Full Judgment
Shailendra Pandey, Member (A):
1. The applicant, who was working as Casual Labour under the respondent’s-department, has challenged in this OA the action of the respondents in not considering his case for regularization against a Group `D’ post despite his having rendered more than 10 years of service as Casual Labour.
2. It is stated by the applicant that the selection process for appointment against Group `D’ (Casual Labour) was started by the respondents in January, 2000 and, as he fulfilled the eligibility conditions, he also participated in the selection process and, after interview and scrutinizing of documents, he was found fit, and was selected and joined on 10.01.2000, his engagement being treated ‘on casual basis’ only. According to the applicant, he was not given any appointment order. It is stated that after two years of service, the respondents changed the conditions of the engagement of the applicant from daily wager to temporary employee and began paying him monthly pay and that the new conditions were made applicable w.e.f. 3.12.2002. It is further stated that in May, 2001 the respondents issued an Office Order granting minimum of the pay scale to all the Watermen/Peons who had completed 206 days of services in a year, but though the applicant had completed more than 206/240 days services, his claim was not considered and he was continued in the same capacity. The respondents did not take any action in spite of expiry of 10 years of service in February, 2010. In such circumstances, the applicant requested Respondent No.4 to consider his case for grant of at least the minimum of the pay scale, but this was not done, and instead, on 13th November, 2009, the respondents terminated his services on an allegation that he (the applicant) tried to file the returns of the Income Tax for the Assessment Year 2007-08 in back date of a private party, i.e., proprietor of M/s Gagan Book Shop, Sadar Bazar, Gurgaon. However, he states that after he explained the correct position to the competent authority and requested him to continue his services, he was continued, but directed not to mark his presence. It is stated that though his services were so continued, he was not paid salary from November, 2009. In the year 2010, according to the applicant, the respondents regularized the services of similarly placed persons, including some of his juniors, but the claim of the applicant for regularization was ignored. Aggrieved by the said action, the applicant sent a legal notice to the respondents on 11.05.2010. However, no reply has been received to the said notice, and further the respondents restrained the applicant from attending office from 19th July, 2010. Hence, the present OA has been filed on 14.09.2010, seeking the following reliefs:
to quash and set aside the verbal termination order dated 13.11.2009 and direct the respondents to reinstate the applicant in service with all consequential benefits including arrears of pay.
To direct the respondents to regularize the services of the applicant as Group D with all consequential benefits.
To allow the OA with cost.
To pass such orders as the Tribunal may deem fit and proper in the existing facts and circumstances of the case.
3. The main grounds taken by the applicant, in support of his claim, are as under:
that although persons similarly placed, and juniors to him, were regularized but his case has not been considered for regularization, despite completion of 10 years service, as required under the Judgment of the Hon’ble Apex Court in State of Karnataka v. Uma Devi, JT 2006(4) 420, which is violative of Article 14 of the Constitution.
that his services have been terminated on a verbal order which is in violation of principles of natural justice. In this connection, he has relied on the Judgment of the Hon’ble Apex Court Nar Singh Pal v. Union of India, 2000(1) SC SLJ 508.
4. The respondents have opposed the OA and have stated that the applicant was engaged to work as Waterman/Chowkidar on daily wages, and as per office record, he was engaged only w.e.f. 31.12.2002.
4.1. It is also stated that the applicant does not fulfill the prime conditions of continuous regular service of 10 years as on the cut off date, i.e., 10.04.2006 as per the Board’s letter dated 22.07.2009 and as per the clarification of the Do PT, which is extracted below:
“That cut-off date of calculation of the tenure of working for ten years or more in respect of casual labourers in terms of this Department O.M. dated 11.12.2006 is obviously the date of judgment of the Apex Court in the case of ‘Uma Devi vs. Government of Karnataka,’ i.e. 10.04.2006.”
4.2. Further, it is stated that a complaint was received against the applicant vide letter dated 13.11.2009 regarding a case of attempted fraud alleging that he had tried to file a return of Income Tax for the Assessment Year 2007-08 with a back date of a private party, namely, M/s Gagan Book Shop, Gurgaon, and that this was a very serious and grave misconduct on the part of the applicant. Therefore, an inquiry was held, and thereafter the applicant was disengaged, in view of the grave misconduct committed by him. In view of this, the services of the applicant cannot be regularized, therefore, they pray that the OA be dismissed.
5. We have heard the counsel for both sides and have been through the pleadings on record.
6. At the outset, we must observe that the applicant in his OA has made various averments which are not corroborated through any supporting documents. In the absence of these, the various submissions/averments made by him cannot be accepted. For instance, the submission of the applicant that he was appointed against a Group `D’ post (Casual Labour), after participating in a selection process and after interview and scrutinizing of documents and thereafter he joined on 10.01.2000, is not backed up by any documentary evidence to enable us to decide whether it was a proper process of selection as per rules. Further, there are no details of the conditions on which his engagement was continued nor any details of representations stated to have been made by him. Such details are also not mentioned in the legal notice sent to the respondents on 11.05.2010.
The only documents attached by the applicant in Compilation No.-II are the following:
1) Annexure A1 which is stated to be a copy of his appointment/engagement letter - a perusal of this shows that this is a Bill of Contingent Charges for November 2002, which would not establish his engagement prior to November, 2002.
2) Annexure A2 (Pages 16-18), are the copies of the certificates, which are stated to be the experience certificates - a perusal of these shows that one certificate was issued on 17.03.2006 by the Administrative Officer, Income Tax Office, Gurgaon who certified that the applicant has been working in the Income Tax Office, Gurgaon for the last two years, while the other two certificates have been issued by Administrative Officer, (DDO), O/o Addl. Commissioner of Income Tax without any date and these do not again establish the period of his employment with the respondents prior to November, 2002.
3) Annexure-3 is a copy of a `last extension certificate - a perusal of this again shows that this is a Bill for the month of November, 2009, and would not substantiate his averment that he had been engaged prior to November, 2002.
As already stated, in the absence of necessary documents and on the basis of vague averments, it is not possible to accept that the applicant had put in the requisite number of 10 years of service for regularization. It was necessary for the applicant to have attached necessary documents to support his averments, particularly as the respondents have stated in their reply that on the basis of records the applicant was engaged as Waterman/Chowkidar w.e.f. 31.12.2002 on purely daily wage basis, and did not fulfill the conditions of continuous regular service of 10 years on the relevant date.
As regards the contention of the applicant that the services of the persons similarly placed and junior to him had been regularized, it is noticed that the respondents have also stated that the reason for disengaging the applicant was the commission of an act of grave misconduct which came to notice when a complaint was received against the applicant and an inquiry was held to find out the facts. It is noted from Annexure R-I filed with the counter reply that the department has vide letter dated 13.11.2009 made a report to the SHO, Udhyog Vihar, as under:
“In can thus be seen that the assessee, Sh. Gagan Bansal, proprietor of M/s Gagan Book Shop, Opp. Govt. Girls Sr. Sec. High School, Sadar Bazar, Gurgaon was trying to file his return in back date through Sh. Tushar Jain, CA. For this purpose, this person by the name of Yoginder Kumar was sent to this office. Here he was to get in tough with Ajit, Peon of this office who would file this return in back date. In this case of attempted fraud, suitable action at your end should thus be taken against the assessee, Sh. Gagan Bansal, Sh. Tushar Jain, CA, Yogender Kumar and Ajit, Peon.”
The decision to not continue his services as on daily wage basis stands suitably explained.
7. The Judgment relied upon by the applicant’s counsel in Nar Singh Pals case (supra), is also distinguishable as in that case it had been held that a casual labour, who has attained temporary status, is entitled to the constitutional protection envisaged by Article 311 of the Constitution and other Articles dealing with services under the Union of India, but in the present case, the applicant has not established that he was a casual labour with temporary status.
8. The law is also clear in the matter of Casual Labour/employees and the right of their regularization. The Hon’ble Apex Court in the case of Secretary, State of Karnataka and Others v. Umadevi (3) and Others, (2006) 4 SCC 1 observed that Court should refrain from issuing directions for absorption/regularization or permanent continuance of temporary, contractual, casual, daily-wage or ad hoc employees appointed/recruited and continued for long in public employment where the appointments to the posts concerned had not been made after following the regular recruitment process of selection. We quote below some of the relevant paras from the aforesaid Judgment:
“43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service.
44. The concept of 'equal pay for equal work' is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the Rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment.
45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently.
46. xxxxx
47. 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 a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual 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.”
9. In terms of the Judgment of the Hon’ble Apex Court in Uma Devi’s case (supra), the present OA is liable to be dismissed for the reason that persons who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the Rules, have no right of regularization.
10. In Umadevi’s case (supra), the Hon’ble Apex Court had also observed as under:
“53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub-judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.”
However, the claim of the applicant for regularization on completion of 10 years service, as a one time measure, would arise only if he first shows that he had completed 10 years service on the prescribed cut off date, i.e., 10.04.2006. This he has not done through supporting documents. Further, it is pertinent to note here that the respondents have (as mentioned in para 4.1) made a categorical assertion that the applicant did not fulfill the conditions of the prescribed service of 10 years on the cut off date, viz., 10.04.2006.
and, last but not least, the competent authority has to consider the conduct of persons, whose services are going to be regularized in accordance with the rules. In the case of the applicant, we notice, as brought out by the Respondents, that an inquiry was conducted, against the applicant, into an allegation that he tried to file a return of income tax for the Assessment Year-2007-08 in back date, and found him guilty, and action was recommended against him (a complaint was also made to the SHO about the said fraud case vide copy placed at Annexure R-1). In these circumstances, the action of the respondents in dispensing with his services as a daily wage employee does not suffer from any illegality.
11. In view of the above, the OA is dismissed with no order as to costs.