A. Mullakoya & Anr. vs Union Of India & Ors.

Applicant, Mullakoya of Androt island was a casual labourer in Agricultural Department. He claims that he was working as Coconut Climber (Neera Tapper) from October 1982 onwards. While so, on 20.12.1990 he fell down from a coconut tree and sustained injuries. Having regard to the temporary status conferred on him, on 26.12.2012, through Annexure-A3 he was offered absorption as a Multi Skilled Employee in the common category. Again, in Annexure-A5 office order dated 09.07.2013, he was offered temporary post of Multi Skilled Employee. According to him, thus he reported for duty on 09.07.2013 itself and was asked to work as Nursery Waterman. When he was asked to produce a certificate from the Medical Officer, Dr.Sayed Koya of Community Health Centre, Androt refused to issue the same on some or other pretext stating that in view of the Medical Board's certificate he cannot issue a medical certificate. He retired from service on 30.07.2014. After retirement, himself and his wife met respondents 2 to 6 and made personal representations. But his requests for granting pension were not considered. Thus the applicant seeks a declaration that the respondents are bound to issue orders of absorption into regular post of Multi Skilled Employee with consequential benefits including grant of pension and pensionary benefits under CCS(Pension) Rules, 1972. He seeks such a direction to the respondents and to grant him all benefits.

The applicant contends that he had put in 32 years of service as casual labourer and was granted temporary status in 1992. He is entitled to get all the benefits under Annexure-A6 scheme which had come into force on 01.09.1993. He is entitled to be regularised as ordered in Annexures-A3 and A5. But the 5^th respondent did not issue order of regularisation and insisted a medical certificate from the 6^th respondent. However, the 6^th respondent did not issue the certificate even though the applicant is a person having disability of 85%. There is no justification in denying him the benefit of regularisation and refusing pension as provided in Annexure-A6. Referring to Annexure-A7 order of this Tribunal in O.A.949/2010 etc., which stands confirmed by the Hon'ble High Court in Annexure-A8 judgment, the applicant complaints that he is entitled to get the very same benefits. He has also relied on Annexures-A9, A10 and A-11 Office Memoranda. He had given Annexure-A12 representation to the respondents, which was not considered. Thus he has approached this Tribunal seeking the aforesaid reliefs.

During the pendency of the Original Application the applicant passed away on 17.12.2019 and his wife Smt.Laila was impleaded as the additional 2^nd respondent. She is prosecuting the application.

The respondents 2 to 6 filed a reply denying the claim of the applicant. According to them, pursuant to Annexure-A3 offer the applicant had given in writing that he is not willing to accept the offer of appointment to the temporary post of Multi Skilled Employee. Copy of that communication is produced and marked as Annexure-R2(a). Later, Annexure-A5/R2(i) offer was also made to appoint 28 temporary status labourers including the applicant. Out of the 28 persons only 26 labourers had submitted their attested forms with willingness and they were appointed on 31.08.2013, as evident from Annexure-R2(b). The applicant was not appointed as he did not furnish willingness and other documents. A mere contention that he had reported for duty on 09.07.2013 is not sufficient to absolve his liability to accept the offer of appointment in writing. The applicant was not absorbed in regular employment due to reasons attributable to him. Annexure-A12 representation is not seen received in the office. But the applicant had given representation to the then Member of Parliament, which was forwarded to the Administrator, from whom it was received by the 3^rd respondent and the 3^rd respondent gave a reply to the Member of Parliament as evident from Annexure-R2(e).

The applicant filed a rejoinder disputing the version Annexure-R2(a) that he had expressed his unwillingness to accept the offer. Annexure-R2(a) does not bear his signature. It is a manipulated document. This stand does not conform to the reply given to the Member of Parliament through Annexure-R2(e). According to the applicant, the respondents have given untrue statements in reply.

Then the respondents 2 to 6 filed an additional reply reiterating that they do not have any vested interest in denying the legitimate right of the applicant. They have also produced a copy of the representation given by the applicant to the then Member of Parliament, which was forwarded to the 3^rd respondent, following which Annexure-R2(e) was issued. Pursuant to the offer of appointment, the applicant did not produce necessary documents nor sought time for producing the same. Absence of expressed willingness cannot be taken as acceptance or expression of willingness. The applicant who had superannuated in 2014 is estopped from claiming these reliefs after a long period of time and the claim is barred by limitation.

I heard Sri.N.Unnikrishnan, learned counsel for the applicant and Smt.K.L.Sreekala, learned Standing Counsel for the respondents.

It is not in dispute that the applicant had been a casual labourer in the Agricultural Department as Neera Tapper. Annexure-A1 is the details of his attendance from 1982 to 2014. It is submitted that while engaged in official duties he fell down from a coconut tree on 30.12.1990. Relying on Annexure-A4 disability certificate dated 20.04.2013 it has been pointed out that he is a person having suffered 85% permanent disability with 'spine fracture paraplegia', affecting both lower limbs, trunk and face. Even though Annexure-A4 indicates that he is suffering from permanent disability of 85%, there is no contention that such disability was the direct outcome of his fall from coconut tree. It is true that he has claimed benefit under Section 20 of the Rights of Persons with Disability Act, 2016. All the same, that Act had come into force in 2017; still, during the period in question Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was in force. Therefore, if it is proved that permanent disability was the direct outcome of the fall in 1990, necessarily he could claim benefit under Section 47 of the Act, 1995, but the burden is on the applicant to say that he had suffered permanent disability due to the said fall. At the same time, Annexure-A1 document militates against his claim that he had suffered disability to such an extent which prevented his daily routine and attending duties of casual labourer. Annexure-A1 shows that he was attending duties on all 365 days in 1990. Similarly, in 1991, he worked for 31 days in January and 24 days in February. After a gap, he worked for 31 days in October, 30 days in November and 8 days in December and total attendance in 1991 is 124 days. Similarly, in 1992 also, except absence till June, he worked for 157 days. So, Annexure-A1 prima facie does not indicate that he had suffered any such permanent disability after the fall. At the same time we cannot forget that even during 2013 when he as found suffering from 85% permanent disability, his attendance is for 365 days. I made these observations only incidentally.

It is the admitted case that the applicant was offered appointment on regular basis as Multi Skilled Employee by virtue of the temporary status as casual labourer. Annexure-A3 is conditioned by production of certificate of fitness from an authorised Medical Attendant. It is the submission of the applicant that he could not produce such a certificate. He blames the then Medical Officer one Dr.Attakoya for not issuing a fitness certificate on the premise that he had obtained disability certificate from a Medical Board.

Similarly, the second offer was made on 09.07.2013, as seen from Annexure-A5/R2(i). By virtue of Annexure-A5/R2(i) offer of appointment was given to 28 persons as Multi Skilled Employees, which was also subject to the production of certificate of medical fitness from an authorised medical authority and also conveyance of willingness, apart from production of other documents. Averments of the applicant clearly indicate that he could not produce any such document, and ultimately on 30.07.2014 he superannuated from service.

The applicant claims that he had given Annexure-A12 representation to the respondents on 03.11.2017. The respondents denied having received any such representation. But prosecution of that belated representation long after his superannuation cannot revive a stale claim.

I have no doubt that the stand of the respondents in not entertaining the claim of the applicant is inconsistent. In Annexure-R2(e) reply given to the then Member of Parliament in response to the representation given by the applicant, reason in rejecting the plea is non-production of a fitness certificate. As noticed earlier, both Annexures-A3 and A5 insisted production of a fitness certificate from an authorised medical officer for admitting such an employee into service. The case of the applicant is that he could not obtain such a certificate. The 6^th respondent Medical Officer, though was approached, refused to grant him a fitness certificate. At the same time, before this Tribunal the respondents have relied on Annexure-R2(a) and said that the applicant had expressly stated in writing that he is not willing to accept Annexure-A3 offer of appointment; but the applicant has denounced and disowned Annexure-R2(a). Both sides have made contradictory contentions on the genuineness or otherwise of Annexure-R2(a). While the applicant said that it does not bear his signature and wanted this Tribunal to compare his signature in Annexure-R2(a) with the signatures in other admitted documents, the respondents wanted to compare his signature with Annexure-A4 etc. Even though it is unlikely that an offer which promoted his interest was expressly denied, this Tribunal cannot go into the niceties of the questions, which involve disputed questions of facts. The question of genuineness or otherwise of Annexure-R2(a) has no significance since it is the admitted fact that the applicant could not satisfy the conditions in Annexures-A3 and A5 and he did not produce a certificate of fitness.

It is very clear that the applicant had been a casual labourer and by virtue of his long standing as such, was entitled to get the benefit of Annexure-A6 scheme promulgated in 1993 and he was offered appointment twice for regularisation. On both the occasions, on his own admission, he could not produce fitness certificate, which is one of the primary conditions for admitting him into service. That means, he was not regularly appointed as a Multi Skilled Employee and continued as such as a casual labourer till he was finally disengaged on attaining the age of superannuation.

As he was not regularised, question of reckoning 50% of his service rendered after conferring temporary status does not arise. Therefore, Annexures-A7 or A8 or such other Office Memoranda cannot come to the rescue of the applicant.

The respondents have also highlighted Annexure-R2(g) representation given by the applicant to the Member of Parliament, which had led to Annexure-R2(e) reply. In Annexure-R2(g), it is stated that he did not get a physical fitness certificate, considering his physical condition. He is not blaming the doctors because he was moving in the wheel chair. He has also expressed that he does not have a hope of getting a physical fitness certificate according to his physical condition.

Grant of pension is conditioned by entering into Government service and commencing qualifying service as stipulated in Rule 13 of CCS(Pension) Rules, 1972. The applicant did not enter Government service. Annexures-A3 and A5 applications remain on the papers since he did not produce fitness certificate and was not inducted into service. The orders of this Tribunal, the judgment of the High Court and other Office Memoranda, all deal with reckoning 50% of service as casual labourer after attaining temporary status. So, the reason that he was conferred with permanent status will not help him to seek pension and other retiral benefits. If only he was regularised as a Multi Skilled Employee, his 50% of the period of service rendered as casual labourer could have been reckoned for consideration. The decision in Union of India (UOI) and Ors. v. Rakesh Kumar and Ors. [AIR 2017 SC 1691] also is not applicable here. It was a case in which employees were in the Railway service controlled by the Railway Services (Pension) Rules. All of the persons referred in the decision were regularised after attaining temporary status. Here, the applicant was not regularised pursuant to Annexures-A3 and A5 offers.

The contention based on Section 20 of the Rights of Persons with Disability Act, 2016 also cannot come to the rescue of the applicant. Even though this Act had come into force in 2017, still provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 could have been invoked. Even then, in order to attract Section 47 of the Act of 1995, such person should be an employee. The applicant did not get the status of an employee as he was only a casual labourer and was not inducted into service for non-production of fitness certificate.

Resultantly, the applicant is not entitled to get any relief. The Original Application is dismissed. No costs.

Annexure R2(h): True copy of the offer of appointment order F.No.20/09/2012-Estt/6488 issued by the Director (Services) on 26.12.2012

Annexure R2(i): True copy of the Offer of appointment order F.No.2/8/2010-Agri/155 issued by the Directorate of Agriculture on 9.7.2013