Original Application No. 509 of 2012. Case: Santokben Jesingbhai Parmar Vs Union of India and Ors.. Central Administrative Tribunal

Case NumberOriginal Application No. 509 of 2012
CounselFor Appellant: A.D. Vanker, Advocate and For Respondents: Roopal R. Patel, Advocate
JudgesM. Nagarajan, Member (J) and K.N. Shrivastava, Member (Ad.)
IssueConstitution of India - Articles 14, 16, 16(4), 21, 226, 309, 320, 335
Judgement DateJuly 28, 2015
CourtCentral Administrative Tribunal

Order:

M. Nagarajan, Member (J), (Ahmedabad Bench)

  1. The grievance of the applicant in this O.A. is as to non consideration of her claim either to confer temporary status in Group-D or to absorb in the post of Gramin Dak Sevak (GDS) or as full time Group-D/Multi Tasking Staff (MTS).

  2. The brief facts stated by the applicant are that in the year 1981 she joined in Ahmedabad GPO as an Outsider Group D and thereafter, on verbal orders of the then Manager, Mail Motor Services, she was performing the duty as Part Time Water Woman with effect from 01.07.1991 for 05 hours in a day. She is being treated as Contingent paid employee and the wages are paid at the prevailing daily rates since 1981. She submits that the Manager, Mail Motor Services, vide his letter dated 18.07.2013 (Annexure A-16) increased her working hours from 04 hours to 05 hours and asked her to perform other duties also in addition to the duty of Part Time Water Woman. In the said letter, she was also directed to mark her presence in the attendance register daily. She claims that as per D.G. (Posts) letter No. 65-24/88-SPB-I dated 17.05.1989, the contingent paid staff is to be treated as casual labourer.

  3. The case of the applicant is that she is working as Part Time Casual Labourer since 1991, as such she is entitled to be absorbed either in the GDS cadre or as full time Group-D/Multi Tasking Staff or to confer temporary status of a Group-D employee. In this regard, the applicant preferred a series of representations from 1994 onwards to the respondent authorities. As against her representations dated 13.09.2005, 03.10.2005 and 25.10.2005 (Annexures A-5/1, A-6/1 and A-7/1), the respondents sent a communication to the applicant stating that the particular case was not taken up at appropriate time by her unit and hence she has to wait till her turn come for appointment in GDS cadre. Thereafter, even till date, her grievance stands unattended by the respondent authorities. Being aggrieved by the inaction on the part of the respondents to consider her request either to grant temporary status in Group-D post or to absorb in GDS or full time Group-D, the applicant presented the instant O.A. seeking a direction to the respondents to consider her case either for the post of GDS or as Full Time Group-D/MTS or to confer her the temporary status of a Group-D employee.

  4. Pursuant to the notice of the O.A, the respondents entered appearance and filed a detailed reply contending that the applicant is not entitled for the direction as sought by her. It is specifically contended by the respondents that since there is no rule for absorption of a Casual Labourer in Group-D post, her request to absorb either in GDS or as a full time Group-D could not be considered. It is the specific case of the respondents that the applicant being a Part Time Casual Labourer, is working only 04/05 hours in a day and she is getting the pay and allowances at the rates applicable for just 04/05 hours working. It is further submitted that the applicant was working as Part Time Water Woman since 01.07.1991 in Mail Motor Service, Ahmedabad, and she was relieved from that post on 03.01.2011 as per Directorate Memo No. 4-4/2009-PCC dated 19.11.2010. Later, she is engaged as Contingent Paid Sweeper/Daily Rated Mazdoor for 05 hours in a day with effect from 01.04.2011 as per C.O. letter dated 24.03.2011. As regards the contention of the applicant that she joined in Ahmedabad GPO as an Outsider Group D in the year 1981, it is contended by the respondents that in Ahmedabad GPO, no person is being engaged on verbal order and the same is incorrect. The applicant has not produced the appointment order or any details showing that she had worked about 10 years in Ahmedabad GPO. They submitted that the applicant's case for absorption in Group-D/MTS or in GDS or for granting temporary status of a Group-D employee cannot be considered as she does not possess the required educational qualifications. They prayed for dismissal of the O.A.

  5. Heard Mr. A.D. Vanker, learned counsel for the applicant and Ms. Roopal R. Patel, learned counsel for the respondents. Perused the pleadings and the documents annexed thereto of the respective parties.

  6. Admittedly, the applicant is a Contingent Paid Staff. The applicant claims that she is entitled to be absorbed either in the GDS cadre or as full time Group-D/Multi Tasking Staff or to confer temporary status of a Group-D employee. The question before us is whether the applicant is entitled for a direction from this Tribunal to absorb her in GDS or as full time Group-D/MTS or to grant conferment of temporary status of Group-D, as claimed by her. Similar questions have come up for consideration before the Hon'ble Supreme Court time and again. On one occasion, Hon'ble Supreme Court noticed that in the matter of regularisation of ad-hoc employees, there were conflicting decisions by the three-Judge Benches and two-Judge Bench of the Hon'ble Supreme Court, and hence the question was considered by a larger Bench. When the matter came up before a three-Judge Bench, the Bench in turn felt that the matter should be referred to the Constitution Bench in view of the conflicting decisions. The order of reference is reported in the case of Secretary, State of Karnataka and Others versus Umadevi (2) and Others, (2006) 4 SCC 44. It is proper for us to quote the said order of reference of the Hon'ble Supreme Court at this stage. It reads:

    1. Apart from the conflicting opinions between the three Judges' Bench decisions Bihar and Ors., reported in 1997 (2) SCC 1, State of Haryana and Ors. v. Piara Singh and Ors. Reported in 1992 (4) SCC 118 and Dharwad Distt. P.W.D. Literate Daily Wage Employees Association and Reported in 1990 (2) SCC 396, on the one hand and State of Himachal Pradesh v. Suresh Kumar Verma and Anr., reported in AIR 1996 SC 1565, State of Punjab v. Surinder Kumar and Ors. Reported in AIR 1992 SC 1593, and B.N. Nagarajan reported in 1979 (4) SCC 507 on the other, which has been brought out in one of the judgments under appeal of Karnataka High Court in State of Karnataka v. H. Ganesh Rao, decided on 1.6.2000, reported in 2001 (4) Karnataka Law Journal 466, learned Additional Solicitor General urged that the scheme for regularization is repugnant to Articles 16(4), 309, 320 and 335 of the Constitution of India and, therefore, these cases are required to be heard by a Bench of Five learned Judges (Constitution Bench).

    2. On the other hand, Mr. M.C. Bhandare, learned senior counsel, appearing for the employees urged that such a scheme for regularization is consistent with the provision of Articles 14 and 21 of the Constitution.

    3. Mr. V. Lakshmi Narayan, learned counsel, appearing in CC Nos. 109-498 of 2003, has filed the G.O. dated 19.7.2002 and submitted that orders have already been implemented.

    4...

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