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Judgment
Rajnish Kumar Rai, Member J
Shri Sunil, counsel for the applicant and Shri Raghvendra Pratap Singh, counsel for the respondents are present and heard.
By the instant O.A. the applicant has prayed for following relief(s):
“(i) The Hon'ble Tribunal may graciously be pleased to command to the respondents to absorb/accord status of temporary employee to the applicant in the department as per Government Order dated 10.9.1993 and the pronouncement made by Hon’ble Tribunal from time to time.
(ii) The Hon'ble Tribunal to issue such other and further order or direction which this Hon’ble Tribunal may deem fit and proper in the nature and circumstances of the case.
(iii) The Hon’ble Tribunal may graciously be pleased to allow heavy cost in favour of the applicant.”
The facts of case, as per pleadings in O.A., are that the applicant was engaged as casual worker on 19.12.1992 in the Department of Custom & Excise Gorakhpur region at its Custom Preventive Division, Nautanwa, District Maharajganj as Farrash and since then he worked up to September, 1993. It is claimed by the applicant he had worked for 209 days continuously. Thereafter, with some artificial breaks were made in the engagement of applicant. However, since 1997 he has been engaged as Daily Wager on contract basis in the department and continued as such up to June, 2010. It is the submission of applicant that the Government of India issued an order dated 10.09.1993 whereby a decision has been made to accord temporary status to those employees who worked as casual labour/daily wager in the establishment of Government of India except Posts, Telegraph & Railway, completed one year of service up to 10.09.1993 or 206 days where the 05 days working are provided and has been working on the date the Government Order was issued. Some of the daily wager/casual labourers who were appointed along with the applicant, approached this Tribunal and this Tribunal by the judgment and order dated 12.1.2001 directed the respondent authorities to consider the claim of such applicants. In pursuance of the direction issued by this Tribunal dated 12.1.2001, the respondents have decided the claim and accorded temporary status to those employees. One another identically situated candidate namely Suman Mishra has also approached to this Tribunal through Original Application no. 1163/2006 'Smt. Suman Mishra Vs. Union of India and others' and this Tribunal has been pleased to direct the respondents to decide the claim of the applicant therein vide judgment and order dated 11.12.2009. The respondent department in pursuance to the judgment and order passed by this Hon'ble Tribunal dated 11.12.2009 decided the claim of Smt. Suman Mishra under order dated 4.8.2010 and accorded temporary status w.e.f. 1.8.2010. The applicant has been engaged initially as casual worker in the December 1992 and work upto September 1993 and thereafter he has been engaged on contract basis which is very well evident from the recommendation of Assistant Commissioner, Custom Preventive Division, Nautanwa dated 7.7.2005 and verifying the attendance of the applicant of June 2005, July 2005 and August 2005 under its letter dated 13.9.2005. Since the applicant is regularly approaching to the authority for according temporary status which is very well evident from the recommendation of the authority and the applicant is filing the application time to time to the department Aggrieved with the action on the part of respondents, the applicant has moved this O.A.
The applicant has also been filed a Delay Condonation Application stating therein that the aforesaid Original Application has been filed to absorb the applicant in service giving temporary status in pursuant to Government Order dated 10.9.1993 against which the applicant represented the matter before the authority according to Government Order issued by the department. After September 1993 the applicant has been engaged on contact basis and continued as such up to June 2010 between the time the applicant has been continuously requesting to absorb the applicant according temporary status in view of the Government Order dated 10.9.1993 and recommendation thereof was made by the authority as well. The applicant has not been given work since July 2010 nor has his claim for according the temporary status been decided. The applicant is uneducated person having education up to the standard of 8th class. He has been given only the assurance of the respondents’ authority that his claim is under consideration and will be taken in the department. When nothing was done by the authority the applicant talked about same with his good wishers who take the applicant in Civil Court at Gorakhpur and contacted with local counsel Mr. Ravi Shanker Pandey in month of November 2013 who advise to the applicant to meet Mr. Hari Pratap Gupta the learned counsel practicing at Allahabad High Court and Hon'ble Central Administrative Tribunal who can given better advise in respect of your grievances. The applicant approached to the learned counsel Mr. Hari Pratap Gupta in month of December 2013 after making arrangement of fare and other necessary expenses to reach at Allahabad. Learned counsel for the applicant Mr. Hari Pratap Gupta after perusing the papers whatsoever available with the applicant advised that some more papers are required as well the orders passed in favour of other identically situated person. The applicant returned to his home and collected papers and also started arrangement of necessary expenses. The delay in filing the O.A. is neither intentional nor deliberate.
The respondents have not filed any objection or taking any objection in the counter affidavit though several opportunities had been granted to them.
This Tribunal after giving several opportunities on 21.08.2024 mentioned in its Order that at the time of final hearing the delay and laches would be considered.
The counter affidavit has been filed by the respondents wherein they have submitted that As per the records available with this office (old records) Shri Shivpoojan did not render his services in this division during 19.12.1992 to Sept, 1993. Even, in the cash book of this division for the relevant period, no entry regarding disbursement of his wages/salary was found available. It is further submitted that the Customs (P) Division, Nautanwa, is a Central Government Office functioning 05 days a week. Hence, even the simple calculation of working days during 19.12.1992 to 10.9.1993 reveals that 206 working days cannot be completed during this period. The total number of days from 19.12.1992 to 10.9.1993 comes to 266 days out of which there were 76 Saturdays and Sundays and accordingly the remaining days comes to 190 only which includes other gazette holidays also. It is submitted that all the action taken by the respondents are in conformity with various rules and instructions issued in this regard. The applicant has utterly failed to come forth with any cogent ground for filing the present original application. Thus the grounds on which the claim of the applicant has been assailed are totally vague, misconceived and misleading. Hence, the respondents have prayed for dismissal of the O.A. being devoid of merits.
Counsel for the applicant has filed the rejoinder affidavit reiterating the facts, already stated in the O.A.
Heard the learned counsel for the parties and perused the pleadings available on record.
By way of instant O.A., the relief of the applicant is for absorbing in the respondents’ department as well as for grant of temporary status in pursuance to the Government Order dated 10.09.1993. The fact which is pleaded by the applicant’s counsel is that the applicant was initially engaged in the respondents’ department as a casual worker in the month of December, 1992 and worked up to September, 1993. The respondents have admitted the working of applicant at Customs P Division, Nautanwa and calculated the working of applicant as ‘206’ days. Therefore, they pleaded that the applicant is not entitled for the relief in pursuance to Government Order dated 10.09.1993. Subsequent pleading with regard to status of the applicant from September, 1993 to June, 2010, he was engaged on contract basis and in support of the same, the applicant has relied upon one communication letter dated 13.09.2005 (annexure A-7) issued by the Assistant Commissioner, Seema Shulk (Custom Duty), Nautanwa has not been disputed in the counter affidavit. The submission of applicant is that identically placed one Smt. Suman Mishra who has filed the O.A. before this Tribunal bearing O.A. No. 1163/2006 wherein this Tribunal vide Order dated 11/12/2009 has directed the respondents to consider the case of applicant for grant of temporary status. The respondents department on 04.08.2010 has granted temporary status to Smt. Suman Mishra at Gorakhpur Division with observation that she would not be entitled to any benefit of arrears or wages/pay or seniority vis-à-vis other casual/contingent workers so regularized from time to time. Counsel for the applicant submitted that when the applicant agitated this issue for similar benefits before the respondents’ authority, the respondents have removed him by oral order and thereafter, he has not been engaged. Counsel for the applicant further submitted that the action of respondents’ department is discriminatory regarding grant of benefits to one of the identically placed person and denying the same benefit to applicant. He further submitted that since the fact regarding engagement of applicant till 2010 has not been disputed and on the strength of his working, the applicant has completed more than 10 years of continuous service with the respondents’ department, he has placed reliance on the Judgment of Hon’ble Supreme Court in the case of “Jaggo v. Union of India and others, decided on 20.12.2024 Civil Appeal No. 5580 of 2024 2025 (1) ESC 127 [SC]”. The relevant portion of the Judgment is quoted below: -
“25. It is a disconcerting reality that temporary employees, particularly in government institutions, often face multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address short-term or seasonal needs, they have increasingly become a mechanism to evade long term obligations owed to employees. These practices manifest in several ways:
• Misuse of "temporary" Labels: Employees engaged for work that is essential, recurring and integral to the functioning of an institution are often labelled as “temporary” or “contractual”, even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, and benefits that regular employees are entitled to, despite performing identical tasks.
• Arbitrary Termination: Temporary employees are frequently dismissed without cause or notice, as seen in the present case. This practice undermines the principles of natural justice and subjects workers to a state of constant insecurity, regardless of the quality or duration of their service.
• Lack of Career Progression: Temporary employees often find themselves excluded from opportunities for skill development, promotions, or incremental pay raises. They remain stagnant in their roles, creating a systemic disparity between them and their regular counterparts, despite their contributions being equally significant.
• Using outsourcing as a shield: Institutions increasingly resort to outsourcing roles performed by temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment.
• Denial of Basic Rights and Benefits: Temporary employees are often denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack of social security subjects them and their families to undue hardship, especially in cases of illness, retirement, or unforeseen circumstances.
While the judgment in Uma Devi (supra) sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny legitimate claims of long-serving employees. This judgment aimed to distinguish between “illegal” and “irregular” appointments. It categorically held that employees in irregular appointments, who were engaged in duly sanctioned posts and had served continuously for more than ten years, should be considered for regularization as a one-time measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to indiscriminately reject the claims of employees, even in cases where their appointments are not illegal, but merely lack adherence to procedural formalities. Government departments often cite the judgment in Uma Devi (supra) to argue that no vested right to regularization exists for temporary employees, overlooking the judgment's explicit acknowledgment of cases where regularization is appropriate. This selective application distorts the judgment's spirit and purpose, effectively weaponizing it against employees who have rendered indispensable services over decades.”
Thereafter, the Hon’ble Supreme Court has quashed the orders of respondents’ department and directed for continuity of service without any pensionary benefits and backwages.
Considering that the applicant is also identically placed and worked continuously till 2010 and identically casual worker Smt. Suman Mishra had been granted temporary status, I am of the opinion that the case of applicant is squarely covered with the Judgment of Hon’ble Supreme Court with the case of Jaggo (supra) and entitled for the same benefits.
The applicant has also filed a Delay Condonation Application No. 1765/2014. Considering the objection of respondents regarding delay and laches in moving this O.A. as well as the fact which is apparent that the applicant has worked on contractual basis till June, 2010 and also the fact that in identical situation, the respondents have granted temporary status to one Smt. Suman Mishra and thereafter, the applicant has agitated the matter before the respondents’ authority. Hence, in all the aforesaid process, some time elapsed and thereafter, this O.A. was filed in the year 2014. Accordingly, I am of the opinion that as there is substantive merit in this case, I hereby allowed the delay condonation application No. 1765/2014 and also the delay, if any, in filing the O.A. is condoned.
In view of the above discussion, the O.A. is disposed of with direction upon the respondents’ department to consider the case of applicant for absorption and grant of temporary status in the light of his strength of working till 2010 keeping in mind the Judgment of Hon’ble Supreme Court in the case of Jaggo (supra) and pass a reasoned and speaking order within a period of three months from the date of receipt of a certified copy of this Order. All the pending MAs shall be deemed to have been disposed of. No order as to costs.