Central Administrative Tribunal - Delhi
Giriraj Sharma vs M/O External Affairs on 7 March, 2023
1
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.1392/2016
Reserved on: 17.02.2023
Pronounced on: 07.03.2023
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Sh. Giriraj Sharma
S/o Sh. Ram Pal Sharma
R/o 83, Sarvodaya Nagar,
Near Vijay Nagar Check Post,
Ghaziabad (UP).
Working as LDC,
Regional Passport Office,
Ministry of External Affairs, Govt. of India,
Hudco Trikoot-3, Bhikaji Cama Place,
R.K. Puram, New Delhi-110066.
...Applicant
(By Advocate: Sh. R.V. Sinha and Sh. Amit Sinha)
Versus
1. Union of India through
Ministry of External Affairs,
South Block, New Delhi - 110 011
(Through : The Secretary).
2. The Passport Officer,
Regional Passport Office,
Ministry of External Affairs,
Govt. of India, Hudco Trikoot-3,
Bhikaji Cama Place,
R.K. Puram, New Delhi-110066.
3. The Joint Secretary (CPV & PSP) &
Chief Passport Officer,
Ministry of External Affairs,
Patiala House, Tilak Marg,
New Delhi-110 001.
...Respondents
(By Advocate: Mr. Gyanendra Singh)
2
OA No.1392 of 2016
ORDER
By Hon'ble Mr. Manish Garg, Member (J):
Learned counsel for the applicant stated as under:-
1.1 The applicant was initially appointed as daily rated Casual Worker by the respondents on 14.06.1989.
Subsequently, he along with others was granted temporary status w.e.f. 15.03.1994 and his services were regularized against Group-D post w.e.f. 15.03.2004. After qualifying the departmental examination conducted by the respondent to the post of Lower Division Clerk (LDC), the applicant was appointed as such w.e.f. 09.07.2008.
1.2 Similarly situated LDCs, who were initially engaged as daily rated casual workers during 1988 to 1990, seeking regularization of their services with effect from the date of their initial engagement as casual workers with all consequential benefits, had approached before this Tribunal by filing OA Nos. 1557/1998 and 436/2005 (Ravindranath V.K. & Ors. vs. UOI & Ors. and A.R. Parameswaran & Ors. vs. UOI & Ors.], which were allowed vide Orders dated 14.07.2003 and 13.06.2005, respectively with a direction to the respondents to grant the benefits of regularization with effect from their date of initial engagement as casual workers with all consequential 3 OA No.1392 of 2016 benefits other than seniority namely eligibility to appear in the promotion tests or examinations and for terminal benefits etc. 1.3 In compliance of the aforesaid decisions of the Tribunal, the respondents vide order dated 06.12.2006 granted the benefits of notional fixation of pay, eligibility to appear in the test/examination for higher grade, counting of qualifying service for terminal benefits from the date of their initial engagement.
1.4 On coming to know that the respondents have regularized the services of similarly situated persons from the date of their initial engagement, applicant made a representation dated 22.10.2009 to the respondents seeking similar reliefs in terms of the aforesaid decision of the Tribunal.
1.5 Various Superintendents/Assistants working under the respondents also approached the Ernakulam Bench of this Tribunal by filing OA Nos.75/2010, 82/2010 and 196/2010 seeking regularization from the date of their initial engagement, which were also allowed by a common order dated 12.08.2011 in terms of its earlier order passed in OA No.1557/2008 (supra). In compliance, the 4 OA No.1392 of 2016 respondents had also granted the benefits to the applicants therein vide order dated 11.05.2012.
1.6 The applicant herein also espoused his grievance through the Association seeking benefit of the aforesaid orders of the Tribunal by filing representation dated 06.12.2012. As a model employer, the respondents ought to have extended similar benefits to the similarly situated persons like the applicant to avoid frustration among the employees, but they adopted „pick and choose‟ policy in granting such benefits on their own thereby discriminating the applicant.
1.7 Feeling aggrieved, the applicant approached the Tribunal by way of OA No.1920/2013 seeking extension of benefits as granted by the Ernakulam Bench, but the said OA was allowed to be withdrawn vide order dated 22.09.2015, with liberty to file fresh one with better particulars. Hence, the instant OA has been filed seeking the following reliefs:-
"(i) Call for the relevant records of the respondents in the matter;
(ii) Declare that the applicant is entitled for
extension of benefits of the
orders/judgments dated 14.07.2003 and 13.06.2005 [Annexure A-3(Colly)] of Ernakulam Bench of this Hon‟ble Tribunal in OA Nos.1557/1998 and 436/2005 titled "Ravindranath V.K. & Ors. vs. Union of India & Ors." and "A.R. Parameswaran & 5 OA No.1392 of 2016 Ors. vs. UOI & Ors." respectively and also common order/judgment dated 12.08.2011 (Annexure A-8) in OA Nos.75/2010, 82/2010 & 196/2010;
(iii) Declare that the applicant is entitled for being regularized as L.D.C. w.e.f.
14.06.1989, i.e. the date of his initial engagement as daily rated casual worker, re-fixation of his pay as LDC from the date of his initial engagement, i.e. 14.6.1989, payment of arrears of pay from the date of his regularization and counting of his casual service for the purpose of terminal/retiral benefits.
(iv) Direct the respondents to regularize the applicant as L.D.C. w.e.f. 14.6.1989, i.e., the date of his initial engagement as daily rated casual worker and to re-fix the pay of the applicant as LDC from the date of his initial engagement, i.e. 14.6.1989, with all consequential benefits, viz., consequential promotion/ACP/MACP benefits, payment of arrears of pay from the date of his regularization and counting of his casual service for the purpose of terminal/retiral benefits.
(v) Further direct the respondents to pay interest at the rate decided by this Hon‟ble Tribunal on arrears of pay.
(vi) Order exemplary cost against the
respondents and in favour of the
applicant."
2. Per contra, the respondents filed a counter affidavit.
Besides admitting the factual matrix of the case, they stated that the applicant was afforded an opportunity to appear in the Special Qualifying Examination conducted in 1993 for direct appointment to the post of LDC, but he could not qualify the same. They also submitted that the applicant was promoted to the post of LDC from the post of Daftry, therefore, he is not entitled to regularization form 6 OA No.1392 of 2016 the initial date of his engagement without passing the prescribed test for LDC. Moreover, it is pertinent to mention here that Casual Labourers and Daily Rated Clerks are two different categories of workers, hence, not comparable.
2.1 In view of the above position, learned counsel for the respondents argued that the case of the applicant is not covered by decisions of the Tribunal relied upon by him, hence, the instant OA lacks merit and deserved to be dismissed.
3. The applicant has filed rejoinder to the reply filed on behalf of the respondents denying their averments and reiterating the facts of the OA.
4. The respondents have also filed an additional affidavit to the rejoinder filed by the applicant more or less reiterating their stand taken in the reply, as mentioned above.
5. We have heard Mr. R.V. Sinha assisted by Mr. Amit Sinha, learned counsel for the applicant; Mr. Gynendra Singh, learned counsel for the respondents and perused the pleadings available on record as well as the decisions relied upon by the learned counsels for both the parties.
7 OA No.1392 of 2016The learned counsel for applicant has also filed the written submissions.
ANALYSIS
6. The crux of the matter is that what would be the relevant date of regularization that is to say whether initial date of engagement or shall it be prospective i.e. date of promotion to the post of LDC? In other words, whether casual employees subsequently regularized are entitled for regularization from the date of their initial engagement?
6.1 In State Of Haryana & Ors. vs Piara Singh & Ors.
[1992 AIR 2130, 1992 SCR (3) 826], the Hon‟ble Supreme Court observed as under:-
10. Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made the appropriate legislature. This power to prescribe the conditions service can be exercised either by making Rules under the proviso to Article 309 of the Constitution or (in the absence of such Rules) by issuing Rules/instructions in exercise of its executive power. The court comes into the picture only to ensure observance of fundamental rights, statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the court in such matters is to ensure the Rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the directive principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. Where a temporary or ad hoc appointment 8 OA No.1392 of 2016 is continued for long the court presumes that there is need and warrant for a regular post and accordingly directs regularization. While all the situations in which the court may act to ensure fairness cannot be detailed here, it is sufficient to indicate that the guiding principles are the ones stated above. The principle relevant in this behalf are stated by this Court in several decisions, of which it would be sufficient to mention two decisions having a bearing upon the issue involved here. They are Dharwad Distt. P.W.D. Literature Daily Wage Employees Association v. State of Karnataka and Ors. [1990] 2 S.C.C. 396 and Jacob v Kerala Water Authority alleged that about 50,000 persons were being employed on daily-
rated or on monthly-rated basis over a period of 15 to 20 years, without regularizing them. It was contended that the very fact that they are continued over such a long period is itself proof of the fact that there is regular need for such employment. "
Xxxxxx "25. Before parting with this case, we think it appropriate to say a few words concerning the issue of regularization of adhoc/temporary employees in government service. The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an adhoc or temporary appointment to be made. In such a situation, effort should always be to replace such an adhoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an adhoc/temporary employee.
Secondly, an adhoc or temporary employee should not be replaced by another adhoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
Thirdly, even where an adhoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for 9 OA No.1392 of 2016 applications and all those who apply in response thereto should be considered fairly.
An unqualified person ought to be appointed only when qualified persons are not available through the above processes.
If for any reason, an adhoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.
The proper course would be that each States prepares a scheme, if one is not already in vogue, for regularisation of such employees consistent with its reservation policy and if a scheme is already framed, the same way be made consistent with our observations herein so as to reduce avoidable litigation in this behalf. If and when such person is regularised he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be.
So far as the work-charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell - say two or three years - a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with empathy for the person. As has been repeatedly stressed by this court, security of tenure is necessary for an employee to give his best to the job. In this behalf, we do commend the orders of the Government of Haryana (contained in its letter dated 6.4.90 referred to hereinbefore) both in relation to work-charged employees as well as casual labour.
We must also say that the orders issued by the Governments of Punjab and Haryana providing for regularisation of adhoc/temporary employees who have put in two years/one year of service are quite generous and leave no room for any legitimate grievance by any one.
These are but a few observations which we thought it necessary to make, impelled by the facts of this case, and the spate of litigation by such employees. They are not exhaustive nor can they be understood as immutable. Each Government or authority has to devise its own criteria or principles for regularisation having regard to all 10 OA No.1392 of 2016 the relevant circumstances, but while doing so, it should bear in mind the observations made herein."
6.2 Pursuant to the above decision, Ministry of Personnel, Public Grievances and Pensions (Deptt. of Personnel and Training, Casual Labourers (Grant of Temporary Status and Regularisation) Scheme came into force w.e.f.
1.9.1993. The salient features of the said Scheme are reproduced as under:-
"3. This scheme is applicable to casual labourers in employment of the Ministries/Departments of Government of India and their attached and subordinate offices, on the date of issue of these orders. But it shall not be applicable to casual workers in Railways, Department of Telecommunication and Department of Posts who already have their own schemes.
4. Temporary Status
(i) Temporary status would be conferred on all casual labourers who are in employment on the date of issue of this OM and who have rendered a continuous service of at least one year, which means that they must have been engaged for a period of at least 240 days (206 days in the case of offices observing 5 days week).
(ii) Such conferment of temporary status would be without reference to the creation/availability of regular Group `D‟ posts.
(iii) Conferment of temporary status on a casual labourer would not involve any change in his duties and responsibilities. The engagement will be on daily rates of pay on need basis. He may be deployed anywhere within the recruitment unit/territorial circle on the basis of availability of work.
(iv) Such casual labourers who acquire temporary status will not, however, be brought on to the permanent establishment unless they are selected through regular selection process for Group `D‟ posts.11 OA No.1392 of 2016
5. Temporary status would entitle the casual labourers to the following benefits:-
(i) Wages at daily rates with reference to the minimum of the pay scale for a corresponding regular Group `D‟ official including DA, HRA and CCA
(ii) Benefits of increments at the same rate as applicable to a Group `D‟ employee would be taken into account for calculating pro-rata wages for every one year of service subject to performance of duty for at least 240 days, 206 days in administrative offices observing 5 days week) in the year from the date of conferment of temporary status.
(iii) Leave entitlement will be on a pro-rata basis at the rate of one day for every 10 days of work, casual or any other kind of leave, except maternity leave, will not be admissible. They will also be allowed to carry forward the leave at their credit on their regularisation. They will not be entitled to the benefits of encashment of leave on termination of service for any reason or on their quitting service.
(iv) Maternity leave to lady casual labourers as admissible to regular Group `D‟ employees will be allowed.
(v) 50% of the service rendered under temporary status would be counted for the purpose of retirement benefits after their regularisation.
(vi) After rendering three years‟ continuous service after conferment of temporary status, the casual labourers would be treated on par with temporary Group `D‟ employees for the purpose of contribution to the General Provident Fund, and would also further be eligible for the grant of Festival Advance/Flood Advance on the same conditions as are applicable to temporary Group `D‟ employees, provided they furnish two sureties from permanent Government servants of their Department.
(vii) Until they are regularized, they would be entitled to Productivity Linked Bonus/ Ad- hoc bonus only at the rates as applicable to casual labourers.
6. No benefits other than those specified above will be admissible to casual labourers with temporary status. However, if any additional benefits are admissible to casual workers working in Industrial establishments in view of provisions of Industrial 12 OA No.1392 of 2016 Disputes Act, they shall continue to be admissible to such casual labourers.
7. Despite conferment of temporary status, the services of a casual labourer may be dispensed with by giving a notice of one month in writing. A casual labourer with temporary status can also quit service by giving a written notice of one month. The wages for the notice period will be payable only for the days on which such casual worker is engaged on work.
8. Procedure for filling up of Group `D‟ posts (i ) Two out of every three vacancies in Group `D‟ cadres in respective offices where the casual labourers have been working would be filled up as per extant recruitment rules and in accordance with the instructions issued by Department of Personnel and Training from amongst casual workers with temporary status. However, regular Group `D‟ staff rendered surplus for any reason will have prior claim for absorption against existing/future vacancies. In case of illiterate casual labourers or those who fail to fulfill the minimum qualification prescribed for post, regularisation will be considered only against those posts in respect of which literacy or lack of minimum qualification will not be a requisite qualification. They would be allowed age relaxation equivalent to the period for which they have worked continuously as casual labourer.
9. On regularisation of casual worker with temporary status, no substitute in his place will be appointed as he was not holding any post. Violation of this should be viewed very seriously and attention of the appropriate authorities should be drawn to such cases for suitable disciplinary action against the officers violating these instructions.
10. In future, the guidelines as contained in this Department‟s OM dated 7.6.88 should be followed strictly in the matter of engagement of casual employees in Central Government offices.
11. Department of Personnel and Training will have the power to make amendments or relax any of the provisions in the scheme that may be considered necessary from time to time. "
The applicant was granted termprorary status on 15.3.1994.13 OA No.1392 of 2016
From the above, it can been seen that vide Office Order dated 15.3.2004, the applicant was appointed as "Watchman", the said Office Order reads as under:-
"In pursuance of U.S.(PV), MEA, New Delhi‟s approval order No.V.IV/578/1/2003 dated 13.03.2004, Shri Giriraj Sharma, Casual Labourer holding temporary status Group „D‟ post wef 01-9-1993 vide RPO, Delhi Office Order No.1/18/86/Admn dated 15.3.2004, is appointed as Watchman (Gp.‟D‟) in this office with effect from 15.03.2004 (FN) in the scale of Rs.2550-55-2660- 60-3200.
(i) The appointment is purely temporary and may be terminated at any time by a month‟s notice given by either side viz. the appointee or by appointing authority without assigning any reasons. The appointing authority, however, reserves the right of terminating the service of appointee forthwith before the expiry of the stipulated period of notice by giving/taking payment of a sum equivalent to pay & allowances for the period of notice or unexpired portion thereof.
(ii) He should be prepared to serve in any RO/PO‟s already opened or to be opened in future to which he may be posted at any time and a singed bond to this effect should be furnished by him on his appointment.
(iii) He will be governed by the Central Passport Organization & Constitution and Maintenance Rules and Orders applicable to the Central Government employees in force and amended from time to time.
2. His appointment will be further subject to :-
(a) production of certificate of fitness from competent authority.
(b) Submission of a declaration in the event of the candidates having more than one wife living, the appointment will be subject to his being accepted from the enforcement of the requirement in this behalf.
(c) Taking an oath of allegiance/faithfulness to the Constitution of India.14 OA No.1392 of 2016
3. His character and antecedents will be verified through the police, if any, his adverse report is received, his service will be liable to be terminated.
4. If any declaration given or information furnished by him is proved to be false or if he is found to have willfully suppressed any material information, he will be liable to be removed from service, or such other action which Govt. may deem necessary."
6.3 In Kamaraj And Ors. vs Union Of India (Uoi) And Anr.[: 2006 (3) SLJ 256 CAT], decided by a Coordinate Madras Bench of this Tribunal, issue of Limited Competitive Departmental Examination came to be considered and was observed as under :-
"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 15 OA No.1392 of 2016 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 Recruitment whether 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 16 OA No.1392 of 2016 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 statutory 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. xxxxxx "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 17 OA No.1392 of 2016 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 correspondences may override 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 18 OA No.1392 of 2016 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 19 OA No.1392 of 2016 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.
xxxxxx
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 20 OA No.1392 of 2016 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."
6.4 Thereafter, vide Office Order dated 21.7.2008, the applicant was promoted as LDC pursuant to above examination under 25% quota, persons eligible are Group 'D' employees with 5 years of regular service in their grade rendered after appointment, the said office Order is reproduced as under:-
"Consequent upon the promotion of Shri Giriraj Sharma, Daftry, to the post of LDC (Grade VII) of Central Passport Organization in Regional Passport Office, Delhi, with effect from 09.07.2008 (FN) vide Ministry‟s Office Order No.V.IV/578/2/2006 dated 10th July, 2008, on the basis of the result of Limited Departmental Examination held on 20.05.2006, his pay has been fixed at Rs.3575/- in the pay scale of Rs.3050-75-3950-80-4590, as under:-
Existing Basic Pay raised by Pay fixed on Date of next Pay in the pay adding one promotion to increment scale of Rs.2610- notional the post of (subject to 60-3150-65-3540 increment in LDC w.e.f. passing the lower post 09.07.2008 typewriting or Rs.100/- test) whichever is more w.e.f.
09.07.2008 21 OA No.1392 of 2016 Rs.3410/- Rs.3510/- Rs.3575 01.07.2009 6.5 The applicant preferred an RTI dated 16.7.2009 seeking following information:-
"I appeal to you to kindly provide me the following information under RTI Act, Postal Order of Rs.Ten only bearing number 77E 335421 dated 15.07.2009 is enclosed.
(i) Services of Casual employees engaged in Passport Offices, Cochin, Trivandrum and Kozhikode were regularized and after regularization of their services, some of them approached hon'ble C‟T in accordance to the directives of CAT Ernakulam, date of their regular appointment was changed to the initial date of engagement as casual employee. The pay was re-fixed also and arrears was disbursed. Accordingly some other employees who did not file petition in CAT, approached CPV division to give them similar benefit also and many of them were given the same benefits. But this benefit has not been given to similarly placed employees in Delhi. It is requested to provide me the information as below:
(a) Number of employees whose date of regular appointment was changed/shifted to the date of initial engagement as casual employees and their pay was re-fixed and arrears was also disbursed in accordance to directives of CAT, Ernakulam, may please be informed office wise.
(b) Number of employees whose did not approach CAT and their date of regular appointment was changed/shifted to the date of initial engagement as casual employees and their pay was re-fixed and arrears was also disburse in accordance to directives of CPV Division, may please be informed office wise.
(c) Number of employees whose date of regular appointment was changed/shifted to the date of initial engagement as casual employees and their pay was re-fixed and arrears was also disbursed and seniority was also given from the date of their initial engagement as casual employee in accordance to directives 22 OA No.1392 of 2016 of CAT, Ernakulam, may please be informed office wise."
6.6 The respondent responded to RTI application vide Communication dated 13.8.2009, which reads as under:-
"Please refer to you RTI application dated 15.07.09 asking some information. The information is as follows:-
S. Name of Q.No.(a) Q.No.(b) Q.No.(c)
Passport Office
No.
1 COCHIN NIL 48 NIL
2 KOZHIKODE 16 NIL NIL
3 TRIVANDRUM 30 ONE ONE
2. In case, you are not satisfied with the above, you may file an appeal with the Joint Secretary (CPV) & First Appellate authority, Ministry of External Affairs, Patiala House annexe, Tilak Marg, New Delhi - 110 001 within 30 days of receipt of this letter by you."
6.7 Thereafter, the applicant preferred a representation dated 22.10.2009, which is reproduced herein below:-
"With due regard I would like to place the following for your kind and sympathetic consideration:-
1. I was appointed as casual employee on 14.06.1989 and my services were regularized w.e.f. 15.03.2004.
2. Sir, in accordance to the information given to me vide letter number VRTI/551/259/09 dated 13.08.2009, (A) there are 16 employees in Passport Office, Kozhikode and 30 in Passport Office, Trivandrum whose date of regular appointment has been shifted to the date of initial engagement as casual employees and their pay has also been re-fixed and arrears disbursed in accordance to directives of CAT, Ernakulam. (B). There are 48 employees in Passport Office, Cochin and one in Passport Office, Trivandrum who did not approach CAT and their date of regular appointment has been shifted to the date of their 23 OA No.1392 of 2016 initial engagement as casual employee by your Office and their pay has been re-fixed and arrears disbursed. (C) There are employees whose date of regular appointment has been shifted to the date of initial engagement as casual employee and their has been re-fixed and arrear also disbursed and seniority has also been given from the date of their initial engagement as casual employee in accordance to directives of CAT, Ernakulam. According to information furnished in reply to RTI question the number of such employees who have been given benefit of seniority also, has been stated as one whereas according to my information the number of such employees is more then one.
In view of facts explained above, it is kindly requested to shift date of my regular appointment from 15.03.2004 to 14.06.1989 and to re-fix my pay and also disburse the arrears along-with seniority as has been done in cases of my counter parts as stated above.
Yours faithfully, Sd/-
(Giriraj Sharma) Lower Division Clerk RPO, Delhi 22.10.2009"
6.8 The said representation was not responded to by the respondents.
6.9 In the aforesaid context, what is to be observed that the applicant is seeking regularisation of service from the date of his initial appointment as casual labourer w.e.f 14.6.1989 for counting of his casual service.
6.10 The Hon‟ble Apex Court in case of Registrar General of India & Ors. vs V. Thippa Setty And Ors.
[(1998) 8 SCC 690], held as under:-
"Ordinarily the regularisation must take effect prospectively and not retrospectively. It must also be borne in mind that ad hoc appointees, casual 24 OA No.1392 of 2016 labour and daily-rated persons are not subject to strict discipline of service and it is a matter of common experience that their attendance is very often not regular and at times they do not even meet the qualification for appointment since they are taken on ad hoc basis. These deficiencies are overlooked by way of granting of relaxation and, therefore, care must be taken to see that they do not upset the seniorities of regular appointees. Whether they qualify in a given case or not is not relevant but what is relevant is that regularisation should be prospective and not retrospective as the chances of their upsetting the seniorities cannot be overlooked."
6.11 The Full Bench of this Tribunal at Ernakulam in O.A.Nos.75/2010, 82/2010 & 196/2010 in Smt. K. U. Sobhana (supra) where all the above O.As came before the Full Bench on a reference made by the Division Bench, finding that the order in O.A.82/08 was in conflict with the order in O.A.1557/98 on the question as to whether the casual employees subsequently regularized were entitled for seniority reckoned from the date of their initial appointment or not and held as under:-
"13. In Rabindra Nath Bose and others vs. Union of India and others; AIR 1970 SC 470, the Apex Court declared that it is settled that Article 13 of the Constitution has no retrospective effect and therefore, any action taken before the commencement of the Constitution in pursuance of the provisions of any law which was a valid law at the time when such action was taken cannot be challenged and the law under which such action was taken cannot be questioned as unconstitutional and void on the score of its infringing the fundamental rights enshrined in Part III of the Constitution. In Usha Devi v. State of Kerala;2002 (1) KLT 615, it was observed by the Hon'ble High Court of Kerala that rank list cannot be challenged after it had become 25 OA No.1392 of 2016 final and after a long delay and unsettle the settled position for years.
14. The applicants in O.A.196/10 joined the service on regular basis after following the regular selection process as early as in 1982, subsequently got promoted to the next higher cadre as UDC in 1992,1994 and 1996 respectively and again promoted as Assistants and Superintendents. Thus, by virtue of their seniority which they enjoyed for a long period and having been promoted successfully to the next higher post from time to time, cannot be upset by conferring seniority on the casual employees not regularly recruited after following the same procedure as was applicable to the regular recruitment and to have a march over the regularly recruited employees. Therefore, even though they had been in service as casual employees they are entitled for all the other benefits other than seniority. The casual employees as of right could claim seniority only when they became qualified by successfully passing in the examination. Their retrospective regularization is good enough for all purposes other than seniority. Accordingly, we answer the issue as follows:-
15. The casual employees are entitled to be regularized with effect from their initial engagement and will be entitled for all other consequential benefits other than seniority and monetary benefit.
16. The Division Bench while considering the matter before reference have already held that the O.A. is maintenable. In the circumstances based on the answer as given above we allow this O.A. and quash Annexure A1 to the extent it directed that the party respondents who are the applicants in O.A.Nos. 297,299 & 300 of 2008 are entitled to higher promotion based on the revised seniority.
We declare that the party respondents are not entitled for seniority from the date of their initial engagement as casual employees over the applicants. In the light of the reference answered, we declare that the applicants in O.A. No.75/2010 and O.A.No.82 /2010 are not entitled to claim seniority as LDC with effect from date of their initial entry into the service on casual basis. O.A.No.75/10 is dismissed. As regards the reliefs sought for in O.A No.82/10 is concerned, the reliefs sought for to revise seniority in the category of LDC from the date of initial appointment and to pay the arrears of salary from the date of initial engagement, are dismissed. However, the applicants will be entitled for all other 26 OA No.1392 of 2016 consequential benefits other than seniority and monetary benefits, as was given to the applicants in O.A.No.1557/08, if not already granted."
6.12 We have been informed that the above Full Bench decision has been implemented in letter and spirit by the respondents.
6.13 It is also noticeble that even before the decision of the Full Bench, the Judgment dated 14.7.2003 and judgment dated 13.6.2005 were implemented vide Office Order dated 23.09.2005 by the respondents, the same is reproduced as under:-
"In pursuance of CAT (Ernakulam Bench)‟s judgment dated 14.07.2003 in OA No.1557/98 & OA No.436/2005 dataed 13.06.2005 Smt. K.U. Shobhana is appointed as a Lower Division Clerk in Regional Passport Office, Cochin in the Central Passport Organization of the Ministry of External Affairs in the pay scale of Rs.3050-75-3950-80-4590/- in temporary capacity with effect from 25.09.1989 i.e. from the date of her initial engagement as casual labourer.
Smt. K.U. Shobhana will be entitled to all consequential benefits such as „notional‟ fixation of pay, eligibility to appear in any test or examination if held for her promotion to the next higher grade, counting of qualifying service for termination benefits from 25.09.1989 except seniority in the Grade of LDC which will be counted from 06.10.1994 only."
6.14 Even daily rated clerks were extended the benefits of decisions rendered by the Full Bench decision ( Supra), which re reproduced as under :-
"In pursuance of Hon‟ble CAT Ernakulam Bench Order dated 09-12-2008 in OA No.297/2008 & 300/2008 and in compliance with observations of Hon‟ble High Court of 27 OA No.1392 of 2016 Kerala in WP(C) No.21024/09 filed by Shri Neelakanta Iyer and others and in WP(C) No.15201/09 filed by Smt. Ansamma Abraham and others against Hon‟ble Tribunal‟s orders and also in accordance with orders of larger bench of this Tribunal in OA Nos.75/2010, 82/2010 and 196/2010, the pay of following officials of this office are fixed from the date of their initial engagement as Daily Rated Clerks.
Sl.No. Name Date of initial engagement
1. Smt. V.Anitha, Assistant 03-08-1992
2. Smt. P Sudha Bai, Superintendent 19-03-1982 Consequently, these 2 officials are entitled to notional fixation of pay from the date of their initial engagement and all other consequential benefits other than Seniority and monetary benefits."
6.15 In view the above proposition of law laid down by the Hon‟ble Apex Court, the applicant cannot claim seniority.
6.16 Having due regard to the peculiar facts of the case and also in light of Full Bench decision in K.U.Sobhana (supra), it is not disputed that the applicant was granted temporary status under 1993 Scheme like others w.e.f 15.03.1994. The applicant was regularized vide communication dated 15.3.2004 to the post of Group "D‟ Watchman. For purpose of regularisation, it appears that the only pre-condition was to qualify a Special Examination under 25% quota, persons eligible are Group 'D' employees with 5 years of regular service in their grade rendered after appointment (which the applicant qualified in the year 2005). Thereafter, once the applicant had qualified the 28 OA No.1392 of 2016 said examination, he ought to have been extended the benefit of regularization from the date of his initial engagement with similarly situated persons irrespective of category either Group "C" or Group "D" inasmuch as even though the others, who qualified the examination in year 1993 and 1997, they were regularized from initial date of engagement subject to the conditions that said persons including the applicant shall only be entitled to for all other consequential benefits on notional basis other than seniority and monetary benefits. The 1993 Scheme itself envisaged for counting of past services as evident from the clause 5 (v) ie 50% of the service rendered under temporary status would be counted for the purpose of retirement benefits after their regularization. It is also borne out from the records that vide Office Order dated 23.9.2005 (casual labourer at page 25 of written submissions) and Office Order (date illegible at page 40 of written submissions) Daily Rated Clerks were extended similar benefits without any distinction.
6.17 This issue is no more res integra in view of the decision of the Full Bench of this Tribunal in identical matters titled as Smt. K.U. Sobhana & Ors. vs. UOI & Ors. [OA No.75/2010 and batch matter decided by a 29 OA No.1392 of 2016 common order dated 12.08.2011] wherein the question under reference has been categorically answered as under:-
"15. The casual employees are entitled to be regularized with effect from their initial engagement and will be entitled for all other consequential benefits other than seniority and monetary benefits".
6.18 It is also noticed that in an identical case in V. Srinivas & Ors. vs. Union of India & Ors. [OA No.174/2012 decided by the Hyderabad Bench of this Tribunal on 25.08.2014], wherein the applicants, who had been appointed as casual labourers between 1985 and 1997, subsequently regularized as Group-D employees, and further promoted as LDC during 2002 to 2007, sought regularization from the date of their initial engagement on the strength of the order passed by the Ernakulam Bench in OA No.758/2007 and OA No.32/2008, which were clubbed together and decided by a common order dated 15.01.2009 directing the respondents to regularize their services w.e.f. their respective dates of appointment as casual labourers with consequential benefits including arrears of pay except seniority in the cadre of LDC. The said decision was challenged before the Hon‟ble High Court of Kerala in WP(C) No.23813/2009 and 26263/2009 and the same were dismissed vide judgment dated 28.06.2010 relying upon the decision of the Hon‟ble Apex Court in UP 30 OA No.1392 of 2016 State Electricity Board vs. Pooran Chandra Pandey & Ors. [2007 (1) SCC 92] and Secretary, State of Karanataka & Ors vs. Umadevi & Ors. [2006 (4) SSC 1].
6.19 In compliance of the aforesaid decision, the applicants therein had also been granted the benefit of regularization of services with effect from their date of initial engagement as casual labourers, including arrears of pay. Thus, the aforesaid decision of the Ernakulam Bench as upheld by the Hon‟ble High Court of Kerala and implemented by the respondents themselves as also the decision of the Hyderabad Bench in V. Srinivas (supra) are binding on us. Apart from this, the decision of the Full Bench of this Tribunal in Smt. K.U. Sobhana (supra) is also binding on us being Full Bench decision.
6.20 It is noticed that on 13.12.2022, we sought clarification from the learned counsel for the respondents on one important point „whether the applicant herein was initially engaged as Casual Labour in Group-C or Group-D and similarly in the citations quoted therein whether those applicants had been engaged initially as Casual Labour in Group-D or in Group-C. To the said point, learned counsel for the respondents could not answer the same and sought further time to check the details with the respondents.
31 OA No.1392 of 2016Even on 17.02.2023 on which date the order was reserved, he could not clarify the aforesaid position.
6.21 In view of the above discussion and the law on the subject referred to above, we are left with no option but to allow the claim of the applicant following the decision of the Full Bench in Smt. K.U. Sobhana (supra), common order dated 15.01.2019 passed by the Ernakulam Bench in OA No.758/2007 and OA No.32/2008 upheld by the Hon‟ble High Court of Kerala, decision of the Ernakulam Bench of this Tribunal in Ravindranath V.K. & Ors. vs. UOI & Ors. (supra) and A.R. Parameswaran & Ors. vs. UOI & Ors. (supra).
6.22 In conspectus of the facts and circumstances of the case, the instant OA is allowed with a direction to the respondents to regularize the services of the applicant from the date of his initial engagement as causal labour/worker for all purposes other than seniority and monetary, namely, eligibility to appear in the promotion tests or examinations, and for terminal benefits etc. The respondents are further directed to issue appropriate orders notionally fixing his pay and date of regularization accordingly.
32 OA No.1392 of 20166.23 The exercise, as ordained above, shall be completed by the respondents within a period of three months from the date of receipt of a certified copy of this order.
6.24 No order as to costs.
(Manish Garg) (Anand Mathur) Member (J) Member (A) /na/