P. Ramu and Others Vs. Government of India, Ministry of Defence and Others - Court Judgment

(Per Hon'ble Mrs. Bharati Ray, Member (J)

This application has been filed by the applicants seeking for the following relief :

To issue an order or direction (i) declaring the action of the Respondents in filling up the six vacancies of Office Attendant 'A' in Group-D posts through Direct Recruitment vide Government of India, Employment News dated 6-12 November, 2004 rejecting the claim of applicants for regularisation against 6 (six) vacancies available is arbitrary, illegal, unconstitutional and violation of Article 14, 16, 21 and 39 (1)(d) of Constitution of India; (ii) and consequently direct the respondents to regularise the services of the applicants as Group-D employees against the Office Attendant 'A' post with effect from the dates from the completing 3 years service in terms of principles laid down by the Hon'ble Supreme Court in AIR 1992 SC Page 2130 and subsequent judgments with all consequential benefits.

2. It is the case of the applicants that they joined in the 3rd respondent's organisation as casual labour in the year 1991, 1995, 1995, 1997 and 1999 respectively. It is the contention of the applicants that they are working continuously from the date of their initial engagement as casual workers/ labourers in the Industrial Canteen known as 'Wet Canteen', a statutory canteen under Factories Act, 1948 of the 3rd respondent organisation without any break at par with other regular employees of the canteen. It is further stated by the applicants that they are now 26,29, 27, 24 and 23 years old respectively and all belong to OBC community. As per the recruitment rules, all the applicants are eligible for consideration against Group-D vacancy and they were within the age limit at the time of their initial engagement. The applicants are paid minimum wages as applicable to unskilled jobs (Group-D), as notified by the Regional Labour Commissioner (Central) Office, Hyderabad from time to time. Since the applicants are working for more than 6 to 15 years they were waiting for their turn of regularisation as there are vacancies available in the organisation. They have referred to a case of OA 453/95 filed in this Bench of the Tribunal by some casual labourers working in 3rd respondent organisation and the Tribunal disposed of the OA No. 453/95 on 13.6.1997 as under :

"Hence, this O.A. is disposed of noting the submission of the Respondents' counsel that all the applicants herein will be considered for regularisation in accordance with rule as and when their turn comes. As the Respondents themselves admit that they will be considered, no further order is required. As this O.A. is filed mainly for the purpose of declaring that they are eligible for regularisation."

3. Applicants have also referred to another order in OA No. 1079/98 decided on 9-9-1999 and the said OA was disposed of as under :-

"(Para 18) It would thus appear that the relief claimed by the applicants in this O.A. to the effect that the proceedings No. DLRL/ Adm/ 0223/ Con dated 7-2-1998 issued by the 3rd respondent rejecting the claims of the applicant for regularisation deserves to be quashed and set aside without any hesitation. "

"(Para 19) This O.A. is, therefore, allowed. The impugned proceedings No. DLRL/Adm/0223/Con dated 6-2-1998 are hereby quashed and set aside. The Respondents are directed to regularise the services of the applicants as Sweepers in accordance with the scheme and/or the guidelines in question. No costs. "

4. It is also the contention of the learned counsel for the applicant that 2nd respondent sanctioned six posts of Office Attendant 'A' Group-D posts. It is the grievance of the applicants that the 3rd respondent, instead of regularising the services of the applicants, has issued open/general notification vide Central Government Employment News dated 6-12 November,2004 calling for applications from the eligible person across the country to fill up the six office Attendant 'A' Group-D posts, in the scale of pay of Rs.2550-55-2660-60-3200. The applicants had put up an application to the 3rd respondent requesting to waive the age limit and also in pursuance of the order of the Tribunal in OA 453/95 dated 13-6-1997 to regularise their services vide their representation dated 23.11.2004. They submitted another representation dated 9-7-2005 to the 3rd respondent requesting not to fill up the post of Office Attendant 'A' through direct recruitment since the applicants are fulfilling the qualification i.e. 8th class pass as per recruitment rules except the age. It is contended by the applicants that since they were within the age limit on the date of their engagement they are eligible for consideration for the post. It is also the case of the applicants that in the absence of regularisation also they are entitled for getting temporary status as per the Government of India DOPandT O.M. No. 51016/2/90-Estt (C) dated 10-9-1993. However, the 3rd respondent proceeded ahead with the recruiting of six Office Attendant 'A' in Group-D posts against the interest of casual workers working for several years in the 3rd respondent organisation, which is arbitrary, unfair and illegal. In fact, they conducted written examination on 12-7-2005 and subsequently issued selection orders to the respondents 4 to 8 and the respondents 4 to 8 joined the 3rd respondent organisation. Finding no other way the applicants have approached this Tribunal challenging the action of the respondents in filling up the vacancies of six post of "Office Attendant 'A'" (Group-D), in the scale of pay of Rs. 2550-55-2660-60-3200 through direct recruitment instead of regularising the services of the applicants who are continuously working without break as casual workers for the last 6 to 14 years.

5. Respondents No. 1 to 3 have contested the application by filing a counter reply.

6. Heard Mr. G. Gopala Rao, representing Mr. G. Vidya Sagar learned counsel for the applicants, Mr. G. Jayaprakash Babu, Sr.CGSC for official respondents and Ms. Anuradha learned counsel for respondents No. 4 to 8. We have gone through the facts of the case and material papers placed before us. We have also gone through the judgments relied upon by the learned counsel for the applicants.

7. Learned counsel for the applicants Mr. G. Gopala Rao submitted that applicants are still working. However, the same has been denied by the respondents. The respondents in para-3 of their counter reply have denied the contention of the applicants that issuance of notification in Employment News calling applications for six posts of Office Attendant 'A' from the eligible persons as per the statutory recruitment is neither illegal, arbitrary nor unconstitutional. It is the case of the respondents that as per the general instructions issued by the Government the casual workers on daily wage basis are required to be engaged particularly in defence installations only through Employment Exchange. Sponsorship of name of a person by the Employment Exchange is one of the basic and essential condition for any recruitment under the central government. The second condition is that the casual workers on daily wages should not be engaged for work of regular nature and they should be engaged only for work which is of casual or seasonal or intermittent nature or for work which is not of full time nature for which regular posts cannot be created. Depending upon the necessity they engage labour for work package. The contention of the applicants in this OA that they are continuing in 3rd respondent's office is denied by the respondents in page-3 of the counter reply. They have stated that no casual workers are engaged in the Laboratory from April 1994 onwards. In regard to regularisation of service, in para-6 of their counter reply they have stated that the policy with regard to engagement, remuneration and regularisation of casual workers in Central Govt. has been reviewed from time to time and detailed guidelines in the matters were issued vide O.M. dated 07-06-1988, 07-04-1989 and 22-08-1989. According to the policy of the Govt. a casual worker is essentially recruited through Employment Exchange because of security reasons vide GOI letter dated 7-4-89. However, considering the requests from various Ministries/Departments for allowing relaxation in the conditions for regularisation of services of casual workers in Group 'D' posts, the matter was examined and keeping in view the fact that the casual workers belonging to the economically weaker section of the society and termination of their services will cause undue hardship to them, it was decided by Govt. as one time measure in consultation with Director General, Employment and Training that the casual workers recruited before 7th June, 1988 and who were in service on the date of issue of these instructions may be considered for regular appointment to Group 'D' posts in terms of general instructions even if they were recruited otherwise than through Employment Exchange and crossed the upper age limit prescribed for the post provided they are otherwise eligible for regular appointment in all other respects vide OM dated 8-04-1991, copy of which is enclosed as Annexure R-IV to the counter reply. It is the contention of the respondents that according to the above instructions the services of casual workers who fulfilled the statutory requirements to the Group 'D' posts were only regularised. Thereafter the engagement of persons on casual basis was stopped in the 3rd respondent office. Respondents have categorically stated in para (8) of the counter reply that none of the applicants in the OA were recruited by 3rd respondent through Employment Exchange.

8. They have further added that O.M. dated 8th April, 1991 cannot be utilised again and again as the relaxation of sponsoring casual workers from employment exchange has been accorded by Govt. only as one time measure. It is also stated by the respondents that by OM dated 08-04-1991, the Government reiterated that recruitment of casual workers shall be regularised by the guidelines contained in Department OM dated 07.06.1988 and the only relaxation given is as a one time measure, if casual workers recruited before 07-06-1988 are still working as on 08-04-1991 they may be considered for regularisation even if they are not sponsored by Employment Exchange. Accordingly, the 3rd respondent have regularised services of 18 casual employees working in 3rd respondent's office during the year 1991 and 5 more individuals during the year 1995, in view of the Govt. orders who are eligible as per the statutory requirements. In para-18 of the counter reply respondents have stated that there is no one on the records of 3rd Respondent's office who fulfilled the conditions of the scheme as on April, 1994 for regularisation of casual services. Accordingly, the 3rd respondent had processed further with recruitment action and released the names of selected candidates. One of the applicant has submitted his representation requesting 3rd respondent not to fill up the posts by Direct Recruitment and fill up the same by regularising the casual services. The request of any individual or any forum to stop the recruitment action of an office cannot be acceded to as no one falls within the scheme of regularisation of casual services as 3rd respondent did not recruit any one on casual basis after April, 1994.

9. Applicants have not filed any rejoinder contravening the contentions made by the official respondents in their counter reply.

10. Placing reliance of the judgment of Hon'ble Supreme Court in the case of Secretary, State of Karnataka and Ors. vs. Umadevi (3) and Ors. reported in[(2006)4 SCC1], the learned counsel for the official respondents submitted that the applicants are not entitled for regularisation of their services rendered as casual labourers. In this context the learned counsel for the applicants has placed reliance on the judgment of Hon'ble Supreme Court in Appeal (civil) 3765 of 2001 in the case of U.P. State Electricity Board vs. Pooran Chandra Pandey and Ors. decided on 09-10-2007 where the Apex court has held that employees who have put in such a long service are denied the benefit of regularisation and made to face the same selection which fresh recruits have to face, the same will amount to violation of Article 14 of the Constitution on the ground of arbitrariness and unreasonableness. Learned counsel for the respondents submitted that the Apex Court decided the case following its earlier judgment in the case of Maneka Gandhi vs. Union of India and Anr. reported in AIR 1978 SC 597. Learned counsel for the applicants further submitted that the case of Maneka Gandhi has been decided by seven-Judge Bench whereas Uma Devi's case is a decision of a five-judge Bench. Therefore in view of the decision in the case of U.P. State Electricity Board vs. Pooran Chandra Pandey the applicant is entitled to get the relief claimed.

11. Private respondents No. 4 to 8 have filed their reply and represented by Ms. Anuradha, learned counsel. In para-4 of their counter reply they have stated that when the applicants mentioned that they were aged about 26, 29, 27, 24 and 23 years old respectively, their ages at the time of their engagement in the years 1991, 1995, 1995, 1997 and 1999 would be 12 years, 19 years, 17 years, 16 years and 17 years respectively. Therefore, most of them were minor at the time of their engagement. We find force in such contention made by the private respondents.

12. In view of the above, the questions that fall for consideration are (i) whether the respondents are justified in issuing the notification calling application for filling up of the vacancies of six posts of Office Attendant 'A' (Group-D); and (ii) whether the respondents are justified in not regularising the services of the applicants.

13. It is reiterated that the contentions of the applicants that they joined the 3rd respondent organisation between 1991 and 1999 and are working till date have been denied by the respondents in their counter reply. The contention of the official respondents in para 18 of the reply that there is no one on the records of 3rd respondent's office who fulfills the conditions of the scheme as on April, 1994 for regularisation of casual services, has not been denied by the applicants by filing the rejoinder. In so far as the scheme of "Grant of Temporary Status and Regularisation of casual workers" is concerned the applicant could not establish that they have fulfilled the two conditions prescribed therein. From Annexure-I of the OA we find that the date of birth of the applicant no.1 is 15.9.1979 and he joined DLRL in 1991. Therefore applicant No.1 was 12 years old in the year 1991. Applicant No. 2 whose date of birth is 3.11.1976 has joined DLRL in 1992. Therefore applicant no.2 was 16 years old in the year 1992. None of the applicants were eligible to be considered for regularisation under the scheme as discussed by the respondents in their counter reply.

14. In so far as the question of regularisation of their service on the ground that they are working with the organisation for long time is concerned, in our view, this point has been decided by the Hon'ble Supreme Court in the case of Secretary, State of Karnataka and Ors. vs. Umadevi (3) and Ors. [(2006)4SCC1]. The regularisation has now been held to be bad in law.

15. In so far the decision of the Apex court in the case of U.P. State Electricity Board vs. Pooran Chandra Pandey relied upon by the learned counsel for the applicants is concerned, the same has been discussed by the Hon'ble Supreme Court in the case of State of Karnataka and Ors. vs. Sri G.V. Chandrashekar reported in 2009(3) SCALE 653 in para-6 of the judgment which reads as under :

"92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-judges Bench in U.P. State Electricity Board v. Pooran Chandra Pandey (supra) should be read as obiter and the same should neither be treated as binding by the High Courts, Tribunals and other judicial foras nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench."

16. In the above case the respondents before the Hon'ble Supreme Court sought direction from the appellants to regularise their services with all consequential benefits as they were working in different post and worked for more than 10 years without break in service. The Apex Court has allowed the appeal in the light of the decision in Uma Devi (3) and the interpretation given to Para 53 therein which reads 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, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 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 the courts or of tribunals. The question of regularisation 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 regularise 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 the 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 regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."

17. In view of the above, the decision of the Hon'ble Supreme Court relied upon by the learned counsel for the applicants in the case of U.P. State Electricity Board v. Pooran Chandra Pandey has no binding effect. In view of the law laid down by the Hon'ble Supreme Court in the case of Secretary, State of Karnataka and Ors. vs. Umadevi (3) and Ors. and in the case of State of Karnataka and Ors. vs. Sri G.V. Chandrasekhar,

the applicants are not entitled to regularisation of their services. In so far as the question of issue of notification to fill up the regular vacancy is concerned, we do not find any reason to say that there is any illegality in taking such action to fill up the vacant posts.

18. Accordingly, we hold that OA is devoid of merit and is dismissed accordingly with no order as to costs.