Central Administrative Tribunal - Madras
L Bakiyanathan vs M/O Health And Family Welfare on 14 February, 2020
1 OA 1661/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
MADRAS BENCH
OA/310/01661/2018
Dated Friday, the 14th day of February, Two Thousand Twenty
CORAM : HON'BLE MR. T. JACOB, Member (A)
L. Bakiyanathan,
working as cook,
Residing at No. 13/48,
K.K.Street, Malai Medu,
Chengalpattu 603002. ....Applicant
By Advocate M/s. C. Vigneswaran
Vs
1.Union of India,
rep by Secretary to Government,
Ministry of Health and Family Welfare,
Nirman Bhavan, New Delhi 110001.
2.The Director General of Health Services,
Nirman Bhavan,
New Delhi.
3.The Central Leprosy Teaching and Research Institute,
rep by its Director,
Chengalpattu, Tamil Nadu 603001. ....Respondents
By Advocate Mr. R. S. Krishnaswamy
2 OA 1661/2018
ORDER
(Pronounced by Hon'ble Mr. T. Jacob, Member (A)) The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs :
"i. To quash the order of the 3rd respondent in No.F2(41)EI/Court Case-LB/2014/3051 dated 16.11.2018.
ii. Consequently absorb the applicant in the post of cook by granting relaxation of educational qualification with all consequential benefits from his initial date of appointment in the year 1998".
2. The brief facts of the case as stated by the applicant are as follows:
The applicant herein was originally appointed in the 3rd respondent institution in the post of Watchman as early as 25.05.1998. The applicant after being sponsored by the Employment Exchange was selected by the 3 rd respondent institution on casual basis after an interview conducted by them.
Ever since the date of his initial appointment, the applicant has been working in various departments of the institution as Watchman, Cook Assistant, Sanitary worker and Male Nursing Attendant. The applicant has by now completed 15 years of continuous service in the institution, but, despite numerous representations, the applicant's services have not been regularized and he does not have security of services or any other benefits as available to regular Government servants in the same institution. The respondents after considering the representation of the applicant rejected his claim on the ground that he did not have the minimum educational qualification. Challenging the above 3 OA 1661/2018 rejection, the applicant filed OA 605/2015 whereby the impugned order was set aside and an order was passed to reconsider his case, as against the same after a year they rejected the case of the applicant again. Hence the applicant has filed this OA seeking the above reliefs inter-alia on the following grounds:-
i. The action of the respondents is arbitrary, illegal and violative of Articles 14 and 16 of the Constitution.
ii. The respondents by the impugned order has approbated and reprobated its earlier stand and with the sole intention to deny the applicant of his legal entitlement and benefits.
iii. The impugned order has been passed on the grounds mentioned in UMA DEVI's case as if 10 years has not been completed, in fact as per para 53 of the judgment the state and its instrumentalities as a one time measure has to take the list of persons who had completed 10 years as on that date and implement a scheme for regularization. Thus without completing the exercise the action of the respondents to reject the claim of the applicant is void ab initio and the respondents ought to have taken a pragmatic approach enunciated by the Hon'ble Supreme Court in Narendra Kumar Tiwari Vs State of Jharkhand.
iv. The respondents have all along denied the request of the applicant only on the basis of educational qualification and when the same has only been considered by the respondents the action of the respondents to raise a new ground for rejecting the case of the applicant is totally arbitrary. v. The respondents ought to have absorbed the applicant in their institution on the ground that he had been working in the leave vacancies of a permanent post for a number of years and the fact that the same if had been filled by accommodating the applicant at the relevant point of time the applicant would have been regularised by now.
vi. The applicant had completed the requisite number of days in a calender 4 OA 1661/2018 year at the relevant point of time ie., as early as 2006 and 2007 as admitted by the respondents in their impugned order the respondents ought to have taken that date as for considering the applicant for absorption and not from 2010.
vii. Not all the Group 'D' employees who had been upgraded to Group 'C' as per the 6th CPC recommendation would be possessing the requisite qualification of 10th pass. Therefore, the same yardstick may be applied to the applicant as well and he should have been considered for absorption. viii. He has been engaged in the vacancy of Watchman, Cook and Sanitary Worker which does not warrant Matriculation education. In the above circumstance, his experience alone counts and the respondents ought to have considered the same. Further, even if the applicant is to be trained in multi-skilled jobs in Group C post erstwhile Group D post the applicant could be imparted necessary practical training taking into account his experience.
ix. The applicant who has put in more than 10 years of service would have a legitimate expectation to be regularised and the same would be defeated by the impugned order of the respondents in case the relaxation of educational qualification is not granted by the respondents. x. The power to relax the educational qualification which is available with the respondents ought to be exercised judiciously keeping in mind that unless the same is exercised undue hardship would be caused to the applicant. Further when the qualification to the post of Cook was only Vth std at the relevant point of time the respondents ought to have relaxed the power retrospectively as envisaged by in P.V.T.Phillip Vs. P. Narasimha Reddy.
xi. The respondents being a state or other authority within the meaning of Article 12 of the Constitution is bound to give security of service to its employees. The Hon'ble Supreme Court has taken the view in a number 5 OA 1661/2018 of cases that persons cannot be kept on temporary basis for long periods. In the instant cases, the applicant has been kept on temporary basis for an unduly long period of 15 years. This action is highly arbitrary and illegal. It is therefore, just and necessary that the respondents should be directed to regularise the services of the applicant in the service of CLTRI with all benefits on par with regular employees from the date of original appointment.
xii. The applicant is doing the same job as other regular persons and on retirement, the applicant will not get any of the retirement benefits as being given to regular Government servants.
xiii. The Hon'ble Supreme Court has held in a number of cases that where persons have been working for a long time on casual basis, their services should be regularised. Further, the respondents have failed to honour the direction of the Hon'ble Apex Court in para 53 of the Uma Devi case, where it is held as follows:-
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S. V. Narayanappa, R. N. Nanjudappa and B. N. Nagarajan 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 the tribunals and should further ensure that regular requirements are undertaken to fill those vacant sanctioned 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 6 OA 1661/2018 not sub-judice, need not be re-opened based on this judgement, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
The applicant submits that when he has satisfied the above requirements as per the direction of the Hon'ble Supreme Court, the respondents ought to have regularised his services..
xiv. The applicant herein was sponsored by the Employment Exchange and was duly interviewed and tested of his professional proficiency in the post before appointment, in the circumstances, it would only be an irregularity which is curable and not an illegality. Thus the irregularity can be cured by regularizing the applicant in the said post. xv. The case of persons belonging to ICMR, which is also under the Ministry of Health & Family Welfare, this Tribunal and the Hon'ble High Court of Madras has directed to consider the persons for regularisation in OA No. 1332 of 2000 and WP Nos. 25490 of 2002 and also in OA 1115 of 2009. Hence, the applicant who is also on identical footing is entitled for regularisation of their services with effect from their initial date of appointment with all consequential benefits.
xvi. The respondents ought to have considered the application of the applicant for the post of Cook as per DoP&T notification No. 15012/6/98- Estt (D) dated 21.12.1998, the casual labourers who have completed a single spell of more than six months continuously are entitled to age relaxation and are eligible for absorption in the department in the Group "D" posts.
3. The respondents have filed a detailed reply statement stating that the Employment Exchange, Kancheepuram erroneously mentioned the nature of job as 'permanent' in their communication to the applicant. The recruitment was for a casual labour on daily wage was clearly mentioned in the call letter issued by 7 OA 1661/2018 CLTRI which is the employing authority and not the Employment Exchange. The applicant was intermittently engaged as a casual labour on daily wages against leave vacancies only in Group' 'D' posts like Watchman, Male Nursing Attendant, Cook, Sanitary Worker, etc. The applicant is not correct in stating that he was appointed as a 'casual labourer' on daily wages to a 'permanent post'. The applicant is also not correct in stating that he has completed 15 years of continuous service since he was engaged only intermittently with several interruptions in engagement varying from a few days up to 3.5 years in between. The appointment letter does not show that the applicant was appointed to a permanent post. On the other hand, the applicant was only a daily wager on casual basis against leave vacancies and was never a holder of a duly sanctioned post. Therefore, he is not entitled to the benefits available to the regular employees such as Leave Travel Concession, time-bound promotion, selection grade, bonus, medical reimbursement, gratuity or pension etc. Therefore, he cannot be treated on par with regular employees. Further the applicant's contention had already been settled by this Tribunal in the earlier OAs preferred by the applicant and not relevant to the present OA. The law is settled by the Hon'ble Apex Court in Umadevi's case with regard to regularisation, the relevant portion of which is reproduced below:-
"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 judgement. In that context, the Union of India, the State Governments and their 8 OA 1661/2018 instrumentalities should take steps to regularize as a one time measure, the services of such irregularity appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned 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."
It is an admitted fact that as on the date of judgement of Umadevi's case i.e. 10.04.2006, the applicant completed approximately 8 years only till 10.04.2016. In catena of judgements in similar issues, the Hon'ble Court has set in rest the right to give age relaxation on the appointing authority. Hence the respondents pray for dismissal of the OA.
4. In support of their case, the respondents have relied upon the following decisions:-
(I) Decision of the Madurai Bench of the Madras High Court in the case of S.Mariappan vs., The Secretary to Government of Tamilnadu, Public Works Department, Chennai and others in WP.(MD) No.6333 of 2014 and MP (MD) No.2 of 2014 dated 30.07.2019.
(ii) Decision of the High Court of Delhi in the case of Ritu Kushwaha and others vs. Union of India and others in WP.(C)7808/2012 & CM.No.19651/2012 dated 11.11.2014
5. The applicant has filed rejoinder to the reply statement of the respondents and the respondents have also filed reply to the rejoinder more or less reiterating the averments made in their respective affidavits.
6. Heard the learned counsel for the respective parties and perused the pleadings and documents on record.
9 OA 1661/2018
7. The applicant had studied upto 8th standard pass. He was sponsored by the Employment Exchange, Kanchipuram for recruitment to the post of Casual Labourer for which an interview was held on 25.05.1998 and thereafter, he was appointed as Casual Labourer on daily wages in a leave vacancy in the Central Leprosy Teaching and Research Institute, Chengalpattu with a specific condition that his service would be dispensed with at any time without any notice or assigning any reason. From his initial appointment, he had been working in various departments of the institution as Watchman, Cook Assistant, Sanitary Worker and Male Nursing Attendant. It is the case of the applicant that he has completed 15 years of continuous service but had not been regularised. He has filed this OA seeking absorption in the post of Cook by granting relaxation of educational qualification with all consequential benefits from his initial date of appointment in the year 1998.
8. Admittedly this is the third round of litigation before this Tribunal. The applicant had earlier filed OA.853/2014 seeking the above reliefs wherein this Tribunal by order dated 26.03.2014 directed the third respondent therein to consider and dispose of the representation of the applicant dated 09.01.2014 in accordance with law and as per rules. In pursuance of the said order, the third respondent referred the case of the applicant to the Directorate General of Health Services, New Delhi and based on the letter dated 12.12.2014 rejected the claim of the applicant vide impugned order dated 31.12.2014. The relevant portion of the letter dated 27.12.2014 reads as follows:-
10 OA 1661/2018
"Shri L.Bakiyanathan has studied upto 8th std only whereas as per recommendation of the 6th CPC, the DOP&T vide their OM No.AB-14017/6/2009-Estt(RR) dated 30.4.2010 conveyed the Model Recruitment Rules framed for Group 'C' post (pre-revised group 'D' post) Multi-Tasking Staff in Pay Band-I with pay of Rs.1800. In the model RR, the minimum educational qualification prescribed for the Group 'C' (Erstwhile Group 'D' posts is 10th pass. In view of the above competent authority has decided to reject the representation of Shri L.Bakiyanathan."
9. Challenging the above order of rejection, the applicant filed OA.605/2015 wherein this Tribunal by order dated 09.06.2017 disposed of the said OA directing the respondents to re-examine the case of the applicant in the light of the observations contained in the Judgement of the Hon'ble Delhi High Court in Ritu Kuswaha and others versus Union of India and others in W.P.(C) 7808/2012 and C.M.No. 19651/2012 dated 11.11.2014 wherein a similar matter had been decided in favour of the employee. The respondents in pursuance of the said order re-examined the case of the applicant but however, rejected his claim vide letter dated 16.11.2018 as follows:-
".....the petitioner has not worked continuously for 10 years and in fact he was accommodated as a daily wage worker against several leave vacancies in 5 different posts of Watchman, Cook, MNA, Sanitary Worker and in Administration on purely daily wage basis with frequent breaks in between. The total number of breaks exceeded 50 in number generally ranging from a few days to few weeks and another long break of nearly 3.5 years; none of the tenures for which he worked as a daily wager exceeded a couple of months. Thus the contention of the petitioner that he has been working in the respondent organisation continuously for the past 15 years is not factually correct".
10. The primary contention of the applicant is that the respondents should have exercised the powers judiciously and relaxed the educational qualification 11 OA 1661/2018 suitably keeping in mind the qualification for the post of cook was only 5th std at the relevant point of time and the respondents deliberately failed to relax the power retrospectively as envisaged in the case of P.V.T. Phillip Vs. P. Narasimha Reddy. The Hon'ble Supreme Court has taken the view in a number of cases that persons cannot be kept on temporary basis for a long period.
11. In the instant case the applicant has completed 8 th std and had registered with the Employment Exchange in 1998. The vacancy sought for from the Employment Exchange is for the post of Group 'D' on casual basis. The third respondent by letter dated 18.05.1998 requested the applicant to appear for a personal interview / test to be held on 25.05.1998 for the post of casual labourer on daily wages. The applicant was intermittently engaged as a casual labour on daily wages against leave vacancies only in Group' 'D' posts like Watchman, Male Nursing Attendant, Cook, Sanitary Worker, etc. The applicant is not correct in stating that he was appointed as a 'casual labourer' on daily wages to a 'permanent post'. As per the Recruitment Rules, the applicant has to fulfil the minimum educational qualification of 10th standard pass for becoming eligible appointment to a Group 'C' post. As the Group 'D' post now stands merged with the Group 'C' the respondents contend that the applicant could only be considered if he fulfilled the educational qualification required for Group 'C'.
12. This Tribunal while passing orders in OA.605/2015 dated 09.06.2017 had directed the respondents to re-examine the above aspect of the matter in the light of the Hon'ble High Court Judgement dated 11.11.2014 in the case of Ritu 12 OA 1661/2018 Kushwaha & Ors. vs. Union of India wherein it has specifically emphasised the criteria of completion of 10 years of continuous service for considering regularisation of casual employees. In pursuance of the above directions of this Tribunal, the respondents have passed order dated 16.11.2018 stating that the applicant has not worked continuously for 10 years and in fact was accommodated as a daily wage worker against several leave vacancies in 5 different posts of Watchman, Cook, MNA, Sanitary Worker and in Administration on purely daily wage basis with frequent breaks in between. The total number of breaks exceeded 50 in number generally ranging from a few days to few weeks and another long break of nearly 3-5 years, none of the tenures for which he worked as a daily wage worker exceeded a couple of months. The applicant has not produced any documentary evidence to show that he was engaged on a continuous basis.
13. Further, reference has been made to the case of State of Rajastan vs. Daya Lal by the Hon'ble Supreme Court. in the case of Secretary to Government, School Education Department, Chennai vs., R. Govindaswamy and others reported in 2014 (4) SCC 769 wherein it has been held as under:-
"(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of 13 OA 1661/2018 compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme under/or appointment of ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a temporary or ad hoc or daily wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be litigious employment. Even temporary, ad hoc or daily wage service for a long number of years, let alone service for one or two years, will not en title such employees to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.
(iii) Even where a scheme is formulated for regularisation with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off dates), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates.
(iv) Part time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuation of part time temporary employees."
As such, the decisions referred to by the counsel for the applicant are not relevant to the facts of the present case
14. When the conditions of regularisation is not fulfilled, there is no question of regularisation. If the conditions get fulfilled but the respondents are reluctant to regularise the services, then the individual establishes his existing rights. In contradiction to the above, when the claim is made without fulfilling the requisite conditions on some analogy, the individual does not establish his existing rights but tries to create a new right. The adjudication process of the 14 OA 1661/2018 Tribunal applies only where the individual tries to establish his existing rights and not when he tries to create a new right. The claim of the applicant falls under the latter category and thus his claim cannot be approved.
15. One aspect in this case has to be deeply examined. May be the applicant did not complete 10 years of continuous service and thus the Judgement of the Hon'ble Apex Court in Umadevi's case, if applied, regularisation in this case is impossible. However, the same Judgement has approved the decision in another case of State of Haryana vs. Piara Singh (1992) 4 SCC 118 wherein the Apex Court has held as follows:-
"an ad hoc or temporary employee should not be replaced by another. If ad hoc or temporary employee, he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority."
16. The learned counsel for the applicant submits that the services of the applicant has been terminated w.e.f. 2018. It is not clear whether the respondents, after termination of the applicant, have engaged some one else, though not exactly in the same place or function but in any other aligned function and on ad hoc basis, to which the applicant would have filled the bill, the respondents are duty bound to explore the feasibility of engaging the applicant, to this extent, the applicant has crystallized his rights.
17. In view of the above, it is held that the applicant cannot derive any benefit of past service for regularisation but subject to the following two aspects, he is entitled to be considered for appointment:-
15 OA 1661/2018
a. After termination, either in the same place or in respect of any aligned function, respondents did engage any other person ignoring the entitlement of the applicant.
b. The applicant has not crossed sixty years of age.
The above exercise shall be carried out by the respondents within a period of three months from the date of receipt of a copy of this order and further action taken, In case, none has been so appointed, the fact of the same shall be intimated to the applicant.
18. The OA is disposed of on the above terms. No costs.
(T. JACOB) MEMBER (A)
-02-2020 /kam/