Rajendra Prasad & Ors. vs Union Of India & Ors.

By Hon’ble Mr. Justice Om Prakash VII, Member (Judicial) Shri A.D. Singh, learned counsel for the applicants and Shri M.K. Sharma, learned counsel for the respondents are present.

By means of this OA, the applicants have sought the following reliefs :

The brief facts of the case are that the applicants were initially appointed as Contingent Paid (CP) employees in the Postal Department between 1981 and 1996 and have continuously discharged their duties for about 27 to 35 years. Their case is that, pursuant to the judgments of the Hon’ble Supreme Court dated 27.10.1987 and 29.11.1989, casual labourers who had rendered continuous service were required to be given temporary status and, after completing three years of such service, were to be treated at par with temporary Group ‘D’ employees and extended the corresponding benefits. The respondents also issued an order dated 30.11.1992 implementing the said directions. Despite having completed the requisite period of service and making several representations for regularization, the applicants were not regularized. They earlier approached the Tribunal in OA No.350 of 2020, which was disposed of on 13.08.2020 directing the respondents to consider their representation; however, during the pendency of the contempt proceedings arising from non-compliance, the respondents rejected their claim vide impugned order dated 01.03.2021. The applicants contend that similarly situated employees, namely Amar Nath Vishwakarma and Devendra Singh, were granted provisional appointment with effect from 01.06.1997, and therefore denial of similar benefit to them is discriminatory and violative of Articles 14 and 16 of the Constitution. Hence, the applicants seek quashing of the impugned order dated 01.03.2021 and consequential benefits of regularization in accordance with law.

The respondents have refuted strongly the contention of the applicant by filing a detailed counter affidavit and have submitted that the applicants, working as Sweeper/Farrash/Waterman/Mali and other contingency-paid workers at Varanasi Cantt Head Post Office and Mahmoorganj Sub Post Office, were engaged as per need and workload without sanctioned posts and were paid wages proportionate to their working hours at the minimum of the applicable Group-D pay scale. They claim regularization/absorption under the scheme for casual labourers, including the 25% quota under the MTS Recruitment Rules, 2010. However, the representation of the applicants was rejected by a reasoned order dated 01.03.2021, pursuant to the directions in OA No.350/2020, and the contempt petition filed thereafter was also disposed of on 31.08.2021. The Respondents relied upon the judgment passed in the case of State of Karnataka & ors. Vs. M.L. Kesari – (2010) 9 SCC 247 dated 03.08.2010. The Hon’ble Supreme Court had clarified some aspects in the case of Secretary, State of Karnataka and Others Vs. Uma Devi – AIR 2006 SC 1806 judgment. These aspects brought out in the case of M.L. Keshari judgment are reproduced as under :-

It is submitted that regularization under Uma Devi (supra) judgment was only a one time exercise. It is further submitted that regularization cannot ordinarily be treated as a mode of recruitment or claimed merely on the basis of long service; however, where employees were irregularly appointed against sanctioned posts, possessed the requisite qualifications, and had completed the prescribed period of continuous service, the Government should consider their cases for one-time regularization in accordance with law. Since the present applicants were engaged without sanctioned posts and their absorption is subject to availability of vacancies and the prescribed selection-cum-seniority process, they cannot claim an automatic right to regularization merely on the basis of length of service.

I have heard the learned counsel for the parties.

The submission of learned counsel for the applicants is that the applicants were engaged on different dates as Contingent Paid (CP) casual labourers in the respondents' department. They were also granted temporary status as Group 'D' employees, but their services were not regularized. Although similarly situated casual labourers/Contingent Paid (CP) employees have been regularized and extended the benefit of family pension, the applicants were denied similar treatment. Learned counsel for the applicants argued that, during the pendency of the present OA, the services of Applicant No. 2, Mahendra Prasad, Applicant No. 6, Munna Lal, and Applicant No. 7, Lal Dhar Prasad, have been regularized. Thus, only the remaining applicants are yet to have their services regularized. It is also argued that, in the case of State of Karnataka v. Uma Devi (supra), the Hon'ble Supreme Court permitted, as a one-time measure, the regularization of the services of casual labourers who had completed 10 years of continuous service without any intervention of the courts. Therefore, the respondents ought to have regularized the services of the applicants in light of the directions given by the Hon'ble Supreme Court in Uma Devi (supra). The applicants made several representations in this regard, but the respondents did not regularize their services. It is further argued that the applicants had been continuously working until attaining the age of superannuation.

It is next argued that the issue regarding regularization was again considered by the Hon'ble Supreme Court in M.L. Kesari (supra) case, wherein directions were issued for consideration of regularization of the services of casual labourers who had been granted temporary status but could not be regularized due to inaction on the part of the respondents. Thus, in M.L. Kesari (supra), the Hon'ble Supreme Court extended the scope of consideration for regularization. To substantiate his argument, learned counsel for the applicants referred to the documents annexed with the OA and further argued that, as the services of Applicant Nos. 2, 6 and 7 have been regularized, the remaining applicants, being similarly situated, should also be granted the same treatment along with all consequential benefits.

Learned counsel for the respondents argued that the direction given by the Hon'ble Supreme Court in Uma Devi (supra) was only a one-time measure for regularizing the services of those casual labourers whose engagement was irregular and not illegal. It was further argued that the applicants had been engaged on a temporary basis due to the exigency of work and had not been engaged against sanctioned posts. Therefore, they could not claim the benefit of the law laid down in M.L. Kesari (supra) case. Learned counsel for the respondents also referred to the documents annexed with the counter affidavit and prayed that the OA be dismissed.

I have considered the rival submissions and have gone through the entire record.

As submitted by learned counsel for the applicants, the services of Applicant No. 2, Mahendra Prasad, Applicant No. 6, Munna Lal, and Applicant No. 7, Lal Dhar Prasad, have been regularized by the respondents during the pendency of the present OA. This fact has not been refuted by learned counsel for the respondents. If such is the position, the prayer that remains to be considered is with respect to Applicant No. 1, Rajendra Prasad, who was engaged as a C.P. Sweeper at Mahmoorganj Post Office on 12.08.1985 and whose services were confirmed as full-time on 01.03.1994. Similarly, the services of Applicant No. 3, Raju Prasad, were also confirmed as full-time on 01.03.1994. A chart reflecting the dates of engagement as well as the dates of confirmation as full-time employees has been annexed as Annexure-2, which is reproduced below:-

If the chart given in Annexure-2 and reproduced hereinabove is taken into consideration, all the casual labourers shown in the list were granted the status of full-time casual labourers up to 01.01.1996. Rule 154(a) of Manual of Appointment and Allowances of Officers of the Indian Posts and Telegraphs Department provides that: "selected categories of whole-time contingency-paid staff, such as Sweepers, Bhisties, Chowkidars, Chobdars, Mails or Gardeners, Khalassis and such other categories as are expected to work side by side with regular employees or with employees in work-charged establishments, should, for the present, be brought on to the regular establishment of which they form adjuncts and should be treated as 'regular employees'."

In view of the provisions of Rule 154(a) quoted hereinabove, once the applicants had been granted temporary status and confirmed as full-time labourers, they would have been extended the benefits of salary, DA and other benefits applicable to paid employees, including GPF, etc. Since the respondents themselves regularized the services of Applicant No. 2, Mahendra Prasad, Applicant No. 6, Munna Lal, and Applicant No. 7, Lal Dhar Prasad, during the pendency of the present OA, thus, upon comparing the facts disclosed in the OA regarding the engagement and confirmation of the other applicants, I am of the view that Applicant No. 1, Rajendra Prasad, Applicant No. 3, Raju Prasad, Applicant No. 4, Kiran Devi, Applicant No. 5, Shiv Sagar Gupta, and Applicant No. 8, Rajendra Kumar Singh, are also entitled to similar treatment.

The respondents' discriminatory treatment in regard to the aforesaid applicants is violative of Articles 14 and 16 of the Constitution of India. Denial of pensionary benefit to these applicants on the ground that their services have not been regularized is discriminatory and violative of aforesaid provision. The respondents can be directed to extend all the benefits that were extended to the similarly situated temporary-status C.P. employees to the aforesaid applicants also. Accordingly, the services of the aforesaid five applicants, which have not yet been regularized, shall be deemed to have been regularized as held by the Hon'ble Supreme Court in Uma Devi (supra) and M.L. Kesari (supra) cases.

Thus, the OA is liable to be allowed and is accordingly allowed. The impugned order dated 01.03.2021 passed in the matter against the applicants is hereby set aside. The respondents are also directed to pass necessary orders in terms of the observations made hereinabove and extend all post-retiral benefits including the pension to the applicant No.1- Rajendra Prasad, Applicant No. 3- Raju Prasad, Applicant No. 4 - Kiran Devi, Applicant No. 5 - Shiv Sagar Gupta, and Applicant No. 8 - Rajendra Kumar Singh. This exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order. Failing which simple interest at the rate of 6% per annum will be attracted. No order as to costs.

All associated MAs also stand disposed of.