Shri Satya Ram Das & Ors. vs The Union Of India & Ors.

PER: RAJINDER SINGH DOGRA, MEMBER (J):

This O.A. has been filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:

Sri D.N. Sharma, learned counsel for the applicants, submits that the applicants were engaged as Part-time Rest House Attendant, Part-time Mailman, Part-time Farash-cum-Waterman, Part-time Safaiwala, etc., at different locations under the RMS Office, after following the prescribed procedure as required under Articles 14 and 16 of the Constitution. They were sponsored by the Employment Exchange and, thereafter, upon qualifying in the written/oral test, wherever applicable, were selected and duly appointed by issuance of appointment letters after verification of their antecedents. According to learned counsel, the applicants were neither contractual nor daily-wage workers, but were engaged as part-time casual employees against temporary vacancies from 1999 onwards and have continued at their respective places of initial posting till date without any break. It is further submitted that they were not engaged under the protection of any order of any Court or Tribunal as on the date of the judgment of the Hon’ble Supreme Court dated 10.04.2006. Some of the applicants were subsequently transferred to similar posts at other stations, but they have continued to work in the Department without any break. Learned counsel further submits that, with a view to preventing the applicants from becoming eligible for regularization, their duty hours have not officially been increased beyond seven hours, although, in practice, they are required to work for more than eight hours a day.

Learned counsel for the applicants submits that the Department of Posts, vide Memo dated 17.05.1989, had clarified that casual labourers engaged for a period of less than eight hours a day should be described as part-time casual labourers.

Learned counsel for the applicants further submits that the present O.A. constitutes the second round of litigation. Earlier, being aggrieved by the action of the respondents in not granting Temporary Status/full-time casual labourer status to them, the applicants had approached this Tribunal by filing O.A. No. 200/2023. The said O.A. was disposed of vide order dated 08.08.2023 with a direction to the respondents to consider and dispose of the representations of the applicants by passing a reasoned and speaking order. In compliance with the said order, respondent No. 3 passed the speaking order dated 09.10.2023, rejecting the claims of the applicants. Aggrieved by the said order, the applicants have filed the present O.A.

Learned counsel for the applicants submits that the applicants have been rendering continuous service for several years and that their claims cannot be rejected merely by describing their engagement as part-time or casual, without examining the nature of their initial engagement, the duties actually performed by them and the applicable departmental instructions. In support of his submissions, learned counsel has placed reliance upon the following judgments of the Hon’ble Supreme Court:

Learned counsel for the applicants has also referred to the DoPT O.M. dated 10.09.1993 and submits that, under the said Scheme, Temporary Status/full-time casual labourer status was contemplated for casual labourers who had completed 240 days of service in a year for three years or more. According to learned counsel, the applicants have rendered service for considerably longer periods and are, therefore, entitled to consideration for the benefits claimed by them.

Per contra, Sri R. Hazarika, learned Addl. CGSC appearing for the respondents, submits that the applicants were engaged as part-time casual labourers purely on a temporary basis, depending upon the requirement of work which could not be performed by regular departmental employees. According to learned counsel, therefore, the applicants cannot claim any right to regularization or conferment of permanent status merely on the basis of their long continuation.

Learned counsel for the respondents further relies upon paragraph 27 of the judgment of the Hon’ble Supreme Court in Secretary, State of Karnataka & Ors. v. Uma Devi (3) & Ors., (2006) 4 SCC 1, wherein the Hon’ble Supreme Court held that appointments made in contravention of the mandatory provisions of the applicable statute or statutory rules, or by ignoring the prescribed qualifications, would be illegal and could not be regularized. It was further held that regularization cannot be treated as an alternative mode of recruitment and that mere long continuation in service does not, by itself, confer a right to regularization.

Learned counsel for the respondents further submits that engagement of casual labourers in the Department of Posts was not permissible after 01.09.1993 and, therefore, there could be no question of increasing the officially prescribed duty hours of the applicants or treating them as full-time casual labourers. It is accordingly submitted that the claims made in the O.A. are devoid of merit and liable to be rejected.

We have heard the learned counsel for the parties and have carefully perused the pleadings, the documents placed on record and the judgments, instructions and other material relied upon by the respective parties.

From the material available on record, it is evident that the applicants have been engaged as part-time casual employees in the Department of Posts for considerable periods. However, their dates of initial engagement are not identical and the nature, terms and continuity of their engagement may also vary from applicant to applicant. The applicants rely upon their respective appointment/engagement orders to contend that they were duly selected and appointed, whereas the respondents dispute their engagement against sanctioned posts and maintain that their appointments were purely temporary in nature. The terms and conditions contained in the respective engagement orders have also been relied upon by the respondents.

At this stage, it is relevant to note that the Department of Posts Memorandum dated 17.05.1989 specifically recognises the category of part-time casual labourers. The said instructions are, therefore, relevant for determining the nature and status of the engagement of the applicants.

The said departmental instructions also contemplate the manner in which service rendered by part-time casual labourers is to be taken into account for specified departmental purposes. Thus, the claim of the applicants cannot be examined merely by reference to the nomenclature used in their engagement orders; the actual terms and nature of their engagement and the applicable departmental instructions also require consideration.

The applicants have also relied upon the Department of Posts Office Memorandum dated 22.01.2015 relating to remuneration payable to full-time and part-time casual labourers. The said Office Memorandum provides for payment of remuneration to part-time casual labourers on a pro-rata basis, having regard to the hours of duty performed, with reference to the minimum of the prescribed pay structure together with admissible Dearness Allowance. The applicability of the said instructions to each applicant would necessarily depend upon the facts and terms of his or her engagement.

As regards the reliance placed by the applicants on the DoPT O.M. dated 10.09.1993, we find that the Scheme itself contains a specific stipulation excluding casual workers in the Department of Posts, which had its own scheme/instructions in this regard. Therefore, the applicants' claim for Temporary Status cannot be determined solely on the basis of the DoPT O.M. dated 10.09.1993. Their entitlement has to be examined with reference to the instructions and schemes specifically applicable to the Department of Posts.

At the same time, the fact that the applicants have continued to work for the Department for a considerable length of time cannot be completely disregarded. The applicants have placed on record their respective engagement orders and other documents in support of their contention regarding their long association with the Department. The respondents, while disputing the existence of sanctioned posts and the nature of the applicants' engagement, have considered their claims in the speaking order dated 09.10.2023. In our considered view, therefore, the claims require examination with reference to the individual facts of each applicant and the departmental instructions applicable to the relevant category of engagement.

We are conscious of the law laid down by the Hon’ble Supreme Court in Uma Devi (supra) that regularization cannot be claimed as a matter of right merely on the basis of long continuation in service. At the same time, the subsequent judgment of the Hon’ble Supreme Court in Jaggo (supra) has considered the position of long-serving part-time/ad hoc workers performing essential and perennial functions and has cautioned against mechanically applying the principles of Uma Devi(supra) without examining whether the initial engagement was illegal or merely irregular and the nature of the work continuously performed by the employees.

The judgments relied upon by the applicants, including Jaggo (supra), Shripal (supra) and Dharam Singh (supra), therefore, cannot be construed as laying down an absolute proposition that every long-serving temporary or casual employee is automatically entitled to regularization. The entitlement of the applicants has to be examined in the light of the circumstances of their initial engagement, the nature of the duties performed, the continuity of service, the existence or otherwise of sanctioned posts and the applicable statutory rules and departmental instructions.

In the present case, we find that the applicants' claims for Temporary Status, regularization and other service benefits have not been examined by the respondents in sufficient detail with reference to the Department of Posts' instructions referred to above and the individual circumstances of each applicant. In particular, the claim of each applicant requires examination with reference to the actual period and nature of his or her engagement, the terms of the engagement order, the duties actually performed and the relevant departmental instructions.

In view of the above discussion, we deem it appropriate to remit the matter to the competent authority amongst the respondents for fresh consideration. Accordingly, the impugned speaking order dated 09.10.2023 is set aside. The respondents shall reconsider the claim of each applicant individually, with reference to his or her respective date of engagement, continuity of service, nature of duties, actual hours of duty, terms and conditions of engagement, and the applicable rules, instructions and schemes of the Department of Posts, including the instructions dated 17.05.1989 and 22.01.2015, to the extent applicable.

While undertaking the aforesaid exercise, the respondents shall also consider the applicants' claim for Temporary Status, regularization and other service benefits in the light of the applicable departmental rules and instructions and the law laid down by the Hon’ble Supreme Court, including Uma Devi (supra) and Jaggo (supra). The respondents shall also examine, in accordance with the applicable instructions, the claim of the applicants relating to remuneration and other admissible benefits. A reasoned and speaking order shall be passed in respect of each applicant, separately, within a period of three months from the date of receipt of a copy of this order.

It is made clear that we have not expressed any opinion on the ultimate entitlement of any individual applicant to Temporary Status, regularization or any other substantive service benefit. The competent authority shall take a decision independently and strictly in accordance with the applicable rules, departmental instructions and the law laid down by the Hon’ble Supreme Court.

With the above observations and directions, the O.A. stands disposed of. Pending M.A., if any, shall also stand disposed of. There shall be no order as to costs.