Central Administrative Tribunal - Jodhpur
Nena Ram vs M/O Communications on 6 December, 2024
1
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application No.364/2017
Date of Pronouncement : 06.12.2024
Date of Reserved : 21.10.2024
CORAM
HON'BLE Mr. JUSTICE RAMESHWAR VYAS, MEMBER (J)
Nena Ram S/o Shri Khanga Ji, aged 48 years, Part Time Waterman,
Head Post Office, Jalore, Resident of 8, Shastri Nagar, Jalore.
.....Applicant
By Advocate: Mr. Ajay Kumar Kaushik proxy for Mr. J.K. Mishra.
Versus
1. Union of India through the Secretary, Ministry of Communication
(Department of Post), Sanchar Bhawan, New Delhi.
2. Superintendent of Post Offices, Sirohi Division, Sirohi.
........Respondents
By Advocate: Mr. K.S. Yadav
2
ORDER
Per Hon'ble Mr. Justice Rameshwar Vyas, Member (J) Being aggrieved by order dated 17.07.2017 (Annexure-A/1) passed by Superintendent of Post Offices, Sirohi whereby in compliance of the order dated 15.05.2014 passed by this bench in OA No.54/2012, the case of the applicant for regularization was considered and decided against him, the applicant has preferred this OA to quash and set aside the above order as also to direct the respondents to regularize his service from the date he had completed one year service or in any case from the date he had completed five/ten years of service with all consequential benefits.
2. Brief facts of the case are as under:-
2.1 The applicant was appointed as part time Watchman in the year 1986 in the Head Post Office Jalore. After discharging his duties for more than 31 years, he requested the respondents to regularize his services by submitting a representation which was rejected vide order dated 03.02.2012. The applicant challenged the rejection order by way of filing the OA No.54/2012 which was disposed of by this bench without going into the merits on 15.05.2014. The operative portion of the order, reads as under:-3
"8. Considered the rival contention of both the parties and perused the material available on record. After considering the matter afresh and in view of the discussions hereinabove made, I am of the view that the case of the applicant is required to be considered in light of para 53 of Hon'ble Supreme Court judgment passed in Secretary, State of Karnataka and Others vs. Uma Devi (3) and Ors, reported in 2006 SC (L&S) 753 because the applicant has completed 26 years of service that means 13 years, according to Annex.A/4. Accordingly, the respondents are directed to consider the case of the applicant in the light of para 53 of the judgment passed in the case of Uma Devi (3) (supra)."
2.2 The DB Civil Writ Petition No.6117/2014 filed by the respondents against the above order before the Hon'ble High Court of Rajasthan, was dismissed vide order dated 23.09.2016 (Annexure-A/3). As per the letter dated 12.04.1991 from DG Posts, New Delhi addressed to Chief/Postmaster General in India with regard to Casual Labourers (Gant of Temporary Status and Regularisation) Scheme, "Temporary Status" would be conferred on the casual labourers in employment as on 29.11.1989 and who continue to be currently employed and have rendered continuous service of at least one year. During the year, they must have been engaged for a period of 240 days (206 days in the case of offices observing five day's weeks). Such casual workers engaged for full working hours viz.8 hours including ½ hour's lunch time will be 4 paid at daily rates on the basis of the minimum of the pay scale for a regular Group 'D' official including DA, HRA and CCA. As per Annexure-A/4, Casual Labourers (full time or part time) for the purpose of computation of eligible service, half of the service rendered as a part time casual labourer should be taken into account. That , if a part time casual labourer has served for 480 days in a period of 2 years he will be treated, for purposes of recruitment, to have completed one year of service as full time casual labourer, as per department of Posts, LR No.65-28-SPB.I dated 17.05.1989.
2.3 It is the grievance of the applicant that the respondents did not give benefits of the aforesaid Scheme dated 12.04.1991 (Annexure-A/5) to the applicant. It is the case of the applicant that employees, who have rendered service for more than 10 years, are entitled for regularization in terms of decision rendered by the Hon'ble Supreme Court in the matter of Secretary, State of Karnataka & others vs. Uma Devi (3) and Ors. Reported in 2006(4) SCC. The decision does not limit the question of regularization of only those employees who have been appointed on sanctioned posts. The respondents have wrongly held that the applicant have not been engaged on the sanctioned post. The Hon'ble Rajasthan High Court vide order dated 23.09.2016 in DB Civil Writ Petition 5 No.6117/2014 has clearly held that regularization of the applicant can be made under the Scheme of Annexure-A/4. The impugned order dated 17.07.2017 (Annexure-A/1) has been passed in utter disregard to the decision rendered by the Hon'ble Rajasthan High Court on 23.09.2016 (Annexure-A/3). Non-regularization of the employees amounts to unfair labour practice as per Section 2 (ra), 25T and 25U of the Industrial Disputes Act. Terming the action of the respondents in not regularizing the services of the applicant, in violation of the directions issued by the Hon'ble Rajasthan High Court and violative of Articles 14 and 16 of the Constitution of India, the applicant has prayed to direct the respondents to regularize his service.
3. As per the reply filed by the respondents, the case of the applicant for regularization was considered by the respondents in compliance with the order passed by this bench in OA No.54/2012. The applicant was never appointed against sanctioned post after following the due selection process. In fact such a post of part time Waterman was not available in the respondent department. The applicant never remained engaged continuously on any post under respondent as claimed by the applicant. The applicant performed the task of Waterman for a duration of one or two hours, as per requirement, during the limited number of days in the 6 month. Against which, water allowance has been paid to the applicant on pro-rata basis. The contention of the applicant that he was appointed after due selection as a Gardener or Waterman in the year 1989 has been denied. Consequent upon letter dated 19.11.2010, the practice of outsourcing the task of Waterman/Gardener or engaging any casual labour was recommended to be ended. Vide letter 12.11.1981 full time casual labours engaged till 29.11.1989 were required to be granted temporary status if found eligible and given within the parameters of the Schemes. Thereafter such Scheme was extended to the incumbents engaged or worked till 01.09.1993 but under such Scheme a part time casual labour was not entitled to be considered for the benefits. The applicant was never engaged as a full time casual labour under the respondent department. It is further submitted in the reply that provision regarding taking into account half of the service rendered as a part time casual labour as contained in Postal Directorate's letter dated 17.05.1989 was specifically for the purpose of computation of eligible service for recruitment to the post of Group D. Contradicting the claim of the applicant, the respondents prayed to dismiss the OA.
4. Heard learned counsel for the parties and perused the material available on record.
7
5. Learned counsel for the applicant submitted that the applicant is entitled for regularization of his services in terms of judgment in the matter of Secretary, State of Karnataka & Ors. Vs. Uma Devi, 2006 (4) SCC 1, The period of part time engagement is required to be treated into account while considering his case for regularization. The respondents have committed error in rejecting the claim of the applicant by passing impugned order dated 17.07.2017 (Annexure-A/1) on the ground that his appointment was not against any sanctioned post. Relying upon the judgment passed by the Hon'ble Supreme Court in the matter of Uma Devi (supra) and also the letter dated 17.05.1989 of Department of Posts and the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme-1991, the applicant prayed to allow the OA.
6. On the contrary, learned counsel for the respondents submits that the applicant was not engaged as full time casual labour against sanctioned post, therefore, he is not entitled for regularization of his service in terms of the judgment of Uma Devi's case (supra). He further submits that the period engaged as part time casual labour cannot be counted for the purpose of granting temporary status or regularization to 8 the applicant. As per letter dated 17.05.1989 half of the service as part time casual labour is taken for calculation of eligible service.
7. Having regard to the submissions made by both the parties and material available on record, it emerges that the applicant was engaged as part time casual labour against the work of Waterman/Gardner in the year 1986. Casual Labourers (Grant of Temporary Status and Regularisation) Scheme was issued in the year 199 which was meant y for only to full time casual labourers and not to part time casual labourers. It is pertinent to note that the applicant was not given temporary status pursuant to this Scheme and the applicant did not raise any grievance till 2012.
7.1 By way of filing OA No.54/2012, the applicant has prayed for direction to regularize his services. After considering the case, this tribunal came to the conclusion that the applicant's case was required to be considered in the light of para 53 of Hon'ble Supreme Court judgment passed in Secretary, State of Karnataka & Ors. Vs. Uma Devi (supra). In compliance of the above direction, the respondents considered the case of the applicant and decided as under:-
"In the present case, the applicant was not appointed against any sanctioned post because there is no sanctioned post of Waterman at Jalore HO and 9 therefore, the judgment passed by the Hon'ble Supreme Court in the case of Secretary, State of Karnataka and others vs. Uma Devi (3) and others has no applicability to the case of applicant. There is also no any scheme or provisions in existence under which, the services of the applicant may be regularized. It is therefore, no possible to regularize the services of the applicant Shri Nena Ram."
Being aggrieved with the above, the applicant has filed this OA on the ground that he was appointed against sanctioned post, but the above contention of the applicant is not supported by any evidence. There is no material on record to suggest that the applicant was engaged on a sanctioned post. It is an admitted position that the applicant was engaged as part time casual labour. The respondents have not formulated any scheme for regularization for the part time casual labour. The Scheme framed in the year 1991 is applicable only to the full time casual labourers. The benefit of judgment of Hon'ble Supreme Court in the matter of Uma Devi (supra) is applicable only to those persons who were engaged as full time casual labour and not to the part time casual labour. Only those workers are entitled to get benefit under Uma Devi's case who had worked for more than 10 years continuously on 10.04.2005 without any protection from the order of Court/Tribunal on a vacant post. Since, in the present matter the applicant failed to establish that the applicant worked as full time casual labour against the 10 sanctioned post for10 years or more, he is not entitled for regularisation in terms of the judgment passed by the Hon'ble Supreme Court in the matter of Uma Devi. The question before this tribunal is not with regard to grant of temporary status but for giving direction to the respondents to regularize the services of the applicant in terms of Section 53 of the judgment passed by the Hon'ble Supreme Court in the matter of Uma Devi. After passing of the judgment by Hon'ble Supreme Court in the matter of Uma Devi the letter dated 17.05.1989 (Annexure-A/4) has lost impotence. Constitution Bench judgment still holds good in relation to regularization of the casual workers. The impugned order has been passed as per the principles propounded in Uma Devi's case and have rightly rejected the claim of the applicant.
7.2 Resultantly, this tribunal finds no merit in this OA and the same is liable to be dismissed, hence dismissed. No order as to costs.
(RAMESHWAR VYAS) MEMBER (J) Rss