Central Administrative Tribunal - Cuttack
J Dash vs Archoelogical Survey Of India on 26 April, 2022
1 O.A.Nos. 260/00738 & 764 of 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.Nos. 260/00738 & 764 of 2016
Reserved on 18.04.2022 Pronounced on 26.04.2022.
CORAM:
THE HON'BLE MR. SWARUP KUMAR MISHRA, MEMBER (J)
O.A.No. 260/00738 of 2016
Kalandi Charan Mohapatra, aged about 43 years, Son of
Purna Chandra Mohapatra, AT-Kholadarsa, PO Badatota, PS-
Jatni, Dist- Khurda, At present working as a casual worker
awarded with 1/30th status at Archaeological Survey of India
Site, Sun Temple, AT/PO/P.S- Konark, Dist- Puri, Odisha.
..... Applicant
For the Applicant : Mr. D.K.Mohanty, Counsel
-Versus-
1. Union of India, represented through the Secretary,
Ministry of Culture, Govt. of India, Shastri Bhawan, New
Delhi-110001.
2. Director General, Archaeological Survey of India, Janpath,
New Delhi, 110011.
3. Superintending Archaeologist, Archaeological Survey of
India, Toshali Apartment, Satya Nagar, Block No-VI, 2nd
floor, Bhubaneswar, Dist-Khurda, Odisha.
4. Ajay Kumar Khuntia, Aged about 45 years, son of Drona
Khuntia, Working as Monument Attendant, office of the
2 O.A.Nos. 260/00738 & 764 of 2016
Superintending Archaeologist, Archaeological Survey of
India, Circle Office, Bhubaneswar, Dist- Khurda, Odisha.
5. Gangadhar Nayak, Aged about 43 years, son of Laxmidhar
Nayak, Working as Monument Attendant, office of the
Superintending Archaeological Survey of India,
Archaeologist, Circle Office, Bhubaneswar, Dist- Khurda,
Odisha.
..... Respondents
For the Respondents: Mr. G.Sethi, Counsel
O.A. No. 260/00764 of 2016
Jatindra Dash, aged about 46 years, Son of Late Krushna
Chandra Dash, AT/PO- Bagal Sahi, PS- Niali, Dist- Cuttack, At
present working as a casual worker awarded with 1/30th
status at Singhanath Madhav Temple, Archaeological Survey
of India Site, AT/PO- Gopinathpur, P.S- Badamba, Dist-
Cuttack, Odisha.
.....Applicant
For the Applicant : Mr. D.K.Mohanty, Counsel
-Versus-
1. Union of India, represented through the Secretary,
Ministry of Culture, Govt. of India, Shastri Bhawan, New
Delhi-110001.
2. Director General, Archaeological Survey of India, Janpath,
New Delhi, 110011.
3. Superintending Archaeologist, Archaeological Survey of
India, Toshali Apartment, Satya Nagar, Block No-VI, 2nd
floor, Bhubaneswar, Dist-Khurda, Odisha.
..... Respondents
For the Respondents: Mr. B.Swain, Counsel
3 O.A.Nos. 260/00738 & 764 of 2016
ORDER
Swarup Kumar Mishra, Member (J):
Since the facts and issues in both the cases are same and similar, for the sake of convenience and consistency, this common order is passed in both the cases.
2. In impugning and challenging the order of rejection under Annexure- A/6 dated 10.02.2014, the applicant has filed O.A. No. 738/2016 praying inter alia to quash the impugned order under Annexure-A/6 dated 10.02.2014 with further direction to grant him temporary status and consequential regularization retrospectively.
3. Similarly, impugning and challenging the order of rejection under Annexure-A/6 dated 10.02.2014 being opposed to the temporary status scheme formulated by the government, the applicant has filed O.A. No. 764/2016 praying inter alia to quash the impugned order under Annexure- A/6 dated 10.02.2014 with further direction to grant him temporary status and consequential regularization retrospectively.
4. The case of the applicant in O.A. 738/2016, in brief, is that on 25.04.1994 he was engaged as a casual worker under the respondent No.3. As he had completed 240 days of work in a calendar year, on 27.04.2007 he was granted 1/30th status as per the Government of India scheme. As per the policy formulated by the Govt. of India known as Casual Labourers 4 O.A.Nos. 260/00738 & 764 of 2016 (Grant of Temporary Status and Regularization) Scheme 1993 [hereinafter called as 'Scheme 1993' in short]. The applicant submitted representation before the authorities concerned praying for grant of the benefits under Scheme, 1993 and alleging non-consideration of is grievance, earlier had approached this Tribunal along with others in O.A. 792/2013, which was disposed of on 04.12.2013 with direction to the respondent authorities to consider and dispose of within a stipulated period fixed by this Tribunal. Respondent department rejected the claim of the applicant on the ground that the applicant did not fulfill the terms and conditions stipulated in the Scheme, 1993, subsequently, clarification issued vide O.M. dated 12.07.1994 and 06.06.2002. Alleging miscarriage of justice caused to him in the decision taking process of the matter, the applicant filed the present O.A. with the aforesaid reliefs.
5. Insofar as the case of the applicant in O.A. 764/2016, in brief, is that on 14.04.1996 he was engaged as a casual worker under the respondent No.3. As he had completed 240 days of work in a calendar year, on 22.06.2009 he was granted 1/30th status as per the Government of India scheme. As per the policy formulated by the Govt. of India known as Casual Labourers (Grant of Temporary Status and Regularization) Scheme 1993 [hereinafter called as 'Scheme 1993' in short]. The applicant submitted representation before the authorities concerned praying for grant of the benefits under Scheme, 1993 and alleging non-consideration of is 5 O.A.Nos. 260/00738 & 764 of 2016 grievance, earlier had approached this Tribunal along with others in O.A. 792/2013, which was disposed of on 04.12.2013 with direction to the respondent authorities to consider and dispose of within a stipulated period fixed by this Tribunal. Respondent department rejected the claim of the applicant on the ground that the applicant did not fulfill the terms and conditions stipulated in the Scheme, 1993, subsequently, clarification issued vide O.M. dated 12.07.1994 and 06.06.2002. Alleging miscarriage of justice caused to him in the decision taking process of the matter, the applicant filed the present O.A. with the aforesaid reliefs.
6. Respondents filed counter separately in both the O.As. but since the matter and issue are same, the stand of the respondents in both the counters being same and similar, it is commonly dealt into for the sake of convenience. The respondents inter alia admitted the engagement of the applicant on casual basis under the respondent No.3 as also conferment of 1/30th status as per the Scheme but denied the stand of completion of more than 240 days in a calendar year. They have clearly stated that as per the memorandum of settlement made in the year 2008 before the Assistant Labour Commissioner (Central) with the Archeological Survey of India Workers Union, those casual labourers who have completed 240 days of work in a year as on 2002 will be allowed by the Management of ASI for attaining the duties of Group-D post on pro rata payment basis and will get 1/30th status. Accordingly, those casual workers, who had completed 240 6 O.A.Nos. 260/00738 & 764 of 2016 days of work, were allowed to get 1/30th status. According to the respondents, in terms of the conditions stipulated in para 4 of the Scheme, 1993, temporary status would be conferred on all casual labourers who are in employment on the date of issue of the Scheme and they should have rendered a continuance service of at least one year which means that they have been engaged for a period of at least 240 days (206 days in the case of offices absorbing 5 days a week). The DoP&T issued clarification vide O.M. dated 12.07.1994 stating that temporary status will be conferred only on those casual labourers who had been engaged through Employment Exchange, which principle has also been upheld by the Hon'ble Apex Court in the case of Passport Officer Trivendrum Vs. C.Venugopal C & Ors. vide order dated 27.10.1997. Further, the Hon'ble Apex Court in Civil Appeal No. 3168/2002, vide order dated 29.04.2002 have held that Scheme, 1993 is not an ongoing scheme and conferment of temporary status on the casual workers can only be on fulfillment of the condition stipulated in para 4 of the said Scheme. Respondents department considered the representation of the applicants keeping in mind the aforesaid principles and as the applicants were found lacking of the conditions, their representations were rejected and reason of rejection was duly communicated to them vide impugned letters. The respondents have further stated that in compliance of the order of the Hon'ble High Court of Orissa in common order dated 20.02.2009 against the order of this Tribunal dated 12.05.2000 in O.A. No. 7 O.A.Nos. 260/00738 & 764 of 2016 81 and 82 of 1998, temporary status were conferred on the applicants therein along with other similarly situated persons those who were covered with the orders of the Tribunal in terms of the orders of the Director General, A.S.I., New Delhi No. 13-4/2009-Adm.II. Subsequently, the services of such causal labourers were regularized against Group-D post as per the existing Scheme, 1993. As the present applicants were not covered by the order of the Hon'ble High Court of Orissa/this Bench, their cases could not be considered for grant of temporary status. On the aforesaid grounds, the respondents have opposed the prayer of the applicants and prayed inter alia for dismissal of both the O.As.
7. The applicants, in both the O.As., filed rejoinder. The sum and substance of the rejoinder is that in O.As. 81 and 82 of 1998 the respondents opposed the case of the said applicants on similar grounds and against the order of this Tribunal, Writ Petition was filed before the Hon'ble High Court of Orissa and after disposal of the Writ petition, the respondents had conferred temporary status not only on those applicants but also on 55 similarly situated casual workers in relaxing the conditions stipulated in para 4 of Scheme, 1993 and, subsequently, they were also regularized. Although, the case of both the applicants stood on similar footing their cases were not considered rather the respondents have come forward with a plea that the applicants are not entitled to the benefits as they did not fulfill the conditions stipulated in the DoP&T O.Ms. thereby caused 8 O.A.Nos. 260/00738 & 764 of 2016 invidious discrimination among similarly situated casual labourers. Hence, the applicant has reiterated the reliefs claimed in the O.As.
8. Ld. Counsel appearing for both sides have reiterated the stand taken in their respective pleadings and having heard them at length perused the pleadings and documents placed in support thereof. As respective stand points have been dealt into in extensor, to avoid repetition, this Tribunal does not find it necessary to record all those arguments once again.
9. The respondents in their counter have fairly admitted that as per the memorandum of settlement made in the year 2008 before the Assistant Commission (Central) with the ASI Workers Union, those casual labourers who had completed 240 days in the year as on 2002 which included the applicants in both the O.As they were granted 1/30th status. But the said settlement has not been produced along with the counter. It is also seen that the grounds based on which the representation of the applicants was rejected have also been taken as the grounds in the counter. It is seen that the respondents opposed the prayer of the applicants in O.As. 81 and 82 of 1998 and this Tribunal taking into consideration all totality of the fact of the matter and the law have directed to consider granting of temporary status to the applicants therein strictly in terms of the Scheme, 1993 which was ultimately upheld by the Hon'be High Court of Orissa and in pursuance of the said order, the applicants therein, as also 55 other similarly situated persons, were conferred with the temporary status followed by regularization. According 9 O.A.Nos. 260/00738 & 764 of 2016 to the Respondents, since the applicants were not covered by the orders of the Tribunal their cases was not considered. The normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by the Court/Tribunal from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. The well recognized exceptions in the form of laches and delays as well as acquiescence is not applicable when one is discriminated in the matter of extending the similar benefits. It may be stated that the moment the respondent authority had accepted the order of Hon'ble High Court of Orissa, which was on the orders passed by this Tribunal in O.As. 81 and 82 of 1998 dated 12.05.2000 and granted the benefits not only to those applicants but also to other 55 similarly situated causal workers, it binds the respondent authorities to follow the same principle in the case of non- applicants, in particular, the applicants in both the O.As. This view gains support by the law laid down by the Hon'ble Apex Court in the case of State of Uttar Pradesh and Others Vs. Arvind Kumar Srivastava and Others, (2015) 1 SCC 347, wherein it has been laid down that all persons similarly situated 10 O.A.Nos. 260/00738 & 764 of 2016 should be treated similarly. Only because one person has approached the Court that would not mean that persons similarly situated should be treated differently. The aforesaid judgment rendered by the Hon'ble Apex Court has been passed by putting reliance upon the judgment passed in State of Karnataka Vs. C. Lalitha, (2006) 2 SCC 747. Relevant paragraph of the aforesaid judgment are being reproduced herein below:
"13. In State of Karnataka v. C. Lalitha [State of Karnataka v. C. Lalitha, (2006) 2 SCC 747 : 2006 SCC (L&S) 447] , which is the next case relied upon by the learned counsel for the respondents, our attention was drawn to the following passage from the said judgment: (SCC p. 756, para 29) "29. Service jurisprudence evolved by this 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. It is furthermore well settled that the question of seniority should be governed by the rules. It may be true that this Court took notice of the subsequent events, namely, that in the meantime she had also been promoted as Assistant Commissioner which was a Category I post but the direction to create a supernumerary post to adjust her must be held to have been issued only with a view to accommodate her therein as otherwise she might have been reverted and not for the purpose of conferring a benefit to which she was not otherwise entitled to."
10. This Tribunal further noted that although the respondents in one hand denied that applicants in both the O.As. served on daily wages for more than 240 days in a year for years together, in the counter itself they have admitted as under:
11 O.A.Nos. 260/00738 & 764 of 2016
"Since the applicant have completed 240 days of work, accordingly, the applicant along with other persons were allowed to get 1/30th status."
11. Further, the averment of the respondents that applicant's cannot be granted the benefit being not engaged through Employment Exchange, cannot be a valid ground for rejection.
12. On examination of the facts in the present O.As. discussed above, with reference to the O.A. Nos. 81 and 82 of 1998 upheld by the Hon'ble High Court of Orissa and the law cited above, the impugned orders in the both the O.As. under Annexure-A/6 dated 10.02.2014 are quashed and the matter is remitted back to the respondents to reconsider the case of the applicants keeping in mind the Memorandum of Settlement reached between the Assistant Labour Commissioner (Central) with the Archeological Survey of India Workers Union so also the earlier order of this Tribunal in O.A. Nos. 81 and 82 of 1998 upheld by the Hon'ble High Court. The entire drill shall be completed, including intimation to the applicant of the result of the reconsideration, within a period of 60 days from the date of receipt of a copy of this order.
13. With the discussions and observations made above, both the O.As. stand allowed leaving the parties to bear their own costs.
(SWARUP KUMAR MISHRA) Member (Judicial) RK/PS