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Judgment
O R D E R
The applicant, challenging the letter dated 29.06.2021 issued by Respondent No. 3 rejecting the claim of the applicant has filed the present OA praying for the following reliefs :
I. To quash the order dated 29.06.2021 (Annex. A/8) and direct the Respondent No. 3 & 4 to enroll the applicant as contingent casual labour and allow him to discharge the duty of sweeper in place of his grandfather late Raghunath Naik.
II. To direct the Respondent No. 3 & 4 to do equal treatment with the applicant as has been done in case of other contingent casual labours allowing their near relatives and the applicant may be allowed to work without any further hindrance;
III. To pass any other order/orders as deem fit and proper in the facts and circumstances of the case.
IV. To allow this OA with costs.
The fact of the case, in brief, as inter alia submitted by the applicant in the OA is that the respondents while allowing engagement of near relatives of other employees as contingent casual sweeper, has rejected his claim for the same. The applicant submitted that he was working for last 7 years and discharged duty of his grandfather late Raghunath Naik. He was also initially allowed to sign the attendance register for three to four months but thereafter he was advised to sign the same for and on behalf of his grandfather till his death i.e. upto 09.09.2020. The applicant submitted that like other contingent labourers, the grandfather of the applicant had also sworn one affidavit on 09.02.2015 (Annexure A/20) giving his willingness to allow his grandson i.e. the applicant, to perform his duty of sweeping and cleaning work. The applicant submitted that after death of his grandfather on 09.09.2020, Respondent No. 4 stopped the applicant from discharging his duty, after which he submitted representation on 09.10.2020 (Annexure A/5) and getting no response, his co-workers also submitted representation dated 19.10.2021 (Annexure A/6) requesting Respondent No. 3 to allow the applicant to discharge duty normally. It is submitted that after not getting any reply, the applicant approached this Tribunal in OA No. 57/2021 which was disposed of vide order dated 10.02.2021 directing the respondent no. 3 to dispose of the representation vide Annexure A/5 & A/6.
Learned counsel for the applicant submitted that when no response was received from the respondents after lapse of time given by Tribunal, the applicant filed CP No. 26/2021. The applicant submitted that after filing of CP, Respondent No. 3 in a vindictive manner rejected the representation of the applicant without application of mind. The said CP was dropped with a liberty to the applicant to take appropriate steps. Hence this OA.
The respondents in their counter inter alia averred that as per DG Post letter dated 01.03.1993 there is ban on employment of causal labourer and no casual labourer can be engaged after 29.11.1989. They submitted that there is no record to show that the applicant has ever been engaged as Sweeper and his claim to be engaged against sweeper post is not coming under the consideration zone as per the provisions of Departmental rules available. The respondents submitted that after death of grandfather of applicant, the work has been divided between two places and is being now managed by two other daily wagers. It is submitted that demanding engagement in a government organization without any valid supportive documents is not justified at all. The respondents further submitted that as per order of this Tribunal in OA No. 57/2021, they have considered the representation of the applicant and communicated the decision thereof in a well reasoned and speaking order to the applicant. Therefore they prayed for dismissal of the OA.
The applicant in his rejoinder submitted that the contention of the respondents that there is ban on employment of casual labourers is wrong because as per Annexure A/1 it is seen that the respondents have themselves engaged other persons after the year 2000. He submitted that while relatives of other deceased persons namely Sri Anand Naik, Magi Naik, Parbati Dei, Sunita Gouda & Rajendra Kumar Mallick, have been engaged for the work of sweeping, the case of the applicant not being considered is discriminatory and violative of Article 14 of the Constitution of India. The applicant submitted that the testimonies of the co-workers in the mass representation dated 19.01.2021 is the proof of his working in place of his grandfather and Respondent No. 3 in not replying to the same is violative to OM dated 22.05.2006. The applicant submitted that the order dated 29.06.2021 (Annexure A/8) has been done without application of mind.
Heard both sides and have carefully gone through the materials on records.
The order dated 10.02.2021 passed by this Tribunal in OA No. 57/2021 is reproduced below:
Heard learned counsel for the applicant and Mr. P. K. Mohanty, learned counsel who entered appearance on behalf of the respondents. Learned counsel for the applicant submits that he does not want any interim relief but submits that present grievance of the applicant will be redressed if a direction is given to the competent authority for disposal of representation already filed by the applicant vide Annexure A/ 5& A/6. In the above circumstances without expressing any opinion on the merit of the case, the OA is disposed of with direction to Respondent No. 3/Competent Authority to dispose of the representation of the applicant vide Annexure A/5 & A/6 in accordance with law by passing a reasoned and speaking order to be communicated to the applicant within a period of three months from the date of receipt of copy of this order. On the prayer of learned counsel for the applicant copy of the OA be also sent along with copy of this order to Respondent No. 3 at the cost of the applicant. Copy of the order to learned counsel for both the sides.
In compliance to the above order of the Tribunal, the Respondents vide order dated 29.06.2021 rejected the claim of the applicant. The relevant portion of the said letter is extracted below:
This is regarding implementation of the Order dated 10.02.2021 passed by the Hon'ble Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 260/57 of 2021 filed by Sri Gopal Kumar Nayak Vs. Union of India. The Hon'ble Tribunal vide the said Order has directed No.3/Competent Authority, i.e., Senior Superintendent of Post Offices, '' the Respondent Division, Cuttack "to dispose of the representation of the Applicant vide Annexure-A/5 and A/6 in accordance with law by passing a reasoned and speaking order to be communicated to the applicant within a period of three months from the date of receipt of copy of this order". The copy of the sald Order is received in the Office of the Senior Superintendent, RMS 'N' Division, Cuttack on dated 23.02.2021 instead of Senior Superintendent of Post Offices, 'N' Division, Cuttack as mentioned in the O.A. That, it is worthy to mention here that the HRO, RMS 'N' Division, Cuttack where the Applicant's grandfather, Late Sri Raghunath Naik was working as Part time casual labourer (Part time Sweeper) is coming under the administrative jurisdiction of Senior Superintendent, RMS 'N' Division, Cuttack who is the Competent Authority to dispose of the representation under Annexure-A/5 & Annexure-A/6 of the O.A. That, in compliance to the above Order of the Hon'ble Tribunal, the said representations dated 09.10.2020 and 19.01.2021 of the Applicant under Annexure-A/5 & Annexure-A/6 of the O.A. were considered in accordance with the relevant and extant Departmental rules and instructions with the following observations. That, the brief history of the case is that the grandfather of the Applicant Late Raghunath Nalk was engaged as Part time casual labourer (Part time Sweeper) in HRO, RMS 'N' Division, Cuttack on dated 01.01.1974 and since then he had been discharging his duties as Part time Sweeper under HBO, AMAS !! Division, Cuttack. That, the Applicant vide his representations dated 09.10.2020 and 19.01.2021 has requested to consider his case and allow him to be engaged as Sweeper in death vacancy of Late Raghunath Nalk, Ex-Part Time casual labourer. That, as per the Director General (Posts) Letter No.45:56/92 dated 01.03.1993 "A ban on employment of Casual Labourer had been put to by the Government prior to 29.11.1989. Therefore, there should not be any casual labourer employment after 29.11.1989", Thus, as per the Government of India's decision, no casual labourer can be engaged after 29.11.1989, The claim for engagement as Sweeper of Sri Gopal Kumar Naik, grandson of Late Raghunath Nalk, Ex-Part Time casual labourer on the ground as the ward/archaic of the deceased is not justified at all. The record shows no such person namely, Sri Gopal Kumar Naik has ever been engaged as Sweeper. The Applicant is purely an outsider and his request to engage him against Sweeper post which was earlier managed by his grandfather Late Raghunath Nalk is not coming under the consideration zone as per the provisions of Departmental rules available. In view of the above discussions, the representations of the Applicant was considered and it is concluded that the request of the Applicant for declaring him as sweeper against the vacancy of his grandfather, Late Raghunath Nalk, Ex-Part Time casual labourer is not as per the rules in vogue and cannot be acceded to, Hence, his request is hereby rejected, being devoid of any merit. Accordingly, the Order dated 10.02.2021 of the Hon'ble Central Administrativbe Tribunal, Cuttack Bench, Cuttack passed in O.A. No. 260/57 of 2021 is complied with.
Learned counsel for the applicant submitted that the respondents have not taken into consideration the representation dated 19.10.2021 jointly submitted by other employees who are currently working with the respondents and who have stated that the applicant was working in place of his grandfather. Learned counsel for the applicant further submitted that relatives of other employees have been extended the same benefit and rejecting his case is discriminatory and the respondents are resorting to pick and choose policy which is bad as per decision of Hon’ble Apex Court in the matter of Jivanlal versus Pravin Krishna, Principal Secretary & others (2018) 1 SCC (L&S) 522. Learned counsel for the respondents on the other hand submitted that respondents have certain limitations and have to work within the ambit of Rules. There being no documentary evidence that the applicant is working on behalf of his grandfather, his case was rightly rejected, which needs no interference.
It appears that the order dated 29.06.2021 has been passed mechanically, without due application of mind. The respondents haven’t even gone through the two representations i.e. Annexure A/5 & A/6 of OA No. 57/2021, in which this Tribunal directed to dispose of the representation by passing a speaking and reasoned order. Whether the applicant was working as substitute or not could have been ascertained from the joint representation dated 19.10.2021. It is well settled law that there can be no justification in discriminating two set of similarly placed persons and any discrimination being violative of Article 14 of Constitution of India is not sustainable. It is stated that the respondents have appointed people to work as casual labour (sweeper) even after the year 2000, so their submission of there being ban of engagement, cannot come to their rescue, at least in the peculiar circumstances of this case. The job of sweeper being perennial in nature cannot be just stopped. It is also seen that the respondents have not specifically denied the claim of the applicant that relatives of other employees have been allowed to work in place of the employees after their death or on request. Discriminating against similarly placed persons, opting for pick and choose policy is against the settled position of law. Therefore, this Tribunal finds that the rejection order dated 29.03.2021 is liable to be set aside and is accordingly set aside. Sequel to the above, the matter is remitted back to Respondent No.3/competent authority to give a fresh look to the entire matter as per the discussions made above/law after giving an opportunity of being heard to the applicant and intimate the outcome of such consideration to him in a reasoned and speaking order within an outer limit of 90 (ninety) days from the date of receipt of a copy of this order.
The OA is accordingly allowed to the above extent. No costs.