Central Administrative Tribunal - Allahabad
Dina Nath S/O Sri Gayadin vs Union Of India Through Defence ... on 10 August, 2011
OPEN COURT CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ***** (THIS THE 10th OF AUGUST 2011) Honble Mr. A.K. Bhardwaj, Member (J) Transfer Application No.22 of 2010 (U/S 19, Administrative Tribunal Act, 1985) 1. Dina Nath S/o Sri Gayadin, R/o Pachnika Pura, P.O Bhikhapur Mendwara, P.S. Pipri, District Kaushambi. 2. Prithvi Pal S/o Nanhi Lal, R/o Billaspur P.O. Kathgao, P.S. Pipari District Kaushambi. 3. Raju S/o Deo Saran, R/o Billaspur, P.O. Kathgano, P.S Pipari District Kaushambi. Applicants Versus 1. Union of India through Defence Secretary of Ministry of Defence New Delhi. 2. Chief Operations Officer, 29 Wing, Air Force, Bamrauli, District Allahabad. 3. Master Warrant Officer, 29 Wing, Airforce, Bamrauli, Allahabad. 4. S.F.S. & I.O., 29 Wing Airforce Bamrauli, Allahabad. Respondents Present for Applicant : Shri S.P. Shukla Present for Respondents : Shri D.S. Shukla O R D E R
No one present on behalf of the applicant. I proceed to hear Shri D.S. Shukla, learned counsel for the respondents and decide the present O.A. in terms of Rule 15 (1) of C.A.T. Procedure Rules 1987.
2. The petitioners filed writ petition No. 12014 of 2003 before Honble Allahabad High Court. In terms of order dated 16.4.2010 (noted in letter dated 6.8.2010 of Dy. Registrar, High Court of Judicature at Allahabad), said writ petition was transferred to this Tribunal and registered as T.A. NO.22/10. Petitioners filed the present petition contending that they are class IV employee working on daily wages basis under the respondents since September 1999 and are discharging the duties since dates of their engagement, thus are entitled to be regularized in the services of the respondents.
3. Opposing the prayer made in the writ petition, respondents have filed the detailed counter reply, contending inter-alia, the petitioners and other casual workers, who worked in Flight Safety Zone are given security passes just to enable them to enter inside technical area and issuance of such passes does not indicate that they are regular employee. It is also the stand of the respondents that vacancies released by the Headquarter C.A.C. PAF were exhausted by absorbing the most suitable candidates and presently there is no such vacancies on which the petitioners can be employed. It is also the contention of the respondents that even existence of the vacancy would not entitle the applicants for their regularization, as no legal right for absorption is vested in them. However, in para 13 of the reply respondents themselves admitted that the engagement as casual labourer is made on merit and most suitable and meritorious candidates are hired for such purpose. Para 13 of the reply read as under:-
13. That the contents of paragraph NO. 8 of the writ petition are false and baseless. As already stated earlier it is again reiterated that the engagement of casual labourers is made on merit only, and, only most suitable candidates and meritorious candidates are hired. The entire allegations contrary to it are denied.
4. As far as issue of absorption/regularization of casual labourer is concerned, as is ruled by Honble Supreme Court in the case of Secretary, State of Karnataka Vs Umadevi (2006) 4 SCC 1, it is prerogative of the Government to engage the contractual or casual employees on need basis and such engagement cannot be held to be any promise on behalf of the Government either to continue contract labourers or to regularizes them. In-fact State is not even permitted to make such promises. Para 47 of the judgment reads as under:-
47. When a person enters a temporary engagement or gets engagement as contractual or casual workers and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expection cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these person either to continue them where they are to be make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
5. Principle laid down by Honble Supreme Court in said case was further reiterated in the case of Union of India and Ors. Vs. Vartak Labour Union JT 2011 (3)SC 110, wherein it was held that the casual employment terminates when the same is discontinued and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules. Paras 16 and 19 of the judgment are extracted herein below for easy reference:-
16 We are of the opinion that the Respondents Unions claim for regularization of its members merely because they have been working for BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules (See: Secretary, State of Karnataka and Ors. V. Umadevi (3) and Ors (2006) 4 SCC 1; Official Liquidator V. Dayanand and Ors: (2008) 10 SCC 1; State of Karnataka and Ors. V. Ganapathi Chaya Nayak and Ors; (2010) 3 SCC 115; Union of India and Anr. V. Kartick Chandra Mondal and Anr.; Satya Prakash and Ors V. State of Bihar and Ors. (2010) 4 SCC 179 and Rameshwar Dayal V. Indian Railway Construction Company Limited and Ors. (2010) 11 SCC 733.
17. In Umadevi (3) (supra), a Constitution Bench of this Court had observed that:
It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them or less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointment consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.
18. Explaining the dictum laid down in Umadevi (supra), a three Judge Bench in Official Liquidator (supra) has observed that:
In Sate of Karnataka V. Umadevi (3), the Constitution Bench again considered the question whether the State can frame scheme for regulaisation of the services of ad hoc/temporary/daily wager appointed in violation of the doctrine of equality or the one appointed with a clear stipulation that such appointment will not confer any right on the appointee to seek regularization or absorption in the regular cadre and whether the Court can issue mandamus for regularization or absorption of such appointee and answered the same in negative.
19. In the light of the settled legal position and on a conspectus of the factual scenario noted above, the impugned directions of the High Court cannot be sustained. These are set aside accordingly.
However, in the said judgment itself Honble Supreme Court ruled that where members of the respondent Union have been employed in terms of the Regulations and have been consistently engaged in service for the past thirty to forty years, the Union of India would consider enacting an appropriate regulation/scheme for their absorption and regularization of their services. Paras 21 and 22 of the said judgment reads as under:-
21 Therefore in the facts and circumstances of the instant case, where members of the respondent Union have been employed in terms of the Regulations and have been consistently engaged in service for the past thirty to forty years, of course with short breaks, we feel, the Union of India would consider enacting an appropriate regulation/scheme for absorption and regularization of the services of the casual workers engaged by BRO for execution of its on-going projects.
22. In the final analysis, the appeals are allowed, and the impugned judgments and orders are set aside. However, in the circumstances of the case, the parties are left to bear their own costs.
6. It is the stand of the respondents that mostly the casual labourers including the applicants are appointed on part-time basis, thus their regularization is not permissible. Para 5 of the reply reads as under:-
5. That accordingly the petitioners were appointed as Casual Labourers and are not regular employees. The identity card issued to the petitioners were only for security clearance and were not cancelled just to ease the administrative job. The security passes issued to such labourers as the petitioners, clearly indicate their security clearance to enter inside the technical area and does not indicate in any manner the regular employee. Since the petitioners were employed as casual labourer only for a limited period as such they cannot claim their regularization. Further, there is no seniority maintained amongst these casual labourers, whenever works available security clear labourers are employed for certain number of days depending on the work and paid accordingly. Most of time these casual labourers are employed on part time basis. Hence, the claim of the petitioners for regularization on the basis of prolong but intermittent working as casual labourers is untenable as such, their claim for regularization cannot be considered.
7. In view of judgment of Honble Supreme Court in the case of State of Rajasthan and Ors. Vs. Daya Lal and Ors (2011) 2 Supreme Court Cases 429, no direction can be issued to the respondents to regularize the applicant. Paras 11,12,18,20,21 and 22 of the judgment read as under:-
11. Two questions therefore arise for consideration in these appeals :
(i) Whether persons appointed as Superintendents in aided non- governmental Hostels are entitled to claim absorption by way of regularization in government service or salary on par with Superintendents in Government Hostels?
(ii) Whether part-time cooks and chowkidars appointed temporarily by Mess Committees of Government Hostels, with two or three years service, are entitled to regularization by framing a special scheme?
12. We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals:
(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.
(ii) Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be `litigious employment'. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.
(iii) Even where a scheme is formulated for regularization with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates.
(iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.
v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.
(See : Secretary, State of Karnataka vs. Uma Devi - 2006 (4) SCC 1, M. Raja vs. CEERI Educational Society, Pilani - 2006 (12) SCC 636, S.C. Chandra vs. State of Jharkhand - 2007 (8) SCC 279, Kurukshetra Central Co-operative Bank Ltd vs. Mehar Chand - 2007 (15) SCC 680, and Official Liquidator vs. Dayanand - 2008 (10 SCC 1)
18. It is thus evident that insofar as aided hostels were concerned, the Government was liable only to extend aid by way of a grant to students of 6 to 8 standards and students of 8 to 11 standards, staying in such hostels, to meet the expenditure of food, water, electricity, clothes, hair-cutting, soap, oil and shoes and another grant for books and stationery of such students. The Government was not liable to bear the expenses of salary and allowances of the employees of the aided hostels and it was for the private organizations which ran the aided hostels to meet the salaries of employees from their own resources. The persons employed in the aided hostels were the employees of the respective organizations running those hostels and not the employees of the Government. The Government has merely prescribed the eligibility conditions to be fulfilled by the private organizations to get grants to meet the food and education expenses of students staying in such hostels. Therefore under no stretch of imagination persons employed by the aided hostels could be termed as persons employed by the State Government. Nor could the Government be held liable for their service conditions, absorption, regularisation or salary of employees of private hostels.
20. The part-time cooks and chowkidars were employed on temporary basis in the Government hostels in the years 1995, 1996, 1997 and 1998. They approached the High court in the year 1999 (except Madan Lal Yogi who approached in the year 1997). The services of some of them had been terminated within one or two years from the date of temporary appointment. Though the State had taken a decision to terminate all those who were appointed on consolidated wage basis, the other respondents continued because of the interim orders by courts. Service for a period of one or two years or continuation for some more years by virtue of final orders under challenge, or interim orders, will not entitle them to any kind of relief either with reference to regularization nor for payment of salary on par with regular employees of the Department.
21. The decision relied upon by the High Court namely the decision in Anshkalin Samaj Kalyan Sangh of the High Court no doubt directed the state government to frame a scheme for regularization of part-time cooks and chowkidars. It is clear from the said decision, that such scheme was intended to be an one-time measure. Further said decision was rendered by the High Court prior to Uma Devi, relying upon the decision of this Court in Daily Rated Casual Labour vs. Union of India [1988 (1) SCC 122], Bhagwati Prasad vs. Delhi State Mineral Development Corporation [1990 (1) SCC 361] and Dharwad District PWD Literate Dalit Wage Employees Association vs. State of Karnataka [1990 (2) SCC 396]. These directions were considered, explained and in fact, overruled by the Constitution Bench in Uma Devi. The decision in Anshkalin Samay Kalyan Singh is no longer good law. At all events, even if there was an one time scheme for regularisation of those who were in service prior to 1.5.1995, there cannot obviously be successive directions for scheme after scheme for regularization of irregular or part-time appointments. Therefore the said decision is of no assistance.
Conclusion
22. In view of the above, both the questions are answered in the negative and in favour of the appellants. Therefore, none of the respondents is entitled to any relief. All the appeals are allowed and the orders of the High Court challenged in these appeals are set aside. Consequently, the writ petitions filed by the respondents before the High Court stand dismissed.
8. However, in the case of Secretary, State of Karnataka Vs Umadevi (supra) Honble Supreme Court made an exception to general principle laid down by their Lordship i.e. if the casual employee are continued for a period beyond 10 years and they are eligible for regular appointment in terms of regulation applicable to the post in question, their claim for absorption may be considered.
9. In view of the aforementioned, T.A. dismissed. However, respondents would verify whether the applicants are working with them for over 10 years as casual labourers. If it is found that they worked for over 10 years, their claim for regularization may be examined in terms of law laid down by Honble Supreme Court in the case of Secretary, State of Karnataka Vs Umadevi (supra).
No cost .
Member (J) Manish/-
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