Central Administrative Tribunal - Kolkata
Arun Panchakoti vs M/O Defence on 11 December, 2023
1, OA 1688/2017/SKM CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH KOLKATA (CIRCUIT SITTING AT SIKKIM) O.A. 352/01688/2017/SKM Date of order: 44°42 2924 Coram: Hon'ble Mr. Jayesh V. Bhairavia, Judicial Member Fon'ble Mr. Anindo Majumdar, Administrative Member 1. Arun Panchakoti 2. Shri Ran Bahadur Tamang 3. Shri Suraj Tamang 4, Shri Dhan Kumar Tamang 5. Shri Gauri Pradhan 6. Shri Sher Bahadur Pradhan 7. Shri Devi Bahadur Chettri 8. Shri Lalit Pradhan 9, Shri Phurba Tamang 10.Shri Ghanashyam Siwakoti 11.Shri Bir Bahadur Subba 12.Shri Lall Bahadur Pradhan 13.Shri Bijay Chettri 14.Shri Prem Kumar Chettri. bees Applicants Vs. 1. Union of India, Through the Secretary, Ministry of Defence, Government of India, 101, South Block, New Delhi-110001. 2. Principal Secretary, Ministry of Defence, Government of India, 101, South Block, New Delhi-110001. 3. Chief of the Army Staff, Government of India, Army Head Quarter, New Delhi-110001. 4, Joint Secretary (Supplies), Ministry of Defence, 96A, South Block, New Delhi-110001. 5. Major General, Head Quarter, Eastern Command (ST), Fort William, Kolkata-700021, West Bengal. 6. Director General (Supply & Transport), Directorate General of Supplies & Transport, Integrated HQ of Ministry of Defence (Army), New Delhi-1 10105. Via For the Applicant For the Respondents OA 1688/2017/SKM 7. The DDST, Head Quarter, 33 Corps, Sukna Cantt., C/o 99 APO, Siliguri, , West Bengal- 734401. 8. General Officer Commanding Headquarter, 17 Mountain Divisions, New Military Station, Gangtok, East Sikkim-737102. 9. Station Commander, Station Head Quarter, Libing, Gangtok, East Sikkim-737102. 10.Officer Commanding, 383 Company, ASC Supply Type 'A', C/o 99 APO- 737102. 11.Shri Vijay Mahato, working as Permanent Labour S/o Bindeshwar Mahato, R/o New Cantt. Libing, Tadong, PO Tadong, PS Gangtok, East Sikkim-737102. 12.Md. Tahir Alam, working as Permanent Labour, 383 Company, ASC Supply Type 'A', C/o 99 APO- 737102 . 13.Amit Kumar, working as Permanent Labour, 383 Company, ASC Supply Type 'A', C/o 99 APO- 737102 . 14.Ravi Kumar Rajak, working as Permanent Labour, 383 Company, ASC Supply Type 'A', C/o 99 APO- 737102 . 15.Chuden Lepcha, working as Permanent Labour, 383 Company, ASC Supply Type 'A', C/o 99 APO- 737102 . be ceceeeneneeees Respondents Mr. B. Sharma, Counsel Mr. R. P. Sharma, Counsel Mr. B. N. Sharma, Counsel Ms. S. Sharma, Counsel Mr. S. Sharma, Counsel Ld. Sr. Counsel Ms. S. Pradhan assisted by Advocate Ms. N. Pradhan, Advocate Ms. P. Suba and by Major M. Anjana, AAG (L), HQ 17 Mtn Division along with Captain R.B. Ram, 21C, 383 Sup Coy 3. OA 1688/2017/SKM ORDER
Per: Javesh V. Bhairavia, Judicial Member The present O.A. has been filed by the applicants under Section 19 of the AT Act, 1985 being aggrieved with speaking order dated 21.6.2017 (Annexure A/13) whereby the respondents in compliance of the order passed by this Tribunal in O.A. No. 1/SKM/2014 dated 5.12.2016 had considered their claim for regularization and had rejected their claim. The applicants in this O.A. seek the following relief:-
"a. To quash and set aside the impugned order passed by the government respondents on 21.06.2017 i.e., annexure-A 13.
b. Regularise the services of the applicants, C. To direct the applicants to be inducted in temporary status alternatively;
d, Order for payment of back wages at the rate of Equal Pay for Equal Work in terms of judgment passed in State of Punjab & Ors. Vs. Jagyjit Singh & Ors. In Civil Appeal No, 213 of 2013 decided on 26.10.2016;
é. Order for continuation of the services even after 21" February, 2013 and order for payment of entire arrear wages, f Order for regularization of the services of the applicants those who have fulfilled the criteria and in alternative order for induction of the applicants in the temporary status those who do not fulfil the criteria for regularization at present;
gZ. To grant back wages in terms of judgment passed by the Hon'ble Supreme Court of India in State of Punjab & Ors. Vs. Jagjit Singh & Ors. From which date the applicants are entitled to;
h. Order for quashing the appointment order of respondent nos. I] to 15 and order for termination of respondent nos, 1/ to 15;
i, Order for initiating contempt proceedings for defiance of the order of this Hon'ble Tribunal vide order dated 05.12.2016;
pe Leave may be granted to move this application jointly in common cause of action under section 4(5)(a) of CAT Procedure Rules, 1985."
2. This is the third round litigation.
2.1. It is noticed that the applicants while working as Casual Labours under the respondents had filed O.A. being No. 2/SKM/2011 and had sought the relief of parity with other regular permanent workers and regularization of their service with all consequential benefits. They had also sought a direction to pay them at minimum of the pay scale attached to the Gr. 'D' post. The said O.A. was disposed Y 4, OA 1688/2017/SKM of by the Circuit Bench at Gangtok of this Tribunal vide order dated 12.10.2012 (Annexure A/15 refer). It is noticed that in the said order in para 15 this Tribunal had stated that the question which arise for consideration are:
a) Whether the applicants are entitled to conferment of temporary status in accordance with the 1993 Scheme of DoP&T.
b) Whether they are entitled to regularization in the said Scheme or in terms of subsequent Ministry of Defence O.M. dated 5.5.2008.
c) Whether applicants are entitled to payment of wages @ 1/3 0" of the pay scale?
2.2. This Tribunal while answering the aforesaid questions as referred to for consideration had answered as under:-
"17, As far as issue relating to conferment of temporary status and regularization in terms of 1993 Scheme is concerned, Apex Court in (2008) I SCC (L&S) 1101 Controller of Defence Accounts, Dehradun & ors. v. Dhani Ram & ors., in specific and unequivocal terms reiterated its earlier decision in UOT v. Mohan Pal, (2002) 4 SCC 573, UOI v. Gagan Kumar (2005) 6 SCC 70 and Director General, Doordarshan v. Manas Dey (2005) 13 SCC 437 that the said Scheme is a one-time Scheme. Clarification dated 30.6.2011 will only apply to those persons who were entitled to benefits of 1993 Scheme but had not been conferred such status. Applicants herein were engaged in the year 1998 and thereafter, and therefore, such clarification would have no application in the given facts and circumstances of the present case.
18 As far as the 2" issue relating to applicability of Ministry of Defence O.M. dated 5.5.2008 is concerned, we may note that the recruitment rules, if any, have been brought on record. Similarly details of vacancies e.g. date of availability, roster etc. have not been placed on record. Furthermore, the respondents have not committed themselves before this Tribunal as to whether they have finally decided on the issue relating to regularization as provided the said O.M. In the absence of such material aspects, we would not be justified to return factual findings thereon. Scope of judicial review is well settled. It is for the administration to give a just decision in the first instance, and it would be premature to express opinion on merits at this stage."
5. OA 1688/2017/SKM With the aforesaid findings and observation, this Tribunal had while considering the issue regarding entitlement to payment of wages @ 1/30" of the pay scale had also observed that in absence of complete material on record, we cannot pronounce in specific as to whether the applicants are entitled to payment applicable to regular employees. As no final decision has been taken by the competent authority on the proposal submitted by field formation in the matter of regularization, whether or not the activities are similar would be one of the factors. As such, said issue is also premature. 1993 Scheme's applicability stands concluded by judicial pronouncement.
- With the aforesaid observations, this Tribunal had concluded that "In the given circumstances, present O.A. is disposed of requiring the competent authority to take a clear view in the matter by passing speaking and reasoned order, which exercise must be undertaken as expeditiously as possible and later than 4 months. No costs" .
2.3. In compliance of the aforesaid order dated 12.10.2012 (Annexure A/S) passed by this Tribunal, the respondents herein had passed the speaking order dated 15.2.2013 and had not acceded to the claim of the applicant (Annexure A/6).
2.4. In the meantime, in the year 2013, the respondents had published advertisement for recruitment of 05 (five) Mazdoor (Industrial Mazdoor) (Gr. "C') by prescribing the condition of passing Matriculation certificate and other conditions in the said advertisement for direct recruitment of Industrial Mazdoor. At the same time, vide notice dated 22.2.2013, it has been notified by the respondents that "as per Para 292 of ASC regularization with effect from 22 Feb, 2013, No hiring of Casual Labourers (Daily Wage Workers) will be carried out by FSD Gangtok till further Notice." Accordingly, the respondents had discontinued oe
6. OA 1688/2017/SKM the practice of engaging Casual Labour in terms of the said notice and at the same time disengaged the applicants herein.
2.5. Being aggrieved with rejection of their claim by the respondents vide speaking order dated 15.2.2013 (Annexure A/6) as well the disengagement of their service as per notice dated 22.2.2013, the applicants have again approached this Tribunal by way of filing O.A. No. 352/00001/SKM/2014 i.e. the second round of litigation. The applicants in the said O.A. mainly sought relief for grant of temporary status and regularization of their service. Further, they have also prayed for issuing a direction for continuation of their engagement as well for payment of back wages @ 1/30" of the pay scale till their service are inducted in the post of TS & Regularisation and also pray for quashing and setting aside of the appointment of the private respondents etc. 2.6. This Tribunal vide order dated 5.12.2016 (Annexure A/10) disposed of the said O.A. 352/00001/SKM/2014 (Shri Arun Panchakoti & 14 ors. v. Union of India, through the Secretary, Ministry of Defence & ors.). In the said order, this Tribunal in para 12 had opined that the order which has been passed dispensing with the services of the applicant does not fall within the ambit of Regulation 292, therefore, the order of disengagement /retrenchment cannot be allowed to sustain.
At the same time, while dealing with the claim of the applicant for grant of Temporary Status and regularization, this Tribunal in the said order has recorded his findings as under:-
"13, So far as the question of regularization is concerned, the Ld. Counsel for the applicant emphasized that there was a policy of regularization in the department which is still continuing w.ef. 1993 but such policy of regularisation has not been brought on record by the applicants. However, it is not the case of the respondents that any such Scheme is applicable with regard to the regularization. Vad
7. OA 1688/2017/SKM 14, So far the question of equal pay for equal work is concerned; it has no connection with regularization, as held in State of Karnataka v. Uma Devi (2006) 4 SCC I as well as in recent judgment of the Apex Court in State of Punjab & ors. v. Jagjit Singh & ors. in Civil Appeal No. 213 of 2013 decided on 26.10.2016. It is also held in Jagjit Singh case (supra) that minimum of the pay scale at the most can be granted as held in para 58 of the judgment which reads as under:-
"58. In view of the position expressed by us in the foregoing paragraphs, we have no hesitation in holding, that all concerned temporary employees, in the present bunch of cases would be entitled to draw wages at the minimum of the pay scale (at the lowest grade, in regular pay scale), extended to regular employees, holding the same post."
But of course, it will depend upon the fact whether the applicants were discharging similar duties which the regular appointees / posts are discharging. The order which has been passed by the authorities regarding disengagement does not have any relation with law propounded in Jagjit Singh case (supra).
15. So far as the claim of regularization is concerned, if 1993 policy is applicable to the present department, the benefit . may be claimed by the applicants if they are covered under the Scheme. It has been contended that if the policy of 1993 is not applicable, the policy of regularization prevailing in Ministry of Defence of dated 5.5.2008 would apply. Ld. Counsel for the respondents is not aware whether any such policy is in force in the State of Sikkim or not?
16. Consequently, we set aside the speaking order passed on 15.10.2013 decline the claim of the applicants for enhancing the pay equal to minimum of the scale in the lowest grade as well as regularization. Therefore, so far the question of regularization and payment of equal pay for equal work is concerned, we are of the opinion that the matter should be remanded back to the authorities.
17. So far the question of disengagement is concerned, we are of the view that the order of disengagement is not strictly in accordance with regulation 292 as stated in the order of disengagement. It is well settled proposition of law that adhoc or temporary employee should not be replaced by another adhoc or temporary employee ; he must be replaced by a Gf?
8. OA 1688/2017/SKM regular selected employee because this is necessary to avoid arbitrary action on the part of appointing authority as held by the Apex Court in State of Haryana v. Piara Singh & ors. (1992) 4 SCC 118. The private respondents have not contest the case in spite of service and if they are appointed in place of the applicants it only reflect that at least the work in still continuing which the applicant was performing. We are not informed whether private respondents are regularly appointed or not and that too again permanent post in the cadre after adhering due procedure as per recruitment rules so we refrain ourselves to make any comment on the status of private respondents. If there is any order or 22.2,2013, the same has not been brought to our notice. Hence, we have left with no option except to set asdie the order/notice impugned of disengagement. The applicants shall allow continue to work unless an order in accordance with law is passed dispensing with service of the applicants keeping in view the aforesaid observations made by us. However, it would subject to availability of work.
Further, it is noticed that with the aforesaid observation and findings, this \ Tribunal had issued the following directions in para 18 of order dated 5.12.2016 which reads as under:-
"18, With these observation, we partly allow the O.A.. with following directions to the respondenis:-
(i) That question of equal pay for equal work should be disposed of in the light of latest judgment of the Apex Court in State of Punjab & ors. y. Jagjit Singh & ors., in Civil Appeal No. 213 of 2013 decided on 28.10.2016.
(ii). So far_as the question of regularization is concerned, if the applicants_are_covered_under the so-called Scheme _of year 1993, or dated 05.05.2008 the respondents shall_consider the case of the applicants for regularization _in_the light of such Scheme and pass a reasoned and speaking order keeping in_view_the_ aforesaid observation made by us in the judgment within a period of three months from the date of communication of this order. "
(emphasis supplied) qf
9. OA 1688/2017/SKM 2.7. In compliance to the aforesaid order dated 5.12.2016 passed by this Tribunal, the applicants have preferred a representation dated 20.2.2017. The respondents have considered the said representation and rejected their claim by way of impugned speaking order dated 21.6.2017 (Annexure A/13). Hence, this O.A.
3. In the aforesaid backdrop, Ld. Sr. Counsel Shri B. Sharma along with Mr. R.P. Sharma and Mr. B.N. Sharma for the applicants in support of the prayer sought in this O.A. had mainly submitted that:-
3.1. It is stated that the names of the applicants were sponsored by the State of Sikkim and after screening, the applicants were engaged as Casual Workers but they had worked as other regular workers.
3.2. Itis stated that applicants No. 1 to 7 were engaged as Casual Workers in the year 1998, applicants No. 8 & 9 were engaged in 2002, applicants No. 10 & 11 and 14 to 16 were engaged in the year 2003. It is stated that rest of the applicants were engaged in the year 2008-2009 and 2010 respectively.
3.3. At this stage, it is also required to take note of the fact that out of the original applicants some of them have applied in response to vacancy notice for regular appointment and they have been selected as Gr. 'C' Industrial Mazdoor.
3.4. Initially, the respondents vide letter dated 21.7.2009 had conveyed to 'Employees Welfare Association' that there were 36 sanctioned posts of Industrial Labourers, subsequently same was revised to 18 sanctioned post of Industrial Labour.
3.5. The respondents have failed to disclose the status of the Casual Labours, and whether the applicants herein were engaged against the vacant fl 10, OA 1688/2017/SKM post or not. The respondents have also failed to consider the fact that the applicants herein who were working continuously and has a legitimate expectation that their case would be regularized and even the respondents had allowed them to continue with the work. Therefore, the doctrine of legitimate expectation, natural justice has been totally given a go bye by the respondents.
3.6. The applicants are entitled to be considered for grant of temporary status under the 1993 Scheme since the applicants had rendered service for long under the respondents.
3.7. It is stated that the applicants have been exploited by the respondents and they have been denied the legitimate right for absorption and grant of benefit of regularization, though there exists regular vacancy to accommodate them.
3.8. It is stated that this Tribunal had time and again, by referring to the details of service rendered by the applicant had directed them to consider the case of the applicant for grant of equal pay for equal work as well for extending the benefit of the Scheme of the year 1993. However, on the pretext of one reason or other had rejected their claim without taking into consideration the fact that the applicants had rendered continuous service in the organization and became eligible to receive the benefit of regularization of their service, grant of temporary status and payment of back wages @ 1/30"
of the pay scale till their service are regularized.
3.9. According to the ld. Counsel, the reason assigned in the impugned order are contrary to the order passed by this Tribunal as well as the law laid down by the Hon'ble Apex Court in the case of The Secretary, State of ft Karnataka v. Uma Devi & ors. (2006) 4 SCC 1.
11, OA 1688/2017/SKM 3.10. Ld. Counsel reiterated that the applicants were engaged in the vacant posts of Gr. 'C' and had worked for years together. However, the respondents have arbitrarily denied the right of the applicant to be considered for grant of benefit of temporary status and other benefits stipulated under the 1993 Scheme.
3.11. It is stated that this Tribunal in Para 15 of the order dated 5.12.2016 passed in O.A. 1/SKM/14 (Annexure A/10) held that if the 1993 policy is applicable to the present department, the benefit may be claimed by the applicants if they are covered under the Scheme. Further, it has been stated in para 5 of the said order that if the policy of 1993 is not applicable, the policy of regularization prevailing in the Ministry of Defence dated 5.5.2008 would apply. Therefore, the case of the applicant ought to have been considered in light of instructions/guidelines contained in the policy of regularization in vogue, 3.12. Itis stated that the applicants were engaged in the year 1998 as per the Employment Notice dated 3.8.1998 and the qualification at the relevant time for engagement as Casual Labour/Industrial Labours was [(1) Should be healthy and able to carry load bags and also able to read and write in Hindi. However, just with a view to deprive the applicants the respondents have included higher education qualification of Matriculation in the vacancy notice issued in the year 2013 and thereby the applicant's case has not been considered for regularization on the ground of not possessing the requisite qualification of Matriculation. According to Ld Counsel for the applicant, the said stand of the respondents is arbitrary as well in violation of Article 14 and 16 of the Constitution of India and, as such, deprived the applicants from their gM.
legitimate expectation to be considered for regularization.
12. OA 1688/2017/SKM 3.13. Ld. Counsel for the applicant would argue that the reasoned assigned in the speaking order for rejecting the claim of the applicant are bad in law and same is required to be set aside.
4. On receipt of notice, the respondents have filed their reply and denied the claim of the applicants.
5. On behalf of official respondents, Ld. Sr. Counsel Ms. 8. Pradhan assisted by Advocate, Ms. N. Pradhan, Advocate Ms. P. Suba and by Major M. Anjana, AAG (L), HQ 17 Mtn Division along with Captain R.B. Ram, 21C, 383 Sup Coy appears and mainly contended as under:-
5.1. By referring to the observations and direction as contained in para 17 & para 18 of the order dated 5.12.2016 passed by this Tribunal in O.A. No. 1/SKM/2014 Ld. Sr. Counsel for the respondents would submit that in compliance of directions issued by this Tribunal, the respondents had considered the representation / claim and has passed the speaking order dated 21.6.2017 wherein | the respondents have assigned cogent reasons for not acceding to the claim of the applicant.
5.2. It is stated that the nature of work entrusted to Casual Labourers and regular mazdoors/ Industrial labour cannot be held to be the same. The Casual Labourers were only hired as and when the work was available in ASC Units. The said Unit is also authorized to engage Casual Labourers to meet with unexpected extra load in addition to the Regular Industrial Mazdoors. It is stated that the applicants were appointed as Casual Labourers on need-to-need basis for casual work i.e. as and when required.
5.3. Itis stated that the Casual Labour with Temporary Status (CLTS) Scheme of 1993 is applicable to only those Casual Labour who were in employment on the Wy
13. OA 1688/2017/SKM date of issue of O.M. dated 10.9.1993 and who had rendered a continuous service of at least one year are eligible for grant of benefit of.
The applicants and others were engaged as casual labour between 24.8.1998 to 2.8.2003, i.e. subsequent to coming into effect of the 1993 Scheme, hence in terms of the said Scheme1993, they were not entitled for consideration under the Scheme of 1993 including the benefit of grant of Temporary Status.
5.4, It is stated that the qualification for permanent Industrial mazdoor under Gr.
'C? is Matriculation. The qualification below Matric has been prescribed earlier for appointment of Casual Labourers (Daily Wagers) to meet with exigencies of the workload and such Casual Labour (Daily Wagers) and such casual labourers had been paid the wages as per the rate fixed by the Department of Labour, Government of Sikkim. Therefore, the Casual Labours/Daily Wagers cannot be treated to be equal with the regular Industrial Mazdoor.
5.5. It is stated that at present the respondent Depot has sufficient number of permanent Industrial Mazdoor. Since no extra work is available with the Depot to engage extra Casual Labourers, the applicants have not been called for yet.
Ld. Counsel for the respondents submits that as such there is no vacancy available with the department. Even otherwise, the case of the applicant was duly considered and same has been rejected vide speaking order dated 21.6.2017 wherein the respondents had also considered the law laid down by the Hon'ble Apex Court in the judgment of Uma Devi (supra) as well the instructions contained in O.M. dated 26.2.2016 issued by DoP&T for the purpose of grant of Temporary Status in respect to Scheme of 1993. However, the applicant are not found eligible for grant of benefits of temporary status. The Ld. Counsel would submit that no post can be filled up in violation of the rules in vogue.
14. OA 1688/2017/SKM 5.6. It is stated that after 2014, no Casual Labour has been engaged on regular basis. The applicant do not possess any vested right for regularization. It is stated that the reason assigned by the respondents in the speaking order are just and proper and the said order is in compliance of the order passed by this Tribunal.
Therefore, the applicant is not entitled to any relief as sought for in this O.A.
6. The applicants have filed rejoinder and reiterated the contention made in the O.A. In addition, by denying the averment of the respondents as stated in the reply, the applicants have stated that the respondents have strategically deprived | _ the applicants herein from applying to the post as held by the private respondents. It is stated that the private respondents were appointed/engaged against the vacant post. The said private respondents were neither working on the strength of court order nor had they been appointed regularly. It is reiterated that they were engaged against the vacant posts and had worked for years together. They performed regular service in nature of work assigned to them which is similar to those of the regular employees.
6.1. Ld. Counsel for the applicants submits that the case of the applicant ought to have been considered by the respondents in light of directions issued by the Hon'ble Apex Court in the case of Uma Devi (supra) as well the subsequent orders/judgment passed by the Hon'ble Apex Court, High Court and the Tribunal. Ld. Counsel has placed reliance on the judgments to substantiate the submission and the prayer sought in this O.A., (i) Secretary, State of Karnataka & ors. v. Uma Devi & ors. (2006) 4 SCC 1; Gi) Amar Kant Rai v. State of Bihar & ors. Judgment passed by Hon'ble Apex Court, 2015(3) SLR 658, (Civil Appeal No. 2835 of 2015) decided on 13,3.2015; (iii) Nihal Singh & ors. v. State of Punjab & ors. report (2013)11SCR 1; (iv) Order passed by CAT, Hyderabad Bench in O.A. No. 021/00554/2019 dated 1.10.2021, P. Chandraiah v. Union of India & ors.
BPO 15, OA 1688/2017/SKM
7. Heard the Ld. Counsel for the parties at length and perused the materials on record.
8. It emerges from the record that the applicants were engaged as Daily Wager by the respondents in between 1998 to 2010. They were paid wages as per the rate fixed by office of the Labour Commissioner, Govt. of Sikkim as was applicable to the Casual Labourers/Daily Wagers. The core submission of Ld. Counsel for the applicants is that since the applicants were engaged long back and had continued to work under the respondents, and, there exists vacancies, the respondents ought to have extended the benefit of the 1993 Scheme.
It is submitted that at the relevant time of their engagement, there was no specific provision in the recruitment rule to pass the Matric examination for being appointed to the post of Industrial Mazdoor. The applicants were engaged as Daily Wager through employment exchange, therefore, they cannot be treated as back door entrants in the department. Therefore, the respondents ought not to have rejected their claim for regularization of their service vide impugned order.
9. Further, it is stated by the Counsel for the applicant that some of the original applicants had participated in subsequent selection process as conducted by the respondents in accordance with the rules and having been declared successful in the selection process they were selected and appointed as regular employees. However, some of the applicants herein who could not qualify and as such had not participated in the said selection process. The claim of the applicant for regularization has not been acceded to by the respondent authorities vide impugned order dated 21.6.2017. Hence, the applicants would claim that their prayer be restricted to regularization of their service only.
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16. OA 1688/2017/SKM
10. At this stage it is apt to mention that during the course of argument Ld. Counsel for the applicant had declared that they do not press the prayer for grant of equal pay to the applicants as sought for in the O.A.
11. We have also examined the the impugned speaking order dated 21.2.2017 whereby the respondents have assigned the reasons for declining the claim of the applicant for regularization of their service, which reads as under:-
ANNEXURE-A13 _ SPEAKING ORDER REGISTERED POST/ BY HANG 383 Coy ASC (Sup) Type *A' PIN 905383 c/o 99 APO 383112/Civ/ST-12 21 Jun 2017 SPEAKING ORDER IN. COMPLIANCE WITH HON'BLE | CENTRAL ADMINISTRATIVE, TRIBUNAL CALCUTTA BENCH, CALCUTTA ORDER DATED 05.12.2016 PASSED IN OA NO 352/00001/SKM 2014 FILED BY SHRI ARUN PANCHAKOTI AND OTHERS VS UOLAND OTHERS
1. WHEREAS Shri Arun PanchakoTi son of Late Shri Krishan Bdr Panchakoti has filed an OA No 352/00001/SKM/2014 in the Hon'ble CAT Calcutta Bench, Calcutta seeking relief for regularization of his service, grant of temporary status alternatively, payment of back wages @ 1/30" of the pay scale till their service are inducted in the post of temporary status & regularization, continuation of their services after 21 Feb, 2013 and order for payment of entire arrear of wages, quashing of the appointment list of respondents No-11 to 15 as regular Mazdoors, in terms of DoP&T OM No 51016/2/90-
Estt (c) dated 10 Sep 1993 and CM No 49019/1/2006-Estt (c) dated 11 Dec 2006
2. WHEREAS vide order dated 05.12.2015, the Hon'ble CAT Calcutta Bench, Calcutta has issued directions to the respondent authorities to consider the case of the applicants for regularization in the light of such scheme, grant temporary status and Regularization in view of the Para 53 of order of Hon'ble Apex Court in case of Secretary, State of Karnataka and Ors Vs Uma Devi and Ors. (2006) 4 SCC 1 as well as DoP&T OM No 51016/2/90-Estt (c) dated 10 Sep 1993.
3. WHEREAS in compliance with the directions dated 05.12.2016 ibid, the case of Shri Arun Panchakoti and others for regularization of their services, grant of temporary status alternatively, payment of back wages @ 1/30" of the pay scale till their services are inducted in the post of temporary status & regularization, continuation of their services after 21 Feb 2013 and order for payment of entire arrear of wages have been examined. It is stated that Shri Arun Panchakoti and others were appointed as casual labourers on need to need basis causal work as and when required as such their services cannot be regularized. Notwithstanding the said fact, otherwise also, Shri Arun Panchakoti and others cannot be considered in terms of Causal Labour Temporary Status (CLTS) Scheme 1993 issued vide DoP&T OM NO 51016/2/90-Estt (c) dated 10 Sep 1993 and in terms of order of Apex Court in the case of Secretary, State of Karnataka and Ors Vs Uma Devi and Urs (2006) 4 SCC 1, due to the following reasons- va
17. OA 1688/2017/SKM
(a) Causal Labour Temporary Status (CLTS) Scheme of 1993 is applicable to only those causal labour who were in employment on the date of issue of the OM i.e 10 Sep 1993 and who had rendered a continuous services of at least one year, which means that they must have been engaged for a period of at least 240 days (206 in the case of offices observing 5 days week) (Clause 4 of the scheme). Shri Arun Panchakoti and others were appointed between 24 Aug 1998 to 02 Aug 2003 and hence they are not entitled for consideration under the Casual Labour with Temporary Status Scheme 1993. Casual labourers under that scheme only on fulfilling the conditions incorporated in clause 4 of the scheme.
(b) In terms of order of Apex Court in Uma Devi case and also as per DOP&T OM No 49019/1/2006-Estt (C) dated 11 Dec 2006, issued in pursuance of the said order of Hon'ble Apex Court in Uma Devi case, directions were issued to regularize, as a one-time measure, the services of such irregularly appointed, who are duly qualified persons in terms of the statutory recruitment rules for the post and who had worked for ten years or more in duly sanctioned posts, but this case under consideration is not similarly placed.
(c) In its OM No 49014/2/2014-Estt (c) dated 26 Feb 2018, DoP&T has also instructed that the benefit of temporary status is available only to those casual labourers who were in employment on the date of issue of the OM dated 10 Sep 1993 and were otherwise eligible for it. No grant of temporary status is permissible after that date.
(d) WHEREAS casual labourers are generally hired on need to need basis to carryout seasonal or casual nature work like loading/ unloading re-conditioning of bagged stores, un-stacking opening, emptying into fresh bages weighing sewing re-socking of coal, salt, hay baled beyond the capacity of regular mazdoors. The nature of work entrusted to casual labourers and regular mazdoors cannot be held to be the same, so the equal pay is not applicable.
4, WHEREAS from the above facts, it is evident that there is no merit in the case of the Applicants for regularization of their services, grant of temporary status alternatively. payment of back wages @ 1/30th of the pay scale till their services are inducted in the post of temporary status & regularization continuation of their services after 21 Feb 2013 and order for payment of entire arrear of wages, quashing of the appointment list of respondents No 11 to 15 as regular Mazdoors and the same is liable to be rejected.
5 NOW, THEREFORE, in compliance of the directions dated 05.12 2016 passed by Hon'ble CAT Calcutta Bench, Calcutta in OA No 352/00001/SKM/2014 filed by Shri Arun Panchakoti and others, it is hereby communicated that the competent authority has rejected the claim of the applicants in OA No 352/00001/SKM/2014 for regularization of their services, grant of temporary status alternatively etc. under the existing policy on the subject issued by the DoP&T."
12. It can be seen that the case of the applicants has been re-examined by the respondents and the competent authority has recorded his findings that the applicants were appointed/engaged as Casual Labourer between 24 August, 1998 to 2"? August, 2003 and had also construed that the Casual Labour Temporary ye
18. OA 1688/2017/SKM Status Scheme, 1993, which was notified vide O.M. dated 10.9.1993, is applicable to only those Casual Labour who were in employment on the date of issue of the said O.M., therefore, the applicants were not found to be the beneficiary of the said Scheme. In this regard, we find it appropriate to refer the condition No. 4.1 of the Scheme of 1993, which clearly stipulates as under:-
"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)."
12.1 In the present case, undisputedly, the applicants herein were engaged as Casual Labourers between 24.8.1998 to gnd August, 2003 and, as such, they were not engaged on or before 10.9.1993. Even otherwise it is apt to mention that in the first round of litigation itself the issue regarding the applicability of Scheme of 1993 in case of the applicants herein, this Tribunal had held that as far as issue relating to conferment of temporary status and regularization in terms of 1993 Scheme is concerned, Apex Court in (2008) 1 SCC (L&S) 1101 Controller of Defence Accounts, Dehradun & ors. v. Dhani Ram & ors., in specific and unequivocal terms reiterated its earlier decision in UOI v. Mohan Pal, (2002) 4 SCC 573, UOI v. Gagan Kumar (2005) 6 SCC 70 and Director General, Doordarshan v. Manas Dey (2005) 13 SCC 437 that the said Scheme is a one-time Scheme. Clarification dated 30.6.2011 will only apply to those persons who were entitled to benefits of 1993 Scheme but had not been conferred such status. Applicants herein were engaged in the year 1998 and thereafter, and therefore, such clarification would have no application in the given facts and circumstances of the present case.
In the case in hand, we do not find any material on record to controvert the findings recorded by the respondents in their speaking order dated 21.6.2017 (Annexure A/13) that the applicants herein are not found oy
19. OA 1688/2017/SKM eligible to be considered for grant of benefit of Temporary Status as stipulated in the Scheme of 1993.
12.2. Further, it is noticed that the respondents have also considered the instruction contained in DoP&T's O.M. dated 26.2.2016 whereby it was further clarified that the benefit of Temporary Status is available to only those Casual Labourers who were in employment on the date of issuance of the O.M. dated 10.9.1993 and were otherwise eligible for it. No temporary status is permissible to any casual labour who is employed after that date. Since the applicants herein undisputedly were not in employment as Casual Labour on the date of publication of the 1993 Scheme vide O.M. dated 10.9.1993 and in absence of any material to meet with requisite eligibility criteria stipulated in para 4 of Scheme of 1993, the finding recorded by the respondents in the impugned order in denying the claim of the applicants for grant of Temporary Status cannot be said to have suffered from any legal infirmity.
13. Further, it is also the grievance of the applicants that on the date of engagement of the applicants as Casual Labourer between the period 1998 to 2003 the basic condition of passing Matriculation examination in order to obtain regular appointment in Establishment of the respondents was not in existence as well at the relevant time the applicant were engaged as Casual Labour and there existed vacancies of Industrial Labourer/Mazdoor in the department which ought to have been filled up by way of a regular selection process. It is stated that the respondents did not take into consideration the claim of the applicants for regularization at the relevant time and, as such, had continued to engage them on Casual basis and in the meantime had advertised the vacant posts of Mazdoor (Industrial Labourer) by incorporating the essential education qualification of Matriculation for filling up the said post of Mazdoor. Thereby, the applicants were fr
20. OA 1688/2017/SKM deprived of their legitimate expectation for being regularized against the vacancies available in the establishment.
In this regard, Sr. Ld. Counsel for the applicants would argue that the respondents had not followed the law laid down by the Hon'ble Apex Court in the case of Uma Devi & other judgments as relied and referred by him. According to Ld. Counsel, the applicants were discriminated since the respondents have appointed other candidates depriving the applicants of their legitimate claim and respondents have erred in rejecting the claim of the applicants vide impugned order dated 21.6.20177.
14. In our considered view, the aforesaid submission of Ld. Counsel for the applicants is not tenable for the reason that it emerges from the record that 2\ undisputedly the applicants were engaged as "Casual Labourer" and not as "Mazdoor/Industrial Labourer". In this regard, it is apt to mention that the respondents in order to cope up with excess workload had called for sponsoring suitable candidates to be engaged purely as "Casual Labourer" between the period 1998-2003 from the office of Establishment department, Government of Sikkim. Further, in the said requisition of the respondents, the qualification was prescribed for Casual Labour "(i) Should be healthy and able to carry loaded bags: (1i) Should be below Matric and able to read and write in Hindi" In the said requisition it was also declared by the Office Commanding, 383 Coy ASC (Sup.) Type 'A' C/o 99 APO that payment will be made on daily wages at narrick rates per day.
14.1. Accordingly, by accepting the terms and conditions stipulated therein, the applicants had accepted their engagement as "Casual Labour". At this stage, it is also required to mention that undisputedly the requisite qualification to be regularly appointed for the post of "Mazdoor/Industrial Labour" in the respondent department was Matriculation. In other words, to be qualified for the post of FL
21. OA 1688/2017/SKM "Mazdoor/ Industrial Labourer", a candidate ought to possess the essential qualification of Matriculation.
14,2. Since the respondents had not appointed or engaged the applicants herein against a regular post of Mazdoor/Industrial Labourer as per the terms of recruitment rules and had engaged them purely on temporary basis that too giving a go bye to the requisite qualification of Matriculation, it cannot be said that the applicants were engaged by the respondents by following due selection process for regular appointment to the post of "Mazdoor/Industrial Labourer".
14.3. Further, it emerges from the record that while declining the claim of the applicants that there is no dissimilarity in the nature of work entrusted to them as Casual Labourer and the regular Mazdoor, the respondents have averred that the \\ applicants/Casual Labourers are generally hired on need to need basis to carry out seasonal or casual nature of works like Loading/Unloading, reconditioning of bag stores etc. which cannot be equated with the nature of work entrusted to regular Mazdoors, as such the work entrusted to the Casual Labours is only the excess work which is beyond the capacity of the regular Mazdoors. Therefore, for such excess work, that too as and when need arise, the Casual Labours were engaged and payment applicable to such daily wager were also paid to them. Therefore, the Casual Labours cannot be equated with the regular Mazdoors in the department. Thus, we are in agreement with the reason assigned by the respondents that the applicants were appointed on day to day need basis and at the relevant time of their engagement they were not qualified for being appointed as regular Mazdoors.
14.4. At this stage, it is also relevant to take note of the fact that some of the Casual Labourers who had earlier approached this Tribunal along with the present applicants have, as such, applied for regular selection/appointment for the post of Mazdoor/Industrial Labourers in response to the advertisement notified by the i!
22. OA 1688/2017/SKM respondents for filling up the post of Mazdoor/Industrial Labourer since they possessed the requisite essential qualification of Matriculation as well as the private respondents against sanctioned post of Gr. 'C', and, on being selected, they were appointed substantively to the post of Mazdoor/Industrial Labourer by following the recruitment rules in vogue.
14.5. Admittedly, the applicants who do not possess the requisite essential qualification required for regular appointment as such did not apply for the post of Mazdoor/Industrial Labourer in response to the advertisement notified by the respondents. However, they continued with their claim for seeking regularization against regular posts of Mazdoor/Industrial Labourer though they are not substantively qualified in terms of the existing rules. The respondents have time and again considered their claim in light of directions issued by this Tribunal and as noted hereinabove and have rejected their claim vide impugned speaking order dated 21.6.2017 by assigning cogent reasons. At this stage, it is also important to mention that the respondents have discontinued the engagement of the applicant as a Casual Labour long back.
15. Itisa settled principle of law that appointment to any post under the State can only be made after issuance of an advertisement inviting applications from eligible candidates and selecting such candidates on merit through written examination or interview as provided under the recruitment rules. It is now no more res integra that regularisation in fact cannot be a mode of appointment.
It is also settled principle of law that regularisation has to be done in accordance with Rules and not dehors the Rules. A post must be created or sanctioned before filling it up. Therefore, any order for absorption and regularisation of a person not appointed in accordance with Rules would result in fi
23. OA 1688/2017/SKM denial of equal opportunity in the matter of employment to other eligible and competent candidates.
15.1. At this stage it is profitable to mention that Casual Labourers do not possess any vested right to be appointed in violation of Article 14 and 16 of the Constitution of India. The Constitution Bench in the case of Uma Devi (supra) had unequivocally held that:
Cectene when a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following the proper procedure for selection and in concerned cases, in consultation with Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot Constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post."
(emphasis supplied) 15.2. Further, the Hon'ble Apex Court in Uma Devi (supra) had also held that:
"....only the duly qualified persons in duly sanctioned vacant post who had continued to work for 10 years or more without intervention of Court or Tribunal, in such case, the State Government and their instrumentalities should take steps to regularize as a one-time measure. Further, it was held that 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. They cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirement of Article 14 and 16 of the Constitution. The right to be treated equally with 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 inequals as equals."
(emphasis supplied) Be
24. OA 1688/2017/SKM 15.3. Further, by referring the law laid down in the case of Uma Devi (3) (supra) the Hon'ble Apex Court in University of Delhi vs. Delhi University Contract Employees (2021) SCC OnLine SC 256 held as under:
se eeeeees in para 4 of the case of Uma Devi (supra) the court Should desist from issuing orders preventing regular selection or recruitment at the instance of persons who are only adhoc/contractual/casual employees and who have not secured regular appointments as per procedure established. The Hon'ble Supreme Court has further observed that passing of orders preventing regular recruitment tends to defeat the very Constitutional Scheme of public employment and that powers under Article 226 of the Constitution of India, therefore, cannot be exercised for perpetuating illegalities, irregularities or improprieties or for scuttling the whole Scheme of Public employment."
15.4. The Hon'ble Apex Court in State of Rajasthan & ors. vs. Daya Lal & ors.
(2011) 2 SCC 429 held as follows;
"12. We may at the outset refer to the following well-settled principles relating to regularization and parity in pay, relevant in the context of these appeals:
(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts.
The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularization of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.
(ii) Mere continuation of service by a temporary or adhoc or daily wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such, service would be "litigious employment." Even temporary, adhoc or daily wage service for long number of years let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be ip
25. OA 1688/2017/SKM grounds for passing any order of regularization in absence of a legal right.
(iii) Even where a Scheme is formulated for regularization with a cut off date, (i.e. a Scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the Scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh Schemes providing for successive cut off dates.
(iv) Part time employees are not entitled to seek regularization as they are not working against sanctioned posts. There cannot be a_ direction for absorption, regularization or permanent continuance of Part time temporary employees.
(vy) Part-time temporary employees in government run institutions can claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment even if serving full time, seek parity in salary with Government employees. The right to claim a particular salary against the State must arise under a contract or under a Statute."
16. In backdrop of the aforesaid dicta laid down by the Hon'ble Apex Court and discussions made hereinabove, we do not find any legal infirmity in the impugned speaking order dated 21.6.2017. The ratio laid down by the Hon'ble Apex Court in the judgment referred and relied upon by the Ld. Counsel for the applicants in our considered view same does not come to the aid of the applicants in the facts and circumstances of the case in hand.
Thus, we are not inclined to interfere with the speaking order dated 21.6.2017 which is impugned in the present O.A.
17. Accordingly, the O.A. stands dismissed. No costs.
(AnindoMajumdar) (Jayesh V. Bhairavia) Administrative Member Judicial Member Sp/sl