Full Judgment
2. The respondents oppose the same by raising various contentions as stated in their reply affidavit. According to them, temporary status was conferred on all eligible casual labourers as on the date of the Office Order No. 1/75/94-Admn/3275 dated 11.2.1994. However, subsequently in accordance with the clarifications contained in the subsequent O.M. dated 12.7.1994 issued by the Department of Personnel & Training, the respondents suspended the operation of the Office Order dated 11.2.1994 by which temporary status was conferred on all casual labourers, the main objection being that those casual labourers who were not initially engaged through Employment Exchange were not entitled to be conferred with temporary status. Subsequently the temporary status order which was kept under suspension was restored restricting the eligibility only to those casual labourers who had entered the department prior to 7.6.1988, on the ground that the said O.M. provided for only one-time exemption to such casual labourers for regularisation even if they were not sponsored by Employment Exchange initially.
3. Further according to the respondents, the matter was referred to the Director General, Archaeological Survey of India, New Delhi vide letter dated 23.4.1997 seeking clarification whether such casual labourers could also be conferred with temporary status. The office of the Director General asked the respondents to take action according to the instructions contained in the Director General's letter No.23/1/97-Admn. dated 8.8.1997 and two circulars of the Department of Personnel & Training No. OM No. 51016/2/90-Estt(C) dated 10.9.1993.
4. While admitting that the circulars sent by the Director General, Archaeological Survey of India did not mention anything about the entry of casual labourers through Employment Exchange, the respondents submit that they could not restore temporary status to such casual labourers who entered the department after 7.6.1988. The clarification issued by the Department of Personnel & Training vide O.M. dated 12.7.1994 was not received from the D.G.'s Office, according to the respondents and therefore temporary status was not restored to the applicants as they did not fulfil the requirement of entry into service before 7.6.1988 through Employment Exchange as stated in O.M. dated 8.4.1991. In that view of the matter, therefore, according to the respondents, the suspension of temporary status could not be treated as illegal and void.
5. It was submitted on behalf of the respondents that the Supreme Court in the case of Passport Officer, Trivandrum and Ors. v. Venugopal & Ors. which was decided on 27.1.1997, held that: "If the department decides that only those employees who were recruited in normal manner i.e., through employment exchange shall be given the temporary status, no fault can be found with the department. The decision cannot be said to be unreasonable or arbitrary. Therefore, we find it difficult to accept the line of reasoning taken by the Tribunal in holding that the decision was inconsistent with Article 14 of the Constitution." 6. It is pertinent to note that the Government of India, Ministry of Personnel, Public Grievances and Pension, Department of Personnel & Training vide its Office Memorandum dated 10th September, 1993 circulated the following requirements for the purpose of conferment of temporary status.
(i) Temporary status would be conferred on alt casual labourers who are in employment on the date of issue of this O.M. and who have rendered a continuous service of at least one year, which means that they must have been engaged for a period of at least 240 days (206 days in the case of offices observing 5 days week).
(ii) Such conferment of temporary status would be without reference to the creation/availability of regular Group 'D' posts.
(iii) Conferment of temporary status on a casual labourer would not involve any change in his duties and responsibilities. The engagement will be on daily rates of pay on need basis. He may be deployed anywhere within the recruitment unit/territorial circle on the basis of availability of work.
(iv) Such casual labourers who acquire temporary status will not however, be brought on to the permanent establishment unless they are selected through regular selection process for Group 'D' posts." 7. In para-8 of the said Office Memorandum dated 10.9.1993 describing the procedure for filling up of Group 'D' posts it is stated that two out of every three vacancies in Group 'D' cadre in respective offices where casual labourers have been working would be filled up as per extant recruitment rules and in accordance with the instructions issued by the Department of Personnel & Training from amongst casual workers with temporary status. However, regular Group 'D' staff rendered surplus for any reason will have prior claim of absorption against existing/future vacancies. In case of illiterate casual labourers or those who fail to fulfil the minimum qualification prescribed for post, regularisation will be considered only against those posts in respect of which literacy or lack of minimum qualification is not a deterrent factor. They would be allowed age relaxation equivalent to the period for which they have worked continuously as casual labourer.
8. In Annexure-III to the reply affidavit it is stated that with reference to OM No. 51016/ 2/90-Estt (C) dated 10.9.1993 referred to in the preceding paragraph, the following clarifications were given.
Point-1: Whether the casual employees who were not initially engaged through employment exchange are entitled to the benefit of temporary status.
Clarification : Since it is mandatory to engage casual employees through employment exchange, the appointment of casual employee without employment exchange is irregular. Hence such casual employees cannot be bestowed with temporary status.
Since we are mainly concerned with this question, we do not find it necessary to reproduce the remaining clarifications as contained in Annexure-III to the reply affidavit.
9. Annexure-VI to the counter affidavit which is an Office Memorandum dated 8.4.1991 on regularisation of service of casual workers in Group 'D' posts - relaxation of employment exchange procedure and upper age limit, it is stated in the concluding part of para-2 as follows: "2. The matter has been considered and keeping in view the fact that the casual employees belong to the economically weaker section of the society and termination of their services will cause undue hardship to them, it has been decided, as one time measure in consultation with the Director General Employment & Training, Ministry of Labour, that casual workers recruited before 7.6.1988 and who are in service on the date of issue of these instructions, may be considered for regular appointment to Group 'D' posts, the term of the general instructions, even if, they were recruited otherwise than through employment exchange and had crossed the upper age limit prescribed for the post, provided they are otherwise eligible for regular appointment in all other respects." 10. In the case before us, the first applicant was appointed in 1988, the second applicant was initially appointed as casual labourer in 1982. After a break he was shown as reappointed on 19.8.1989. The third applicant was appointed on 1.7.1988. Obviously they did not fulfil the requirement of having been appointed prior to 7.6.1988 which was a cut off date for granting temporary status.
11. The Superintending Archaelogist vide his letter dated 17.4.1997 (Annexure-VII to the counter affidavit) addressed to the Director General, Archaelogical Survey of India, inter alia pointed out in paragraph-(iii) that in view of enormous pressure from the Association and from Casual Labourer, Diretorate have been requested vide T.O.letter of even No. dated 6.4.1995 to permit the office of the Superintending Archaelogist, Hyderabad to restore temporary status to those casual labourers who joined before 7.6.1988 which was fixed as cut off date by the Ministry of Personnel, Public Grievances and Pension, vide O.M. No. 49014/4/90-Estt(C) dated 8.4.1991 and vide which mandatory requirement of recruiting Casual labourer through Employment Exchange had been exempted for regularisation of Casual Labour as Group 'D'. It is further stated in the said communication that in view of non-receipt of any communication from the Directorate in spite of several reminders and telex message dated 22,11.1995 and 30.11.1995, temporary status had been restored to those casual labourer who had joined before 7.6.1988 vide his office order dated 3.1.1996.
In paragraph (v) it is stated that finally Directorate had been requested by letter dated 10.5.1996 to allow restoration of temporary status to those casual labourers who joined after 7.6.1988.
12. By Office Memorandum No. 51096/2/90-Estt(C) dated 10.9.1993 the Director of Department of Personnel & Training stated that the guidelines in the matter of recruitment of persons on daily wage basis in Central Government Offices were issued vide the Department's O.M.No. 49014/2/86-Estt(C) dated 7.6.1988. The policy had further been reviewed in the light of the judgment of the Central Administrative Tribunal, Principal Bench, New Delhi, delivered on 16.2.1990 in the OA filed by Sri Rajkamal and Anr. v. Union of India, reported in 1990(2) SLJ 169 in which it was held that while the guidelines contained in O.M. dated 7.6.1988 may continue to be followed, the grant of temporary status to casual employees who were presently employed and had rendered one year of continuous service in the Central Government offices other than the Department of Telecommunications, Department of Posts and Railway may be regulated by the same scheme.
13. The scheme for Casual Labourers (Grant of Temporary Status and Regulation) of Government of India which came into force from 1.9.1993 was applicable to the casual labourers in employment of the Ministries/Departments of Government of India and in the Subordinate offices on the date of issue of the order; but the same was not made applicable to the casual workers in Railways, Department of Telecommunications and Department of posts who had already framed their own schemes. Clause 4(i) of the scheme provided that temporary status would be conferred on all casual labourers who are in employment on the date of issue of the instant O.M. and who have rendered a continuous service of atleast 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). In Sub-clause (ii) it is provided that such conferment of temporary status would be without reference to the creation/availability of regular Group 'D' posts. In Sub-clause (iii) it is provided that conferment of temporary status on a casual labourer would not involve any change in his duties and responsibilities. The engagement will be on daily rates of pay on need basis. He may be deployed anywhere within the recruitment unit/territorial circle on the basis of availability or worker. Sub-Clause (iv) provides that such casual labourers who acquire temporary status will not however be brought on to the permanent establishment unless they are selected through regular selection process for Group 'D' posts.
14. The requirement of the incumbent having been initially appointed through employment exchange though not stated in the above mentioned scheme was introduced subsequently which deprived the present applicants to be conferred with the temporary status. However, in Government of India Archaeological Survey of India Circular bearing No.F. 33/12/95-Admn.II dated 10.3.1998 regarding grant of temporary status to daily wagers, it is stated that the question of grant of temporary status had been reviewed in consultation with the Department of Personnel & Training as a sequel to a representation submitted by one of the ex-casual labourers before the Chairman, National Commission for Scheduled Caste and Scheduled Tribe, New Delhi and the advice given by the DOP & Trg. in that case is extracted in the aforesaid circular dated 10.3.1998 which is reproduced below: "(i) The Scheme for grant of temporary status to the casual employees was formulated in pursuance of the judgment dated 16.2.90 of the CAT Principal Bench, New Delhi in the case of Shri Raj Kamal and Ors. v. Union of India and Ors.. The Scheme for grant of temporary status is a one time affair and is applicable in respect of those casual employees who were in service on the date of the notification of the scheme i.e. 10.9.93 and had rendered one year of continuous service with 240 days or 206 days of service as the case may be, on that date. The provisions of the scheme are also not applicable in respect of those casual employees who were recruited otherwise than through the sponsorship of employment exchange.
(ii) In this connection attention is also invited to the Supreme Court judgment dated 21.1.91 in the case of Passport Officer, Trivandrum and Ors. v. Venugopal C and Ors. in which the Hon'ble Court has held that "if Department decides that only those employees who were recruited in normal manner i.e. through the employment exchange shall be given the temporary status, no fault can be found with the department. The decision cannot be said to be unreasonable or arbitrary. Therefore, we find it difficult to accept the line of reasoning taken by the Tribunal in holding that the decision was inconsistent with Article 14 of the Constitution." 15. Having regard to the view taken by the Hon'ble Supreme Court in the case of Passport Officer, Trivandrum and Ors. v. Venugopal and Ors. as stated in paragraph (ii) of the circular letter dated 10.3.98, it would not be in order for this Tribunal to reopen the issue and give any different direction from the one given by the Supreme Court that if the department decides that only those employees who were recruited in normal manner i.e. through employment exchange shall be given the temporary status, no fault can be found with the department and the decision cannot be found to be unreasonable or arbitrary.
16. The controversy with regard to the requirement of sponsorship of the employment exchange is straightened out by the above decision of the Hon'ble Supreme Court and therefore, the applicants' case falls flat. Nothing has been urged or pointed out on behalf of the applicants how the applicants could be absolved from the purview of the above decision of the Supreme Court.