Central Administrative Tribunal - Chandigarh
Coram: Hon Ble Mr. Ranbir Singh vs Umadevi & Others. Placing Reliance On ... on 19 August, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH O.A.No.325-CH-2012 Pronounced on: 19.8.2013 Reserved on : 13.08.2013 CORAM: HONBLE MR. RANBIR SINGH, MEMBER (A) AND HONBLE MR. SANJEEV KAUSHIK, MEMBER (A) Bimla Devi wife of Ghashitu Ram, Resident of House No. 143, Indira Colony, Manimajra, Chandigarh. ` Applicant By: Ms Anita Sharma, Advocate. 1.Union of India through Secretary, Ministry of Information Technology, postal Services. 2.The Senior Post Office Master, GPO and Telegram Office, Sector 17, Chandigarh. 3.The Post Master, Post Office, Sector 9-D, Chandigarh. By : Mr. A.L. Vohra, Advocate. Respondents O R D E R
HONBLE RANBIR SINGH , MEMBER (A) The applicant, working as a part-time casual labour (sweeper) has filed this Original Application for regularization of her service.
2. As per the O.A. the applicant came to be selected and appointed as Sweeper on fixed salary in the year 1979. At present she is in receipt of a salary of Rs.1,300/-. She is working efficiently and continuously without any break for the last more than 32 years. She claims that she works for 8 hours from 7.30 AM till 1.00 PM and again from 3.00 PM to 5.30 PM. Thus she is a full time casual labour in Post Office, Sector 9, Chandigarh, which comprises of 4 SCFs, Triple Storey Building. The post office is on ground floor, Residence-cum-Guest House on first and second floor and she alone has to clean all the area. The post office is in a spacious area containing verandah, back side court yard, four toilets and bath room. Thus, she is working on full time basis. She spends a sum of Rs.500 to 600 on her transportation for coming to office and back to residence.
3. When the applicant demanded regularization of her services, she was threatened with termination of her services. Similarly situated persons namely Sh. Zile Singh, similarly situated part time employee has been regularized. Similarly Sh. Amrik Singh has also been regularized. On his request, a promise was extended that she will be regularized as and when post becomes available. However, she has not been regularized till date.
4. The O.A. goes on to state further that applicant filed Civil Suit in 2006 in the Court of Civil Judge, Sub Division, Chandigarh which was withdrawn on 12.3.2009 on the assurance of respondent no.3 that her services will be regularized. However, finding no response, she has filed this Original Application.
5. The applicant has, therefore, prayed for the following relief :-
i) To regularize the services of the applicant from the date of her appointment with all consequential benefits as her juniors namely Zile Singh and Amrik Singh has already been granted.
ii) To award costs towards litigation expenses and compensation for forcing the applicant to uncalled litigation.
iii) Discrimination may not be caused to the applicant as her junior has already been granted above said relief.
6. The respondents have filed a joint reply statement. They submit that applicant has no locus standi to file this O.A. She is not a casual or part-time employee and is not governed by any service rules, nor there is any qualification, age, education or experience for engaging a part time sweeper. No wage or salary has ever been drawn against her name. She has never been selected nor appointed as Sweeper. He had been engaged for two hours a day to sweep the premises of Sector 9 Sub Post Office, Chandigarh and paid Rs.638/- + admissible rate of dearness per month out of contingency head sanctioned for the purpose. She has not been extended any threat of termination of her service. O.A. is premature as no cause of action has arisen in favour of the applicant as the sweeping work of Sector 9 Sub Post Office is still being done by her and she is being paid out of the allowance fixed for sweeping of from the contingencies as per norms based on area being swept. Since the applicant has never been appointed to a regular post or even on a part time basis against any establishment of the post office, the question of her termination does not arise at all.
7. The respondents have further stated that in (2008) 1 SCC (L&S), 35, the Honble Supreme Court, following 2006 (4) SCC I Uma Devi (3), has held that there is no power in the court to direct regularization. They deny that applicant has been engaged for last 32 years. She has been working intermittently on need basis. There was complete ban on creation and recruitment of casual labourers since 1987 onwards. There was no sanctioned post of Part-time sweeper or full time sweeper in Sector 9 Sub Post Office, Chandigarh being a small sub post office. These instructions were reiterated r vide Chief PMG, Punjab Circle, Chandigarh letter No. Estt/13-2/89 dated 27.2.1987 (R-2). There was complete ban on recruitment of casual labourers when applicant was engaged which was contrary to the instructions. The regularization of casual labourers has been discouraged by Honble Apex Court in Secretary, State of Karnataka Vs. Umadevi & Others. Placing reliance on 2003 (4) RSJ 1 State of Haryana Vs. Tilak Raj, the respondents submit that a casual worker or part time employee does not hold a post and he cannot claim parity of pay and allowances with regular staff. Placing reliance on JT 2005 (12) SC 475 State of Haryana Vs. Charanjit Singh, it is claimed that daily wagers cannot demand minimum wages as payable to regular class IV employees. In 1997 (1) SLR 135 Union of India Vs. Bishambar Dutt, the claim of the part time employees to treat them as full time employees was declined holding that incumbents were not appointed to a regular post after selection according to the rules and having been appointed as part time employees de hors the rules they were neither entitled to temporary status nor to regularization as directed by the Tribunal.
8. The applicant has not filed any rejoinder.
9. We have heard the learned counsel for the parties and perused the pleadings.
10. On 1.10.2012 a Bench of this Tribunal noticed that applicant is seeking parallel with S/Shri Zile Singh and Amrik Singh which has been controverted by the respondents. In order to facilitate appropriate adjudication of the controversy, direction was issued to respondents to place the service record of S/Shi. Zile Singh and Amrik Singh including documents vide which wages were paid to the applicant.
11. In pursuance of the aforesaid direction the respondents sought to place on record a number of documents, Annexures R-3 to R-11 through M.A. No. 1238 of 2012. M.A. is allowed for the reasons stated therein and the documents annexed therewith are taken on record.
12. In the M.A. the respondents have pleaded that S/Shri Zile Singh and Amrik Singh were working as Part-time sweepers in Chandigarh GPO since the year 1974 and 1984 respectively. The Department has ten posts of part-time sweepers available over there However, the Department has made its arrangement by engaging only five persons, each of whom was asked to work full 8 hours and were being paid half the salary for each shift. However, in one of the shifts, the D.A. attached to basic pay (half of it) was given and in the other shift of four hours only the half basic pay without D.A. was given. Benefit of Regularization as per Scheme dated 12.4.1991 namely Casual Labourers Grant of Temporary Status and Regularization Scheme was granted to both of them as they were working as part time sweepers for 8 hours a day though in two shifts. On initiation of litigation by Sh. Zile Singh (O.A.No. 1165-CH-2002), this Tribunal had directed on 11.3.2003 (RA-4) to pay him full salary of a Group D employee. Thus, he was granted temporary status in Group D cadre w.e.f. 29.11.1989. Sh. Zile Singh died on 10.11.2005. During service he was not regularized. The other four part-time sweepers also filed O.A.No. 235-CH-2003 Banarsi Dass etc. Vs. UOI etc. in which the name of Amrik Singh was at Sr. No.4. The O.A. was allowed on 12.5.2003 (Annexure R-6) in the same terms as in the case of Zile Singh (supra). The respondents granted temporary status to Amrik Singh vide order dated 23.6.2003 (R-7). He was appointed as MTS on 26.12.2011 (R-8). The applicant was not given temporary status as she did not fulfill the requisite condition of working for 8 hours a day. She was working only for 2 hours a day. A copy of the register showing details of month wise payment made or sweeping of Sub Post Office from Jun3, 2001 to October, 2012 were enclosed. Copies of receipts for the months of August and September, 2011 were enclosed as Annexures R-10 and R-11 respectively.
13. We have heard learned counsel for the parties and perused the material on file.
14. The applicant is working only as a part-time employee as she has not produced any documentary evidence in support of her claim that she is working for 8 hours a day. She is being paid for 2 hours job only. The department has part-time posts available but it is not available in the respondent post office which is admittedly a small one. In regard to the cases of Zile Singh and Amrik Singh, it has been explained that Zile Singh had expired and he was not regularized. However, Sh. Amrik Singh has been regularized as he was employed for 8 hours a day though as a part time employee. He was allowed to work 4 hours in the morning and 4 hours in the evening. On the basis of this working for 8 hours a day he was regularized under the Scheme dated 12.4.1991 (R-3). The applicant has been working only two hours a day and has not produced any evidence to show that she was working for more than two hours.
15. In State of Rajasthan & Ors. vs Daya Lal & Ors, CIVIL APPEAL NO. 486 OF 2011 [Arising out of SLP [C] No.1927/2005] the Honble Supreme Court has clinched the issue relating to regularization and parity in pay scale by holding as under:-
(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization 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 regularization of services of an employee which would be violative of 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 regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.
(ii) Mere continuation of service by an 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 entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.
(iii) Even where a scheme is formulated for regularization 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 date), 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 regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.
(v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.
16. We have not been shown any rule, instruction or a policy under which a part-time employee can be regularized. The Scheme of 12.4.1991 mentioned by the respondents talks of regularization of only full time casual labours. In view of the aforesaid discussion, we are of the view that there is no merit in the Original Application. Accordingly, the O.A. is dismissed. It is, however, expected that if some scheme or instruction is available in the respondent department for conversion of part timers to full timers and then grant of temporary status or regularization, the respondents would consider the case of the applicant in the terms thereof.
17. No costs.
(RANBIR SINGH) MEMBER(A) (SANJEEV KAUSHIK) MEMBER (J) Place: Chandigarh Dated: 19.8.2013 HC*