Gujarat High Court
Telecom District Manager Thro.General ... vs Jagdishkumar D Varatiya & 5 on 13 August, 2014
Author: Akil Kureshi
Bench: Akil Kureshi
C/SCA/8499/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8499 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI Sd/-
and
HONOURABLE MR.JUSTICE MOHINDER PAL Sd/-
================================================================
1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
1 to 5 : NO
================================================================
TELECOM DISTRICT MANAGER THRO.GENERAL MANAGER....Petitioner(s)
Versus
JAGDISHKUMAR D VARATIYA & 5....Respondent(s)
================================================================
Appearance:
MS ROOPAL R PATEL, ADVOCATE for the Petitioner(s) No. 1
MR PH PATHAK, ADVOCATE for the Respondent(s) No. 1 - 5
RULE NOT RECD BACK for the Respondent(s) No. 1 - 5
RULE SERVED for the Respondent(s) No. 6
================================================================
CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
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C/SCA/8499/2013 JUDGMENT
HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 13/08/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. This petition is filed by Bharat Sanchar Nigam Ltd. ("BSNL" for short) calling in question the judgment of the Central Administrative Tribunal, Ahmedabad ("the Tribunal" for short) dated 27.11.2012 passed in O.A.No.209 of 1997. Some facts will be needed. Respondents/original applicants before the Tribunal were engaged as casual labourers in the year 1989-90 by the Department of Telecommunication ("DOT" for short). They were asked to work at Vapi. From the details of number of days worked given by them, it will appear that they continued to work in such capacity upto the year 1996-97 and almost all applicants in almost every year completed more than 240 days of actual work. On the premise that departmental authorities were trying to convert the applicants from the status of casual labourers into contract employees, they filed the above-mentioned O.A. before the Tribunal and prayed for a declaration that such action was illegal. They further prayed for grant of benefit of regularization by treating the applicants as regular employees of the department. By Page 2 of 15 2 of 30 C/SCA/8499/2013 JUDGMENT way of amendment, they contended that they are entitled to the benefits of temporary status scheme framed by the department. They, therefore, prayed that they may be granted temporary status with all consequential benefits.
2. The O.A. was resisted by the DOT. Some time in the year 2001, a part of the department was privatized and BSNL was brought into existence. Under office memo dated 30.9.2000, it was decided to transfer all assets and liabilities of the DOT in certain fields in BSNL. It was further provided that BSNL will file suitable required appearances/memos in all pending cases before the Courts, Tribunals, Arbitrators, Adjudicators in all matters except which are with the DOT. The BSNL may get substituted or become an additional party as the case may be, or just conduct the cases as assigns or successor in interest of the Government/Department of Telecommunications, as permissible. This may, in so far practicable, be completed by 31st December, 2000. In respect of matters relating to personnel (Government servants) pending before various Courts, the BSNL will defend as assigns or successor in interest as per existing rules till the time employees are on deemed deputation with the BSNL.
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3. On account of such developments, even BSNL was joined as party-respondent in the said O.A. before the Tribunal, for which purpose application was granted by the Tribunal on 06.11.2012. We are informed that BSNL also appeared before the Tribunal and filed replies. Learned counsel Mr.Pathak for original applicants, however, submitted that, even if the Tribunal had passed an order permitting amendment of the O.A. for joining BSNL as respondent, such amendment was not actually carried out and, therefore, lapsed. We will refer to this aspect later.
4. The Tribunal allowed the O.A. The Tribunal declared that the action of the respondents putting the applicants off duty with effect from 01.04.1997 was illegal and arbitrary and violative of Articles 14 and 16 of the Constitution. The Tribunal also directed that their cases be considered for grant of temporary status in terms of such scheme of the department dated 07.11.1989 and that the applicants should be extended the benefits flowing from the said scheme. The objection of the DOT that the scheme was a one-time-measure and would not be applicable to cases arising in future was not accepted. The Tribunal interpreted the expression "this scheme will come into force w.e.f. 01.10.1989 onwards" to mean that the scheme was a perennial on-going scheme and not one-time-measure. It is Page 4 of 15 4 of 30 C/SCA/8499/2013 JUDGMENT this judgment which the BSNL has challenged in this writ petition.
5. At the outset, learned counsel Mr.Pathak raised a preliminary contention that the petition at the hands of BSNL is not maintainable. He submitted that the grievance of original applicants was against the DOT, who is their employer. The scheme for grant of temporary status was formulated by the DOT. The benefits flowing from such scheme to the original applicants by virtue of the judgment of the Tribunal being not as the employees of BSNL, BSNL cannot challenge the judgment of the Tribunal. He submitted that BSNL was not a party before the Tribunal since the amendment allowed by the Tribunal was not carried out by the applicants. As against this, Ms.Patel for BSNL submitted that the original applicants are discharging duties under BSNL being on deputation. Grant of temporary status and eventual regularization in DOT would mean that they would have no objection to be absorbed in BSNL and that is how BSNL is directly affected by the judgment of the Tribunal.
6. Insofar as merits of the case are concerned, counsel for BSNL attacked the judgment of the Tribunal primarily on the ground that, by virtue of the judgment of the Supreme Court in Page 5 of 15 5 of 30 C/SCA/8499/2013 JUDGMENT Secretary, State of Karnataka v. Umadevi & Ors. reported in (2006) 4 SCC 1, any direction for regularization, unless the facts of the case fall within the limited parameters of the law laid down by the Supreme Court in the said judgment, would be wholly impermissible. Even if there is a scheme for regularization, the same would be unconstitutional and opposed to the law laid down by the Supreme Court in case of Umadevi (supra). In this context, she also relied on later decisions of the Supreme Court in State of U.P. v. Desh Raj reported in (2007) 1 SCC 257; Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd. Reported in (2007) 1 SCC 408 and Official Liquidator v. Dayanand & Ors. reported in (2008) 10 SCC 1 for the same purpose.
7. On the other hand, learned advocate Mr.Pathak for the original applicants submitted that the decision of the Tribunal is nowhere in conflict with the ratio of the judgment of the Supreme Court in case of Umadevi (supra). The Tribunal has granted consideration for temporary status in terms of the scheme of DOT. No benefit of regularization has been granted to the original applicants. He relied on a decision of the Supreme Court in case of Bhartiya Seva Samaj Trust Tr. Pres.
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v. Yogveshbhai balal Patel reported in AIR 2012 SC 3285.
8. For deciding the question of maintainability of the writ petition, we may recall, admittedly, the original applicants were engaged initially by DOT. Though by virtue of separation of BSNL from DOT such casual labourers were placed at the disposal of BSNL for taking work, nevertheless the employer- employee relationship even today is between DOT and original applicants. The original applicants are now discharging their duties with BSNL on deemed deputation basis. So much is amply clear from various documents on record. For example, in an affidavit dated 18.11.2013 filed by one Paresh Vinodray Jani, AGM (Admn. & Legal), BSNL, it is stated that in view of Clause 37-A (7) of Notification dated 23.10.2000 issued by DOT, casual labourers of DOT had not been absorbed in BSNL. Sub-clause (7) of Clause 37-A reads as under:
""37-A (7) The employees, including quasi permanent and temporary employees but excluding casual laborers, who opt for permanent absorption in the public sector undertaking or autonomous body, shall on and from the date of absorption will be governed by the Rules and Regulations or bylaws of the public sector undertaking or autonomous body, as the case may be"
9. Further, in a clarification dated 30.4.2001, BSNL, in Page 7 of 15 7 of 30 C/SCA/8499/2013 JUDGMENT response to an issue whether, casual labourers after being regularized in pursuance of letter dated 29.9.2000 on a subsequent date after 31.3.2001 want to submit their option, such option will be accepted or not, it was clarified that such option would be accepted but the date of option would be the date of regularization.
10. From the above materials it can be seen that until and unless a casual labourer is regularized in the parent department of DOT, there would be no option to switch over or to be absorbed in BSNL. Only after regularization the question of the option being available to him would arise.
11. One has to examine the locus standi of BSNL to challenge the judgment of the Tribunal in this background. Merely because BSNL was or was not a respondent before the Tribunal would not be a governing factor. Though allowed to be joined as respondent, but simply because the amendment is not carried out, the original applicants cannot oppose locus of BSNL only on this ground. Conversely, even if BSNL is a respondent before the Tribunal, if the judgment of the Tribunal does not adversely affect BSNL, it would have no right to challenge the same. Question is one of substance and not Page 8 of 15 8 of 30 C/SCA/8499/2013 JUDGMENT form. In this context, our opinion is that the direction contained in the impugned judgment of the Tribunal cannot be stated to be in any manner adverse to BSNL. This is so because, as observed above, the direction is for consideration of original applicants for grant of temporary status flowing from the scheme framed by DOT. The original applicants are still in the employment of DOT. Even after grant of temporary status and if the casual labourers get it, it would not change the position. Till such original applicants are regularized in the service of DOT, BSNL never directly comes in the picture. The apprehension of BSNL that after granting temporary status they would thereafter be regularized by DOT and would earn an option to be absorbed in BSNL is too remote and somewhat far-fetched connection between BSNL and original applicants at prpesent. In clear terms, the Tribunal directed consideration of the original applicants for grant of temporary status by DOT under a scheme framed by the said department. Whether the applicants are granted such status or not, in our opinion, will have no effect on BSNL. In that context, we agree with the suggestion of the original applicant that the writ petition at the hands of BSNL would not be maintainable. This is precisely what the Division Bench of this Court in its order dated 15.2.2011 in SCA No.16113 of 2010 held in somehow similar Page 9 of 15 9 of 30 C/SCA/8499/2013 JUDGMENT background. At this stage, we may advert to some of the provisions of the temporary status scheme framed by DOT. The scheme brought into effect from 01.10.1989 onwards was applicable to casual labourers employed by DOT. It was provided that till regular Gr.D. vacancies are available for absorption of casual labourers to whom this scheme is applicable, the benefit of temporary status will be conferred. Para 5 of the scheme envisages that such benefits would be conferred on all the casual labourers currently employed and who have rendered continuous service or at least one year of service having worked for 240 days. Such conferment would be without creation or availability of regular Gr.D posts. Such conferment would not involve any change of duty. They would be paid on daily rate on a need basis. They would have leave entitlement on a pro-rata basis of one day for every 10 days of work. They would be allowed to carry forward the leave to their credit upon regularization, if any. 50% of service rendered on temporary status would count for the purpose of retirement benefits after regularization. After rendering three years of continuous service on attainment of temporary status, the casual labourer will be treated at par with temporary Gr.D employees for the purpose of contribution to General Provident Fund. They will also be entitled to grant of festival advance or Page 10 of 15 10 of 30 C/SCA/8499/2013 JUDGMENT food advance on the same conditions as are applicable to Gr.D. Staff. No other benefits would be available. In para 8 it was provided that despite conferment of temporary status, the services of a casual labourer may be dispensed with in accordance with the provisions of the Industrial Disputes Act.
12. It can thus be seen that the temporary status scheme was a welfare scheme prepared by the department. It was not a scheme for regularization of casual labourers. Nowhere the scheme envisaged regularization. The scheme itself recognized a degree of continuity of a casual labourer who had worked continuously for one year or for a period of 240 days during the past one year. In such cases, instead of treating a casual labaourer as a purely daily rated workman whose relationship with the employer would be snapped at the end of each day without any further liability of the employer, some basic benefits were made available to such temporary status casual labourers. By very nature of things, organizations such as telecommunications and railways would have perennial need for casual labourers in large number. Instead of, for years together, treating their status as merely in casual employment, if some benefits of temporary status are made available to them, it was merely in tune with the concept of welfare State Page 11 of 15 11 of 30 C/SCA/8499/2013 JUDGMENT and model employer and otherwise also in tune with the basic philosophy of fairness by the State in the matter of employment of labourers. As noted, the scheme was to alleviate the status of a casual labourer after serving a period of continuous work under which he would be entitled to basic benefits, such as, paid leave, carry forward of leave, festival and food advances and productivity linked bonus. In our opinion, nowhere in the scheme envisaged regularization. BSNL therefore had no locus to challenge the direction for considering their cases for grant of temporary status.
13. Coming to the question of merits of the decision of the Tribunal, we do not find that the Tribunal committed any error. All that the Tribunal directed the department was to consider the case of original applicants for grant of temporary status in terms of the scheme. They had put in more than six years of service, in each year exceeding 240 days. At the time they approached the Tribunal, they were protected against termination. Even without such protection, the original applicants had rendered more than six years of almost continuous service. The Tribunal, therefore, directed DOT to implement their scheme qua these applicants and grant them temporary status, if they are otherwise found suitable.
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14. The judgment in case of Umadevi (supra) struck at the root of regularization of casual employees in government departments and its agencies, when such actions were without following any procedure. It was held that such regularization would amount to back-door entry in public service which would be hit by Articles 14 and 16 of the Constitution. It may be argued that, any action of employer, being a State within the meaning of Article 12 of the Constitution, regularizing service of an employee who was not selected regularly after inviting all eligible applicants who applied, would be impermissible. It may also be argued that even a scheme framed for such purpose of regularization, unless was saved by the observations of the Court in para 53, would also be unconstitutional. In the present case, we are concerned not with the scheme of regularization, but with grant of temporary status. We have taken detailed note of various provisions contained in the said scheme. Such provisions would demonstrate that the scheme nowhere envisages regularization of casual labourers. The scheme merely grants some enhanced benefits in terms of leave, advances and bonus. Essentially, it alleviates the status of casual labaourer from merely a daily rated worker, who would Page 13 of 15 13 of 30 C/SCA/8499/2013 JUDGMENT be paid only for the number of days he actually worked, to that of a person who would, on completion of ten days of work, be entitled to one day paid rest who, because of his length of service with the department, can seek festival and food advances. Such welfare measures even in favour of casual labourers have not been held to be impermissible by the Supreme Court in case of Umadevi (supra). If ultimately the question of regularization of these original applicants arises in future, applicability of the decision of the Supreme Court in case of Umadevi (supra) may have to be examined.
15. In the judgment dated 09.07.2013 in State of Gujarat & Ors. v. PWD Employees Union & Ors. in Civil Appeal No.5321-5322 of 2013 arising out of SLP(C) 13619-13620 of 2012, the Supreme Court upheld the directions given by this Court for granting certain benefits under the scheme framed by the Government. Our attention is also drawn to the judgments of Division Bench of this Court in case of Bharat Sanchar Nigam Ltd. v. R.K.Shaikh dated 09.01.2014 in SCA No.5778 of 2008 and in Union of India v. Lalsingh K. Rathod dated 18.7.2013 in SCA No.6205 of 2011 where same or similar issues came up for consideration before the Court. Petitions of the Government of India and its agencies were Page 14 of 15 14 of 30 C/SCA/8499/2013 JUDGMENT dismissed.
16. In the result, the writ petition is dismissed. Rule is discharged. Interim relief is vacated.
Sd/-
( AKIL KURESHI, J.) Sd/-
(MOHINDER PAL, J.)
(KMGThilake)
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8499 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI Sd/- and HONOURABLE MR.JUSTICE MOHINDER PAL Sd/-
================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
1 to 5 : NO ================================================================ TELECOM DISTRICT MANAGER THRO.GENERAL MANAGER....Petitioner(s) Versus JAGDISHKUMAR D VARATIYA & 5....Respondent(s) ================================================================ Appearance:
MS ROOPAL R PATEL, ADVOCATE for the Petitioner(s) No. 1 MR PH PATHAK, ADVOCATE for the Respondent(s) No. 1 - 5 RULE NOT RECD BACK for the Respondent(s) No. 1 - 5 RULE SERVED for the Respondent(s) No. 6 ================================================================ CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and Page 1 of 15 16 of 30 C/SCA/8499/2013 JUDGMENT HONOURABLE MR.JUSTICE MOHINDER PAL Date : 13/08/2014 14 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. This petition is filed by Bharat Sanchar Nigam Ltd.
("BSNL" for short) calling in question the judgment of the Central Administrative Tribunal, Ahmedabad ("the Tribunal" for short) dated 27.11.2012 passed in O.A.No.209 of 1997. Some facts will be needed. Respondents/original applicants before the Tribunal were engaged as casual labourers in the year 1989-90 by the Department of Telecommunication ("DOT" for short). They were asked to work at Vapi. From the details of number of days worked given by them, it will appear that they continued to work in such capacity upto the year 1996-97 and almost all applicants in almost every year completed more than 240 days of actual work. On the premise that departmental authorities were trying to convert the applicants from the status of casual labourers into contract employees, they filed the above-mentioned O.A. before the Tribunal and prayed for a declaration that such action was illegal. They further prayed for grant of benefit of regularization by treating the applicants as regular employees of the department. By Page 2 of 15 17 of 30 C/SCA/8499/2013 JUDGMENT way of amendment, they contended that they are entitled to the benefits of temporary status scheme framed by the department. They, therefore, prayed that they may be granted temporary status with all consequential benefits.
2. The O.A. was resisted by the DOT. Some time in the year 2001, a part of the department was privatized and BSNL was brought into existence. Under office memo dated 30.9.2000, it was decided to transfer all assets and liabilities of the DOT in certain fields in BSNL. It was further provided that BSNL will file suitable required appearances/memos in all pending cases before the Courts, Tribunals, Arbitrators, Adjudicators in all matters except which are with the DOT. The BSNL may get substituted or become an additional party as the case may be, or just conduct the cases as assigns or successor in interest of the Government/Department of Telecommunications, as permissible. This may, in so far practicable, be completed by 31st December, 2000. In respect of matters relating to personnel (Government servants) pending before various Courts, the BSNL will defend as assigns or successor in interest as per existing rules till the time employees are on deemed deputation with the BSNL.
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3. On account of such developments, even BSNL was joined as party-respondent in the said O.A. before the Tribunal, for which purpose application was granted by the Tribunal on 06.11.2012. We are informed that BSNL also appeared before the Tribunal and filed replies. Learned counsel Mr.Pathak for original applicants, however, submitted that, even if the Tribunal had passed an order permitting amendment of the O.A. for joining BSNL as respondent, such amendment was not actually carried out and, therefore, lapsed. We will refer to this aspect later.
4. The Tribunal allowed the O.A. The Tribunal declared that the action of the respondents putting the applicants off duty with effect from 01.04.1997 was illegal and arbitrary and violative of Articles 14 and 16 of the Constitution. The Tribunal also directed that their cases be considered for grant of temporary status in terms of such scheme of the department dated 07.11.1989 and that the applicants should be extended the benefits flowing from the said scheme. The objection of the DOT that the scheme was a one-time-measure and would not be applicable to cases arising in future was not accepted. The Tribunal interpreted the expression "this scheme will come into force w.e.f. 01.10.1989 onwards" to mean that the scheme was a perennial on-going scheme and not one-time-measure. It is Page 4 of 15 19 of 30 C/SCA/8499/2013 JUDGMENT this judgment which the BSNL has challenged in this writ petition.
5. At the outset, learned counsel Mr.Pathak raised a preliminary contention that the petition at the hands of BSNL is not maintainable. He submitted that the grievance of original applicants was against the DOT, who is their employer. The scheme for grant of temporary status was formulated by the DOT. The benefits flowing from such scheme to the original applicants by virtue of the judgment of the Tribunal being not as the employees of BSNL, BSNL cannot challenge the judgment of the Tribunal. He submitted that BSNL was not a party before the Tribunal since the amendment allowed by the Tribunal was not carried out by the applicants. As against this, Ms.Patel for BSNL submitted that the original applicants are discharging duties under BSNL being on deputation. Grant of temporary status and eventual regularization in DOT would mean that they would have no objection to be absorbed in BSNL and that is how BSNL is directly affected by the judgment of the Tribunal.
6. Insofar as merits of the case are concerned, counsel for BSNL attacked the judgment of the Tribunal primarily on the ground that, by virtue of the judgment of the Supreme Court in Page 5 of 15 20 of 30 C/SCA/8499/2013 JUDGMENT Secretary, State of Karnataka v. Umadevi & Ors. reported in (2006) 4 SCC 1, any direction for regularization, unless the facts of the case fall within the limited parameters of the law laid down by the Supreme Court in the said judgment, would be wholly impermissible. Even if there is a scheme for regularization, the same would be unconstitutional and opposed to the law laid down by the Supreme Court in case of Umadevi (supra). In this context, she also relied on later decisions of the Supreme Court in State of U.P. v. Desh Raj reported in (2007) 1 SCC 257; Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd. Reported in (2007) 1 SCC 408 and Official Liquidator v. Dayanand & Ors. reported in (2008) 10 SCC 1 for the same purpose.
7. On the other hand, learned advocate Mr.Pathak for the original applicants submitted that the decision of the Tribunal is nowhere in conflict with the ratio of the judgment of the Supreme Court in case of Umadevi (supra). The Tribunal has granted consideration for temporary status in terms of the scheme of DOT. No benefit of regularization has been granted to the original applicants. He relied on a decision of the Supreme Court in case of Bhartiya Seva Samaj Trust Tr. Pres.
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v. Yogveshbhai balal Patel reported in AIR 2012 SC 3285.
8. For deciding the question of maintainability of the writ petition, we may recall, admittedly, the original applicants were engaged initially by DOT. Though by virtue of separation of BSNL from DOT such casual labourers were placed at the disposal of BSNL for taking work, nevertheless the employer- employee relationship even today is between DOT and original applicants. The original applicants are now discharging their duties with BSNL on deemed deputation basis. So much is amply clear from various documents on record. For example, in an affidavit dated 18.11.2013 filed by one Paresh Vinodray Jani, AGM (Admn. & Legal), BSNL, it is stated that in view of Clause 37-A (7) of Notification dated 23.10.2000 issued by DOT, casual labourers of DOT had not been absorbed in BSNL. Sub-clause (7) of Clause 37-A reads as under:
""37-A (7) The employees, including quasi permanent and temporary employees but excluding casual laborers, who opt for permanent absorption in the public sector undertaking or autonomous body, shall on and from the date of absorption will be governed by the Rules and Regulations or bylaws of the public sector undertaking or autonomous body, as the case may be"
9. Further, in a clarification dated 30.4.2001, BSNL, in Page 7 of 15 22 of 30 C/SCA/8499/2013 JUDGMENT response to an issue whether, casual labourers after being regularized in pursuance of letter dated 29.9.2000 on a subsequent date after 31.3.2001 want to submit their option, such option will be accepted or not, it was clarified that such option would be accepted but the date of option would be the date of regularization.
10. From the above materials it can be seen that until and unless a casual labourer is regularized in the parent department of DOT, there would be no option to switch over or to be absorbed in BSNL. Only after regularization the question of the option being available to him would arise.
11. One has to examine the locus standi of BSNL to challenge the judgment of the Tribunal in this background. Merely because BSNL was or was not a respondent before the Tribunal would not be a governing factor. Though allowed to be joined as respondent, but simply because the amendment is not carried out, the original applicants cannot oppose locus of BSNL only on this ground. Conversely, even if BSNL is a respondent before the Tribunal, if the judgment of the Tribunal does not adversely affect BSNL, it would have no right to challenge the same. Question is one of substance and not Page 8 of 15 23 of 30 C/SCA/8499/2013 JUDGMENT form. In this context, our opinion is that the direction contained in the impugned judgment of the Tribunal cannot be stated to be in any manner adverse to BSNL. This is so because, as observed above, the direction is for consideration of original applicants for grant of temporary status flowing from the scheme framed by DOT. The original applicants are still in the employment of DOT. Even after grant of temporary status and if the casual labourers get it, it would not change the position. Till such original applicants are regularized in the service of DOT, BSNL never directly comes in the picture. The apprehension of BSNL that after granting temporary status they would thereafter be regularized by DOT and would earn an option to be absorbed in BSNL is too remote and somewhat far-fetched connection between BSNL and original applicants at prpesent. In clear terms, the Tribunal directed consideration of the original applicants for grant of temporary status by DOT under a scheme framed by the said department. Whether the applicants are granted such status or not, in our opinion, will have no effect on BSNL. In that context, we agree with the suggestion of the original applicant that the writ petition at the hands of BSNL would not be maintainable. This is precisely what the Division Bench of this Court in its order dated 15.2.2011 in SCA No.16113 of 2010 held in somehow similar Page 9 of 15 24 of 30 C/SCA/8499/2013 JUDGMENT background. At this stage, we may advert to some of the provisions of the temporary status scheme framed by DOT. The scheme brought into effect from 01.10.1989 onwards was applicable to casual labourers employed by DOT. It was provided that till regular Gr.D. vacancies are available for absorption of casual labourers to whom this scheme is applicable, the benefit of temporary status will be conferred. Para 5 of the scheme envisages that such benefits would be conferred on all the casual labourers currently employed and who have rendered continuous service or at least one year of service having worked for 240 days. Such conferment would be without creation or availability of regular Gr.D posts. Such conferment would not involve any change of duty. They would be paid on daily rate on a need basis. They would have leave entitlement on a pro-rata basis of one day for every 10 days of work. They would be allowed to carry forward the leave to their credit upon regularization, if any. 50% of service rendered on temporary status would count for the purpose of retirement benefits after regularization. After rendering three years of continuous service on attainment of temporary status, the casual labourer will be treated at par with temporary Gr.D employees for the purpose of contribution to General Provident Fund. They will also be entitled to grant of festival advance or Page 10 of 15 25 of 30 C/SCA/8499/2013 JUDGMENT food advance on the same conditions as are applicable to Gr.D. Staff. No other benefits would be available. In para 8 it was provided that despite conferment of temporary status, the services of a casual labourer may be dispensed with in accordance with the provisions of the Industrial Disputes Act.
12. It can thus be seen that the temporary status scheme was a welfare scheme prepared by the department. It was not a scheme for regularization of casual labourers. Nowhere the scheme envisaged regularization. The scheme itself recognized a degree of continuity of a casual labourer who had worked continuously for one year or for a period of 240 days during the past one year. In such cases, instead of treating a casual labaourer as a purely daily rated workman whose relationship with the employer would be snapped at the end of each day without any further liability of the employer, some basic benefits were made available to such temporary status casual labourers. By very nature of things, organizations such as telecommunications and railways would have perennial need for casual labourers in large number. Instead of, for years together, treating their status as merely in casual employment, if some benefits of temporary status are made available to them, it was merely in tune with the concept of welfare State Page 11 of 15 26 of 30 C/SCA/8499/2013 JUDGMENT and model employer and otherwise also in tune with the basic philosophy of fairness by the State in the matter of employment of labourers. As noted, the scheme was to alleviate the status of a casual labourer after serving a period of continuous work under which he would be entitled to basic benefits, such as, paid leave, carry forward of leave, festival and food advances and productivity linked bonus. In our opinion, nowhere in the scheme envisaged regularization. BSNL therefore had no locus to challenge the direction for considering their cases for grant of temporary status.
13. Coming to the question of merits of the decision of the Tribunal, we do not find that the Tribunal committed any error. All that the Tribunal directed the department was to consider the case of original applicants for grant of temporary status in terms of the scheme. They had put in more than six years of service, in each year exceeding 240 days. At the time they approached the Tribunal, they were protected against termination. Even without such protection, the original applicants had rendered more than six years of almost continuous service. The Tribunal, therefore, directed DOT to implement their scheme qua these applicants and grant them temporary status, if they are otherwise found suitable.
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14. The judgment in case of Umadevi (supra) struck at the root of regularization of casual employees in government departments and its agencies, when such actions were without following any procedure. It was held that such regularization would amount to back-door entry in public service which would be hit by Articles 14 and 16 of the Constitution. It may be argued that, any action of employer, being a State within the meaning of Article 12 of the Constitution, regularizing service of an employee who was not selected regularly after inviting all eligible applicants who applied, would be impermissible. It may also be argued that even a scheme framed for such purpose of regularization, unless was saved by the observations of the Court in para 53, would also be unconstitutional. In the present case, we are concerned not with the scheme of regularization, but with grant of temporary status. We have taken detailed note of various provisions contained in the said scheme. Such provisions would demonstrate that the scheme nowhere envisages regularization of casual labourers. The scheme merely grants some enhanced benefits in terms of leave, advances and bonus. Essentially, it alleviates the status of casual labaourer from merely a daily rated worker, who would Page 13 of 15 28 of 30 C/SCA/8499/2013 JUDGMENT be paid only for the number of days he actually worked, to that of a person who would, on completion of ten days of work, be entitled to one day paid rest who, because of his length of service with the department, can seek festival and food advances. Such welfare measures even in favour of casual labourers have not been held to be impermissible by the Supreme Court in case of Umadevi (supra). If ultimately the question of regularization of these original applicants arises in future, applicability of the decision of the Supreme Court in case of Umadevi (supra) may have to be examined.
15. In the judgment dated 09.07.2013 in State of Gujarat & Ors. v. PWD Employees Union & Ors. in Civil Appeal No.5321-5322 of 2013 arising out of SLP(C) 13619-13620 of 2012, the Supreme Court upheld the directions given by this Court for granting certain benefits under the scheme framed by the Government. Our attention is also drawn to the judgments of Division Bench of this Court in case of Bharat Sanchar Nigam Ltd. v. R.K.Shaikh dated 09.01.2014 in SCA No.5778 of 2008 and in Union of India v. Lalsingh K. Rathod dated 18.7.2013 in SCA No.6205 of 2011 where same or similar issues came up for consideration before the Court. Petitions of the Government of India and its agencies were Page 14 of 15 29 of 30 C/SCA/8499/2013 JUDGMENT dismissed.
16. In the result, the writ petition is dismissed. Rule is discharged. Interim relief is vacated.
Sd/-
( AKIL KURESHI, J.) Sd/-
(MOHINDER PAL, J.) (KMGThilake) Page 15 of 15 30 of 30