Central Administrative Tribunal - Bangalore
C. Puttaswamy And Ors. vs Executive Engineer, Bcd-I, Cpwd And ... on 25 September, 1998
JUDGMENT K. Ramamoorthy, Member (A)
1. This OA has been filed seeking the relief for treating the applicants as regular Govt. employees after regularising their services. The applicants also seek quashing of the notification whereby fresh tenders have been invited by the respondent Department for the services already being rendered by the applicants.
2. The short facts of the case are as under:--
According to the applicants, they have been working as drivers in CPWD under the respondent department starting on various dates ranging from 15.11.91 to 1.12.95. They have been performing their duties satisfactorily. In spite of the fact that the applicants have been working as drivers, they have been denied the status of being civil servants in spite of their performing the particular service for the department. What is more, the respondents have also chosen to reinvite quotations for the very same services as are being rendered by the applicants. The applicants have therefore, also sought the quashing of the fresh notification inviting for fresh tenders besides seeking regularisation of their services by way of regular appointments as employees of the department.
3. In their reply, the respondent department have questioned the jurisdiction of the Tribunal to look into the question which was a matter of a contractual relationship arising from a specific contract entered into by the applicants by the procedure of tender and quotations. The earlier contract coming to an end, the respondents have chosen to reinvite the tenders as per powers already vested in the respondent department and its officers. Such contracting powers cannot be the subject matter of litigation within the powers entrusted to the Tribunal.
4. The respondent department have also questioned the claim of the applicants as appointees of the department, as the applicants were never appointed by the respondents. It is true that they have been rendering the services as drivers for the department but this is in response to a quotation publicly invited for the supply of drivers. The mere fact that the contractor himself has performed his contract does not change the status of the contractor to that of an employee. The deployment of the applicants for the operation of vehicles is purely a temporary measure for inspection of various work sites which are located at the various parts of the city, Further, the usage of vehicle are to be dispensed with, when the works are completed. The vehicles which are operated on contract basis, were mainly procured/ transferred from elsewhere in the country, namely, Punjab etc. purely for the need of the projects. Each one of the applicants has submitted their quotations in response to the Department's tender enquiry and supply orders have also been placed on these tenderers with specific conditions attached. It is significant that the agreement terms do not specify a bar on any particular person from doing a specific job as long as the person concerned is qualified for the service and no restrictive conditions regarding age or educational qualifications etc. have been prescribed as is normally applicable in a recruitment rule for aregular civil servant. The engagement of the applicants has been purely as per terms of a supply contract. The need for a fresh tender became necessary to streamline the procedure for supply contract so that a single quotation with wide publicity could ensure a more advantageous response instead of the earlier practice of piecemeal quotations which resulted in variations in rates according to the vehicle.
5. During the arguments, the counsel for the applicants, mainly urged that the manner of engagement was a mere cover. The department was in need of regular drivers for the vehicles maintained by the department. Regular log books were maintained in respect of the operation of vehicles and even the abstract bills drawn to make the payments, clearly showed the nature of payment as being that of salary bill for the driver for the duties performed as a driver. The applicants had annexed documentary evidence in this regard vide Annexures A-3 to A-8. It is incumbent on the Tribunal to lift the veil thrown by the department over such transactions, to get at the true nature of engagement. The applicants were engaged in jobs which constituted a job of a regular employee in respect of works undertaken by the department even if it be of a supervisory nature. The fact that the works in question were projects with particular duration or with diffused geographical locations, would not take away the character of such employment. The applicants have been rendering services against regular Govt. jobs, and it was therefore incumbent on the department to regularise their services, particularly when their engagement was in projects which were to be continued for a long period of time. The fact that they have continued for periods ranging from three to seven years already and that the department has even now advertised for similar services, attests to the fact of the work being of a long term duration. The State being the employer, certain responsibility is cast on the State to observe the norms of a model employer. For this very reason, the Courts have also been nudging the departments to devise schemes for regularisation of employments of casual labour and work charge labour and the departments have also responded thereafter by devising schemes for regularising the services of labour so employed. The applicants' case fall in a similar category, irrespective of the form of their employment and hence the reliefs sought.
6. The counsel for the respondents on the other hand urged that what is involving in this case is a matter of policy. In point of fact, both as measure of economy as also as a matter of streamlining the procedures to avoid overstaffing and unnecessary expenditure, the Govt. had put a blanket ban on engagement of casual/daily rated workers as early as 1977, and in the CPWD since November, 1985 and no casual/daily employee in the form or by any nomenclature, i.e. muster roll and receipt, work order etc. should be engaged defying the ban orders. A list of the communications regarding this ban has been cited as under:--
7. In fact, since such a blanket ban made it difficult to carry on the project work of the department, a request had been made even to selectively empower the Chief Engineer to engage labourers in most genuine and emergent cases "since day to day working itself is becoming difficult, in case no person is to be engaged under any circumstances in any mode which will not be in the interest of the department." (letter No. 10(13)94/BCC/EII/4141 dated 8.12.94). It is in this background that the department had to resort to the system of calling for tenders for supply of drivers from the open market. In fact, a specific reference had also been made where respondent No. 2 sought the advice as to whether "issuing work order for supply of drivers also come in the scope of the ban." Though no specific reply to this reference is seen from the files, the tender system for procuring the service of drivers has been decided to be adopted as a measure of administrative expediency to meet their requirements for the services of such drivers. The present applicants have also been offering their services precisely in response to such a quotation invited by the respondents and have been also engaged by virtue of the acceptance of such quotations as could be seen by the different letters issued, as for example vide letters (1) No. 65(8)94/BCD-II/936 dated 11.5.95 to Shri A. Srinivas Ganapathy; (2) No. 65(8)96/BCDII/95 dated 27.7.97 to Shri N. Raja; and (3) No. 65 (8) 96/BCDII/96 dated 22.1.97 to Srinivasa Ganapathy A. The payments for the services also is being made by hand receipts drawn by vouchers. Copies of a few such receipts have also been filed among the papers. Even some of the vehicles had to be obtained from outside for specific purposes. All this would indicate that the engagement of these drivers was for specific limited purposes for projects which had adefinite duration. There were no sanctioned posts against whom these applicants were employed and therefore, the question of accepting the relief to regularise their services would not arise. The tender invitation also did not prescribe any specific requirements either by way of educational qualifications or of age or even prescribed any reservation status, precisely because the engagement was not meant as a civil appointment.
8. The averments and pleadings have been duly considered.
9. It cannot be gainsaid that lifting of the veil by the Tribunal may become necessary to determine the nature of employment. In this case, admittedly, the applicants have been engaged by the department for carrying out the civil functions of the State. The nature of the engagement whether it be by way of a regular appointment or by way of casual labour or by way of a muster roll will not affect the nature of employment. It is for this reason that all kinds of engagements including employment on muster rolls, work charge establishment or even as a casual labourer has been brought as a subject within the jurisdiction of the Central Administrative Tribunal so long as such engagement is done by the departments. That the content of the engagement would decide the jurisdiction has been reiterated in a case decided by a sister Bench (Ahmedabad) of this Tribunal (1996) 33 ATC 93 in the case of Aswar Rajnikant Karsanbhai v. Union of India and Ors., where even when a applicant was initially engaged as a labourer but subsequently nature of employment was changed to contractual, the objection that the Tribunal did not have jurisdiction over the matter was overruled. The question, therefore, will depend on the nature of the employment and if the applicants have been employed for job of a civil service nature, the mere fact of such employment being by way of acceptance of a tender by itself will not come in the way of adjudication of this application by this Tribunal on jurisdictional ground.
10. On the facts of the case itself, it is true that the applicants have on their own volition accepted this form of engagement. In fact, the applicants have been working at various points of time precisely on these terms and have also been receiving payments as per this arrangement only. Having not raised any objections so far to this manner of engagement, albeit for rendering a civil service of the nature required by the department, the question of challenging this mode at this point of time, will not arise. Nevertheless, it is true that the applicants have been engaged for carrying out the job that can be stated to be as one which can properly pertains to civil service. The mode of recruitment is a matter of policy and on the facts of this case, the applicants have been employed by the respondent department but through the mode of a supply tender within the powers granted to the Executive Engineers as per financial limits for particular tenders and services being rendered by the applicants being services under the State, the applicants have a right to expect a minimum modicum of natural justice as a condition attached to the service, the essence of it being absence of arbitrariness.
11. As regards the relief sought for regularisation of the services of these applicants at this stage, the learned counsel for the applicants relied on judgment of the Supreme Court in the case of State of Haryana and Ors. v. Piara Singh and Ors., (1992) 21 ATC 403 where the Supreme Court had decided that "Govt. should consider the feasibility of regularisation having regard to the particular circumstances with a positive approach" and "those eligible and qualified and continuing in service satisfactorily for a long period have a right to be considered for regularisation". This judgment, however, is by the Apex Court and is by way of a direction to respondent departments to devise regularisation scheme. It is also a fact that Govt. have since laid down guidelines in respect of regularisation of casual labourers for work charge labour etc. However, one will have to await drawal of such a scheme. Though in this very case, the Supreme Court have said that "long continuance of service gives rise to a presumption about the need for a regular post," the Supreme Court have also at the same time deprecated any directions by the "Tribunal to create new posts."
12. At present there is no scheme to regularise the services of such employees after a lapse of time as is available to the casual labourer or workers engaged on work charge establishment or for Project labour since these categories have a specific scheme drawn up for regularisation of their services. In the absence of such a scheme, the question of grant of relief for regularising their services does not arise as a matter of right because of existence of a rule or scheme and therefore, that relief has to be disallowed.
13. The legal position in this regard regarding the Tribunal issuing any directions regarding the policy to be followed or to give any direction to create necessary post is now very clear and it is beyond the power entrusted to the Tribunal. Even in a recent judgment delivered on 17.10.97 this general principle has been reiterated in the case of Gyan Prakash v. Union of India and Ors., JT 1997 (8) S.C. 440 : 1997 (6) Scale 413, wherein their Lordships have referred to an earlier judgment of the Supreme Court in this very regard.
"The High Court relied upon the judgment of the Supreme Court in the case of Union of India v. Tej Ram Parashramji Bombhate, JT 1991 (2) S.C. 572 = AIR 1992 S.C. 570 that the Court or a Tribunal has no power to compel the Government to change its policy involving expenditure and to direct the creation of any post."
In that judgment the Apex Court has clearly spelt out "(... in a matter) involving financial burden. No Court of the Tribunal would compel the Govt. to change its policy involving expenditure."
The ban on creating posts has obviously been imposed as a policy decision to curb spiralling permanent establishment costs and the question of Tribunal issuing direction to create posts for these applicants cannot arise.
14. Though the learned counsel for the applicant also referred to the judgment given by the Supreme Court as cited in 1986 ATC 103 in the case of Central Inland Water Transport Corporation Limited and Anr. v. Tarun Kanti Sengupta and Anr. wherein the Apex Court has stated that terms in contract of employment if found unconscionable, arbitrary and opposed to public policy could be held to be invalid, this judgment is specific to the facts of that particular case. The Supreme Court has nevertheless pointed out in its decision (1997) SCC (L and S) 1344 in the case of Air India Statutory Corporation and Ors. v. United Labour Union and Ors., that in acts of State specially when social welfare is involved "provisions should he considered in the law of public law principle instead of private or common law principles." This would apply in this case.
15. There is therefore no doubt in the mind of the Tribunal that the engagement of these applicants is for performance of a specific civil service under the State for which no sanction as yet exists. If and when a regular civil service post is sanctioned, it will necessarily have to be filled in as per the recruitment rules and if such an action were to arise, such of the persons as have been engaged will also merit consideration at that time if they fulfil the regular qualification requirements both as regards to educational qualifications as well as age, at the time of their initial engagement. These directions have been given on lines of similar directions given in an order dated 13.3.97 passed in OA No. 1045/1995 by a Calcutta Bench of this Tribunal which order has been upheld by the Supreme Court in its order dated 29.4.98 in the case of Union of India and Ors. v. Subir Mukharji and Ors., (1998) 5 SCC 301.
16. In the above light of the matter, so long as the services have been supplied as per the terms of the quotation and satisfactorily, the question of any arbitrary termination of the contract, as would amount to a hire and fire policy, cannot obviously be also held as valid.
17. The notification to continue the mode for securing services of drivers for fresh needs cannot however be faulted. The relief sought in quashing the notification bearing No. 54(2) /97/BCD.II, is not therefore granted, so long as the tender pertains to services for new services or for replacement of the existing services of drivers as have been felt to be necessary to be terminated validly for unsatisfactory or similar other grounds established after observing the rules of natural justice. Consequently, even though the respondent department have stated that the new tender has been issued with a view to streamline the procedure, any action to appoint somebody else in place of the present applicants cannot however be valid unless and until their present engagement is validly terminated after observing the rules of natural justice. The acceptance of the tender would be subject to the restriction as mentioned above with reference to the applicants.
18. In view of the above, the reliefs sought in this OA are disallowed though subject to the directions given in specific matters as mentioned in the above order.
19. There will be no order as to costs.