2006) 4 SCC 1, yet the respondents did not regularize his services. Even though his services were not regularized in Group D post, Shri Ram Kishan was enjoying all the benefits as that of a regular Group D employee. The representations dated 16.9.2009 and 4.3.2011 (Annexures A-7 and A-8) were made by Shri Ram Kishan to respondent no.2 to regularize his services, but to no effect. While continuing as a casual employee with temporary status, Shri Ram Kishan passed away on 28.3.2012, vide death certificate (Annexure A-9).
2.1 Applicant no.1 made representation requesting respondent no.2 to provide appointment to applicant no.2 on compassionate ground. The said representation was forwarded by respondent no.2 to respondent no.1, vide letter dated 18.6.2012 (Annexure A-10). Thereafter, applicant no.1 submitted another representation dated 21.8.2012 (Annexure A-12), in which it was stated by her that one Mrs.Premta Devi, whose husband died while working as a casual employee with temporary status, was employed in Homoeopathic Pharmacopoeia Laboratory on casual basis with temporary status. It was also stated by applicant no.1 that on the death of her husband, as condition of the family became indigent, her son might be appointed on compassionate ground. But respondent no.1, vide letter dated 16.10.2012 (Annexure A-12), did not accede to the request of applicant no.1 on the ground that as per rules appointment on compassionate ground could not be given to the dependant of deceased casual employee with temporary status. Hence, the applicants have filed the present Original Application seeking the relief referred to earlier.
2.2 In the Original Application, it is contended by the applicants that when Shri Ram Kishan, the deceased casual employee was initially employed in the year 1988 and was conferred with temporary status w.e.f. 1.12.1993, he was entitled to be regularized in service and in spite of his representations, the respondents did not regularize his services, and as such his family should not be made to suffer. It is also contended that in similar circumstances, Mrs.Premta Devi, the widow of one Shri Sripal, the deceased casual employee with temporary service, was employed as casual employee with temporary status. But respondent no.1 failed to take the said fact into consideration and arbitrarily rejected the applicants request, which is discriminatory. The respondents also failed to appreciate the facts that Shri Ram Kishan, the deceased casual employee with temporary status, died in harness leaving behind applicant no.1 widow, aged 38 years, and applicant no.2 son, aged 18 years and three other minor children, and that the deceased casual employee with temporary status being the sole breadwinner in the family, the members of the family remained in a state of penury on account of his death.
3. The respondents have filed a counter reply resisting the claim of the applicants. It is stated that as per the existing rule, applicant no.2 is not entitled to be appointed on compassionate ground since his father was working as a casual employee with temporary status only. Besides, one applicant, Shri Ravinder Kumar, son of late Shri Chattar Singh, ex-Laboratory Attendant, who was a regular employee in the office of respondent no.2, remained in queue for regular appointment on compassionate ground under 5% quota and could not be appointed as yet due to non-availability of vacancy since 1995 under the said quota. It is further stated that Pharmacopoeial Laboratory for Indian Medicine and Homoeopathic Pharmacopoeia Laboratory are two independent establishments. In reply to paragraph 4.7 of the O.A., the respondents state that the vacancy was meant for Pharmacy Attendant with Matriculation qualification and experience in Pharmacy and that the post was to be surrendered as the Section was closed in 1995. As the husband of applicant no.1 was not having essential educational qualification of Matriculation, he was not considered for regularization in service. In the counter reply, the respondents have referred to the decision of the Honble Supreme Court in the case of State of Haryana and others v. Rani Devi & others, JT 1996(6) SC 646, wherein it was observed that if the scheme regarding appointment on compassionate ground is extended to all sorts of casual, ad hoc employees, including those who are working as Apprentices, then such scheme cannot be justified on Constitutional grounds. In view of the above, the respondents have prayed for dismissal of the Original Application.
4. The applicants have filed a rejoinder reply controverting the stand taken by the respondents. It is stated by the applicants that there were vacancies available when Shri Ram Kishan, the deceased employee, was eligible to be regularized in services, but the respondents did not regularize his services. It is contended by the applicants that in similar situation, the Honble High Court of Delhi directed payment of family pension to the widow of the deceased casual employee with temporary service, vide judgment dated 25.8.2013 passed in W.P. ( C ) No. 3018 of 2012 in the case of Sharda Devi v. Union of India and others(Annexure Rej-1). In the rejoinder reply, the applicants have referred to the instructions contained in the DoP&T O.Ms. dated 9.10.2006 and 19.1.2007 (Annexure Rej-2) which stipulate that small Ministries/Departments, where no vacancy for compassionate appointment could be located under 5% quota for the last 3 years, may apply a more liberalized method of calculation of vacancies under 5% quota for compassionate appointment and add up the total of direct recruitment vacancies in groups C and D posts arising in each year for 3 or more preceding years and calculate 5% of vacancies with reference to the grand total of vacancies of such years, for locating one vacancy for compassionate appointment. It is, therefore, contended by the applicants that the plea of non-availability of vacancy under 5% quota taken by the respondents in their counter is untenable. It is also submitted by the applicants that in terms of the latest judgment of this Tribunal, the legal heirs of temporary status employee are entitled to be considered for compassionate appointment. The other averments contained in the rejoinder reply are more or less the reiteration of the facts and contentions as contained in the O.A.
5. I have carefully perused the pleadings and heard the learned counsel appearing for the parties.
6. The learned counsel for the applicants submitted that Shri Ram Kishan, the husband of applicant no.1, having initially been engaged by respondent no.2 in 1988 on casual basis and granted temporary status with effect from 1.12.1993, was entitled to be regularized in service in the light of the decision of the Honble Supreme Court in Uma Devis case (supra), but respondent no.2 did not regularize his services in spite of representations made by Shri Ram Kishan on 16.9.2009 and 4.3.2011 (Annexures A-7 ad A-8). The omission or commission on the part of the respondents in the matter of regularization of services of Shri Ram Kishan, who had served more than 10 years as casual employee with temporary status, should not lead to deprive the dependants of his family of employment assistance on compassionate ground. In support of his contention, the learned counsel relied on the decision of Ernakulam Bench of this Tribunal in the case of Smt. Chitra Babu v. Union of India and others, OA No.999 of 2011, decided on 14.8.2012.
6.1 The learned counsel appearing for the respondents, on the other hand, submitted that the decision of Ernakulam Bench of the Tribunal in Smt. Chitra Babu (supra) is not applicable to the case of the applicants in as much as the deceased casual employee with temporary status in that case was working in the Department of Posts where the scheme for grant of temporary status to casual labourers and regularization of their services is different from the Casual Labourers (Grant of Temporary Status and Regularization)Scheme of Government of India, 1993, under which Shri Ram Kishan, the husband of applicant no.1 was conferred temporary status. Besides, the learned counsel submitted that the Compassionate Appointment Scheme is not applicable to casual labourers with temporary status. In support of his submission, the learned relied on the decision of the Honble Supreme Court in the case of State of Haryana & ors v. Rani Devi and another, JT 1996 (6) SC 646.
7. In Uma Devis case (supra), the Constitution Bench of the Honble Supreme Court held that appointments made without following the due procedure of rules relating to appointment did not confer any right on the appointees and courts cannot direct their absorption, regularization or re-engagement nor make their service permanent, and the High Court in exercise of jurisdiction under Articles 226 of the Constitution of India should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment had been done in a regular manner, in terms of the constitutional scheme, and that the courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities, nor lend themselves to be instruments to facilitate the bypassing of the constitutional and statutory mandates. It was also held that a temporary, contractual, casual or a daily wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. However, the Honble Supreme Court made one exception to the above position, if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court of tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.
The decision in Uma Devis case (supra) casts a duty upon the concerned Government or its instrumentality to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. It was also directed that such one-time measure must be set in motion within six months from the date of its decision.
8. In the instant case, the deceased casual employee Shri Ram Kishan, the husband of applicant no.1, was conferred temporary status with effect from 1.12.1993, vide office order dated 17.12.1993 (Annexure A-5), in accordance with the Casual Labourers (Grant of Temporary Status and Regularization) Scheme of Government of India, 1993 (Annexure A-4).
8.1 Casual Labourers (Grant of Temporary Status and Regularization) Scheme of Government of India, 1993 (Annexure A-4), reads thus:
APPENDIX Department of Personnel and Training, Casual Labourers (Grant of Temporary Status and Regularization) Scheme.
1. This scheme shall be called Casual Labourers (Grant of Temporary Status and Regularization) Scheme of Government of India, 1993.
2. This scheme will come into force with effect from 1.9.1993.
3. This scheme is applicable to casual labourers in employment of the Ministries/Departments of Government of India and their Attached and Subordinate Offices, on the date of issue of these orders. But it shall not be applicable to casual workers in Railways, Department of Telecommunication and Department of Posts who already have their own schemes.
4. Temporary status.-(i) Temporary status would be conferred on all casual labourers who are in employment on the date of issue of this OM and who have rendered a continuous service of at least one year, which means that they must have been engaged for a period of at least 240 days (206 days in the case of offices observing 5 days week).
(ii) Such conferment of temporary status would be without reference to the creation/availability of regular Group D posts.
(iii) Conferment of temporary status on a casual labourer would not involve and change in his duties and responsibilities. The engagement will be on daily rates of pay on need basis. He may be deployed anywhere within the recruitment unit/territorial circle on the basis of availability of work.
(iv)Such casual labourers who acquire temporary status will not, however, be brought on to the permanent establishment unless they are selected through regular selection process for Group D posts.
5. Temporary status would entitle the casual labourers to the following benefits:-
(i) Wages at daily rates with reference to the minimum of the pay scale for a corresponding regular Group D official including DA, HRA and CCA. [Special Compensatory Allowance or Compensatory (City) Allowance or Composite Hill Compensatory Allowance, etc., i.e., only one of the compensatory allowance, more beneficial to them, can be taken into account for the purpose of calculating their wages.-O.M.No.3(2)/95-E.II (B), dated the 15th January, 1996] Benefits of increments at the same rate as applicable to a Group D employee would be taken into account for calculating pro rata wages for every one year of service subject to performance of duty for at least 240 days (206 days in administrative offices observing 5 days week) in the year from the date of conferment of temporary status.
Leave entitlement will be on a pro rata basis at the rate of one day for every 10 days of work. Casual or any other kind of leave, except maternity leave, will not be admissible. They will also be allowed to carry forward the leave at their credit on their regularization. They will not be entitled to the benefits of encashment of leave on termination of service for any reason or on their quitting service.
Maternity leave to lady casual labourers as admissible to regular Group D employees will be allowed.
50% of the service rendered under temporary status would be counted for the purpose of retirement benefits after their regularization.
After rendering three years continuous service after conferment of temporary status, the casual labourers would be treated on par with temporary Group D employees for the purpose of contribution to the General Provident Fund, and would also further be eligible for the grant of Festival Advance, Flood Advance on the same conditions as are applicable to temporary Group D employees, provided they furnish two sureties from permanent Government servants of their Departments.
Until they are regularized, they would be entitled to Productivity-Linked Bonus/Ad hoc Bonus only at the rates applicable to casual labourers.
6. No benefits other than those specified above will be admissible to casual labourers with temporary status. However, if any additional benefits are admissible to casual workers working in industrial establishments in view of provisions of Industrial Disputes Act, they shall continue to be admissible to such casual labourers.
7. Despite conferment of temporary status, the services of a casual labourer may be dispensed with by giving a notice of one month in writing. A casual labourer with temporary status can also quit service by giving a written notice of one month. The wages for the notice period will be payable only for the days on which such casual worker is engaged on work.
8. Procedure for filling up of Group D posts.- (i) Two out of every three vacancies in Group D cadres in respective offices where the casual labourers have been working would be filled up as per extant Recruitment Rules and in accordance with the instructions issued by Department of Personnel Training from amongst casual workers with temporary status. However, regular Group D staff rendered surplus for any reason will have prior claim for absorption against existing/future vacancies. In case of illiterate casual labourers or those who fail to fulfill the minimum qualification prescribed for the post, regularization will be considered only against those posts in respect of which literacy or lack of minimum qualification will not be a requisite qualification. They would be allowed age relaxation equivalent to the period for which they have worked continuously as casual labourer.
9. On regularization of casual worker with temporary status, no substitute in his place will be appointed as he was not holding any post. Violation of this should be viewed very seriously and attention of the appropriate authorities should be drawn to such cases for suitable disciplinary action against the officers violating these instructions.
10. In future, the guidelines as contained in this Departments OM, dated 7.6.1988, should be followed strictly in the matter of engagement of casual employees in Central Government offices.
11. Department of Personnel Training will have the power to make amendments or relax any of the provisions in the scheme that may be considered necessary from time to time.
8.2 The office order No.B-PLIM(2)/93-94/1323, dated 17.12.1993 (Annexure A-5) issued by respondent no.2, whereby temporary status was conferred to Shri Ram Kishan, the deceased casual employee, reads thus:
OFFICE ORDER In pursuance of Casual Labourrs (Grant of Temporary Status and Regularization) Scheme of Government of India, 1993 read with O.M.No.51016/2/90-Estt.(C) dated 10.9.1993 from the Department of Personnel Training, New Delhi, the Director is pleased to confer temporary status to Shri Ram Kishan in the post of Chowkidar in P.L.I.M., Ghaziabad w.e.f. the forenoon of 1.12.1993 till further orders on the terms and conditions mentioned below:
Conferment of temporary status to him would not involve any change in his duties and responsibilities. The engagement will be on daily rates of pay on need basis. He may be deployed anywhere within the recruitment unit/territorial circle on the basis of availability of work.
Temporary status will not however be brought on to the permanent establishment unless he is selected through regular selection process for Group D posts.
Wages at daily rates with reference to the minimum of the pay scale for a corresponding regular Group D official including DA, HRA and CCA.
Benefits of increments at the same rate as applicable to a Group D employees would be taken into account for calculating pro-rata wages for every one year of service subject to performance of duty for at least 240 days (206 days in administrative offices observing 5 days week) in the year from the date of conferment of temporary status.
Leave entitlement will be on a pro rata basis at the rate of one day for every 10 days of work, casual or any other kind of leave, except maternity leave, will not be admissible. He will also be allowed to carry forward the leave at his credit on his regularization. He will not be entitled to the benefits of encashment of leave of termination of service for any reason or on his quitting service.
50% of the service rendered under Temporary Status would be counted for the purpose of retirement benefits after his regularization.
After rendering three years continuous service after conferment of temporary status, he would be treated on par with temporary Group D employees for the purpose of contribution to the General Provident Fund, and would also further b eligible for the grant of Festival Advance/Flood Advance on the same conditions as are applicable to temporary Group D employees provided he furnishes two sureties from permanent Government servants of his Department.
Until he is regularized, he would be entitled to productivity linked Bonus/Ad hoc bonus only at the rates as applicable to casual labourers.
Despite conferment of temporary status, the service may be dispensed with by giving a notice of one month in writing. He can also quit service by giving a written notice of one month. The wages for the notice period will be payable only for the days on which he is engaged on work.
Sd/-Dr.R.U.AHMAD DIRCTOR
9. The applicants have not produced the copy of the order issued by respondent no.2 in favour Shri Ram Kishan in 1988 when he was initially engaged as a casual labourer/employee. They have neither produced any document showing the educational qualification of Shri Ram Kishan at the time of his initial engagement in 1988. Neither any averment has been made in the O.A., nor any material has also been produced before the Tribunal to show that Shri Ram Kishan was initially employed as casual employee/labourer in 1988 and subsequently conferred temporary status in 1993 against any sanctioned post which was lying vacant in respondent no.2s office. There is also no material on record to show that Shri Ram Kishan had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals and that the respondents voluntarily and continuously employed Shri Ram Kishan in service for more than ten years. The respondents have rather pointed out that there was a vacancy in the post of Pharmacy Attendant, for which qualification of Matriculation and experience in Pharmacy were required and that the said post was surrendered as the concerned Section was closed in 1995. It has also been pointed out by the respondents that Shri Ram Kishan was not having essential educational qualification of Matriculation and therefore, he was not considered for regularization in service. Those assertions of the respondents have not been specifically denied by the applicant. The Casual Labourers (Grant of Temporary Status & Regularization) Scheme of Government of India, 1993, under which temporary status was conferred to Shri Ram Kishan, vide clauses (ii),(iii) and (iv) of paragraph 4 thereof, inter alia, stipulates that such conferment of temporary status would be without reference to the creation/availability of regular Group D posts; that the engagement of casual labourer with temporary status will be on daily rates of pay on need basis; and that such casual labourers who acquire temporary status will not, however, be brought on to the permanent establishment unless they are selected through regular process for Group D posts. Taking all these factors into consideration, I am unable to accept the plea of the applicants that though Shri Ram Kishan was entitled to be regularized in service as per the decision of the Honble Supreme Court in Uma Devis case (supra), yet the respondents did not regularize his services and therefore, the claim for compassionate appointment made by the applicants should not have been rejected by the respondents.
10. In Smt.Chitra Babus case (supra), the facts of the case were that the applicants husband was employed initially as a casual labourer and later on he was conferred temporary status. After three years of service as a temporary status employee, he was treated at par with temporary group D employees of Department of Posts whereby he became entitled to such benefits as are admissible to Group D employees on regular basis, as observed by the Ernakulam Bench of the Tribunal. The applicants husband died of cardiac arrest in his sleep on 13.6.2011 leaving behind the applicant (widow)and two young children. The applicant had under the compassionate appointment scheme applied for employment assistance. Her request was rejected on the ground that the applicant was not entitled for appointment on compassionate grounds as the said benefit was available only to the family members of Government servants appointed on regular basis and not working on daily wage, casual, or apprentice, or ad hoc, or contract, or re-employment basis. The Tribunal, in paragraphs 5, 9, 10, 11, 12, 13 and 14 of the order, observed and held thus:
5. Arguments were heard and documents perused. The exact wording of the status of the applicant on completion of three years of temporary status is given in Annexure A-3 is as under:
Department of Posts, India Office of the Supdt.
Kerala Circle Stamp Depot, Kadavanthra, Kochi 20 Memo No.PF/VYB dated at Kochi-20, the 8.5.2011 Sri B.Y.Babu who has been conferred with temporary status of group D w.e.f. 3.3.1998, has completed three years of service on 2.3.2001. As per the instructions contained in Directorate letter no.66-9/91-SPB-I dated 30.11.92, the casual labourers, after rendering 3 years of continuous service with temporary status shall be treated at par with temporary Group D employees of Department of Posts and would thereby be entitled to such benefits as are admissible to Group D employees on regular basis. As such, he shall be treated at par with Group D w.e.f. 3.3.2001 subject to the terms and conditions stipulated in Directorate letter no.66-9/91-SPB-I dated 30.11.92 and as amended from time to time.
Sd/-A.Raja Supdt.
XX XX
9. Tracing the history leading to the treating of the temporary status employees with three years in that capacity at par with temporary Group D employee, it is seen that the Apex Court in the case of Jagrit Mazdoor Union (Regd.) vs. Mahanagar Telephone Nigam Ltd., 1990 Supp.SCC 113, has held as under:
After rendering three years of continuous service with temporary status, the casual labourers shall be treated at par with temporary Grade D employees of the Department of Posts and would thereby be entitled to such benefits as are admissible to Group D employees on regular basis. In the wake of the above judgment of the Apex Court, the Department of Posts issued letter dated 30.11.1992 which inter alia reads as under:
3. In compliance with the above-said directive of the Honble Supreme Court it has been decided that the casual labourers of this Department conferred with temporary status as per the scheme circulated in the abovesaid circular No.45-95/87-SPB-I dated 12.4.1991 be treated at par with temporary Group D employees with effect from the date they complete three years of service in the newly acquired temporary status as per the aforesaid scheme. From date they will be entitled to benefit admissible to temporary Group D employees such as:
All kinds of leave admissible to temporary employees.
Holidays as admissible to regular employees.
Counting of service for the purpose of pension and terminal benefits as in the case of temporary employees appointed on regular basis for those temporary employees who are given temporary status and who complete 3 years of service in that status while granting them pension and retirement benefits after their regularization.
Central Government Employees Insurance Scheme.
GPF Medical Aid LTC All advances admissible to temporary Group D employees.
Bonus.
11. It would be curious to note that whereas the Apex Court has held that the temporary status employees after three years of service would become entitled to such benefits as are admissible to Group D employees on regular basis, the above order states From that date they will be entitled to benefits admissible to temporary Group D employees such as.
12. Be that as it may, the benefits as itemized (as extracted above) are not exhaustive but only illustrative. For, the term such as occurring therein has to be taken to mean more by way of illustration. In this regard, the following decisions of the Apex Court are appropriate to be referred to:-
(a) Sanabonia Satyanarayana v. Govt. of A.P., (2003) 10 SCC 78. In this case, while interpreting the term crimes against women such as Ss. 376 and 354, the Apex Court has interpreted the word such as in the following term:-
When the clause noticed above, in the latter portion referred to two of the provisions of IPC, after the words such as, it was more by way of illustration of the excepted category of offences relating to crimes against women in general and not with an intention to be exhaustive of the same.
(b) In Royal Hatcheries (P)Ltd. v. State of A.P, 1994 Supp.(1) SCC 429, the Apex Court while explaining the term livestock, observed as under:
It is true, the words such as indicate that what are mentioned thereafter are only illustrative and not exhaustive. (Of course, in this case, in addition to the term such as word, etc has also been used.)
(c) In Goodyear India Ltd. v. Collector of Customs, (2000) 10 SCC 489, the Apex Court has observed:
The words such as stainless steel, nickel monel, incoloy, hastelloy in sub-heading (2) are only illustrative of the various metals from which valves can be made but the said description is not exhaustive of the metals.
13. Thus, the benefits itemized in the order dated 30.11.1992 vide Annexure R-4 are only illustrative and not exhaustive. Since the scheme of compassionate appointment is applicable to the government servants, which include regular employees of Group D, those who are entitled to such benefits as available to the Group D employees on regular basis, are also entitled to the same. In addition, while defining the term Government servant for the purpose of compassionate appointment, the term clearly spells out the excluded category, i.e., not one working on daily wage or casual or apprentice or ad hoc or contract or re-employment basis. Temporary status employees treated at par with Group D employees are not enlisted in this excluded category.
14. In view of the above, we have no hesitation to hold that the applicants husband having been conferred with status of temporary Group D employee and entitled to all the benefits available to Group D employee on regular basis, as stated in Annexure A-3, the applicant is eligible to be considered for compassionate appointment. The O.A. is allowed. Respondents are directed to consider the case of the applicant in accordance with law on the subject.
11. Coming to the facts of the present case, it is seen Shri Ram Kishan, the husband of applicant no.1, who was working as a casual employee in respondent no.2s office, was conferred temporary status with effect from 1.12.1993, vide office order dated 17.12.1993 (Annexure A-5), in accordance with the Casual Labourers (Grant of Temporary Status and Regularization)Scheme of Government of India, 1993, which in terms of paragraph 3 thereof, is not applicable to casual workers in Railways, Department of Telecommunication and Department of Posts who already have their own schemes. The benefits which a casual worker gets on conferment of temporary status granted under the said Scheme of 1993 are quite different from that of the Scheme introduced by the Department of Posts and other Departments. Paragraph 5(iii) of the Scheme of 1993 stipulates that after rendering three years continuous service after conferment of temporary status, the casual labourers would be treated on par with temporary Group D employees for the purpose of contribution to the General Provident Fund and would also further be eligible for the grant of Festival Advance, Flood Advance on the same conditions as are applicable to temporary Group D employees, provided they furnish two sureties from permanent Government servants of their Departments, whereas the letter dated 30.11.1992, vide paragraph 3 thereof, issued by the Department of Posts [which is quoted in the order passed by the Ernakulam Bench in Smt.Chitra Babus case (supra)], stipulates that the casual labourers of the Department of Posts conferred with temporary status as per the scheme circulated in the above said circular No.45-95/87-SPB-I dated 12.4.1991 be treated at par with temporary Group D employees with effect from the date they complete three years of service in the newly acquired temporary status as per the aforesaid scheme and from that date they will be entitled to benefit admissible to temporary Group D employees such as, (1) all kinds of leave admissible to temporary employees; (2) holidays as admissible to regular employees; (3) counting of service for the purpose of pension and terminal benefits as in the case of temporary employees appointed on regular basis for those temporary employees who are given temporary status and who complete 3 years of service in that status while granting them pension and retirement benefits after their regularization; (4) Central Government Employees Insurance Scheme; (5) GPF; (6) Medical Aid; (7) LTC; (8)All advances admissible to temporary Group D employees; (9) Bonus. The Ernakulam Bench in Smt. Chitra Babus case (supra) also took into consideration the order dated 8.5.2011 issued by the respondent-Department of Posts in the case of the deceased casual worker with temporary status to the effect that he shall be treated at par with Group D with effect from 3.3.2011 subject to the terms and conditions stipulated in the Directorate letter no.66-9/91-SPB-I dated 30.11.92 and as amended from time to time while interpreting the term such as to mean and/or to include that compassionate appointment scheme is applicable to casual labourer with temporary status in the Department of Posts. But, as noticed above, the Scheme of the Government of India 1993 and the Scheme applicable to the Department of Posts are objectively different from each other as in the instant case there is nothing on record to show that on completion of three years service as casual labour with temporary status Shri Ram Kishan was to be treated at par with temporary Group-D employee thus making him entitled to such benefits as admissible to regular Group-D employees like the one in the case of Smt. Chitra Babus case(supra). In the conspectus of above facts, I cannot but hold that the decision of the Ernakulam Bench in Smt. Chitra Babus case(supra) is not applicable herein to the case of the applicants.
12. In the case of Sharda Devi v. Union of India and others, W.P. ( C ) No.3018 of 2012, decided on 25.4.2013, the husband of the applicant was engaged as a casual chowkidar in the P&T Department on 1.2.1978 and was conferred temporary status with effect from November 29.11.1989 and he died in harness on 25.11.2006. Considering the facts that one Shri Bakshi who was initially engaged on 28.11.1983 and was conferred temporary status on 3.8.1989 and subsequently his services were regularized with retrospective effect, i.e., August 03,1989, the date on which he acquired temporary status and that the petitioners husband though initially engaged much prior to the initial engagement of the said Shri Bakshi, was not regularized in services despite availability of enough vacancies in the year 1996 and following the decision in Yashvant Hari Katakkar v. UOI & ors, 1996(7) SCC 113, the Honble High Court of Delhi directed payment of family pension to the petitioner who was widow of the deceased casual employee with temporary status. In the instant case, it is not the case of the applicants that services of any casual employee, who was engaged after the engagement of Shri Ram Kishan, were regularized in the office of respondent no.2. Besides, the scheme under which the husband of the petitioner in Sharda Devi v. Union of India and others (supra) was conferred temporary status is different from the Scheme of the Government of India, 1993 which is applicable to the husband of applicant no.1 in the instant case. Therefore, the decision in the case of Sharda Devi v. Union of India and others(supra) is in no way helpful to the case of the applicants.
13. In the case of State of Haryana & ors v. Rani Devi and another(supra), the husband of respondent Rani Devi worked as Apprentice Canal Patwari on ad hoc basis from 25.8.1987 to 25.2.1989, whereas respondent Anguri Devi worked as Apprentice Canal Patwari on ad hoc basis from 15.7.1992 to 2.6.1993. The scheme dated 31.10.1985 introduced by the State Government, inter alia, conceived giving employment to one of the dependants of the deceased employee and the expression employee used in the said scheme shall not include casual, ad hoc employee, or a person who has been appointed as an Apprentice. In paragraph 7 of the judgment, the Honble Apex Court observed thus:
7. So far as the facts of the present case are concerned, we fail to appreciate as to how the High Court directed that the respondents aforesaid be appointed on compassionate ground when admittedly the respective husbands of the respondents were working as Apprentice Canal Patwaris for the periods mentioned above. If the scheme regarding appointment on compassionate ground is extended to all sorts of casual, ad hoc employees including those who are working as Apprentices, then such scheme cannot be justified on constitutional grounds. In paragraph 8 of the judgment, the Honble Supreme Court held thus:
8. According to us, when the aforesaid Government Order dated 31.10.1985 extends the benefit of appointment to one of the dependants of the deceased employee the expression employee does not conceive casual or purely ad hoc employees or those who are working as apprentices. Accordingly, the appeals are allowed and the impugned orders on the two writ petitions, filed on behalf of the respondents are set aside. In the facts and circumstances of the case, there shall be no order as to costs.
14. In view of the above decision of the Honble Supreme Court in State of Haryana & ors v. Rani Devi and another(supra), wherein the scheme formulated by the State of Haryana containing pari materia provision relating to inapplicability of the scheme to employees working on casual, ad hoc, or apprentice basis was the subject-matter of consideration and it was held that if the scheme regarding appointment on compassionate ground is extended to all sorts of casual, ad hoc employees including those who are working as Apprentices, then such scheme cannot be justified on Constitutional grounds, I hold that the request of the applicants has rightly been rejected by the respondents in as much as Shri Ram Kishan was a casual employee with temporary status and was not a regular employee.
15. The other submission made by the learned counsel for the applicants is that in similar situation one Mrs.Premta Devi, whose husband died while working as a casual employee with temporary status, was employed in Homoeopathic Pharmacopoeia Laboratory which is functioning under respondent no.1 and therefore, denial of the same treatment to the applicants is discriminatory. In support of his contention, the learned counsel invited our attention to office order dated 4.5.2000 (Annexure A-11). In order to appreciate this contention, it would be necessary to refer to paragraph 2 of the compassionate appointment scheme which reads as follows:
2. TO WHOM APPLICABLE To a dependent family member -
(A) of a Government servant who -
(a) dies while in service (including death by suicide); or
(b) is retired on medical grounds under Rule 2 of the CCS (Medical Examination) Rules 1957 or the corresponding provision in the Central Civil Service Regulations before attaining the age of 55 years (57 years for Group D Government servants); or
(c) is retired on medical grounds under Rule 38 of the CCS(Pension) Rules, 1972 or the corresponding provision in the Central Civil Service Regulations before attaining the age of 55 years (57 years for Group D Government servants); or (B) of a member of the Armed Forces who
(a) dies during service; or
(b) is killed in action; or
(c) is medically boarded out and is unfit for civil employment.
Note I "Dependent Family Member" means:
(a) spouse; or
(b) son (including adopted son); or
(c) daughter (including adopted daughter); or
(d) brother or sister in the case of unmarried Government servant or
(e) member of the Armed Forces referred to in (A) or (B) of this para,
-- who was wholly dependent on the Government servant/ member of the Armed Forces at the time of his death in harness or retirement on medical grounds, as the case may be.
Note II "Government servant" for the purpose of these instructions means a Government servant appointed on regular basis and not one working on daily wage or casual or apprentice or ad-hoc or contract or re-employment basis.
Note III "Confirmed work-charged staff" will also be covered by the term Government servant mentioned in Note III above.
Note IV "Service" includes extension in service (but not re-employment) after attaining the normal age of retirement in a civil post.
Note V "Re-employment" does not include employment of ex-serviceman before the normal age of retirement in a civil post. A plain reading of paragraph 2 of the Scheme for Compassionate Appointment makes it clear that the said Scheme is applicable to a dependent family member of a Government servant who dies while in service. As per Note II, below Paragraph 2 of the Scheme, "Government servant" for the purpose of the instructions contained in the Scheme means a Government servant appointed on regular basis and not one working on daily wage or casual or apprentice or ad-hoc or contract or re-employment basis. Thus, the dependant of a casual employee with temporary status like Shri Ram Kishan, who dies while in such service, is not entitled to be considered for appointment on compassionate grounds. In the backdrop of the clear provisions contained in the Scheme for Compassionate Appointment, what weighed with respondent no.1 in granting employment to Mrs.Premta Devi, widow of the deceased casual employee with temporary status, is not discernible. However, it is to be noted that the Tribunal cannot go beyond the rule of law, nor can it step into an area which otherwise falls within the domain of the executive. By far and by and large, respondents are accountable for their omissions and commissions at all events and under all circumstances. Undoubtedly, applicants in the present O.A. are similarly circumstanced as that of Mrs.Premta Devi. But the question that arises here is: Whether, or not, the Tribunal, while applying its own wisdom and sagacity, could come to the aid of the applicants herein on the ground of their being similarly circumstanced in a given case where the respondents have taken a decision by misapplication, or wrong application, or even contrary to rules? The answer is very precise. If at all the Tribunal comes to the aid of a person aggrieved after coming to a finding that he/she is similarly circumstanced in a given case notwithstanding the fact of application of rules in that given case, certainly it would tantamount to not acting in keeping its eyes open. It would not only set a precedent which is unprecedented, but also open floodgates for unwanted and undesirable litigations before the Tribunal. It is well established and well understood that the Tribunal being the creature of statute is expected to be guided by the rules of law, and one of the prime duties entrusted to it is to examine and probe into the facts that the action of the respondents is within the four corners of rules. Therefore, the contention of the learned counsel that applicants being similarly circumstanced with that of Mrs.Premta Devi, the respondents should have considered and granted appointment on compassionate grounds, failing which it amounts to discrimination, is reductio ad absurdum inasmuch as it would be an improper administration of justice to direct the respondents to act contrary to rules.
16. In (2010) 2 SCC 59, Union of India v. M.K.Sarkar, the Honble Supreme Court in paragraph 13 of the judgment, observed and held thus:
13. Learned counsel for the respondent lastly submitted that one K.V. Kasturi who had retired in 1973, was granted the benefit of exercising the option by an order dated 19.9.1994, and therefore, principles of equality and equal opportunity required that the Railways should give him the option. The Chairman of Railway Board, while rejecting the respondents' representation by order dated 15.5.2004 has clarified that K.V. Kasturi's case was similar to that of D.R.R. Shastri as he had also not been informed of the availability of option. There is another angle to the issue. If someone has been wrongly extended a benefit, that cannot be cited as a precedent for claiming similar benefit by others. This court in a series of decisions has held that guarantee of equality before law under Article 14 is a positive concept and cannot be enforced in a negative manner; and that if any illegality or irregularity is committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction on courts for perpetuating the same irregularity or illegality in their favour also, on the reasoning that they have been denied the benefits which have been illegally extended to others. See : Chandigarh Administration vs. Jagdish Singh - 1995 (1) SCC 745; Gursharan Singh & Ors. vs. New Delhi Municipal Committee & Ors. - 1996 (2) SCC 459; Faridabad C.T. Scan Centre vs. Director General, Health Services -1997 (7) SCC 752; State of Haryana vs. Ram Kumar Mann - 1997 (3) SCC 321, State of Bihar & Ors. vs. Kameshwar Prasad Singh & Anr. -2000 (9) SCC 94 and Union of India vs. International Trading Company - 2003 (5) SCC 437. A claim on the basis of guarantee of equality, by reference to someone similarly placed, is permissible only when the person similarly placed has been lawfully granted a relief and the person claiming relief is also lawfully entitled for the same. On the other hand, where a benefit was illegally or irregularly extended to someone else, a person who is not extended a similar illegal benefit cannot approach a court for extension of a similar illegal benefit. If such a request is accepted, it would amount to perpetuating the irregularity. When a person is refused a benefit to which he is not entitled, he cannot approach the court and claim that benefit on the ground that someone else has been illegally extended such benefit. If he wants, he can challenge the benefit illegally granted to others. The fact that someone who may be not entitled to the relief has been given relief illegally is not a ground to grant relief to a person who is not entitled to the relief.
17. In view of the above decision of the Honble Supreme Court in Union of India v. M.K.Sarkar (supra), I do not find any force in the submission of the learned counsel that the respondents ought not to have treated the case of the applicants differently and should have acceded to applicants request by granting employment assistance as has been done in the case of Mrs.Premta, the widow of deceased casual employee with temporary status.
18. In the light of the above discussions, I hold that the Original Application is devoid of any merit. Accordingly, the Original Application is dismissed. No costs.
(RAJ VIR SHARMA) JUDICIAL MEMBER AN