Central Administrative Tribunal - Hyderabad
M Nageswar Rao vs Dept Of Posts on 30 November, 2021
OA No.61/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH
OA/020/00061/2015 & MA 243/2015
Date of CAV : 09.11.2021
Date of Pronouncement : 30.11.2021
Hon'ble Mr. Ashish Kalia, Judl. Member
Hon'ble Mr.B.V.Sudhakar, Admn. Member
1.M.Nageswar Rao S/o Peerulu,
Aged about 50 years, working as Casual Labour,
(Part Time Porter), O/o Sub-Record Office,
Railway Mail Service (RMS), Srikakulam Road,
'V' Division, Visakhapatnam.
2.L.Ramanadham S/o Appala Peddayya,
Aged about 49 years, working as Casual Labour,
(Part Time Porter), O/o Sub-Record Office,
Railway Mail Service (RMS),
'V' Division, Vizianagaram.
3.P.Sanyasi Rao S/o Late Suri,
Aged about 43 years, working as Casual Labour,
(Part Time Porter), O/o Sub-Record Office,
Railway Mail Service (RMS),
'V' Division, Visakhapatnam.
4.P.Satyanarayana S/o Late Ramulu,
Aged about 43 years, working as Casual Labour,
(Part Time Porter), O/o Sub-Record Office,
Railway Mail Service (RMS),
'V' Division, Visakhapatnam.
5.M.Janardhana Rao S/o late Suryanarayana,
Aged about 47 years, working as Casual Labour,
(Part Time Porter), O/o Sub-Record Office,
Railway Mail Service (RMS),
'V' Division, Visakhapatnam.
6.P.Chinna Appala Satyanarayana S/o Venkat Rao,
Aged about 47 years, working as Casual Labour,
(Part Time Porter), O/o Superintendent, RMS,
Railway Mail Service, Srikakulam Road,
'V' Division, Visakhapatnam.
Page 1 of 11
OA No.61/2015
7.Y.Venkateswara Rao S/o late Y.Venkata Rao,
Aged about 49 years, working as Casual Labour,
(Part Time Porter), O/o. Head Record Office,
Railway Mail Service (RMS),
'V' Division, Visakhapatnam.
8.B.Gangadhara Rao S/o late B.V.Ramana,
Aged about 54 years, working as Casual Labour,
(Part Time Porter), O/o. Head Record Office,
Railway Mail Service (RMS),
'V' Division, Visakhapatnam. ...Applicants
(By Advocate : Mr. K.Sudhaker Reddy)
Vs.
1.The Union of India, Rep by
The Director General, Posts,
Department of Posts, Dak Bhavan,
Sansad Marg, New Delhi.
2.The Chief Postmaster General,
A.P.Circle, Hyderabad-500 001.
3.The Postmaster General,
Visakhapatnam Region, Visakhapatnam.
4.The Superintendent of Railway Mail Service,
'V' Division, Visakhapatnam.
5.The Head Record Officer,
Railway Mail Service (RMS),
'V' Division, Visakhapatnam.
6.The Head Record Officer (Accounts),
Railway Mail Service (RMS),
'V' Division, Visakhapatnam.
7.The Sub-Record Officer,
Railway Mail Service (RMS), 'V' Division,
Srikakulam Road, Srikakulam Dist.
8.The Sub-Record Officer,
Railway Mail Service (RMS), 'V' Division,
Vizianagaram, Vizianagaram District. ....Respondents
(By Advocate : Mr.M.Venkata Swamy, Addl. CGSC)
---
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OA No.61/2015
ORDER
(As per Hon'ble Mr. B.V.Sudhakar, Admin. Member) Through Video Conferencing:
2. The OA is filed for regularization of the services of the applicants.
3. Brief facts of the case are that the applicants were appointed casual labourers in the respondents organization from 1983 onwards. Yet, they were not granted temporary status and their services were not regularized, despite several representations and hence the OA.
4. The contentions of the applicants are that while they were working as part time casual labourers, their services were converted into full time casual labourers from 2.7.1996. Even then, temporary status was not granted and their services were regularized as per Postal Directorate letters dated 12.4.1991 and 30.11.1992. The judgments of the Hon'ble Supreme Court in WP (Civil) No.59-60 & 563-70 of 1983; 1986 AIR (SC) 584 in regard to a similar issue concerning CPWD and Nehru Yuva Kendra were cited in support of their cause. The letter dated 10.2.1988 clarifies the terminology of a full time and part time casual labourers. The casual labourers, who completed 240 days service have been permitted to take the departmental examination as per OM dated 09.02.1988. Respondents have come up with the Causal labourers (Grant of Temporary Status and Regularization) Scheme, 1993 for grant of temporary status and regularization of services (for short "1993 Scheme"). Applicants are similarly placed like those who have been granted a similar relief in OA 398 of 1998 vide order dated 25.11.1999, as upheld by the Hon'ble High Court of Andhra Pradesh in WP No.17048 of 2000 (Annexure A-IX).Page 3 of 11 OA No.61/2015
Respondents implemented the judgment on 12.9.2011. However, when similar relief was not extended to the applicants, OA 1160 of 2012 was filed which was disposed to consider the case of the applicants, if eligible keeping in view the orders in OA 398/1998 & OA 289/2013. However, respondents rejected the relief sought, which is arbitrary and illegal.
5. Respondents in the reply statement contend that the applicants were engaged on a temporary basis and were not issued any appointment orders. It was made clear that their services will be terminated without giving any notice. Even the temporary arrangement was terminated on 27.2.1997 and further, the names of the applicants were not forwarded by the Employment Exchange as is required vide Directorate letter dated 15.7.1988. Simultaneously, there was ban on recruitment of casual labour. Applicants are being engaged on an hourly basis depending on the work load. There is no employee - employer relationship. The applicants in OA 398/1998 were working as full time casual labourers whereas the applicants in the instant OA are working as outsiders in vacancies of part time casual labourers. Applicants are not eligible to be considered under the 1993 Scheme. Hon'ble Supreme Court in U.O.I. v. Sakkubai in Civil Appeal No.360-361 of 1994 has held that the full time casual labourers are eligible to be paid at the minimum of the Group D pay scale. Further, in UOI v Gagan Kumar - (2005) 6 SCC 70, it was held that the 1993 scheme applies only to those in service as on the date of the commencement of the scheme. Complying with the orders of the Tribunal in OA 1160/2012, request for regularization was examined and rejected vide order dated 03.11.2014, since the applicants are working as outsiders. Besides, as per Uma Devi judgment, Page 4 of 11 OA No.61/2015 entry into public service in violation of Article 14 of the Constitution is not permitted. Applicants worked against multiple posts and that they were not converted into full time casual labour.
6. Heard both the counsel and perused the pleadings on record.
7. I. The dispute is in regard to regularization of the services of the applicants. Applicants are working in the respondents organization from different years commencing from 1983 onwards. They claim that they were appointed as full time casual labour in 1996 and that as per the 1993 Scheme, they are eligible to be granted temporary status as well regularization of services. However, respondents denied the same and the applicants have not submitted any orders to the effect that they were converted into full time casual labour. Respondents claim that the applicants were engaged as outsiders in leave vacancies of part time and full time casual labour. Being outsiders, the judgment in OA 398/1998 would not be applicable, which was delivered in respect of full time casual labour. However, there has been no denial of the fact that applicants have been working in the respondents' organization from different years commencing from 1983 onwards. In other words, the applicants have been working for the last 3 decades in the respondents' organization in different posts. If this be so, the spirit of the Uma Devi judgment was that when there is work, posts are to be created and individuals recruited on a regular basis, but not resort to adhoc measures of engaging individuals on temporary basis for decades. It is not explained by the respondents as to whether they have done this exercise and if so, what was the outcome. Such an exercise was necessary in organizational interests. Otherwise, engaging individuals Page 5 of 11 OA No.61/2015 on a casual basis for years on is not in tune with the essence of the Uma Devi judgment. As pointed by the respondents, no one should be appointed in public institutions violating Article 14 of the Constitution. In the same vein, the respondents cannot adopt practices of engaging individuals for years together by not adopting the regular process of selection when the work exists. Hiring the applicants on temporary basis for decades cannot be claimed as a proper procedure and it goes against the grain of the Uma Devi Judgment.
II. We also fail to understand that when the Govt. has taken a policy decision to outsource work through tender process by duly amending GFR, the respondents appear to have not worked on this. Without doing so, the respondents have been using the services of the applicant for decades to deal with work of loading/unloading mail, closing and opening of bags, etc, which they claim is seasonal, but they have not come with any statistics to prove their assertion. Moreover, loading and unloading as well as the opening/closing of mail bags is part of the mail transmission process and hence, is permanent. The nature of work remains the same and only difference is in regard to the quantum of work. The respondents could have worked out the average annual minimum and decided the issue in engaging manpower as per rules and law. We do not find any application of mind in this direction, to put a quietus to the dispute. A reading of the para 53 of the Uma Devi judgment - (2006) 4 SCC 1; 2006 SCC (L&S) 753, extracted hereunder will have a bearing in deciding the case of the applicants.
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"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 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 courts or of tribunals. The question of regularization 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 regularize 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 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. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-
passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme." Uma Devi judgment was further elaborated by the Hon'ble Supreme Court in State of Karnataka and Ors v M.L.Kesari and Ors. in Civil Appeal arising out of SLP (C) No. 15774/2006 vide judgment dt. 03.08.2010, wherein it was held that the judgment in Uma Devi judgment is not a one-time affair as under:
"4. The decision in State of Karnataka v. Umadevi was rendered on 10.4.2006 (reported in 2006 (4) SCC 1). In that case, a Constitution Bench of this Court held that appointments made without following the due process or the rules relating to appointment did not confer any right on the appointees and courts cannot direct their absorption, regularization or re- engagement nor make their service permanent, and the High Court in exercise of jurisdiction under Article 226 of the Constitution should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment had been done in a regular manner, in terms of the constitutional scheme; and that the courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities, nor lend themselves to be instruments to facilitate the bypassing of the constitutional and statutory mandates. This Court further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. This Court however made one exception to the above position and the same is extracted below :
"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], R.N. Nanjundappa [1972 (1) SCC 409] and B.N. Nagarajan [1979 (4) SCC 507] and Page 7 of 11 OA No.61/2015 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 regularization 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 regularize 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 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. ...."
5. It is evident from the above that there is an exception to the general principles against `regularization' enunciated in Umadevi, if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular.
Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.
Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi, directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006).
6. The term `one-time measure' has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services.
7. At the end of six months from the date of decision in Umadevi, cases of several daily-wage/ad-hoc/casual employees were still pending before Courts. Consequently, several departments and instrumentalities did not commence the one-time regularization process. On the other hand, some Government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that Page 8 of 11 OA No.61/2015 their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of Para 53 of the decision in Umadevi, will not lose their right to be considered for regularization, merely because the one-time exercise was completed without considering their cases, or because the six month period mentioned in para 53 of Umadevi has expired. The one-time exercise should consider all daily-wage/adhoc/those employees who had put in 10 years of continuous service as on 10.4.2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi, but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi, the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one time exercise will be concluded only when all the employees who are entitled to be considered in terms of Para 53 of Umadevi, are so considered.
8. The object behind the said direction in para 53 of Umadevi is two- fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad-hoc/casual for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure."
Therefore, we are of the view that the rejection of the request of the applicants, who having been working with the respondents for decades together, is not fair. Respondents ought to have evolved appropriate mechanism to resolve the issue rather than leaving them in the lurch, since they would be age barred to apply for any other posts in the Govt. II. The definition of the part time casual labourer as explained by the applicants, is in favor of the applicants. Respondents have indicated that the applicants were engaged as Part time Porters as under:
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Sl. Name of the Unit in which he was Superintendent, RMS No. applicant permitted Visakhapatnam Division, Visakhapatnam Memo 1 M. Nageshwar Rao Sub Record Office, B2/ED/PTP/Rectt/96-97 Srikakulam Road dated 2.7.1996 (Annexure R-1) 2 L. Ramanandam Sub Record Office, B2/ED/PTP/Rectt/96-97 Vizianagaram dated 2.7.1996 (Annexure R-2) 3 P. Sanyasi Rao Head Record Office, B2/ED/PTP/Rectt/96-97 Visakhapatnam dated 2.7.1996 (Annexure R-2) 4 P. Satyanarayana Head Record office, B2/ED/PTP/Rectt/96-97 Visakhapatnam dated 16.12.1996 (Annexure R-3) 5 M. Janardhana Rao Head Record Office, B2/ED/PTP/Rectt/96-97 Visakhapatnam dated 3.7.1996 (Annexure R-4) 6 P.Ch.A. Office of B2/ED/PTP/Rectt/96-97 Satyanarayana Superintendent, RMS dated 2.7.1996 (Annexure R-5) 'V' Division, Visakhapatnam 7 Y. Venkateswara Rao Heard Record Office, B2/ED/PTP/Rectt/96-97 Visakhapatnam dated 2.7.1996 (Annexure R-6) 8 B. Gangadhara Rao Heard Record Office, B2/ED/PTP/Rectt/96-97 Visakhapatnam dated 2.7.1996 (Annexure R-6) Hence, the argument of the respondents that the applicants were engaged as outsiders does lack force. The Hon'ble Supreme Court judgment in U.O.I v Sakku Bai cited by the respondents is in regard to the payment of minimum of Group D pay and allowances to those who work for 8 hours as regular causal labourer. In the instant case, the issue is about grant of temporary status and regularization of services. Therefore, in the light of the Uma Devi judgment cited supra and the fact that the applicants were engaged as part time porters, it is necessary that the respondents have to re-examine the issue to examine grant of relief sought. Considering the latter interpretation of the Uma Devi, the observations of the Hon'ble Apex Court in Gagan Kumar supra, relied upon by the respondents may not come to their assistance.
Learned counsel for the applicants pleaded that unless some protection is given to the applicants, the respondents may disengage the applicants at any moment of time. In this regard, it is made clear that the respondents Page 10 of 11 OA No.61/2015 should be cognizant of the law that, a set of temporary/adhoc employees or casual labourers should not be replaced by another set of people of same category, unless the respondents themselves go for regular recruitment or any other process prescribed under rules/ law. All other contentions raised by both sides have also been carefully gone through. However, the contentions which have no relevance to the issue are not being commented upon.
III. In view of the above, respondents are directed to re-examine the claim of the applicants based on the observations made supra and take a decision in the matter in terms of relevant rules/law, within a period of 3 months from the date of receipt of this order. Till such time, the Interim Order will continue.
IV. With the above direction, the OA is disposed with no order as to costs. MA 243/2015 stands disposed of accordingly.
(B.V.SUDHAKAR) (ASHISH KALIA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
evr
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