Central Administrative Tribunal - Hyderabad
P Chandraiah vs Central Excise & Customs on 1 October, 2021
OA No.554/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH : AT HYDERABAD
OA/021/00554/2019
Date of CAV: 20.09.2021
Date of Pronouncement: 01.10.2021
Hon'ble Mr. Ashish Kalia, Judl. Member
Hon'ble Mr. B.V. Sudhakar, Admn. Member
P.Chandraiah S/o P.Hanumaiah,
Aged about 39 years, Occ : Contingent,
Office of the Assistant Commissioner,
Customs, Central GST & Service Tax,
Warangal Divn. Hanamkonda,
Resident of H.No.1-4-102, Girnigadda,
Jangaon 506 167. Warangal Dist. ...Applicant
(By Advocate : Mr.M.V.Krishna Mohan)
Vs.
Union of India Rep by
1.The Chief Commissioner of Central GST,
L.B.Stadium Road, Basheerbagh, Hyderabad.
2.The Principal Commissioner of Central GST,
Hyderabad Commissionerate, L.B.Stadium
Road, Basheerbagh, Hyderabad. ....Respondents
(By Advocate: Mr.D.Satyaveer, Addl. CGSC)
---
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OA No.554/2019
ORDER
(As per Hon'ble Mr. B.V.Sudhakar, Administrative Member) Through Video Conferencing:
2. The OA is filed seeking grant of temporary status and regularization of service.
3. Brief facts are that the applicant was engaged as a casual worker by the respondents for more than 24 years and his services were not regularized as per DOPT memo dated 11.12.2006. Aggrieved the OA is filed.
4. The contentions of the applicant are that he was directly recruited by the respondents on 1.3.1996 and was paid salary. His services are to be regularized as per DOPT memo dt. 11.12.2006 for having rendered more than two decades of service. Further, para 44 of Uma Devi judgment is supportive of his claim. Applicant submitted details of similarly placed employees through RTI, who were granted temporary status and their services regularized by different formations of the respondents organization operating in the Country. Further, applicant has cited the judgments of the different Benches of this Tribunal and superior judicial fora in support of his cause. In particular, the order in OA 97/2009 of this Bench when challenged before the Hon'ble High Court of AP vide WP No.26716/2010, it was dismissed on 08.11.2010 (Annexure A-IV) & SLP (Civil) No.6357/2011 met the same fate on 2.3.2011. The applicants in OA 97/2009 were granted temporary status vide order dt. 5.3.2011 (Annexure Page 2 of 17 OA No.554/2019 A-VIII). Besides, the order of the Hon'ble High Court in WP 1208/2000 (Annexure A-VI) is in his favor.
Chief Commissioner, Hyderabad has issued a letter on 22.1.2008 to regularize the services of casual workers against existing vacancies. Juniors to the applicant were granted the benefit of temporary status by Hyderabad Commissionerate on 17.1.2019 /23.1.2019. (Annexures A- XX & XXI). Albeit, applicant is on par with those who have been granted relief by the Judicial fora, respondents are deliberately not regularizing the services of the applicant violating the rules/law. After rendering 24 years of service, representation was submitted to regularize the services as per OM dated 8.11.2004 and the latest one was submitted on 7.2.2019 but of no avail.
4. Respondents state that the applicant was engaged as Casual labour on 1.3.1996 for seasonal work and not for regular work. Subsequently, respondents introduced the concept of contract labour in 2005 and all the casual labour including the applicant were disengaged. Grant of temporary status is regulated by the DOPT memo dated 10.9.1993 & 11.12.2006. The applicant is not covered under the 1993 scheme. Further, as per OM dated 12.7.1994 of DOPT casual labour are to be engaged through Employment Exchange and that part-time casual labour are ineligible for granting temporary status. In addition, OM dated 6.6.2002 of DOPT has made it clear that the 1993 scheme is applicable only to those on the rolls as on 10.9.1993 as the 1993 scheme is not an ongoing scheme and those who rendered 240/206 days service at least in one year in operative/ administrative office are eligible for temporary status/regularization. Page 3 of 17 OA No.554/2019 Respondents took a policy decision on 10.3.2004 to outsource work done by the casual labour invoking General Fundamental Rules (for short GFR), and pay them from Contingent office expenditure but not from wages head. Hence, the casual labour including the applicant was disengaged. DOPT memo dated 11.12.2006 was issued complying with the Uma Devi judgment dated 10.04.2006 [2006 AIR (SC) 1806) wherein it was held that public appointment has to be in terms of constitutional scheme of things. Applicant did not work for 10 years to be considered as per the 2006 OM nor was he engaged against sanctioned post. Respondents after approaching DOPT have clarified vide letter dated 3.6.2008 that those casual labour continuing to work for the respondents against sanctioned posts on the date of Uma Devi judgment are eligible to be considered and those whose services have been disengaged due to outsourcing would be ineligible. Hence applicant is disqualified for the relief sought. The Chief Commissioner proposal dated 22.1.2008 was examined and decided not to proceed with the same since it was not in convergence with the DOPT memo dated 11.12.2006. The relief sought by other formations cannot be a ground to grant relief to the applicant since the circumstances could be different. In OA 97/2009, the SLP filed was not dismissed on merit and hence no law has been laid. However, since SLP was dismissed, the applicants in the cited OA were granted relief as per Board letter with a proviso that it cannot be treated as a precedent. The respondents have reviewed certain orders irregularly granting temporary status and regularization and revoked them following procedure prescribed. In the 2006 scheme, there is no provision for grant of temporary status. Page 4 of 17 OA No.554/2019 Regularization and temporary status are two different aspects. Applicant was not on the rolls of the respondents organization after 2004.
Applicant filed a rejoinder wherein he states that he was engaged on a full time basis from 1.3.1996 without a break for more than 24 years. Similarly placed persons were granted relief by respondents by different wings of the Dept. in the country. Applicant was not disengaged and that he continues to work for the respondents. Respondents have not clarified as to how the orders issued by the respondents obtained under RTI by the applicant are not applicable to his case. The orders in respect of the petitioners before the Hon'ble High Court of Karnataka, Dharwad Bench have been implemented. Applicant completed more than 10 years of service and hence is eligible as per para 44 of the Uma Devi judgment. Similarly placed employees from the Income Tax Dept were granted relief vide OA 1083/2019 on 8.2.2021 by the Hon'ble Bangalore Bench of this Tribunal. Applicant cited the OA 653/2019 of the Hon'ble Ernakulam Bench dated 18.11.2019 to further his cause.
Respondents filed an additional reply stating that the Applicant has been engaged through the contractor from 1.5.2005 and is not working directly for the respondents. There is no employee - employer relationship. Reiterated the contention that relief granted by other formations cannot be a precedent to consider the case of the applicant and more so when there are no orders from Board/MOF/Court orders.
6. Heard both the counsel and perused the pleadings on record. Page 5 of 17 OA No.554/2019
7. I. The dispute is in regard to grant of temporary status and regularization of the services of the applicant who claims that he has worked for more than 24 years in the respondents' organization without a break. Respondents in response state that the applicant was engaged on 1.3.1996 purely to attend to seasonal work. Thereafter, the Board took a decision to outsource casual labour work to a contractor by invoking GFR provisions from 1.5.2005. Therefore, the employee- employer relationship ceases to exist from the said date. Applicant strongly contends that his services have to be regularized as per DOPT memo dated 11.12.2006. The relevant portion of the cited memo is extracted here under:
"...directed to 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 post but not under cover of orders of courts or tribunals. The Apex Court has clarified that if such an appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularized."
The essence of the OM supra, issued in pursuance of Uma Devi judgment is that, the services of a casual labour can be regularized provided he has the requisite qualifications as per Recruitment Rules; should have worked for 10 years or more against a duly sanctioned post, but not under of the cover of court orders. The applicant has not worked for 10 years since his services were dispensed with from 1.5.2005. Applicant is being paid from the Contingency Office Expenditure Head and not from the Wages head, as claimed by the respondents and not refuted by him. Applicant has not filed any memo claiming that he has been appointed and made to work against any sanctioned post. Documentary evidence in regard Page 6 of 17 OA No.554/2019 to the fact that the applicant has had a direct relationship with the respondents, beyond 2004, has not been placed on record.
II. The other DOPT OM which covers the question of temporary status and regularization of the services of casual labourers is 10.9.1993 and its crux is as under:
The Government of India, vide DOPT OM No. 51016/2/90-Estt.(C) dated 10.09.1993 formulated a Scheme viz., "Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India, 1993.", w.e.f. 1.9.1993, to confer temporary status to casual labourers. As per the said OM, temporary status would be conferred on casual labourers who are in the employment of Ministries/ Departments of the Government India (except Telecom, Postal and Railways) as on the date of issue of the OM, provided they have rendered a continuous service of at least one year i.e. 240 days in the case of offices observing 6 working days a week and 206 days in the offices observing 5 working days a week. On conferment of temporary status, the casual labourers will be entitled to wages at daily rate with reference to the minimum of the pay scale of the corresponding Group D employees apart from benefits of increments, leave etc. This is a one time measure applicable to eligible casual labourers in service as on 10.09.1993.
The cited OM fell for interpretation by the Hon'ble Apex Court in U.O.I v Mohan Pal as under:
"The scheme of 1.9.1993 is not an ongoing scheme and the temporary status can be conferred on the casual labouers 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 at least one year, i.e., at least 240 days in a year or 206 days (in case of offices having 5 days a week). We also made it clear that those who have already been given 'temporary' status on the assumption that it is an ongoing scheme, shall not be stripped of the 'temporary' status pursuant to our decision".
Considering the DOPT memo dated 10.9.1993, interpretation of the memo by Hon'ble Apex and the memo dated 11.12.2006, the aspects of relevance are as under, to examine the case of the applicant.
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(i) It is not an ongoing scheme and the temporary status can strictly be conferred only on Casual Labourers who were on engagement by the department/ Government as on the crucial date of commencement of the scheme i.e. 01.09.1993.
(ii) Besides the criterion mentioned at (i) above, the candidate (Casual Labourer) should have rendered a continuous service of at least 240 days in a year or 206 days in case of offices observing 5 days a week, as on the crucial date i.e. 01.09.1993.
(iii) The casual labourers ought to have been engaged on regular basis but not on part time basis, as was clarified by DOPT vide OM No. 49014/2/93-Estt.(C) dt. 12.07.1994.
Applicant was not on the rolls of the respondents as on 1.9.1993 to be considered under memo 10.9.1993. Besides, to be considered under 11.12.2006 deficiency of submission of documents on behalf of the applicant is evident. The chief Commissioner proposal dated 22.1.2008 was decided to be discarded since its contents were divergent to those in DOPT memo dated 11.12.2006. Applicant has sought temporary status citing establishment orders dated 17.1.2019 & 23.01.2019 in paras 4.33 to 4.34. The Tribunal directed to grant temporary status in the relevant OAs to grant temporary status to those eligible. In the WPs filed against the orders of the Tribunal the Hon'ble High Court has only directed to examine in the context of OM dated 10.9.1993 and not directed to provide temporary status/regularization as claimed by the applicant.
"When the authorities themselves have put in place a system whereby temporary status could be granted to the employee concerned upon his fulfilling certain conditions, they can have no grievance with regard to the direction to grant such status upon compliance with those requirements."
Thus, from the Hon'ble High Court order the version of the respondents cannot be found fault with.
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III. Respondents also plead that without verifying eligibility, some casual labours were granted temporary status erroneously vide orders dated 16.1.2019,17.1.2019, 23.1.2019, 1.4.2019 & 23.4.2019, which were ordered to be re-examined by the respondents Board in terms of DOPT memos 10.9.1993 & 11.12.2006 and cancel the orders after issue of a notice by way of a speaking and reasoned order. Accordingly, temporary status was rescinded on 4.7.2019 after following the due procedure. The above submissions of the respondents form only a part of the story. The rest of relevance is unraveled hereunder.
IV. An important contention of the applicant is that the order of the Tribunal in OA 97/2009, granting the relief as is sought in the present OA when challenged, was dismissed vide W.P No.26716/2010 (Annexure A- IV) on 8.11.2010 & in SLP (Civil) No.6357/2011 on 2.3.2011. Respondents responded that the SLP was not dismissed on merit and hence, the law is not laid. The Board has permitted grant of relief to the applicants in the OA with a proviso that it shall not be a precedent. As per settled law, if an SLP is dismissed without going into the merits, the judgment is open for review. V. The applicant did a lot of hard work to obtain RTI information from different offices of the respondents' organization to claim that similarly placed individuals have been granted the relief. The applicant was specific in claiming that the respondents Commissionerates located at Pune, Kolkata, Delhi, Mumbai, Meerut, Chandigarh, Bokaro, Raigad, Delhi-I Director General of Inspection, Customs & Central Excise, New Delhi have Page 9 of 17 OA No.554/2019 informed, when queried under RTI vide letters dated 02.07.2009/ 07.07.2009/ 26.05.2009/ 05.06.2009/ 15.06.2009/ 30.06.2009/ 06.07.2009/ 16.4.2009/ 8.6.2010/ 1.4.2009 respectively, that services of 15/ 3/ 67/ 7/ 37/ 36/ 2/ 3/ 114/ 18 casual workers engaged after 1993/1997 were regularized/ granted temporary status in the respective offices. Further, Pune Commissionerate has granted the benefit to Sri Suhas Shasikanth Vilankar who was engaged as casual worker after 1993, vide order dt. 27.06.2006 and Thane Commissionerate granted temporary status to 10 casual workers on 29.5.2008, who too were engaged after 1993. The services of a similarly situated employee Smt. Lakshmamma, were regularized and those engaged later in 1997 were granted the benefit of Temporary status as well. The respondents aver that the facts and circumstances could be different in the cases cited and therefore, comparison cannot be drawn. Law does not respect surmises and conjectures but surely definiteness. Respondents have not given definite reasons as to how they are different, in the face of their own decisions granting relief as evidenced from documents obtained under RTI. Without reasons being given by the respondents, their contention would not stand valid as held by the Honb'le Gujarat High in Nanuki Prasad vs Union of India & Ors. in R/Special Criminal Application No. 2192 of 2010, on 12 September, 2018, by relying on Hon'ble Supreme Court judgments as under:
27.1 In State of Uttar Pradesh vs. Ashok Kumar Nigam [(2013) 3 SCC 372], the Supreme Court observed in para 14 as under:
"Total non-application of mind and the order being supported by no reason whatsoever would render the order passed as 'arbitrary'. Arbitrariness shall vitiate the administrative order..."Page 10 of 17 OA No.554/2019
27.2 In CCT vs. Shukla and Bros. [(2010) 4 SCC 785], the Supreme Court impressed upon the need for recording of appropriate reasons in orders and held as under:
"11. The Supreme Court in S.N. Mukherjee v. Union of India while referring to the practice adopted and insistence placed by the courts in United States, emphasised the importance of recording of reasons for decisions by the administrative authorities and tribunals. It said "administrative process will best be vindicated by clarity in its exercise". To enable the courts to exercise the power of review in consonance with settled principles, the authorities are advised of the considerations underlining the action under review. This Court with approval stated: (SCC p. 602, para 11) '11. ... 'the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained'.'
12. In exercise of the power of judicial review, the concept of reasoned orders/actions has been enforced equally by the foreign courts as by the courts in India. The administrative authority and tribunals are obliged to give reasons, absence whereof could render the order liable to judicial chastisement. Thus, it will not be far from an absolute principle of law that the courts should record reasons for their conclusions to enable the appellate or higher courts to exercise their jurisdiction appropriately and in accordance with law. It is the reasoning alone, that can enable a higher or an appellate court to appreciate the controversy in issue in its correct perspective and to hold whether the reasoning recorded by the court whose order is impugned, is sustainable in law and whether it has adopted the correct legal approach. To subserve the purpose of justice delivery system, therefore, it is essential that the courts should record reasons for their conclusions, whether disposing of the case at admission stage or after regular hearing."
Therefore, respondents have no legal right to straightaway reject the claim of the applicant without going into the details, when confronted with their own decisions requiring a genuine relook in the matter. The different offices cited form a part of the respondents' organization and their decisions cannot be disowned irrationally without the support of rules/law. Ld. Counsel for the applicant submitted that representation of the applicant dated 7.2.2019 has not been disposed. Not disposing the representation of Page 11 of 17 OA No.554/2019 the applicant is a typical case of violation of the Principles of Natural Justice.
VI. Further, applicant cited the judgments of Hon'ble Principal Bench in OAs of 2595, 2394 & 2924 of 1997 as well as the judgments of Hon'ble Bangalore Bench of this Tribunal in OA 312/2015, 313 to 322 of 2015, OA 907-912/2015 (A-XIII to XV) and of this Bench in OA No. 77/2019 dt.25.01.2019 (Annexure A-XXIII) in support of his cause. W.Ps filed challenging the OAs allowed by the Hon'ble Bangalore Bench, when challenged WP No.42814/2016 & batch, they were dismissed on 15.11.2016 (Annexure A-XVI) and in compliance the applicants in the OAs referred to, were granted temporary status on 15.3.2017 (A-XVII). Again when OA No.414/2011 was allowed by this Tribunal on 26.7.2012 (A- XVIII), WP No.38042/2012 was filed which was heard with a batch of Writ Petitions and was dismissed on 26.11.2018 (A-XIX).
VII. Going further, we note that the OAs 128/2008 & 145/2008 filed by similarly placed employees working at Dharwad were allowed, by the Hon'ble Bangalore Bench of this Tribunal on 27.1.2012. The order of the Tribunal was upheld in W.P No.70873/2012 & batch on 18.6.2013 (Annexure A-X) and in SLP CC No. 13733/2014 on 1.9.2014 (Annexure A-XI), resulting in granting of temporary status to the applicants on 22.4.2015 (Annexure A-XII). The same respondents filed a batch of petitions vide W.P No. 1208/2000 & Batch before the Hon'ble High Court at Hyderabad, which were dismissed on 25.09.2009 based on the orders in W.P No.26967/1999 (Annexure A-VI). When W.P 1208/2000 was challenged, it was dismissed by the Hon'ble Apex Court in SLP CC. Page 12 of 17 OA No.554/2019 No.14997-15001/2010 on 01.10.2010. The order in WP No.26967/1999 was implemented by the respondents. Applicant has also submitted recent judgments in respect of similarly placed employees from the Income Tax Dept, who was granted relief vide OA 1083/2019 on 8.2.2021 by the Hon'ble Bangalore Bench and in OA 653/2019 by the Hon'ble Ernakulam Bench dated 18.11.2019. The innumerous decisions referred to are judicial decisions based on certain legal principles and the respondents as model employers owe a responsibility to apply their mind and decide but not make bald statements that facts and circumstances could be different. The word 'could' implies that the respondents have not gone through the said judgments/orders in their entirety to come to a definite conclusion. We are not appreciative of such a stance.
VIII. The respondents have only looked at the case from a narrow perspective of application of DOPT memos referred to and did not expand their analysis keeping in view the different judicial pronouncements on the issue. Legal principles supersede executive instructions. If the administrative authorities discriminate amongst persons similarly situated, in matters of concessions and benefits the same directly infringes the constitutional provisions enshrined in Art. 14 and 16 of the Constitution. When similarly placed employees are granted any benefit, the same is to be extended to others, who are identically placed as laid down by the Hon'ble Supreme Court in the following verdicts:
a. Amrit Lal Berry vs Collector Of Central Excise, (1975) 4 SCC 714 :
"We may, however, observe that when a citizen aggrieved by the action of a Government Department has approached the Court and obtained a declaration of law is his favour, others, in like circumstances, should be able to rely on the sense of responsibility of the Department concerned and to expect that they will Page 13 of 17 OA No.554/2019 be given the benefit of this declaration without the need to take their grievances to Court."
b. Inder Pal Yadav Vs. Union of India, 1985 (2) SCC 648:
"...those who could not come to the court need not be at a comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are entitled to similar treatment if not by anyone else at the hands of this Court."
c. In a latter case of Uttaranchal Forest Rangers' Assn (Direct Recruit) Vs. State of UP (2006) 10 SCC 346, the Apex Court has referred to the decision in the case of State of Karnataka Vs. C. Lalitha, 2006 (2) SCC 747, as under:
"29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently."
d. There has been a reference to this aspect in V CPC report, para 126.5 - Extending judicial decision in matters of a general nature to all similarly placed employees:
We have observed that frequently, in cases of service litigation involving many similarly placed employees, the benefit of judgment is only extended to those employees who had agitated the matter before the Tribunal/Court. This generates a lot of needless litigation. It also runs contrary to the judgment given by the Full Bench of Central Administrative Tribunal, Bangalore in the case of C.S. Elias Ahmed & Ors Vs. UOI & Ors, (OA 451 and 541 of 1991), wherein it was held that the entire class of employees who are similarly situated are required to be given the benefit of the decision whether or not they were parties to the original writ. Incidentally, this principle has been upheld by the Supreme Court in this case as well as in numerous other judgments like G.C. Ghosh V. UOI [(1992) 19 ATC 94 (SC)], dt. 20.07.1998; K.I. Shepherd V. UOI [(JT 1987 (3) SC 600)]; Abid Hussain V. UOI [(JT 1987 (1) SC 147], etc. Accordingly, we recommend that decisions taken in one specific case either by the judiciary or the Government should be applied to all other identical cases without forcing other employees to approach the court of law for an identical remedy or relief.
We clarify that this decision will apply only in cases where a principle or common issue of general nature applicable to a group or category of Government employees is concerned and not to matters relating to a specific grievance or anomaly of an individual employee."
The applicant has repeatedly harped that he is similarly placed and has submitted documentary evidence by submitting the orders issued by different offices of the respondents along with the judgments of various Benches of this Tribunal and that of the superior judicial fora. The respondents reply does not broach on these important deliberations, which Page 14 of 17 OA No.554/2019 is incorrect and therefore, not in accordance with law. The respondents have stated that they have followed the Uma Devi judgment but they did not explain as to how the other formations in the same respondents' organization could grant the same relief as sought by the applicant. Uma Devi judgment has been further clarified by its own judgments in State of Karnataka and Ors v M.L.Kesari and Ors. arising out of SLP (C) No. 15774/2006 and the State of Bihar vs. Kirti Narayan Prasad on 30.11.2018 in Civil Appeal No. 8649 of 2018 (Arising out of SLP (C) No.24742 of 2012) by the Hon'ble Apex Court. An effort in this direction appears to have not been made by the respondents. When a genuine grievance is ventilated, it has to be not only dealt with an open mind, but it should appear to have been done so. The outcome could be anything but the decision making process has to be within the confines of law.
May be, the other formations took a legally acceptable decision by referring to the latest law. Then why not the concerned respondent who matters? The requirement of names being referred to by the employment exchange, as contended by the respondents, is not a must as per the law laid by the Hon'ble Himachal Pradesh High Court in Sahil vs State Of H.P. And Others on 22 November, 2019 in CWP No. 3102 of 2019 along with CWP Nos.3185 of 2019 and 3192 of 2019 by relying on the judgments of Hon'ble Apex Court as under:
6. It is more than two decades back that the Hon'ble Supreme Court in Excise Superintendent Malkapatnam, Krishna District A.P. vs K.B.N. Visweshwara Rao and others, (1996) 6 SCC 216, while interpreting the provisions of section 4 (1) of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, held that selections cannot be restricted only to the candidates sponsored by the Employment Exchange, rather names should also be called for by publication in newspaper having wide circulation and display on office notice boards or announcement on Page 15 of 17 OA No.554/2019 radio, television and employment news bulletins. Such procedure would sub-serve fair play and would be in consonance, rather complying the provisions of Articles 14 and 16 of the Constitution of India.
7. Here, it would be apposite to refer to para 6 of the Judgment, which reads as under:
"[6] Having regard to the respective contentions, we are of the view that contention of the respondents is more acceptable which would be consistent with the principles of fair play, justice and equal opportunity. It is common knowledge that many a candidate is unable to have the names sponsored, though their names are either registered or are waiting to be registered in the employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange and employment exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be sub-served. The equality of opportunity in the matter of employment would be available to all eligible candidates.
Hence, the presentation of the defense by the respondents viewed from any angle, is a clear case of non-application of mind to all the relevant issues raised in the OA. A decision taken without the application of mind lacks legal logic.
IX. Hence, in view of the aforesaid circumstances, we direct the respondents to re-consider the claim of the applicant in the light of various orders of the respondents as cited supra and also the different judgments referred to by the applicant. By taking into consideration, each and every Page 16 of 17 OA No.554/2019 contention of the applicant, a decision may thus be taken in the matter, in accordance with rules and law, and be communicated to the applicant by a reasoned and speaking order. Time allowed to implement the order is 3 months from the date of receipt of this order.
X. With the above direction, the OA is disposed of with no order as to costs.
(B.V.SUDHAKAR) (ASHISH KALIA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
evr
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