Salim Umar Kureshi vs The Secretary & Ors.

That the applicant joined the services of the respondents w.e.f. 01.11.1981 as Casual Labourer under SDE (DEC) Microwave at Gandhidham.

By considering the continued service of the applicant and in terms of the policy in vogue and, he was granted Temporary Status Mazdoor (TSM) w.e.f. 01.10.1989 by the respondents.

It is submitted that the applicant was due and entitled to be regularized as Regular Mazdoor w.e.f. 01.04.1996 as per the DoT instructions dated 12.02.1999 as also by treating him equally since similarly placed employees were also regularized from 1996. However, the applicant was not regularized because a Criminal Case was filed and pending against him under Prevention of Corruption Act, 1988.

Further, it is submitted that during the pendency of the trial of the said criminal case, the applicant was allowed to continue his duties as Temporary Status Mazdoor by the respondents. Thereafter, on conclusion of the said pending Criminal Case, the learned Criminal Court acquitted the applicant vide judgment dated 30.10.2007.

On acquittal in the Criminal Case, the applicant submitted various representations to the respondents requesting that as per the policy in vogue he is eligible to be considered for Regular Mazdoor.

It is submitted that the applicant’s case for regularization was processed by the respondents and various reminders were also issued by the local office as well as by the O/o CGM, Mumbai to the Corporate Office of BSNL. In this regard, learned counsel for the applicant vehemently relied upon the Letter No. EST-76/TSM/CORR/2012-13/69 dated 10.01.2013 (Annexure A/2) issued by the O/o CGM Mumbai, BSNL addressed to the AGM (Pers.IV), BSNL, New Delhi whereby it was conveyed that the case of regularization w.e.f. 01.04.1996 of the applicant herein i.e. S.U. Qureshi from Temporary Status Mazdoor (TSM) to Regular Mazdoor (RM) is still pending at BSNL CO New Delhi and requested to give approval for his regularization.

Further, it was also mentioned in the said letter that the regularization of the applicant was pending due to a court case against him, but now, as per court judgment dated 30.10.2007, the applicant has been acquitted by the Hon’ble Special Judge by giving benefit of doubt and as such he has submitted his application dated 20.11.2012 for regular appointment in the cadre of Regular Mazdoor and the same may be considered.

By referring the aforesaid letter, counsel for the applicant submits that undisputedly, the applicant was due for regularization w.e.f. 01.04.1996 in Regular Mazdoor Cadre. However, the respondents have not considered the claim of the applicant till date and the respondents by treating him as Temporary Status Mazdoor TSM keep paying him remuneration only.

Learned counsel for the applicant by referring the application dated 17.02.2018 submitted that before three years of his retirement requested the respondents to regularize his services as a regular employee, however, the same remained unanswered and subsequently, the applicant on attaining the age of superannuation was ordered to be retired from service vide communication dated 31.08.2022.

Further, it was submitted that the respondents had regularized the service of the similarly placed TSM one Shri. Rampravesh G. Bhagat vide order dated 31.05.2005 (Annexure A/6). However, the applicant has been treated differently and discriminated by the respondents and his legitimate right for regularization has been snatched away by the respondent. Hence, this OA.

That a criminal case concerning allegations of corruption/bribery was pending against the applicant during the relevant period. Consequently, his case could not have been considered for regularization while the criminal proceedings were pending. It is a fact that though the applicant was acquitted by judgment dated 30.10.2007, however, it is also required to be noted that acquittal of the applicant was on the benefit of doubt and was not an honourable acquittal. Therefore, the acquittal did not automatically confer any right upon the applicant to seek regularization retrospectively. Moreover, in view of the nature of the allegations and the manner of acquittal, the applicant’s criminal antecedents disentitled him from claiming appointment/regularization in Government service as a matter of public policy.

Further, it was submitted that the BSNL was formed w.e.f. 01.10.2000. Prior to its formation, all employees who were working with the erstwhile Department of Telecommunication (DoT) were transferred en-bloc to the newly formed BSNL on deemed deputation except casual labours. Regular employees of DoT had to either opt for DoT or BSNL. Who opted for BSNL were absorbed in BSNL vide Presidential order. So far casual labors were concerned, as, they were not regular employees of DoT, for them there was no question of submitting such option. However, on need basis they continued to work with BSNL. On and from formation of BSNL, it has undertaken work through contractors at its own & had not engaged causal labours except those who were en-bloc transferred from erstwhile DoT on and from 01.10.2000.

Further, she submits that as per the settled law, till casual labours engaged by the DoT are regularized by DoT, the BSNL has no role to play and as such, present OA is not maintainable against BSNL.

It is submitted that the case of the applicant is highly time barred as the Scheme running in DoT before 30.09.2000 for regularization/appointment could not be enforced anymore. It is also not possible to enforce the scheme dated 29.09.2000 at this stage for any individual as all such schemes were one time in nature and delay and latches are apparently involved in the matter. This has made the alleged claim of the applicant stale and dead.

Further, she argued that even if the applicant’s case had been forwarded, it was not recommended for regularization by BSNL Corporate Office. Mere forwarding of a case cannot be treated as acceptance of the applicant’s entitlement to regularization.

In sum learned counsel for the respondents submitted that the applicant has no enforceable right to retrospective regularization because his original engagement was as a casual labourer under DoT, his case was never recommended for regularization, the relevant scheme was a one-time scheme and is no longer operative, he was facing criminal proceedings during the relevant period, he was never absorbed/regularized in BSNL, and consequently he cannot claim pensionary or other retiral benefits from BSNL.

That the recommendation forwarded by the Office of CGM, Mumbai BSNL for regularization of the applicant’s service in Regular Mazdoor Cadre (RM) has neither been considered by the Corporate Office BSNL nor has any order in this regard been supplied to the applicant. The fact of recommendation Office of CGM, Mumbai BSNL for regularization of the service of the applicant herein is not denied by the respondents. On the contrary, the continued service of the applicant as TSM has been admitted by the respondents. The respondents have not considered the claim of the applicant for regularization of service as Regular Mazdoor in spite of his repeated request after his repeated representation/reminder and deprived his legitimate right for regularization and grant of consequential benefits in his favour. It is submitted that till his retirement the applicant was allowed to continue to work as TSM that too without there being any initiation of departmental inquiry against him. Thus, there is no departmental proceedings whatsoever is pending against him and in absence of any order denying or withholding the legitimate right of the applicant for regularization; the respondents ought not to have deprived the applicant for the benefit of grant of Regular Mazdoor Status and the consequential benefits.

It is not in dispute that he was entitled to be regularized as Regular Mazdoor w.e.f. 01.04.1996 in terms of the DoT letter dated 12.02.1999. It is also not in dispute that employees who were similarly placed and working with the applicant as TSM were regularized from 1996. However, the case of the applicant was singled out for regularization only on the ground of a Criminal Complaint/disciplinary proceedings was pending against him and was allowed to continue to work as TSM.

As noted herein above, the Learned Criminal Court acquitted the applicant vide judgment dated 30.10.2007 by granting benefit of doubt.

Nonetheless, it is not in dispute that the respondents have allowed the applicant to continue with TSM status and without there being any departmental inquiry or proceedings against him till he attained the age of superannuation on 31.08.2022.

Further, it is not in dispute that even after the acquittal of the applicant in the pending criminal case vide judgment dated 30.10.2007, as noted herein above, the office of CGM, Mumbai BSNL repeatedly recommended the case of the applicant to the Headquarter BSNL New Delhi for his regularization at the relevant time.

It is admitted fact that representation/claim of the applicant for regularization of his service and grant of Status of Regular Mazdoor and consequential benefits of the service of the applicant was not considered by the respondents.