Sicily K.N. Vs. Union of India Represented by Secretary Ministry of Defence, South Block New Delhi and Others - Court Judgment

HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER

The applicant challenges Annexure A-7 order dated 5.9.2007 rejecting her request for reckoning the casual service with intermittent breaks rendered by her for granting 2nd financial upgradation under the ACP scheme.

2. According to the applicant, she commenced service as a Casual Clerk on 17.3.1977 under the 4th respondent with intermittent breaks ( A1). Her service was regularised w.e.f. 3.4.1979 with all perquisites like leave, bonus etc. (A-2). She was promoted as UDC w.e.f. 23.7.1999 and was granted the 2nd financial up-gradation w.e.f. 7.10.2004. The grievance of the applicant is that had the casual service was taken into consideration, as was done in identical cases she would have got 2nd ACP w.e.f. 17.3.2001. She relied on the circular issued by the Ministry of Defence and the orders of this Tribunal in O.A. 434/89, 609/89, 545//95, 755/2000 and 732/2006 and the judgment of the High Court of Kearla in support of her claim.

3. The respondents opposed the OA by filing reply statement. They submitted that the applicant was initially appointed as LDC on casual basis on 17.3.1977 which was continued with intermittent breaks of more than 30 days and regularised and absorbed w.e.f 7.10.1980. They submitted that the respondents department have taken a decision to limit to condone the period of break to 30 days. The applicant having more than 274 days break in one spell, her casual service could not be regularised by condoning the breaks.

4. The applicant filed rejoinder and the respondents filed additional reply statement.

5. The applicant filed M.A.941/2008 for amending the O.A. by incorporating the prayer to direct the 2nd respondent to regularise the casual service of the applicant as Clerk from 17.3.1977 till the date ofregularisation as has been done in the case of other similarly situated persons which is opposed by the respondents. The M.A. was allowed by the Tribunal by its order dated 26.2.2009.

6. We have heard the learned counsel for the parties and perused the records carefully.

7. The grievance of the applicant is that the intermittent breaks in the casual service of similarly placed employees have been condoned by the respondents and counted for granting ACP but the applicant has been discriminated. The stand of the respondents is that a decision has been taken to condone breaks up to 30 days and that in the case of the applicant there is more than 30 days break hence, it could not be condoned.

8. The applicant relied on the various judgments ofthe Tribunal and High Court of Kerala in support of her case. In O.A. 434/89 and 609/89 the Tribunal considered the case of technical and artificial breaks of one day after every 89 days of engagement. The Tribunal directed to regularise the applicants from the dates of their original appointment on a casual basis by condoning the breaks in service with all consequential benefits. The relevant portions of the order of the Tribunal is extracted below:

"19. In the conspectus of facts and circumstances, we allow the application in part to the extent of directing that the applicants should be regularised from the dates of their original appointment on a casual basis by condoning the breaks in service as in other cases with all consequential benefits except that of seniiority... In O.A. 755/2000 the Tribunal declared that the applicants are entitled to ACP Scheme on the basis of their regularisation from the date of their initial appointment including the service rendered on a casual basis. The operative portion is extracted below:

"In the conspectus of the facts and circumstances, we allow the O.A. and set aside the impugned order Annexure A-1 dated 30.5.2000 and declare that the applicants are entitled to ACP Scheme on the basis of their regularisation from the date of their initial appointment (including the services rendered on casual basis). The respondents are directed to grant all consequential benefits of the scheme, in terms of this order within three months from the date of receipt of a copy of this order....."

The judgment in O.A.755/2000 was followed in O.A.120/2006. Similarly situated persons filed O.A. 543/92 for counting the casual service prior to their regularisation with due condonation of artificial breaks. The Tribunal allowed the O.A. directing the respondents to regularise the casual services without looking into the artificial breaks. The Department granted the benefit of regularisation of casual service by condoning the artificial breaks but later withdrew the same alleging it as a mistake which was challenged before the High Court of Kerala in O.P. Nos. 9639, 11518, 14300 and 14936 of 1998. In the common judgment, the High Court held as follows:

"4 It may be that Department was finding difficulty to pin point the actual length or duration of artificial/technical breaks. and that may be the reason for the condonation of break on a wholesale manner. However, a rethinking after implementation and adoption of a short cut method of prescription of a thirty days period as an upper limit for the benefit enuring from the judgment, according to us leads us to come to a conclusion that the decision is hit by vice of arbitrariness. It violates the fundamental right envisaged under Articles 14 of the constitution of India and interference is warranted."

9. To sum up, the Department implemented the order of the Tribunal to regularise the service of the applicants in O.A. 431/89 and connected cases. Later the Department took a view to condone breaks only upto the period of 30 days and when the benefit was withdrawn the affected parties approached the High Court of Kerala by filing OPs which were allowed. In the case of the applicant neither was she a party to O.A. 431/89 or connected cases nor O.A. 543/92. Though the respondents have extended the benefit of the above orders to all employees and later withdrew the same, the applicant was not granted the benefit. The chart of casual employment of the applicant is given below:

Sl No. Period of work

1 17.3.77 to 4.6.77

2 13.6.77 to 12.9.77

3 20.9.77 to 19.12.77

4 27.12.77 to 26.3.78

5 3.4.78 to 2.7.78

It is seen from the above chart that she started casual service from 17.3.77, there is break of 8 days, 17 days, 7 days and in the five spells of employment. Her service was terminated w.e.f. 1.7.78. The applicant herself submitted that she was re-engaged continuously only w.e.f. 3.4.1979. It is clear that the applicant was appointed on continuous casual basis after a break of more than 9 months which is a long period to be condoned following the orders of the Tribunal in the cases cited above. The applicants in O.A. 435/89 and connected cases had artificial break of one day which is evident from the judgment itself. The relevant portion is extracted below:

"2 The 8 applicants in the first case O.A. 434/89 were originally appointed as Assistant Store Keepers under the Southern Naval Command on a casual basis between 12.11.74 and 13.10.77. Their first appointment was through Employment Exchange and they passed the test/interview as prescribed for regular appointment. They were however, given technical or artificial breaks after every 89th day of service and reappointed to the same post. They were subsequently appointed on a regular basis as .........." (emphasis applied)

10. From the above, we are of the view that the applicant is not identically situated like the applicants in the OAs relied on by her. Neitherhad she approached the Tribunal for condonation of the long break in her casual service nor was she granted the benefit of the orders of the Tribunal. Therefore, the respondents cannot be faulted for not counting the casual service with intermittent breaks rendered by her, for the purpose of granting financial upgradation under the ACP Scheme.

11. However, we notice that the applicant was engaged as casual labour continuously w.e.f. 3.4.1979 without any break and on the basis of the circular of the Ministry of Defence dated 24.11.1967 she is entitled to be regularised in service w.e.f that date. Relevant portion of para 4 of the circular indicated as follows:

"4.......In cases involving break in casual services the benefits of these orders will be admissible from the commencement of only the latest spell of continuous service without break and that the period of service earlier to the break would be ignored eventhough their duration may have been more than a year...."

12. Therefore, we declare that the applicant is entitled for reckoning the period of continuous casual service w.e.f. 3.4.1979 for grant of financial upgradtion under the ACP Scheme etc. except seniority. Accordingly, we mould the reliefs prayed for in this O.A. to direct the respondents to regularise the service of the applicant w.e.f. 3.4.1979 and count the service with effect from that date for grant 2nd ACP. This shall be done within four months from the date of receipt of this order. No costs.

13. In this view of the matter, the O.A. is allowed as above. No costs.