Central Administrative Tribunal - Delhi
Tiraj S/O Karan Singh And Ors. vs Union Of India (Uoi) Through Secretary, ... on 12 October, 2006
ORDER
V.K. Majotra, Vice Chairman (A)
1. O.A. 2713/2004, O.A. 3063/2004 and O.A. 3059/2004 were referred to by a single Member Bench vide orders dated 15.12.2005 to this Division Bench on the following question of law as two divergent decisions of this Bench, namely, (1) order dated 3.10.2005 in OA No. 3058/2004 Faiyaz v. Secretary, ICAR and Anr. and order dated 409/2005 in OA No. 409/2005 - Prem Kumar and Ors. v. Union of India and Ors. were relied upon by the parties, and so that further possible contrary view in such matters may be avoided:
1. Whether a casual labour, irrespective of date of engagement could claim regularization based upon DOP & T OMs 26.10.1984 and 7.6.1988 on mere completion of 206/240 days of service, as the case may be, keeping in view the law declared by the Hon'ble Supreme Court of India in UOI Vs Mohan Pal?
2. What is the effect of DOP & T OM dt. 10.9.1993 laying down the policy on grant of Temporary Status & Regularization of casual labours, framed pursuant to the judgment of this Tribunal in Raj Kamal case, on the earlier Oms issued by the DOP & T on the subject of engagement & regularization of casual labours.
3. Whether a direction could be issued to regularize casual labour engaged after the Scheme of DOP&T issued in the year 1993 came into operation following DOP & T's OM dated 26.10.1984 and 7.6.1988.
4. Any other issue which may be considered incidental & necessary to the above question.
2. OA No. 2854/2005 - Gir Raj Singh and Anr. v. Union of India, being similar in facts and issues, was clubbed with these cases for adjudication. Shri V.P.S. Tyagi, proxy counsel stated that though the main counsel Shri R.K. Shukla for applicant in OA No. 2854/2005 was not present when the case was taken up for hearing on 10.10.2006, he had no objection to hearing in the case as he would argue the case. As such, all counsel including Shri V.P.S. Tyagi, were heard.
3. For the sake of convenience, facts have been culled from OA No. 3063/2004.
4. Applicant was appointed as casual labour on 15.10.1992 and worked for only 141 days prior to 10.9.1993 when the DOP & T Scheme called "Casual Labourers (Grant of Temporary Status and Regularization) Scheme, 1993" (hereinafter referred to as the 1993 Scheme) came into effect. It is contended that applicant had worked for 240 days during 1995 and 1996, i.e., two consecutive years. It is claimed that applicant is entitled to temporary status having completed 240 days in two consecutive years, as also regularization of his services in view of his long service of 12 years.
5. At the outset, the learned Counsel of respondents took exception that applicant Tiraj has filed identical OAs, namely, OA 2713/2004 and OA 3063/2004 seeking the same relief. In OA 3063/2004 applicant has sought the following relief:
a) Award Temporary status as he completed 240 days in 1992-93;
b) Regularize his services keeping in view the fact of his long service of 12 years on urgent basis;
c) Not to replace one set of casual labourers by new set;
In OA No. 2713/2004 applicants have sought the following relief:
a) Respondents to engage present applicants as casual labourers and do away with contract labourers;
b) Regularize their services keeping in view the fact of their long service of a decade each on urgent basis;
The learned Counsel of applicants requested for deletion of relief 8(b) from OA No. 2713/2004 stating that as applicant has sought regularization of services in OA 3063/2004, OA 2713/2004 be considered only for engagement of applicants as casual labours and for doing away with the services of contract labourers. Consequently, relief 8(b) is deleted from OA 2713/2004.
6. The learned Counsel of applicants Shri Surinder Singh contended that applicants' claims have to be considered in terms of DOP & T OM No. 49014/2/86-Estt.(C) dated 7.6.1988 and OM No.49014/19/84-Estt.(C) dated 26.10.1984 and not under the 1993 Scheme of DOP & T. Further, the learned Counsel pointed out that applicants are similarly situate as applicant in OA No. 3058/2004 - Faiyaz v. Secretary, ICAR & Anr. who, though were not in position on 1.1.1993, had completed 240 days in 12 months during 1992 and 1993. OA No. 3058/2004 was disposed of with a direction to the respondents to reconsider applicant's claim therein for grant of temporary status and regularization in accordance with rules, instructions and law on the subject. The learned Counsel pointed out that applicants are similarly situate as the applicant in OA No. 3058/2004 wherein it was decided that respondents have to take a decision to count 240 days in 12 months and not 240 days in two consecutive years. The learned Counsel stated that while the 1993 Scheme may not be attracted in these cases, these cases have to be decided on the basis of provisions of OMs dated 26.10.1984 and 7.6.1988.
Shri Tyagi, learned Counsel in OA No. 2854/2005 adopted the arguments advanced by Shri Surinder Singh.
7. The learned Counsel of respondents, on the other hand, relied on order dated 5.9.2005 in OA No. 409/2005 - Prem Kumar and Ors. v. Union of India and Ors. in which claim of similarly situate applicants was not found tenable and the OA was dismissed. The learned Counsel further pointed out that applicants had not completed 206/240 days of service in two consecutive years. They were not in service on 1.9.1993 when the 1993 Scheme was put into effect. He further relied on - Union of India and Anr. v. Mohan Pal, etc. etc., and - Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors. a five-Judge Bench decision of the Hon'ble Apex Court.
8. We have considered the respective contentions of the parties, material on record and the related case law.
9. It is an admitted fact that applicants herein were not in employment on 1.9.1993 when the 1993 Scheme came into effect. Applicant Shri Tiraj and Ors. are stated to have completed 240 days between May, 1998 and June, 1999. It has been impressed upon on behalf of applicants that though applicants may not be entitled to any benefit under the 1993 Scheme, their continuance and regularization should be considered in terms of the aforesaid memoranda dated 26.10.1984 and 7.6.1988. It has further been argued on their behalf that a continuous service of 240 days (206 days in the case of offices observing five days week) of service as casual labourer, including broken periods of service, has not to be related to two years, but if such service has been rendered continuously, though stretched continuously during one year only, even then they have to be considered for conferral of temporary status and regularization of services.
10. The following extracts of memoranda dated 26.10.1984 and 7.6.1988 are relevant for adjudication in the present matter:
Paragraph 3.2 of OM dated 26.10.1984:
A casual labourer may be given in the benefit of 2 years' continuous service as casual labourer if he has put in at least 240 days (206 days in the case of offices observing 5 days week) of service as a casual labourer (including broken periods of service) during each of the two years of service referred to above.
Paragraph 1(x) of OM dated 7.6.1988:
(x)The regularization of the services of the casual workers will continue to be governed by the instructions issued by this Department in this regard. While considering such regularization, a casual worker may be given relaxation in the upper age-limit only if at the time of initial recruitment as a casual worker, he had not crossed the upper-age limit for the relevant post.
11. The 1993 Scheme provides that temporary status would be conferred on all casual labourers who were in employment on the date of coming into effect of the Scheme, i.e., 1.9.1993, 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). Paragraph 10 of the 1993 Scheme reads as follows:
10. In future, the guidelines as contained in this Department's OM, dated 7-6-1988, should be followed strictly in the matter of engagement of casual employees in Central Government offices.
12. It has been contended on behalf of applicants that paragraph 10 of the 1993 Scheme provides that in case a casual labour was not in employment on 1.1.1993, provisions of OM dated 7.6.1988 would be applicable to his claim for regularization. Order dated 3.10.2005 in OA No. 3058/2005 - Faiyaz (supra) has also been relied upon on behalf of applicants to the effect that as applicants have completed 240 days continuously, insistence upon calendar years and 240 days in consecutive years cannot be insisted upon. On the other hand, respondents have stated that with the introduction of the 1993 Scheme, provisions of memoranda dated 26.10.1984 and 7.6.1988 have been superseded and applicants cannot claim regularization of their services under these memoranda. Applicants were not in employment on 1.9.1993. As such, temporary status cannot be conferred upon them and they cannot be considered for regularization of services.
13. Paragraph 3.2 of the OM dated 26.10.1984 states that a casual labourer has to be given the benefit of two years' continuous service as casual labourer if he has put in at least 240 days (206 days in the case of offices observing five days week) of service as a casual labourer (including broken periods of service) during each of the two years of service referred to above. As per paragraph 1(x) of OM dated 7.6.1988, regularization of services of casual workers will continue to be governed by the instructions issued by the DOP & T in this regard and a casual worker may be given relaxation in the upper age limit only if at the time of initial recruitment as a casual worker, he had not crossed the upper age limit for the relevant post. Admittedly the provisions of the 1993 Scheme are not applicable to the present cases. Applicants have sought regularization of their services on the basis of continuous service of 240 days in a year unrelated to a calendar year on the basis of the decision in the matter of Faiyaz (supra). It has been stated on behalf of applicants that paragraph 10 of the 1993 Scheme provides that guidelines contained in OM dated 7.6.1988 shall be followed in cases where applicants were not in employment on 1.9.1993.
14. The question whether a casual worker is entitled to regularization merely on completion of 240/206 days, as the case may be, in two consecutive years under DOP & T OM dated 26.10.1984 and OM dated 7.6.1988 was considered at length in the case of Prem Kumar (supra). In that case both these memoranda as also the 1993 Scheme and various case law including Mohan Pal (supra) were considered. The Court made the following observations:
10. The OM dated 07.06.1988 had been issued in terms of the Judgment rendered by the Hon'ble Supreme Court on 17.01.1986 in Surinder Singh Vs. Union of India, which lays down certain guidelines for recruitment of casual workers on daily wage basis. A perusal of the said OM indeed goes to show that it has been emphasized to minimize the number of casual workers and not to engage their service to the extent possible in future. Similarly, the earlier OM issued on 26.10.1984, those casual labourers who had been recruited through employment exchange and who have put in at least 240 days (206 days in the case of offices with 5 days week) of service for two year of service as daily wage workers were made eligible to be considered for regular appointment against a Group 'D' post subject to the condition that suitable vacancies to accommodate them were available. Subsequently, based on Judgment of this Bench of the Tribunal dated 16.02.1990 in Shri Raj Kamal and Ors. v. UOI, the DOP & T formulated a scheme which was titled "Casual Workers (Grant of Temporary Status and Regularization) Scheme of the Government of India, 1993" and notified the same on 10.09.1993, which also came into operation w.e.f. 01.09.1993
19. I may also note that in 2005 (1) SLR 39 Mahendra L. Jain and Ors. v. Indore Development Authority and Ors. the Hon'ble Supreme Court by placing reliance on another Judgment has held that the daily wagers in the absence of statutory provisions in this behalf would not be entitled to regularization. The process of regularization involves regular appointment, which can be done only in accordance with the prescribed procedure.
20. No person appointed illegally or without following the procedure prescribed under law is entitled to claim that he should be continued in service and be regularized. Accordingly, I find no substance in the applicants' claim that they are entitled to regularization. Moreover, the OMs issued in the year 1984 and 1988 cannot be read in isolation and have to be read along with the Scheme notified by the DOP&T vide OM dated 10.09.1993, particularly when the latest scheme is also in vogue on the same subject and which scheme, in fact, has diluted the purport of earlier OMs of the year 1984 and 1988 considerably. I may also note that the validity of the said Scheme of 1993, particularly para 4.1 has been tested by the Hon'ble Supreme Court in UOI v. Mohan Pal (supra).
21. In my considered view, the OM issued in the year 1988 has also to be read as one time measure benefit only at par with the 1993 Scheme as held by the Hon'ble Supreme Court in Union of India v. Mohan Pal. If any attempt is made to read the said OM of the year 1988 in isolation and not in conjunction as well as harmoniously with the Scheme of the year 1993 and also keeping in view the law laid down on the said Scheme by the Hon'ble Supreme Court in the aforesaid case of Mohan Pal (supra), this would tantamount to negation of law, which law is binding under Article 141 of the Constitution of India. Such a contention would also be impermissible. It would be unjust to state that though the scheme of the year 1993 was a one-time measure, but a person could be regularized by following the OMs of the year 1984 as well as 1988.
22. Therefore, I am of the considered view that the OMs of 1984 as well as 1988 cannot be read in isolation more particularly when the Scheme for grant of temporary status and regularization has been notified by DOP & T's OM dated 10.09.1993 which introduced the concept of Temporary Status before the process of regularization could be undertaken. A cumulative reading of all these OMs, namely, 26th October, 1984 and 6th July, 1988 and 10th September, 1993 would indeed go to show that it was not the mandate of the said OMs that whosoever and whenever completing 240/206 days of service in two consecutive years should be regularized, as projected by the applicants. On the other hand, a bare perusal of para-2 of OM dated 7.6.1988 would show that if the eligible casual workers could not be adjusted against regular posts and their further retention was not considered necessary, they were to be discharged from service. In other words, the said OMs had been a one time exercise and not an on-going process. It was not the object and purport of the said OMs that as and when a person complete 240/206 days of service in two consecutive years, they would have to be regularized by the Government, as a matter of right.
23. It is also well settled that justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and technicalities and irregularities which would not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. Examining the case from this angle, if the Courts/Tribunal issue a direction to regularize those casual labourers who merely complete 206/240 days of service as the case may be as late as in the year 2005 it would not only amount to injustice between the parties but a premium to those who infringe the rules, for the simple reason that certain officials holding vested interests will keep on engaging casual labourers and somehow will manage that they complete the aforesaid period and ultimately get them regularized though their initial appointment may be completely de hors the Rules or back door entry inasmuch as the other similarly placed candidates were not allowed to compete for such an engagement for one reason or the other. This cannot be the purport and object of any law. Cumulative reading of OMs dated 26.10.1984 and 07.06.1988 would make it abundantly clear that it creates no vested rights for regularization. Rather it merely enables the organization to consider them for regular appointment to Group 'D' post, if they are otherwise eligible. In other words, it could not be treated as an on going process and has to be restricted to a one time measure alone.
In making the above observations, the single Member Bench relied upon the following:
Union of India and Ors. v. Mohan Pal etc. (supra);
R.N. Nanjundappa v. T. Thimmaiah ;
State of Orissa v. Sukanti Mohapatra ;
Dr. M.A. Haque v. Union of India ;
Dr. Arundhati A. Pargaonkar v. State of Maharashtra ;
A.K. Bhatnagar v. Union of India ; and Mahendra L. Jain and Ors. v. Indore Development Authority and Ors. 2005 (1) SLR 39.
15. In the case of Faiyaz (supra) which has been relied upon on behalf of applicants, it has not been discussed and decided how, if the applicant was not in employment on 1.9.1993, the provisions of the 1993 Scheme and OMs dated 26.10.1984 and 7.6.1988 could be made applicable. It has also not been clarified whether applicant had been appointed in accordance with the regular procedure. Such aspects have been dealt with in depth in the case of Prem Kumar (supra), which has been relied upon by respondents. Thus, applicants will not be able to derive any benefit from the case of Faiyaz (supra).
16. Admittedly, applicants were not in position on 1.9.1993 when the 1993 Scheme was put into effect. In Mohan Pal (supra) it has been held that the 1993 Scheme was not an ongoing Scheme and as such, temporary status under that Scheme could be conferred only on fulfilling certain conditions incorporated in Clause 4 of the Scheme, i.e., only on such persons who were in employment on the date of commencement of the Scheme. Applicants were not in employment on 1.9.1993 when the Scheme commenced, so they cannot claim the benefit of temporary status/regularization under the 1993 Scheme. OM dated 26.10.1984 provides that only such casual workers can be considered for regular appointment on Group 'D' posts who are otherwise eligible and have put in two years of service as casual labourer with 206 days of service during each year (as against 240 days). Vide OM dated 7.6.1988 it was provided that regularization of services of casual workers will continue to be governed by instructions issued by the DOP & T. All administrative Ministries and Departments were required to undertake review of appointment of casual workers on time-bound basis so that at the end of the prescribed period all eligible casual workers were adjusted against regular posts to the extent such regular posts are justified and the rest whose retention was considered absolutely necessary, are paid emoluments strictly in accordance with the guidelines. The remaining casual workers were to be discharged from service after a time limit of two years in the Ministry of Railways; one year in Department of Posts, Department of Telecommunication and Department of Defence Production; and six months in all other Ministries/Departments/offices. It was directed that there should be no more engagement of casual workers after the review envisaged in the OM dated 7.6.1988. Casual workers under the OM dated 7.6.1988 could continue in service only up to a period of six months to two years, as the case may be, after the envisaged review. Thereafter the question of engagement of any more casual workers did not arise in terms of this OM. The 1993 Scheme applied to those who were in employment on 1.9.1993. The inevitable conclusion, therefore, is that anyone employed on casual basis after two years of review under OM dated 7.6.1988 and those who were not in position as on 1.9.1993 could not be considered for regularization at all under any scheme. The 1993 Scheme was held to be not an ongoing scheme. Persons employed after 1.9.1993 cannot be considered for regularization at all. We also draw support from Umadevi (3) (supra), which dealt with absorption, regularization of ad hoc employees appointed/recruited and continued for long in public employment de hors the constitutional scheme of public employment. It was held in this case that though regular appointment as per the constitutional scheme of public employment must be the rule, there is nothing in the constitutional scheme prohibiting the Government from engaging persons temporarily or on daily wage basis to meet the need of the situation. However, unless the appointment is in terms of the relevant rules and after a proper competition amongst qualified persons, the same would not confer any right on the appointee. A contractual appointment comes to an end at the end of the contract, an appointment on daily wages or casual basis comes to an end when it is discontinued, and a temporary appointment comes to an end on the expiry of its term. No employees so appointed can claim to be made permanent on the expiry of their appointments. When regular vacancies in posts are to be filled up, a regular process of recruitment or appointment has to be resorted to as per the constitutional scheme, and cannot be done in a haphazard manner based on patronage or other considerations. Paragraph 45 of this judgment runs thus:
45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain - not at arms length - since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.
17. On the basis of the above discussion, the question of law referred here is answered as follows:
1. A casual labourer irrespective of the date of engagement cannot claim regularisation based upon DOP & T memoranda dated 26.10.1984 and 7.6.1988 on mere completion of 206/240 days of service, as the case may be, keeping in view the law declared by the Hon'ble Supreme Court in Mohan Pal (supra).
2. Office Memoranda dated 26.10.1984 and 7.6.1988 cannot be read in isolation and have to be read along with the 1993 Scheme. The 1993 Scheme has made memoranda dated 26.10.1984 and 7.6.1988 ineffectual. Paragraph 4.1 of the 1993 Scheme has been tested by the Hon'ble Supreme Court in the case of Mohan Pal (supra). OM dated 7.6.1988 has also to be read as a one-time measure only at par with the 1993 Scheme as held in Mohan Pal (supra). The law laid down in Mohan Pal is binding under Article 141 of the Constitution and as such, OM dated 7.6.1988 cannot be considered in isolation. It has to be read in conjunction and harmoniously with the 1993 Scheme. It would be unjust and even absurd to state that while the 1993 Scheme is a one-time measure, a person can be regularized under the memoranda dated 26.10.1984 and 7.6.1988. The import of a cumulative reading of these memoranda and the 1993 Scheme is not that whosoever and whenever completes 240/206 days of service in two consecutive years should be regularized. Actually, if under OM dated 7.6.1988 eligible workers could not be adjusted against regular posts, they were to be discharged from service. Obviously, these memoranda were also a one-time measure and not an ongoing process. Thus, persons completing 240/206 days of service in two consecutive years cannot be regularized as a matter of right. Persons engaged after promulgation of the 1993 Scheme cannot be regularized under OM dated 26.10.1984 and OM dated 7.6.1988. Persons appointed after 1.9.1993 cannot be considered for regularization as persistent transgression of the regular recruitment after 1.9.1993 is impermissible in terms of Umadevi (3)(supra).
18. In view of the above discussion, finding no merit in these OAs, the same are dismissed. No costs.