Central Administrative Tribunal - Hyderabad
Shaik Shabbir Ali vs Dept Of Posts on 4 June, 2020
Central Administrative Tribunal Hyderabad Bench Hyderabad OA No.020/486/2019 Date of CLAW: 02.03.2020 Date of order pronounced: &y 6.2020 Hon'ble Mr. B. V. Sudhakar, Member (A) shaik Shabbir All s/o late Shaik Moulall, aged about 44 Years Occupation Contingent Full Time Electrician, in The O/o of the Post Master General, Vijayawada-3 & rio 43-19-14, near ROM Church, Eo Ajit Singh Nagar Vijayawada 15. Applicant (By Advocate: Shri K. Siva Reddy) Vs. 1. Union of India rep by Secretary Department of Posts Dak Bhawan, Sansad Marg New Delhi -- 110 001. Pod . The Chief Postmaster Genera! Andhra Pradesh Circle Vilayawada --~ 520003. 3. Postmaster General Vilayawada Region Vilayawada ~ 520003. . Respondents (By Advocate: Shri A. Radhakrishna, Sr. PC for CG) 2 eed ORDER
2 OA is fled seeking temporary status and regularisation of _ Services of the applicant in accordance with the Hon'ble Apex Court af ) Judgment in State of Karnataka vy Uma Devi (2006) 4 SCC 1.
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3. Brief facts are that the applicant, as per his version, was appointed as Electrician on 15.12.1995 as a temporary contingent employee against a sanctioned post initially for 6 hours per day and thereafter, for 8 hours per day since 2010 onwards. From then on the applicant has rendered uninisrrupted service. However, on being approached several times for granting temporary status/ regularisation of services, respondents while admitting that the applicant was fully qualified have denied the request on the grounds : that, his appointment was made without being sponsored by the employment exchange: scheme to regularise casual employees came to an end on
29. TL.1989, applicant was engaged in 1993 when ban in regard to engagement of casual labourers was operating and that the applicant having been appointed as part time employee is not covered by Hon'ble Apex Court judgment in Uma Devi. Agerieved, GA has been filed.
4. he contentions of the applicant are that he has been continuously working for the respondents from 1995 as a casual employes against a sanctioned post without the intervention of a court order for more than 10 years and hence is fully covered by the Hon'ble Apex Court judgement in Uma Devi which, indeed, is sos, applicable to casual employees irrespective of their status as part time or full time. The appointment of the applicant can, at the most, be termed as irregular for not having been sponsored by the employment Bees ;\ exchange but not legal. Besides, the decision of the Hon'ble ~Frnakulam Bench in OA 750/94 and that of the Hon'ble High Court of ALP in W.P. No. 1693/2008 support the cause of the applicant. Applicant is fully qualified, which has not been denied by the respondents. Establishment register maintained by the respondents does indicate that the post against which the applicant worked is a sanctioned post. Besides, casual employees are eligible for regularisation as per rules of the respondent organisation.
5. Respondents oppose the cantentions of the applicant claiming that the applicant was neither recruited/employed/engaged against any sanctioned/ regular electrician post mor his selection was as per prescribed procedure Uke open notification or through employment exchange. However, respondents decided to engage a part ume contingent Helper/electrician from 23.4,1993 for a period of 2 months vide their letter dated 31.5.1993 and thereafter decided to continue the post until further orders vide orders dated 6.7.1993, Applicant was thus engaged on a temporary basis against a temporary contingent post for 6 hours a day vide letter dated 13.12.1995. Work hours were increased from 6 hours to 8 hours in 2010. Hence H gues without saying that the applicant was engaged as a part time casual employee till 2010. Necessity to maintain service records did not arise as he was nc ne VLE PEOE Fy, ; pen May, tt Ranger not appointed against a sanctioned post. Applicant's appointment being not against a sanctioned post and more importantly of the nature of part time employment, Uma Devi judgment is inapplicable to the
1) case of the applicant. Tribunal has dismissed a similar request of a | similarly situated employee in OA 625/2007 observing that the Uma Devi jadgment is applicable only to full Nme employees and on approaching the Hen'ble High Court of AP in WP No. 1693 2008 directions were issued on 03.03.2008 to dispose of the representation of the petitioner as per law provided the petitioner was continuing in service, Subsequently, applicant in OA 6258/2007 filed OA 324 in 2010, which was dismissed. Hence, the issue has become res judicata. Mere noting of particulars of the post in the establishment register is no criteria to assume that the post in question is a sanctioned post unless the Head of the Department creates the post with the concurrence of the Ministry of Finance. Respondents cited judaments of various judicial forums in support of their contentions.
Applicant filed a rejoinder, additional rejoinder, written arguments and the respondents responded with a sur-rejoinder and written arguments. The averments made in all these decuments have been gone through and the relevant ones have been taken up for analysis in the ensuing paras.
&. Heard both the ccransel and perused the pleadings on record.
7. There are many issues which are entwined in regard to the grant of temporary status and regularisation of the applicant, as it has 2 fe My "eeseprapies chequered history originating from 1995. Among them, the germane \ \& ones, which are decisive to arrive at a fair and justifiable decision are discussed here under. True to speak, the dispute germinated with the \ issue of appointment order to the applicant and a sequential analysis : of the various hues of the issue over the years will take us to the end of the tunnel, which accordingly is attempted hereunder:
3) Respondents claim that the applicant's appointment was as part time electrician on temporary basis and liable for termination any time without assigning any reason. How far is this correct?
Tt is not in dispute that the applicant was appointed on a temporary basis with the requisite qualification to the post of part time electrician on 13.12.1995 (A-1). Applicant has enclosed SSC and ITI certificate vide A-7 and A-8. The appointment order reads as under:
"¥ou ave herehy ordered fo jols as part Hew cortagent Electrician on femporary basis in the office of the Postmaster General, Fifaveawada with inonediate effect. Please produce two latest good conduct certificaies rom fw separate Gasetted officers at the time nf your folting the past in shis office. This muy please be Ireated extremedy urgent."
The appointment order does state that the applicant is appointed on a temporary basis but it does not state that his services are Hable to be terminated any time without notice nor did it elaborate the terms and conditions of appointment. Therefore, it is incorrect to state as to what ig not stated in the appointment order and that too, while fling an affidavit before a court. Defucta, it is violative of Section 191 of IPC. Be that as it may, ever engaging someone on temporary basis has to be based on certain rules and regulation, which need to be made i & sf mn ioe .
known to the appointee. Order is bereft of such conditions to regulate the employment. Employment is a sensitive matter and the respondents are expected to take utmost precautions to act within the ambit of rules but not in a lackadaisical manner giving room for a plethora of grievances. More so, when the respondent's organisation has to essentially enact the role of a model employer in dealing with a its employees.
Further, appointment order states that the applicant is appointed on a contingent basis as a part time Electrician. The question that arises is as to whether the contingency continued for 24 years. Contingency cannot be perpetual thereby defeating the very meaning of the word. This is something which the respondents have not explained anywhere in the multiple responses filed by them. Establishment norms preseribe for periodic review of posts and in particular, contingent posts in order to examine their continuance or otherwise. Reply statement is silent on the responsibility of the respondents in undertaking the stated mandatory exercise.
In addition, respondents need to ponder about their assertion made after engaging the applicant for 24 years as an electrician that there is no need for a part time electrician since the work can be got dane on call basis, The option of getting minor electrical works done on call basis was abvays available over the last 24 years. [this being so, it is not understood as to why the respondents did not exercise the said option over the last 2 decades and more. On the contrary, respondents f ¥ Se, "4 .
z is RS AS have increased the work hours of the post from 6 hours to & hous, which goes to prove that there was a need of the post of the electrician but the respondents did not act as they should im this direction.
Therefore, the said assertion is like treading on thin ice.
Another pertinent observation is that respondents stipulated the condition that the services of the holder of the post will be continued based on performance vide A-3 filed along with written arguments. The applicant being continued in the post since the last 24 years would go to prove that his services apparently were satisiactory and therefore, did not warrant amy discharge. Additionally implying that there was a need to have an electrician with performing ability and the applicant fulfilled the requirement aptly. Resultantly it needs to be adduced unswervingly that the submissions of the respondents, is er contrary to the unquestionable facts of the issue.
D Respondents running theme in the sequential replies is that the applicant was net appointed through Employment Exchange and therefore his appointment is irregular and hence, ineligile for temporary status leave alone regularisation. Can the respondents take such a stand as per law?
Respondents did quote rules of the respondents organisation and DOPT memo dated 12.07.1994 in support of their contention, which cannot be gainsaid. However, a reference to the legal principle laid down by the Hon*ble Supreme Court, as under, on July 16, 2010 in Civil Appeal No. 5646 of 2010 in Union of India and others Versus & .
Miss Pritiata Nanda, in respect of the issue of sponsoring candidates for employment by employment exchanges, makes it abundantly \ 8 ie SS aN Rx Doragnneeee evident that the stand of the respondents is invalid.
"The oaly questions which arises for consideration in thls appeal filed by the Union of india and four functionaries of South Rastern Rahway auainsr He order of the Division Sench of Orissa High Court is whether respondent ~ Miss Pritilata Nanda, who is physically handicapped, could be denied anpoiniment on Class Ii post despite her selection by the competent authority ante on the ground that she did not get her neame sponsored by an employment exchenge, i ike fist place, we consider if necessary to observe that the condifian embodied fn ite advertisement that the candidate xhowdd get Aisher name spopsored by any special eniplayment exchange or any ondinery enmploymeent exchange cannot be equated with a mandatory provision incorparated in a statute, the violation of which mux visit the concerned person wiht penal consequence. The requirement of notifving the vacancies to the employment exchanse is embodied is ihe Employment Exchanges (Compulsory Notification ef Pacancies) Act, £939 ior short. "ihe i859 det'), but there is nothing in the det which obligates the emplayer to appar onl thease whe are sponsared by the employment exchange.
fa Union of india y. No Hargonal (2980) 3 SOC 308, tis Court examined te scheme of the 1859 det and observed:
"tt is evident that there is no provision in the Act which obliges ant employer io make appoinimenis through ie azency of the Employed Exchanges. Far from it, Section 369) of ote Act, on the other dean', makes W explicitly clear that the emplayer is under no obfigation m recridf any person: through the Eraploveent Rechages to fll in a vacaner merely because that vacancy has been notified under Section 407} or Seetian 472) in the face of Section 46, we consicter if utterly fiaile far the learned Additional Solicitor General to argne Hiat the Act impases any obligation on ihe enyloyers apart from notifying the yarencles do the Employment Exchanges."
"Ut is, therefore, clear that the object af the Act is not to restrict, bat to enfeamsee the fleld of choice so that the emplayer may chodse the best and s the most efficient and fo provide an opportiwuty fo the worker fo have * his claies for anppointrent considered withat the worker having io knock at every decr for emplayment. We are, Herefore, Trinly of the view that the Ae? does not oblige aay emplover to employ fhase persors only whe have been sponsored by the Employment Buchcnyes."
da ALBLN. Fiswestavare Reo's case, a theeé-fudge Bench af this Court considered @ similar quesifon, referred to an sarlier juceinent in Union af India y. No Hargopal (supra and pbserved:
"Ht is common Aicawledge that many a candidate is unable io dave swe anes sponsored, thoush their sames are ether registered or are waiting to be registerva in the emplayment exchange with the result that the choice of selection is restricted fe ently such of the candidates whose Nemes come fo de sponsored by the amplayment exchange. Linder shese circumstances, mara a deserving candidate is deprived af the sight to be considered for appointment io a posi under the Stare. Better view appears to fe that @ should be eeimdotory far the FeQuishiiong mahoriny established io Gubvate the employment exchange. and enplayment exchenge should spansar the names of ihe candidates to ihe requisitioning departments for selection strictly according to seeiortiy and reservation, as per requisition, Je addition, the appropriate depariewent or xaderuking or estadlislenent should call for ihe names by publication in fhe newspapers having wider crouation and alsa display on their offlee notice boards or anneece on radia, television and cuplowment news dulletins: and then consider whe cases af all the candidives who Have applied J ihds procedure is adopted, folr play would be seb served. The equadity of opportunity in ihe matter of enplayment would be availudle ta all eligible candidates."
fa our considered view, &y demving appointment ip othe respondent despite her selection and placement! in ihe merit st, the appellants woloted Aer right fo equality ia the pedier of employment seorantesd wader Article 18 of the Constitution."
Respondents are thus under no obligation to recruit only those who have been sponsored by the employment exchange. It is for the respondents to explain as to why they have not gone in for extensive publicity or other means stated in the judgment while recruiting the applicant. On audit raising an objection recently that the respondents attempted ta review the case after the applicant rendered a couple of decades of service which the respondents need to ponder as to whether it is appropriate in the context of the well settled law that the respondents should not rub of thelr mustake by penalising the applicant. Therefore, as per law, expounded im elaborate terms above, the appointment of the applicant cannot be considered as irregular for the reason of not being sponsored by Employment Exchange and for their failure to review the appointment. The applicant is still on the rolls of the respondents' organisation and hence, it has to be applied to his appointment. It is common knowledge that the verdicts of the Hon'ble Supreme Court and High Courts have to be followed as held by the top court as under:
"Aithariative pronouncements of the Supreme Court and High Court must be respected and follawed as any departure therefrom woud cause iceriaingy, wimnecessary and speculative Nigation as has been held in strong wards in { Dwietkesh Seear Industries Lid x Prem Heavy Eneincering Works @) Lid (£997) 6 SCC #30 and Bikar State Civil Appeal No. 3873 of 2010 & anv. Page i2 af £3, Gevernnwnr Secandary School Teachers Association and Others v.
Sap : Bihar Education Service Assaciation and Others (2012) £3 SCC 33,° have retrospective effect as pronounced in Uttaranchal Jal Sansthan y. Laxmi Devi,2009) 7 SCC 205, wherein the Apex Court has held as under:
"df is worttt mentioning that judicial decisians unless otherwise specified are refraspective. ~ Hence the respondents cannot take cover even on the ground that the Hon'ble Supreme Court decision was later to the appointment of the applicant. The Judgment comprehensively decides that the appointment cannot be denied on grounds of nat being routed through Employment Exchange and extrapolating the said principle to the case on hand the appointment of the applicant cannot be termed as irregular. It appears that the respondents were in urgent need for an Electrician as is evident from the appointment order and therefore, is it to be assumed that they did not go in fer any publication/advertisement, etc, to fill up the post. Nevertheless, applicant will net be able to explain as to why the respondents took such a decision but surely respondents need to have explained the same in their reply statements, which unfortunately they did not, despite giving ample opportunities to defend their stand through reply/additional reply and written arguments.
The answer to this question Hies in the entries made in the Register of ID An allied applicant was not against a sanctioned post. Is this true?
meee covers sanctioned establishments. The sai dd register is averment minde is that the selection of the maintained as per rule 278 of Posts and Telegraphs Financial Hand Book vol-I. This rule ts statutory in nature respondents in the reply statement, As per this rule, and has nat been stated to be amended by the A register In the prescribed form fA.CG.-/9 ai}, wil? de maintaivied dy Meads of Offices in all the branches of ike Posts and Telegraphs Deparouent shawing the sanctioned establishments under them. The Heads of Offices will be personally responsible jor sewing thet the register ix kept corrected up fo date and that no charges, whieh have not been duly sanctioned, are incleden in the Estahlistonent Pay Bul Ft The very nomenclature of the register makes it explicit that It should contain sanetioned establishments.
The Head of the ONiice shall ensure that no charges which are got sanctioned figure in the register.
* Therefore any entry made in this register (A-3) would mean that it pertains to the sanctioned posts. The post against which the applicant has been working was recorded as wader in the cited register.
S. | Geslgnation Ne Seale af pay Bardoutacs off Rate af Sh. No haitads of No of nately Cormeice- Expiry a al atiesting pasts sent theessyia f sanction { offlece wth Waskiit terep gemoin f romarks, if Rock gancticas the file any br oP EAP Belper FI Praporthmsate b hous Y Asst (Hivetricie} ssisny dnased 2 brs wed Drecter, Sa f 238-1999 oF THAiRnEn E2002 PME, pay of Chg B+ Ps of PMG. OF LIAS 2 howrs 30 PRIS wad.
ra | GELOR Viluwsvada ww hrs wove wef PORPIINI from P30 hys to & firs de RB. OG meet BO.
Esp PRE i3- The entries in the register have not been denied by the respondents.
The Head of the Office is personally responsible to ensure that the | drawn properly, The word corrected gains significance in view of the | repeated assertion of the respondents that the post is not a sanctioned post. If this be so, respondents would have corrected it by making an appropriate red entry denoting that it is not a sanctioned pest, as required under establishment rules, which was rightly pointed out by the Ld. Counsel for the applicant. The Head of the Office being in the Senior Administrative Grade, he/she would not have ignored it, if the same was incorrect over the last 2 44 decades. Besides, the 3° respondent office is subjected to Internal/external annual inspections, periodic audits and yet, the folly that the post in question is not a sanctioned post was uncarthed at any interval of time in the last 24 years. Respondents have not produced any document to substantiate that the details of the post referred to have been wrongly posted in register, statutorily prescribed to be maintained. The entire edifice of administration depends on the proper maintenance of sanctioned establishment registers because they form the very basis for arriving at the sanctioned strength of the Central Govt. Organisations and required planning thereof. Making a casual remark by the respondents that an entry in the Register of sanctioned Establishment would not ipso facto mean that the post is a sanctioned past is stupendous to note because such a remark debases the very sanctity of statutorily preseribed Establishment registers. Hence, the contention of ike iS respondents that it is not a sanctioned post dees not find favour wit ge ' the Tribunal. In particular, when the Post Master General in the rank x & . 2 S cee, ee Sn cS Saran of Senior Administrative grade gave the approval for creation and ORR ee BR kage as _ _. ; .
iS\ utilisation of the said post way back in 1993 and the said approval "se"" oarries the day even till date. The approval of the HOD is a procedural requirement to be fulfilled afier making entries in the register of sanctioned establishments, which the respondents did net pursue and for the same hauling the applicant on the coals is unfair to say the least. Law does not permit thrusting ones mistake on to others and penalise them as observed by Hon'ble Supreme Court in a catena of jadgments as under:
G) The Apex Coert in a revert case decided on 1S 12.2007 (fates af ladia va.
Sadhana Khanna, C.A. No. S2G8'01) held that the mistake af the department cannot recos] on employees.
Gin yet another recent case of AF) Fidaunaiale vy. UPSC, CA. No. SB83-899) of 2007 decided on 13.22.2007, a has been observed that N there is a fadare on the part ofthe officers to discharge their deties the Incumbent should not be allowed fo suffer.
Gi} sit has been held in the case of Mrawal Chuuutra Shatiacharjee vo Uaion of Fadia, [997 Sapp (C) SCC 363 wherein the Apex Court has held "The austake or delay on the part of the department should not be permitted to recoil an the appellants."
The above judgments squarely apply to the case of the applicant. If respondents state that it is not a sanctioned post, which indeed is not true, yet making such a claim is because of their making and hence they cannot find fault with the applicant.
Besides, after extracting work for 24 years from the applicant respondents asserting that the applicant is not eligible for temporary status/reguiarisation by flagrantly denying that the post against which the applicant working is not a sanctioned post, albeit without much eee ila substance, is absolutely tangential to the dictates of the Hon'ble Supreme Court in Nihal Singh & Ors vs State Of Punjab & Ors on 7 | . > SA ce _ A¥igust, 2013 in Civil Appeal No.1059 of 2005, as under:
a "ed, &ui we do nat see any fustification for the State te take a defence that affer permifiiag the ufillsation of the services af large ntmber of peaple Nke the appetianty for decades fe say that there are no sanctioned posts to absard the appellants. Sanctioned posts do not Jall from heaven. State has to create them by a conscians choice on the basis of some rational assessment of te need."
TV) Albeit in the instant case the applicant was appointed against a sanctioned post as brought out in the previous paras, even presuming that applicant was not appointed against a sanctioned post as argued by the respondents, with which the Tribunal disagrees, the legal principle enunciated above makes it explicit that the applicant has to be adjusted by creating a supernumerary post and for making him work for 24 years. Telescaping the legal principle referred to the applicant has got a strong case te be regularised in the context of the necessity of post and it being operated over the decades with the applicant in the saddle. The qualification of the applicant shown as S&C and IT] (Electrician) with 24 years of service experience in the respondents organisation are not disputed. With the above background it is to be examined as to whether the case of the applicant cames under the purview of the Hon'ble Supreme Court fudgment in secretary, State OF Karnataka And Ors vs Umadevi and Ors on 10 April, 2006, Appeal (Civil) 3595-3612 of 1999, wherein the relevant para reads as under:
"dd, Gre aspect needs io be clarified There may be cases where irregular appointments faot ilesel aepateimenis) as explained in SFO NARAFANAPPA Gruprey), AN NANVUNDAPPS Gupral, and BN. NAGARAJIN Supral, and _ eferred to in paragraph 13 above, af duly qualified persons te duly sanctioned vacant posts aright have been made and the employees have continued ta werk for fen vecus or prove bat without the intervention of orders of couris or af tribunals. The question of regularization of the services of such employees may have fo he considered on merits in the light of tie privcip ves sented by this Court a: the cases above referred fo and in the Hehe of this judgment. Dn that context, te Union of FON . Indie the State Govermmnents and thelr insfrwmentalities should take steps to 2h regudarice as a ane tine measure, the services of such irreguludy appointes, whe
5) have worked for ten years or more in duly sanctioned posts bul not under cover af 2 apders af courts or of inibunals aad shawdd further ensure that regular reeruitimeus are undertaken fo 10 those vacant sanctioned posts that require fo he filled up, iv cases where temporary employees or daily wagers are belig now employed. The process past be sef i spotion within sie aiontie from us date. W's atso clarify thar regularisation, f any already made, but not sub fudice, need Hot he reapened haved on this judgment, but dere should be na farther By-passiag gf the constitutional requirement and regulevising or making permaneat, thoxe not duly qppebred as per the constitvional scheme"
ie Applying the law in Uma Devi to the case of the applicant, it is seen that the applicant has the requisite qualifications and was appointed against a sanctioned post as per relevant rules with a work experience of more than 10 years as on the date of the judgment, without the caver of any court order. The judgment states that even in cases of irregular appointment the regularisation of the services has to be done. In the instant case, the appointment was defacto regular as was brought out in paras supra. Therefore, the claim of the applicant for regularisation is backed by the above judgment lock, stock and barrel.
pe) ¥) The Uma Devi judgment is to be implemented as a one time measure and therefore, the ease of the applicant cannot be considered is one another ground taken by the respondents to reject regularisation of services of the applicant. Is this stance valid?
True, the Uma Devi judgment has i be operated as a onetime measure. However, onetime would mean that the cases of all thase who come under the ambit of the Uma Devi Judgment are to be covered as a onetime measure. As long as such cases are pending, i they are to be dealt under the law laid down in Uma Devi. This aspect was delved at length and clarified by Hon'ble Supreme Court in its own judgment in State of Karnataka and Ors vy M.L.Resari and Ors "2, Aé the end of six months from the date of decision in Unadevi, cases of several dailpawoxe/ad-iowcasual employees were still pending before Courts. Consequently, several deparmments and insirumentalities did not cammence the one-time regularization process On the offer fend seme Government departments ar fasiramentaliies uaderfaak the one-dine exercise excluding several employees from consideration elther an the ground that their cases were peatiuy of courts or dee te shwer oversight, fp such ecireummtgnoes, the employees wha were entifled to he considered in termis af Para 33 of the decision in Untadevi, will nat lose thelr right ta be considered jor regudarization, merely becense the ope-fie exercise was completed withont considering their cases, or decause the six pionth period mentioned in para 33 of Uinades! hay exelred. The one-time exercise should consider all dailyowagefadhacsthose eaplayees wha had put in 10 years of continuous service as on 10.4, 2006 withow availiee the profection of aay interim orders of courts or tribunals, If any employer had held fhe one-time exercise in terms of para 33 of Umadew, dad dial not consider ihe cases af sone eviployees who were entitled to the benefit af para 33 af Limadevi, the eniplayer concerned should consider their cases also, as a continuation of the ane-tew exercise. Phe ane dime exercive will be concludes? only when all the splovees wih are entitled fo be considered in terms of Para S33 of Unaderi, are se considered "
Respondents have glossed over the fact that the one- time exercise will persist Hl all the eligible employees are covered. Hence the judement cannot be fixated into a time frame but interpreted by taking the essence of H in terms of covering all those who have to be covered, In view of the above, the objection raised that Uma Devi judgment is applicable only as a one-time measure is unsustainable and goes against the very raison d'étre of the judgment.
Consequentially, the fudement necessarily applies ta the case of the applicant hands down.
It is also interesting te note that the Uma Devi judgment was delivered an 10.4,2006 and the DOPT directed the respondents' organisation to implement it on 11.12.2006 but the respondents gingerly issued orders after a lapse of more than 8 years since the date of the verdict, on 40,6.2014, The prayer of the applicant vide his representation dated 235.9017 is that his serviess be regularised at least from iis date against an MTS vacancy available in the Office of Post Master ry General, Viayewada, R was not to be, because the respondents had many multiple pointless reasons to deny the request. Of them, 8 further few are detailed here under for analysis to take the issue to its logical end.
VI} Were the respondents spot on in denying regularisation of the applicant on the ground that ban was operating since 19917 A ban was imposed for engaging casual labourers vide MOF office Memo dated 26.2.1990 and the respondents reiterated the same on 56.1901, However, respondents organisation has implemented a scheme knawn as Casual Labourers (Grant of Temporary Status and Regularisation) Scheme vide fetter dated 124, 199L wherein temporary status would be conferred on the Casual labourers in employment as on 29.11.1989 with certain provisos and later, the scheme was extended to full time casual labourers engaged after 39,11,1989 and up to 19.1993 vide respondents letters dated {/8.11.1995. The applicant was engaged in 1995 and hence he was not covered by the scheme. Besides, when a clarification was sought Bord Ss a x . . - eg .y ¥ > was appointed in 1995 and pointedly stated that a ban was operating from the 1° respondent by the 2 respondent in regard to the .
applicant is not covered by the Casual Labourer Scheme because he * in engaging casual labourers vide letter dated 05.06.1991. Applicant claims that the clarification received from the 1" respondent was not served on him, thereby keeping him in the dark in regard to the view taken by the 1" respondent, the supreme authority on the matter. If served the applicant could have either reconciled to the response or pursued available remedies without further loss of time.
Admittedly, as stated by the respondents there was a ban operating from 1991 and during the ban it is not understood as to how the respondents could appoint the applicant against their own orders st and also it is Interesting to note that the 1" respondent has only observed that the ban is operating but did not order as to what should be done in regard to the grievance of the applicant who has rendered 21 years of service by then. There was stoic silence in regard to this aspect instead of coming up with a decision either way. Obviously, the entire organisational set up of the respondents organisation was in the know of the things about the case of the applicant but a decision was not forthcoming albeit law was in favour of the applicant.
In respect of the submission of the respondents that the applicant could not be covered under their Casual Labourers Scheme which was applicable only to cases up to 1993, it is to be emphatically 19 stated that the Govt. of India scheme which was in operation from 1.9.1993 onwards, could have been applied toe the case of the applicant for regularising his services, as was rightly pointed out by the Han'ble Ernakulam Bench of this Tribunal in OA 750/1994 on 13.3,1995, as under:
"g Yhorazh dere is a ban on pecruftment, i iS @ matter af fact tut applicant iy working i fhe deparunest waders the respandents after 30 71,880. The department cannot take a view that na rides will cover persons whe are appointed afier 28.14, 1989. it is for the respondents 10 decide wher should he dre nde whick world govern cases af persons recruited after 20.11.1989, Bt the absence of any suck rule. they should be sorented by the Gavernment of india scheare nentionad in para 3 above which econe tno effect from 1.9 1983."
The above judgment was cited in the additional rejoinder of the applicant but there is not even a whisper about the said verdict in the written arguments submitted by the respondents. It has been stated by the applicant that the services of the applicant in OA 7350/1994 was regularised based on the Emakularn Bench order. This was not denied by the respondents. Hence, it is clear that there was lack of iniflative on behalf of the respondents to examine the applicant's case in its proper perspective by relying on the rules, schemes, evolving law on the subject over the years to resolve the grievance reported. In particular with the advent of the 6° CPC, the Group D cadre was upgraded to Group C cadre and recruitment rules were framed on 28.01.2011 by the respondents for Multi Tasking Staff cadre wherein elause {i} of the rules reads as under:
as 2588 by appointment af casual labourers conferred with temporary status on basis of selection-cum- seniority falling which by ---
Had the applicant been granted ternporary status/regularisation by peed eter, 7 Z, Fi applying the GOT scheme for regularisation of services of casual bey &X "n labourers in terms of the decision of the Hon'ble Eranakulam bench of «this Tribunal and the different aspects of law in regard to routing of applications through employment exchanges, role of establishment registers, efc., as discussed above, the applicant could have been absorbed in MTS cadre as per recruitment rules cited. Regrettably, it was not fo be and therefore the applicant before the Tribunal.
VU) Is the Uma Devi Judgement applicable only to fill time casual labourers and not to part time casual labourers?
Respondents have relied on the decision of this Tribunal in regard to applicability of Uma Devi judgment, in OA 625 of 2007 on §.12.2007, wherein it was observed as under:
"The question of regularisation of the services of auch enydovees, whe ferve comtined to work far fen years or more, but without ihe orervention af orders af tie Courts ar of THéunals, may fave to be considered on mers in ihe fight of ihe principles settled by Ue Apex Court in that case and ia the liste of their fudwment. But the said observation is applicable only to the fll time emplavees. Admittedly, the applicant herein was not a full thee emyptovee and in aptte of iis request ta convert Ais services Jrom part sine to full fine, the reapanidents did not agree and they have rejected the said request also. "
The applicant claimed that the tribunal order when challenged in the Hon'ble High Court, the petition disposal order was in petitioner's favour.
senice ie the post af contingent electrician. "
Respondents point out that the Hon'ble High Court has only disposed the petition directing respondents to act as per law. Tribunal agrees with the respondents to this extent. However, one should not miss the
2| point that the Tribunal has rightly rejected the plea of the applicant in \ OA $25 af 2007 on the ground that after his re-employment in 1997, he has not completed 10 years of service as on the date of judgment of }<) Umadevi, whereas in the instant case the applicant did complete 1¢ years, which is one of the conditions laid in the cited judgment. Therefore, the cited judgment is inapplicable to the case of the applicant to the extent relied upon by the respondents. Now coming to ~ the second aspect of the relied upon judgment, that it is applicable only to full time employees, a quick look at para 44 of the Uma Devi Judgment refers to duly qualified persons and there is no reference to full time or part time casual labourers. However, the essence and impact of Uma Devi judgment has been interpreted and reinforced by the Han"be Apex by its own judgment in Narender Kurnar Tiwari and Ors Ete v The State of Jharkhand & Ors Ete on G1.08.2018, wherein it is made clear that Uma Devi verdict is applicable to all persons who worked for more than 10 years as on date of the said judement je 10,4.2006, as under:
"JO. xxx fhe one-time exercise shovla' conider all dail-ware'ud howcasna! oupfovees who Aad pai iy . & pears of confinnous service xe ay fied SUG without availing Ihe projection of any interbea orders of courts or ribynals, 'ne i he abject debind the said direction in para 32 af Umadevi (3) is avofold. First is te ensure that those who Rave pat ia more ew fen pears of contiguaus service without the protection of any interin orders of couris ar mlbaaols, defare the date af decision ix Gmadevi (3) was rendered. are considered for regalarisation in view of their for service. Second is po ensure that the departmentsinemmenentafities do not perpeture the practice of amploviag persons on dallpwagerad hoc/casual basis far long periads aod then p neriodiec oily reguiavise them on ihe ground that they have served for wore t "than fen years, ferehy defeating me constitutional or Siaiviory provisions relatiig go recruifeent and apoolatmen. The trac effect of the direction is that alf persons who ave worked for more than fen years oe 53 10662006 fhe date of decision ia Cnadevi (3)) yeithou: rhe profection of any interim order of any court ar frihunal, ia vecant Posts, posseanng the requisite qualification, are envitted to be considered for vegniarisatinn. The fact chat the employer Aas not undertaken auect exercise ay regularisation wight six months of te decision in Umanlevi £3) or fiat suck exercise way undertaken only in regared to a Limited av, witl nal disemitle suck exmstoyees, the right io he considered for renufarisation in ferns of tie abave directions in Uinadevi (3) ax a anestime measure,"
decision of this Tribunal in OA 625 of 2607 does not came to the rescue of the respondents to reject the request of the applicant for regularisation. As a one-time exercise respondents should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the protection of any interim orders of courts or tribunals, as directed in the above cited judgment, which observably the respondents can't afford to ignore.
VIP Respondents have cited a number of judgements of different judicial forums supporting their contentions. How far are they relevant?
Pew of the judgments referred to, as under, are prior to Uma Devi Judgment arsl hence, are not applicable to the case of the applicant as his cause is fully covered by the decision in Uma Devi.
i} Hon'ble High Court of A.P in Seeretrary, AP Social Welfare Residential Educational Institution Society v P. Venakata Kumari 2061 (1) ALT 366 ii} Hon'ble Apex Court in State of UP & anr v Kaushal Kishaore Shukla 1991 (1) SCC 691 i} Han*ble Apex Court In ONGC v Mohd. 8. Iskender Ali (Dr) in 1980 (3) SCC 428 SAGE
2. iv} Hon'ble Apex Court in LLG. v Gagan Kumar in Civil | 3 x ' \ x.
Appeal No. 1026 of 2003Ko The other judgments relied upon by the respondents are as under:
, Horn'ble Supreme Court Judgment in State of Rajasthan and ars v Daya Lal and ors 2011) 2 SCC 429 wherein it was observed at 12 (11) as under:
"iS. (i) Mere contingatios: af service bv a temporary or adhoe or daily wage employe. under caver of some interim orders of the court wad not confer upor Abe gry right to Be absorbed ini service, as such service world be Ufigiaus esyplayment Even temporary, adios ar daily wage service for a long number of years, lef alone servics for one or hwo years, will not entitle such englayee to claim regedarisation, Uf he is not wonting deal! a sanctioned past."
¥ Two factors which distinguish the case of the applicant is that he worked for more than 10 years as on the date of the judgment of the Uma Devi without any cover of the orders of any court and also he worked against a sanctioned post, as explained im previcus paras.
Therefore, the cited judgment is not relevant to the case on hand.
G) a} Hon'ble Apex court Judgment in Secretary to Government, Scheol Education Department, Chennai vs. Thiru R.Govindaswamy and ors (2014) 4 SCC 769 wherein it was observed as follows:
"6 Seve Jf connot also be selled ow te cater a eight io be absorbed in semice even dhough they have never been selected in ferme of fhe relevany recewitarent PHEES, Pax Being the part lime cnployeus, they are nat subject fa service vafes oP offer regula nions wided woven? and contral the regularly appointed stay of fhe department. Therefare, the question of shag them equal pay for equ work or considering their vase jor regidarisation w ould nat anise.
&) Case ine decided dy the Bon 'ble Apes Cow? in Cad? Appeal No FSS G000 & dnckicn Drugs & pharmaceuticals Lid, » workman, fedian § Brags & Pharmecenticats Lek On 16.11.20061 states thar |
- 7 x & ' . ae Peeey : ra ' = FRRPOPURW CORP ACTER" casual! dally ware' adhe eniplorees are Mot to X é be absorbed dehors constitution scheme public enanlovment, 2) cour ° S SaNHOt direct continuation in service of a noR ~regular appointee, 3) Cour? shoadd not be ataped by de long period as working fo direct COPHENNGRCE OR & Dermanent basis © tn respect of para (a)(6) above, applicant was selected in 1905 by the competent authority as per rules governing the appointment in 1904 and as per law clarified in detail in paras supra. Tlrus appointment of the applicant is as per relevant rules prevailing at the time of the appointment of the applicant. Coming to the paras (a) (7) and (b) above, the apex court in its latest judgment in Narender Kumar Towari delivered in 2018 referred to at para VU above lays down the principle that Uma Devi Judement is applicable to all persons tacluding daily-wage/ad hoc/casual employees. While referring to Civ Appeal No.4996 /2006 it is also to be noted that at para 44 of Uma Devi case, the Hon'ble Apex Court has piven one time exemption for regularisation of the services of employees who are working for 10 years or more prior to the decision, Applicant is covered by Uma Devi verdict as was discussed in paras supra. Candidly the respondents in Civil Appeal No.4996/2006 were 10 causal labourers appointed on compassionate grounds in order to maintain industrial peace without any policy or rule to do so. The facts and circumstances are thus totally different. The other judgments referred to in Civil Appeal No.4996/2006 relied upon by the respondents are pre Uma Devi and hence not discussed as they have no bearing on the case being dealt. Therefore, the decisions in ee .
ws, Govidaswamy and Civil Appeal 4996/2006 are thus irrelevant to the im) Hon'ble High caurt of Judicature at Paina in Ram Sevak Yadav v The state of Bihar & Ors on 1,2.2013 Phe petitioners It this case were Involved in furvery of records and were ferevnated front service on 14.6. 200) amd 30.70.2060) respectively If ix alsa stated there in that the petitioners did ret approach the court with clean hands. Hence the jacts and cirenpastances of the ted case are nowhere nearer to the case on hand to draw any inferences far apniving them fe the pestant CASE,
iv) Hon'ble Supreme Court In Secretary to Government Commercial Taxes and Registration Department, Secretariat & Ors v A. Singamuthu (2017) 4 SCC 113 observed that:
9 Part me ar casual employment is meant te serve the exigencies of administration. It is a settled princinle af law that continuance in service for fang period on part ~ tine ar lemporary basis confers no righ? to seek regularisation in SOPVICR LN TRe Hanble Supreme Court in its own judgment tendered later in Narender Kumar Tiwari and Ors Ete v The State of Jharkhand & Ors Etc on O1.08.2018, observed at para 10 as under:
10. xxx The one-fime exercise should consider all daily-
wagefad Aecfcasual employees who had put in 10 years ef confimous service as on 10-¢-2000 without availing the protection of any interun arders of courts ar tribunals.
Hence, as per the later jadgment of Hon"ble Apex Court in Narender Kumar Tiwari case (sypra} the applicant case deserves ta be Consequently, Singamuthu is accordingly distinguished.
¥} Lastly, decision of drs Tribunal ix O4 1360/2019 was relied upon by the respondents to suppert their contention. ds § anpiicable?
The applicant in the cited case was engaged on outsourcing basis as and when work was available and for coming late to office frequently as well for his errant behaviour he was disengaged. No appointinent order was issued to him. In the instant case appointment order was issued to the applicant and he has not been subjected to any disciplinary action as per records filed. Hence the said case has no relevance to the case on hand in regard to facts ar as per law, IX} Besides citing the case laws, respondents have appended the instructions pertaining to casual labourers issued from 1985 to i995. The same were perused in detail. They are inconsequential consequent to the law laid down in Uma Devi in 2006 which squarely cavers the case of the applicant. It is needless to mention that the lave prevails aver rules when the applicability among the two is called inte question, A} The applicant is now around 46 years old. His work hours have been increased to 8 hours from 2010 with minimum of Group D Pay + DA but the aspect of regularisation of his services is eluding him over the last 2 decades. Doors are closed to seek alternate jobs in Govt.
Sector. It is too late in the day to seek any job in the private sector too.
See % *.
s s $ Moreover, family responsibilities at thi = is age < Me ate re face Ife a e add to the worries of a with confidence as it ought to be. Rules, law and favour the applicant. The sting of the audit objection has been blunted with the direction in the Uma Devi hudgment which covers the regularisation of the services of the applicant to the hilt. Therefore espandents trying to Hump the gun by trying to disengage the toant | SIDE pplicant based on an audit objection withor i weighing the pros and cans af law, is uncalled for, The contours of the case does make evident that there are z Ss galore of mistakes which have becn committed by the respondents in processing the case at different stages which forced the applicant to tigate. A proper and meaningful administrative response al the appropriate time would have drawn curtains on the XI) in view of the aforesaid cireumstan the OA suce ces, Viewed from any angle ds. Consequently, to right the wron eg. ir i respondent is directed to consider grant of temporary status as per eligibility and ; rn res ¥e' e . a ;
thereafter, regularise the services of the applicant in the eligible cadre keeping In view Postal Directors letier dated 34.6 accordance with £ 2014 and in provisions of law advanced in paras cited supra, against any appropriate vacancy available from 2014 onwards. If OTEVIOUS Wears Vacancies are not available then, against any vacancy immediately avatlabl or against the first vacancy that may arise in
3. x a3 se the near future mm the 3 respondent office or any of the Postal RMS divisions under the control of the respondent off It is made Ke, ny A clear that if the applicant is regularised against any of the available previous year's vacancy, he is net eligible for grant of any back . ., . a he La ws & "i . * . s 7 ». . ™N wages. In such an eventuality, notional seniority along with --
} =) consequential benefits, if any, as per norms, has to be allowed from the date of regularisation. Time allowed to implement the judgment is 4 months from the date of receipt of this order. Till a decision is taken as directed, status quo ante shall be maintained.
AYD) With the above direction, the OA is allowed ts the extent incieated.
ALD Parties will bear their own costs.