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Judgment
ORDER
Hon’ble Mr. Justice Om Prakash-VII, Member (J)
The applicant has filed this O.A. u/s 19 of the Administrative Tribunals Act, 1985 with the following prayers:-
i)To issue order or direction to the respondents to absorb /regularize the applicant with immediate effect in the respondent laboratory on the post of helper/worker with all benefits as applicable to other regular employees.
ii) To issue order or direction to the respondents to provide all benefits w.e.f. the date applicable in lieu of proceedings of board of officers dated 25th May, 1991.
iii) To issue any other order or direction to the respondents to which this Hon’ble Tribunal may deem fit under the circumstances of the case.
iv) To award cost of the O.A. in favour of the applicant.
The facts of the case in brief are that the applicant was working under the respondent No. 3 since 1987 as casual labour. In 1991, daily wages workers were considered for regularization but case of applicant was not considered in the meeting held on 25th May, 1991 whereas similar helpers on daily wages were absorbed on regular basis. Being aggrieved, applicant filed several representations before the higher authorities but no action has been taken. Thereafter, applicant filed O.A. No. 3/2016 before this Tribunal, which was disposed off vide order dated 21st February, 2019 with direction “to reconsider the representation of the applicant after adopting the procedure established by law to conclude whether the certificate (Annexure 20 attached to the O.A.) is a genuine or a forged document. For this purpose, respondent would be at liberty to call upon the applicant to produce the certificate in original for sending the same to concerned handwriting expert, if in the first instance, the person issuing the document denies his handwriting and signature, apart from the overwriting alleged by the respondents. The exercise would conclude by the respondents within a period of five months from the date of receipt of certified copy of this order. The representation shall be, thereafter, disposed of by the respondents by way of a reasoned and speaking order. The O.A. is accordingly disposed of. No order as to costs.” When compliance has not been made, applicant filed Contempt Petition No. 18/2020 which was decided by the Tribunal vide order dated 24th March, 2022 and closed the contempt petition. It is further stated that in compliance of order dated 21.2.2019, respondent took fresh signature of Shri T. Pant after 32 years (approximately in his age of above 90 years) and sent along with the original certificate dated 16.1.21990 to Sherlock Institute of Forensic Science India, Delhi for signature verification, who submitted report dated 4.2.2022 in which Forensic institute has stated as under:-
“After doing the examination of the questioned document marked as (Q-1) under UV light, it has been observed that the stamp present at upper and lower regions, printed content, handwritten content and signature on the paper are manually done. Therefore, it is not a photocopies or scanned and printed document.” Thus, on the basis of .aforesaid facts stated in the O.A., it has also been pleaded that certificate submitted by the applicant was an original document.
Per contra, learned counsel for respondents filed counter affidavit through which it is stated that in compliance of the order dated 21.2.2019 passed by this Tribunal in O.A. No. 3/2016, respondent took fresh signature of Shri T. Pant after 32 years and sent along with the original certificate dated 16.1.21990 to Sherlock Institute of Forensic Science India, Delhi for signature verification, who submitted report dated 4.2.2022 and as per the report of the institute, it could not be ascertained that the documents submitted by the applicant was valid. Therefore, her claim for absorption was denied. It is further submitted that applicant had never worked in the institute and no such record is available in the department which shows that she has ever worked as casual labour in the department. All works in the Institute were being executed through the contracts w.e.f. August, 1991. It is further submitted that Shri T. Pant, erstwhile Scientist C Defence Agriculture Research Laboratory has denied issuing such a certificate to the applicant in front of Board of Officers on 28th May, 2019, constituted to investigate.
Heard the learned counsel for the parties.
Submission of the learned counsel for the applicant is that applicant was working as a casual labour since 1987 and her counterparts who were junior to the applicant have been absorbed in the applicant but applicant has been ignored. Learned counsel for applicant further argued that the then Officer Incharge, Defence Agriculture Research Laboratory, Pithoragarh Shri T. Pant Scientist Grade C had issued a certificate that Smt. Kamla Devi was working in his institution since last 3 years as daily wages worker and she is a honest, hard worker person with good conduct and in compliance of the order dated 21st February, 2019 passed by this Tribunal in O.A. No. 3/2016, the same was sent to Forensic Institute for signature verification and even after the report of the Forensic Institute, respondents have not considered the case of the applicant.
Learned counsel for the respondents argued that in compliance of the order dated 21st February, 2019 of this Tribunal, certificate was sent for verification to the Forensic Institute, and in the result of analysis, in para 4 of the report, Forensic Institute has observed that “After doing in-depth analysis of the provided documents, I have observed dissimilarities in the handwriting which are significant and sufficient to reach the conclusion. All the described dissimilarities are unique, fundamental in nature and beyond the range of natural variation. The writing habits between the handwriting leads to a conclusion that the writers are different in the questioned handwriting marked as (QB-1) and specimen handwriting marked as (SB-1).” It is further argued that Shri T. Pant, erstwhile Scientist C Defence Agriculture Research Laboratory has denied issuing such a certificate to the applicant in front of Board of Officers on 28th May, 2019, constituted to investigate. It is further argued that applicant had never worked in the institute and no such record is available in the department which shows that she has ever worked as casual labour in the department.
I have considered the rival submission made by the learned counsel for the parties and have gone through the entire record including the written submission.
From perusal of the record, it is evident that applicant has only relying on the certificate dated 16th January, 1990, which according to the respondents is a fabricated document. No other documents like casual labour live register, attendance sheet, pay slip or any appointment letter have been annexed by the applicant along with the O.A. Shri T. Pant, the then Scientist C Defence Agriculture Research Laboratory has denied of issuing such a certificate to the applicant in front of Board of Officers on 28th May, 2019. Report of Forensic institute is also made it clear that the writing habits between the handwriting leads to a conclusion that the writers are different in the questioned handwriting marked as (QB-1) and specimen handwriting marked as (SB-1). Admittedly, the applicant was never appointed in the Department on regular basis. No posts were advertised, examination conducted or interview held. Applicant is claiming relief merely on the ground of alleged appointment as Casual Labour. Applicant has failed to produce any appointment order or pay slip to substantiate her claim. Burden of proof of facts pleaded in the O.A. lies upon the plaintiff but applicant has failed to produce any evidence in support of her pleading regarding employment as casual labour in the respondents department, except the disputed certificate. Even if, his claim is accepted that she had worked for considerable period in the department, that by itself would not give any right to her for regularization or for appointment of permanent nature in the said department. Submission of the learned counsel for the applicant that similarly situated casual labourers who were also working along with the applicant have been regularized but the applicant was discriminated. Thus, action of the respondents is violative of Article 14 and 16 of the Constitution of India. If the submissions raised on behalf of the applicant is taken into consideration and compared with the facts and evidence available on record, applicant has solely relied upon the disputed certificate said to have been issued by one of the officer of the institute concerned who himself has denied about the issuance of such certificate. Plea of the applicant is that applicant had worked since 1987 to 1991, only thereafter, he was disengaged and was working through the contractor in the department. Regularization of other candidates have been done in the year 1991. Applicant’s plea is that she approached before the Hon’ble High Court in the year 2010. The said writ petition was dismissed with liberty to approach before the Tribunal. Applicant, thereafter, approached before the Tribunal in the year 2016. Certificate said to have been issued in favour of the applicant is a disputed document. The expert opinion can also not be ignored on this ground that the verification of signature of the disputed certificate was mismatched with the signature obtained from the officer concerned. It cannot be said that flow of writing will be changed when a person reached at the age of about 90 years. Direction given in the O.A. 3/2016 have also been complied with by the department. Contempt petition filed by the applicant has also been closed on the ground of substantial compliance. Thus, the plea taken by the applicant for granting relief in the matter are not acceptable. The aforesaid observations recorded by the bench also find support with the following case laws:-
Constitution Bench of Hon’ble Apex Court in the case of Secretary, State of Karnataka and others Vs. Umadevi (3) and Others reported in (2006) 4 SCC 1 has held that absorption, regularization, or permanent continuance of temporary, contractual, casual, daily wage or adhoc employee appointed/ recruited and continued for long in public employment dehors the constitutional scheme of public employment. The Court further held that constitutional court should not issue direction for regularization of service of such employees.
In Ashwani Kumar and others Vs. State of Bihar and others (1996 Supp. (10) SCR 120), this Court was considering the validity of confirmation of the irregularly employed. It was stated:
"So far as the question of confirmation of these employees whose entry was illegal and void, is concerned, it is to be noted that question of confirmation or regularization of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorized and is not against any sanctioned vacancy, question of regularizing the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularization or confirmation is given it would be an exercise in futility.”
The Hon’ble Apex Court further reiterated the aforesaid law in the case of Satya Prakash and others Vs. State of Bihar and others reported in 2010 (2) UPLBEC 1181, wherein following observations were made by the Court:-
“6.We are of the view that the appellants are not entitled to get the benefit of regularization of their services since they were never appointed in any sanctioned posts. Appellants were only engaged on daily wages in the Bihar Intermediate Education Council. In Muadevi’s case (supra) this Court held that the Courts are not expected to issue any direction for absorption/regularization or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees. This Court held that 5 such directions issued could not be said to be in consistent with the constitutional scheme of public employment. This Court held that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. In view of the law laid down by this Court, the directions sought for by the appellants cannot be granted.
7.paragraph 53 of Umadevi’s Judgment, deals with irregular appointments (not illegal appointments). Constitution Bench specifically referred to the judgment in S.V. Narayanappa v. State of Mysore, (1967)1 SCR 128, B.N. Nanjudappa v. T. Thimmiah, (1972) 1 SCC 409, in paragraph 15 of Umadevi’s judgment as well.
8.Let us refer to paragraph 15 and 16 of Umadevi’s judgment in this context. Necessity of keeping in mind the distinction between regularization and conferment of permanence in service jurisprudence has also been highlighted by this Court by referring to the following passages from R.N. Nanjundappa’s case, which reads as follows:-
“If the appointment itself is in infraction of the rules of if it is in violation of the provisions of the Constitution illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority but there has been some non compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment.”
In view of the judgments of Hon’ble Apex Court in the case of State of Karnataka Vs. Uma Devi (supra) , Ashwani Kumar and others Vs. State of Bihar (Supra) and Satya Prakas and others Vs. State of Bihar (supra), law is now well settled that casual labour has no right to seek regularization. In the instant case, even the claim of working of applicant as casual labour has not been proved.
Considering all the facts and circumstances of the case, claim of applicant cannot be accepted. Accordingly, O.A. is dismissed.
There shall be no order as to costs.
All pending MAs in the O.A. stands also disposed off.