Central Administrative Tribunal - Delhi
Hon Ble Shri B.K.Sinha vs The Union Of India (Through Secretary) on 21 November, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO.3870 OF 2013 New Delhi, this the 21st day of November,2014 CORAM: HONBLE SHRI B.K.SINHA, ADMINISTRATIVE MEMBER AND HONBLE SHRI RAJ VIR SHARMA,JUDICIAL MEMBER . Smt. Murti, aged about 37 = years (with DOB 2.4.1966 as per official record) w/o Sh.Narsi Dass, presently working as Safai Karmachari in erstwhile Gp.D Defence Civilian post by grant of substantive Absorption on accord of regularization from Casual Labourer Temporary Status in 40 Coy ASC Supply, Type D, Meerut Cantt. Under Dte Gen Supply & Transport (ST-12), QMGs Branch, AHQ Ministry of Defence, R/o H-28, Handia Mohalla, Bara Bazar,Lal Kurti, Meerut Cantt. Applicant (By advocate: Shri V.P.S.Tyagi) Vs. 1. The Union of India (through Secretary), Ministry of Defence, South Block, New Delhi. 2. The Controller of General Defence Accounts, Ulan Batar Marg, Palam Delhi Cantt. 3. The CDA (Army), Belvadier Complex, Meerut Cantt.(U.P.) 4. The Commandant, 40 Coy ASC (Supply) Type D, Meerut Cantt. (UP) .. Respondents (By advocate: Shri M.S.Reen) .. ORDER Raj Vir Sharma,Member(J):
In this Original Application filed on 5.7.2013, the applicant has prayed for the following relief:
(a) To direct the respondents to grant all the envisaged benefits as per OM dt.7.6.88 as well and para 5 of the DOPT Schemes of 10.9.1993 for payment of paid weekly off and grant of increments on fixation of pay on accord of Regularization and benefit of earned leave on credit of the applicant to be brought forward on her regularization.
(b) Make payment of all arrears of benefits as is granted to other similarly situated employees with refund of any amount irregularly deducted under the guise of the New Pension Scheme applicability along with interest 18% p.a. simple interest on all the arrears due to the applicant from the date fell as such till date of payment made.
(c) To pass any order or directions as deemed just and proper in the facts and circumstances of the case with Award of cost of this application.
2. The applicant was initially engaged as a casual labourer on daily wage basis on 1.10.1988 by respondent no.4. She was conferred temporary status with effect from 15.9.1994 in accordance with the Scheme appended to the DoP&Ts O.M. dated 10.9.1993, vide order dated 15.9.1994 issued by respondent no.4. Thereafter, she was appointed as Safaiwala on regular basis with effect from 13.6.2005, vide order dated 9.6.2005.
3. The applicant had earlier approached this Tribunal in OA No.3946 of 2011 (Smt. Murthi vs. UOI & ors).The Tribunal disposed of the said O.A., vide order dated 7.5.2013. The order dated 7.5.2013 reads thus:
The applicant, a Safaiwali, who was given temporary status w.e.f. 1.9.1993, and was later appointed regularly w.e.f. 21.7.2005, is aggrieved by inaction of the respondents in not bringing her into the Old Pension Scheme, 1972 as she is eligible under the said Scheme. The 5th respondent vide Annexure A-1 dated 4.1.2010 while stating that after counting of 50% temporary status service, the applicant is entitled for consideration of her case under the Old Pension Scheme and for grant of consequential benefits under the said old Scheme, has sought necessary advice from the 4th respondent. However, the respondent No.4 has not passed any order so far.
2. Under these circumstances, the present OA is disposed of directing the respondent No.4 to pass appropriate orders on the Annexure A1 dated 4.1.2010, within a period of two months from the date of receipt of a copy of this order.
3. Learned counsel for the applicant also submits that he is not pressing the OA with regard to the prayer for payment of paid weekly off and for grant of increments on fixation of pay on accord of Regularization and benefit of earned leave on credit, under para 8(b) of the OA, however, seeks permission to file a separate Original Application, as per law, and the same is permitted.
4. Thus, the applicant has filed the present O.A. Her first grievance is that she was not paid arrears on account of Paid Weekly Off during the period when she had worked as a casual labourer and also as a casual labourer with temporary status. Her second grievance is that she was not granted increments at the time of fixation of pay on her regular appointment. Her third grievance is that the leave earned by her during the period of her working as a casual labourer with temporary status was not brought forward to his leave account after her regular appointment.
4.1 As regards the applicants fourth grievance regarding refund of the amount of money deducted from her salary towards contribution to the New Pension Scheme and payment of interest thereon, we are not inclined to entertain the said grievance inasmuch as no permission had been granted by the Tribunal to the applicant to file a fresh O.A. even in the absence of any final decision being taken by the appropriate authority in the matter. The applicant has also not produced any material showing that the authority, which had been directed by the Tribunal to pass appropriate orders on the applicants representation, has taken any decision unfavorable to her, nor has she made detailed averments and brought on record sufficient materials, along with the present O.A., before this Tribunal to consider the said claim.
4.2 Therefore, in the present case, we have to consider the respective cases of the parties with regard to the grievances of the applicant as narrated in paragraph 4 above.
5. It is contended by the applicant that her initial engagement was not made for work of intermittent or casual nature but was made against the substantive post of Industrial Labourer in Group D and that in terms of DoP&Ts O.M. dated 7.6.1988 and O.M. dated 10.9.1993, she was entitled to be given paid weekly off during the period of her working as a casual labourer and also as a casual labourer with temporary status. In support of this contention, the applicant has referred to and relied on the decision of the Tribunal in Sh.Chetan, etc. vs. Union of India and others, OA No.3222 of 2011 and O.A.No.411 of 2012, decided on 21.9.2012.
5.1 It is also contended by the applicant that as per paragraph 5 (II) of the Scheme appended to the DoP&Ts O.M. dated 10.9.1993, she was entitled to increments every year, and that as per paragraph 5(III) of the said scheme, she was also entitled to have the leave at her credit during the period of her working as a casual labourer with temporary status carried forward to her leave account on regularization.
6. Opposing the O.A. the respondents have filed a counter reply. It is, inter alia, stated by the respondents that paragraph 1(vi) of the O.M. dated 7.6.1988 is not applicable to the applicant who was working as a casual labourer with temporary status and therefore, she was not entitled to paid weekly off. It is also stated that paragraph 5 of the Scheme appended to the DoP&Ts O.M. dated 10.9.1993, which clearly stipulates the entitlements of casual labourer with temporary status, does not provide for granting paid weekly off to casual labourer with temporary status. In terms of paragraph 6 of the Scheme appended to the DoP&Ts O.M. dated 10.9.1993, no benefits other than those specified in paragraph 5 are admissible to casual labourers with temporary status. As regards the applicants claim for grant of increments at the time of fixation of her pay and carrying forward of leave to her leave account on regular appointment, the respondents have stated that the same have to be done by the concerned Administrative Ministry/Department. The respondents have also stated that the applicants claim for payment of arrear on account of paid weekly off for the period from 1.10.1988 to 31.8.1993 was received in their office on 30.7.2013 and was under scrutiny.
7. Controverting the stand taken by the respondents, the applicant has filed a rejoinder reply wherein she has more or less reiterated the same averments and contentions as in the O.A. Besides, in support of her claim, the applicant has referred to and relied on the decisions of the Tribunal in Vijay Pal & others vs. Union of India and others, OA No.1046 of 2007, decided on 23.10.2007; Sh.Naresh, etc. vs. The Union of India and others, OA Nos. 3639 to 3641 of 2009, decided on 30.4.2010; and Smt. Jasoda & others vs. Union of India and others, OA No.1336 of 2012, decided on 21.11.2013. The applicant has also filed some documents dated 8.3.2011, 9.3.2011, 10.3.2011 and 20.6.2013, along with her rejoinder reply, in support of her claim that persons similarly placed as her have been paid arrears on account of paid weekly off during the period of their working as casual labourers and also as casual labourers with temporary status.
8. We have perused the pleadings and heard Shri V.P.S.Tyagi, learned counsel appearing for the applicant, and Shri M.S.Reen, learned counsel appearing for the respondents.
9. Reiterating the contentions raised in the O.A., the learned counsel appearing for the applicant invited our attention to paragraph 1(vi) of the DoP&Ts O.M. dated 7.6.1988 as well as O.M. dated 10.9.1993 and the Scheme appended thereto, and submitted that the respondents have acted illegally in not making payment of arrears of paid weekly off during the period when the applicant had worked as a casual labourer and also as a casual labourer with temporary status. It was also submitted by the learned counsel that when admittedly the persons similarly placed as the applicant have been paid arrears of paid weekly off, denial of the same to the applicant is discriminatory. During the oral arguments, the learned counsel also filed copies of certain documents showing payment of arrears on account of Paid Weekly Off by the respondents to similarly situated employees. The learned counsel also took us through the decisions of the Tribunal, referred to in the O.A. and rejoinder reply, and submitted that the entitlement of employees, like the applicant, for payment of arrears of paid weekly off having already been decided by the Tribunal in those decisions, the respondents ought not to have denied such dues to the applicant.
10. Per contra, the learned counsel appearing for the respondents submitted that in none of the decisions cited by the learned counsel for the applicant, the Tribunal held that casual employees with temporary status are entitled to paid weekly off, and that in view of clear stipulation contained in the DoP&Ts O.M. dated 10.9.1993, vide para 6, the applicants claim for being paid arrears of paid weekly off during the period of her working as a casual labourers with temporary service is untenable. The learned counsel also submitted that paragraph 1(vi) of the DoP&Ts O.M. dated 7.6.1988 relates to casual labourer/worker and not to casual labourer with temporary status.
11. Before proceeding further, we would like to refer to the decisions cited by the learned counsel appearing for the applicant in support of the claim of the applicant for payment of arrears on account of paid weekly off.
11.1 In Vijay Pals case (supra), the order dated 23.10.2007 passed by the Tribunal reads thus:
Heard the counsel for the respondents. None for the applicants. Matter is proceeded under Rule 15 of the CAT (Procedure) Rules,1987.
2. The following reliefs have been prayed for by the applicant in this O.A.:
(a) Quash and set aside the impugned order (A-1) with direction to the respondents to grant to the applicants the envisaged benefits as per para 5 of DOP&T OM dated 10.09.93 as consequential thereto.
(b) Work out and compute the arrears correctly by re-fixing the applicants initial pay on grant of regularization by giving benefit of annual increments accrued to them during their Temporary Status period as per instructions contained in DOP&T Scheme of 1993 also giving financial effect on regularization.
(c) Issue requisite and necessary DOP&T II Order for grant of 50% period of service as daily wager prior to grant of Temporary Status and full period from Temporary Status i.e. 01.09.93 till regularization to be treated as qualifying service for pensionary benefit and be incorporated in the service record of the applicants by holding the provision of Para 5(V) of DOP&T Scheme to have become redundant(A-2).
(d) Work out the accumulated leave, learned leave as clarified by the DOP&T to be carried forward for credit in the applicants Leave Account by publishing casually in Pt.II Order to be suitably incorporated in Leave Account maintained in Service Book.
(e) Accord benefit of weekly off and paid Gazetted holidays for purpose of counting no. of working days and reconsider the payment of Ad hoc Bonus by taking into consideration the No. of days of weekly off and Gazetted holidays which has not been taken into account now and arrears thereof to be paid with 18% p.a. interest from the date it fell due till date of payment.
3. The order impugned dated 18.01.2007 has disposed of the claim of the applicants by stating that 50% of service rendered under temporary status is being counted for the purpose of retrial benefits. Accordingly, on grant of 50% of the qualifying service and as per para 5 of DOP&T Scheme of 1993, re-fixation of pay by granting benefit of annual increments is consequential which has now been agreed to by the respondents to be granted to the applicants.
3. As regards weekly off and paid Gazetted Holidays, as there is legal entitlement to the applicants, the same is also agreed to by the respondents as per rules and instructions on the subject. So far as the last relief is concerned, the claim is for working out the accumulated leave and Earned Leave to be carried forward in the leave account by suitably incorporating the same in leave account maintained in the Service Book. The same would be done by the respondents within two months from the date of receipt of a copy of this order in accordance with rules and instructions. Accordingly, with the above observations the O.A. stands disposed of. No costs. 11.2 In Sh.Nareshs case (supra), the order dated 30.4.2010 reads thus:
Learned counsel for the applicants submits that the applicants in these three matters were granted temporary status on different dates in terms of the Scheme for grant of temporary status and regularization of 10.09.1993 made effective from 01.09.1993. However, it is submitted that the grievance is that the amount paid to them was not fixed at the minimum of the pay scale for group D and thereafter when they were regularized in the year 2003 the benefit of the increments which would have accrued to them accordingly was not implemented in fixation of their pay at the time of such regularization.
2. Learned counsel for the applicant further submits that the applicants were entitled to weekly off in terms of the Government instructions in that regard which are of 1999 and issued by the DoP&T. It is stated that the weekly off were not granted accordingly and therefore to that extent the applicants be given compensation in lieu of the same in accordance with the instructions referred to by the applicants and release to them benefits that may be due and entitled in accordance with the scheme.
3. The learned counsel therefore submits that since the Scheme is quite clear and its provisions would be applicable as the applicants were granted temporary status and thereafter regularized, the applicants would be satisfied at this stage if the respondents are asked to refer to the Scheme and consider the prayer of the applicants in these OAs to extend to them the benefit of increments upon grant of temporary status with fixation at the minimum of the pay scale of group D and thereafter take such increments into account for fixation of pay upon regularization. We therefore direct the respondents to treat these OAs as representations of the applicants keeping in view the submissions noted above and take a decision by passing a speaking order which shall be communicated to the applicants within a period of three months from the date of receipt of a certified copy of this order. No costs. The arrears due to them be also released within aforesaid period.
4. A copy of this order be placed in OA 3640/2009 and OA 3641/2009 files also. 11.3 In Sh.Chetans case (supra), O.A.No.3222 of 2011 and O.A.No.411 of 2012 were decided by the Tribunal by a common order. The applicant in OA No.3222 of 2011 had admittedly been engaged as a daily wager in the year 1980. His services had been regularized with effect from 16.9.1993. He had never been conferred temporary status before regularization of his services. The respondents had rejected his claim for being paid arrears of paid weekly off on the plea that the DoP&Ts OM dated 7.6.1988 was applicable only to casual workers and that the applicant was not a casual worker. So far as OA No.411 of 2012 is concerned, the applicants grievance was that the respondents had not made payment of arrears to them on account of paid weekly off during the period of his working as a casual worker in accordance with the DoP&Ts O.M. dated 7.6.1988. The Tribunal dismissed OA No.411 of 2012 as being barred by res judicata. As regards OA No.3222 of 2011, the Tribunal held thus:
19. We have considered the submissions made by the applicant and the Annexure A-1 letter of the respondents dated 13.3.2011. We have also considered the reply filed by the respondents. The admitted position by the respondents themselves is that he was working as a daily wager/ casual worker with them with effect from 1980. He has already been regularized w.e.f. 16.9.1993 which was before the actual implementation of the Casual Labourers (Grant of Temporary Status and Regularization) Scheme of Govt. of India 1993 even though the said scheme came into force w.e.f. 1.9.1993. However, their contention is that the DOP&Ts OM dated 7.6.1988 is applicable only to casual workers. The aforesaid stand taken by respondents is quite fallacious and against the facts. There is no difference between terms casual wager/ casual worker and casual worker as envisaged in DOPTs OM dated 7.6.1988. The subject of the said OM itself is Recruitment of Casual Workers and persons on daily wages - Review of Policy. In fact, the designation given to the applicant as casual wager/casual worker is the respondents own coinage in order to frustrate his claims in this OA. It is true that the applicant was not given the temporary status but he was straightway regularized in service w.e.f. 16.9.1993 on the basis of the relaxation given for regularization of casual labourers engaged in terms of the OM dated 7.6.1988, as provided in DOPTs subsequent OM dated 8.4.1991. Hence he was entitled for paid weekly off and paid National Holiday for the admitted period of his engagement from 1980 to 16.9.1993 which has not been paid to him. Therefore, the respondents are bound to pay the amount on account of them.
20. We, therefore, dispose of this OA with the direction to the respondents determine the various weekly off dates and the National Holidays during the period from 1980 to 16.9.1993 and make the payments as provided in the said OM dated 7.6.1988 within three months from the date of receipt of a copy of this order. He shall also be paid the simple interest at the rate of 9% per annum for the delayed payment till the amount is actually paid. 11.4 In Smt. Jasodas case (supra), the order dated 21.11.2013 passed by the Tribunal reads thus:
The grievance of the applicants in the OA is that the full benefits in terms of the OM dated 10.9.1993 issued by the Department of Personnel & Training, i.e., grant of arrears and leave, have not been granted to them, whereas the same have been granted to others on substantive absorption in regular Group D post as Chowkidar.
2. Applicants have sought the following reliefs:
(a) Direct the Respondents to correctly workout and compute the Annual increment on reckoning the conferment of the Temporary Status w.e.f. 1.9.93 and make payment thereof with 18% p.a. interest thereon by continuing the basic pay at the stage reached on grant of increment by replacement to the pay scale of Rs.2550-3200 w.e.f. 1.1.96 from the scale of 750-940 for purpose of payment of pro-rata daily wages by also fixing the appropriately pro-rata wages under 6th Central Pay Reversion.
(b) Direct the respondents to workout and compute the paid weekly off remaining still unpaid as per the DOP&T OM dated 07.06.1988 and reiterated in OM dated 10.9.1993 by grant of all the envisaged benefits as per para 5 thereof with arrears @ 18% p.a. interest.
(c) Pass any order or direction as deemed just and proper in the award of cost favouring applicant.
3. We have heard the learned counsel for the parties. Learned counsel for applicant has drawn our attention to paragraphs 9 and 10 of the counter reply filed by the respondents. Paragraph 9 of the counter reply is reproduced below:
9. Para 4.6 & 4.7 The arrears of paid weekly remaining unpaid has been worked out and the bill amounting to (Jasoda Devi) Rs.75,608/- (OPramila Devi) Rs.76,530/- & (Sakuntala Devi) Rs.61,813/- (Rupees two lakh fourteen thousand nine hundred fifty one only) has been forwarded to the CDA (Army) Pay III Section for payment vide our letter No.1582/ST-12 (Civ) dt.03 Jan 13 (copy attached).
3. It is admitted by the respondents in their reply that the unpaid arrears of paid weekly has been worked and the bill in this regard has been forwarded to the CDA (Army), Pay III Section for payment, which appears to be still pending. It is expected that the aforesaid amount would be paid to the applicants as expeditiously as possible, but not later than six weeks from the date of receipt of a copy of this order.
5. Learned counsel for the applicant further drew our attention to paragraph 4.8 of the counter reply wherein it has been stated that since there is no relief sought by the applicants, no leave to which they are entitled has yet been worked out. Since the aforesaid benefit is a part of the scheme issued by the DOP&T, the applicants have a right to the benefits as accrues to them under the scheme.
6. Accordingly, we direct the respondents that whatever leave entitlement is to be calculated in terms of the aforesaid OM dated 10th September, 1993 issued by the DOP&T, such calculation would be completed within a period of six weeks from the date of receipt of a copy of this order. Applicants have claimed interest of 18% per annum on the amount to be paid with effect from the date on which the payment was due, till the date on which payment is actually made. At this stage we feel that the applicant be compensated by way of granting interest for the period of three months at the same rate at which the respondents pay interest on GPF to their employees.
7. OA is disposed of with the afore-noted directions. Applicants shall be at liberty to initiate appropriate legal proceedings thereafter if they still have a grievance, if so advised. No costs. 11.5 A reading of the above orders passed by the Tribunal makes it clear that in none of the said cases, the question of entitlement, or otherwise, of casual labourers with temporary status to be given paid weekly off was specifically examined, nor was any positive finding thereon returned by the Tribunal. It was also not specifically held by the Tribunal that casual labourers with temporary status are entitled to Paid Weekly Off in terms of the DoP&Ts O.M. dated 7.6.1988 although paragraph 6 of the DoP&Ts O.M. dated 10.9.1993 stipulated that no benefits other than those specified in paragraph 5 of the said O.M. would be admissible to casual labourers with temporary status. In view of this, the aforesaid decisions cited by the learned counsel for the applicant do not come to the aid of the applicant in support of her claim for payment of arrears on account of paid weekly off during the period of her working as a casual labourer with temporary status.
12. In the present case, it is thus to be examined as to whether or not the applicant is entitled to payment of arrears on account of paid weekly off during the period of her working as a casual labourer and also as a casual labourer with temporary status. At this stage, it would be necessary to refer to the DoP&Ts O.M. dated 7.6.1988 and O.M. dated 10.9.1993 which read thus:
(i) DoP&Ts O.M.No.49014/2/86-Estt.(C ) dated 7th June, 1988:
Subject: Recruitment of casual workers and persons on daily wages -Review of policy.
The policy regarding engagement of casual workers in Central Government offices has been reviewed by Government keeping in view the judgment of the Supreme Court delivered on the 17th January, 1986 in the Writ Petition filed by Shri Surinder Singh and others vs. Union of India and it has been decided to lay down the following guidelines in the matter of recruitment of casual workers on daily wage basis:-
i) Persons on daily wages should not be recruited for work of regular nature.
ii) Recruitment of daily wagers may be made only for work which is casual or seasonal or intermittent nature or for work which is not of full time nature, for which regular posts cannot be created.
iii) The work presently being done by regular staff should be reassessed by the administrative Departments concerned for output and productivity so that the work being done by the casual workers could be entrusted to the regular employees. The Departments may also review the norms of staff for regular work and take steps to get them revised. If considered necessary.
iv) Where the nature of work entrusted to the casual workers and regular employees is the same, the casual workers may be paid at the rate of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance for work of 8 hours a day.
v) In cases where the work done by a casual worker is different from the work done by a regular employee, the casual worker may be paid only the minimum wages notified by the Ministry of Labour or the State Government/Union Territory Administration, whichever is higher, as per the Minimum Wages Act, 1948. However, if a Department is already paying daily wages at a higher rate, the practice could be continued with the approval of its Financial Adviser.
vi) The casual workers may be given one paid weekly off after six days of continuous work.
vii) The payment to the casual workers may be restricted only to the days on which they actually perform duty under the Government with a paid weekly off as mentioned at (vi) above. They will, however, in addition, be paid for a National Holiday, if it falls on a working day for the casual workers.
viii) In cases where it is not possible to entrust all the items of work now being handled by the casual workers to the existing regular staff, additional regular posts may be created to the barest minimum necessary, with the concurrence of the Ministry of Finance.
ix) Where work of more than one type is to be performed throughout the year but each type of work does not justify a separate regular employee, a multifunctional post may be created for handling those items of work with the concurrence of the Ministry of Finance.
x) The regularisation of the services of the casual workers will continue to be governed by the instructions issued by this Department in this regard. While considering such regularisation, a casual worker may be given relaxation in the upper age limit only if at the time of initial recruitment as a casual worker, he had not crossed the upper age limit for the relevant post.
xi) If a Department wants to make any departure from the above guidelines, it should obtain the prior concurrence of the Ministry of Finance and the Department of Personnel and Training. All the administrative Ministries /Deptts. should undertake a review of appointment of casual workers in the offices under their control on a time-bound basis so that at the end of the prescribed period, the following targets are achieved:-
a) All eligible casual workers are adjusted against regular posts to the extent such regular posts are justified.
b) The rest of the casual workers not covered by (a) above and whose retention is considered absolutely necessary and is in accordance with the guidelines, are paid emoluments strictly in accordance with the guidelines .
c) The remaining casual workers not covered by (a) and (b) above are discharged from service.
2. The following time limit for completing the review has been prescribed in respect of the various Ministries/Deptts:-
a) Ministry of Railways 2 Years b) Department of Posts, Department of 1 Year Telecommunications and Department of Defence Production c) All other Ministries / Deptts./Offices 6 months (ii) DoP&Ts O.M No.51016/2/90-Estt.(C ) dated 10.9.1993:
Subject: Grant of temporary status and regularization of Casual workers formulation of a scheme in pursuance of the CAT, Principal Bench, New Delhi, judgment dated 16th Feb. 1990 in the case of Shri Raj Kamal & others Vs. U.O.I. The guidelines in the matter of recruitment of persons on daily wage basis in Central Government offices were issued vide this Departments O.M. No.49014/2/86-Estt. ( C) dated 7.6.198. The policy has further been reviewed in the light of the judgment of the C.A.T., Principal Bench, New Delhi, delivered on 16.2.90 in the writ petition filed by Shri Raj Kamal and others vs. Union of India and it has been decided that while the existing guidelines contained in O.M. dated 7.6.88 may continue to be followed, the grant of temporary status to the casual employees, who are presently employed and have rendered one year of continuous service in Central Government offices other than Department of Telecom, Posts and Railways may be regulated by the scheme as appended.
2. Ministry of Finance, etc. are requested to bring the scheme to the notice of appointing authorities under their administrative control and ensure that recruitment of casual employees is done in accordance with the guidelines contained in O.M. dated 7.6.88. Cases of negligence should be viewed seriously and brought to the notice of appropriate authorities for taking prompt and suitable action.
(Y.G.Parande) Director To All Ministries/Departments/Offices of the Government of India as per the standard list.
Copy to: (1) All attached and subordinate offices of
(i) Ministry of Personnel, PG & Pensions
(ii) Ministry of Home Affairs (2) All officers and sections in the MHA and Ministry of Personnel PG and Pensions.
(Y.G.Parande) Director Department of Personnel & Training, Casual Labourers (Grant of Temporary Status and Regularization) Scheme:
1. This scheme shall be called "Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India, 1993."
2. This Scheme will come into force w. e. f. 1.9.1993.
3. This scheme is applicable to casual labourers in employment of the Ministries/Departments of Government of India and their attached and subordinate offices, on the date of issue of these orders. But it shall not be applicable to casual workers in Railways, Department of Telecommunication and Department of Posts who already have their own schemes.
4. Temporary Status
(i) 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).
(ii) Such conferment of temporary status would be without reference to the creation/availability of regular Group `D posts.
(iii) Conferment of temporary status on a casual labourer would not involve any change in his duties and responsibilities. The engagement will be on daily rates of pay on need basis. He may be deployed anywhere within the recruitment unit/territorial circle on the basis of availability of work.
(iv) Such 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.
5. Temporary status would entitle the casual labourers to the following benefits:-
I) Wages at daily rates with reference to the minimum of the pay scale for a corresponding regular Group `D official including DA, HRA and CCA.
II) Benefits of increments at the same rate as applicable to a Group `D employee would be taken into account for calculating pro-rata wages for every one year of service subject to performance of duty for at least 240 days, 206 days in administrative offices observing 5 days week) in the year from the date of conferment of temporary status.
III) Leave entitlement will be on a pro-rata basis at the rate of one day for every 10 days of work. Casual or any other kind of leave, except maternity leave, will not be admissible. They will also be allowed to carry forward the leave at their credit on their regularisation. They will not be entitled to the benefits of encashment of leave on termination of service for any reason or on their quitting service.
IV) Maternity leave to lady casual labourers as admissible to regular Group `D employees will be allowed.
V) 50% of the service rendered under temporary status would be counted for the purpose of retirement benefits after their regularisation.
VI) After rendering three years continuous service after conferment of temporary status, the casual labourers would be treated on par with temporary Group `D employees for the purpose of contribution to the General Provident Fund, and would also further be eligible for the grant of Festival Advance/Flood Advance on the same conditions as are applicable to temporary Group `D employees, provided they furnish two sureties from permanent Government servants of their Department.
VII) Until they are regularized, they would be entitled to Productivity Linked Bonus/ Ad hoc bonus only at the rates as applicable to casual labourers.
6. No benefits other than those specified above will be admissible to casual labourers with temporary status. However, if any additional benefits are admissible to casual workers working in Industrial establishments in view of provisions of Industrial Disputes Act, they shall continue to be admissible to such casual labourers.
7. Despite conferment of temporary status, the services of a casual labourer may be dispensed with by giving a notice of one month in writing. A casual labourer with temporary status can also quit service by giving a written notice of one month. The wages for the notice period will be payable only for the days on which such casual worker is engaged on work.
8. Procedure for filling up of Group D posts I) Two out of every three vacancies in Group D cadres in respective offices where the casual labourers have been working would be filled up as per extant recruitment rules and in accordance with the instructions issued by Department of Personnel & Training from amongst casual workers with temporary status. However, regular Group D staff rendered surplus for any reason will have prior claim for absorption against existing vacancies. In case of illiterate casual labourers or those who fail to fulfill the minimum qualification prescribed for post regularization will be considered only against those posts in respect of which literacy or lack of minimum qualification will not be a requisite qualification. They would be allowed any relaxation equivalent to the period for which they have worked continuously as casual labourer.
9. On regularization of casual worker with temporary status, no substitute in his place will be appointed, as he was not holding any post. Violation of this should be viewed very seriously and attention of the appropriate authorities should be drawn to such cases for suitable disciplinary action against the officers violating these instructions.
10. In future the guidelines as contained in this Departments O.M. dated 7.6.88 should be followed strictly in the matter of engagement of casual employees in Central Government Offices.
11. Department of Personnel & Training will have the power to make amendments or relax any of the provision in the scheme that may be considered necessary from time to time.
13. A reading of both the DoP&Ts O.M. dated 7.6.1988 and O.M. dated 10.9.1993, along with the Scheme appended to it, makes it clear that a casual worker is to be given one paid weekly off after six days of continuous work as per sub-paragraph (vi) of paragraph 1 of the O.M. dated 7.6.1988, and that a casual labourer with temporary status is entitled to the benefits enumerated in sub-paragraphs (I) to (VII) of paragraph 5 of the Scheme, appended to the O.M. dated 10.9.1993. Sub-paragraphs (I) to (VII) nowhere provide for giving one paid weekly off to a casual labourer with temporary status after six days of continuous work. It has specifically been stipulated in paragraph 6 of the Scheme appended to the O.M. dated 10.9.1993 that no benefits other than those specified in paragraph 5 of the said O.M. will be admissible to casual labourers with temporary status, and that if any additional benefits are admissible to casual workers working in industrial establishments in view of provisions of Industrial Disputes Act, they shall continue to be admissible to such casual labourers. In support of the claim of the applicant for being given paid weekly off during the period of her working as a casual labourer with temporary status, the learned counsel appearing for her laid emphasis on the clause while the existing guidelines contained in O.M. dated 7.6.88 may continue to be followed occurring in paragraph 1 of the DoP&Ts O.M. dated 10.9.1993, and submitted that in view of the said clause, sub-paragraph (vi) of paragraph 1 of the O.M. dated 7.6.1988 is applicable to casual labourers with temporary status for being given paid weekly off, in addition to the benefits specified in paragraph 5 of the O.M. dated 10.9.1993, and thus the applicant is entitled to be paid arrears on account of paid weekly off during the period of her working as a casual labourer with temporary status. We do not find any substance in the said submission of the learned counsel for the applicant. The DoP&Ts O.M. dated 7.6.1988 lays down the guidelines in the matters of recruitment and entitlements of casual workers, which included the provision for giving casual workers one paid weekly off after six days of continuous work. The DoP&Ts O.M. dated 10.9.1993 was on the subject of grant of temporary status and regularization of casual workers as well as their entitlements as per the Scheme appended thereto. In its O.M. dated 10.9.1993, the DoP&T, while circulating the Scheme of the Government of India for grant of temporary status to casual labourers and regularization of their services and specifying the entitlements of casual labourers with temporary status, stated that existing guidelines contained in O.M. dated 7.6.1988, which relate to recruitment of persons on daily wage/casual basis and their entitlements, might be followed with respect to the matters covered by the said O.M. dated 7.6.1988. That is to say, the said Scheme is applicable to persons who were/are recruited and otherwise continue as casual workers/labourers as per the guidelines contained in the O.M. dated 7.6.1988 and that the said guidelines may continue to be followed only in respect of recruitment of persons on daily wage/casual basis and their entitlements and not for giving any of the benefits thereunder to the casual labourers who are granted temporary status under the said Scheme. Thus, in our considered view, the said clause can by no stretch of imagination be construed to mean that the benefit granted to a casual labourer, vide sub-paragraph (vi) of paragraph 1 of the O.M. dated 7.6.1988, is admissible to a casual labourer with temporary status, more so when the entitlements of casual labourers with temporary status have been specifically prescribed in paragraph 5 of the O.M. dated 10.9.1993 and when paragraph 6 of the O.M. dated 10.9.1993 stipulated that no benefits other than those specified in paragraph 5 (ibid) are admissible to casual labourers with temporary status. In this view of the matter, we have no hesitation to hold that the applicant is entitled to be given paid weekly off during the period of her working as a casual labourer and that she is not entitled to be given paid weekly off during the period of her working as a casual labourer with temporary status.
14. As regards the documents filed by the learned counsel appearing for the applicant showing that persons similarly placed as applicant have been given arrears of paid weekly off by the respondents, we would like to observe here that it is well settled that Article 14 of the Constitution of India has no application or justification to legitimize an illegal and illegitimate action. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals, others cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly, wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. Therefore, even if the respondents have erroneously granted payment of arrears on account of paid weekly off to some individuals during the period of their working as casual labourers with temporary status, the applicant in the present case cannot be allowed to claim similar treatment.
15. As regards the claim of the applicant for grant of increments at the time of fixation of pay on regular appointment and carrying forward of leave at her credit to the leave account on her regular appointment, the applicant has not made detailed averments in her O.A. and rejoinder reply. No rule or Government of Indias decisions have been placed by the applicant in support of her claim for being granted increments at the time of fixation of pay on her regular appointment. The applicant has also not placed any material before us showing as to what was the pay fixed by the respondents consequent upon her regular appointment and as to what should have been her pay on regular appointment. In none of the decisions cited by the learned counsel appearing for the applicant, there was any clear findings recorded by the Tribunal that when a casual labourer with temporary status is appointed to a post on regular basis, in his case pay fixation has to be made by granting increments in the pay scale attached to the said post. In so far as the carrying forward of leave to her leave account on regular appointment, the applicant has also not produced any materials before this Tribunal showing as to how much leave was available at her credit till the date of her regular appointment, nor has she produced the up-to-date leave account prepared after her regular appointment. In the above view of the matter, we are unable to express any opinion with regard to the said claims of the applicant. The respondents in their counter reply (at page 27) have stated that fixation of pay and leave accumulation is to be done by the concerned Administrative Ministry/Department. It is pertinent to mention here that in the present O.A. the Union of India through the Secretary to Government of India, Ministry of Defence; the Controller General of Defence Accounts, Palam, Delhi Cantonment; the Controller of Defence Accounts (Army), Meerut Cantonment; and the Commandant, 40 Coy ASC (Supply) Type D, Meerut Cantt.(UP) have been impleaded as respondent nos. 1 to 4 respectively. We, therefore, fail to understand as to which Administrative Ministry/Department has to fix the pay of the applicant on her regular appointment and to finalize the leave account of the applicant by allowing her to carry forward the leave at her credit while working as a casual labourer with temporary status. The reply as given by the respondents is nothing but an attempt to evade their responsibility for considering and deciding the aforesaid claims of the applicant. Therefore, it is a fit case where appropriate direction has to be issued to the respondents to consider and decide the aforesaid claims of the applicant.
16. In the light of our above discussions, we direct the respondents to determine and pay the arrears admissible to the applicant on account of paid weekly off during the period of her working as a casual labourer in accordance with the DoP&Ts O.M. dated 7.6.1988, if the same have not already been paid to the applicant. We also direct the respondents to decide the questions of grant of increments to the applicants at the time of fixation of her pay and of allowing the applicant to carry forward the leave earned by her, while working as a casual labourer with temporary status, to the leave account on her regular appointment. The respondents shall comply with the directions contained in this order and communicate their decisions to the applicant within three months from today.
17. In the result, the O.A. is allowed to the extent indicated above. No costs.
(RAJ VIR SHARMA) (B.K.SINHA) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN