(Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a writ of certiorari, calling for the records of the 1st respondent Tribunal in its order in Original Application No.310/01155/2014 dated 20.3.2015 and to quash the same.)
S. Manikumar, J.
1. Challenge in this writ petition is to an order dated 06.11.2012 made in Original Application No.553/2011, by which, the Central Administrative Tribunal, Madras Bench, has directed the writ petitioners to grant Assured Career Progression (in short ACP) to the first respondent in the pay scale of 4500 - 7000 with effect from 09.08.1999 with all consequential benefits and the writ petitioners are further directed to pass an appropriate order on the above fact within a period of six weeks from the date of receipt of a copy of the order of the Tribunal.include the name of the second respondent at the appropriate place, in the list of Casual Labourers prepared as per Puducherry Casual Labourers (Engagement and Regularisation) Scheme, 2009 dated 25.10.2010. The Tribunal has also issued a direction to the writ petitioners to engage the second respondent for data entry work in any department.
2. Facts leading to the writ petition are that, in order to carry out data entry work, the Department of Revenue and Disaster Management, Puducherry, has called for eligible candidates from the Employment Exchange, Puducherry. Name of the second respondent was sponsored. Writ petitioners vide Memorandum dated 9.10.2005, informed the second respondent that, his name has been sponsored by the Technical Officer/Employment Office, Labour Department, Puducherry, for carrying out data entry work. In the said memorandum, it has been stated that the work would be for a period of 12 months approximately and a consolidated pay of Rs.4,000/- per month would be paid. The second respondent was provisionally selected and was intimated vide Memorandum dated 29.10.2005 by the District Registrar, Department of Revenue and Disaster Management, Government of Puducherry.
3. In the latter memorandum, it was also stated that engagement will not confer any right for future employment/absorption in Government services. Subsequently, the consolidated salary was increased from Rs.4,000/- to Rs.6,000/-. When the second respondent made a representation dated 09.07.2014 to the Director of Survey and Land Records, Saram, Puducherry, the third petitioner herein, to regularise his services, without any written order, the second respondent was not permitted to continue his work. Therefore, the second respondent made another representation dated 21.07.2014 to permit him, to do the same work on the same consolidated pay. But, he was not assigned any duty.
4. In the above said circumstances, the second respondent has filed Original Application No.310/01155/2014 before the Central Administrative Tribunal, Madras Bench, for a prayer to direct the writ petitioners to regularise his services, in the post of Data Entry Operator in the scale of pay Rs.5,200 - 20,000, with effect from 29.10.2005, with all service and monetary benefits.
5. Before the Tribunal, supporting the prayer sought for, the second respondent has contended that his selection and appointment was open, transparent and after a written test and interview. His name was sponsored by Employment Exchange. He had worked for about 10 years and crossed the age bar. Having regard to the above, the writ petitioners ought to have regularised the services.
6. The second respondent has also contended that, when the Government of Puducherry framed a scheme to regularise the services of all the Casual Labourers, working in various departments and also ordered regularization, as per seniority, as and when vacancies arose, the second respondent, being one of the senior most person working in the year 2005 onwards, ought to have been regularised by the third petitioner herein. He has also contended that the action of the Director of Survey and Land Records, Saram, Puducherry/3rd petitioner herein, orally stopping him from work, is arbitrary and violative of Articles 14 and 16 of the Constitution of India.
7. Before the Tribunal, the third petitioner herein, namely The Director of Survey and Land Records, Saram, Puducherry, in his counter affidavit, has submitted that the second respondent was engaged as a resource person in the office of the Department of Revenue and Disaster Management vide order dated 9.10.2005 and he joined duty on 29.10.2005. Contention of the second respondent that he was engaged as a Data Entry Operator, has been denied. According to him, along with the second respondent, services of three others were utilized for the digitization of Field Measurement Book of the Survey Department. Two other resource persons engaged along with the second respondent, left the job. The second respondent was paid a consolidated remuneration.
8. The Director of Survey and Land Records, Saram, Puducherry/ 3rd petitioner herein, has also contended that Puducherry Casual Labourers (Engagement and Regularisation) Scheme, 2009, was framed vide G.O.Ms.No.22 dated 27.02.2009 and that the same is not applicable to the second respondent, as he was not a casual labourer, but engaged for a specific work. Therefore, the name of the second respondent, was not included in the tentative seniority list of casual labourers, issued on 25.10.2010. The third petitioner, has also contended that the second respondent had never been engaged against a regular post or vacancy. There is only one post of Data Entry Operator in the Department of Revenue and Disaster Management and that a regular incumbent was already working on the date of filing of the original application and therefore, the prayer to regularize the services of the second respondent in the post of Data Entry Operator, cannot be granted.
9. The second respondent, in his rejoinder affidavit, has refuted the submissions made in the reply affidavit filed by the third writ petitioner. He further submitted that he was selected on 4.7.2005 as a resource person for audit entry work in the Department of Revenue and Disaster Management. Thereafter, digitization of Field Measurement Book (FMB) by using "Collabland Software" of the National Informatics Centre was sanctioned in the year 2008, by an order dated 29.10.2008 and that the second respondent, was assigned the said work. Refuting the contention that after the work was over, the second respondent was disengaged, he further submitted that he was engaged in digitization of nearly 16986 FMBs as on 9.7.2014. According to him, the said work continued on the date of filing of the original application. In the rejoinder, the second respondent has also contended that besides digitization of FMBs, the services of the second respondent were also utilised for the following works:
a) The second respondent was posted primarily at the Patta counter wherein, it was the duty of the second respondent to receive the application forms, receive the payments for issue of patta copies and make data entries into the computer and forward it to the Tahsildar for generation and issue of pattas;
b) Managing and maintaining the touch kiosks maintained at the Taluk Office relating to GLR values, patta details, etc;
c) To maintain all the systems ports and terminals in the entire taluk office and to attend minor software and hardware troubles and to coordinate with the service engineers in case of emergencies and major trouble shootings;
d) making all kinds of data entry works to be made by the Tahsildar, Deputy Tahsildar and other Senior staff including Cashier, Deputy surveyors, etc., in all their respective works including putting up the notice and all other official records;
e) data entry, generating and print out service including permanent integrated certificate, etc. to be given to School students, etc.
f) Maintenance of entries and datas in respect of sand mining;
g) printing and supply of all printed forms and service during shortages;
h) printing of settlement copies and periodically submitting it to the Head of Departments;
i) Maintenance of data entry works during emergencies, such as Nisha Storm - 2008, etc. including relief works such as, Monsoon, floods, etc;
j) maintenance of photocopying machines;
k) preparation of patta copies cash challan and remitting the challans to bank for cashiers;
l) maintenance of datas regarding collection of donation in respect of stamps of armed forces etc;
m) generating weekly data back up and monthly data back up and handing over of monthly back up to the Head office;
10. The second respondent was also deputed to election duty on part time basis for a period of 9 months starting from 4.00 p.m to 9.00 p.m in the evening, where the second respondent was making data entries regarding Form VI, VII, VIII and VIII (a) under the representation of "People's Act" and generation of Electoral Photo Identity Card (EPIC). That apart, the second respondent was also deputed for full time election duty for about 40 days. The second respondent was also deputed to census duty along with other officials.
11. The second respondent has further contended that only in the year 2008, the new work of digitization of Field Measurement Book commenced, at the Directorate of Survey and Records and that the second respondent was transferred to the Directorate with effect from November, 2008. Even at the Directorate, the second respondent's work was that of the regular data entry operator, which includes the following:
a) Digital drawing of field maps;
b) data entry files for the store keeper;
c) Maintenance and troubleshooting of all the software and hardware troubles in all the systems in the Head office (Technical Section) and coordinating with the service engineers in case of emergency and major repairs;
d) Maintenance and generation of print outs of large size maps in KIP scanner and printer and maintenance of data from KIP host to local host and maintaining the said KIP scanners and printer (It is pertinent to note that it is only the second respondent, who has been maintaining the said KIP scanner and even after his termination of service, the second respondent was called for troubleshooting in the said KIP printer in as much as even the service engineer did not know about the appropriate driver to be installed in the system and the second respondent helped out in respect of the same.)
e) The second respondent was also sent on deputation to Oulgerate Taluk office on every Wedensday and Friday to complete all the data entry work and (D1 and D2 files) in the said Taluk office during the year 2009;
f) Entering other datas including file notes etc., as may be requested by senior employees;
g) All the maps in respect of the Karaikal Region and maintenance of the data about the receipt and dispatch of the same.
12. Placing reliance on the office order dated 02.06.2009, issued by Yanam Municipality, regularising the services of one Sangeli Srinivasulu, Data Entry Operator, in Yanam Municipality and an office order dated 09.06.2014 issued by Karaikal Municipality, appointing one I.Durairaj, as Lower Division Clerk in Karaikal Municipality and on the following decisions, the second respondent has sought for regularisation of his services as Data Entry Operator in Government of Puducherry.
i) Secretary, State of Karnataka Vs. Umadevi and ors. reported in (2006) 4 SCC 1;
ii) Nishal Singh and Ors Vs. State of Punjab and ors decided by the Hon'ble Apex Court in C.A.No.1059/2005 dated 7.8.2013;
iii) Durgapur Casual Workers Union and Ors. Vs. Food Corporation of India decided by the Hon'ble Apex Court in C.A.No.10856/2014 dated 9.12.2014;
iv) Amarendra Kumar Mohapatra and Otd. vs. State of Orissa and ors. reported in (2014) 4 SCC 583;
v) Union of India and anr. Vs. Paramasivam and ors. decided by Madras High Court in W.P.No.27344 to 27347 dated 22.01.2014;
vi) J.Harikrishnan and ors. Vs. The management of Hanil Tube Pvt. Ltd. decided by Madras High Court in W.A.No.657 of 2012 dated 8.12.2014;
vii) V.Boopathy and ors vs. Jt. Registrar of Coop. Societies, Vellore zone, Vellore decided by Madras High Court in W.A.No.949 to 954 of 2012 dated 9.12.2014; and
viii) UOI and ors. vs. M.Jabastian and anr. decided by Madras High Court in W.P.No.17813/2014 dated 12.11.2014.
13. Considering the rival contentions and the material on record, the Central Administrative Tribunal, Madras Bench, by observing that there is no reason as to why the writ petitioners could not have considered the name of the second respondent for regularization under the Puducherry Casual Labourers (Engagement and Regularisation) Scheme, 2009, on his turn, at paragraph Nos.11 and 12 in O.A.No. 310/01155/2014 dated 20.3.2015, ordered as hereunder:
"11. We have carefully considered the rival contentions and perused the material on record. There is no dispute that the applicant has been continuously engaged for data entry work since the year 2005. His name was sponsored by the Employment Exchage and he has been selected following due selection process. The duties assigned to him as borne out by the records indicate that his services were used for all types of data entry work in addition to the work relating to digitization of Field Measurement Book. The contention of the respondents that the applicant has been discharged from duties upon completion of the work is also not borne out by the records placed before us. The applicant has worked for close to 10 years when his services were disengaged from the next day after he gave his representation dated 08.07.2014, following which the applicant gave another representation dated 09.07.2014 with a further request to consider him for reengagement as he has to take care of his family. He has also made further representation dated 21.07.2014 to that effect. Considering the fact that the applicant's service has been generally utilised for multifarious activities it cannot be said that he has charged to specific work only. As such we do not find any reason as to why the respondents could not have considered his name for regularisation under the Puducherry Casual Labourers (Engagement and Regularisation) Scheme 2009, upon his turn.
12. Hence we are of the view that the interest of justice would be met if a direction is given to the respondents to include the name of the applicant in the appropriate place in the list of casual labourers prepared as per the Puducherry Casual Labourers (Engagement and Regularisation) Shceme 2009 dated 25.10.2010. In the meantime the respondents are directed to engage him for data entry work in any department. O.A. is disposed of with the above direction. No costs."
14. Being aggreived by the same, the instant writ petition has been filed.
15. Assailing the correctness of the order of the Tribunal, Mr.R.Syed Mustafa, learned Additional Government Pleader (Puducherry), reiterated the very same grounds made before the Tribunal. Attention of this court was invited to the nature of engagement of resource persons for data entry work in the Department of Revenue and Disaster Management, being provisional and does not confer any right for future employment/absorption in Government service and that the Puducherry Casual Labourers (Engagement and Regularization) Scheme 2009, framed by the Government, was only to include the names of those, who had worked as casual labourers in the Departments of Government of Puducherry and their attached subordinate offices, subject to the eligibility conditions, learned Additional Government Pleader (Puducherry) submitted that, when the second respondent was engaged for a specific work, as a resource person on consolidated pay, he was not treated as a casual labourer (daily rated) and therefore, his name was not included in the seniority list for casual labourers issued by the Government of Puducherry.
16. On the aspect of orders of regularisation issued to Mr.Sangeli Srinivasulu as Data Entry Operator in Yanam Municipality, learned Additional Government Pleaser, submitted that the said individual, was working as a daily rated data entry operator and therefore, the Departmental Promotion Committee, recommended for his appointment on regular basis and therefore, there is no discrimination.
17. Per contra, taking this court through the appointment of the second respondent as resource person and the nature of work extracted from him for about 10 years, as narrated in the foregoing paragraphs and the sudden stopping of work by the third petitioner herein, when a request for regularisation was made, Mr.Bharatha Chakravarthy, learned counsel for the second respondent, submitted that the action of the third petitioner, has affected the entire family of the second respondent. He has also submitted that the only ground on which the writ petitioners have not included the name of the second respondent in the seniority list of casual labourers, was that he was not a casual labourer. According to him, Puducherry Casual Labourers (Engagement and Regularisation) Shceme 2009, was framed in the year 2009 and whether the second respondent, was a daily rated employee or paid on consolidated basis, the writ petitioners ought to have considered the length of service of nearly 10 years, for regularizing the services under the scheme on his turn. He further submitted that the only direction given by the Tribunal is to include his name in the seniority list and considering the age of the second respondent, family, the directions issued by the Tribunal cannot be said as arbitrary, unjust, warranting any interference.
Heard the learned counsel for the parties and perused the materials available on record.
18. Indisputably, in 2005, the 1st respondent, has been sponsored by the Employment Exchange, for engagement as resource person for audit entry work in the Department of Revenue and Disaster Management. The second respondent possess a National Apprenticeship Certificate issued by the National Council for Vocational Training. He is also a degree holder in Bachelor of Bank Management. Though he was engaged as resource person for data entry work in the Department of Revenue and Disaster Management in 2005 on condition that such engagement would not confer any right for future employment/absorption in Government services, fact remains that he had been engaged in various works, stated supra for nearly 10 years. Government of Puducherry, have formulated a scheme for regularising the services of the Casual Labourers called "Puducherry Casual Labourers (Engagement and Regularisation) Shceme 2009". While framing the scheme, the Government of Puducherry, has stated as hereunder:
"On the one hand having regard to the fact that casual labourers belong to weaker sections of the society, many of them belong to SC and OBC and disengagement of their services will cause undue hardship to them, while on the other hand, employment opportunities are to be provided to eligible youth entering the job market, it is, therefore, considered desirable to frame a scheme as a one-time measure."
19. At this juncture, we place on record, the submission of the learned Additional Government Pleader, Government of Puducherry, that the Scheme is still in force and that 75% of the posts in Puducherry, are being filled up from out of the eligible candidates included in the list and only 25% of the posts are filled up by direct recruitment. From the materials on record, it could be deduced that the second respondent belongs to backward class and at the time of disengagement, he was aged 36 years and burdened with the responsibility of maintaining his family, comprising of wife, child and aged parents. He is stated to be the sole breadwinner. The last drawn consolidated pay of Rs.6,000/- was even stated to be lesser than the pay of the last grade employee in Government of Puducherry, and according to the second respondent, at that time, the daily wages paid was Rs.274/- per day. Though the second respondent was appointed on consolidated pay, considering the intention of the Government in framing the scheme, taking note of the plight of the weaker section of the society and undue hardship caused to them, due to disengagement, the second respondent, who had worked for almost 10 years, in various departments, cannot be said to be in a better position, when compared to the casual labourers for whom a scheme has been framed in the year 2009.
20. Yet another factor to be taken note of by this court is the action of the third petitioner herein, in suddenly disengaging the services of the second respondent. On 08.07.2014, the second respondent, is stated to have sent a letter to the Secretary to the Government, Department of Revenue and Disaster Management, Puducherry, through proper channel, seeking for permanency. Copy of the said letter has been sent to the Directorate of Survey and Land Records, Department of Revenue and Disaster Management, Puducherry, the third petitioner herein. Instead of responding to the said letter, dated 08.07.2014, the Directorate of Survey and Land Records, the third petitioner herein, seemed to have called the second respondent to his chamber at 5.50 p.m and instructed him not to attend the office. Letters dated 8.7.2014 and 9.7.2014 are extracted.
" Puducherry, July 8, 2014
From
N.Tamilselvan
Resource Person
Directorate of Survey and Land Records
Puducherry
To
The Secretary to Government (Revenue)
Department of Revenue and Disaster Management
Puducherry
Respected sir,
(Through - Proper Channel)
I humbly submit my grievances as detailed below for your sympathetic consideration and kind action.
I submit that I am working as a Resource Person engaged for standardisation and stabilisation of Land Records since 7th November 2005 by the Department of Revenue and Disaster Management.
I humbly submit, sir, that I was engaged as Resource Training persons at a consolidated pay of Rs.4000/- per month from 7th November 2005 and Rs.6000/- per month from November 2008 were sponsored through Employment Exchange and were selected for engagement by means of a competitive exam in October 2005, with due training in National Informatics Center, Puducherry for a period of a month, I among were appointed in Taluk effect from 7th November 2005.
I humbly submit, sir, that since my appointment, I have rendered my services sincerely and diligently. I have been working scheduled hours of work to successfully achieve target digitization process through computer software.
It is now nearly eight and half years since our appointment from 7th November 2005 for all these years, I have been rendering our services to the best of our ability and the rewards of our work are there to be seen with the computerisation process having become full operational and working smoothly without any hitches.
I humbly submit that now I am 36 years old. Therefore opportunities for us to enter into Government service is almost finished.
It is therefore my humble prayer before your respected office, sir that the services of me may kindly be made permanent post in the respective offices. It is my humble prayer to consider my case sympathetically.
Thanking you, sir with avowed expectations.
Yours faithfully,
(N.TAMILSELVAN)
Copy Submitted to
The Special Secretary to Government (Revenue)
Department of Revenue and Disaster Management
Puducherry
The Collector
Department of Revenue and Disaster Management
Puducherry
The Director
Directorate of Survey and Land Records
Department of Revenue and Disaster Management
Puducherry "
"From Puducherry,
N.Tamilselvan Dt.:09-07-2014
(Resource Person, Dte. of Survey
and Land Records)
26-C, Kaman Koil Street
G.N.Palayam, Arumbarthapuram Post
Puducherry - 605 110.
To
The Director,
Dte. of Survey and Land Records
Government of Puducherry
Saram, Puducherry - 13.
Sir,
Sub: Requested for Re-engagement and
regularisation of my services in the Dte.
of Survey and Land Records - Reg.
Ref: My letter dated 08-07-2014 (for regular
appointment)
--o0o--
I hereby putforth the following few lines for your kind perusal and favourable orders please.
I have given letters mentioned at above reference on the forenoon of 08-07-2014 addressed to the Secretary to Government (Revenue), Govt. of Puducherry and copy of the same submitted to 1. The Special Secretary (Revenue), Puducherry, 2. The District Collector, Puducherry and 3. The Director, Dte. of Survey and Land Records, Puducherry wherein I was requesting the respected officers to consider me for regular/permanent appointment since I have been working as a Resource person in the Dte. of Survey and Land Records for the past 8 1/2 years i.e. from 07.11.2005.
In this circumstances itself, soon after receiving my above mentioned representation, the Director of Survey and Land Records has called me to his chamber at around 5.10 p.m on the same day (08-07-2014) and in sudden he has unfortunately told me that "you don't come to office from tomorrow (09-07-2014)". This was very shock to me and affect my poor family.
In this regard, I am to request that now I am married and having child. I am alone to take care of my family as I am only son to my aged poor parent. Besides, I believe that there will be no employment opportunity in the Government offices since I am 36 years old and render 8 1/2 years service in your directorate with entire satisfaction of my superiors.
Therefore, I kindly request you Sir, to consider me for re-engagement/regular appointment in this Dte. of Survey and Land Records so as to save my family and for survival please.
Thanking you,
Yours faithfully,
(N.TAMILSELVAN)
Copy submitted to:
1. The Secretary (Revenue), Chief Secretariat, Pdy.
2. The Spl. Secretary (Personnel), Chief Secretariat, Pdy.
3. The District Collector, Puducherry.
Though the letters dated 8.7.2014 and 9.7.2014 respectively have been acknowledged by the Office of the Directorate of Survey and Land Records, there is no whisper in the reply affidavit filed by the writ petitioners, except to state that the second respondent is not eligible for regularisation. It is not the case of the writ petitioners that there was no need for continuation of the second respondent in any of the works, performed by him continuously, for nearly 10 years. The petitioner herein, could have sent a reply, to the letter dated 08.07.2014, instead of abruptly disengaging the second respondent. Such action is arbitrary. Unfortunately the request for permanency, has caused his disengagement.
21. Considering the plight of the second respondent, dependability of his income by the family, nature of multifarious duties performed for nearly 10 years, as rightly observed by the Tribunal, it cannot be said that he was charged to a specific work only, for not including his name for regularization under the Puducherry Casual Labourers (Engagement and Regularisation) Scheme 2009 on his turn.
22. As rightly contended by the second respondent, he cannot be said to be a back door entrant. He has been sponsored and selected. The second respondent has not been disengaged on the basis of any adverse entry. On the other hand, being satisfied with his work, his services have been utilized in multifarious works. As rightly observed, the second respondent, ought to have been included at the appropriate place in the list of casual labourers prepared as per Puducherry Casual Labourers (Engagement and Regularisation) Scheme 2009 dated 25.10.2010 and in the meantime, he ought to have been provided with data entry or any other work in any department, either on the same consolidated pay or daily rated pay so that the family of the second respondent is not put to undue hardship.
23. Before parting with the case, we only observe that when a scheme has been framed by Government of Puducherry, to mitigate the hardship faced by the weaker section of society, whose families would suffer, on account of sudden disengagement of their services, Government of Puducherry may also consider inclusion of those employed on consolidated pay, for years together. Having regard to the length of service put in by an employee and whenever representations are made for regularisation or permanency, the authorities should respond to such request with reasons, instead of disengaging such applicants from service. Persons working at lower levels, for long number of years, cannot be mechanically sent out, without assigning any reasons. Those who are fortunate to be at the helm of office, should consider the plight of the families, and whenever possible, allow them to continue to work, instead of disengaging. Authorities are also directed to consider the object of the Scheme and act accordingly. While sustaining the directions issued by the Tribunal, we only wish that our observations made in the context of mitigating circumstances of the weaker section be taken note of in future.
Writ petition is dismissed with the above observation. However, there shall be no order as to cost. Consequently, the connected writ miscellaneous petition is closed.