Central Administrative Tribunal - Delhi
Giri Raj Singh Pal @ Giri Raj vs Union Of India on 23 April, 2015
Central Administrative Tribunal Principal Bench, New Delhi. OA No.4379/2013 New Delhi this the 23rd day of April, 2015 Honble Mr. G. George Paracken, Member (J) Honble Mr. P.K. Basu, Member (A) 1. Giri Raj Singh Pal @ Giri Raj S/o Late Dilshukh Ram, aged About 49 years, H.No. RZ-L/16/287, Gali No.5, Gitanjali Park, West Sagar Pur, New Delhi-110046. 2. Phool Singh S/o Shri Ganga Ram Aged about 47 years, A-13, 2nd Floor, J.J. Colony, Inderpuri, New Delhi-110012. 3. Bhola Paswan S/o Ramashsh Paswan Aged about 41 years C/o T-124, Gali No.6, Palam Road, East Sagar Pur, New Delhi-110046. 4. Ramesh Kumar S/o Muneshwar Kamti Aged about 48 years, 121, Todapur, New Delhi-110012. 5. Bishan Kumar @ Bishandeo S/o Shri Shivejee Kapar Aged about 47 years H.No.136 (N), Chiria Colony, IARI, Pusa, New Delhi. 6. Ramesh Chander @ Ramesh Chand S/o Shri Lakhi Ram RZ-32/1, Gali No.15, Main Sagar Pur, New Delhi-110046. 7. Arun Shah S/o Ram Chander Shah Aged about 43 years Quarter No.I-1564, Krishi Kunj, Block No.57, Pusa, New Delhi-110012. 8. Baleshwar Pandit S/o Shri Ram Lakhan Pandit Aged about 45 years Plot No.3, Gali No.6/2, Raksha Enclave, Mohan Garden Uttam Nagar, New Delhi-110059. 9. Nagender Kumar @ Nagendra S/o Shri Firangi Lal Aged about 42 years B-12, Servant Quarter, IARI, Pusa, New Delhi-110012 All are Casual Workers/Beldars Of National Bureau of Plant Genetics Resources, Pusa Campus, New Delhi-110012. ..Applicants By Advocate: Shri Ravi Shankar Kumar. Versus 1. Union of India Through The Secretary, Ministry of Agriculture, Krishi Bhawan, New Delhi-110001. 2. Indian Council of Agricultural Research (ICAR) Through its Directorate General, Krishi Bhawan, New Delhi-110001. 3. National Bureau of Plant Genetic Resources (NBPGR), Through its Director, Pusa Campus, New Delhi-110012. Respondents By Advocate: Shri B.S. Mor. ORDER (ORAL)
G. George Paracken, Member (J) The Applicants have filed this Original Application seeking the following reliefs and interim reliefs:-
Reliefs (i) Quash the impugned tender invitation letter No.F-24-254/2004/P-IV dated 01.10.2013 of Respondent No.3 by which the said Respondent had invited tender for Job Contract on permanent posts and for such services like job work for the agricultural operations/research work at NBPGR in the places where the Applicants were serving as Casual Labourers/Beldars;
(ii) Direct the Respondents to confer Temporary Status to the Applicants as per the provision of Scheme, namely, Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India 1993;
(iii) Direct the Respondents to pay the arrears of amount of weekly off to the Applicants as per GOI policy dated 07.06.1988 by which the casual workers are entitled for one paid weekly off after six days of continuous work but the Respondents had not ever paid the wages of weekly off days;
(iv) Direct the Respondents to pay the arrears of amount of Non-Productive Linked Bonus (ad hoc) in the year 2008 to the Applicants as paid by Respondents No.2 and 3; and
(v) Any other order that may be deemed fit and appropriate in the circumstances of the case may also be passed.
Interim Reliefs (i) During pendency of the instant OA grant ad interim ex-parte order by which the Respondent No.3 is directed to re-engage these Applicants as Casual Labour/Beldar subject to the finality of the judgment passed in this Original Application;
(ii) Stay the operation of the impugned tender invitation for Job Contract letter No.F-24-254/2004/P-IV dated 01.10.2013 of Respondent No.3 by which the Respondent No.3 had invited works contract ion perennial posts and for such services like job work for the agricultural operations/research work at NBPGR in the places were the Applicants were serving as Casual Labourers/Beldars; and
(iii) Any other order that may be deemed fit and appropriate in the circumstances of the case may also be passed.
2. The brief facts of the case are that the Applicants in this case have been working as Casual Labourers/Beldars with the Respondent No.3, namely, the National Bureau of Plant Genetic Resources (NBPGR for short), Pusa Campus, New Delhi and discharging their services satisfactorily from 1985-86 onwards. However, according to the Applicants, the Respondents have not even given the temporary status nor regualrised them so far. Now the Respondents, vide their Tender Notice dated 01.10.2013, invited tender for various jobs of Agricultural Operations to be carried out.
3. According to the Applicants, they are the sole bread earners of their family. They have also stated that earlier they requested the Labour Union, namely, Delhi Karamchari Sangh which is registered and affiliated by Bhartiya Mazdoor Sangh for helping them in reengagement and for conferment of temporary status. The said Union has also raised the issue before the Labour Commissioner, New Delhi which in turn had issued notice to the management of Respondent No.3 but due to their non-cooperation, the conciliation proceedings failed and dispute between the parties was not adjudicated.
4. The Respondents have filed their reply stating that this OA is wholly misconceived as no right has accrued to the Applicants because they have been merely engaged as daily paid labourers. Moreover, they have also raised the issue of Industrial Dispute in this matter.
5. We have heard the learned counsel for the Applicants Shri Ravi Shanker Kumar and the learned counsel for the Respondents Shri B.S. Mor. Undisputedly, a very same issue was considered by this Tribunal in a common Order dated 20.05.2014 in OA No.3003/2012 and OA No.3118/2012 Maman Singh and Others Vs. U.O.I. and Others and Dharambir and Others Vs. U.O.I. & Others respectively. After detailed discussion of the issues involved in this matter, the Tribunal has allowed those OAs with a direction to the Respondents to grant temporary status to all eligible casual labourers as on 01.09.1993 irrespective of the availability of regular vacancies in terms of the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India, 1993 and also to pay wages at daily rates with reference to the minimum of the pay scale for a corresponding regular Group `D official including DA, HRA and CCA. The operative part of the said order reads as under:-
12. We have heard the learned counsel for the Applicants Shri U. Srivastava in OA No. 3003/2012, Shri Anil Singal for Applicants in OA No. 3118/2012 and the learned counsel for the Respondents Shri S.S. Lingwal in both the OAs. Admittedly, the Applicants in OA No.3003/2012 (supra) have been engaged as casual labourer during the period from 1977 to 1990 through the Employment Exchange. From the earlier orders of this Tribunal in the case of the Applicants, it is seen that they were being engaged as Casual Labourers in more than 100 acres of land owned by the 2nd Respondent for carrying out agricultural research. They are an integral part of the research programme. But the Respondents have not created any posts for their work. Thus, they were treated as only casual workers for all these years. In 1986, the Respondents disengaged some of these casual labourers apprehending that they would claim regularization in service. This Tribunal vide its order dated 05.02.1992 in TA No.132/1987 held that such action on the part of the Respondents was in violation of Articles 14 and 16 of the Constitution of India. This Tribunal has also directed the Respondents to prepare a panel of such workers and when regular vacancies occur persons in the panel should be given weightage according total number of days served while considering them along with others in accordance with the provisions of the Employment Exchange Act or the relevant recruitment rules subject, of course, to the conditions of screening of the casual workers for adjudging their suitability and performance and medical fitness. As the Respondents did not prepare any such panel and started artificial break in their service, they approached the Tribunal again vide OA No.2788/1992 and OA No.2869/1992 alleging discrimination in the matter of payment of salary/wages at par with the regular employees as they are also performing the same work. This Tribunal disposed of the said OAs also vide order dated 04.05.1993 to prepare the panel as expeditiously as possible and to continue engaging them as casual labourers if vacancies exist and in preference to persons with lesser length of service and outsiders till such time the panel is prepared. The Respondents were also directed that if they take the work of regular employees from the petitioners, they shall be paid the same salary which is paid to the regular employees. Again the Applicants approached this Tribunal vide OAs No. 1185/2003 (supra) and 1212/2003 (supra) seeking a direction to regularise their service. Those OAs were disposed of with the direction to examine the case of the Applicant in the light of the Scheme of regularization issued by the DOP&T on 07.06.1988. According to the said OM, Recruitment of daily wagers may be made only for work which is casual or seasonal or intermittent nature or for work which is not of full time nature, for which regular posts cannot be created. The work presently being done by regular staff should be reassessed by the administrative Departments concerned for output and productivity so that the work being done by the casual workers could be entrusted to the regular employees. The Departments may also review the norms of staff for regular work and take steps to get them revised, if considered necessary. In cases where it is not possible to entrust all the items of work now being handled by the casual workers to the existing regular staff, additional regular posts may be created to the barest minimum necessary, with the concurrence of the Ministry of Finance. A copy of the aforesaid OM is reproduced below:-
Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) OM No. 49014/2/86 Estt.(C ) dated 7th June ,1988.
(XVI) Subject: Recruitment of casual workers and persons on daily wages Review of policy.
The policy regarding engagement of casual workers in Central Government offices has been reviewed by Government keeping in view the judgement of the Supreme Court delivered on the 17th January, 1986 in the Writ Petition filed by Shri Surinder Singh and others vs. Union of India and it has been decided to lay down the following guidelines in the matter of recruitment of casual workers on daily wage basis:-
i) Persons on daily wages should not recruited for work of regular nature.
ii) Recruitment of daily wagers may be made only for work which is casual or seasonal or intermittent nature or for work which is not of full time nature, for which regular posts cannot be created.
iii) The work presently being done by regular staff should be reassessed by the administrative Departments concerned for output and productivity so that the work being done by the casual workers could be entrusted to the regular employees. The Departments may also review the norms of staff for regular work and take steps to get them revised, if considered necessary.
iv) Where the nature of work entrusted to the casual workers and regular employees is the same, the casual workers may be paid at the rate of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance for work of 8 hours a day.
v) In cases where the work done by a casual worker is different from the work done by a regular employee, the casual worker may be paid only the minimum wages notified by the Ministry of Labour or the State Government/Union Territory Administration, whichever is higher, as per the Minimum Wages Act, 1948. However, if a Department is already paying daily wages at a higher rate, the practice could be continued with the approval of its Financial Adviser.
vi) The casual workers may be given one paid weekly off after six days of continuous work.
vii) The payment to the casual workers may be restricted only to the days on which they actually perform duty under the Government with a paid weekly off as mentioned at (vi) above. They will, however, in addition, be paid for a National Holiday, if it falls on a working day for the casual workers.
viii) In cases where it was not possible to entrust all the items of work being handled by the casual workers to the existing regular staff, additional regular posts should have been created with the concurrence of the Ministry of Finance.
ix) Where work of more than one type is to be performed throughout the year but each type of work does not justify a separate regular employee, a multifunctional post may be created for handling those items of work with the concurrence of the Ministry of Finance.
x) The regularisation of the services of the casual workers will continue to be governed by the instructions issued by this Department in this regard. While considering such regularisation, a casual worker may be given relaxation in the upper age limit only if at the time of initial recruitment as a casual worker, he had not crossed the upper age limit for the relevant post.
xi) If a Department wants to make any departure from the above guidelines, it should obtain the prior concurrence of the Ministry of Finance and the Department of Personnel and Training. All the administrative Ministries /Deptts. Should undertake a review of appointment of casual workers in the offices under their control on a time-bound basis so that at the end of the prescribed period, the following targets are achieved:-
a) All eligible casual workers are adjusted against regular posts to the extent such regular posts are justified.
b) The rest of the casual workers not covered by (a) above and whose retention is considered absolutely necessary and is in accordance with the guidelines, are paid emoluments strictly in accordance with the guidelines.
c) The remaining casual workers not covered by (a) and (b) above are discharged from service.
2. The following time limit for completing the review has been prescribed in respect of the various Ministries/Deptts:-
a) Ministry of Railways 2 Years
b) Department of Posts, Department of 1 Year Telecommunications and Department of Defence Production
c) All other Ministries / Deptts./Offices 6 months Each Ministry should furnish a quarterly statement indicating the progress of the review in respect of the Ministry (Proper) and all Attached / Subordinate offices under them to the Department of Personnel and Training in the proforma attached. The first quarterly return should be furnished to this Department by the 10th October. 1988.
3. By strict and meticulous observance of the guidelines by all Ministries/Deptts, it should be ensured that there is no more engagement of casual workers for attending to work of a regular nature, particularly after the review envisaged above is duly completed. Each Head of Office should also nominate an officer who would scrutinize the engagement of each and every casual worker and the job for which is being employed to determine whether the work is for casual nature or not.
4. Ministry of Finance etc. are requested to bring the contents of this Office Memorandum to the notice of all the appointing authorities under their respective administrative control for strict observance. Cases of negligence in the matter of implementing these guidelines should be viewed very seriously and brought to the notice of the appropriate authorities for taking prompt and suitable action against the defaulters.
Sd./-
D.P. Bagchi Joint Secretary to the Government of India.
But the Respondents without undertaking any exercise as envisaged in the aforesaid OM dated 07.06.1988 rejected their case once again vide order dated 07.08.2003 stating that it was not possible for them to regularize their services against Group D posts when there was no vacancy but they were to be considered to be engaged in terms of seniority list as and when need arises.
13. Thereafter, the DOP&T has issued OM No.51016/2/90-Estt. Dated 10.09.1993 regarding grant of temporary status and regularization of casual workers. Along with the said OM the DOP&T has issued the Casual Labourers (Grant of Temporary Status & Regularisation) Scheme of Government of India 1993. The aforesaid OM together with the Scheme is reproduced as under:-
Ministry of Personnel, Public Grievances and Pensions (Deptt. of Personnel and Training) OM No. 51016/2/90 Estt. ( C ) dated 10th September, 1993 (XXI) Subject: Grant of temporary status and regularisation of casual workers - Formulation of a scheme in pursuance of the CAT, Principal Bench, New Delhi, Judgment dated 16th February, 1990 in the Case of Raj Kamal & Others Vs UOI.
The guidelines in the matter of recruitment of persons on daily-wage basis in Central Government offices were issued vide this Departments OM No. 49014/2/86-Estt. ( C) dated 7.6.88. The policy has further been reviewed in the light of the judgment of the CAT, Principal Bench, New Delhi delivered on 16.2. 1990 in the writ petition filed by Shri Raj Kamal & Others Vs Union of India and it has been decided that while the existing guidelines contained in OM dated 7.6.88 may continue to be followed, the grant of temporary status to the casual employees, who are presently employed and have rendered one year of continued service in Central Government offices other than Deptt. of Telecom, Posts and Railways may be regulated by the scheme as appended.
2. Ministry of Finance etc. are requested to bring the scheme to the notice of appointing authorities under their administrative control and ensure that recruitment of casual employees is done in accordance with the guidelines contained in OM dated 7.6.88. Cases of negligence should be viewed seriously and brought to the notice of appropriate authorities for taking prompt and suitable action.
Sd/-
Y.G. Parande Director.
1. This scheme shall be called "Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India, 1993.
2. This Scheme will come into force w. e. f. 1.9.1993.
3. This scheme is applicable to casual labourers in employment of the Ministries/Departments of Government of India and their attached and subordinate offices, on the date of issue of these orders. But it shall not be applicable to casual workers in Railways, Department of Telecommunication and Department of Posts who already have their own schemes.
4. Temporary Status
(i) Temporary status would be conferred on all casual labourers who are in employment on the date of issue of this OM 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).
(ii) Such conferment of temporary status would be without reference to the creation/availability of regular Group `D posts.
(iii) Conferment of temporary status on a casual labourer would not involve any change in his duties and responsibilities. The engagement will be on daily rates of pay on need basis. He may be deployed anywhere within the recruitment unit/territorial circle on the basis of availability of work.
(iv) Such casual labourers who acquire temporary status will not, however, be brought on to the permanent establishment unless they are selected through regular selection process for Group `D posts.
5. Temporary status would entitle the casual labourers to the following benefits:-
(i) Wages at daily rates with reference to the minimum of the pay scale for a corresponding regular Group `D official including DA, HRA and CCA
(ii) Benefits of increments at the same rate as applicable to a Group `D employee would be taken into account for calculating pro-rata wages for every one year of service subject to performance of duty for at least 240 days, 206 days in administrative offices observing 5 days week) in the year from the date of conferment of temporary status.
(iii) Leave entitlement will be on a pro-rata basis at the rate of one day for every 10 days of work, casual or any other kind of leave, except maternity leave, will not be admissible. They will also be allowed to carry forward the leave at their credit on their regularisation. They will not be entitled to the benefits of encashment of leave on termination of service for any reason or on their quitting service.
(iv) Maternity leave to lady casual labourers as admissible to regular Group `D employees will be allowed.
(v) 50% of the service rendered under temporary status would be counted for the purpose of retirement benefits after their regularisation.
(vi) After rendering three years continuous service after conferment of temporary status, the casual labourers would be treated on par with temporary Group `D employees for the purpose of contribution to the General Provident Fund, and would also further be eligible for the grant of Festival Advance/Flood Advance on the same conditions as are applicable to temporary Group `D employees, provided they furnish two sureties from permanent Government servants of their Department.
(vii) Until they are regularized, they would be entitled to Productivity Linked Bonus/ Adhoc bonus only at the rates as applicable to casual labourers.
6. No benefits other than those specified above will be admissible to casual labourers with temporary status. However, if any additional benefits are admissible to casual workers working in Industrial establishments in view of provisions of Industrial Disputes Act, they shall continue to be admissible to such casual labourers.
7. Despite conferment of temporary status, the services of a casual labourer may be dispensed with by giving a notice of one month in writing. A casual labourer with temporary status can also quit service by giving a written notice of one month. The wages for the notice period will be payable only for the days on which such casual worker is engaged on work.
8. Procedure for filling up of Group `D posts (i ) Two out of every three vacancies in Group `D cadres in respective offices where the casual labourers have been working would be filled up as per extant recruitment rules and in accordance with the instructions issued by Department of Personnel and Training from amongst casual workers with temporary status. However, regular Group `D staff rendered surplus for any reason will have prior claim for absorption against existing/future vacancies. In case of illiterate casual labourers or those who fail to fulfill the minimum qualification prescribed for post, regularisation will be considered only against those posts in respect of which literacy or lack of minimum qualification will not be a requisite qualification. They would be allowed age relaxation equivalent to the period for which they have worked continuously as casual labourer.
9. On regularisation of casual worker with temporary status, no substitute in his place will be appointed as he was not holding any post. Violation of this should be viewed very seriously and attention of the appropriate authorities should be drawn to such cases for suitable disciplinary action against the officers violating these instructions.
10. In future, the guidelines as contained in this Departments OM dated 7.6.88 should be followed strictly in the matter of engagement of casual employees in Central Government offices.
11. Department of Personnel and Training will have the power to make amendments or relax any of the provisions in the scheme that may be considered necessary from time to time.
14. However, the Honble Supreme Court considered the aforesaid OM dated 10.09.1993 and Scheme in its judgment in Union of India Vs. Mohan Pal etc. 2002 (4) SCALE 216 and held that clause 4 thereof does not envisage it as an ongoing Scheme. The said judgment has also held that the temporary status is to be given only to those of employees who were in place when the O.M. came into force, i.e., w.e.f. 01.09.1993. Relevant portion of the judgment is reproduced hereinunder:
"Clause 4 of this Scheme is very clear that the conferment of 'temporary' status is to be given to the casual labourers who were in employment as on the date of commencement of the Scheme. Some of the Central Administrative Tribunals took the view that this is an ongoing Scheme and as and when casual labourers complete 240 days of work in a year or 206 days (in case of offices observing 5 days a week), they are entitled to get 'temporary' status. We do not think that clause 4 of the Scheme envisages it as an ongoing Scheme. In order to acquire "'temporary' status, the casual labourer should have been in employment as on the date of commencement of the Scheme and he should have also rendered a continuous service of at least one year which means that he should have been engaged for a period of at least 240 days in a year or 206 days in case of offices observing 5 days a week. From clause 4 of the Scheme, it does not appear to be a general guideline to be applied for the purpose of giving 'temporary'' status to all the casual workers, as and when they complete one year's continuous service. Of course, it is up to the Union Government to formulate any scheme as and when it is found necessary that the casual labourers are to be given 'temporary' status and later they are to be absorbed in Group 'D' posts.
15. The Apex Court considered the issue again in its judgment in Secretary, State of Karnataka and Others Vs. Uma Devi and Ors. 2006 AIR SCW 1991 and held that regularization of casual labourers is against the principle of equality of opportunity enshrined in Article 14 of the Constitution of India. The relevant part of the said judgment is as under:
36. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.
16. But an exception to the aforesaid principle has been carved out in para 44 of the said judgment which reads as under:-
44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
17. Thereafter, vide DOP&T OM No.49019/1/2006-Estt. (C ) dated 11.12.2006, the Department of Personnel has reviewed the aforesaid OM dated 07.06.1988 and issued revised instructions regarding regularization of qualified workers appointed against sanctioned posts in irregular manner. The said OM reads as under:-
No.49019/1/2006-Estt) Govt. of India Ministry of Personnel, Public Grievances & Pensions (Department of Personnel & Training) New Delhi, dated the 11th December,2006 OFFICE MEMORANDUM Subject: Regularisation of qualified workers appointed against sanctioned posts in irregular manner.
The undersigned is directed to say that the instructions for engagement of casual workers enunciated in this Departments OM No. 49014/2/86 Estt.(C) dated 7th June, 1988 as amplified from time to time, inter-alia provided that casual workers and persons on daily wages should not be recruited for work of regular nature. They could be engaged only for work of casual or seasonal or intermittent nature, or for work which is not of full time nature for which regular post can not be created. Attention is also invited to this Departments OM No. 28036/1/2001-Estt. (D) dated 23rd July, 2001 wherein it was provided that no appointment shall be made on ad-hoc basis by direct recruitment from open market.
2. A Constitution bench of the Supreme Court in civil appeal No. 3595-3612/1999 etc. in the case of Secretary State of Karnataka and Ors. Vs Uma Devi and others has reiterated that any public appointment has to be in terms of the Constitutional scheme. However, the Supreme Court in para 44 of the aforesaid judgement dated 10.4.2006 has directed that the union of India, the state Governments and their instrumentalities should take steps to regularize as a one time measure the services of such irregularly appointed, who are duly qualified persons in terms of the statutory recruitment rules for the post and who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or tribunals. The Apex Court has clarified that if such appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularized.
3. Accordingly the copy of the above judgement is forwarded to all Ministries/Departments for implementation of the aforesaid direction of the Supreme Court.
Sd./-
(C.A. Subramanian) Director.
18. Later on, Apex Court clarified its judgment in Uma Devis case (supra) in the case of State of Karnataka and Others Vs. M.L. Kesari and Others 2010 (9) SCC 247. The relevant part of the said judgment reads as under:-
7. It is evident from the above that there is an exception to the general principles against 'regularization' enunciated in Umadevi (AIR 2006SC 1806:2006AIRSCW 1991), if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.
8. Umadevi (AIR 2006 SC 1806: 2006 AIR 1991) casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi, directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006).
9. The term 'one-time measure' has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (AIR 2006 SC 1806: 2006 AIR SCW 1991), each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services.
10. At the end of six months from the date of decision in Umadevi, cases of several daily-wage/ad hoc/casual employees were still pending before Courts. Consequently, several departments and instrumentalities did not commence the one-time regularization process. On the other hand, some Government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of Para 53 of the decision in Umadevi (AIR 2006 SC1806: 2006 AIR SCW 1991, Para 44), will not lose their right to be considered for regularization, merely because the one-time exercise was completed without considering their cases, or because the six months' period mentioned in para 53 (Para 44 of AIR) of Umadevi has expired. The one-time exercise should consider all daily-wage/ad hoc/those 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. If any employer had held the one-time exercise in terms of para 53 (Para 44 of AIR) of Umadevi, but did not consider the cases of some employees who were entitled to the benefit of para 53 (Para 44 of AIR) of Umadevi, the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one time exercise will be concluded only when all the employees who are entitled to be considered in terms of Para 53 (Para 44 of AIR) of Umadevi, are so considered.
11. The object behind the said direction in para 53 of Umadevi (AIR 2006 SC 1806 : 2006 AIR SCW 1991, Para 44) is two- fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (2006 AIR SCW 1991) was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/ instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure.
19. The Honble High Court of Delhi has also considered the issue in the context of contractual employees who are also similarly placed as the casual labourers in W.P. ( C) No.6798/2002 Sonia Gandhi & Others VS. Govt. of NCT of Delhi and Others decided on 06.11.2013. In the said judgment the High Court emphasized the need for creating sufficient number of regular posts commensurate with the public need. The High Court has also given direction to the Respondent-Government in the said Writ Petition to sanction the required number of posts and to regularise the service of the existing contractual employees. The relevant part of the said judgment reads as under:-
19. For the reasons in paragraph 9 to 14 of the decision dated March 20, 2013 in W.P.(C) No.4641/2012, it needs to be highlighted that good governance would require the Government to ensure regular posts being sanctioned commensurate to the public need. It ill serves the interest of the society if requisite number of public posts are not sanctioned.
20. The Constitution Bench decision of the Supreme Court reported as 2006 (4) SCC 1 Secretary State of Karnataka & Ors. Vs. Uma Devi & Ors. held that creation of posts falls within the domain of the executive and Courts cannot issue directions to create post. The Bench also observed that in respect of irregular appointees who have worked for more than 10 years, as a one time measure, the Government should consider regularization.
21. Dealing with a camouflage appointment ostensibly through NGOs, but on lifting the veil, found to be a case of direct appointment by the Government of NCT Delhi of Laboratory Technicians and Radiographers at the Central Jail Tihar, a Division Bench of this Court of which one of us: Pradeep Nandrajog, J. was a Member of had directed the Government to assess requirement of para-medics at Tihar Jail keeping in view the fact that the Original Cadre was sanctioned when in the year 1996 Tihar Jail had a stated capacity of 3600 inmates which grew to 11000 inmates as of the year 2010. The Division Bench directed a one time scheme of regularization to be brought into force on the subject of age bar, the Division Bench noted that the contract appointed employees could not be visited with a disability due to unfair labour policies adopted by the Government.
22. Accordingly, we issue another direction and simultaneously dispose of the two writ petitions. The direction would be that the Government of NCT Delhi would carry out a manpower requirement assessment in all its departments keeping in view the fact that the population in Delhi has crossed 1.7 crore persons. Such number of posts shall be sanctioned as are necessary to provide services to the citizens of Delhi. A one time policy of regularization shall be framed and existing rules pertaining to service in different departments shall be amended. Existing contractual employees shall be considered for appointment to these new posts as per a policy framed.
20. A survey of all the aforesaid Office Memoranda issued by the Department of Personnel & Training from time to time regarding engagement of casual labourers, granting temporary status to them and their eventual regularization in service and the judicial pronouncements of this Tribunal, the Honble High Court of Delhi and the Honble Supreme Court of India leads to the inevitable conclusion that engagement of casual labourers cannot be altogether avoided. At the same time, the Apex Court in Uma Devis case (supra) has held in clear terms that regularization of such casual labourers in service is against the principle of equality of opportunity enshrined in Article 14 of the Constitution. However, the Apex Court was not oblivious of the fact that a large number of casual labourers have been working in the same capacity for years together without any hope of any security for their service. Therefore, as an exception to the general rule, the Apex Court in the case of Uma Devis (supra) itself has identified a class of casual workers who have been working for ten years or more. The Apex Court directed the Union of India, the State Governments and their instrumentalities to regularize them as a one time measure in duly sanctioned posts. In its judgment in M.L. Kesari and Others (supra), the Apex Court clarified the judgment in Uma Devis case in the following words:-
The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure.
It is in the above context, the judgment of the Honble High Court of Delhi in Sonia Gandhi and Others (supra) is to be viewed. In the said judgment, the High Court held that good governance would require the Government to ensure regular posts being sanctioned commensurate with the public need. The Honble High Court has also referred to the judgment of the Apex Court in Uma Devis case (supra) wherein it was held that creation of posts falls within the domain of the executive and Courts cannot issue directions to create post. But that does not mean that the executives have any arbitrary power to ignore the need of increased manpower to carry out the increased volume of work which cannot be entrusted to existing employees. The High Court have, therefore, given a direction to the Government to assess their requirement in view of fact that the sanctioned strength was determined long time back. The specific direction given by the High Court to the Government of NCT of Delhi was as under:-
the Government of NCT Delhi would carry out a manpower requirement assessment in all its departments keeping in view the fact that the population in Delhi has crossed 1.7 crore persons. Such number of posts shall be sanctioned as are necessary to provide services to the citizens of Delhi. A one time policy of regularization shall be framed and existing rules pertaining to service in different departments shall be amended. Existing contractual employees shall be considered for appointment to these new posts as per a policy framed.
21. We also find that the aforesaid directions are in consonance with the DOP&Ts OM dated 07.06.1988 wherein the Departments were directed to take steps to create additional posts wherever the work being done by the casual labourers cannot be entrusted to the existing regular employees. The relevant part of the said OM is as under:-
(i) The work presently being done by regular staff should be reassessed by the administrative Departments concerned for output and productivity so that the work being done by the casual workers could be entrusted to the regular employees. The Departments may also review the norms of staff for regular work and take steps to get them revised, if considered necessary.
(2) In cases where it is not possible to entrust all the items of work now being handled by the casual workers to the existing regular staff, additional regular posts may be created to the barest minimum necessary, with the concurrence of the Ministry of Finance.
22. Admittedly, many of the Applicants in this case have been working as casual labourers as on 01.09.1993, i.e., the date on which the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India, 1993 came into force and worked more than ten years as on 10.4.2006 (the date of decision in Umadevi). According to the aforesaid Scheme, the casual labourers are entitled for temporary status fulfilling the requisite conditions. For granting such temporary status neither creation of additional posts nor availability of regular Group D posts are required. In fact the Respondents should have given temporary status to all the eligible Applicants in these OAs with effect from 01.09.1993 itself provided they fulfill the conditions prescribed for that purpose. They were also entitled for the wages at daily rates with reference to the minimum of the pay scale for a corresponding regular Group `D official including DA, HRA and CCA. Therefore, Respondents should have prepared the lists of casual labourers, (i) who were in service as on 01.09.1993 and entitled for temporary status irrespective of the availability of posts and (ii) those who are engaged after 01.09.1993. Considering the fact that the work being done by the Applicants are of regular nature and they cannot be performed by the existing work force, the Respondents also should have created sufficient Group D posts in terms of the DOP&T OM dated 07.06.2008.
23. In the above facts and circumstances of the case, the Respondents shall grant temporary status to all eligible casual labourers as on 01.09.1993 irrespective of the availability of regular vacancies in terms of the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India, 1993. They shall also be paid wages at daily rates with reference to the minimum of the pay scale for a corresponding regular Group `D official including DA, HRA and CCA. This shall be done within a period of two months from the date of receipt of a copy of this order. Meanwhile, they shall make an assessment of the work being done by the regular staff for output and productivity and if it is found that it is not possible to entrust all the work handled by the casual worker to them, the required number of additional regular post should be created in terms of the DOP&T OM dated 07.06.1988. The Respondents shall also first regularize those Applicants to whom the temporary status has thus been granted and against the balance vacancies, the Applicants who have completed 10 years of service as on 10.06.2006 shall be regularized from the respective dates in terms of the judgment in Uma Devis case (supra). Rest of them shall be paid at the rate of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance for work of 8 hours a day as revised from time to time. The aforesaid direction shall also be complied with, within a period of four months from the date of receipt of a copy of this order. This shall be done within a period of two months from the date of receipt of a copy of this order. Meanwhile, they shall make an assessment of the work being done by the regular staff for output and productivity and if it is found that it is not possible to entrust all the work handled by the casual worker to them, the required number of additional regular post should be created in terms of the DOP&T OM dated 07.06.1988. The Respondents shall also first regularize those Applicants to whom the temporary status has thus been granted and against the balance vacancies, the Applicants who have completed 10 years of service as on 10.06.2006 shall be regularized from the respective dates in terms of the judgment in Uma Devis case (supra). Rest of them shall be paid at the rate of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance for work of 8 hours a day as revised from time to time. The aforesaid direction shall also be complied with, within a period of four months from the date of receipt of a copy of this order.
6. We, in the above facts and circumstances of the case, allow this OA and quash the impugned Tender Notice dated 01.10.2013.
7. Further, we direct the Respondent No.3 to re-engage the Applicants as Casual Labourer/Beldar immediately. The Respondents shall also grant temporary status to all eligible casual labourers as on 01.09.1993 irrespective of the availability of regular vacancies in terms of the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India, 1993. They shall also be paid wages at daily rates with reference to the minimum of the pay scale for a corresponding regular Group `D official including DA, HRA and CCA. Meanwhile, they shall make an assessment of the work being done by the regular staff for output and productivity and if it is found that it is not possible to entrust all the work handled by the casual worker to them, the required number of additional regular post should be created in terms of the DOP&T OM dated 07.06.1988. The Respondents shall first regularize those Applicants to whom the temporary status has been granted and against the balance vacancies, the Applicants who have completed 10 years of service as on 10.06.2006 shall be regularized from the respective dates in terms of the judgment in Uma Devis case (supra). Rest of them shall be paid at the rate of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance for work of 8 hours a day as revised from time to time. The aforesaid direction shall be complied with, within a period of four months from the date of receipt of a copy of this order. There shall be no order as to costs.
(P.K. Basu) (G. George Paracken) Member (A) Member (J) Rakesh