Central Administrative Tribunal - Mumbai
Nareshkumar Rajaram Dingia vs M/O Finance on 19 January, 2024
H Od No.S96/2018
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAT BENCH, MUMBAI
ORIGINAL APPLICATION No. 5962018
Dated this Foudou the ce January, 2024
mal
CORAM : Hon'ble Mrs. Harvinder Kaur Oberoi, Member(J)
Hon'ble Mr. Shri Krishna, Member(A)
Nareshkumar Rajaram Dingia
aze 45 years, lastly working as
Sweeper in the Office of Commissioner
of Income Tax (Appeal) HI Pune
and residing at Survey No.i4,
Ward No.5, Ram Nagar, Yerwada,
Pune -- 411 006. -Applicant
(By Advocate Ms. Kavita Anchan with Shri Sai Kumar Ramamurthy)
to
43
Versus
Union of India
through the Secretary,
Ministry of Finance, Government of
Indis, North Block,
New Delhi - 110 O11.
The Principal Chief Commissioner
of Income Tax, Pune, 226,
Aayakar Bhavan, 12,
Sadhu Vaswani Chowk,
Pune -- 400 009,
The Commissioner of Income
Tax (Appeals-Hl) Pune
8.0. Bhawan, Pune-satara Road,
Bibwewadi Comer, Parvati,
Pune ~ 411 009.
The Assistant Commissioner
of Income Tax, Tax Circle-1,
{Admn) Pune Aayaar Bhuvan, Sadhu
2 Oa No. 596/201
Vaswani Chowk, Pune 411 009, - Respondents
(By Advocate Shri B.R. Shetty )
ORDER
Per: Ms. Harvinder Kaur Oberoi, Member Gh Applicant was appointed as Sweeper on contract basis in the office of the respondents vide letter dated O72 August, 1998 initially, for a period of six weeks. Applicant continued to work in the same capacity and. was in continuous employment from August, 1998 tll his oral termination in the year 2004, He had worked almost for 7 years and more than 240 days in every year. He submits that during the entire period of his work, he was paid wages by the respondents at the proper rates as per minimum wage bill. Applicant initially approached the Tribunal, vide OA No.520/2005 seeking to challenge his oral termination and seeking relief of regularisation. The said OA was disposed of by order dated 03% October, 2006 granting liberty to applicant to make a representation to the respondents, with direction to respondent No.2 to consider the representation, in accordance with DoPT OM dated 06% June, 2002 and to pass 4 reasoned and speaking order thereof The applicant filed his representation dated 02° April, 2007 seeking sdusideraiion for appointment and regularisation. The said representation was rejected by respondents vide establishment order dated ogt June, 2007. Thus, 3 0 OA No. 586/20 1§ applicant again approached the Tribunal vide OA No.41/2008, challenging order dated 08" June, 2007 passed by the Commissioner of Income Tax (Appeals-II]) Pune . This OA was also disposed of by the Tribunal vide order dated 11" October, 2011. It was noted that applicant has made out a case for reconsideration for regularisation in view of the services rendered by him from 07" August, 1998 ull December, 2004 in addition to the services rendered till 23 September, 2005 in the office of the Commissioner of Income Tax (Appeals). IL The OA was allowed with direction to reconsider the case of the applicant in view of the additional services rendered by him. This order was challenged by the respondents. before the Hon'ble High Court in Writ Petition No.2776/2012, on the ground that the respondents had already noted that the applicant had rendered service in the office of the Commissioner of Income Tax (Appeals), Pune. The Hon'ble High Court was pleased to dispose of the Writ Petition, while keeping it open to the petitioner/Union of India to bring the factual error to the notice of the Tribunal by way of Review Petition, if so advised. Respondents filed Review Petition No.19/2013 before the Tribunal praying for reviewing the order dated 11° October, 2011 in OA No.41/2008. The same was rejected vide order dated Ui" April, 2014. Ultimately, a speaking order was passed by the Principal Chief Commissioner of Income Tax, Pune, vide order dated 27% August, 4 Od No, 586/205 § 2014 rejecting the case of the applicant for grant of regularisation in the post of Sweeper. This order dated 278 August, 2014 is the subject matter of challenge in the present OA which is the 3" round of litigation preferred by the applicant. Following prayers have been sought:-
"(a) that this Hon'ble Court be pleased to quash and set aside the impugned order dated 27 August. 2014 (Annexure A-1) passed by the respondent No.2.
(o) That this Hon'ble Tribunal he pleased to direct the respondents to reinstate the applicant back in service with all consequential benefits including continuity of service from the date of his eral termination in 2005, back wages, and with all other and further consequential service benefits as may be admissible to the applicant.
(fe) That this Hon'ble Court be pleased to direct the respondents lo re-consider the ease of the applicant for grant of temporary status and thereafter regularisation and. the applicant may be granted temporary status and also regularisation, (@) that such other and firther orders be passed as the facts and circumstances af the case, as may be required:
(e) that the casts of this application be granted."
2. Counsel appearing on behalf of the applicant submitted that this is a fit case where the case of the applicant ought to have been considered positively for grant of regularisation on the post of Sweeper/MTS as it is admitted case that the applicant had served the office of the respondents from August, 1998 to September, 2005. He has completed more than 240 days in every year is also admitted. There js no complaint against him.
The work being carried out by him is of perennial and regular nature, The (orn) DOA No, 5962018 vacancies are also available, respondents, therefore, cannot deny him what is due. Counsel has relied upon the judement in the case of Shri Manish Harishchandra Nijal & Grs. Vs. Union of India through the secretary, Ministry of Finance, Department of Revenue, New Delhi & Ors, CAT, Mumbai Benck, GA Nos 1152003 & Ors. Decided on 27% Octaber, 2003 wherein the OAs were allowed and identically placed individuals were considered. This order of the Tribunal was challenged before the Hon'ble High Court at Bombay in Writ Petition No.9201/2003 & Ors. and the High Court had passed the order dated 23" Ine, 2004, The relevant para is reproduced here for ready reference:
"From the above, it would be seen that the Tribunal has conferred regular temporary status only on three employees and had directed consideration of the others on occurrence of the vacancies, We, see no reason why this order should be interfered with as there is no illegality in that order. Hence, Petitioners fail and are dismissed."
3. The applicant submitted that in pursuance to these directions, similar and identically placed individuals were not only granted temporary status but they were regularised and are serving on regular basis. The applicant has, therefore, claimed similar treatment and is claiming the same relief in the present OA.
4. Respondents have filed their reply and are contesting the OA. It has been stated that applicant was engaged as contract labour purely on temporary basis for a period of six months vide letter dated o7® 6 Ca No. 596/2018 September, 1998 issued by ACIT, Circle 1(1} (Admn.} Pune. He was subsequently engaged in the office of CITA), Pune by virtue of office order of CIT(A)-IH, Pune dated 01% February, 2005. The post of Group D employees including that of Farash (sweeper) has been merged and re- designated as Multi Tasking Staff (MTS) wef 17" January, 2011. The office of Principal CCIT is the competent authority to decide the issue of appointment and regularisation of the erstwhile post of Farash, presently termed as MTS after merger of the erstwhile posts of Farash, Daftary, Night Watchman, Peon, Group D. As per extant rules, the qualification of a person to be appointed as MTS is two fold: namely his/her age should be between 18 to 25 years and he/she should have completed 10% standard by way of education.
5. In the case of Shri Dingia/applicant, he was employed on contract basis w.e.f, 07" August, 1998 by ACIT, Cirele-1(1), Pune. The applicant worked with ACIT, Cirele-1(1), Pune from time to time di 2001. Later he worked with CIT(A)-IN, Pune in the year 2005. It is brought out here that neither ACIT nor CIT (A)-IIL is the competent authority to employ Farash (S weeper), The Pr, CCIT (then CCIT (CCA) is the competent authority to employ Farash (sweeper). Further, he has not been appointed against any vacant post. He was engaged as casual labour purely on temporary basis, The employment of Shri Naresh Kumar po GA Na 5862018 Dingia is, therefore, an illegal employment which cannot be regularised in view of the following judgments of Supreme Court:
(1) Secretary, State of Karnataka Vs. Uma Devi (2006) 45 CC OI Constitution Bench (five judges) (2) Offtcial Liquidator Vs. Dayanand (2008) 10 SCC OL. -- (3) State of Rajasthan F Dayaial & Ors. (2011) 2. SCC 429. () MP State co-op Bank Lie, Bhopal Vs. Namdev Yadav (2007) 8 SCC 264.
(3) MSRTC K Casteriba Rajya Parivahan Karmachari Sangathan (2009) § SCC S36 and number of other cases.
6. The issue of absorption/regularisation of temporarily engaged casual/daily rated employees has been extensively dealt with by the Constitution Bench of Hon'ble Supreme Court in the matters of Uma Devi (supra). The relevant paragraphs of the above judgment for the purposes of the isstie involved in this case are reproduced as under:
"44. The concept of 'equal pay Jor equal wark' is different jrom the concept of conferring permanency on those who have been appointed on ad hee basis, temporary basis, or based on no process of selection as envisaged by the Rules. This Court has in various decisions applied the principle ef equal pay Jor equal work and has laid down the parameters for the application of that principle. The decisions are rested an the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf But the acceptance of that principle eannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent ar issue directions ta treat them as permanent, Doing so, would he negation of the principle of equality of opportunity, The power fo make an order as is necessary for doing complete justice in any cause ar matter pending before this Court, would not normally be used for giving the go-by te the procedure established by law in the matter of publie employment. Take 3 OA No, 38622018 the situation arising in the cases before us from the State of Karnataka. Therein, after the Dharwad decision, the Government had issued repeated directions and mandatory orders that no temporary or ad hec employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give emplayment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constinuion of India permitting those persons engaged. to he absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be Justice according to law and though it would be open to this Court to mould the relief this Court would not grant a relief which would amount to perpetuating an illegality.
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 af time. It is not as if the person who accepis an engagement either temporary or casual in nature, is not aware of the nature of his employment. He aecepts the employment with eves 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 ihe 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 mature on the ground that the parties were not having equal bargaining power, that too would nat enable the court te grant any relief to that eniployee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if iniposed, would only mean that some people who at least get employment femperarily, contractually or casually, would not be geiting 9 | Od No. 5962018 even that employment when securing of such employment brings at least some succor to them. After all, lumanerable 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 knaws the nature of his employment. It is net 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 ar the interest in that past cannot be considered fo 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 werking 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 af constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India,
46. Learned Senior Counsel for some of the respandents argued that an the basis of the doctrine of legitimate expectation, the employees, especially of the Commercial Taxes Department, should be directed to be regularized since the decisions in Dharwad (supra), Piara Singh (supra), Jacob, and Gujarat Agricultural University and the like, have given rise to an expectation in them that their services would also be regularized The doctrine can be invoked if the decisions of the Administrative Authority affect the person by depriving him af some benefit or advantage which either () he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity te comment; or (ii) he has received assurance fram the decision-maker that they will not be withdrawn without giving him first an apportunity of 10 D4 No $96/2018 advancing reasons for contending that they should not he withdrawn {See Lord Diplock in Council of Civil Service Unions VO Minister for the Clvil Service (i983 Appeal Cases
374), National Buildings Construction Corpr, Fs. 8 Raghunathan, (1998 (7) SCC 66) and Dr Chanchal Goyal Vs, State of Rajasthan (2003 (3) SCC 485), There is no case that any assurance was given by the Government or the concerned department while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it. The very engagement was against the constitutional scheme.
theugh, the Commissioner of the Commercial Taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out. No such promise could also have been held out in view of the circulars and directives issued by the Government afier the Dharwad decision Though, there is a ease that the State had made regularizations in the past of similarly situated employees, the fact remains that such regularizations were done only Pursuant to judicial directions, either of the Administrative Tribimal or of the High Court and in some ease by this Court. Moreover the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularized in the service though they had not been selected in terms of the rules for appointment. The fact thar in certain cases the court had directed regularization of the employees involved in thase cases cannot he made use of to jewnd a claim based en legitimate expectation. The argument if accepted would also run counter to the constitutional mandate. The argwnent in that behalf has therefore to be rejected,
47. When a person enters a femporary employment or gets engagement as a contractual or casual worker and the engagement is net based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being femiporary. 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 past could be made only by following a oppo. OA No.596/20)8 Proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theary of legitimate expectation cannot be successfully advanced by teniporary, contractual er 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 ihe theory cannot be invoked to seek a positive relief of being made permanent in the post.
48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the concerned department on a wage that was made loioven to them. There is no ease that the wage agreed upan was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis af the relevant rules. No right can be founded on an eniployment on daily wages to claim that such employee shauld be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming thai the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those whe have been employed on daily wages or temporarily or on contractual basis, te elain that they have a right to be absorbed in service. As has been held by this Court, they cannot be said toa be holders af a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. it cannot also be relied on to claim a right to be absorbed in service even though they have never heen selected in terms of 12 OA No. 3962618 the relevant recruitment rules. The arguments bsed on Articles 4 and 16 of the Constitution are therefore overruled."
7. In the matter of Uma Devi (supra), the Hon'ble Supreme Court has strongly disapproved absorption, regularisation or permanent continuance of temporary, contractual, casual daily wage or ad hoc employees appointed/recruited and continued for long in public employment de Aars the constitutional scheme of public employment. It has been observed that the Supreme Court and High Courts should not issue such directions unless the recruitment itself was made regularly and in terms of constitutional scheme. Such directions are certain to defeat the concept of social justice, equal opportunity for all and the constitutional scheme of public employment. Merely because an employee had continued under cover of an order of the court under litigious employment' or had been continued beyond the term of his appointment by the State or its instrumentalities, he would not be entitled to any right to be absorbed or made permanent in service, merely on the Strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. However, an exception has been carved out in para 53 of the judgment and the Union and the State Governments and their instrumentalities have been directed to set in motion the process for regular recruitment in cases where temporary or daily-wagers were employed against vacant sanctioned koe OA No. 596/2018 posts, and in cases of irregular appointments (not illegal appointments) of duly qualified persons against duly sanctioned vacant posts, who had continued to work for ten years or more, without the intervention of the orders of the courts or tribunals were to be considered for regularisation, within stx months of the date of judgment as a one time measure.
& Thus from the above, it is evident that it was the duty of the employee as also of the department, who was responsible to appoint and continue the said employee as a contractual/casual/daily wager/ad- hoc/temporary employee for a long period, to establish by producing relevant documents that such appointment was against the vacant posts, and that the employee was possessing the necessary qualification, for the post against which he was recruited under the rules, and fulfills other eligibility criteria such as age, caste, etc., that the engagement was as per constitutional scheme by inviting applications through wide publications or his name was duly sponsored by the employment exchange.
% Keeping in view the law laid down in Uma Devi (supra) as well as other judgments of the Hon'ble Supreme Court as also various circulars and schemes issued by the Union of India from time to time the Central Board of Direct Taxes vide its OM dated 18 November, 2008 has issued directions for regularisation of casual labourers/daily wagers, who were engaged prior te 10° April, 2006 and who are eligible for consideration 14 Od No. S86/201€ for regularisation by applying the criteria detailed in the instructions reproduced below:-
LG.
on "@) The applicant must have completed continuous service of ten years or more as daily wagers but the continuity of service as daily wagers for ten years or more should not be on account of some order of court,
(i) The applicant must have been appointed as daily wager against a duly sanctioned post, which was vacant at the relevant time.
the date of engagement) regarding education and age for the post for which the applicant is being considered for regularisation.
(iv) The applicant may have been engaged as daily wager by irregular means but his appointment as daily wager should not be illegal."
In the present case the applicant has not completed 16 years contract basis, neither he was employed through employment exchange, nor against a vacant post. The Respondents have also relied upon on 'Temporary Status and Regulation Scheme of 1993' issued by DoPT and other subsequent OM's vide their OM 49014/ 19-84-Bsti(C), dated 26.10.1984, 49014/18/84-Estt (C) dated 07.05.1985, 49014/2/93- Estt(C) dated 12.07.1994, where it has been clarified that, since it is mandatory to engage casual employees through an employment exchange, 15 OA No. S96/2018 the appointment of casual employee without going through an employment exchange is irregular.
il. Hon'ble Supreme Court in their decision in the case of Secretary, State of Rarmatka Vs. Uma Devi and Others have stated that if any appointments or engagements were made in the teeth of directions of the Government not to make such appointments it is impermissible to recognize such appointment made in the teeth of directions issued by the Government in that regard. The persons concerned are not legally entitled to any such relief Granting of relief claimed would mean paying a premium for defiance and insubordination by those concerned who engaged these persons against the interdict in that behalf. Hence, such casual employees cannot be bestowed with temporary status. They must have been appointed by an authority, which was competent to make such appointment.
i2. We have considered the rival submissions of the parties and perused the documents on record. It is trae that in the instant case the ACI, Cirele-1(1)(Admn.), Pune has appointed the applicant on contract purely on temporary basis vide his letter dated O7® August, 1998, However, no relevant appointment order has been produced to establish that he was appointed by a competent authority against the sanctioned vacancy as on 07 August, 1998. His name was also not sponsored by the 16 Od No. 596/203 8 Employment Exchange as per the records. There is also no record that his engagement was against a duly sanctioned post, which was vacant at that time. There is also no documentary evidence in support of the claim that the applicant completed 10 years of continuous service as on 118 C§ictober, 2011. The applicant has not filed any material in his Original Application also, to controvert the above finding except for certain wage bills and muster roll. On the basis of above facts alone, it cannot be presumed that the applicant was duly engaged by the competent authority as causal labourer against the sanctioned vacancy and that he continuously worked for a period of 10 years as on 11 October, 2011, which are the basic criteria for regularisation of his services in terms of Uma Devi's decision. £3. Shri N.R. Dingia is also seeking grant of temporary status and further regularization in Class IV category on the basis of DoPT OM dated 07" June, 1988 read with OM dated 06" June, 2002 as per para 10. of his Original Application No.41/2008 before CAT. However, as per DoPT Scheme of 1993, all casual labourers who have been appointed on or before 01% September, 1993 can only be considered for grant of temporary status and regularisation. In a decision of the Hon'ble Supreme Court in the case of Union of India & Another Vs, Mohan Pal etc. tin SLP (Civil) No.2224/2000), the Hon'ble Court held that "The scheme of 1993 is not an ongoing scheme and the temporary status can be conferred Se 17 OA No. S96/201& on the casual labourers under the scheme only fulfilling the conditions incorporated in clause 4 of the scheme viz. that they should have been vausal labourers in employment on the date of commencement of the scheme and they should have rendered continuous service of at least one year Le. at least 240 days in a year or 206 days (in case of offices having five days a week).....". Since Shri N.R. Dingia was not in employment on June, 1988 read with OM dated 06" June, 2002 cannot be applied to his case.
14, As per the records, the date of birth of Shri Dingia is 08"
June, 1969 and his educational qualification is sixth standard pass. As such, even otherwise, he is ineligible being overaged and for not possessing desired qualification. In view of the above, the Original Application is bereft of merit and is dismissed, Pending MAs, if any, stand closed. No casts.
(Mr Shri kishway" : (Harvinder Kaur Oberoi) Member (A} Member () Mea.