Central Administrative Tribunal - Lucknow
Mohd Ahmad vs Union Of India on 23 August, 2017
1
CENTRAL ADMINSTRATIVE TRIBUNAL
LCUKNOW BENCH, LUCKNOW
Original Application No. 551/2013
Order reserved on : 18.08.2017
Order pronounced on : 23.08.2017
Hon'ble Mr. Justice V.C. Gupta, Judicial Member
Mohd. Ahmad, aged about 56 years, Son of Sri
Khadim Husain, resident of Mohalla-Hujjaji, Post Office-
Dewa Sharif, District-Barabanki.
....Applicant
By Advocate : Sri A. U. Rahman.
Versus
1. Union of India, through its Secretary, Department of
Information and Board Casting, Government of
India, New Delhi.
2. Director, Directorate of Advertising and Visual
Publication, Department of Information and
Broadcasting government of India, K.G. Marg, New
Delhi.
3. Deputy Director [Administration] Directorate of
Advertising and Visual Publication, Department of
Information and Broadcasting, Government of India,
K.G. Marg, New Delhi.
4. Supervisory Officer, Advertising and Visual Publicity
Directorate Exhibition Anubhag, Government of
India, K.G. Marg, New Delhi.
5. Field Exhibition Officer, Directorate of Advertising
and Visual Publication, Government of India, FEO
Unit, Lucknow.
...Respondents
By Advocate: Mr. S. Lal for Sri H.G. Upadhyay.
ORDER
Delivered by: Justice V.C. Gupta, Member-J:
The applicant Mohammad Ahmad filed this original application under Section 19 of Administrative Tribunals Act- 1985 seeking the following reliefs:2
"(a) This Hon'ble Tribunal may be pleased to pass an order or direction quashing the impugned order dated 15.7.2013, passed by the Opposite Party No. 3, contained as annexed in Annexure No. 1 in compilation -I.
(b) This Hon'ble Tribunal may also be pleased to pass an order or direction commanding and directing to appoint him as regular basis on the post of Chaukidar/Helper, regularizing his services forthwith alongwith payment of admissible and regular pay scale.
(c) This Hon'ble Tribunal may also be pleased to pass an order or direction commanding and directing to opposite parties to pay the entire arrear of pay scale of said post deeming him regularly appointed Chaukidar since the date and year when his candidature was referred at that or the date when the junior to Petitioner has been appointed on post against question as regular basis.
(d) Such other relief to which the petitioner may be found entitled may also kindly be granted.
(e) The Original Application may be allowed with cost."
2. To decide this petition the facts in nutshell are that the applicant was engaged as daily wager in the office of respondent no. 5, Field Exhibition Officer, Directorate, Advertising and Visual Publication (in Short DAVP) at Lucknow unit. He worked as Chowkidar. According to the applicant he was firstly appointed on 22.04.1969 and his name was picked up as causal labour on the basis of requisition made by respondents from the employment exchange. It was further contended that petitioner continuously worked on the post of chowkidar as casual labour and completed prescribed number of days in a calendar year on various occasions. He applied for regularization of his services in pursuance of circular of DAVP dated 4.1.1983 but his case was not considered. He again requested to consider his claim for regularization in 1985 giving reference to earlier circular dated 4.1.1983 by attaching certificate issued by Field Exhibition Officer on 1st February, 1985 mentioning therein that applicant worked as daily wager about 243 days during the year 1983 and requested for sympathetic consideration for regularization of the applicant. Despite the said recommendation and reminders the petitioner was not considered. However, number of other junior employees working as casual labour had been given appointment on regular basis. Again in 1988 fresh applications were invited for regularization of daily wagers. In that regard the applicant obtained certificate of engagement in the year of 1986, 1987 & 1988, wherein he was shown to be engaged on 16.08.1988 and shown to work for 152 days in field during 1986-87 and 160 days in 1987-88. He filed another certificate issued on 8.2.89 wherein he was shown to work for 180 days in 1986, 3 148 days in 1987 in field & 210 days in 1988 in field and office, both inclusive. The copies of these certificate have been annexed as Annexure No. 5 & 6 to this O.A. but the applicant was not regularized and his candidature was again ignored arbitrarily and contrary to these circulars. By circular dated 10.04.1986 it was made clear that daily wagers who had completed 206 days each in last two years shall be given regular appointment to the post of Chowkidar/Helper. The circular dated 10.04.1986 has been annexed as Annexure no. A-7 to this OA which reads as under:
"la0 ,&12011@4@84&iz¼iz0½ Hkkjr ljdkj foKkiu vkSj n`"; izpkj funs"kky;
izn"kZuh iz"kklu vuqHkkx ch Cykd dLrwjck xka/kh ekxZ] ubZ fnYyh&1 fnukad 10-04-1986 dk;kZy; Kkiu {ks=h; izn"kZuh ,dd] bVkuxj esa bl funs"kky; ds ikl nSfud deZpkfj;ksa esa ls #0 196&232 ds osrueku esa pkSdhnkj ds nks in Hkjs tkus gSA 2- og nSfud deZpkjh ftUgksusa de ls de iwoZxkeh 2 o'kksZa esa izfro'kZ 206 fnu dh lsok iznku dh gS ¼ 4 o'kZ va"kdkfyd lkef;d deZpkfj;ksa ds ekeys esa½ vkS j mUgksua as bl in ls lEcaf/kr fuEufyf[kr fuEuor "kSf{kd ;ksX;rk Hkh izkIr dj yh gS% vfuok;Z% ugha mijksDr in ds Hkjus ds fy, bl funs"kky; ds tks Hkh nSfud deZpkjh bPNqd gS rFkk ik= gS mu ij ofj'Brk ds vk/kkj ij fopkj fd;k tk,xkA nSfud deZpkjh tks fd bl funs"kky; ds fofHkUu dk;kZy;ksa esa dk;Z dj jgs gSa] viuh bPNk dks] layXu izksQkekZ esa] ml vf/kdkjh ls lR;kfir djk dj] v|ksgLrk{kjh ds ikl 7-5-86 rd Hkstsa] ftlds v/khu og dk;Zjr gSA g0 ¼,u0Mh0 [kUuk½ Ik;Zos{kd lHkh nSfud deZpkjh eq[;ky; rFkk ckgjh {ks=h; dk;kZy;ksa lfgrA^^
3. It was further contended that by another memorandum dated 16.12.1994 by which the Field Units were requested to furnish the particulars of daily wager positively by 15.01.1995. The information was sought in respect of daily wager latest by 15.1.1995 with a caution that if defaulting units shall not furnished any such information it shall be presume that unit have not engaged any daily wager beyond 90 days. The copy of circular is annexed as Annexure -8. Circular dated 16.12.194 is reproduced herein below for ready reference:
"No. A-42011/10/14-Admn. IV Government of India Directorate of Advertising and Visual Publicity Ministry of Information and Broadcasting B Block, Kasturba Gandhi Marg New Delhi-1 Dated 16.12.94 4 MEMBORANDUM Subject : Engagement of Daily Wager Reference is invited to this Directorate memorandum of even number dated 4.8.94 by which all the field units were requested to furnish the requisite particulars of the Daily Wagers in the prescribed proforma through their Regional officers to the undersigned latest by 15.9.94 while some of the units have submitted the requisite particulars of the Daily wagers, some units have not submitted the particulars.
All the defaulting field units/regional officers are once again requested to furnish the requisite particulars of the Daily Wagers is enclosed proforma through their Regional officers to the under signed latest by 15.1.95 failing which it will be presumed that the unite have not engaged any Daily Wager (s) beyond 90 days and in case the particulars the Daily Wager(s) who worked more that 90 days not submitted in time the in charge of the unit will be responsible for the same.
(A. N. Bardaiyar) Dy. Director(Admn) To,
1. FEO, Agartala, Kohima, Jorhat, Bhubaneshwar, Lucknow, Simla, Jammu, Indore, Ahmadabad, Bangalore, Hyderabad, Madras, Trivandrum, Bhopal and Patna.
2. FEO, FW Unit- Lucknow Calcutta Ahmadabad, Bangalore.
3. FEO Van Unit Shillong, Bikaner.
4. R.O. Guwahati/Bangalore.
5. RDC, Madras.
6. All Sections at Headquarters.
(A. N. Bardaiyar) Dy. Director(Admn.)"
4. It was further contended that during year 1994-95, the petitioner has also completed engagement of requisite number of days but his name was not referred for consideration by opposite party no. 5 nor considered by the opposite party no. 2 to 4. It was contended that in the year 1986-87 the applicant has completed engagement of 268 days. The certificate to this effect has been annexed as Annexure A-9 wherein he was shown to be engaged for 268 days from 1.4.1986 to 26.11.1987. For this period of 268 days whole period of span was of 1 year and 7 months. He again gave representations on 22.12.2001 and 20.06.2000 in which he again prayed for regularization. When his name was not considered, the applicant filed Original Application No. 33 of 2003 before this Tribunal which was decided on 27.02.2003. The relevant 5 portion of the order is extracted herein below for ready reference:
"3. Our attention was drawn on behalf of the applicant to the representation dated 22.12.2001 and 20.5.2002 whereby the applicant has prayed for regularization on the ground that the juniors have already been regularized. In Para 4.15 of the O.A., the applicant has mentioned the names of the juniors who are regularized to the exclusion or the applicant who was denied the benefit of regularization though he was senior. Having heard the counsel for the parties, we dispose of the O.A. with the direction that the applicant may be considered for regularization prospectively in case, he is still in service and in case, any junior to him as mentioned in Para-4.15 of the O.A. has been regularized. The regularization of the applicant if due, shall be made in accordance with the extant rules and instructions in the matter."
5. In pursuance of aforesaid judgment the claim of the applicant was rejected vide an order dated 04.07.2003. The copy of which has been annexed as Annexure A-11 to this OA and is extracted herein below:
"No. C-30019/1/2003-ADMN.IV GOVERNMENT OF INDIA DIRECTORATE OF ADVERTISING & VISUAL PUBLICITY B-BLOCK BARRACKS, K.G. MARG New Delhi, the 4th July, 2003 Shri Mohammed Ahmed S/o Shri Khadim Hussain Mohalla Huzaji, Post 7 Vill. Deva Distt. Barabanki, UTTAR PRADESH Subject: OA/CCP No. 33 of 2003 filed by Shri Mohammed Ahmed v/s UOI and others before CAT, Lucknow Bench, Lucknow.
Sir, I am directed to refer to your letter dated 10.3.2003 enclosing thereto a copy of the Hon‟ble CAT‟s Lucknow Bench order dated 27.2.2003 on the above subject and to state that as per directions from the CAT, your case for regularization to the post of Chowkidar/Helper has been examined in accordance with the extant rules and instructions in the matter and on the basis of available record.
2. During the examination it has been found that you do not fulfill the eligibility condition of at least 240 days of engagement as casual labourer (including broken period of service) during each of the two years of service as per Department of Personnel & Administrative Reforms OM No. 49014/19-Est (C) dated 26.10.1984 nor the conditions laid down in Department of Personnel & Training OM No. 51016/2/90-Estt.(C) dated the 10th September, 1993 (copies enclosed).6
3. Daily wagers are not being engaged by DAVP and your contention for being in continuous engagement till date is not correct. It has been informed that you were assigned work only on contract basis in connection with various exhibitions from 2.1.2002 to 8.1.2002, 30.5.2002 to 5.6.2002, 17.7.2002 to 27.7.2002 and 20.10.2002 to 2.11.2002 by Field Exhibition Unit, Lucknow i.e. a total of 39 days.
4. In view of the position explained above it is not possible to accede to your request for regularization on the post of Chowkidar/Helper.
5. Further it is clarified that none of your representations dated 22.12.2001 and 20.5.2002 as referred to in the OA were received either by Lucknow Unit or at Hqrs.
6. This issues with the approval of Director, DAVP.
Yours faithfully, Sd/-
(Puran Singh) Deputy Director (Admn)"
6. The same was again challenged by filing another Original Application No. 382 of 2003 before this Tribunal. After completion of pleadings, the OA was dismissed on 21.05.2007. A review petition has also been filed against the order dated 21.05.2007. The same was also dismissed vide an order dated 14.09.2007.
7. Thereafter, the applicant filed a writ petition before Hon‟ble High Court bearing No. 1495 (SB) of 2007 on the ground that he was working as daily wager since last 20 years and claims for regularization in the Group-D post. In view of submissions made by petitioner the Hon‟ble High Court directed the respondents to consider the claim of the applicant for regularization alongwith other similarly situated person in accordance with rules expeditiously vide its order dated 9.4.2013. The copy of which has been annexed as Annexure A- 20 and reads as under:
"Service Bench No. 1495 of 2007 Without entering into the merit of the controversy, the writ petition is finally disposed of directing the respondents to consider the petitioner‟s case for regularization along with other similarly situated candidates in accordance with Rules expeditiously say, within four months and communicate decision.
The writ petition is finally disposed of."
In compliance of order of Hon‟ble High Court the impugned order dated 15.07.2013 has been passed by the authorities. It has been annexed as Annexure-1 and reads as under:
7"la-lh 30019@4@2007&iz"kk-AAA Hkkjr ljdkj foKkiu vkSj n`"; izpkj funs"kky;
¼lwpuk ,oa izlkj.k ea=ky;½ 8oha eafty] lwpuk Hkou] lh-th-vks- dkWEIySDl] yksnh jksM ubZ fnYyh&110003 fnukad 15-07-2013 lsok es]a Jh vQty&mj&jgeku] ,MoksdsV] pSEcj la-&54] mPp U;k;ky; bykgkckn {ks=kf/kdkj y[kuÅ [k.MihB] mPp U;k;ky; y[kuÅ dsljckx] y[kuÅ m-iz0&226001 fo'k;% Jh eksgEen vgen cuke la?k ljdkj vkSj vU; }kjk Ekkuuh;
bykgkckn mPp U;k;ky; {ks=kf/kdkj] y[kuÅ [k.MihB] y[kuÅ ds le{k nk;j dh xbZ fjV ;kfpdk la[;k 1495¼,l@ch½@2007- egksn;] mi;ZqDr fo'k; ij vkids fnukad 09-04-2013 ds i= ds lanHkZ esa] ftlds lkFk ekuuh; bykgkckn mPp U;k;ky; {ks=kf/kdkj] y[kuÅ [k.MihB] y[kuÅ ds fnukad 09-04-2013 ds vkns"k dh ,d izfr layXu dh xbZ gS] eq>s ;g dgus dk funs"k gqvk gS fd ekuuh; bykgkckn mPp U;k;ky; {ks=kf/kdkj ds funsZ"kkuqlkj Jh eksgEen vgen ds pkSdhnkj@ gSYij ds in dks fu;fer djus gsrq ekeys dh orZeku fu;eksa vkSj vuqns"kksa rFkk miYkC/k fjdkWMZ ds vk/kkj ij tkap dh xbZ gSA 2- tkap ds nkSjku ;g ik;k x;k gS fd Jh eksgEen vgen u rks dkfeZd vkSj iz"kklfud lq/kkj foHkkx ds fnukad 26-10-1984 ds dk-Kk- la- 49014@19@84 LFkkiuk ¼lh½ ds vuqlkj lsok ds nks o'kksZa ds izR;sd o'kZ ds nkSjku nSfud etnwj ¼lsok dh [kf.Mr vof/k lfgr½ ds #i esa de ls de 240 fnuksa dh ik=rk "krksaZs dks iwjk djrs gSa u gh os dkfeZd ,oa izf"k{k.k foHkkx ds fnukad 10 flrEcj] 1993 ds dk;kZy; Kkiu la- 51016@2@90&LFkk¼lh-½ esa fu/kkZfjr "krksZa dks iwjk djrs gSA¼izfr;ka layXu½ 3- fon`"izfu nSfud etnwjksa dks dke ij ugha j[krk gS vkSj vkids eqofDdy }kjk ;g rdZ fn;k tkuk fd og lrr~ #i ls dk;Z dj jgk Fkk] lgh ugha gSA ;g lwfpr fd;k x;k gS fd Jh eksgEen vgen dks {ks=h; izn"kZuh bdkbZ] fon`"izfu] y[kuÅ }kjk fnukad 02-01-2002 ls 08-01-2002] 30-05-2002 ls 05-06-2002] 17-07-2002 ls 27-07-2002 vkSj 20-10-2002 ls 02-11-2002 rd dqy 39 fnu ds fy, dsoy Bsdk vk/kkj ij fofHkUu izn"kZfu;ksa ls lacaf/kr lkSaik x;k FkkA 4- mi;ZqDr mfYyf[kr fLFkfr ds vkyksd esa Jh eksgEen vgen dks PkkSdhnkj@gsYij ds in ij fu;fer djus laca/kh vkids vuqjks/k dks Lohdkj djuk laHko ugha gSA rn~uqlkj Jh eksgEen vgen dks Hkh bl lac/a k esa fLFkfr ls voxr djk fn;k tk,A 5- bls egkfuns"kd] fon`"izfu ds vuqeksnu ls tkjh fd;k tkrk gSA Hkonh;] g0 ¼vjfoan dqekj JhokLro½ mi funs"kd ¼iz"kklu½ layXud% ;FkksifjA 8
7. Supplementary affidavit has been filed by the applicant wherein applicant has annexed the scheme of regularization dated 05.01.1984. He also filed OM dated 26.10.1984 with regard to appointment of daily wager which reads as under:
"Ministry of Home Affairs (Department of Personnel & A.R.) OM No. 49014/3/83/Estt. (C) dated 5.1.1984 (X) Subject: Appointment of daily wage/casual workers against regular Group „D‟ posts.
The undersigned is directed to refer to this Department‟s OM No. 49014/4/77/Estt.(C) dated 21.3.1979 in which, inter-alia, a complete ban was imposed on engagement of persons on daily wage basis for work of regular nature and it was also stipulated that if any contraventions are noticed, responsibilities should be fixed on the person who authorized such contraventions. These orders are still in force and are required to be implemented scrupulously. However, doubts have been expressed as to whether this ban prohibits appointment on a regular basis of all casual workers recruited after 20.3.1979 in Group „D‟ posts. It is hereby clarified that the imposition of the ban essentially relates to engagement of daily wagers for work of regular nature. Thus, if a person was engaged on daily wage basis against a regular post in contravention of the ban orders, he cannot be regularized in terms of the existing instructions on the subject. Persons on daily wage basis may, however, be recruited for work of purely temporary/casual/seasonal nature, if their recruitment is warranted by the requirements of a Ministry/Department etc. and is approved by the concerned Associated Finance/Department of Expenditure. If a persons so engaged, even after 20.3.79, happens to be in the service of the Govt. for a minimum period of 2 years, with at least 240 days of service as daily wage worker during each of the years (including broken periods of service), he may be considered for regular appointment against a Group „D‟ post, provided this recruitment was made through the Employment Exchange and he fulfills the other conditions of eligibility, such as age limits, educational qualifications etc., provided further that the Ministry / Department /Office concerned has suitable vacancy to accommodate him.
Sd/-
Km. S. Trikha Deputy Secretary to the Government of India."
"Ministry of Home Affairs (Department of Personnel and Administrative Reforms) OM No. 49014/84/Estt. (Cd) dated 26th October, 1984.
Subject: Implementation of the Instructions relating to regularization of services of casual 9 workers in Group D posts in the organizations observing five day week .
The undersigned is directed to say that as per the general instructions issued by this Department, the services of a casual worker may be regularised in a Group D post, provided, Inter alia. He has put in two years as a causal worker, with 240 days or more of service as such, during each year. The number of 240 days was worked out with reference to 6 day week being observed in Central Government offices. It has been brought to the notice of this Department that there are certain organisations, which have adopted the instructions issued by this Department about regularisation of services of casual workers, but who are observing a five day week. A question has been raised whether even in the organization observing five day week, the requirement of 240 days or more of service during each of the two years, may be enforced as it is, or whether the requisite number of days may be brought down proportionately.
2. The matter has been considered in this Department and it has been decided that in the organisations observing five day week, casual workers may be considered for regular appointment to Group D posts, if otherwise eligible, if they have put in 2 years of service as causal workers, with 206 days of service during each year (as against the usual 240 days). This may please be brought to the notice of all concerned.
Sd/ Miss Manjula Subramaniam Deputy Secretary to the Government of India."
8. The applicant also filed the scheme issued by DoP&T for regularization of casual labour and granting them temporary status. The copy of which is annexed as Annexure SA-3 to supplementary affidavit and is extracted herein below for ready reference:
"Department of Personnel and Training, Casual Labourers (Grant of Temporary Status and Regularization) Scheme (GI Dept. of Per. & Trg., OM No. 51016/2/90-Estt(C) dated 10.09.1993)
1. This scheme shall be called "Casual Labourers (Grant of Temporary Status and Regularization) Scheme of Government of India, 1993".
2. This scheme will come into force with effect from 1-9-1993.
3. This scheme is applicable to casual laboureres 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 10 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 and 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 [Special Compensatory Allowance or Compensatory (City) Allowance or Composite Hill Compensatory Allowance etc. i.e. only one of the compensatory allowance, more beneficial to them, can be taken into account for the purpose of calculating their wages-O.M. No. 3(2)/95-E.II (B), dated the 15th January, 1996]
(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 subjects 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 regularization. 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 regularization.
(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.11
(vii) Until they are regularized, they would be entitled to Productivity-Linked Bonus/Ad hoc Bonus only at the rates 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 disoensed 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 causal 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 casual labourers have been working would be filled up as per extent 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/future vacancies. In case of illiterate casual labourers or those who fail to fulfil the minimum qualification prescribed for the 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 age 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 Department‟s OM dated 7-6-1988, should be followed strictly in the matter of engagement of casual employees in Central Government offices.
11. Department of Personnel and Training will have the power to make amendments or relax any of the provisions in the scheme that may be considered necessary from time to time."
9. A clarification issued with regard to OM dated 01.09.1993 was also filed by another supplementary affidavit whereby it was made clear that where any administrative office observing 5 days week, the requirement would be at least 206 days instead of 240 days in order to conferment of the temporary status.
10. Counter reply has been filed by respondents alleging therein that the applicant is not fulfilling the criteria for regularization as per scheme for regularization of casual labour of 1984 and. The applicant also not fulfilling the eligibility criteria for grant of temporary status under OM dated 10.01.1993. It was further contended that he was not 12 worked for two years as required the circular of 1984. So far as OM dated 10.09.1993 is concerned he was not working on the date of commencement of the scheme i.e. 01.09.1993 and as such he was not entitled to any reliefs. The impugned order passed is perfectly in accordance with law. The applicant cannot claim for regularization as of right. In the aforesaid circumstances the claim of the applicant was rightly declined. The respondents also files relevant scheme, documents and orders which have been relied upon by the applicant in his pleadings.
11. Rejoinder has also filed by the applicant reiterating earlier stand taken by the applicant and further alleged that he working in 1993 also and received an amount of Rs. 385/- as wages and he filed receipt of the same of dated 5.7.1993 against a cheque which was issued on 09.04.1993. The applicant also filed entry tickets of 1992-93 of Maha Kumbh, Haridwar wherein applicant was shown to be watchman. Similarly, he filed entry pass for holding exhibition of Zila Parisad, Jhansi in the year 1993 by DAVP, Government of India.
12. I have heard the learned counsel for the parties at length and also gone through the record, written arguments filed by the applicant as well as by the respondents.
13. As the claim of the applicant has been declined on the ground that applicant is not fulfilling the requisite eligibility criteria for regularization so, his claim cannot be considered.
14. It was further contended that so far as 1984 scheme is concerned it requires that applicant must have at least in 2 years must completed 206 days each year. The applicant is not fulfilling the requirement of the scheme as stated herein above.
15. So far as 1993 scheme is concerned the burden lies upon the applicant to prove that he was working on the date of commencement of the scheme i.e. 01.09.1993. The applicant fails to establish that he was working on 01.09.1993. The material placed by the applicant along with RA if taken to be true even then it cannot be conclusively proved that he was working on 1.09.1993.
1316. As the applicant fails to establish that the applicant worked for at least 206 days in each year for at least 2 years and also failed to prove that he was working on 1.09.1993 as a full time casual labour and also completed 206 days in a year, therefore, he cannot get any benefit of any of the scheme. The Division Bench of Hon‟ble Allahabad High Court in Union of India & Ors v. Ramakant & Ors.,2014 (2) UPLBEC 1402 ruled that the order of Tribunal must not be contrary to the scheme regarding eligibility for appointment for the post. The view expressed in Ramakant‟s case (supra) has been approved by another Division Bench of Allahabad High Court in Union of India and Ors vs. Ashok Kumar and Ors, Writ -A No.1006 of 2016,decided on 4.2.2016.
17. The Hon‟ble Supreme Court in Union of India v. Vartak Labour Union (2), (2011) 4 SCC 200 : (2011) 1 SCC (L&S) 659 ruled that claim for regularization of an employee merely because he has been working for a considerable period of time cannot be granted in light of several decisions of earlier judgments of Supreme Court, wherein it has been consistently held that casual employment terminates when the same is discontinued. The relevant para17, 18 and 19 are quoted herein below:
"17. We are of the opinion that the respondent Union's claim for regularisation of its members merely because they have been working for the BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules. [See State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] ; Official Liquidator v. Dayanand [(2008) 10 SCC 1 : (2009) 1 SCC (L&S) 943] ; State of Karnataka v. Ganapathi Chaya Nayak [(2010) 3 SCC 115 : (2010) 1 SCC (L&S) 804] ; Union of India v. Kartick Chandra Mondal [(2010) 2 SCC 422 : (2010) 1 SCC (L&S) 385] ; Satya Prakash v. State of Bihar [(2010) 4 SCC 179 : (2010) 2 SCC (L&S) 353] and Rameshwar Dayal v. Indian Railway Construction Co. Ltd. [(2010) 11 SCC 733] ]
18. In Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] a Constitution Bench of this Court had observed that: (SCC p. 40, para 48) "48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a 14 class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled."
19. Explaining the dictum laid down in Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] , a three-Judge Bench in Dayanand [(2008) 10 SCC 1 :
(2009) 1 SCC (L&S) 943] has observed that: (SCC p. 46, para 71) "71. In State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] , the Constitution Bench again considered the question whether the State can frame scheme for regularisation of the services of ad hoc/temporary/daily wager appointed in violation of the doctrine of equality or the one appointed with a clear stipulation that such appointment will not confer any right on the appointee to seek regularisation or absorption in the regular cadre and whether the Court can issue mandamus for regularisation or absorption of such appointee and answered the same in negative."
18. The Hon‟ble Supreme Court in State of Bihar vs. Chandreswhar Pathak, (2014)13 SCC 232, held that any appointment made without advertisement and calling the name from employment exchange would not be sufficient to give regularity to even temporary or adhoch public appointments.
19. This petition was filed in 2013 disclosing the age of the applicant as 56 years. The applicant thus, would be completing age of 60 years by now if not completed the age of superannuation in public employment.
20. Consequently this petition lacks merit and is accordingly dismissed. However there shall be no costs.
(Justice V.C. Gupta) Judicial Member JNS/-