Jammu & Kashmir High Court - Srinagar Bench
Abdul Rahim Mir & Ors vs Uma Devi & Ors (2006) 2 Sci Page 462 on 9 July, 2012
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No. 1466 of 2007 IA No. 2598 of 2007 Abdul Rahim Mir & Ors Petitioners Union of India and ors Respondents !Mr. Asif Maqbool, Advocate ^Mr. S. A. Makroo, Advocate Honble Mr. Justice M. M. Kumar, Chief Justice Honble Mr. Justice Hasnain Massodi, Judge Date:09/07/2012 : J U D G M E N T :
1. The instant petition filed under Article 226 of the Constitution of India read with Section 103 of the Constitution of State of Jammu and Kashmir, challenges the judgment and order dated 19.07.2007 rendered by Chandigarh Bench of the Central Administrative Tribunal ( for brevity the Tribunal), holding that the petitioners could not avail any benefit from the scheme known as Casual Labourers (Grant of Temporary Status & Regularisation) Scheme of India, 1993 because Clause 4 of the scheme required the petitioners in employment as casual labourers on the date of commencement of the scheme and that they should have rendered continuous service of at least one year i.e. 240 days in an year.
2. The Tribunal has recorded categoric finding that the writ petitioners were disengaged with effect from 10.10.1992 for a period of more than two years. For grant of temporary status or for regularisation they were required to be in the employment of the department on the date of issuance of Office Memorandum incorporating the 1993 Scheme. They were thus found to be out of job on 01.09.1993 when the scheme of 1993 came into force. In that regard reliance has been placed on the observations made by the Honble Supreme Court in case of Union of India and anr v. Mohan Pal and ors, (2002) 4 SCC 573. According to the view expressed by Honble the Supreme Court in Mohan Pals case (supra), the scheme of 1993 was not an ongoing scheme and the temporary status could be conferred on casual labourers under that scheme only by virtue of clause 4 of the scheme. The said condition of the scheme stipulated that the casual labourer should have been in employment as on the date of commencement of the scheme. The view of the Tribunal is discernible from the following operative part of the order, which reads thus:-
8. It is not disputed that the applicants were engaged prior to issuance of Scheme, 1993.
However, learned counsel for the respondents strenuously argued that the applicants were dis- engaged with effect from 10.10.1992 for a period of more than two years and as per the Scheme, 1993 for grant of temporary status and regularisation of casual workers clearly stipulates that the casual workers who were in employment on the date of issue of D.M and had rendered a continuous service of at least one year would be conferred temporary status. In the case before us, the applicants were out of job when the Scheme, 1973 came into force. This fact is not disputed by the applicants. The Apex court in the case of Mohan Pal (supra) has held that we make it clear the Scheme of 1.9.1993 is not an ongoing Scheme and the temporary status can be conferred on the casual labourers under that Scheme only on fulfilling the conditions incorporated in Clause 4 of the Scheme, namely they should have been casual labourers in employment as on the date of the commencement of the Scheme and they should have rendered continuous service of at-least one year i.e. at least 240 days in a year or 206 days in case of offices having 5 days a week. The ratio of the above mentioned judgment is fully applicable to the cases before us. Learned counsel for the applicants states that the breaks given in the service of the applicants be ignored in view of judgment dated 22.8.2003 passed by this Bench of the Tribunal in T. A. No.30/JK/2003. On the contrary, learned counsel for the respondents has stated that had the judgment passed by the Honble Supreme Court in the case of Mohan Pal (supra) been brought to the notice of the Tribunal, the position would have been different, as the Apex Court has specifically held the Scheme of 1.9.1993 is not an ongoing Scheme and the temporary status can be conferred on the casual labourers under that Scheme only on fulfilling the conditions that they should have been casual labours in employment as on the date of the commencement of the Scheme and they should have rendered continuous service of at least one year.
9. The Court is also aware of the latest law laid down by the Honble Supreme Court in the case of Secretary, State of Karnataka & ors. Versus Uma Devi & Ors (2006) 2 SCI Page 462, wherein the Apex Court has held that adhoc, temporary and daily wager employees cannot claim regularisation. Under these circumstances, we find that there is no case whatsoever for regularisation of the applicants.
3. In the present case the petitioners were disengaged with effect from 10.10.1992 for a period of more than two years as already observed. On 01.09.1993, when the scheme commenced, they were not in service. The second condition was that each one of them should have rendered continuous service of at least one year i.e. at least 240 days in a year. The petitioners do not satisfy the aforesaid conditions.
4. The Tribunal has touched another aspect and has taken the view that in any case no benefit could be given to the petitioners by issuing directions for regularisation as it would amount to nullifying the effect of judgment rendered by the Constitution Bench of Honble Supreme Court in the case of Secretary, State of Karnataka & Ors v. Uma Devi and ors (2006)4 SCC 1, wherein it has been laid down that adhoc/temporary and daily wage employees cannot claim regularisation as it would amount to gaining entry into public employment by a backdoor. Such a course would be a complete negation of the well settled principle of fair play enshrined by Article 14 and 16 of the Constitution of India.
5. We have heard learned counsel for the parties at a considerable length and are of the view that this petition is devoid of merit and thus required to be dismissed.
6. The judgment of the Honble Supreme Court in Mohan Pals case (supra) deals with the scheme in question and the judgment would be fully applicable. According to the view expressed by Honble the Supreme Court the scheme did not postulate conferring of temporary status on all casual workers as and when they complete continued service for a period prescribed under Clause 4. Honble the Supreme Court has gleaned main features of the scheme which are spelt out below in ex tenso:-
The matter relates to the grant of temporary status to the casual workers in some of the departments of the appellants. The Department of Personnel and Training of the Government of India formulated a scheme for the grant of temporary status and regularisation of the services of casual labourers working in the various departments under the Government of India. The Scheme came into effect from 1-9-1993. Clause 3 of the Scheme stated that it would apply to all Government of India and their attached and subordinating offices, and that this Scheme may not apply to the Railways and Telecommunications Departments. The Supreme envisaged conferring of temporary status on all casual labourers who had worked for at least 240 days in a year (2006 days in the case of officers observing 5 days a week). The main features of the Scheme are as follows:-
1. Conferment of temporary status on casual labourers would not involve any change in their duties and responsibilities and the engagement will be on daily rates on need basis.
2. The casual labourers who acquire temporary status will not however, be brought on to the permanent establishment unless they are selected through regular selection process for Group D posts.
3. The wages and wage rate will be fixed at the minimum of the pay scale for a corresponding regular Group D official including DA, HRA and any other welfare measures
4. Benefits of increments of the same rate applicable to a Group D employee would be taken into account for calculating pro rate basis and the leave entitlement would also be on a pro rata basis viz. one day for every 10 days of work.
5. Maternity leave to lady casual labourers would be permissible on a par with Group D employees.
6. It is also made clear that 50% of the service rendered under the temporary status would be counted for the purpose of retirement benefits after regularisation.
7. After rendering three years continuous service after conferment of temporary status, the casual labourers would be treated on a part with temporary Group D employees for the purpose of contribution to general provident fund, and they would also be eligible for the grant of festival advance, flood advance on the same conditions as are applicable to temporary Group D employees.
8. They would be entitled to productivity-linked bonus/ad hoc bonus only at the rates applicable to casual labourers.
7. Dealing with clause 4, Honble the Supreme Court expressed the following view in para nos. 5 and 6, which reads thus:-
5. The first question is to be decided on the basis of the interpretation of clause 4 of the Scheme. As already noticed, the Scheme came into effect from 1-9-1993. Clause 4 (1) of the Scheme reads as follows;
temporary status:-(1) temporary status would be conferred on all casual labourers who are in employment on the date of issue of this OM 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)
6. Clause 4 of the Scheme is very clear that the conferment of temporary status is to be given to the casual labourers who were in employment as on the date of commencement of the Scheme. Some of the Central Administrative Tribunals took the view that this is an ongoing scheme and as and when casual labourers complete 240 days of work in a year or 206 days ( in case of offices observing 5 days a week), they are entitled to get temporary status. We do not think that clause 4 of the Scheme envisages it as an ongoing scheme. In order to acquire temporary status, the casual labourer should have been in employment as on the date of commencement of the Scheme and he should have also rendered a continuous service of at least one year which means that he should have been engaged for a period of at least 240 days in a year or 206 days in case of offices observing 5 days a week. From clause 4 of the Scheme, it does not appear to be a general guideline to be applied for the purpose of giving temporary status to all the casual workers, as and when they complete one years continuous service. Of course, it is up to the Union Government to formulate any scheme as and when it found necessary that the causal labourers are to be given temporary status and later they are to be absorbed in Group D posts. (Emphasis added)
8. A perusal of the aforesaid paras of the judgment of Honble the Supreme Court make it patently clear that on the date of commencement of the scheme a casual labourer has to be in the employment and should satisfy the condition of completing 240 days. The scheme did not lay down any principle of general application that whosoever completed 240 days irrespective of the date of completion, such a casual labourer was to be conferred the temporary status. It is pleaded case of the writ petitioners that they were not in service on 01.09.1993. Such being the position on facts and the law laid down by their Lordships of the Supreme Court, there is no option but to reject the claim made by the writ petitioners. Accordingly, we are of the view that the Tribunal has not committed any error while applying the ratio of the judgment in Mohan Pals case to the facts of the present case.
9. Even on second issue we are in agreement with the view taken by the Tribunal because a five-Judge Constitution Bench in Uma Devis case (supra) has authoritatively opined that the services of an employee are not to be regularised as it would amount to granting permission which would violate Article 14 and 16(1) of the Constitution. Therefore, even on second issue, the writ petitioners have hopeless case.
10. The argument of the learned counsel for the writ petitioners that there were notional breaks and the same were required to be ignored, would not require any detailed consideration. The finding recorded by the Tribunal is that the writ petitioners were disengaged for more than two years which cannot be regarded as notional break. However, the fact remains that the writ petitioners were not in service on the crucial date fixed by the scheme i.e. 01.09.1993. In view of the law laid down by the Honble Supreme Court in Mohan Pals case, such an argument would not even arise.
11. As a sequel to the above discussion, this petition fails and the same is dismissed.
(Hasnain Massodi) (M. M. Kumar)
Judge Chief Justice
Srinagar
09.07.2012
Anil Raina, Secy