Central Administrative Tribunal - Mumbai
Sh. Nishikant vs Union Of India (Uoi) And Ors. on 31 July, 2002
Equivalent citations: 2003(2)SLJ258(CAT)
ORDER Shanta Shastry, Member (A)
1. Applicant is challenging the order of the Director of Mines Safety, Dhanbad dated 3rd March, 2000 offering the post of Chowkidar to Respondent No. 5 by ignoring the legitimate claim of the applicant and not regularising him.
2. The applicant was sponsored by the Employment Exchange, Nagpur for employment as casual labour as Mali. The applicant appeared for the interview and was found suitable and selected vide letter dated 20.11.1987. He was thereafter appointed as casual labour on daily wages at the rate of Rs. 21.90 P. per day as per order dated 29.1.1988. Accordingly, the applicant joined service on 29.1.1988.
3. On 21.2.1989, the Respondent No. 2 issued O.M. wherein guidelines were issued for engagement of casual labour and persons on daily wages. This memo indicated the number of casual workers in different zones on different work. A note was given below the O.M. indicating certain posts, that the work of gardner, Western Zone, Nagpur Pump Operator at Parasiai and Safaiwalas at Bermo and Digboi Sub-Regions shall be got done on part time basis on fixed monthly rates to the approved by H.O. After receipt of the aforesaid O.M. the post of Mali, on which the applicant was working, was converted to part time post in 1989. The applicant submits that this was without his knowledge as he continued to work as casual worker on regular basis even thereafter.
4. The applicant submits that one Shri Suresh Pandurang Khobragade was appointed as Chowkidar for holidays during day time only as casual labour with effect from 22.12.1988, he was also part time casual worker. In the meantime Shri Rajendra Prasad Dube, who was working as regular Chowkidar at Nagpur office was transferred to Hyderabad. Respondent No. 4, therefore, transferred Shri Suresh Pandurang Khobragade as regular chowkidar in the vacant post vide letter dated 12.11.1991. According to the applicant Shri Khobragade was appointed as part time chowkidar later than the applicant. Shri Khobragade was given the appointment order for regular post of chowkidar vide letter dated 15.7.1996.
5. The applicant further submits that another person Shri J.R. Meshram i.e., Respondent No. 5 was engaged as casual worker for guarding the office on every Saturday, Sunday and gazetted holidays on daily wages of Rs. 21.90 vide memorandum dated 17.12.1991. After Shri Khobragade was appointed as regular chowkidar, Respondent No. 4 transferred the services of Shri J.R. Meshram to the vacant post of Chowkidar at Nagpur under order dated 07.8.1996. His services were regularised by the impugned order dated 3.3.2000. Thus the respondents kept regularising the services who were junior to the applicant while denying regularisation to the applicant. The applicant submits that some other junior persons were also regularised namely Shri Shivcharan Kumbhar and Kundan Razak.
6. The applicant had submitted a letter on 31.5.1993 requesting for upgradation on a regular basis. He submitted further letters on 7.12.1998 and 21.12.1999 for absorption of his services. But the Respondent No. 1 consistently refused to regularise the applicant's services vide letter dated 27.7.1993, 4.1.1994 and 27.1.1999. Different reasons were given for non-regularisation of his services, such as there being no provision for regularisation of part time worker, sanction of the Ministry of Finance were needed etc. According to the applicant, the respondents did regularise two part time juniors namely Shri Khobragade and Shri J.R. Meshram. Therefore, it is not justified to say that part time worker could not be regularised.
7. The applicant further submits that there was no ban on filling up of peon post and guidelines were issued for regularisation of casual employee on daily wages. The applicant fulfils all the conditions. Though he was part time worker, he was required to do the full time work on all days to maintain the big garden under the control of respondents.
8. In 1993, the Government of India, Department of Personnel and Training introduced scheme of casual labour (Grant of Temporary Status and Regularisation) Scheme, 1993 which came into effect from 01.10.1993. However, the applicant was not considered for regularisation even under this scheme.
9. The respondents have taken the preliminary objection stating that the applicant is trying to mislead the Court. Since 1988 the applicant was gardening for about one hour till April, 1999 and from May, 1999 onwards the office of Respondent No. 4 shifted to sixth floor of the C.G.O. Complex building and only there are about 60 flower pots to be watered. The time required is only half an hour, there is no work at all for the rest of the day. Therefore, the relief of regularisation sought by the applicant is totally misconceived. In fact, the respondents have decided to take the review of the work done by the applicant and also the review of the continuance of or otherwise of the part time services of the applicant.
10. Secondly, according to the respondents, the O.A. is barred by limitation. The applicant has submitted his representation on 31.5.1993 and the request of the applicant was turned down on 8.1.1994, the applicant has approached in 2000. Thus, it is totally barred by limitation.
11. It is true that the applicant was given a reply in 1994 that he could not be regularised and that the applicant approached belatedly. There is no application for condonation of delay either. However, the applicant has approached this Tribunal against the impugned order of 3.3.2000 whereby a junior to him has been absorbed ignoring the applicant's claim. As such a fresh cause of action has arisen and therefore, there is no delay.
12. Coming to the merits, the respondents submit that the applicant was performing the work of part time Mali on consolidated basis. He could not therefore, be regularised as per instructions of Government of India vide DOP&T dated 1.6.1988, wherein it has been provided that recruitment of daily wages may be made only for work which is casual or seasonal or intermittent nature or for work which is not of full time nature, for which regular posts cannot be created. Therefore, there is no question of ignoring the legitimate claim of three applicant. The respondents have not denied that Shri Suresh Khobragade was engaged in a vacancy of chowkidar with effect from 12.11,91 and was regularised on 15.7.1996. According to the respondents, the applicant cannot be equated with Shri Khobragade, because the appointment of Shri Khobragade was to a full time post. Similarly, in case of Shri Meshram, he was engaged as a casual chowkidar regularly with effect from 7.8.1996 and was absorbed vide letter dated 3.3.2000. So only those who were working as casual chowkidar were absorbed in the regular post of chowkidar. Applicant could not be considered as he was only a part time Mali on consolidated wages. The applicant did not fulfil the guidelines/instructions of Government of India for regularisation and therefore, the applicant has no case.
13. I have heard the learned Counsel for the applicant as well as the respondents. It is not denied that the applicant was appointed after being sponsored through Employment Exchange to the post of Mali as a casual worker. The applicant continued to work as Mali. According to the respondents, the post of Mali was only a part time post as per the review carried out and as such he could not be regularised. In my considered view, there is no bar to regularise those casual workers who are on part time basis. This view was taken by the Ernakulam Bench of the Tribunal stating that the Casual Labour (Grant of Temporary Status and Regularisation) Scheme is applicable even to part time casual labour putting in double of service requiring of full time casual labourers for entitlement to temporary status. The Full Bench of the Tribunal confirmed this view in Sakhubai v. Secretary, Ministry of Communications, CAT (FB) III 209. It was also held that the principles stated by the Ernakulam Bench is based on the interpretation of the scheme as the scheme referred only to casual labour without referring whether it is for full time or part time as well. Therefore, keeping in view, the judgment of the Full Bench of the Tribunal, the applicant is entitled to regularisation of his services by counting double qualification service prescribed for full lime casual labours. Therefore, even a part time casual worker ought to be considered for temporary status and regularisation.
14. The respondents state that they do not require the services of a Mali now and they have shifted to sixth floor of the C.G.O. complex, where there is no garden but there are only 50 flower pots which need to be watered. While this factual position may have to be accepted, at the same time, it is noted that the applicant was sponsored by the Employment Exchange for casual work job and he was placed as Mali. Nothing prevented the respondents from transferring him to some other post of casual labour. It is not his fault if subsequent to his appointment, the workload was reduced and the working hours were also reduced. He cannot be denied regularisation, it is the respondent's own decision. As the applicant had put in so many years of service, he could have been taken in place of Shri Khobragade when a vacancy arose instead of hiring as fresh hand. It is not necessary that he should be absorbed only as a Mali, Whether, it is a Mali or Chowkidar, all were casual labour and if he could not be accommodated in the post of Mali, the respondents ought to have absorbed him elsewhere considering that he has put in long service from 1988 till 1999. I, therefore, hold that the applicant is entitled to be considered for regularisation against any Group-D post and direct that the respondents shall consider the applicant for regularisation against the first immediate vacancy occurring in Group-D post. Accordingly, the O.A. is allowed. No costs.