Central Administrative Tribunal - Delhi
Balwant Singh vs Union Of India Through on 10 September, 2013
Central Administrative Tribunal Principal Bench OA No.3053/2012 Reserved on: 30.07.2013 Pronounced on:10.09.2013 Honble Dr. Birendra Kumar Sinha, Member (A) Balwant Singh s/o Sh. Dhyan Singh Serving as Casual Labour, Ministry of External Affairs And 25 Others. Applicants (By Advocate: Mr. M.K. Bhardwaj) Versus Union of India through 1. The Foreign Secretary, Ministry of External Affairs, South Bock, New Delhi. 2. The Joint Secretary (Admn) Ministry of External Affairs, South Bock, New Delhi. Respondents (By Advocate: Mr. Rajeev Kumar) O R D E R
The instant Original Application is directed against the impugned order dated 12.06.2012 of the respondent organization rejecting the claim of the 26 applicants, who have been working as Casual Labourers in the Ministry of External Affairs, for their regularization against suitable Group D posts.
2. The case of the applicants is that they have been working with the respondents since the year 1994 against Group-D posts following the same procedure as involved in making regular appointment. The DOP&T, in compliance of the decision of the Honble Supreme Court in the matter of Secretary, State of Karnataka and Others versus Umadevi and Others [2006 (4) SCC 1] issued OM dated 11.12.2006 with regard to regularization of services of daily wagers/casual labourers who had completed ten years of service. The Honble Supreme Court in the afore cited case directed that the State Government based on its instrumentalities should take steps to regularize the services of such regularly appointed employees who are duly qualified and have worked for 10 years or more against duly sanctioned posts. However, where such appointment was against such rules, the same could not be regularized.
3. The applicants had filed OA No. 568/2012 before this Tribunal, which was disposed of in limine with a directive to the respondents to dispose of the representation of the applicants pending before them. Accordingly, the respondents considered the case of the applicants and found that some of the applicants have not worked for ten years. Therefore, their cases were not covered by the decision of the Honble Supreme Court in the matter of Secretary, State of Karnataka and Others versus Umadevi and Others (supra). It was further pleaded that the Central Passport Office maintains a separate cadre and is not under the control of the Ministry of External Affairs, hence, the examples of differential treatment were not applicable to the facts of this case. The ground adopted by the applicants is that they are covered by the judgment of the Honble Supreme Court in Secretary, State of Karnataka and Others versus Umadevi and Others (supra) and that other Ministries and even the Ministry of External Affairs had regularized the services of similarly situated employees, who were even junior to them. They have also drawn the attention of the Tribunal to an earlier order dated 29.04.2004 wherein it has been stated that the claim of Shri Joginder and other 29 Casual labourers for regularization of their services can be considered only after all the Casual labourers with temporary status and senior to them have been regularized. The applicants further submit that they have already been granted the temporary status w.e.f. 26.02.2007. They have also drawn attention of the Tribunal to Memorandum dated 19.12.2006 whereby eight persons have been regularized in the Ministry of External Affairs and also to the Office Order dated 29.06.2012 whereby the services of casual labourers working in the Health Department had been regularized. They have also pointed out to several other instances of casual workers getting regularized in other Departments.
4. The respondents have filed their counter reply wherein they have strongly resisted the Original Application filed by the applicants. The principle argument advanced by the respondents has been that this order covers only the persons who have worked for ten years or more against duly sanctioned posts but not others under the cover of orders of the Courts/Tribunals. It was further submitted that since the applicants were employed against jobs of causal nature and not against the clear vacancies in Group-D, the decision of the Honble Supreme Court in Secretary, State of Karnataka and Others versus Umadevi and Others (supra) is not applicable. Moreover, the Passport Office is an independent office in matters of appointments and is not under the control of Ministry of External Affairs. The respondents have further submitted that in 2010, a reference had been made to the DoP&T and subsequently to the Finance Department and Department of Legal Affairs seeking approval for regularization of the applicants, who have all turned down the suggestion. The DoP&T had gone to the extent of saying that even the temporary status conferred upon the applicants was incorrect and beyond jurisdiction.
5. I have heard the arguments of both the learned counsel and have carefully gone through the pleadings of both the parties as also the other documents submitted by them on the basis whereof the following issues emerge for adjudication:-
Whether the applicants are covered in terms of the order of the Honble Supreme Court in the case of Secretary, State of Karnataka and Others versus Umadevi and Others (supra);
Whether there has been some instances of discrimination against the applicants in matter of appointment as similarly situated persons, junior to them, have been appointed while they have been left high and dry;
Whether the Passport Office is subject to the control of the Ministry of External Affairs?
What relief, if any, could be granted to the applicants?
6. In so far as the first issue is concerned, the relevant part of the order is contained in paragraph 44 of the judgment in the case of Secretary, State of Karnataka and Others versus Umadevi and Others (supra), which reads as under:-
44. The concept of 'equal pay for equal work' is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the Rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after the Dharwad decision, the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution of India permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality.
7. The OM dated 11.12.2006 was passed accordingly. This OM ha mentioned a certain conditions of eligibility in order to attract the provisions of the judgment in Uma Devis case (supra) (i) the persons should be qualified to hold the job (ii) they should have been appointed against sanctioned posts; and (iii) they should have worked for a period of 10 years or more. The only persons, who meet such qualifications, would be entitled to being regularized. The respondents have stated in their counter affidavit that in the instant case the casual labours were not appointed against clear vacancies of Group D in the Ministry and were appointed for the jobs of casual nature only. Despite all these, considering the humanitarian aspect involved in the case, the Ministry made several attempts to resolve the issue in consultations with DoPT, Ministry of Finance & Department of Law at various levels. An Inter-departmental Consultation was also held for the purpose. However, a view that emerged after such consultations was that regularization of services of casual workers was not possible under the extant rules and guidelines on the subject of GOI. Therefore, no ground exits for the relief(s) sought by the applicants.
8. However, this has been denied by the applicants in their rejoinder stating that they have worked for almost 20 years and even on the date of issue of OM dated 11.12.2006 they had completed more than 10 years of service against the sanctioned posts. It is an admitted fact that the applicants have been conferred temporary status under the Scheme known as Casual Labourers (Grant of Temporary Status and Regulrization) Scheme of Government of India, 1993 which came into force w.e.f. 01.09.1993 and reiterated in OM dated 06.06.2002 wherein following conditions have been enumerated for grant of temporary status:-
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.
9. The temporary status entitles the persons granted such status to a certain benefits including wages at daily rates with reference to the minimum of the pay scale for a corresponding regular Group D official; benefits of the increments; leave entitlement on a pro-rata basis at the rate of one day for every ten days of work, casual or any other kind of leave, except maternity leave, will not be admissible, and counting of 50% of the service rendered under temporary status for the purpose of retirement benefits after their regularization. It is provided that after having rendered three years of continuous service subsequent to conferment of temporary status, the casual labouer would be treated at par with temporary Group D employee for the purpose of contribution to the General Provident Fund and would be eligible to the grant of Festival Advance/Flood Advance. The Scheme further envisages that unless they are regularized, they shall be entitled to productivity linked bonus/ad hoc bonus. This benefit is available as a one time measure to those who were in service at the time of promulgation of this Scheme and had qualified to become temporary workers.
10. However, the rationale followed in Uma Devis case (supra) is different. The applicants have argued that once they have been worked for more than 20 years continuously, it gives rise to a presumption of availability of sanctioned posts. The applicants have also referred to availability of 100 posts against which they have been working continuously. They have resisted the suggestion that Group-D posts have been abolished and stated that these posts have instead been re-designated as MTS. The applicants have further argued that when the vacancies had become available in the year 2010, the respondents should have taken steps to regularize their services at that point of time.
11. In this regard, it is to be mentioned that the problem concerned is not confined to the applicants alone but extends to over a wide spectrum. The reality here is that Group-D posts have been abolished and replaced by Multi Tasking Staff (MTS, for short). A similar matter had come up before the Division Bench of this Tribunal at its Jodhipur Bench in the matter of Mahendra Singh & Others versus Union of India & Ors. [OA No. 17/2012 and other connected matters, which were commonly decided vide order dated 29.10.2012] wherein this issue was considered in depth. However, taking a clue from a matter already decided by the Jaipur Bench of this Tribunal in the matter of Kamal Kumar Soni vs. Union of India & Ors., in OA No.27/2010 dated 18.03.2010 and again in the matter of Kailash Meena Vs. UOI & Ors. in OA No.669/2011, dated 01st May, 2012, a view had been taken by the Jaipur Bench of this Tribunal that the Honble High Court of Judicature at its Jaipur Bench was already ceased with the matter. Therefore, it was against judicial etiquette that the Tribunal should also hear and adjudicate upon the matter. A similar view was taken by the Jodhipur Bench of this Tribunal in the matter of Mahendra Singh & Others versus Union of India & Ors. (supra) clearly holding that it was precluded from hearing and adjudicating the matter in issue. However, the Jodhpur Bench directed for maintaining the status quo in respect of the applicants therein.
12. Drawing parallel from the same, I find that this case is also covered by the order dated 29.10.2012 passed by Jodhpur Bench of this Tribunal in Mahendra Singh & Others versus Union of India & Ors. (supra). The basic issue is that when a post has been effectively abolished, there could be no question of appointment. It is true that had the applicants been considered earlier, when Group-D posts were in existence, this kind of situation would not have arisen. Since the matter has a wider ramification, we may await the decision of the Honble High Court of Judicature at its Jaipur Bench. However, it is not possible to revive a post, since abolished, from a back date and restore the position ante.
13. In view of the above observation, the instant Original Application is dismissed with no order as to costs.
(Dr. Birendra Kumar Sinha) Member (A) /naresh/