Kerala High Court
Union Of India vs T.S.Najimudeen on 25 November, 2020
Bench: A.M.Shaffique, P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 25TH DAY OF NOVEMBER 2020 / 4TH AGRAHAYANA, 1942
OP (CAT).No.196 OF 2020
AGAINST THE ORDER DATED 18.11.2019 IN OA 653/2019 OF CENTRAL
ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONERS/RESPONDENTS:
1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI 110 001
2 CHAIRMAN,
CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS,
NORTH BLOCK, NEW DLEHI-110 001.
3 DIRECTOR GENERAL OF REVENUE INTELLIGENCE,
D BLOCK, INDRAPRASTHA BHAVAN, 7TH FLOOR, I.P.ESTATE,
NEW DELHI-110 002.
4 ADDITIONAL DIRECTOR GENERAL OF REVENUE INTELLIGENCE,
NO.1103, 13TH CROSS, INDIRA NAGAR II STAGE,
BENGALURU-560 038.
5 ADDITIONAL DIRECTOR OF REVENUE INTELLIGENCE,
NO.19/1069-A, TALI, CHALAPURAM P.O.,
KOZHIKODE-673 002
6 ADDITIONAL DIRECTOR GENERAL OF REVENUE INTELLIGENCE,
VALAKUNNEL, KAITHOTH ROAD, PALARIVATTOM,
COCHIN-682 025.
BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
RESPONDENT/APPLICANT AND RESPONDENT NO.3:
1 T.S.NAJIMUDEEN, S/O. T.K.SAIDU,
CONTINGENT EMPLOYEE (DIRECTORATE OF REVENUE
INTELLIGENCE),
THOZHUTHUNGAL HOUSE, IRUMPUNPALAM,
VALARA P.O., IDUKKI DISTRICT-685 561.
OP (CAT).No.196 OF 2020
2
2 C.T.AJITHKUMAR, AGED 47 YEARS
S/O.KANDANKUTTY, CONTINGENT EMPLOYEE (DIRECTORATE
OF REVENUE INTELLIGENCE),
CHITTEDATH THAZHATH HOUSE, KARIKENKULAM,
KARAPARAMBA P.O., KOZHIKODE-673 010
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 25.11.2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (CAT).No.196 OF 2020
3
JUDGMENT
Shaffique, J The original petition has been filed challenging Ext.P4 order in O.A.No.180/00653/2019 dated 18.11.2019 of the Central Administrative Tribunal. The petitioners herein are the respondents in the aforesaid original application. The petitioners, by challenging the aforesaid order, submits that the Tribunal had committed serious error in directing the petitioners/respondents to consider grant of temporary status and regularisation to the applicants, in the light of the Apex Court judgment in Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors. [(2006) 4 SCC 1].
2. The applicants before the Tribunal are persons, who were engaged on temporary basis under the Revenue Intelligence Department and they are working as sweeper, sepoy and driver since 1998 and 1994. They are continuously working in the said Department.
3. Petitioners contended that the applicants were engaged by the Contractor to whom works were outsourced and wages were paid to them by the Contractor.
4. The Tribunal, however, arrived at a finding that in addition to the work of sweeping; the applicants/respondents used to OP (CAT).No.196 OF 2020 4 do the works relating to taking of photocopies, duties of sepoy, driving duty etc., for the Government Department. The Tribunal found that a concession has to be extended to the applicants/respondents especially in the light of observation made by the Apex Court in Umadevi's case (supra) especially paragraph No.53, which reads 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 OP (CAT).No.196 OF 2020 5 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.
5. Also at paragraph No.14 in Ashwani Kumar v. State of Bihar [(1997) 2 SCC 1], it was held as under:
14. In this connection it is pertinent to note that question of regularization in any service including any government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily-wage basis by a competent authority and are continued from time to time and if it is found that the incumbents concerned have continued to be employed for a long period of time with or without any artificial breaks, and their services are otherwise required by the institution which employs them, a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularize them so that the employees concerned can give their best by being assured security of tenure. But this would require one precondition that the OP (CAT).No.196 OF 2020 6 initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation in which the question of regularization may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by a competent authority and the irregular initial appointment may be regularized and security of tenure may be made available to the incumbent concerned. But even in such a case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment.
6. That apart, reference was made to orders passed by the Bengaluru Bench in O.A.Nos.170/907/2015 to 170/912/2015, which was confirmed by the High Court of Karnataka. Insofar as the Tribunal had only directed the petitioners to consider grant of temporary status and regularisation to the applicants, in the light of the Apex Court judgement in Umadevi's Case (supra), we do not think that this is a fit case in which we should interfere.
OP (CAT).No.196 OF 2020 7
7. That apart, we find from the materials placed on record that these persons had been usefully employed in the respective establishment, right from the date when they were being engaged and, therefore, it is not appropriate for us to interfere with the order passed by the Tribunal. The original petition is dismissed.
Sd/-
A.M.SHAFFIQUE, JUDGE sd/-
GOPINATH P., JUDGE AMV/26/11/2020 OP (CAT).No.196 OF 2020 8 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE OA NO.180/00653/2019 DATED 26.08.2019 FILED BEFORE THE CAT, ERNAKULAM BENCH ANNEXURE-A27 TRUE COPY OF THE ORDER F NO.DRI/CHN/MISC/2017/906 DATED 04.04.2019 ISSUED BY THE JOINT DIRECTOR ANNEXURE-A28 TRUE COPY OF THE ORDER F NO.DRI/CHN/MISC/2017 DATED 24.06.2019 ISSUED BY THE 6TH RESPONDENT ANNEXURE-A1 TRUE COPY OF THE APPOINTMENT ORDER NO.DRI/CLT/ESTT/94 DATED 01.02.1994 ISSUED BY THE ASSISTANT DIRECTOR ANNEXURE-A2 TRUE COPY OF THE ORDER F NO.DRI/CHN/ESTT./98 DATED 30.03.1998 ISSUED BY THE SENIOR INTELLIGENT OFFICER ANNEXURE-A3 TRUE COPY OF LETTER NO DRI/RU/ESTT./2004 DATED 30.12.2004 ISSUED BY THE ASSISTANT DIRECTOR ANNEXURE-A4 TRUE COPY OF THE LETTER F NO.DRI/CRU/ESTT/CONT/95/398 DATED 11.01.2001 ISSUED BY THE DEPUTY DIRECTOR ANNEXURE-A5 TRUE COPY OF THE LETTER D.R.I. F.NO.G-
25017/1/00-BG DATED 16.10.2001 ISSUED BY THE ADDITIONAL DIRECTOR ANNEXURE-A6 TRUE COPY OF THE LETTER F.NO.DRI/CRU/ADMN/2011 DATED 28.09.2011 ISSUED BY THE ASSISTANT DIRECTOR ANNEXURE-A7 TRUE COPY OF THE LETTER F.NO.DRI/CHN/ADMN/2011 DATED 11.10.2011 ISSUED BY THE JOINT DIRECTOR ANNEXURE-A8 TRUE COPY OF THE COMMON JUDGMENT IN WPC NOS 42814/2016 AND 55957-61/2016 OP (CAT).No.196 OF 2020 9 DATED 15.11.2016 ISSUED BY THE HIGH COURT OF KARNATAKA, BENGALURU ANNEXURE-A9 TRUE COPY OF THE ORDER DATED 27.10.2008 IN OA NO.145/2008 ISSUED BY THE SECTION OFFICER ANNEXURE-A10 TRUE COPY OF THE ORDER IN SLP DATED 01.09.2014 OF THE HON'BLE SUPREME COURT OF INDIA ANNEXURE-A11 TRUE COPY OF THE ORDER DATED 05.12.2014 OF THE HON'BLE SUPREME COURT OF INDIA ANNEXURE-A12 TRUE COPY OF THE ORDER NO.33/2017 DATED 15.03.2017 ISSUED BY THE CHIEF COMMISSIONER OF CENTRAL EXCISE, BANGLORE ZONE ANNEXURE-A13 TRUE COPY OF THE ORDER NO.73/2017 DATED 28.04.2017 ISSUED BY THE CHIEF COMMISSIONER OF CENTRAL EXCISE, BANGLORE ZONE ANNEXURE-A14 TRUE COPY OF THE LETTER F.NO/.C 18013/64/2018 AD.IIIB DATED 14.12.2008 ISSUED BY THE MINISTRY OF FINANCE, DEPARTMENT OF REVENUE ANNEXURE-A15 TRUE COPY OF THE ESTABLISHMENT ORDER (NGO) NO.14/2019 DATED 16.01.2019 ISSUED BY THE PRINCIPAL COMMISSIONER OF CENTRAL TAX, HYDERABAD ANNEXURE-A16 TRUE COPY OF THE ESTABLISHMENT ORDER (NGO) NO.24/2019 DATED 23.01.2019 ISSUED BY THE PRINCIPAL COMMISSIONER OF CENTRAL TAX, HYDERABAD ANNEXURE-A17 TRUE COPY OF THE ESTABLISHMENT ORDER (NGO) NO.44/2019 DATED 01.04.2019 ISSUED BY THE PRINCIPAL COMMISSIONER OF CENTRAL TAX, HYDERABAD ANNEXURE-A18 TRUE COPY OF THE ESTABLISHMENT ORDER (NGO) NO.45/2019 DATED 01.04.2019 ISSUED BY THE PRINCIPAL COMMISSIONER OF CENTRAL TAX, HYDERABAD OP (CAT).No.196 OF 2020 10 ANNEXURE-A19 TRUE COPY OF THE ESTABLISHMENT ORDER (NGO) NO.46/2019 DATED 01.04.2019 ISSUED BY THE PRINCIPAL COMMISSIONER OF CENTRAL TAX, HYDERABAD ANNEXURE-A20 TRUE COPY OF THE LETTER DATED 06.06.2017 ALONG WITH THE REPRESENTATION BY THE DEPUTY DIRECTOR ANNEXURE-A21 TRUE COPY OF THE LETTER ALONG WITH THE REPRESENTATION ISSUED BY THE ASSISTANT DIRECTOR DATED 26.05.2017 ANNEXURE-A22 TRUE COPY OF THE LETTER NO.DRI/CHN/ADMN/15 DATED 17.12.2015 ISSUED BY THE ASSISTANT DIRECTOR ANNEXURE-A23 TRUE COPY OF THE LETTER NO.DRI/CHN/ADMN/15 DATED 17.12.2015 ISSUED BY THE DEPUTY DIRECTOR ANNEXURE-A24 TRUE COPY OF THE DRI.F.NO.A-
22015/04/2016-ESTT.PART I) DATED 04.01.2017 ISSUED BY THE ADDITIONAL DIRECTOR ANNEXURE-A25 TRUE COPY OF THE LETTER/BZU/CHN/ADMIN./2017 DATED 26.05.2017 ISSUED BY THE ASSISTANT DIRECTOR DATED 26.05.2017 ANNEXURE-A26 TRUE COPY OF THE ORDER DATED 09.10.2018 IN OA NO.681/2017 ISSUED BY THE CAT, ERNAKULAM BENCH ANNEXURE-A29 TRUE COPY OF THE ORDER DATED 01.07.2019 IN CP(C) 35/2019 ISSUED BY THE CAT, ERNAKULAM BENCH EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN OA NO.180/00653/2019 DATED 28.10.2019 FILED BEFORE THE CAT, ERNAKULAM BENCH ANNEXURE R1 TRUE COPY OF THE SCHEME ISSUED BY THE DOP & T DATED ANNEXURE R2 TRUE COPY OF THE CLARIFICATION LETTER NO.DRI/CRU/ESTT/CONT/95/47 DATED 07.02.2002 ISSUED BY THE DEPARTMENT OF REVENUE OP (CAT).No.196 OF 2020 11 BOARDS IN THIS REGARD VIDE F.NO.18013/3-2015.AD.IIIB DATED 14.03.2017 ANNEXURE R4 TRUE COPY THE LETTER F.NO.C-
18013/67/2018-AD.IIIB DATED 10.12.2018 EXHIBIT P3 TRUE COPY OF THE MA IN OA NO.180/00653/2019 DATED 28.10.2019 FILED BEFORE THE CAT, ERNAKULAM BENCH EXHIBIT P4 TRUE COPY OF THE ORDER IN OA NO.180/00653/2019 DATED 18.11.2019 ISSUED BY THE CAT, ERNAKULAM BENCH RESPONDENTS EXHIBITS : NIL TRUE COPY P.A.TO JUDGE