Original Application Nos. 1091 of 2010 and 964 of 2011. Case: 1. Sushil Kumar Karare, 2. Suryabhan Shyamkuwar and Ors. Vs 1. Union of India, Through Secretary, Department of Revenue, Ministry of Finance and Ors., [Alongwith Original Application Nos. 1093 of 2010, 879 of 2011 and 441 of 2012], 2. Union of India, Through Secretary, Department of Revenue, Ministry of Finance, Central Board of Direct Taxes, through its Chairman, Chief Commissioner of Income Tax and Commissioner of Income Tax, Aayakar Bhavan, [Alongwith Original Application Nos. 1133 of 2011, 323, 324 and 466 of 2012]. Central Administrative Tribunal
| Case Number | Original Application Nos. 1091 of 2010 and 964 of 2011 |
| Counsel | For Appellant: Shri A.P. Shrivastava in Original Application Nos. 1091 and 1093 of 2010, 964 and 1133 of 2011, 323, 324, 466 of 2010, Shri M.N. Banerjee in 879 of 2011 and 441 of 2012 and For Respondents: Shri S.A. Dharmadhikari in Original Application Nos. 1091 and 1093 of 2010, 1133 of 2011, 324 of 2010, Shri A.P. Khare in 879 of 2011, Shri ... |
| Judges | Dhirendra Mishra, Member (J) and G.P. Singhal, Member (Ad.) |
| Issue | Constitution of India - Articles 14, 142, 16, 162, 226, 309, 32 |
| Judgement Date | October 11, 2013 |
| Court | Central Administrative Tribunal |
Order:
Dhirendra Mishra, Member (J), (Jabalpur Bench)
1. Through these Original Applications (for brevity OAs) the applicants, who were engaged for work of casual nature and who have completed more than 10 years of service as on 10.04.2006, have prayed for their regularisation in service under the respondents from the date of their initial engagement. Since the question of law and issues involved in these OAs are similar, all the matters were heard together and the same are being disposed of by this common order. Applicants in these OAs have prayed for direction to the respondents to regularise their services from the dates of their initial engagement keeping in view the judgment of the Hon'ble Supreme Court in the matters of Secretary State of Karnataka & others Vs. Uma Devi(3) and others, (2006) 4 SCC 1, by quashing/setting aside/modifying the impugned orders whereby their representations have been rejected by the competent authority of the respondents.
2. Written arguments have also been filed on behalf of the applicants as well as the respondents, which have been taken on record.
3. For the purposes of this order reference is being made to the facts and documents pleaded in OA No. 1091/2010, unless not specifically referred to any other Original Application.
4. Learned counsel for the applicant submits that the applicant joined as casual worker on 14.08.1990 under the administrative control of the Commissioner of Income Tax, Bhopal and since then he is continuing to work as casual labourer till date and he has not been regularised. As per policy of the Government of India issued vide OM No. F. 49014/2/86-Estt (c) dated 07.06.1988, framed in view of the judgment of the Hon'ble Supreme Court in the matters of Shri Surendra Singh & others Vs. Union of India (1986) 1 SCC 639: 1986 SCC (L&S) 189, the applicant was eligible for regularisation in service. However, his services have not been regularised against the vacant regular post. From perusal of Annexure A-2, it would be clear that there were several vacancies for the posts of Daftari, Peon, Watchman, Farrash and Sweeper, and large numbers of posts were lying vacant for a considerable period. However, no steps for regularizing the services of the casual worker were initiated. A Scheme for Grant of Temporary Status and Regularisation of Casual Workers was framed vide Annexure A-3 and the same came into force with effect from 01.09.1993 and as per the said Scheme those casual labourers who had rendered a continuous service of at least one year would be conferred with the temporary status without reference to creation/availability of regular Group-D post. However, casual labourers, who acquired temporary status were not to be brought on the permanent establishment unless they get selected through regular recruitment. The benefit of the above Scheme was extended to all labourers, who were employed as on 01.09.1993, as would be evident from Annexures A-4, A-5, and A-12 by which, amongst others, one Arun Vaidya, who was junior to the applicant was granted temporary status, however, the applicant was not granted even temporary status.
4.1 The Department of Personnel and Training (for brevity DOPT) vide its OM dated 11.12.2006 (Annexure A-6) forwarded a copy of the judgment of the Hon'ble Supreme Court in the matters of Uma Devi (supra), with an observation that the Hon'ble Supreme Court has directed that 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 are duly qualified persons in terms of the statutory requirement of the recruitment rules for the post and who have worked for 10 years or more against duly sanctioned post, but not under the cover of the orders of the Courts/Tribunal, for implementation of such directions. The Central Board of Direct Taxes also issued certain directions on 18.11.2008 to all cadre controlling Chief Commissioners of Income Tax (for brevity CCIT) for regularisation of all casual workers who had worked continuously for more than 10 years. Accordingly, different CCITs regularised the services of casual workers as Group-D as would be evident from the documents filed as Annexures A-7, A-8, and A-9. However, no such action has been taken by the CCIT, Bhopal, even though representations were made vide Annexure A-10. The CCIT, Indore requested the CCIT, Bhopal the cadre controlling authority, for regularisation of daily wagers on 30.11.2010 (Annexure A-11). However, no steps were taken by the respondents and their claims have been rejected by the impugned order, without following the binding judgment of the superior courts with a pre-determined mind and not a single casual labourer has been regularised.
4.2 The cases of the applicants for grant of temporary status was forwarded to the CCIT Bhopal vide Annexure RJ-1 dated 21.8.2003. The respondents had verified the age of casual employee at the time of initial engagement and, therefore re-verification of their age at the time of considering their cases for regularisation is not called for, as instructions have been issued in this regard in the year 1968 vide Annexure RJ-2 to extend age concession to the employees and keep them in the department till they retire.
4.3 The respondents could not deny regularisation to the applicants by observing that there was no sanctioned vacant post, particularly when they are abolishing the various posts of Group-D to deny regularisation, as would be evident from Annexure RJ-3.
4.4 The applicant has been representing for his regularisation from 1996 onwards as would be evident from various applications filed by the applicant along with this OA and the respondents could not deny his claim for regularisation on the ground that there is no proof that he was engaged in the year 1990. The respondents could also not deny regularisation on the ground that his name was not sponsored by the employment exchange, as the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 has been enacted to ensure equal opportunity to employment seeker, and since the respondents themselves did not notify the vacancies as provided under the aforesaid Act, the applicant cannot be denied regularisation on the ground of non-sponsoring of his name through the Employment Exchange.
4.5 The applicant can also not be denied regularisation on the pretext that no record is available with the respondents with regard to his engagement, particularly when salary was disbursed to him by the respondents through out this period. The decision of the respondents is based on incorrect interpretation of the decision of Hon'ble Supreme Court in the matters of Uma Devi (supra), and they have selectively relied upon certain paragraphs of the said judgment, which were not relevant for regularisation.
4.6 The respondents could not have denied his claim of regularisation on the ground of irregularities mentioned in the order unless the same goes to the route of the process of selection. From the document filed by the applicant along with rejoinder it would be evident that the Head of the Department had certified that the applicant was appointed on 14.5.1990, and he was working since then and he was paid bonus, for different periods, and his name appears in the seniority list drawn by the department at serial No. 1. However, all these facts have been ignored by the respondents while passing the impugned order of rejection.
4.7 Reliance is placed on the judgments of the Hon'ble Supreme Court in the matters of State of Karnataka & others Vs. M.L. Kesari, (2010) 9 SCC 247, UP State Electricity Board Vs. Pooran Chandra Pandey & others (2007) 11 SCC 92, and Union of India & others Vs. Parul Debnath & others (2009) 14 SCC 173 and also a judgment of Bombay Bench of this Tribunal in the maters of S.N. Kamble & others Vs. Union of India and others, 2012 (2) SLJ (CAT) 61.
5. On the other hand learned counsel for the respondents, submits that the applicant had applied for regularisation of his services. Similar applications of daily wagers, were called from all the offices of the Region, who claimed to be eligible for regularisation. Large number of applications/representations, in different formats, were received for regularisation. In order to make uniform evaluation, a proforma of application was devised and sent to all persons, who claimed to be eligible for regularisation. The Head of the Departments were requested to certify the correctness of the data mentioned in the application and forward their applications along with supporting documents, to the office of the CCIT (CCA), MP and CG, Bhopal vide detailed directions dated 08.04.2011, clearly specifying various criteria to be adopted and considered while forwarding the applications as per judgments of the Hon'ble Supreme Court regarding regularisation of casual/daily wages/temporary status employees. As per judgment of the Hon'ble Supreme Court in Uma Devis case (supra), only eligible workmen, who were engaged prior to 10.04.2006, were eligible to be considered for regularization and the CBDT vide its letters dated 18.09.2008 and 18.11.2008 had specifically clarified this position. The Hon'ble Supreme Court has clearly observed that casual workers/daily wagers do not have any inherent right for regularisation, as such persons were aware about the fact that their engagement was not against any permanent post. Such...
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