Central Administrative Tribunal - Ernakulam
Smt M Vijayalakshmi vs Central Board Of Indirect Taxes A& ... on 25 July, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH,
ERNAKULAM
Original Application No. 180/00239/2023
Thursday, this the 25th day of July, 2024
CORAM:
Hon'ble Mr. Justice Sunil Thomas, Member (J)
Smt. M. Vijayalakshmi, aged 54 years, D/o. A.V. Chinden,
Part-time Sweeper, Customs Preventive Division, Kannur,
Residing at Manakkadan House, Mandur PO,
Kannur (Dt.) - 670 501 . ..... Applicant
(By Advocates : Mr. John Varghese & Mr. Sonu Augustine)
Versus
1. Union of India, represented by Secretary to Government,
Central Board of Indirect Taxes and Customs,
New Delhi - 110 001.
2. Commissioner of Customs (Preventive), 5th Floor,
Catholic Centre, Broadway, Ernakulam, Kochi-682 031.
3. Joint Commissioner, office of the Commissioner,
Central Tax & Central Excise, Central Revenue Building,
I.S. Press Road, Ernakulam, Kochi - 682 018.
4. Deputy Commissioner, office of the Commissioner of
Customs (Preventive), Preventive Division, Central
GST Division, Central GST Building, Kuzhikunnu,
Kannur - 670 001.
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5. The Commissioner, Central Tax and Central Excise,
Central Revenue Building, I.S. Press Road,
Ernakulam, Kochi - 682 018. ..... Respondents
(By Advocate : Mrs. O.M. Shalina, SCGSC)
This Original Application having been heard on 24.05.2024, the
Tribunal on 25.07.2024 delivered the following:
ORDER
Per: Justice Sunil Thomas, Judicial Member -
The applicant was appointed under the respondents as a Part Time Sweeper by Annexure A2 order dated 28.2.1996, through Employment Exchange. The qualification for the said post was VIIIth standard. She was paid a consolidated remuneration of Rs. 750/- per month. At present she is paid a sum of Rs. 410/- per day. In the year 2020, the 1st respondent formulated a scheme known as "Part Time Casual Labourers (Regularization) Scheme of the Central Board of Indirect Taxes and Customs" for absorbing the part time employees. By Annexure A3 dated 26.2.2021 details were called from various offices. Accordingly, Annexure A4 representation dated 6.12.2022 was submitted by the applicant for considering her case for regularization. Since there was no response, Annexure A6 representation dated 12.1.2023 was submitted. 3 According to the applicant, the 1st respondent has in the meanwhile, combined together various posts and re-designated it as Multi-Tasking Staff by the Central Indirect Taxes & Customs Commissionerate Multi- Tasking Staff (MTS) Group-C Post Recruitment Rules, 2022 dated 28.3.2022 produced as Annexure A8.
2. According to the applicant, though she has been in employment for the past 27 years, she has not been absorbed and the PF contribution not paid. By Annexure A10 issued by the Union of India, the Central Boad of Indirect Taxes dated 5.6.1985, Ministries under it were authorized to relax the provisions of the notified Recruitment Rules of Group-C and Group-D employees. Thereafter, steps were taken to regularize temporary casual labourers as MTS. In the meanwhile, by Annexure A11, applicant was informed that she was not entitled for regularization. Annexure A12 representation dated 19.6.2023 was submitted by the applicant, requesting to relax the provisions relating to age and educational qualification under the Recruitment Rules, 2022 and to regularize her service. The above request was rejected by Annexure A13 reply. It was stated that one Smt. M.M. Lakshmi, who was a casual employee of Calicut Commissionerate and was only an VIth standard failed candidate, 4 was appointed by Annexure A14 order dated 6.11.2001. Annexure A14 is the record which indicates her qualification. Clause (6) of the Scheme provides for relaxation. It was claimed that if clauses 4(b) and 4(c) of the Scheme are relaxed, the applicant will be entitled for appointment.
3. Accordingly, the OA was filed essentially seeking the following main prayers as under:
"(ii) Issue a direction to the respondents to regularize the appointment of the applicant as per Annexure A8 Central Indirect Taxes and Customs Commissionerates Multi-Tasking Staff (MTS) (Group 'C' post) Recruitment Rules, 2022 with consequential benefits,
(ii)(a) or in the alternative direct the respondents to regularize the applicant as per Part-time Casual Labourers (Regularization) Scheme of Government of India, 2019 with effect from 1.1.2020 after relaxing the educational qualification and age as per clause 6.
(vi) set aside Annexures A11 and A13 and direct the 1st respondent to reconsider Annexure A12 in the interest of justice and fair play."
4. A reply statement was filed to the amended OA by the respondents traversing the various claims made in the Original Application. It was contended that the Central Indirect taxes and Customs Commissionerates Multi-Tasking Staff (MTS) (Group 'C' post) Recruitment Rules, 2022 came into force with effect from 28.3.2022 and was prospective in nature. The said Rules did not contain any provision to regularize appointments. 5 The applicant did not satisfy any of the criteria, specified under Rule 3 of the Rules, 2022. Hence, relief (ii) was not liable to be granted. It was further stated that as per OM No. 49014/2/86 Estt.(C) dated 7.6.1988 of DoP&T, daily wagers can be recruited only for casual or seasonal or intermittent nature of works or for work which was not full time, for which regular posts cannot be created. It was admitted that the applicant was working without break from 2.3.1996 and was paid wages for Rs. 410/- per day.
5. It was stated that as per clause 4 of Part-Time Casual Labourers Regularization Scheme of CBIC, 2020, part-time casual labourers have to possess educational and other qualifications as per Recruitment Rules of Group-C post, against which the part-time casual labourers were considered for regularization. It was stated that following the acceptance of the recommendations of the VIth CPC, all group-D posts have been upgraded to Group-C posts and Recruitment to Group-C was made only through SSC with minimum educational qualification of matriculation or ITI. Therefore, the insertion of educational qualification for regularization of part-time casual labourers was in accordance with the Recruitment Rules of Group-C posts. As per the Recruitment Rules for 6 the posts of Havildar and MTS, the educational qualification prescribed for direct recruitment was matriculation or equivalent pass from a recognized Board or institution. Evidently, the applicant possessed the educational qualification of SSLC (failed) and she could not be considered for regularization. She had also crossed the age limit prescribed. The claim of the applicant for regularization under Part-Time Casual Labourers Regularization Scheme of CBIC, 2020 was duly considered and rejected by Annexure R1(B) communication dated 10.10.2022.
6. Annexures A4 and A6 representations did not merit consideration, because, none of the schemes of DoP&T for grant of temporary status and regularization was meant for part time casual labourers. All Group-D posts have been upgraded to Group-C posts and recruitment in Group-C was made only through SSC with minimum educational qualification and applicant was not eligible for regularization in terms of scheme of CBIC, 2020.
7. It was stated that pursuant to notification No. 790(E) the Central Excise and Customs Department Multi-Tasking Staff (Group 'C' Posts) 7 Recruitment Rules, 2013 which came into force on 24.12.2013, various posts in Kerala zone before the commencement of Rules on regular basis were deemed to be appointed as Multi-Tasking Staff by office order dated 18.7.2014. It included posts of Safaiwala, Mali, Caner, etc. in Kerala Zone. The Central Indirect Taxes and Customs Commissionerates Multi- Tasking Staff (MTS) (Group-C Post) Recruitment Rules, 2022 (Annexure A8) was notified by order dated 28.3.2022 in supersession of the Central Excise and Customs Department Multi-Tasking Staff (Group-C posts) Recruitment Rules, 2013. The said rules took effect prospectively from that date. The applicant did not satisfy the criteria laid under Rule 3 of the Rules, 2022. Further, the power to relax provided under Rule 5 of the Rules, 2022 was with respect to any class or category of persons, not an individual.
8. It was stated that the Central Board of Indirect Taxes and Customs, New Delhi formulated the Part-Time Casual Labourers (Regularization) Scheme of CBIC, 2020, pursuant to the judgments dated 19.7.2011 and 20.9.2011 of the Hon'ble High Court of Madras in various Writ Petitions. That scheme was restricted and confined to the parties to those Writ Petitions. Later the Board had conveyed the approval of the competent 8 authority for extension of the Part-Time Casual Labourers Regularization Scheme, CBIC to 54 part-time casual labourers mentioned in Annexure A1 enclosed in the said letter dated 5.12.2022. It was informed that no proposal shall be considered in future and the scheme shall be treated as closed once these 54 Part-Time Casual Labourers are regularized as per the terms and conditions of the scheme. The Part-Time Casual Labourers (Regularization) Scheme of CBIC, 2020 was not an ongoing scheme. In terms of the above Scheme 2020, part-time casual labourers have to possess educational and other qualifications as per Recruitment Rules of Group-C post against which they are considered for regularization. As per the Recruitment Rules, 2022, the post of Multi-Tasking Staff was classified as General Central Service Group 'C' (Non-Gazetted, Non- Ministerial) and the educational qualification required for direct recruitment was matriculation or equivalent pass. Since the applicant did not satisfy the above condition, she was not eligible to be considered for regularization.
9. Regarding the appointment of Smt. M.M. Lakshmi, Safaiwala by Annexure A14, it is stated that it was issued in 2001 prior to the notification of Central Indirect Taxes and Customs Commissionerates 9 Multi-Tasking Staff (MTS) (Group-C Post) Recruitment Rules, 2022 produced as Annexure A8. Hence, that benefit cannot be extended to the applicant herein. As per the Casual Labourers (Grant of Temporary Status and Regularization) Scheme, 1993 of Government of India, temporary status was to be conferred on all casual labourers who were in employment on the date of said issue of OM and who have rendered continuous service of at least one year. In terms of the said Scheme Smt. M.M. Lakshmi was granted temporary status with effect from 1.9.1993 and she was appointed as Safaiwala by Annexure 14 order. The applicant was not eligible for grant of temporary status and also for regularization in terms of the said scheme since she was engaged only on 11.3.1996. Hence, the case of the applicant was not similar to that of Smt. M.M. Lakshmi and she is not entitled to take the benefit of Annexure A14.
10. Heard both sides and examined the records.
11. The fact that the applicant was engaged as a Part-Time Sweeper since 2.3.1996 at the office of the respondents is not in dispute. It was also not in dispute that she was paid wages at the rate of Rs. 410/- per day. The applicant has sought for regularization of her appointment on 10 two specific grounds. Firstly, she sought regularization as per Annexure A8 Central Indirect Taxes and Customs Commissionerates Multi-Tasking Staff (MTS) (Group-C Post) Recruitment Rules, 2022, with consequential benefits. The said Rules were brought into force in supersession of Central Excise and Customs Department Multi-Tasking Staff (Group-C posts) Recruitment Rules, 2013. It is also seen that Annexure A8 Recruitment Rules of 2022 came into force on 28.3.2022 and can only be prospective to that extent. Rule 3 of the said Recruitment Rules dealt with the method of recruitment, age limit, qualification, etc. It was provided that the method of recruitment, age limit, qualification and other matters relating thereto shall be as specified in columns 5 to 13 of the schedule. Column 10 of the schedule shows that method of recruitment was by direct recruitment through Staff Selection Commission. The age limit prescribed was between 18 to 27 years. The educational qualification prescribed was matriculation or equivalent from a recognized board or institution.
12. Admittedly, there is no provision for regularization of service of the employees under Annexure A8 Recruitment Rules. It is also seen that applicant is aged about 54 years now and had educational qualification of 11 matriculation (failed). Evidently, she did not satisfy both the requirements of age and educational qualification for recruitment.
13. The learned counsel for the applicant contended that Rule 5 of the Recruitment Rules provided for relaxation of Rules. Rule 5 provides that where the Central Government was of the opinion that it was necessary or expedient so to do, it may, by order and for reasons to be recorded in writing, relax any of the provisions of these Rules with respect to any class or category of persons.
14. Even assuming that invoking the provision under Rule 5, the age and qualification prescribed could be relaxed, evidently since there is no provision for regularization of the services of a part-time casual employee, the power to relax cannot come to the aid of applicant. It is also pertinent to note that relaxation is to be given only with respect to any class or category of persons and not in individual cases. Evidently, the provision for relaxation cannot be invoked in the case at hand and cannot come in aid of the applicant herein. Hence, the relief sought under Annexure A8 Recruitment Rules cannot be granted.
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15. The next ground set up by the applicant for relaxation was based on a communication of Central Board of Indirect Taxes and Customs and scheme produced as Annexures R1(D) and R1(E). The Central Board of Indirect Taxes and Customs, New Delhi had formulated a scheme for regularization known as Part-Time Casual Labourers (Regularization) Scheme of CBIC, 2020. The respondents have produced a communication as Annexure R1(D) along with the scheme. Annexure R1(D) was issued by the Central Board of Indirect Taxes & Customs, New Delhi addressed to the Principal Chief Commissioner of GST & Central Excise, Chennai informing that pursuant to the High Court of Chennai's order in various Writ Petitions mentioned therein and with the concurrence of DoPT and Department of Expenditure, approval of the competent authority was conveyed to a scheme for regularization of part time casual labourers who were respondents/petitioners in the Writ Petitions of Chennai High Court. It was stated that it was a one-time scheme and cannot be quoted as precedence at any forum. The scope of scheme was limited to respondents/petitioners in WPs referred above. The scheme appended thereto was known as Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) 13 Part-time Casual Labourers (Regularization) Scheme. The said scheme was a one-time scheme and applicable to Writ Petitioners who were part- time casual labourers. The eligibility conditions prescribed were 10 years continuous engagement as part-time casual labourer in the concerned Department as on 19.7.2011. The qualification prescribed was the qualification as per the Recruitment Rules of Group-C post against which part-time casual labourers were considered for regularization. Clause of 6 of Annexure R1(D) scheme provided that DoP&T would have the power to make amendments or relax any of the provisions in the scheme that may be considered necessary and expedient to do so.
16. The said scheme was modified and was made applicable to the CBIDT and Customs by communication dated 6.2.2020 produced as Annexure R1(E). It was known as Part-Time Casual Labourers (Regularization) Scheme of CBIC, 2020. It was stated therein that it was applicable to the parties in the Writ Petitions mentioned therein. The eligibility conditions and the relaxation provisions as contained in Annexure R1(D) was reiterated therein.
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17. The said scheme specifically provided that it was applicable to the parties to the Writ Petitions mentioned therein. Admittedly, it was a one- time scheme and the applicant was not a party to the Writ proceeding. It was contended by the learned SCGSC that the applicant had not satisfied the qualification prescribed in the said scheme. Evidently, the applicant had not satisfied the age requirement as well as the educational qualification prescribed in the relevant Recruitment Rules. As far as Group-C employees are concerned the educational qualification prescribed was matriculation. However, the applicant did not possess that qualification. It was vehemently contended by the SCGSC that relaxation can only be in relation to conditions which are relaxable specifically in the case of age and not in the case of a minimum educational qualification prescribed. It was contended that when matriculation was prescribed as the minimum qualification for all Group-C posts, relaxation of it will have the effect of completely annulling the educational qualification of matriculation prescribed for Group-C employees. It was contended that matriculation which was the mandatory requirement for all Group C employments, cannot be relaxed so as to completely do away with the minimum educational requirement. Relaxation of any provision 15 cannot go to the extent of relaxing the minimum educational qualification prescribed under the Recruitment Rules.
18. It is pertinent to note that the scheme though provides for relaxation by the DoP&T, the DoP&T has not been made a party to the proceedings. Hence, the contention of the learned counsel for the applicant that she was entitled for regularization under the scheme cannot be accepted. Applicant has also not established that any identically situated person has been so regularized under the scheme.
19. The learned counsel for the applicant specifically relied on the case of one Smt. M.M. Lakshmi who was appointed in 2001 by Annexure A14. It was pointed out by the learned SCGSC that the said Lakshmi was regularized under the Casual Labourers (Grant of Temporary Status and Regularization) Scheme, 1993 which came into force on 1.1.1993. Under the scheme, all those part-time casual workers who had completed one year of service in 1993 were entitled to be conferred with temporary status. Based on it the said Lakshmi was granted the temporary status and thereafter regularized. The applicant joined the service only on 28.2.1996 much after the scheme came into force. She was also not conferred with 16 the temporary status and hence, the case of Lakshmi cannot be considered as one identical to that of the applicant herein.
20. An evaluation of the entire facts show that the applicant is not entitled for regularization either by relaxation of the scheme or the Recruitment Rules or under any other provision of law. Hence, the claim for regularization is liable to be rejected. However, it is made clear that she can be engaged as at present, as long as her requirement is found to be essential by the respondents.
21. Original Application is dismissed with the above clarification. No order as to costs.
(JUSTICE SUNIL THOMAS) JUDICIAL MEMBER "SA"
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Original Application No. 180/00239/2023 APPLICANT'S ANNEXURES Annexure A1 - True copy of the community certificate dated 21.3.2021 issued by the Tahsildar, Payyannur Taluk. Annexure A2 - True copy of the letter dated 28.2.1996 issued by the Assistant Commissioner, Special Customs Preventive Division, Kozhikode.
Annexure A3 - True copy of the letter dt. 26.2.2021 issued from the office of the Chief Commissioner, central Tax, Central Excise & Customs.
Annexure A4 - True copy of the representation dated 6.12.2022 submitted by the applicant before the 3rd respondent through proper channel.
Annexure A5 - True copy of the office memorandum dated 11.1.2002 issued by the Government of India.
Annexure A6 - True copy of the representation dated 12.1.2023 submitted by the applicant through proper channel before the 3rd respondent.
Annexure A7 - True copy of the letter dated 2.5.2023 issued by the National Commission for Schedule Caste to the 5th respondent.
Annexure A8 - True copy of the Central Indirect Taxes and Customs Commissionerates Multi-Tasking Staff (MTS) (Group 'C' post) Recruitment Rules, 2022 dated 28.3.2022. Annexure A9 - True copy of the letter No. ACC(DL&UK)/Contract Empl./Coord./2011 dt. Nil issued by the Provident Fund Department addressed to the Department.
18Annexure A10 - True copy of the office memorandum No. CD.14017/10/85-Estt.(RR) dated 5.6.1985 issued by the Government of India.
Annexure A11 - True copy of the letter dated 19.5.2023 addressed to the Senior Researcher, National Commissioner for Scheduled Castes, State Office, Thiruvananthapuram. Annexure A12 - True copy of the representation dated 19.6.2023 submitted by the applicant before the 1st respondent through proper channel.
Annexure A13 - True copy of the communication dated 18.7.2023 issued by the 1st respondent.
Annexure A14 - True copy of the order dated 6.11.2001 issued from the office of the 5th respondent.
Annexure A15 - True copy of the admission register of Smt. M.M. Lakshmi showing her educational qualification.
RESPONDENTS' ANNEXURES Annexure R1(A)-True copy of the payment voucher regarding the wages given to the applicant for the month of September, 2023.
Annexure R1(B)- True copy of the order No. GEXCOM/II/(39)/155/2021-ESTT dated 10.10.2022 issued by the 3rd respondent.
Annexure R1(C)-True copy of the letter GEXCOM/II/(39)/5/2021- ESTT dated 19.5.2023.
Annexure R1(D)-True copy of the letter F. No. C-18013/25/2009- Ad.IIIB dated 1.1.2020 issued by the Board appending therewith the "Part-time Casual Labourers (Regularisation) Scheme of the Government of India 19 2019".
Annexure R1(E)- True copy of the letter F.No. C-18013/25/2009- Ad.IIIB dated 6.2.2020 amending partially the Annexure R1(D) and issuing the "Part Time Casual Labourers (Regularisation) Scheme of CBIC, 2020".
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