Central Administrative Tribunal - Madras
P. Kamaraj And Ors. vs Union Of India (Uoi) And Anr. on 5 October, 2005
Equivalent citations: 2006(3)SLJ256(CAT)
ORDER
P. Shanmugam, J. (Vice Chairman)
1. The applicants six in number have prayed for the following relief:
to call for the records on the file of the 3rd respondents in connection with the order passed by him in his letter dated 9.8.2005 (which is marked as Annexure 8 in the reply affidavit) and quash the same and declare that the permission to the Casual Employees to compete along with the employees of Group 'D' posts for promotion to the post of Lower Divisional Clerk as unconstitutional andultra vires and consequently issue direction directing the respondents to consider the employees of Group 'D' posts along at first for appointment to the post of Lower Divisional Clerk or pass any other appropriate order or direction as this Hon' ble Tribunal may deem fit in the circumstances of the case and thus render justice.
2. The facts of the case are as follows: The applicants are serving in Group 'D' post with effect from 5.4.2000. Prior to this appointment, they were serving as casual labourers for nearly a decade. Their pay as Group 'D' has been reduced since the service rendered by them as Casual Employees was not taken into account and as against the rejection of their claim, they had filed an O. A. and the same is pending. While so, Govt. of India had issued a Circular dated 7.1.2005 proposing to conduct an examination for Group 'D' officials to the grade of LDC. According to them, they have learnt that Casual employees in Trichy Division have objected to the proposal to conduct examination for promotion for Group 'D' officials and also they learnt that they have now invited applications from both Group 'D' employees and Casual employees for promotion to LDC. According to them, if both are allowed to be considered, their chances for promotion to the post of LDC will be adversely affected. They are the only feeder category available for promotion to Group 'C. The Casual employees have no status at all to contest straightaway for LDC post. They have to be absorbed at first as Group 'D' before they become eligible to be considered for promotion to the post of LDC. Hence, the applicants contended that the unequals are treated equally by the action of the respondents which is arbitrary and in violation of Articles 14, 16 and 21 of the Constitution of India. Hence, they have filed the above O.A.
3. On behalf of the respondents, it is stated in the reply that the applicants'pay was fixed at the minimum of the pay scale of the post i.e. Rs. 2550-3200. However, they claim for higher pay based on the service rendered by them as Casual employee which is pending before various Benches of this Tribunal. As per the existing Recruitment Rules, 25% of the vacancies at the LDC level are to be filled from eligible Group 'D' employees. However, certain Casual workers in Passport Office, Trichy approached CAT, Chennai Bench and sought permission to appear for the examination. The CAT passed an interim order directing the respondents to accept the applications. But the Ministry has decided to file an appeal against the judgment. According to them, the Ministry has recently obtained an one time approval from the DOPT to conduct a Special qualifying Examination for regularisation of eligible Group'D' and Casual workers against vacant LDC posts. It is stated that a combined examination is being held as per the directives of the CAT, Chennai Bench in O.A. 73 of 2005 as mentioned in Para 5 of the reply. The respondents have also stated that there are other reasons for holding a combined examination since the educational qualifications are the same for all the candidates whether Group 'D' or Casual workers. Besides, from the logistics and cost angle, it is easier to hold a combined examination. The Combined examination was earlier proposed to be held on 4.9.2005. It was however been postponed at the request of certain candidates who wanted some additional time to prepare for this examination. In accordance with the existing Recruitment Rules, 25% of the vacancies are to be filled up through the proposed examination will be reserved for the benefit of those Group 'D' employees who are Matric or above and who have completed 5 years of regular service and they will be placeden bloc senior to other Group 'D' employees who are Matric with less than 5 years of regular service. Therefore, there cannot be any grievance and the applicants may not be affected. In Paragraph 8 of the reply the respondents have stated that "in view of their contribution to the organisation and due to the fact that fresh recruitment of LDCs from Staff Selection Commission is likely to take a long time, this Ministry has decided to fill up the available vacancies at the LDC level by eligible.
Group 'D" and Casual workers." It is further stated in Paragraph 11 as follows: "the respondents have gone out of their way and got the required permission to hold a Special qualifying Examination for the benefit of Casual workers." Therefore, they have prayed for dismissal of the O.A.
4. We have heared the learned Counsel for the applicant and Mr. M.T. Arunan, learned Counsel appearing for the respondents.
5. The post we are concerned is the Lower Division Clerk (LDC) which is coming within the purview of the Ministry of External Affairs, Central Passport Organisation (Group 'C posts) Recruitment Rules, 2004. Schedule 3 provides for method of recruitment, age limit and other qualifications. The relevant schedule dealing with LDC is extracted below:
1. Name of Post: Lower Division Clerk
2. Number of Post: 570 (20O4) (subject to variation depending on workload)
3. Classification : "General Central Services, Group 'C, Non-Gazetted Ministerial
4. Scale of pay : Rs. 3050-75-3950-80-4590
5. Whether Selection or non-selection post: Selection.
6. Whether benefit of added years of service admissible under Rule 30 of the CCS (Pension) Rules, 1972 : No
7. Age Limit for direct recruits : 25 years (Relaxable for Government servants upto 35 years in accordances with the instructions or orders issued by the Central Government) Note: The crucial date for determining the age limit shall be the closing date for receipt of applications from candidates in India (and not the closing date prescribed for those in Assam, Meghalaya, Arunachal Pradesh, Mizoram, Manipur, Nagaland, Tripura, Sikkim, Laddakh Division of Jammu and Kashmir State, Lahul and Spiti district and Pangi sub-division of Chamba district of Himachal Pradesh, Andaman and NicobarIslands or Lakshdweep.) In respect of posts, the appointments to which are made through Employment Exchange, the crucial date for determining the age limit shall, in each case, be the last date upto which the Employment Exchanges are asked to submit the names.
8. Educational and other qualifications required for direct recruits : Matriculation or equivalent with typing speed of 30 w.p.m. In English or 25 w.p.m. in Hindi.
9. Whether age and educational qualification prescribed for direct recruits will apply in case of promotees:
Candidates for limited Departmental Competitive Examination must have educational and typing qualifications prescribed for direct recruits.
10. Period of Probation if any: Two years for all persons appointed to the post on direct recruitment through Staff Selection Commission.
11. Method of Recruitmentwhether by direct recruitment or by promotion or deputation or adsorption and percentage of vacancies to be filled bx various methods:
75% by direct recruitment through Staff Selection Commission, 25% by Limited Departmental Competitive Examination failing which by direct recruitment.
12. In case of recruitment by promotion or deputation or absorption grades from which promotion or deputation or absorption to be made:
Limited Departmental Competitive Examination: Group 'D' employees of the Central Passpost Organisation with five years service in their grade rendered after appointment thereto on a regular basis and possessing educational and typing qualifications prescribed for direct recruits.
13. If a Departmental Promotion Committee exists what is its composition : Group 'C Departmental Promotion Committee (for confirmation):
(a) Director in the Consular, Passport and Visa Division --Chairman
(b) One Deputy Secretary in charge of the administration of the Central Passport Organisation --Member
(c) Two Deputy Secretaries in the Ministry of External Affairs --Members
(d) One Passport Officer or Deputy Passport Officer of the cadre of the Central Passport Organisation --Member.
The above rules stipulate that 24% of the vacancies are to be filled up by LDCE and 75% by direct recruitment through Staff Selection Commission. For the 25% quota, persons eligible are Group 'D' employees with 5 years of regular service in their grade rendered after appointment.
6. A plain reading of the statutoy rules shows that there is no scope for promotion of Casual employees through LDCE. 75% by direct recruitment through SSC alone can be available for Casual or other employees in the open market.
7. The method of recruitment namely direct recruitment through Staff Selection Commission and the promotion through LDCE are different and the source of recruitment for both these are different. Therefore, there is absolutely no scope for bypassing the statutory rules by the authorities concerned as stated in the reply statement. The respondent have not replied to grounds a, b and c in the O.A. On the other hand, the respondents have stated that they have gone out of their way and got the required permission to hold a Special qualifying Examination for the benefit of the Casual workers. It is their further stand that since the recruitment through Staff Selection Commission is likely to take a long time, they have decided to fill up the available vacancies by eligible Group 'D' and Casual workers. The respondents have failed to note that the Casual workers are not eligible as per the statutory rules to appear for promotion since they are not regular workers borne in the cadre of the Department.
8. We have disposed of O.A. 23 of 2005 wherein the applicants herein want to implead them as respondents. But we declined to permit them to be impleaded since their O.A. will betaken up immediately after disposal of the O.A. 73 of 2003. We have called for the file O.A. 73 of 2005 and the records.
9. From the reply affidavit filed by Shri Raghu Ram, Assistant Passport Officer, Chennai on behalf of respondents 1 and 2 in that O.A. namely Union of India and Passport Officer, we find the same officer has taken an entirely opposite stand in the O.A. 702 of 2005. In O.A. 73 of 2005, on behalf of respondents 1 and 2 it is stated that the ability to do Group 'C nature of work were possession of essential qualifications does not make a person eligible for appointment against Group 'C posts. They have stated that if the casual workers are not happy to perform Group 'C work, they are free to leave. Since the casual workers are not regular employees even after conferment of temporary status, they cannot be allowed to appear in the Departmental Examination. The applicant(s) casual labourers were given the option to try to qualify in an open competition for the post of LDCs instead they continue to demand entry in Group 'C through Departmental Examination, finding it more convenient. However, taking a sympathetic view of their position, DOPT was requested many times to permit the Ministry to conduct a Special qualifying Examination for the casual labourers of the Central Passport Organisation to be absorbed against Group 'C post, but permission has been refused by DOPT so far. In Paragraph 7 it is stated that since the casual workers are not regular employees despite being conferred with temporary status and irrespective of number of years of service they have put in they cannot be allowed to appear in the said examination. The third respondent has already turned down the proposal for relaxation of eligible condition for recruitment to the post of LDC. Special Qualifying Examination was done as a one time measure in 1993, that was in reference to the Casual workers engaged in all the Ministries/Departments of the Central Government offices and their attached and subordinate offices. The first respondent, Ministry cannot conduct such an examination without the explicit approval of DOPT. According to them, that regular absorption is possible only in Group 'D' post and that has to be done on the basis of zone wise seniority among casual labourers and availability of vacant Group 'D' posts. It is conceded that the third respondent has not agreed to that proposal since the decision will have a very wide repercussion on the casual labourers engaged in other Ministries/Departments. The respondents in that O.A. has also referred to the judgment of the Hon'ble Supreme Court in the case of State of Himachal Pradesh v. Suresh Kumar Verma andAnr. 1996 SCC (L&S) 645, and extracted an important portion of the judgment as follows:
It is settled law that having made rules of recruitment to various services under the state or to a class of posts under the state, the State is bound to follow the same and to have the selection of candidates make as per recruitment rules and appointments shall be made accordingly...Court cannot give any direction to re-engage them (daily wagers in a project) or appoint in any vacancy. Otherwise, judicial process will become other mode of recruitment de hors the rules. Appointment on daily wage cannot be conduit pipe for regular appointments which could be a back door entry detrimental to efficiency of service and breed seeds of corruption and nepotism.
10. The respondents in that O. A. has also enclosed a copy of the Notes from the Under Secretary dated 10.2.2004 and 29.7.2004 and has also disclosed the correspondence of the Hon' ble Minister of External Affairs of India at that time and the Deputy Prime Minister of India at that time.
11. The respondents have taken a specific stand in the O.A. 73 of 2005 against allowing Casual employees be promoted to Group 'C posts. They have stated that the DOPT has refused so far on the basis of wide repercussion on the casual labourers engaged in other Ministries/Departments and having taken the stand that the casual labourers do not fulfil the rules requirement and extracting the law laid down by the Hon'ble Supreme Court that recruitment of persons who do not fulfil the Recruitment Rules and appointment of daily wagers cannot be considered for regular appointments and that it will be a back door entry detrimental to efficiency of service and breed seeds of corruption and nepotism. Having highlighted this it is rather surprising that the same officer who has filed the reply statement taking a diametrically opposite stand blowing hot and cold. The reply in O.A. 73 of 2003 was signed on 23.2.2005 and the reply in this O.A. was signed on 14.9.2005. We are unable to see any change of circumstances or materials to take a opposite view contrary to the rules and contrary to the law laid down by the Hon'ble Supreme Court without waiting for the approval of the DOPT. It is surprising as to how the respondents are able to approve the reply affidavit of this nature. The Appropriate authority should consider this aspect and shall take suitable necessary corrective measures. We also find that the way in which the learned Counsel for the respondents, handled the matter absolutely disturbing. We find that taking advantage of the interim order passed in O.A. 73 of 2005 to receive applications, a stand is now taken that the Tribunal directed them to hold a combined examination. It is crystal clear that the Tribunal permitted the respondents 'to receive applications only' and it did not find that they are eligible to participate in the examination or decide their eligibility to be considered for Group 'D' posts. In any event that interim order is only in the nature of an interim order, subject to the final outcome of the O.A. i.e O.A. 73 of 2005.
12. In the Notification calling for LDCE dated 7.1.2005, there is no mention of eligibility of casual employees for the said examination. Annexure A-IV clearly shows that the proposed examination is to be conducted for promotion of Group 'D' officials to the grade of LDC and further Group 'D' officials of Central Passport Organisation who will be completing 5 years of regular service in Group 'D' post as on 31.5.2005 and have passed Matriculation are eligible to appear in this examination. Contrary to this Circular, the Application Form was issued making it appear that it is a combined examination for Group 'D' employees and Casual workers. This appears to be misreading of the rules and an attempt has been made to permit the persons who are ineligible to be promoted through back door entry method of promotion. In so far as the casual employees are concerned, they have to avail themselves of the route of direct recruitment. As it is rightly argued, Group 'D' employees cannot be combined with that of Casual workers and any such permission would be an arbitrary decision of treating the unequals as equals. Casual workers are not in the feeder category to compete along with Group 'D' employees for promotion to the post of LDC. The respondents' action amounts to bypassing the statutory rules by permitting the casual employees to appear for the examination intended for Group 'D' employees. There is a separate provision for direct recruitment through competitive examination under the 75% of the vacancies. There is no scope for allowing the casual employees in the vacancies for Group 'D' employees.
13. The respondents have enclosed certain documents i.e. Written communication/letters, the correspondence between the Secretary to the Department. It is not known to what extent these correspondence may over ride the statutory rules. The letter issued by the Secretary, Ministry of Personnel, Public Grievances and Pensions dated 9.8.2005 categorically says that the DOPT could not agree to the proposal on the ground that the scheme for Special Qualifying Examination approved by the DOPT in 1993 was the last one and that all direct recruitment vacancies of Clerks/Stenographers etc. thereafter were required to be filled only through the normal Clerks Grade Examination conducted by the Staff Selection Commission and that regularisation in this manner would be a case of back door entry and will have wide repercussions. The letter further says that the Department would have no objection if all such newly sanctioned Group 'D' posts are filled from amongst casual employees. Ultimately, they say that the problem can be sorted out by holding Special Qualifying Examination as a one time measure. The letter further says that it is for the Ministry of External Affairs to decide whether Special Qualifying Examination is the comprehensive solution to the problem they have been working for. Department of Expenditure may also be consulted. From the above letter, it is clear that the DOPT is the nodal agency for approval have not so far granted approval. That apart, unless the decision of the Government is issued in the form of a Govt. Order under Article 73, the letter of communication cannot be taken as the decision of the Government so as to hold a Special Qualifying Examination. The said letter has no legal force and cannot be pressed into service to oppose the relief. In the above circumstances, it is surprising as to how the Assistant Passport Officer who has sworn to the affidavit has taken a decision on behalf of the Ministry as stated in Paragraph 8 of the reply that this Ministry has decided to fill up the available vacancies at LDC level by eligible Group 'D' and Casual workers. In Paragraph 11 it is stated that they have gone out of their way and got the required permission to hold a Special Qualifying Examination for the benefit of the Casual Workers. No such specific permission is pointed out or furnished before this Tribunal. In our view it is a blatant violation of the statutory rules and the procedure of taking a policy decision without reference to the relevant Department. We also note that the reply statement in this O. A. is directly in conflict to the reply filed and the stand taken in O.A. 73 of 2005.
14. Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India, 1993 came into force from 1.9.1993 also provides for procedure for filling up of Group 'C posts for the Casual labourers who have been granted temporary status. The present method of selection is contrary to the said scheme also. In a recent judgment of the Hon'ble Supreme Court in the case of Union of India v. Gagan Kumar 2005 AIR SCW 3594 : 2005(3) SLJ 7 (SC), held that the Clause 4 of the Scheme (Scheme of 1993) 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. Their Lordships held as follows: "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. Therefore, there is no scope of the Casual labourers to straightaway seek for appointment to Group 'C posts.
15. In so far as the regularisation of casual workers recruited to perform duties of Group 'C posts, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) in O.M. No. 49014/16/89-Estt.(C) dated 16.7.1990 laid down certain guidelines. In the year 1990 as a one time measure, Government decided to allow age relaxation etc. for the purpose of recruitment. Paragraph 6 of the O.M. says that the relaxation given to the casual workers will be available only for next examination to be conducted by the Staff Selection Commission for the recruitment to the posts of LDCs and Stenographers. It will be the responsibility of the administrative Ministries/Departments, where the casual worker is employed at the time of issue of these instructions to ensure that the casual workers intending to appear in the relevant examination conducted by the Staff Selection Commission satisfy all the conditions prescribed in the O.M. Paragraph JO relevant for our purpose is as follows: "It is once again reiterated that there is a complete ban on engagement of casual workers for performing duties of Group 'C posts and hence no appointment of casual worker should be made in future for performing duties of Group 'C posts. If any deviation in this regard is committed, the administrative officer incharge, in the rank ofJoint Secretary or equivalentwill be held responsible for the same", (emphasis added). It is after this Government of order of 1990, the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India 1993 came into being. As per the 1993 Scheme casual workers who are given temporary status are permitted to be regularised to Group 'D' posts only. Therefore, it is not open to the second respondent to take a policy decision to hold an examination through LDCE intended only for permanent Government servants of the Central Government viz. Group 'D'. It is nothing but bypassing the statutory rules and the Government of India instructions. It will be permiting back door entry of casual employees to Group 'C service detrimental to efficiency of service and breed seeds of corruption and nepotism (vide judgment in State of H.P. v. Suresh Kumar Verma of the Hon'ble Supreme Court referred to above).
16 & 17. Regularisation of Casual employees in permanent service requires a policy decision of the Government since there may be thousands or more in various departments of Government, Railways, Postal Services throughout the country. A decision cannot be taken in isolation without considering the implications of service and financial commitment.
18. Hence, we have no hesitation to hold that the proposed action of the respondents is clearly illegal and arbitrary and the applicants have made out a case for grant of the relief sought for in this O.A. We allow the O.A. accordingly. No order as to costs.
19. The applicants have also filed an application for amending the prayer (M. A. 406 of 2005) which is more specific and therefore the application is ordered.
20. Their application (M.A. 405 of 2005) to implead proposed respondents 3 to 35 at the stage of final hearing is liable to be dismissed. The O.A. 73 of 2005 filed by the proposed respondents is taken up along with this O.A. Hence the M.A. is dismissed.
21. Before parting with the case we are constrained to express our concern at the conflicting stand taken by the second respondent in reference to regularising the services of casual employees with temporary status. The second respondent has pressed into service the internal communication of the Department to address the arguments which is as a matter of fact giving up the stand taken in O.A, 73 of 2005. When we have declined to look into the internal correspondence of the Department especially the letter dated 9.8.2005 to take a different stand in O.A. 73 of 2005 a different Counsel Mr. M.T. Arunan representing O.A. No. 702 has included this correspondence along with the reply statement. The reply is consciously silent as to the stand of the first respondent. Thus it is seen that the consistent stand of the Union of India in reference to regularisation is sought to be given a go bye in their reply. We are unable to accept the case of the respondent for the reasons set out above. However, we are constrained to observe that when the Departmental Heads are taking a stand it can never be contrary to the Government of India's stand. It has rightly been observed that guidelines are being observed more in breach than their implementation. More often than not the administrative authorities and in disregard to the guidelines, thereby affording the employees unintended opportunities to seek regularisation of their services through Courts and Tribunals etc. In spite of warning that disciplinary action will be taken, that has not resulted in the desired effect. We feel that this is an appropriate case for the first respondent to take appropriate action against officers concerned and to issue suitable guidelines to the Counsels representing the cases before the Tribunal. Copies of this order shall be communicated to the first respondent and to the Ministry of Personnel, Public Grievances and Pensions, Govt. of India, New Delhi directly by the Registry.