Central Administrative Tribunal - Madras
P Lakshmi Devi vs D/O Post on 5 February, 2020
1 OA 1297 of 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
MADRAS BENCH
OA/310/01297/2018
Dated Wednesday ,the 5th day of February, 2020
PRESENT
Hon'ble Mr.T.Jacob , Member(A)
P. Lakshmi Devi,
D/o. K. Penchaliah,
Aged 35 years,
No.8/2, Solaoamman Koil Street,
Than Street, Purasawalkkam,
Chennai - 600 007. ....Applicant
(By Advocate M/s S.T. Varadarajullu)
Vs
Union of India rep by,
The Superintendent, RMS,
Railway Mail Service,
'M' Division,
Chennai - 600 008. ....Respondent
(By Advocate Mr. G. Dhamodharan)
2 OA 1297 of 2018
OR D E R
(Pronounced by Hon'ble Mr. T. Jacob, Member (A))
The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
"i. To quash the order No.C15/Court Cases/PL/15 dated 07.05.2018 of the respondent and consequently direct the respondent to reinstate the applicant in service with continuity with back-wages and all other attendant benefits and thereafter to regularise her service and pass such further or other orders as this Hon'ble Tribunal may deem fit and proper under the circumstances of the case and thus render justice ."
2. The brief facts of the case as submitted by the applicant are as follows:
The applicant submits that she was appointed as Part Time Casual labourer in the year 1997 at Park Town Sorting Division 'M', Chennai - 600008. After completion of 480 days of service, she was made as Full-Time Casual labourer. She used to work more than 8 hours per day in 2 spells in morning and evening session. The applicant submits that she had been extracted work for more than 8 hours per day since 1998, however, temporary status was not given. As she was not regularised her services, she gave representation dated 28.08.2014 to regularise her service. The applicant submits that as per D.G's order No.45-14/92-SPB 1 dated 16.09.1992, she should have been appointed as Full Time Casual labourer. But unfortunately, even after her repeated requests, she was not converted to Full Time Casual Labourer, even though she worked continuously from 1997. The applicant submits that in 2014 also the Director issued an Order No. 66-50/2014-SPB-1 dated 30.06.2014 to regularise the employees
3 OA 1297 of 2018 who had put in 10 years of continuous service. Though the applicant was working since 1997 and put in nearly 17 years of continuous service, she was not regularised. Hence, she gave representation on 28.08.2014 to regularise her services as given to Mr. Murugan and also as per order No.66-50/2014-SPB-1 dated 30.06.2014 issued by the Director. The applicant states that she moved this Hon'ble Tribunal in O.A No. 192 of 2015 seeking regularisation. This Hon'ble Tribunal by an order dated 01.09.2016 directed the respondents to consider the representation dated 28.08.2014. The respondent by an order dated 28.11.2016 rejected the claim of the applicant stating that the applicant was engaged as Outsider. Further from December 2016 the applicant was denied employment without assigning any reason. As the applicant approached this Tribunal she was denied even the temporary employment. The applicant submits that she gave representations dated 26.02.2018 and 27.02.2018 to give the employment and also to regularise her service. But the respondent by an order dated rejected the claim of the applicant. Challenging the order dated 07.05.2018, the present application is filed by the applicant seeking the above relief, inter-alia, on the following grounds:-
i. It is arbitrary and illegal to deny employment without enquiry or notice.
ii. The applicant was in employment since 1997 continuously. When she sought for regularisation of her service, denying employment itself is nothing but victimization.
iii. The letter No.66-50/2014-SPB-1 dated 30.06.2014 issued by the Director was misunderstood by the respondent. The letter clearly stated that after 1993 casual employees should not be 4 OA 1297 of 2018 appointed. Contrary to the letter the applicant was employed as casual Labourer in full time and extracted to work nearly 17 years, hoping the respondent will regularise service. When she wants regularisation, sending her out is against the Director's No.66-50/2014-SPB-1 dated 30.06.2014.
iv. The Government in 1993 issued OM to grant temporary status to the casual employees. Thousands of employees were granted temporary status. Denying temporary status and consequent regularisation is against the above OM.
v. The applicant put in nearly 17 years of continuous service. Denying employment without any reason is against the Principles of Natural Justice.
3. The respondents have filed detailed reply statement. It is submitted that the applicant was engaged as an Outsider to carry out sweeping and scavenging work at Park Town Sorting for a quantum of five hours. She was not engaged continuously and paid with wages as per the Chennai District Collector Rates. She was not utilized/arranged against any sanctioned post. The applicant stated that she was engaged since 1997. But in the OA filed by her, it is stated that the applicant is aged 35 years on the date of filing the application. When the Applicant is aged 35 years on the date of filing the application, then the applicant's age in the year 1997 must be fourteen, which makes it clear that there is no possibility of engaging the applicant as Outsider in the Department of Posts. There is no proof of her engagement in the year 1997. She was not appointed as Part time casual labourer. She was engaged only in the capacity of outsider for carrying out sweeping/scavenging/buying tea/coffee/tiffin at Park town Sorting. According to requirement, the services of the outsiders are 5 OA 1297 of 2018 utilized in the mail offices for functional necessities. No outsider is engaged in the capacity of Part time casual labourer. As such the Applicant cannot be converted as Full time casual labourer.
4. It is submitted that the Original Application i.e. OA 192/2015 filed by the applicant was disposed off by the Hon'ble CAT, Madras Bench by directing the Respondent to consider the representation of the Applicant dated 28.08.2014, in accordance with the law and as per rules, and pass a reasoned and speaking order, within a period of six weeks from the date of receipt of a copy of this order. Accordingly the representation of the Applicant was disposed by SRM, RMS 'M' Dn., Chennai 600 008 vide speaking order dated 28.11.2016 intimating the applicant that her representation dated 28.08.2014 was considered and rejected by the Respondent in view of the facts mentioned below:-
(i) The Applicant Smt. P.Lakshmidevi was engaged as an outsider to carry out sweeping and scavenging work at Park Town sorting for a quantum of five hours for functional necessities. She was not engaged continuously. The outsiders are paid wages as per the Chennai District Collector Rates. The Applicant is not utilized/ arranged against any sanctioned posts. The Applicant was not appointed as Part time casual labourer. She was engaged only in the capacity of outsider for carrying out sweeping/ scavenging/ buying tea/ coffee/ tiffin at Park Town Sorting. According to requirement, the services of the outsiders are utilized in the mail offices. No outsider is engaged in the capacity of 6 OA 1297 of 2018 Part time casual labourer. As such the Applicant cannot be converted as Full time casual labourer.
(ii) There is no provision in the Rules for regularization of the services of the outsiders who are not appointed as per the Recruitment Rules in prevalence, and who are not engaged through Employment exchange or any other employment agency. Hence the request of the Applicant for regularization was not considered. Directorate vide letter No. 66- 50/ 2014-SPB-I dt. 30/06/2014 conveyed through Circle Office memo no.ESB/ 300-134/ 2014 dt. 11.07.2014, has issued orders on Policy in respect of Casual labourers working in the Department in compliance of Hon'ble Supreme Court Judgment in Uma Devi case.
Smt.P.Lakshmidevi, was neither engaged through employment exchange nor through any employment agency and no formality was observed in engaging the above outsider. The Applicant does not fulfil the conditions prescribed.
Further, it is submitted that as the services of the Applicant were no longer required, she was not engaged by the HRO, RMS "M" Division, Chennai 600 003. Hence the respondents pray for the dismissal of the OA.
5. Heard learned counsel on both sides and gone through the pleadings and documents.
6. The short question that is involved in this OA for consideration is whether the applicant is entitled for regularisation of her services in the cadre of MTS.
7 OA 1297 of 2018
7. Admittedly, this is the second round of litigation. The Original Application i.e. OA 192/2015 filed by the applicant was disposed off by directing the Respondent to consider the representation of the Applicant dated 28.08.2014 of the applicant, in accordance with the law and as per rules, and pass a reasoned and speaking order, within a period of six weeks from the date of receipt of a copy of this order. Accordingly the representation of the Applicant was disposed by SRM, RMS 'M' Dn, Chennai 600 008 vide speaking order dated 28.11.2016 intimating the applicant that her representation dated 28.08.2014 was considered and rejected by the Respondent. Challenging the order the present application is filed.
8. Absence of any sanctioned post and engagement of the applicant not through the normal channel of Employment Exchange and admittedly for a few hours in a day, makes the engagement of the applicant purely as an outsider. If the age of the applicant as reflected in this OA is taken as 35 and if her words that she had been serving since 1997, the respondents are not wrong when they contend that the same is impossible as by 1997, the applicant was just 14 years of age. Regularization of services has certain parameters to be fulfilled and neither substitutes against short terms vacancies nor engagement of outsiders qualifies for regularisation. The benefit of temporary status is available only to those casual labourers who were in employment as on 01.09.1993 and grant of temporary status is not permissible after that date. As per the Directorate's letter dated 12.04.1991, the following conditions are prescribed for conferment of temporary status to a casual labourer:
"1. Temporary status should be conferred on the casual labourers in 8 OA 1297 of 2018 employment as on 29.11.1989 and who continued to be currently employed and have rendered continuous service of atleast one year. During the year they must have been engaged for a period of 240 days.
2. After rendering three years continuous service after conferment of temporary status, the casual labourers would be treated at par with temporary Group 'D' employees.
As per OM dated 10.09.1993, those casual employees who were not sponsored through Employment Exchange or engaged through employment agency can be bestowed with temporary status. As such, the applicant is not eligible for regularisation/conferment of temporary status as per rules and instructions on the subject. The Casual Labour (Grant of Temporary Status and Regularisation) Scheme of Government of India was a one time measure and was applicable only to the casual labours working in the year 1993 and was not an ongoing Scheme and in view of the said Scheme, the applicant cannot claim the benefit of temporary status or claim status at par with the workmen having temporary status. The said Scheme has been considered by the Hon'ble Supreme Court in the case of Union of India vs. Mohan Pal reported in AIR 2002 SCV 2001, Union of India vs. Gagan Kumar reported in AIR 2005 SC 3107, Director General, Doordarshan vs. Manas Dey and Ors., reported in AIR 2006 SC 263 and Controller and Defence Accounts vs. Dhani Ram and Ors. reported AIR 2007 SC 2650. Further reference has been made to the case of State of Rajastan vs. Daya Lal by the Hon'ble Supreme Court in the case of Secretary to Government, School Education Department, Chennai vs., R. Govindaswamy and others reported in 2014 (4) SCC 769 wherein it has been held as follows:-
"(i) The High Courts, in exercising power under Article 226 of the
9 OA 1297 of 2018 Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme under/or appointment of ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a temporary or ad hoc or daily wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be litigious employment. Even temporary, ad hoc or daily wage service for a long number of years, let alone service for one or two years, will not en title such employees to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.
(iii) Even where a scheme is formulated for regularisation with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off dates), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates.
(iv) Part time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuation of part time temporary employees."
9. Again, the Apex Court has specified in the case of Mohan Pal (supra) that grant of temporary status as per the order dated 10-09-1993 was a one time process. Thus, even assuming that the applicant was initially engaged in 1997 as a part time casual 10 OA 1297 of 2018 labourer, her case cannot be brought within the four walls of the order dated 10-09- 1993.
10. The next provision for such regularisation of casual labourers is in the wake of the decision of the Apex Court in State of Karnataka Vs Umadevi (2006) 4 SCC 1. The Directorate vide letter No. 66-50/2014-SPB-I dt.30/06/2014 conveyed through Circle Office memo no. ESB/300-134/2014 dt.11.07.2014, has issued orders on Policy in respect of Casual labourers working in the Department in compliance of Hon'ble Supreme Court Judgement in Uma Devi case. The stipulation of conditions therein again specified existence of sanctioned post against which the casual labour had been engaged and here again, through the medium of Employment Exchange and not through back door entry. The applicant was neither engaged through Employment Exchange nor through any employment agency and no formality was observed in engaging the above outsider. The applicant does not fulfil the conditions prescribed.
11. When conditions of regularisation are not fulfilled, there is no question of regularisation. If conditions get fulfilled but respondents are reluctant to regularise the services, then the individual establishes his existing rights. In contra distinction to the above when the claim is made without fulfilling the requisite on some analogy the individual does not establish his existing rights but tries to create a new right. The adjudication process of the Tribunal applies only where the individual tries to establish his existing rights and not when he tries to create a new right. The claim of the applicant falls under the latter category and thus her claim cannot be approved.
12. The applicant has cited the case of one Mr. Murugan as to the regularization of 11 OA 1297 of 2018 casual labour services. That case is distinguishable in as much as, it was a case of compassionate appointment. Thus, the applicant certainly has not made out a case for regularization. However, one aspect has to be deeply examined. Her services have been terminated since 2016. The job assigned to her earlier was one of sweeping and scavenging. There cannot be a situation that this requirement in a public office does not exist. If so, whether her termination of her services in 2016 was legally valid. It is pertinent to mention here that in Uma Devi, the Apex Court had occasion to discuss the decision in another case of State of Haryana vs. Piara Singh (1992) 4 SCC 118 wherein the Apex Court has held as follows:-
"...an adhoc or temporary employee should not be replaced by another ad hoc or temporary employee, he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority."
13. There is no reference to engagement of any other person in the place of the applicant and it appears that the contention of the applicant that cause of termination of her service was only her having approached the Tribunal cannot, thus be brushed aside. Terminating without assigning any reason even though the nature of engagement is one of casual basis, is against the principles of natural justice. It has not been indicated that the applicant was no longer required. If verification of the same surfaces that the respondents have actually, after termination of the applicant engaged some one else, though not exactly in the same place or function but in any other aligned function and on adhoc basis, to which the applicant would have filled the bill, the respondents are duty bound to explore the feasibility of engaging the 12 OA 1297 of 2018 applicant, to this extent, the applicant has crystallised her rights on the strength of the ratio in Piara Singh (supra).
14. In view of the above, it is held that though the applicant cannot derive any benefit of past service for regularisation, but her case for continuation in the adhoc casual labour engagement has to be considered in case someone else has been appointed in her place or on any other place within the same unit where she could have been asked to function, or if there is a requirement for engaging any casual labour on part time or full time basis. The applicant being well within 35, age factor cannot come in her way. Respondents shall, thus, carry out an exercise in this regard and engage the applicant to function as a part time or full time casual labourer. If however, none in the past has been engaged as such, or that there is no requirement for such appointment, the applicant shall be duly informed. This drill is directed to be performed within 10 weeks from the date of communication of this order. The decision shall be arrived at, at the level of the authority competent to engage casual labourer.
15. The OA is disposed of on the above terms. No costs.
(T.JACOB)
Member(A)
/kam 05-02-2020