Patna High Court
Union Of India (Uoi) And Ors. vs Central Administrative Tribunal And ... on 21 September, 2005
Equivalent citations: (2006)IILLJ491PAT
JUDGMENT S.N. Hussain, J.
1. This writ petition has been filed for quashing order dated August 6, 2004 (Annexure-4), by which the Central , Administrative Tribunal (hereinafter referred to as 'the Tribunal' for the sake of brevity) allowed O.A. No. 933 of 2003 filed by respondents No. 2, 3 and 4, who were casual workers for direction to the authorities concerned (petitioners of this writ case) to confer upon them temporary status and thereafter consider them for regularisation.
2. Learned Counsel for the Union of India (petitioner) has submitted that Casual] Labourers (Grant of Temporary Status and Regularisation) Scheme, 1993 (Annexure-2) (hereinafter referred to as 'the Scheme' for the sake of brevity) was not an ongoing scheme and temporary status can be conferred on casual labourers under the scheme only on fulfilling the condition incorporated in Clause-4 of the Scheme that there should have been casual labourers in employment on the date of commencement of the Scheme and that they should have rendered continuous service of at least one year i.e. 240 days in a year or 206 days in a year in case of offices having 5 working days in a week.
3. Petitioners' learned Counsel also averred that Clause 4(i) of the Scheme specifically provided that "Temporary status would be conferred on all casual labourers who are in employment on the date of issue of this O.M. (office memorandum) dated September 10, 1993 and who have rendered a continuous service of at least one year which means that they must have been engaged for a period of at least 240 days (206 days in the case of offices observing 5 days week)." Hence, according to him the said Scheme was applicable to only those casual labourers who were engaged prior to the date when the scheme came into force and had completed one year by that date,
4. Learned Counsel for the petitioners further stated that earlier various Benches of Central Administrative Tribunal and even some Hon'ble High Courts took the view that the Scheme is an ongoing affair and all casual employees who worked for 240 days (206 days in five days week offices) or more acquired right to temporary status, but the matter was finally settled by the Hon'ble Apex Court in case of Union of India and Anr. v. Mohan Pal and Ors. which it was held as follows at pp. 561 & 562 of LLJ:
9...However, we make it clear that the Scheme of September 1, 1993 is not an ongoing scheme and the "temporary" status can be conferred on the casual labourers under that Scheme only on fulfilling the conditions incorporated in Clause-4 of the Scheme, namely, they should have been casual labourers in employment as on the date of the commencement of the scheme and they should have rendered continuous service of atleast one year i.e. atleast 240 days in a year or 206 days (in case of offices having 5 days a week)....
5. In the said circumstances the learned Counsel for the petitioners claimed that even according to the claim of respondents No. 2,3 and 4 they were engaged on October 14, 1993, August 9, 1996 and January 1, 1996 respectively, hence on the date when the said scheme came into force none of them were engaged as causal workers, nor they had rendered one year of service and accordingly they were not entitled to any benefit under the Scheme. He further claimed that the said respondents were engaged on the basis of work contract issued in their favour from time to time and hence they cannot be termed as casual labourers under the Scheme, but the Tribunal without appreciating the said facts and provisions of law wrongly allowed the claim of respondents No. 2 to 4 by the impugned order.
6. On the other hand learned Counsel for 5 respondents No. 2 to 4 has submitted that it is not in dispute that they are regularly and continuously working as workers since 8-10 years, as out of them respondent No. 2 was appointed vide letter dated October 14, 1993 with effect from July 1, 1993 till October 8, 1996 but thereafter he was re-engaged from October 9, 1996, whereas respondent No. 3 was engaged from August 9, 1996 till January 29, 1998 but thereafter his employment was renewed, whereas respondent No. 4 was engaged from January 1, 1996 till January 29, 1998 but thereafter his employment was also renewed and as such all of them are working since their respective initial appointments till date continuously without any interruption and have thus completed the requisite number of working days as per the Scheme formulated by the authorities themselves and extended from time to time.
7. Learned Counsel for respondents No. 2 to 4 also averred that their respective appointment letters were issued by the Directorate of Revenue Intelligence itself, directly engaging the respondents, whereafter their appointment/engagement continued till date by the Directorate, as such they were not engaged under or through any contractor and hence mere use of word 'contract' cannot legally mean work contract as they had been regularly and continuously for 8-10 years doing the job of casual workers under the petitioners and would thus naturally be entitled to all the benefits arising thereof. Respondents' learned Counsel further stated that the Hon'ble Apex Court in the case of Union of India and another (supra) has not given a blanket power to the employers to refuse temporary status to the employees who have acquired the same by long continuous service and by having the requisite qualifications and in that regard he relied upon the same decision which reads as follows 2002-II-LLJ-558 at p. 561:
7. Having regard to the general scheme of 1993, we are also of the view that the casual labourers who acquire "temporary" status cannot be removed merely on the whims and fancies of the employer. If there is sufficient work and other casual labourers are still to be employed by the employer for carrying out the work, the casual labourers who have acquired "temporary" status shall not be removed from service as per Clause 7 of the Scheme. If there is serious misconduct or violation of service rules, it would be open to the employer to dispense with the services of a casual labourer who had acquired the "temporary" status.
8. It was also claimed by the learned Counsel for respondents No. 2 to 4 that apart from the Scheme of 1993, the Hon'ble Apex Court as well as the High Courts have unequivocally and consistently held in a plethora of decisions that such employees who have been working in the establishment since long and who possessed requisite qualifications for the job on the date of employment must be allowed to continue on their job and their service should be regularised. In this connection he relied upon a decision of the Hon'ble Apex Court in the case of Jacob M. Puthusparambil and Ors. v. Kerala Water Authority and Ors. . He further claimed that even in case of insufficiency in educational qualification in any daily rated worker, confirmation cannot be refused because he had gained sufficient experience after long years in service and he will be entitled to pay equal to the pay of regular appointees, as has been held by the Hon'ble Apex Court in another decision in the case of Bhagwati Prasad v. Delhi State Mineral Development Corporation .
9. Respondents No. 2 to 4 have also annexed decision of this Court as well as of the Hon'ble Apex Court in CWJC No. 2711 of 2004 and in Special Leave to Appeal (Civil) No. CC 9823 of 2004 in the case of Union of India and Ors. v. Central Administrative Tribunal and Ram Pravesh Thakur and Ors. claiming that in similar circumstances cases filed by the writ petitioner were rejected. It was further argued on their behalf that considering the aforesaid case laws as well as realising the fact that they have been working with the petitioners for the last more than 8-10 years, the Tribunal rightly held that denying similar benefits of the said Scheme, being extended from time to time by other departments, would cause great hardships and discrimination to the applicants without any cogent reasons and hence the impugned order of the Tribunal is legal and proper requiring no interference.
10. After hearing learned Counsel for the petitioners and learned Counsel for respondents No. 2 to 4 and after considering the materials on record produced by both the parties it is quite apparent that respondents No. 2 to 4 are casual workers. It is not in dispute that they fulfilled all the criteria for the post at the time of their appointment, that they were directly appointed by the Directorate which had the power to appoint and that they are continuously working since more than 8-10 years and were never disengaged. These facts lead to a clear and unambiguous conclusion that the Directorate has regular need of their service which fact takes away the casual nature of their employment. These facts also lead to a conclusion that respondents No. 2 to 4 were neither appointed on work contract basis nor they have been working as contract workers because there is no material to show that they are working for any fixed period or as per any contract with any one.
11. It is not in dispute that respondents No, 2 to 4 have continuously spent 8-10 years in service and have already spent prime period of their life in the service of the petitioners having requisite qualification and satisfactory service record and now if they are not regularised they will have no place to go and their entire future would be doomed, in spite of serving the petitioners for such a long period. In such a situation it becomes obligatory for the concerned authority to examine the feasibility of their regularisation and while doing so they must adopt a positive approach coupled with an empathy for such persons. This becomes more important in case where the authority is a welfare State or its functionary. These observations are being made impelled by the facts of this case and the spate of litigations by such hapless employees. This is not exhaustive, nor they can be deemed to be immutable and the Government or its authority must decide such cases as per their criteria and principles with respect to regularisation considering all the relevant circumstances, but they must do it expeditiously without waiting for the employees to spend such long years.
12. Much before the Scheme of 1993 came into force, the guiding principle for regularisation of service of such workers had been laid down by the Hon'ble Apex Court in its decision in the case of State of Haryana and Ors. v. Piara Singh and Ors. in which it was held that in such matters Courts should act with due care and caution and in cases regarding problems of wholesome regularisation of daily wage workers or casual labourers who are not workmen under Industrial Disputes Act, blanket direction to regularise all of them on completion of one year service was not proper. But at the same time it was also held that when any casual worker continued for 2-3 years, the presumption would be that there was regular need of his service and hence the authorities must make efforts for his regularisation as early as possible subject only to them being qualified and to availability of work. And for that purpose the following guiding principles have been prescribed in the said judgment 1993-II-LLJ-937 at p. 956:
45. The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made, In such a situation, effort should always be to replace such an ad hoc/temporary employees by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad /hoc/temporary employee.
46. Secondly, an ad hoc 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.
47. Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.
48. An unqualified person ought to be appointed only when qualified persons are not available through the above processes.
49. If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.
50. The proper course would be that each State prepares a scheme, if one is not already in vogue, for regularisation of such employees consistent with its reservation policy and if a scheme is already framed, the same may be made consistent with our. observations herein so as to reduce avoidable litigation in this behalf. If and when such person is regularised he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be.
51. So far as the work-charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell-say two or three years - a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this Court, security of tenure is necessary for an employee to give his best to the job ...
13. So far the Scheme of 1993 is concerned, no doubt it had been prescribed therein that temporary status would be conferred on all casual labourers, who are in employment on the date of issue of the said office memorandum, which was dated September 10, 1993 and who had rendered a continuous service of at least one year. But in the case in hand respondents No. 2 to 4 had definitely fulfilled one of the said criteria i.e. they have completed much more than one year, in fact 8-10 years, of continuous service as casual workers. It also cannot be disputed that the Hon'ble Apex Court in the case of Union of India and another (supra) has held that the said Scheme was not an ongoing scheme and it was meant only for those casual labourers, who had fulfilled the conditions incorporated in Clause-4 of the Scheme that they should have been working as casual labourers on the date of commencement of the Scheme. Hence, in these circumstances the Scheme may not be applicable to these respondents, but that does not mean that general principles governing appointments, absorption and regularisation of service would not be applicable to those persons, who have already put in such a long tenure of continuous service and the authorities concerned would reject their claim ignoring the aforesaid principle laid down by the Hon'ble Apex Court much before coming into force of the scheme of 1993.
14. The Hon'ble Apex Court as well as this Court on several occasions have deprecated employment of temporary or casual workers for the post/works of permanent nature as would be apparent from the decisions in the cases of Bhagwati Prasad (supra), Jacob M. Puthusparambil (supra) and State of Haryana and others (supra) and for that the Scheme of 1993 was provided, but disregarding the same the authorities concerned appointed the said respondents No. 2 to 4 on the post/works of permanent nature as would be apparent from their continuous and uninterrupted service for 8-10 years. Hence, in the aforesaid circumstances even if the Scheme of 1993 was not applicable in the instant case, it was the duty of the authorities concerned to take positive steps in the case of said respondents in accordance with the guiding principles laid down by the Hon'ble Apex Court in the case of State of Haryana and others etc. (supra).
15. It may be noted that the petitioners are authorities of a Welfare State and the Union of India is a model employer, hence it is not expected of them to cling to the technicalities of the forms, rather they should see the substance and realities of accepting facts and prevailing situation, which in the instant case is of their own making. It appears quite unfair on the part of the petitioners to keep on quibbling on the questions with respect to the date of appointment of respondents No. 2 to 4 and applicability of Scheme of 1993 which appears to be quite immaterial in the facts and circumstances of this case. There is also no dispute with respect to the fact that there is a disparity in salaries and emoluments and other working conditions between casual workers and regular employees doing the same work and for the same duration in the same conditions but one of them with and the other without the real benefits of the job, securities, facilities and emoluments etc. Hence, respondents No. 2 to 4, who are working continuously for 8-10 years on a job of permanent nature and all of them having required qualifications at the time of their appointments by the authorities who had the power to appoint them, fully deserve the same security, facilities and benefits of service as of the permanent employees. This view finds support from another decision of the Hon'ble Apex Court in the case of State of West Bengal and Ors. v. Pantha Chatterjee and Ors. .
16. Furthermore, from the Scheme of 1993, it appears that no bar has been provided therein with regard to temporary status or regularisation of casual labourers, who were to be engaged after 1993. Furthermore, the petitioners themselves have been extending such benefits to casual labourers of various departments from time to time, even after coming into force of the Scheme of 1993. In any view of the matter such types of scheme are formulated for the welfare of such employees and not for exploiting them as "Begaars" and throwing them out after taking work during the prime period of their life for 8-10 years. Such acts are clearly violative of the directive principles of State policy enshrined in Article 39 of the Constitution of India and also the endeavour the State has to make under Article 43 thereof. Hence, in the aforesaid circumstances, respondents No. 2 to 4 are definitely entitled to similar treatment if not by the authorities then at least by the Courts.
17. In the aforesaid facts and circumstances, the decision of the Tribunal cannot be faulted with, which is based on its opinion that respondents No. 2 to 4 were also entitled for extension of benefits of the aforesaid Scheme, which had been extended from time to time by the petitioners themselves in several departments and no discrimination can be allowed to be cast to the persons employed after 1993 only on the ground that the Scheme of 1993 had been held to be a one time scheme and not ongoing scheme, frustrating the entire purpose and efforts of the Welfare State, for which various schemes have been formulated from time to time. Hence the Tribunal has rightly directed the petitioners to confer temporary status to the applicants and thereafter to consider their cases for regularisation against available vacant posts while passing a reasonable and speaking order within a period of four months, but in any case the said applicants (respondents No. 2 to 4) were held not entitled for any back wages after attaining temporary status.
18. In the said circumstances, I do not find any illegality in the impugned order and accordingly this writ petition is dismissed.
Nagendra Rai, J.
19. I agree.