Central Administrative Tribunal - Delhi
Sumitra Devi vs M/O Finance on 30 August, 2024
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Item No. 73 (C-4) OA 278/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A No. 278/2021
Reserved on :22.08.2024
Pronounced on :30.08.2024
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member (A)
Smt. Sumitra Devi
W/o Sh. Anand Kkumar
R/o H. No. 87/28, Jawahar Nagar,
Near Gautam Shiksha Sadan
Sonepat-121001 (Haryana) ...Applicant
(By Advocate : Mr. R. K. Shukla)
Versus
1. Union of India
Through Secretary
M/o. Finance, North Block, New Delhi.
2. The Secretary, Department of Personnel and Training,
North Block, Central Secretariat,
New Delhi, Delhi 110001.
3. Chief Commissioner, Central Excise and Customs,
C. R. Building, I. P. Estate, New Delhi.
4. Joint Commissioner Cadre Controlling Authority
O/o. The Principal Chief Commissioner of Central,
Goods and Services Tax (Delhi Zone)
Central Revenue Building,
C. R. Building, I. P. Estate, New Delhi.
5. Under Secretary,
Central Board of Excise and Customs,
Ground Floor, Hudco, Vishakha Building
Bikaji Cama Place, R. K. Puram,
New Delhi. ...Respondents
(By Advocate : Mr. Ranjit Singh for Mr. K. M. Singh )
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Item No. 73 (C-4) OA 278/2021
ORDER
Per Hon'ble Dr. Sumeet Jerath, Member (A) :
The instant OA has been filed by the applicant Smt. Sumitra Devi seeking the following reliefs :-
"8.1 To quash and set aside the impunged order dated 27.10.2020 directing the respondents i.e. Chief Commissioner of Central Excise and Customs, C.R Building, I.P.Estate, New Delhi to frame a scheme on the pattern of scheme dated 10.02.2020 formulated by Commissioner of GST & Central Excise, Tamil Nadu and Pondicherry in regard to the regularization of the part time casual labour extending the benefits of judgment of Madras High Court.
8.2 To direct the respondents to consider regularization in terms of concurrence given by DOPT to Commissioner ate of Tamil Nadu and Pondicherry.
8.4 To declare that the judgment of Madras High Court is a declatory law and up held by Hon'ble Apex court in respect of all part time casual labour."
2. The factual matrix of the case as per the applicant is that she was appointed as Part-Time paid staff (Sweeper) on 01.06.1993 and since then she has been continuously working as such. By way of this OA she is seeking regularization of her services.
3. The learned counsel of the applicant made the submission that in the year 2007 the mode of employment of the applicant was changed and it was made through contractor. Aggrieved, the applicant made various representations from 3 Item No. 73 (C-4) OA 278/2021 time to time seeking regularization, but to no avail. He further submitted that on 29.07.2015 a letter was issued by the Ministry of Finance calling the names of both kinds of Daily Wagers who were covered and not covered under the Scheme of Regularisation dated 10.09.1993. The names of other Daily Wagers were sent by the respondents ignoring the name of the applicant. He averred that on 26.10.2015, vide response to her RTI application, she came to know that the similarly placed counterparts were regularised and appointed to the post of MTS. Aggrieved, the applicant filed OA No. 3472/2016 which was dismissed by the Single Bench of this Tribunal on 20.07.2018. Thereafter, through W.P.(C) No. 8458/2019, the applicant challenged the order of this Tribunal dated 20.07.2018. However, the Hon'ble High Court directed the applicant to make a fresh representation to the respondents. Meanwhile, an Order No. 13/2020 Scheme of Regularisation dated 10.02.2020 on the subject - Regularisation of Casual Labourers consequent to the issue of "Part-Time Casual Labourers (Regularisation) Scheme of CBIC 2020" was issued by the respondents pursuant to which the applicant made a detailed representation dated 31.08.2020 to the respondents seeking regularization which was rejected vide impugned order dated 27.10.2020. Hence the OA.
4Item No. 73 (C-4) OA 278/2021
4. However, the learned counsel of the respondents vehemently opposed the submissions of the counsel of the applicant and argued as follows :-
"The applicant was appointed as a part time paid staff (Sweeper) from 01.06.1993 to 31.03.1994 vide office order dated 02.03.1994 issued by Central Excise Division, Sonepat. Her appointment was extended w.e.f. 01.04.1994 vide order dated 13.04.1994. Her services were discontinued w.e.f. September 2005."
5. Counsel for the respondents further argued that the applicant served a legal notice to the respondents seeking regularization in terms of OM dated 10.09.1993 or in terms of office order dated 10.02.2020 issued by the Chennai Zone. According to the respondents the claim of the applicant for grant of temporary status under OM dated 10.09.1993 was inadmissible as she was a part time paid staff and had not completed one year of continuous service as on 10.09.1993. He further stated that the applicant's claim for regularization under the "Part Time Casual Labourers (Regularisation) Scheme of CBIC 2020" was not eligible for consideration due to the following reasons :-
"i. Applicant was not a petitioner in any of the WP/CP filed before the Hon'ble High court of Madras.
ii. Applicant had not complete 10 years of continuous engagement as part-time casual labourer in concerned Department as on 19.07.2011 (date of Hon'ble High Court's order);5 Item No. 73 (C-4) OA 278/2021
iii. Applicant was not possessing required educational qualification as per Recruitment Rules of Group 'C' post against which the part time casual labourers are considered for regularization."
Moreover, he added that the applicant had not completed continuous service of 10 years as on 19.07.2011 and the educational qualification of the applicant being 5th passed was not in consonance with the requirement of Matriculation for recruitment in Group 'C' post.
6. Heard the learned counsel of both the sides ; examined the documents on record and perused the relevant judgments of the Hon'ble Apex Court, High Court and CAT. We have observed that the applicant was appointed as part time paid staff (Sweeper) on 01.06.1993 and continued to work till 31.08.2005 under the jurisdiction of Central Excise Division, Sonepat. Thereafter, w.e.f. September, 2005 the applicant continued to discharge her duties as a Sweeper (the perennial and permanent job of keeping the working environment clean and hygienic) but she was not hired directly but indirectly through the Service Provider - M/s. Khatri, Security & Placement Services, Sonepat. She continues to work even today putting in by now more than 31 years of service continuously, first as a Government employee and now as a 6 Item No. 73 (C-4) OA 278/2021 contractual employee engaged by a contractor for outsourced work. However, the point to note that she is still discharging work which is of permanent and perennial nature.
7. The three objections raised by the counsel of the respondents are over ruled as follows :-
The first objection that the applicant was not a petitioner in any of the WP/CP filed before the Hon'ble High Court of Madras in WP No. 16773 of 2009 and WP No. 16889 of 2009 and is thus not entitled to any relief is over ruled by the settled principle of law in the Apex Court Judgment in case of State of Karnataka and Others vs. C. Lalitha (2006) which states that "service jurisprudence evolved by the Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the Court that would not mean that persons similarly situated should be treated differently."
This is further buttressed by the ratio given in Hon'ble Apex Court's judgment in case of K. I. Shephard that it is not necessary for every person to approach the Court for relief and it is the duty of the authority to extend the benefit of a concluded decision in all similar cases without driving every affected person to court to such relief.7 Item No. 73 (C-4) OA 278/2021
The second objection of the counsel of the respondents that the applicant had not completed 10 years of continuous engagement as part time casual labourer in concerned department as on 19.07.2011 (date of Hon'ble Madras High Court order) is also set aside by the point of facts in this case.
The applicant has been serving as Sweeper in Central Excise Department in Sonepat since 1st June, 1993 till the present date. She has completed more than 31 years of continuous service till date and as an employee on the rolls of the government - drawing salary from the Exchequer had completed 10 years of continuous service as on 31st May, 2003.
It was only from 1st September, 2005 that her status was changed from a Government employee to a contractual employee on the rolls of the contractor - M/s. Khatri Security & Placement Services, Sonepat. There was no fault of the applicant for this change of status from a 'government employee to a contractual employee' and she continued to discharge her basic duties of cleanliness which is permanent and perennial in nature. Also as per the ratio given in Hon'ble Apex Court's case in Uma Devi's case (2006), the applicant had discharged more than 10 years of continuous service from 01.06.1993 till 10.04.2006 - as a Government employee from 8 Item No. 73 (C-4) OA 278/2021 01.06.1993 to 31.08.2005 (more than 12 years) and then as a contractual employee from 01.09.2005 till present.
The third objection that the applicant does not possess the required educational qualification as per Recruitment Rules of Group 'C' post is also over ruled in terms of the ratio given in the judgment given by the Hon'ble Apex Court in Bhagwati Prasad and Others vs. Delhi State Mineral Development Corporation:-
"The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 and ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. In our view, three years' experience, ignoring artificial break in service for short period/periods created by the respondent, in the circumstances, would be sufficient for confirmation. If there is a gap of more than three months between the period of termination and reappointment that period may be excluded in the computation of the three years period. Since the petitioners before us satisfy the requirement of three years' service as calculated above, we direct that 40 of the senior-most workmen should be regularised with immediate effect and the remaining 118 petitioners should be regularised in a phased manner, before April 1, 1991 and promoted to the next higher post according to the standing orders. All the petitioners are 9 Item No. 73 (C-4) OA 278/2021 entitled to equal pay at par with the persons appointed on regular basis to the similar post or discharge similar duties, and are entitled to the scale of pay and all allowances revised from time to time for the said posts. We further direct that 8 OA. No.1291/2019 Item No. 55 (C-4) 16 of the petitioners who are ousted from the service pending the writ petition should be reinstated immediately. Suitable promotional avenues should be created and the respondent should consider the eligible candidates for being promoted to such posts. The respondent is directed to deposit a sum of Rs. 10,000 in the Registry of this Court within four weeks to meet the remuneration of the Industrial Tribunal. The writ petitions are accordingly allowed, but without costs."
8. Hon'ble Apex Court in its judgment in the case of Vinod Kumar & Ors. Etc vs. UOI & Others arising out of SLP (C) No. 22241-42 of 2016 dated 30.01.2024 has stated as under :-
"7. The judgement in the case Uma Devi (supra) also distinguished between "irregular" and "illegal" appointments underscoring the importance of considering certain appointments even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made illegally if they had followed the procedures of regular appointments such as conduct of written examinations or interviews as in the present case. Paragraph 53 of the Uma Devi (supra) case is reproduced hereunder: "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 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 the courts or of tribunals. The question of regularisation 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 regularise 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 the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned 10 Item No. 73 (C-4) OA 278/2021 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 regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.
8. In light of the reasons recorded above, this Court finds merit in the appellants' arguments and holds that their service conditions, as evolved over time, warrant a reclassification from temporary to regular status. The failure to recognize the substantive nature of their roles and their continuous service akin to permanent employees runs counter to the principles of equity, fairness, and the intent behind employment regulations.
9. Accordingly, the appeals are allowed. The judgment of the High Court is set aside, and the appellants are entitled to be considered for regularization in their respective posts. The respondents are directed to complete the process of regularization within 3 months from the date of service of this judgment.
10. No order as to costs.
9. In the case of G. Srinivasa Chary & Ors. in IA No. 1 of 2019 in WP No. 47675/2018, the Hon'ble High Court of Telangana at Hyderabad held as under :-
79. In the result,
(a) The Writ Petition is allowed;
(b) the respondents' action in engaging the petitioners on "outsourcing basis" as Sanitary Supervisors (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants through intermediaries/agencies/contractors is contrary to law, violative of Article 14, 16 and 21 of the Constitution of India and also the law declared by the Supreme Court in Uma Devi (1 supra) mandating periodic regular recruitment to sanctioned posts;
11Item No. 73 (C-4) OA 278/2021
(c) that the "outsourcing" system adopted by the GHMC is only a sham and a ruse to avoid extending to the petitioners their genuine service entitlements; and that the presence of such intermediary/contractor has to be ignored, and the petitioners are held to have been directly engaged by the GHMC and they are also held entitled to be considered for regularisation of their services;
(d) consequently, the respondents, while continuously engaging the services of the petitioners directly henceforth, are directed to consider the case of the petitioners for regularisation of their services, by ignoring the existence of the intermediaries/agencies/contractors in the posts of Sanitary Supervisor (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants within two (2) months from the date of receipt of a copy of the order.
(e) the petitioners are entitled to minimum of time scale of pay attached to the posts of Sanitary Supervisor (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants in which they are now discharging their functions till their claim for regularisation is considered by the GHMC in accordance with para 53 of the decision in Uma Devi (1 supra); and such payments shall be made by the GHMC directly to the petitioners w.e.f the date of filing of this Writ petition (after deducting the payments already received by them during this period from the contractor/intermediary) and shall be continued till the cases of the petitioners are considered for regularisation by the GHMC. The arrears upto 31.7.2020 shall be paid on or before 15.9.2020. (c) I.A.No.1 of 2019 is dismissed. No costs.
80. As a sequel, miscellaneous petitions pending if any, in this Writ Petition, shall stand closed."
10. Also we abide by our own judgment in OA No. 1291/2019 in the case of Shri Om Prakash vs. UOI dated 07.08.2024 and are of the considered opinion that in the instant case the balance of convenience lies clearly with the applicant ; that the instant OA has merit ; deserves to be allowed and is accordingly allowed. The impugned order dated 27.10.2020 is set aside and quashed. The respondents are 12 Item No. 73 (C-4) OA 278/2021 directed to consider regularisation of the services of the applicant in case she is otherwise found fit for the same, within a period of eight weeks from the date of receipt of a certified copy of this order. However, there shall be no order as to costs.
(Dr. Sumeet Jerath) (Harvinder Kaur Oberoi)
Member (A) Member (J)
/Mbt/