R. Manohar vs The Deputy Director, Export Inspection Agency and Others

Bakthavatsalam, J.—The prayer in the writ petition is as follows:

...to issue a writ of mandamus or any other appropriate writ, order, or direction in the nature of the writ directing the respondents to regularise the services of the petitioner in the Group D Cadre post with effect from 2.1.1985 the date of entering into the services of the respondents with all monetary and attendant benefits accrued thereon....

The petitioner herein received a communication from the second respondent dated 2.11.1983, calling upon him to appear for an interview on 28.11.1983 for Group D post before the first respondent and the petitioner herein appeared before the first respondent on the appointed day. Again, the petitioner was asked to fill up certain forms, by a communication sent by the second respondent herein dated 4.8.1984. The petitioner duly filled up those forms and returned them. Thereafter, by communication dated 1.1.1985 sent by the first respondent, the petitioner was asked to meet the first respondent, the petitioner was asked to meet the first respondent on 2.1.1985 and on that date onwards the petitioner is working with the first respondent.

The petitioner alleges in the affidavit filed in support of the writ petition that his name was considered for the said post, that only after an interview was conducted by the first respondent, that he was appointed to the said post due to the transfer of one Vasant Singh from Tuticorin to Madras, who was holding the post permanently and that, as such, it is made clear that the said post is a sanctioned and permanent post and the petitioner was appointed in a permanent vacancy. It seems that unfortunately, the petitioner was treated as a casual labourer and his services were not regularised. It is also alleged in the affidavit that the petitioner herein sent letters to the second and third respondents on 1.9.1985 and on 14.11.1986 to regularise his services, that he is working in the first respondent''s office ever since 2.1.1985 discharging all the duties assigned to him, and that though the petitioner has been as a casual labourer, the remuneration due to him were paid only in lump sum. It is further alleged in the affidavit that the petitioner was asked to work in a sanctioned and permanent post in a permanent vacancy, that he is entitled to get the same salary and other monetary benefits similar to any other Group ''D'' employees of the first respondent, that the petitioner was denied the monetary benefits like D. A. and other such periodical increments on the sole ground that he was treated as a casual labourer and as such the said action of the respondents infringes Articles 14 and 16 of the Constitution of India. The petitioner further alleges in the affidavit that the financial resources of the Central Government is the Chief Funding source for establishment and maintenance of the third respondent council, that the entire control is vested with the Ministry of Finance, Government of India, as an authority envisaged under Article 2 of the Constitution, and that the petitioner has initially filed an application before the Central Administrative Tribunal, Madras Bench on 19.4.1989. The said application was returned by the Tribunal stating that the third respondent''s council was not notified u/s 14 of the Tribunal''s Act and hence it has no jurisdiction to entertain the same. In these circumstances the petitioner herein is before me, with the prayer stated supra.

Notice of motion has been ordered by me on 26.6.1989.

The second respondent herein has filed a counter-affidavit and Mr. R. Shanmugam, the learned Counsel appears for the second respondent. The facts are not disputed in the counter-affidavit filed by the second respondent. What all is stated in the counter-affidavit is that the petitioner herein has got the appointment as casual labourer purely on temporary basis. It is further claimed in the counter-affidavit that all appointments are made only after an interview is conducted and that the petitioner cannot claim as of right that he should be made permanent on the ground that he was given the appointment after an interview. The fact that the petitioner has made representation to regularise the post is not denied in the counter-affidavit. It is also claimed in the counter-affidavit that the request of the petitioner could not be considered in his favour since the Government of India had imposed a ban on recruitment, that the petitioner has no right to claim D.A. or increment on the payment as he is working only as a casual labourer and that no mandamus can be issued as the petitioner has no right to insist the respondents to regularise his services. The case of the respondents is that the petitioner is working only as a casual labourer and that it cannot be said that it is in violation of Articles 14 and 16 of the Constitution.

Mr. S. Kanniah, the learned Counsel appearing for the petitioner contends that the petitioner has been called for an interview on 2.1.1985, that he was appointed as casual labourer from 2.1.1985 and that his services have not been regularised so far. The learned Counsel further contends that the respondents cannot keep a person as a casual labourer for the past four years against the dicta of the Supreme Court as laid down-in a catena of decisions. The learned Counsel also contends that the monetary benefits have been denied to the petitioner herein as that of other employees of the respondents, since he has been treated as casual labourer ever since he was appointed on 2.1.1985.

Per contra, Mr. R. Shanmugham, the learned Counsel appearing for the respondents contends that since there has been a ban by the Government of India on recruitments, the petitioner could not be appointed in the permanent vacancy which was created due to the transfer of one Vasant Singh. The learned Counsel further contends that the petitioner is only a casual labourer and that the application submitted by the petitioner will show that he also admits that he is a casual labourer and that the petitioner is still working as a casual labourer.

I have carefully considered the arguments of Mr. S. Kanniah, the learned Counsel for the petitioner and of Mr. R. Shanmugam, the learned Counsel for the respondents. I am of the view that the petitioner has been called for an interview and has been asked to work in the vacancy created due to the transfer of one Vasant Singh, from Tuticorin to Madras. Unfortunately, the petitioner has not been gives the order of appointment. It is to be seen that the petitioner is working from 2.1.1985 as casual labourer with the respondents. The answer given by the learned Counsel for the respondents for such a state of affairs is that there is a ban by the Government of India for recruitment of new hands. Though a vague reference has been made in the counter-affidavit that there is a ban by the Government of India no material has been placed before this Court to substantiate that plea that the said ban still continues. Whether the said ban is still there or not, I am of the view, that the petitioner is entitled to get absorbed in the post for which he is taken in. As such, a direction is issued to the respondents to regularise the services of the petitioner right from 2.1.1985 in the post to which he was appointed and pay all its attendant benefits which are due to him. I take this view, because of the decisions of the Supreme Court which support the case of the petitioner, i.e., a person cannot be kept as a casual labourer for a long time. The other view of the Supreme Court in many cases is that a person who is working in a particular category is entitled to get all the benefits as that of other persons who are working in the same category. In such circumstances, the writ petition will stand allowed. However, there will be no order as to costs.