Naresh Kumar and ors. Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
1. the applicant nos. 1 to 4 & 6 have claimed appointment on the post of lift operators and arrears of salary from the date when the tribunal gave directions for appointments in o.a. no. 188/91. the applicant nos.5 and 7 have prayed that they be retained on muster roll employees at the minimum of the pay-scale admissible to the post of lift operator pending consideration of their claim for regulansation in accordance with the law.2. the brief facts, as contained in the o.a, is that the applicants were initially engaged is lift operators in g.s.i, on daily wages basis in the year 1987 and worked on consolidated remuneration at the rate of rs. 500/- per month upto 1990. subsequently the applicants worked on daily wages basis w.e.f. 1.2.1990. the services of the applicants were dispensed with vide notice dated 21.5.1991. feeling aggrieved by the aforesaid notice, the applicants filed o.a. no. 188/91. which was finally disposed of, by a division bench of this tribunal on 2.2.93.however, none of ihc applicants were given appointment in spite of various representations keeping in view the strength of muster roll workers in various categories, the central government was pleased to create 8982 posts vide order dated 1.9.82 in the central public works department (in short c.p.w.d.). consequently, d.g. works, c.p.w.d.issued a circular dated 1.9.92 (annexure-5) by which 60 posts were allotted to electrical ii department north zone. only 53 persons were appointed leaving seven vacant post. the applicants were trade tested alongwith two others. five applicants namely applicant no. 1, 2, 3, 4 & 6 cleared the trade test and the applicant nos. 5 & 7 failed to clear the trade test. five applicants who cleared the trade test claimed regularisation against seven available post. as the respondents failed to give relief to the applicants, present o.a. has been filed with the relief mentioned earlier.3. the respondents case, in short, is that according to the rules and instructions as applicable on the post created through letter dated 1.9.92 (annexure-5) passing of trade test, age limit subject to relaxation as per instructions, initial engagement prior to the ban i.e. 19th november 1985, completion of 240 days in two consecutive years, initially name being sponsored by the employment exchange are the mandatory requirements for regular appointment as lift operator which is a group 'c' post. further stand of the respondents is that the post created through letter dated 1.9.92 (annexure-5) were meant for those who were initially engaged as casual labourers from the date prior to ban i.e. 19.11.85. according to the respondents none of the applicants fulfil the conditions and eligibility criteria and, therefore, they are not entitled to regular appointment on the post of lift operators.4. the further submission of the learned counsel for the respondents is that the applicants were initially engaged by the respondents on 15.1.90 and were disengaged on 15.6.1991. the applicants were never engaged by the respondents prior to 15.1.90. the order of disengagement of the applicants was challenged by filing o.a. no. 188/91. in the said o.a. four reliefs were claimed, but all the four reliefs were rejected by the tribunal through judgment dated 2.2.93. the tribunal had, however directed, it has been submitted, to maintain a register from the date the applicants were working and to appoint the applicants by giving priority and preference, at lucknow and incase the post is not available at lucknow, else-where, if the juniors to the applicants have been appointed. the respondent's case is that the names of all the applicants were entered in the register and they were all trade tested.it is also the case of the respondents that no lift operator is working in g.s.t. building as all lifts have been put to auto mode. no junior to the applicants has been engaged. as the applicants were not satisfied with the action of the respondents, they filed contempt petition no. 190/93 for non-compliance of the judgment/order dated 2.2.93, but the same was rejected. however, the present o.a. was also filed during the same period without disclosing in the o.a. about the contempt petition or regarding filing of the contempt petition in the o.a.5. heard the learned counsel for the parties and perused the pleadings on record.6. the initial stand of the respondents was that the post of lift operator is a group 'c' post. consequently, office memorandum dated 16.7.94, was filed as annexure o-2 by the respondents with their objection. the counsel for the respondents, however, graciously.admitted that the post of lift operator is a group 'd' post, though the pay-scale being given to lift operator is equivalent to group 'c' post.the learned counsel for the respondents has, therefore, submitted that the applicants would be governed by office memorandum dated 8.4.91 issued by the department of personnel & training on the subject of regularisation of services of casual labour in group 'd' post and circulated with letter of d.g. works, c.p.w.d. dated 7.5.92.7. the learned counsel for the applicants initially took the stand that the applicants were not working in the work charge establishment but were working in the regular classified establishment. another stand was taken that the applicants were not working as casual labourers and they were not covered by o.m. dated 8.4.91. the submission was that the worker on work charge establishment is different from a casual labour.subsequently, however, the learned counsel for the applicants graciously admitted that the applicants were working in the work charge establishment and were not working on regular classified establishment.it was also admitted that the applicants are governed by om dated 8.4.1991.8. in the earlier o.a. no.188/91, following reliefs were claimed by the applicants:- "(a) the respondents be directed to allow the applicants to continue in service as lift operators & provide them the same salary and benefits to them which is being given to the regular employees discharging the same duties. (b) the notice dated 21st may, 1991 issued by the respondent no.2 regarding termination of the services of the applicants after summoning its original from the respondents and also the notice/information dated 29th may, 1991 pasted on the notice board on 10th june, 1991 contained in annexure no. 6 (b) clause. (c) the respondents be directed to regularise the services of the applicants considering their full length of service from the date of their initial engagement as lift operators as mentioned in para 1 of the application followed by consequential benefits of the same including payment of arrears arising out of regularisation. (d) issue any other appropriate writ/order or direction which this hon'ble tribunal may think just and proper in the circumstances of the case".9. none of the above reliefs was allowed by this tribunal. the order of the tribunal became final as none of two parties namely the applicants or the respondents filed any review etc. thus, the issue involved in the earlier o.a. cannot be reopened in the present o.a. and the claim refused in the earlier o.a. cannot be re-considered in the present o.a.as the principle of res-judicata would come into play against the applicants. while deciding earlier o.a., the tribunal passed the following orders :-- "from the supplementary affidavit, it is clear that the posts have been created. the applicants who were casual workers were workmen and admittedly retrenched and priority and preference is to be given to them. in case no register was maintained, the respondents are to maintain register from the date the applicants were working. the applicants may be appointed in lucknow and incase the post is not available at lucknow elsewhere if the juniors to the applicants have been appointed, the applicants will be given priority and preference." 10. in compliance of the aforesaid order of the tribunal, the respondents entered the names of the applicants in the register and also the applicants were trade tested. the applicant nos. 1 to 4 & 6 cleared the trade test, but the applicant nos. 5 & 7 failed to clear the trade test. as no juniors to the applicants were appointed by the respondents, contempt petition for non-compliance of the aforesaid order of the tribunal, was rejected vide order dated 31.7.96.11. the learned counsel for the applicants has laid great stress to the newly created 60 posts against which 53 appointments were made leaving seven vacant post, and submitted that atleast five applicants, who cleared the trade test can be regularised against seven vacant post.against this, initial stand of the respondents was that the five daily rated lift operators who were trade tested for regularisation would be regularised as per turn of their seniority. however, subsequently in the objection to the reply of the applicants, the respondents pointed-out that none of the applicants fulfil the requirement for regularisation and, therefore, the applicants were not regularised. the respondents' stand was that besides passing of trade test, age limit subject to relaxation as per instructions and completion of 240 days in two consecutive years, was also the essential conditions. it was pointed-out that engagement during the period of ban i.e. after 19.11.85 was also a bar for consideration.12. on the above submissions of the learned counsel for the rival parties, documents on record have been perused. annexure o-3 dated 19.11.85 is the order of the department on the subject of ban and it provides for absolute ban on recruitment on muster roll. thus, with effect from 19.11.85, there could not have been any recruitment on muster roll. as per the respondents' case, the applicants were engaged by the department on 15.1.90 and were terminated on 15.6.91. the engagement of the applicants was, therefore, during the period of ban.the applicants case that they were engaged in the year 1987 is also of no help to the applicants. the applicants' claim that since 1987 they were casual labour/muster roll workers of the department, was not found favour with the tribunal while deciding o.a. no. 188/91. thus, the engagement of the applicants was during the period of ban. the disengagement in the year 1991 was also upheld by the tribunal in o.a.no. 188/91. the respondents' objection has merit.13. the submission of the learned counsel for the applicants is that the list of 53 persons (annexure ra-1 to supplementary counter) who were engaged against newly created 60 posts includes 12 names (from si.no. 42 to 53) who were engaged after 19.11.85 and, therefore, it has been submitted, non-inclusion of the names of the applicants in the list on the basis of 'priority & preference' as observed by the tribunal in o.a. no. 188/91, is denial of right to the applicants. on this point, the respondents have, in their reply, submitted that the candidates appointed from si. no. 42 to si. no. 53 were wrongly appointed by the then superintending engineer (electrical) co-ordination circle, new delhi and the whole matter is being investigated from the vigilance angle and the necessary action would be taken against the concerned officer and efforts will be made to set the things right. the respondents have, thus, admitted that the benefit has been given to 12 persons who were engaged after the imposition of ban.the submission of the learned counsel for the applicants has no merit on two counts. firstly, the rule of law is to be maintained. if the earlier action of the respondents is not in accordance with the rules, the tribunal cannot direct the respondents to perpetuate the same wrong by giving appointment to other similarly situated persons. incorrect engagement/regularisation made by the respondents cannot be a ground to claim engagement/regularisation by perpetuating enfringement of rules.secondly, initial engagement of 12 persons who have been placed in the list was between 2.11.85 to 25.2.87; whereas the initial engagement of the applicants is of 15.1.90. thus, none of the 12 persons whose -names have been wrongly included in the list are junior to any of the seven applicants.14. the learned counsel for the applicants has next submitted that out of the seven applicants, applicant no. 1 naresh kumar and the applicant no.4 harish chandra belong to reserved category. the submission is that these two applicants have not been regularised orgiven appointment, though direct recruitment of reserved category candidates, whose names appear at si. no. 32 to 41, was made by the respondents. on this point, the submission of the learned counsel for the respondents is that at no point of time in any of their applications/ representations to the department or even in the presento. a., it was disclosed by the applicant no. i or the applicant no.4 that they belong to reserved category. for the first time, it has been, submitted by the learned counsel for the respondents, in para 3 of the supplementary pleadings, it was disclosed that the applicant nos. 1 & 4 belong to category of scheduled caste. this submission of the learned counsel for the respondents has not been refuted by the applicants. the learned counsel for the applicants has, however, urged that it was the duty of the respondents to inquire about the caste of the applicants. in my view, the submission of the learned counsel for the applicants that it was the duty of the respondents to inquire about the caste of the applicants, is not correct. if the applicants wanted to claim benefit of his caste, burden was on the applicant to claim the said benefit by making disclosure about their caste and to file a caste certificate as is required under the rules.15. another objection of the respondents' counsel is that those who have put in atleast 240 days on muster roll (including broken periods) in each of the two consecutive years, are only eligible to be appointed. in support of this, the learned counsel has referred to c.p.w.d. manual vol. iii, on work charge establishment and has also cited the order dated 4.7.88 issued by the directorate of c.p.w.d.16. the learned counsel for the applicants has, however, submitted that as per annexure-6 issued by d.g. works, c.p.w.d. by which newly created additional posts 8982 were circulated, the requirement was to fill-up the post as per existing recruitment rules. the submission is that the recruitment rules. (annexure cr-4 to the counter) provides only one year working period. the same cannot be, it has been urged, modified by executive orders.17. the recruitment rules (in short r.r.) for the post of lift operator, as has not been disputed during the course of arguments, was issued under article 309 of the constitution of india. r.r. provides for filling-up the post by direct recruitment and on the basis of seniority-cum-fitness. r.r. does not provide for filling-up the post by way of regularisation. the claim of the applicants is for regularisation. if only r.r, is seen, the applicants cannot be regularised. giving appointment by way of regularisation is a procedure not prescribed in r.r. framed under article 309 of the constitution of india. thus, the regularisation is only by way of administrative scheme to mitigate the hardship of those casual workers, who worked for certain period and gained experience. as observed by the hon'ble supreme court in the case of umesh kumar nagpal v. state of haryana (1994 scc (l&s) 930) "as a rule, appointment in public service should be made strictly on the basis of open invitation of applications and merit. no other mode of appointment nor any other consideration is permissible. neither the government nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. however, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interest of justice and to meet certain contingencies. one such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. "the hon'ble supreme court was considering the scheme of appointment on compassionate grounds under dying in harness rules.similar is the circumstance here. as examined above, r.r. does not provide for recruitment by way of regularisation. however, as casual workers belong to economically weaker section of the society and termination of their services would cause undue hardship, the scheme for regularisation was framed providing certain conditions. one such condition was that a muster roll worker must have put in 240 days on muster roll in each of the two consecutive years, such a condition cannot be said to be unreasonable. as per the respondents, none of the applicants had worked for 240 days in two consecutive years and, therefore, none of the applicants is eligible for regularisation.18. the submission of the learned counsel for the applicants that ignoring the claim of the applicant no. 1 & 4, 10 reserved candidates were directly recruited, has also no merit. it is not the case of the applicants that any of the two applicants namely the applicant no. 1 and the applicant no.4 had applied for the post, filled-up by direct recruitment basis. for any direct recruitment, one has to apply for consideration. in the case of regularisation, the burden is on the respondents to consider case as per seniority list. as none of the two applicants had applied when the post were filled-up by direct recruitment basis, they cannot take a plea that their claim was ignored by the department.19. the respondents' objection that the applicants' names were not sponsored by the employment exchange, so the applicants cannot be considered for regularisation, cannot be upheld. the law on this point is clear. in the present case, though the names were not sponsored by the employment exchange, the applicants were allowed to work for one and half years. the applicants also faced screening once in 1987. hence subsequent screening, non-sponsoring of the names of the applicants would not be taken as a condition precedent for the purpose of regularisation.20. in view of the discussions made above, none of the reliefs claimed has merit and the o.a. is to be dismissed. however, the applicants had worked for 1 1/2 years and they have gained experience, their names have been enrolled in the register keeping in view the date of their engagement, so their claim for re-engagement incase of requirement of work would not be denied as per their seniority. the rejection of applicants' claim in the present o.a., would not be a bar for the respondents to consider for future engagement and for regularisation in case the applicants complete the required working period.

Judgment:
1. The applicant Nos. 1 to 4 & 6 have claimed appointment on the post of Lift Operators and arrears of salary from the date when the Tribunal gave directions for appointments in O.A. No. 188/91. The applicant Nos.

5 and 7 have prayed that they be retained on muster roll employees at the minimum of the pay-scale admissible to the post of Lift Operator pending consideration of their claim for regulansation in accordance with the law.

2. The brief facts, as contained in the O.A, is that the applicants were initially engaged is Lift Operators in G.S.I, on daily wages basis in the year 1987 and worked on consolidated remuneration at the rate of Rs. 500/- per month upto 1990. Subsequently the applicants worked on daily wages basis w.e.f. 1.2.1990. The services of the applicants were dispensed with vide notice dated 21.5.1991. Feeling aggrieved by the aforesaid notice, the applicants filed O.A. No. 188/91. which was finally disposed of, by a Division Bench of this Tribunal on 2.2.93.

However, none of Ihc applicants were given appointment in spite of various representations keeping in view the strength of muster roll workers in various categories, the Central Government was pleased to create 8982 posts vide order dated 1.9.82 in the Central Public Works Department (in short C.P.W.D.). Consequently, D.G. Works, C.P.W.D.issued a circular dated 1.9.92 (Annexure-5) by which 60 posts were allotted to Electrical II department North Zone. Only 53 persons were appointed leaving seven vacant post. The applicants were trade tested alongwith two others. Five applicants namely applicant No. 1, 2, 3, 4 & 6 cleared the trade test and the applicant Nos. 5 & 7 failed to clear the trade test. Five applicants who cleared the trade test claimed regularisation against seven available post. As the respondents failed to give relief to the applicants, present O.A. has been filed with the relief mentioned earlier.

3. The respondents case, in short, is that according to the rules and instructions as applicable on the post created through letter dated 1.9.92 (Annexure-5) passing of trade test, age limit subject to relaxation as per instructions, initial engagement prior to the ban i.e. 19th November 1985, completion of 240 days in two consecutive years, initially name being sponsored by the Employment Exchange are the mandatory requirements for regular appointment as Lift Operator which is a Group 'C' post. Further stand of the respondents is that the post created through letter dated 1.9.92 (Annexure-5) were meant for those who were initially engaged as casual labourers from the date prior to ban i.e. 19.11.85. According to the respondents none of the applicants fulfil the conditions and eligibility criteria and, therefore, they are not entitled to regular appointment on the post of Lift Operators.

4. The further submission of the learned counsel for the respondents is that the applicants were initially engaged by the respondents on 15.1.90 and were disengaged on 15.6.1991. The applicants were never engaged by the respondents prior to 15.1.90. The order of disengagement of the applicants was challenged by filing O.A. No. 188/91. In the said O.A. four reliefs were claimed, but all the four reliefs were rejected by the Tribunal through judgment dated 2.2.93. The Tribunal had, however directed, it has been submitted, to maintain a register from the date the applicants were working and to appoint the applicants by giving priority and preference, at Lucknow and incase the post is not available at Lucknow, else-where, if the juniors to the applicants have been appointed. The respondent's case is that the names of all the applicants were entered in the register and they were all trade tested.

It is also the case of the respondents that no lift operator is working in G.S.T. building as all lifts have been put to auto mode. No junior to the applicants has been engaged. As the applicants were not satisfied with the action of the respondents, they filed Contempt Petition No. 190/93 for non-compliance of the judgment/order dated 2.2.93, but the same was rejected. However, the present O.A. was also filed during the same period without disclosing in the O.A. about the contempt petition or regarding filing of the contempt petition in the O.A.5. Heard the learned counsel for the parties and perused the pleadings on record.

6. The initial stand of the respondents was that the post of Lift Operator is a Group 'C' Post. Consequently, Office memorandum dated 16.7.94, was filed as Annexure O-2 by the respondents with their objection. The counsel for the respondents, however, graciously.

admitted that the post of Lift Operator is a Group 'D' post, though the pay-scale being given to Lift Operator is equivalent to Group 'C' post.

The learned counsel for the respondents has, therefore, submitted that the applicants would be governed by office memorandum dated 8.4.91 issued by the department of Personnel & Training on the subject of regularisation of services of casual labour in Group 'D' post and circulated with letter of D.G. Works, C.P.W.D. dated 7.5.92.

7. The learned counsel for the applicants initially took the stand that the applicants were not working in the work charge establishment but were working in the regular classified establishment. Another stand was taken that the applicants were not working as casual labourers and they were not covered by O.M. dated 8.4.91. The submission was that the worker on work charge establishment is different from a casual labour.

Subsequently, however, the learned counsel for the applicants graciously admitted that the applicants were working in the work charge establishment and were not working on regular classified establishment.

It was also admitted that the applicants are governed by OM dated 8.4.1991.

8. In the earlier O.A. No.188/91, following reliefs were claimed by the applicants:- "(a) The respondents be directed to allow the applicants to continue in service as Lift Operators & provide them the same salary and benefits to them which is being given to the regular employees discharging the same duties.

(b) The notice dated 21st May, 1991 issued by the respondent No.2 regarding termination of the services of the applicants after summoning its original from the respondents and also the notice/information dated 29th May, 1991 pasted on the Notice Board on 10th June, 1991 contained in Annexure No. 6 (b) clause.

(c) The respondents be directed to regularise the services of the applicants considering their full length of service from the date of their initial engagement as Lift Operators as mentioned in para 1 of the application followed by consequential benefits of the same including payment of arrears arising out of regularisation.

(d) Issue any other appropriate writ/order or direction which this Hon'ble Tribunal may think just and proper in the circumstances of the case".

9. None of the above reliefs was allowed by this Tribunal. The order of the Tribunal became final as none of two parties namely the applicants or the respondents filed any Review etc. Thus, the issue involved in the earlier O.A. cannot be reopened in the present O.A. and the claim refused in the earlier O.A. cannot be re-considered in the present O.A.as the principle of res-judicata would come into play against the applicants. While deciding earlier O.A., the Tribunal passed the following orders :-- "From the Supplementary affidavit, it is clear that the posts have been created. The applicants who were casual workers were workmen and admittedly retrenched and priority and preference is to be given to them. In case no register was maintained, the respondents are to maintain register from the date the applicants were working. The applicants may be appointed in Lucknow and incase the post is not available at Lucknow elsewhere if the juniors to the applicants have been appointed, the applicants will be given priority and preference." 10. In compliance of the aforesaid order of the Tribunal, the respondents entered the names of the applicants in the register and also the applicants were trade tested. The applicant Nos. 1 to 4 & 6 cleared the trade test, but the applicant Nos. 5 & 7 failed to clear the trade test. As no juniors to the applicants were appointed by the respondents, contempt petition for non-compliance of the aforesaid order of the Tribunal, was rejected vide order dated 31.7.96.

11. The learned counsel for the applicants has laid great stress to the newly created 60 posts against which 53 appointments were made leaving seven vacant post, and submitted that atleast five applicants, who cleared the trade test can be regularised against seven vacant post.

Against this, initial stand of the respondents was that the five daily rated Lift Operators who were trade tested for regularisation would be regularised as per turn of their seniority. However, subsequently in the objection to the reply of the applicants, the respondents pointed-out that none of the applicants fulfil the requirement for regularisation and, therefore, the applicants were not regularised. The respondents' stand was that besides passing of trade test, age limit subject to relaxation as per instructions and completion of 240 days in two consecutive years, was also the essential conditions. It was pointed-out that engagement during the period of ban i.e. after 19.11.85 was also a bar for consideration.

12. On the above submissions of the learned counsel for the rival parties, documents on record have been perused. Annexure O-3 dated 19.11.85 is the order of the department on the subject of ban and it provides for absolute ban on recruitment on muster roll. Thus, with effect from 19.11.85, there could not have been any recruitment on muster roll. As per the respondents' case, the applicants were engaged by the department on 15.1.90 and were terminated on 15.6.91. The engagement of the applicants was, therefore, during the period of ban.

The applicants case that they were engaged in the year 1987 is also of no help to the applicants. The applicants' claim that since 1987 they were casual labour/muster roll workers of the department, was not found favour with the Tribunal while deciding O.A. No. 188/91. Thus, the engagement of the applicants was during the period of ban. The disengagement in the year 1991 was also upheld by the Tribunal in O.A.No. 188/91. The respondents' objection has merit.

13. The submission of the learned counsel for the applicants is that the list of 53 persons (Annexure RA-1 to Supplementary Counter) who were engaged against newly created 60 posts includes 12 names (from SI.No. 42 to 53) who were engaged after 19.11.85 and, therefore, it has been submitted, non-inclusion of the names of the applicants in the list on the basis of 'priority & preference' as observed by the Tribunal in O.A. No. 188/91, is denial of right to the applicants. On this point, the respondents have, in their reply, submitted that the candidates appointed from SI. No. 42 to SI. No. 53 were wrongly appointed by the then Superintending Engineer (Electrical) Co-ordination Circle, New Delhi and the whole matter is being investigated from the Vigilance angle and the necessary action would be taken against the concerned officer and efforts will be made to set the things right. The respondents have, thus, admitted that the benefit has been given to 12 persons who were engaged after the imposition of ban.

The submission of the learned counsel for the applicants has no merit on two counts. Firstly, the rule of law is to be maintained. If the earlier action of the respondents is not in accordance with the rules, the Tribunal cannot direct the respondents to perpetuate the same wrong by giving appointment to other similarly situated persons. Incorrect engagement/regularisation made by the respondents cannot be a ground to claim engagement/regularisation by perpetuating enfringement of rules.

Secondly, initial engagement of 12 persons who have been placed in the list was between 2.11.85 to 25.2.87; whereas the initial engagement of the applicants is of 15.1.90. Thus, none of the 12 persons whose -names have been wrongly included in the list are junior to any of the seven applicants.

14. The learned counsel for the applicants has next submitted that out of the seven applicants, applicant No. 1 Naresh Kumar and the applicant No.4 Harish Chandra belong to reserved category. The submission is that these two applicants have not been regularised orgiven appointment, though direct recruitment of reserved category candidates, whose names appear at SI. No. 32 to 41, was made by the respondents. On this point, the submission of the learned counsel for the respondents is that at no point of time in any of their applications/ representations to the department or even in the presentO. A., it was disclosed by the applicant No. I or the applicant No.4 that they belong to reserved category. For the first time, it has been, submitted by the learned counsel for the respondents, in para 3 of the Supplementary pleadings, it was disclosed that the applicant Nos. 1 & 4 belong to category of Scheduled Caste. This submission of the learned counsel for the respondents has not been refuted by the applicants. The learned counsel for the applicants has, however, urged that it was the duty of the respondents to inquire about the caste of the applicants. In my view, the submission of the learned counsel for the applicants that it was the duty of the respondents to inquire about the caste of the applicants, is not correct. If the applicants wanted to claim benefit of his caste, burden was on the applicant to claim the said benefit by making disclosure about their caste and to file a caste certificate as is required under the rules.

15. Another objection of the respondents' counsel is that those who have put in atleast 240 days on muster roll (including broken periods) in each of the two consecutive years, are only eligible to be appointed. In support of this, the learned Counsel has referred to C.P.W.D. Manual Vol. III, on work charge establishment and has also cited the order dated 4.7.88 issued by the Directorate of C.P.W.D.16. The learned Counsel for the applicants has, however, submitted that as per Annexure-6 issued by D.G. Works, C.P.W.D. by which newly created additional posts 8982 were circulated, the requirement was to fill-up the post as per existing recruitment rules. The submission is that the recruitment rules. (Annexure CR-4 to the Counter) provides only one year working period. The same cannot be, it has been urged, modified by executive orders.

17. The Recruitment Rules (in short R.R.) for the post of Lift Operator, as has not been disputed during the course of arguments, was issued under Article 309 of the Constitution of India. R.R. provides for filling-up the post by direct recruitment and on the basis of seniority-cum-fitness. R.R. does not provide for filling-up the post by way of regularisation. The claim of the applicants is for regularisation. If only R.R, is seen, the applicants cannot be regularised. Giving appointment by way of regularisation is a procedure not prescribed in R.R. framed under Article 309 of the Constitution of India. Thus, the regularisation is only by way of administrative scheme to mitigate the hardship of those casual workers, who worked for certain period and gained experience. As observed by the Hon'ble Supreme Court in the case of Umesh Kumar Nagpal v. State of Haryana (1994 SCC (L&S) 930) "as a rule, appointment in public service should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Government nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interest of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. "The Hon'ble Supreme Court was considering the scheme of appointment on compassionate grounds under dying in harness rules.

Similar is the circumstance here. As examined above, R.R. does not provide for recruitment by way of regularisation. However, as casual workers belong to economically weaker section of the society and termination of their services would cause undue hardship, the scheme for regularisation was framed providing certain conditions. One such condition was that a muster roll worker must have put in 240 days on muster roll in each of the two consecutive years, such a condition cannot be said to be unreasonable. As per the respondents, none of the applicants had worked for 240 days in two consecutive years and, therefore, none of the applicants is eligible for regularisation.

18. The submission of the learned Counsel for the applicants that ignoring the claim of the applicant No. 1 & 4, 10 reserved candidates were directly recruited, has also no merit. It is not the case of the applicants that any of the two applicants namely the applicant No. 1 and the applicant No.4 had applied for the post, filled-up by direct recruitment basis. For any direct recruitment, one has to apply for consideration. In the case of regularisation, the burden is on the respondents to consider case as per seniority list. As none of the two applicants had applied when the post were filled-up by direct recruitment basis, they cannot take a plea that their claim was ignored by the department.

19. The respondents' objection that the applicants' names were not sponsored by the Employment Exchange, so the applicants cannot be considered for regularisation, cannot be upheld. The law on this point is clear. In the present case, though the names were not sponsored by the Employment Exchange, the applicants were allowed to work for one and half years. The applicants also faced screening once in 1987. Hence subsequent screening, non-sponsoring of the names of the applicants would not be taken as a condition precedent for the purpose of regularisation.

20. In view of the discussions made above, none of the reliefs claimed has merit and the O.A. is to be dismissed. However, the applicants had worked for 1 1/2 years and they have gained experience, their names have been enrolled in the register keeping in view the date of their engagement, so their claim for re-engagement incase of requirement of work would not be denied as per their seniority. The rejection of applicants' claim in the present O.A., would not be a bar for the respondents to consider for future engagement and for regularisation in case the applicants complete the required working period.