Central Administrative Tribunal - Ernakulam
Hussain A vs The Administrator on 13 August, 2015
Author: P. Gopinath
Bench: P. Gopinath
o;? CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION NO. 724 of 2013
Thursday this the 13th day of August, 2015
CORAM
Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
1. Hussain A
S/o.Kidave M.P
Agam House
Kavaratti
R.O. Plant Operator, Sub Division L.P.W.D, 0020
Kavaratti Island, U.T of Lakshadweep
2. K.P.Kaleel
S/o.Kalid, Kuttipape Pura House, Kavaratti
R.O.Plant Operator
Sub Division L.P.W.D
Kavaratti Island, U.T of Lakshadweep
3. B.Abdul Razak
S/o.Kunhi Kunhi M, Bamali House
R.O. Plant Operator, Sub Division L.P.W.D
Kavaratti Island, U.T of Lakshadweep
4. Shoukathali, M.P
S/o.Koyamma V. , Kavaratti Island
R.O. Plant Operator, Sub Division L.P.W.D
Kavaratti Island, U.T of Lakshadweep
5. P.Hamzakoya
S/o.Mohammed Koya K.I
Peechayath House, Kalpeni Island
R.O. Plant Operator, Sub Division L.P.W.D
Kalpeni Island, U.T of Lakshadweep
6. K.K.Mohammed Jamaludheen Koya
S/o.Attakoya C
Kunnamkulam House, Kalpeni Island
R.O, Plant Operator, Sub Division L.P.W.D
Kalpeni Island, U.T of Lakshadweep
7. N.P.Akber
S/o.Cheriya Koya M.P
Nenepappada House, Kalpeni Island
R.O.Plant Operator
Sub Division L.P.W.D
Kalpeni Island, U.T of Lakshadweep
8. T.T.Mujeeburahman
S/o.Imbichi Koya C.N
Thithottam House, Kalpeni Island
R.O Plant Operator, Sub Division L.P.W.D
Kalpeni Island, U.T of Lakshadweep
9. K.O.Mohammed Rafi
S/o.Kalid K
Kakkachiyooda House, Kalpeni Island
R.O Plant Operator, Sub Division L.P.W.D
Kalpeni Island, U.T of Lakshadweep
10. B.Ibrahim
S/o.Aliedaruge
Boumudinge House
Kudehi Village, Minicoy Island
R.O Plant Operator, Sub Division L.P.W.D
Minicoy Island, U.T of Lakshadweep
11. K.Ali
S/o.Hussain, Kouni Amindathage House
Bada Village, Minicoy Island
R.O Plant Operator, Sub Division L.P.W.D
Minicoy Island, U.T of Lakshadweep
12. K.C.Aboo Sala
S/o.Yousef, Keela Kunalam House
Amini Island
R.O Plant Operator, Sub Division L.P.W.D
Amini Island, U.T of Lakshadweep
13. K.K.Abdul Kadar
S/o.Yousef Keelachery, Kanjarakakkada House
Amini Island
R.O Plant Operator, Sub Division L.P.W.D
Amini Island, U.T of Lakshadweep
14. K.Sayed Shaikoya
S/o.Cheriya Koya b� Padippura
Kunamkalam House
Amini Island
R.O Plant Operator, Sub Division L.P.W.D
Amini Island, U.T of Lakshadweep
15. P.P.Attakoya
S/o.Sayed Koya Thaithottam
Puthiya Padippura House, Amini Island
R.O Plant Operator, Sub Division L.P.W.D
Aminini Island, U.T of Lakshadweep
16. P.Sainur Abid
S/o.Hamza, Puthiyaillam
Polakadam House, Amini Island
R.O Plant Operator, Sub Division L.P.W.D
Amini Island, U.T of Lakshadweep
17. M.Muthukoya
S/o.KunhivMadalichetta, Manada House
Amini Island
R.O Plant Operator, Sub Division L.P.W.D
Amini Island, U.T of Lakshadweep
18. Mohammed Iqbal, M.P
S/o.Abdulla Koya Ashiyoda
Mullipalam House, Chethlath Island
R.O Plant Operator, Sub Division L.P.W.D
Chethiath Island, U.T of Lakshadweep
19. Mohammed Shareef P.O
S/o.Sayed Mohammed P.K
Pakkiyoda House, Chethlath Island
R.O Plant Operator, Sub Division L.P.W.D
Chethlath Island, U.T of Lakshadweep
20. Hassan Koya K.B
S/o.Kasmi Cheriyapura
Kunnaliyoda House, Chethlath Island
R.O Plant Operator, Sub Division L.P.W.D
Chethlath Island, U.T of Lakshadweep
21. Sijjeel M
S/o.Aboobacker P
Mammikkadiyoda House
Agatti Island
R.O Plant Operator, Sub Division L.P.W.D
Chethlath Island, U.T of Lakshadweep
22. Mohammed M.C
S/o.Abdul Kadar K.I
Mydanachetta House, Chethlath Island
R.O Plant Operator, Sub Division L.P.W.D
Chethlath Island, U.T of Lakshadweep
23. K.M.Badurudheen
S/o.A Ahammed, Kuttiya Mukriyoda House
Agatti Island
R.O Plant Operator, Sub Division L.P.W.D
Agatti Island, U.T of Lakshadweep
24. B.Kasmi
S/o.Mohammed, Badathoda House
Agatti Island
R.O Plant Operator, Sub Division L.P.W.D
Agatti Island, U.T of Lakshadweep
25. P.P.Ayyoob
S/o.Koya, Pandarapura House, Agatti Island
R.O Plant Operator, Sub Division L.P.W.D
Agatti Island, U.T of Lakshadweep
26. K.Alavi
S/o. Kidav Koya, Kalkandiyoda House
Agatti Island
R.O Plant Operator, Sub Division L.P.W.D
Agatti Island, U.T of Lakshadweep
27. C.Kasmi
S/o.Sayed, Cheriyan Kakkada House
Agatti Island
R.O Plant Operator, Sub Division L.P.W.D
Agatti Island, U.T of Lakshadweep
28. T.P.Abdulla Koya
S/o.Kohan Koya, Thek Puthiyaillam House
Agatti Island
R.O Plant Operator, Sub Division L.P.W.D
Agatti Island, U.T of Lakshadweep
29. K.K.Mohammed Koya
S/o.Salmi Koya, Kunninamel House
Agatti Island
R.O Plant Operator, Sub Division L.P.W.D
Agatti Island, U.T of Lakshadweep
30. K.P.Kunhikoya
S/o.K.P.Attakoya
Kunhipubakada House, Kalpeni Island
R.O Plant Operator, Sub Division L.P.W.D
Kalpeni Island, U.T of Lakshadweep.
. . . . . Applicants
[By Advocate Mr. P.V. Mohanan)
Versus
1. The Administrator
Union Territory of Lakshadweep
Kavaratti - 682 555
2. The Superintending Engineer
Lakshadweep Public Works Department
Union Territory of Lakshadweep
Kavarathy - 682 555
3. Union of India represented by Secretary
Ministry of Home Affairs
North Block, New Delhi - 110 001 . . . . . Respondents
(By Advocate Mr. S.Radhakrishnan for R. 1&2
Advocate Mr.Sinu G. Nath for R3)
This application having been finally heard on 29.07.2015, the Tribunal on
13.08.2015 delivered the following
ORDER
Per: Justice N.K.Balakrishnan, Judicial Member The applicants 30 in number have sought for a direction to the respondents to absorb/regularize the applicants in the equivalent post of Mastery/Mates in Lakshadweep Public Works Department (LPWD for short) from 2.2.1995 in the scale of pay attached to the post with all attendant benefits including the time scale of pay attached to the post with arrears of pay flowing therefrom. They sought a further relief to set aside Annexure. A.20 order so far as it deprives the claim of the applicants for absorption as R.O Plant Operators in LPWD. They also seek a declaration that they must be deemed to have been appointed to the regular post of R.O Plant Operator from the date of commencement of service as R.O Plant Operator.
2. The case of the applicants is stated in brief as follows. 2.1 The applicants commenced service as Plant Operators in Desalination Plants of UT of Lakshadweep Administration (UTL Administration for short) in the year 1990, 1991 and 1992 respectively. That plant was commissioned by Laksahdweep Administration in the year 1990. An agreement was executed by the Lakshadweep PWD with Titanium Equipments and Anod Manufacturing Company (TEAMC) with regard to the operation of the plant. Annexure.A2 order of appointment and like orders were issued in terms of the recommendation of the Ministry. The desalination plant was later taken over by PWD from TEAMC. The plant operators were ordered to be absorbed in LPWD in equivalent posts. Instead of absorbing them in the equivalent post in the time scale of pay the applicants were treated as NMR Mates and they were paid wages in hand receipts. Since the applicants were not absorbed in the regular cadre this application has been filed. Though they have have been continuously working in the plants managed by TEAMC and absorbed in LPWD they were not treated as regular NMR Mates with the scale of pay attached to the post. Even now the applicants are paid daily wages in hand receipts without granting the scale of pay attached to the post. Except applicant Nos.1 and 3 all other applicants have passed SSLC. The wage cards issued to the applicants would show that they had been working 30 days in a month and the salary was not paid on Sundays and Public holidays. By proceedings dated 2.2.1994 the Lakshadweep Administration took over desalination plants with all assets and liabilities. The Plant Operators were ordered to be absorbed in the grade as NMR Mate. The applicants ought to have been regularized/absorbed in the equivalent post in the LPWD either in the technical service non-ministerial or in work charged establishment governed by the Work Charged Establishment Recruitment Rules, 1986. The educational qualification for the post of Operator is SSLC or equivalent. The method of recruitment is absorption from temporary status labourers in terms of OM dated 10.9.1993 of Government of India, Ministry of PP G&P, New Delhi. Six posts of Plant Operator which were operated in Desalination Plant was approved by the Government as per proceedings dated 12.6.2008. An order was passed by this Tribunal in OA No. 907/1996 as per which the government was directed to examine the issue in detail and pass orders regarding modifying/clarifying office memorandum dated 10.9.1993, The applicants submitted representation claiming equivalent status to that of NMR Mate and scale of pay and allowances attached to the post and other service benefits. No final order was passed on the representations. Applicants are the only qualified and experienced plant operators working in the desalination plant in Lakshadweep. In spite of the direction issued by this Tribunal for modifying OM dated 10.9.1993 and to grant temporary status to the applicants, no positive decision was taken by the 3 rd respondent. The Ist respondent rejected the claim stating that the applicants were not in service in September, 1993. That order was passed on the premise that the applicants commenced service as Plant Operator only since 1995. Some of applicants had commenced service in December, 1993 and others in January, 1994. Some of the other applicants commenced service prior to the Scheme of 1993 came into force.
3. Respondents filed reply statement refuting the allegations made by the applicants. They contend as follows:
3.1 It is admitted that the applicants commenced service as Plant Operators in Desalination Plant in the year 1990, 1991 and 1992 respectively but they were not in government service and they were not appointed by the UTL Administration from those days. They were engaged by a private firm by name TEAMC with which the operation agreements were signed by the department as evidenced by Annexure.R.1(a). The firm had made it clear to the applicants that on completion of the stipulated period of 3 years their employment will be automatically terminated. There was no order form the Ministry to absorb the Operators in equivalent posts while taking over the plant in 1995. No such order was issued by the UTL Administration as well. Instruction was issued to engage the operators in hand receipt at the rate applicable to NMR Mates. But they were never treated as NMR Mates. There was no substantive post created in 1995 while engaging the applicants as Operators. They were not holding any post as contended by them. The applicants were not engaged by the UTL Administration prior to 1995. The Desalination Plants were commissioned in the year 1990 at Agathi, Ameni, Kavarathi, Minicoy, Kalpeni and Chetlat but the plants were not taken over by the UTL Administration in 1990. The private firm TEAMC installed the RO Desalination Plant in pursuance of an agreement. After installation there was another agreement for operation of that plant for three years. It was only on expiry of the agreements aforesaid the Plants were taken over by the UTL administration as can be seen from Annexure.A2. There was no sanctioned post for R.O plant at that time. The applicants were not paid pay but they were paid only remuneration by the firm. It is not correct that the UTL Administration sanctioned fund to the company as per the terms of the agreement to provide wages to the applicants. During the operation and maintenance agreement period the applicants were not issued any wage card by the department and they were not paid the hand receipt by the department.
There was no order to absorb the operators in the grade as NMR Mates. The order was only to continue the operation with the existing operators and to pay hand receipt at the rate applicable to NMR Mates. The applicants were not under any service of UTL administration but they were engaged by a private firm only and as such there was no need to regularize/absorb the applicants in the technical posts of LPWD or in any other establishment. It is not true that as per Annexure. A9 11 posts including 6 post of Operators were approved by the Government of India. It is also not true that as per the proceedings of July, 2008 (Annexure. A10) 54 posts of Plant Operators were approved by the Government. Annexure A.10 is only a draft letter prepared by the department. It was not approved or signed by the Administrator. Therefore, it has no validity at all and as such it cannot be relied upon for any purpose. Only 6 posts of ROP Operators were created as per order dated 30.10.2008 - vide Annexure. R.1(b). The applicants are not entitled to rely upon Annexure. A.15 since the same was intended for temporary status conferred employees. The applicants were never conferred with temporary status and they could not be granted temporary status under the scheme. It is not correct that the applicants were absorbed in the LPWD in the category of Post of NMR Mates with effect from 1.2.1995. But they were only engaged as casual labourers to be paid at the rate applicable to NMR Mates. As they were never treated as NMR Mates as they are not NMR Laboruers with temporary status and hence they are not eligible to be absorbed in service. As there was no sanctioned post of Operators either at the time of engaging by the private firm in 1990 or while taking over the Plants by LPWD in 1995 the regularization of the applicants from the dates mentioned by them cannot be considered. The number of posts sanctioned is only 6. Hence the respondents payed for dismissal of this OA.
4. Point for consideration is whether the applicants are entitled to be absorbed/regularized in the post of Mastry/Mates in Lakshadweep PWD from 2.2.1995 and for other consequential benefits as claimed by them?
5. We have heard the learned counsel for both sides and have also gone through the pleadings and documents produced by the parties.
6. It is the admitted case that the Desalination Plant was commissioned in the year 1990. It is also not disputed that the plant was managed by TEAMC from 1990 onwards. It is not disputed that the desalination plant was taken over by the LPWD in February, 1995. The main thrust of the argument advanced by the learned counsel for the applicants is that the applicants were absorbed in Lakshadweep PWD in the category of NMR Mates with effect from 1.2.1995. This has been taken strong exception to by the learned counsel for the respondents. Annexure.A.4 dated 2.2.1995 is the office memorandum issued by the PWD of the Lakshadweep Administration. It shows the list of equipments/materials to be taken over as per the table attached thereto after physical verification. With regard to the Operators it was made specific in the second para of Annexure. A4 as under:
'For the time being operators can be paid in Hand receipt at the rate applicable to NMR mates for the period of their operating the plants with the department after taking over of the plants by the Department.' Therefore, it is crystal clear that there is nothing in Annexure.A4 to hold that the applicants were absorbed as NMR Mates. They were allowed to work for which they were to be paid at the rate applicable to NMR Mates for which hand receipts are to be obtained.
7. The whole case of the applicants proceeded on the premise that they were actually absorbed by the Lakshadweep administration as NMR Mates. That is factually incorrect. The applicants also wanted to contend that since they were engaged by the company in 1990, they are to be given the temporary status. It is not disputed that there was no privity of contract between the administration and the applicants. The applicants were only engaged by the company for operating the plant. The contention that amounts were paid by the administration for the purpose of operating the plant and so there was some sort of jural relationship between the applicants and the UTL administration is palpably unsound. The agreement was only between the UTL administration and the company for the operation of the plant. The amount as agreed to in the agreement was paid by the administration to the company. That does not mean that there was any jural relationship or privity of contract between the administration and the persons who were engaged by the company to operate the plant. So much so the contention that they should have been treated as NMR Mates even in 1993 is equally fallacious. Annexure. A3 is only the letter issued by the Superintending Engineer of LPWD to the company TEAMC regarding the taking over of the plants by LPWD. It is stated that the said letter is dated 2.2.1995 as can be seen from the date of the proceedings. The date shown at the top as 2.2.1994 is incorrect. That could not be challenged by the Applicants. It appears to be so in view of Annexure. A4 as well. Though it was vehemently argued on behalf of the applicants that the applicants were to be treated as Plant Operators engaged by the LPWD Annexure.A2 dated 6.4.1990 itself will make it clear that the employment of the applicants will last only as long as the company discharges its obligation to operate the plant, which was stipulated as 3 years from the date of commissioning of the plant. [see clause (2) of Annexure.A2 running page 32]. It is further made clear that on completion of the stipulated period the employment will stand automatically terminated and that the employee/worker shall have no claims on the company whatsoever apart from arrears of wages. Therefore, the contention strenuously advanced by the learned counsel for the applicants that the applicants were treated as NMR Mates and that they were actually absorbed when the plant was taken over by LPWD is also equally unsustainable. Annexure. A6 the notification dated 27.10.1998 issued from the office of the LPWD has been relied upon by the applicants to contend that the educational qualification for Mate (Sl.No.20) is only 8th standard and above and that the NMR Mates with three years experience possessing educational qualification prescribed for direct recruitment under column 8 can be absorbed.
8. It is pointed out by the learned counsel for the respondents that the question of absorption would arise only if the applicants were engaged or appointed as NMR mates consequent on the taking over of the plant as per Annexure.A.4 but it was specifically mentioned that they were only to be engaged on daily wages on issuance of hand receipts for the wages/remuneration as that of NMR. In other words, the applicants were not absorbed as NMR Mates as they wanted to contend. It is also pointed out in Annexure.A7 [with regard to the recruitment of Mate] it was stated in the relevant column relating the method of recruitment that hundred percent of posts shall be filled from among Status Mate working in the LPWD possessing educational qualification of matriculation or equivalent failing which by direct recruitment. Therefore, according to the learned counsel for the applicant, if the applicants were absorbed by the LPWD as NMR Mates then since they possess the requisite educational qualification they can be posted as Mates coming under Schedule 14 to Annexure. A7. But in the absence of any document worth convincing that the applicants were absorbed as NMR Mates when the Plant was taken over by the LPWD the said contention advanced by the learned counsel for the applicant cannot hold good. Annexure.A8 has also been pressed into service by the applicants, where also with regard to method of recruitment of Operator shown in Schedule III it is noted that by absorption from temporary status labourers in terms of Column 11 which deals with the method of recruitment, whether by direct recruitment or by promotion or by deputation/absorption, and percentage of the posts to be filled by various methods as against which it is noted 'Temporary Status Labourers in terms of O.M.No.21016/2/90-Estt(c) dated 10.09.93 of Government of India, Ministry of PPG&P, New Delhi working in Lakshadweep PWD department possessing educational qualification of Matriculation or equivalent with 2 years working experience in desalination plant in Lakshadweep'; failing which by direct recruitment'. There is nothing on record to show that the applicants were temporary status labourers in terms of the OM mentioned therein. The fact is that the Plant was taken over by LPWD from the company only in 1995. Hence the question of applicants acquiring any temporary status in 1993 does not arise at all. That apart, the applicants were never absorbed or treated as temporary status labourers by the UTL Administration.
9. Annexure.A9 has been relied upon by the learned counsel for the Applicants to buttress his submission that 153 number of posts of various categories had been requested to be approved. Out of them the post of Operator was only 6. Referring to the letter sent from the administration the Government of India informed that 11 posts as per the level of technical personnel as shown therein are required for running LTTD Plant in the Island, which shows that only 6 posts of Operators was sanctioned. Therefore, the contention that 153 posts were sanctioned remains unsubstantiated. It is argued by the learned counsel that 6 posts of Operators was in respect of one Island. There are so many Islands and so similar posts might have been sanctioned. No such assumption can be made. Whatever that be, so far as the applicants are concerned they were not absorbed by the LPWD as NMR Mates in 1993. Hence the question of treating them as temporary status employees/labourers does not arise, the learned counsel for the respondents submits.
10. Annexure. A12 is the copy of the order passed by this Tribunal in OA 907/1996. There some of the Operators were the applicants. They sought for a declaration that they are entitled to get temporary status in terms of Annexure.A7 scheme produced therein. It was contended by the Applicants therein that Casual Workmen who had put in 240 days as on 1.9.1993 will be granted temporary status for which Annexure.A7 produced therein was relied upon. The respondents therein contended that the scheme covers only those who have put in 240 days on 1.9.1993. Annexure.A12 has been very much pressed into service by the learned counsel for the applicants in support of his submission that there is no special sanctity about that date (1.9.1993) except that it was the date on which the scheme came into force. The observation made by the Tribunal that the material condition for grant of temporary status is putting in 240 days of service. That OA was disposed of on 12.8.1996 directing the third respondent to examine the matter in detail and pass appropriate orders regarding modifying or clarifying Annexure.A7 scheme and also regarding grant of Temporary status to those engaged in the desalination Plant whose work is likely to be continuous, if not perennial. Annexure.A13 order was passed by the respondents where, under the casual labourers engaged as R.O Plant Operators, LPWD, Agatti may be informed that they are not eligible for conferment of Temporary status since they were engaged after 'out of date' (ie. after 10.9.1993). They relied upon the instructions of GOI as well while passing Annexure.A13 order. Annexure.A13 order was passed on 27.10.1998.
11. The learned counsel for respondents relied upon the decision of the Supreme Court in Union of India Vs. Gagan Kumar 2005 (6) SCC 70 which actually considered clause 4 (i) of the Scheme mentioned herein which came into effect from 1.9.1993. Clause 4 (1) reads thus:
'4. Temporary status:-(1) '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).' It was held that clause 4 of the scheme is very clear that conferment of temporary status is to be given to the casual labourers who were in employment as on the date of commencement of the scheme. In that case the Tribunal had taken the view that it is an ongoing scheme and as and when casual labourer complete 240 days of work in a year or 206 days in case of offices observing 5 days a week they are entitled to get temporary status. It was held by the Supreme Court that Clause 4 of the scheme does not envisage it as an ongoing scheme and that in order to acquire temporary status the casual labourer should have been in employment as on the date of commencement of the scheme and he should have also rendered continuous service of at least one year which means he should have engaged for at least 240 days in a year or 206 days in case of offices observing 5 days a week. It was further held that from clause 4 of the scheme it does not appear to be a general guidelines to be applied for the purpose of giving temporary status so that all casual labourers as and when they complete one years continuous service. Therefore, the argument advanced by the learned counsel for the applicant relying upon the order passed by this Tribunal in OA 907/1996 (Annexure A12) is only to be rejected. In Gagan Kumar the Hon'ble Supreme Court has also relied upon another decision of the Supreme Court in Union of India vs. Mohan Pal (2002) 4 SCC 573 where also similar view was taken. To sum up the contention raised by the applicants that the scheme is only an ongoing scheme and that the date 1.9.1993 has no sanctity must fall to the ground.
12. As has already been stated, the applicants were not appointed or selected or engaged in the work of Desalination Plant by the UTL Administration when the operation and maintenance of the plant was entrusted to M/s TEAMC. The entrustment and agreement between UTL administration and TEAMC for work operation and maintenance was for 3 years and for that purpose UTL being the owner [as mentioned in Annexure.A1] was to pay a total price of Rs. 54.13 lakhs. It was for the contractor to select and engage requisite number of personnel to operate and maintain the plant at each site. Clause 7.7. of Annexure.A1 itself will make it clear that it is the duty of the contractor to employ such requisite number of personnel for operation and maintenance as mentioned above. Annexure.A2 was also referred to earlier which clearly shows that the applicants were engaged by the company (TEAMC) when they were operating and maintaining the plant. After the plant was taken over by the LPWD also the applicants were not selected or appointed as Plant Operators though their service was continued to be utilized as daily wagers for which they were paid at the rate the NMR Mates were paid. The mere fact that those persons were engaged, after the plant was taken over by UTL. does not confer on the applicants any temporary status as contended by the applicants. Since they were not absorbed or appointed or engaged by the UTL Administration as NMR Mates the contention raised by the applicants that they were appointed as NMR Mates in 1995 itself is devoid of any merit.
13. It was held by Constitution Bench in Umadevi's case 2006(4) SCC page 1 that there may be occasions when the State or its instrumentalities will have to employ persons in posts which are temporary or daily wages as additional hands or taking them in without following the required procedure to discharge the duties in respect of the posts that are sanctioned and that are required to be filed in terms of the relevant procedure established by the constitution or for work in temporary posts or projects that are not needed permanently. But it was also held that there is nothing in the constitution which prohibits such engaging of persons temporarily or on daily wages to meet the needs of the situation but the fact that such engagements are resorted to cannot defeat the very scheme of public employment nor can a court say that a Union or the State Governments do not have the right to engage persons in various capacities for a duration or until the work in a particular project is completed.
14. The learned counsel for respondents would submit that if the mandate of constitutional requirement of public employment is respected there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for the courts to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme. There can be no iota of doubt in this case that the applicants were not selected following a due process of selection as envisaged by the constitutional scheme. The fact that they were paid at the rate of NMR Mates does not confer on them the status of temporary or permanent employees under LPWD. Even according to applicants they were engaged on daily wages in hand receipts but it is seen that such persons were engaged for work for a certain length of time. In Paragraph 15 of Umadevi's case the Constitution Bench has held:
Even at the threshold, it is necessary to keep in mind the distinction between regularization and conferment of permanence in service jurisprudence. In STATE OF MYSORE Vs. S.V. NARAYANAPPA [1967 (1) S.C.R. 128], this Court stated that it was a mis-conception to consider that regularization meant permanence. In R.N. NANJUNDAPPA Vs T. THIMMIAH & ANR. [(1972) 2 S.C.R. 799], this Court dealt with an argument that regularization would mean conferring the quality of permanence on the appointment.
It was held in R.N. Nanjundappa Vs. Thimmiah reported in 1972 (1) SCC 409 at page 416-417:
'Counsel on behalf of the respondent contended that regularization would mean conferring the quality of permanence on the appointment, whereas counsel on behalf of the State contended that regularization did not mean permanence but that it was a case of regularization of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority, but there has been some non- compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules.' (underlined to lay emphasis)
15. Similarly in B.N.Nagarajan Vs. State of Karnataka 1979(4) SCC 507 it was held that the words 'regular' or 'regularization' which do not connote permanence, cannot be construed so as to convey an idea of the nature of tenure of appointments and that they are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. It was further emphasized that when rules framed under Article 309 of the constitution are in force no regularization is permissible in exercise of the executive powers of the government under Article 162 of the constitution in contravention of the rules.
16. Para 53 in Umadevi's case has been very much relied upon by the learned counsel for the applicant which is as under:
'53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.' (underlined to lay emphasis) Here, it is not a case where the applicants come under irregularly appointed employees. There was no appointment at all and there was no selection process also based on any recruitment rules. The applicants were formerly engaged as workmen/contract labourers to work under the company. After the plant was taken over by LPWD those workers/employees were allowed to continue to work as Operators but on daily wages, the wages at the rate of NMR Mates. There was no selection process or any appointment. The contention that the applicants were absorbed in 1995 when the plant was taken over by the LPWD is factually incorrect. So the submission wrongly made on such a premise must be brushed aside.
17. It was also held by the Apex Court in Umadevi as under:
'49. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law.
The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.' It was also held in Umadevi:
'47.When a person enters a temporary employment or gets engagement as a contractual or casual worker 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 concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation 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 persons either to continue them where they are or to 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.'
18. In view of what is stated above the decision in Punjab Water Supply and Sewerage Board Vs Ranjodh Singh and others, 2007 (2) SCC 491 also does not help the applicants. Since the facts stated are entirely different the decision in UP State Electricity Board Vs Pooran Chandra Pandey and others, 2007 (11) SCC 92 also has no relevance to the facts of this case. Courts cannot place reliance on a decision without discussing as to whether the fact situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. See the decision in Bharath Petroleum Corporation Vs. N.R.Vairamani, AIR 2004 SC 4778. Same was the view taken by the Apex Court in Bhavanagar University Vs. Palitana Sugar Mills, 2003(2) SCC 111. The ratio of any decision must be understood in the background of the facts of that case. A case is only an authority for what it actually decides and not what logically follows from it. The decision in UP State Electricity Board Vs. Pooran Chandra Pandey and others [2007(11) SCC 92] has been relied upon by the learned counsel for the applicants in view of the fact that the Writ Petitioners therein were daily wagers of the society and they were appointed in the society before 4.5.1990 and their services were taken over by the Electricity Bord in the same manner and position. Therefore, it was held that the petitioner's services in the society cannot be ignored for considering them for the benefit of the order dated 28.11.1996. In the case on hand the applicants were 'not taken over by the LPWD' in the same manner as was done in UP State Electricity Board case cited supra. Only the Plant was taken over by the LPWD. The applicants were only engaged to work as Operators. So much so, the facts dealt with in UP State Electricity Board
-cited supra are entirely different. What was said by the Constitution Bench was only regularization in relation to such appointments which were irregular in nature and not illegal ones. Here, there was no appointment at all and as such it cannot be said that the applicants were only irregularly appointed persons.
19. It is also important to note that in State of Karnataka v. G.V. Chandrasekhar - 2009 (4) SCC 342, it was clarified that the comments and observations made by the two Judge Bench in U.P. State Electricity Board v. Puranchand Pandey - 2008 (10) SCC 1 cited supra should be read as obiter and same should neither be treated as binding by the High Courts, Tribunals and other judicial forums, nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench in Uma Devi's case cited supra. In Chandrasekhar's case just cited supra it was further held by the Hon'ble Supreme Court that initial recruitment of the respondents therein was wholly illegal and contrary to the constitutional scheme of the Country and as such the impugned judgment of the High Court was set aside. The learned counsel for the applicants has relied upon the decision in Mohammed Abdul Khader & Anr. - 2009 (6) SCC 611 also. There also it was ad hoc appointments made under a scheme and it was in accordance with the selection process prescribed by the scheme appointments were made and as such it was held that ad hoc appointments under the scheme are normally co- terminous with the scheme and irrespective of the length of their ad hoc service they will not be entitled to regularization nor to the security of tenure and service benefits available to the regular employees. But it was held that the ex-serviceman, employed undergoing the selection process, need not be subjected to the agony, anxiety, humiliation and vicissitudes of annual terminal and re-engagement merely because their appointment was termed as ad hoc appointments. Here, even that question does not arise because there is nothing on record to show that ad hoc appointments were given to the applicants. The applicants were engaged as daily workers to whom wages were given at the rate of NMR Mates.
20. The learned counsel for the applicants has also relied upon the decision of the Supreme Court in State of Karnataka & Ors. v. M.I. Kesari & Ors. - 2010 (9) SCC 247, where it was held as under:
'11. The object behind the said direction in para 53 of Umadevi is two- fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad-hoc/casual for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure.'
21. But that also does not apply to the facts of this case, the learned counsel for the respondents submits since what was said in that case was also to regularize the services of those irregularly appointed employees for more than ten years without the benefit of protection of any interim orders of Courts/Tribunals, as a onetime measure. Here, the applicants are 'irregularly appointed employees' but they were only workers engaged on daily wages.
22. The decision in Satya Prakash & Ors. v. State of Bihar & Ors.
- 2010 (4) SCC 179 has also been relied upon in this case. In that case referring to paragraph 53 of the Constitution Bench in Uma Devi's case it was held that the Constitution Bench has clearly drawn a distinction between temporary employees, daily wagers and those who were appointed irregularly in the sense that there was only non-compliance with some procedure in the selection process which did not go to the root of the selection process and as such it was held by the Supreme Court that the appellants therein will not fall in the category of employees mentioned in paragraph 53 read with paragraphs 15 & 16 of the Constitution Bench decision (Uma Devi). The respondents therein were engaged on daily wages in some districts in the State of Karnataka and they claimed that they worked in that Department for more than 10 years and hence, they claimed regularization. They approached the Tribunal without success. They took up the matter before the High Court of Karnataka. The High Court ordered that they are entitled to wages and allowances equal to regular employees and also gave a direction to the State Government to consider their case for regularization within four months. Allowing the appeal preferred by the Department the Supreme Court set aside the directions given by the High Court for regularization of the services of those daily wage employees who have more than ten years of service. In Uma Devi's case the appeal filed by the Department was allowed and the direction given by the High Court for regularization of services of those daily wage employees who had more than ten years of service was set aside. Therefore, the decision in Satya Prakash cited supra is actually relied upon by the learned counsel for the respondents in support of the submission that the plea for regularization of service put forward by the applicants is unsustainable.
23. The facts dealt with in Rajasekhara v. State Bank of Mysore - 2012 (1) SCC 285 are also totally different. There the Supreme Court was considering the provisions of Sections 25(F) and 25(B) of the Industrial Disputes Act. Similarly, the decision of Supreme Court in Harinandan Prasad and another v. Employer I/R to Management of Food Corporation of India and another - 2014 (7) SCC 190 also has no application since there also the Hon'ble Supreme Court was dealing with Section 25(F) of the Industrial Disputes Act. In fact, in that case the two appellants before the Hon'ble Supreme Court were working on a casual basis with the Food Corporation of India; after certain time their services were dispensed with. Both of them raised industrial dispute alleging wronglful termination which was referred to the CGIT. The issue raised therein was as to the validity of termination. Admittedly both the appellants therein had worked for more than 240 days continuously preceding their disengagement/termination and at the time of their disengagement even when they have rendered continuous service for more than 240 days (in fact about three years) they were not given any notice or pay in lieu of notice as well as retrenchment compensation. That gave rise to the industrial dispute. Here, it is not a case of retrenchment which arises for consideration. There also the decision of the Constitution Bench in Uma Devi was cited and follwing the same it was held that there cannot be any direction to regularize the services of a workman in violation of Article 14 of the Constitution which would mean that the Industrial Tribunal should not issue direction for regularizing the services of a daily wage worker where such regularization would tantamount to infringing the provisions of Article 14 of the Constitution.
24. It is vehemently argued by the learned counsel for the respondents that even part time employees are not entitled to seek regularization as they are not working against any sanctioned post. At the relevant time there was no sanctioned post at all, even according to the applicants and therefore, there cannot be a direction for absorption, regularization or permanent continuance of the applicants, the learned counsel for the respondents' submit. Even where a scheme is formulated for regularization with a cut of date, that is a scheme providing the persons who have put in a specified number of years of service and continuing employment as on the cut of date. It is not possible for others who are appointed subsequent to the cut of date to claim or contend that the scheme should be applied to them by extending the cut of date or seek a direction for framing a fresh scheme providing for successive cut of date. It is also rightly contended by the learned counsel for the respondents that mere continuation of service by a temporary or ad hoc or daily wage employee under cover of some interim orders from Court would not confer upon them any right to absorb in the service, as such service would be 'litigious employment'.
25. Every temporary, ad hoc or daily wage service even if he was working for one or two years will not entitle him to claim regularization, if he is not working against the sanctioned post. As said earlier the applicants were not working against any sanctioned post. Six posts of Operators were sanctioned only as per Annexure A9 dated 12.6.2008. Though request was made for 153 posts of which 54 posts are stated to be of Operators, there is nothing on record to show that those posts were in fact sanctioned by the Government of India. It is also trite that sympathy and sentiment cannot be a ground for passing any order of regularization in the absence of a legal right.
26. The learned counsel for the respondents is also perfectly right in his submission that what was stated by the Hon'ble Supreme Court in Uma Devi was only regarding irregular appointments which can be subsequently regularized . The appointment would be termed as 'irregular' for want of compliance in the process of selection, but it should be against a sanctioned vacant post and in accordance with the relevant rules. In other words, when the appointment is made based on relevant Recruitment Rules and was against the sanctioned vacant post, but if some procedural formalities were not duly complied with, it can be termed as irregular appointment and not illegal appointment because there were sanctioned vacant posts and rules were there and in fact the appointments were made based on those relevant Recruitment Rules, though there were procedural lapses. Here, in the case on hand the position is entirely different. The applicants were never appointed as NMR Mates either regularly or temporarily. They were only daily wagers though they continued to work for nearly two decades. As held by the Constitution Bench in Uma Devi, if the original appointment was not made following the due process as envisaged by the relevant rules, the plea for regularization cannot be allowed at all.
27. The learned counsel for the respondents has also relied upon the decision of the Supreme Court in Official Liquidator v. Dayanand - 2008 (10) SCC 1 where it was held that the High Court cannot issue a mandamus and compel the State and its instrumentalities/agencies to regularize the service of temporary/ad hoc/daily wage/causal/contract employee and, directions cannot be issued to the public employer to give similar pay scale to the employees appointed through different modes with different conditions of service and different sources of payment. It is also argued by the learned counsel for the respondents that in Satyaprakash's case 2010 (4) SCC 179 it was held that if the appointment itself is in infraction of rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority but there have been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of appointment. At the risk of repetition we have to reiterate that the applicants were persons engaged on daily wage basis and they were never posted against any regular vacancies; there was no selection process in accordance with the Recruitment Rules and as such the plea for regularization is wholly unfounded and untenable. The learned counsel has also relied upon another decision in Union of India v. Arulmozhy - 2011 (7) SCC 397 where the claim of the causal employees who were having uninterrupted engagement for long duration, ranging from 8 to 14 years was considered by the Hon'ble Supreme Court. Considering their plea of legitimate expectation it was held that in the absence of any right on the part of the employees and corresponding co-relative legal obligation on the part of the State the concept of legitimate expectation or claim to get regularization on the basis of a long continuous service is not sustainable in the eye of law.
28. Relying on the decision in Asif Hameed v. Jammu & Kashmir- AIR 1989 SC 1899 it is further argued that the Constitution does not permit the Court to direct or advise the executive in the matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislative or executive, provided these authorities do not transgress, their constitutional powers or statutory powers. The learned counsel for the respondents has also relied upon a decision of the Division Bench of the High Court in Administrator v. Nadarkoya - 2005 (1) KLT SN 63-(Case No. 81) where it was held:
'6. In view of the above mentioned cirucsmtances, we have no hesitation to hold that the Tribunal had committed a grave error in giving direction to the Lakshadweep Administration to adopt the department of Personel & Training Casual Labour (grant of temproary status and regualrisation) Scheme 1993 and prescribe it prospectively to the Panchayat for granting temproary status to the casual labourers....Further direction given tothe Panchayat that no casual workers could be retrenched on the face of availability of work falls within the domain of the Administration. In such circumstances, the order passed by the Tribunal in OA No.820/2001 would stand set aside.
7. We have already found that on merits also the Tribunal was not jsutified in giving various directions to the Lakshadweep Administration, Union of India and to the Panchayath. We may hasten toa dd that Tribunal has commtited a grave error in not following its earleir decisions which were confirmed by the Court. The action of the Tribunal is opposed to all principles of judicial discipline. . . ..We are sorry to note that in sptie of judicial pronouncements of the Apex Court and this Court, the Tribunal has not acted on those judicial pronouncements.'
29. To sum up there is nothing on record to show that the applicants were appointed as NMR Mates or to any other posts following the procedure prescribed by the Recruitment Rules or against any sanctioned posts. The applicants were not absorbed at all in 1995. The LPWD had only taken over the desalination plant from the Company-TEAMC. The applicants were only appointed as daily wagers for whom payments were made on hand receipts though at the rate applicable to NMR Mates.
30. The applicants are not entitled to succeed in their plea for regularization since they were not appointed against any sanctioned post nor were they appointed as per the Recruitment Rules. They were not ad hoc employees nor were they conferred with any temporary status.
31. But the Tribunal cannot shut its eyes to the reality that for the last about 20 years the applicants continued to work as daily wagers. No doubt, the applicants cannot contend that they were workers under LPWD (prior to the taking over the plant by LPWD in 1995). The period they had worked under the Company cannot be made use of for any purpose. But after the plant was taken over, the applicants continued to work as daily wagers under the LPWD. For nearly 20 years they worked under the respondents as daily wagers. They were not equated with NMR Mates though they were paid equivalent to that of NMR Mates. Their labour has been extracted by the respondents though by paying daily wages. The fact remains that the applicants were qualified and experienced Plant Operators and they were discharging their duties for these 20 years, though as daily wagers. Though in the light of the decisions referred to earlier their request for regularization cannot be granted by this Tribunal, it is within the domain of the Lakshadweep Administration to think over the matter and find out a possibility to redress the grievance of the applicants taking note of the fact that they were working under them for nearly 20 years. It is purely within the domain of the Lakshadweep Administration. It may be possible for the respondents to present the grievance of the applicants before the Government of India and to have a one time measure so as to redress the grievance of the applicants to the extent possible. What have been stated above shall not be treated as a direction of this Tribunal.
32. In the result this OA is dismissed but with the observations as above. No order as to costs.
(P.Gopinath) (N.K.Balakrishnan) Administrative Member Judicial Member kspps