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Judgment
M. Venugopal, J.
W.P. No. 16733 of 2009:
The Writ Petitioners/Respondents have preferred the present Writ Petition as against the order dated 16.07.2008 in O.A. No. 406 of 2006
passed by the 2nd Respondent/Central Administrative Tribunal, Chennai.
W.P. No. 16889 of 2009:
The Writ Petitioners/Respondents have projected the present Writ Petition as against the order dated 16.07.2008 in O.A. No. 824 of 2007
passed by the 20th Respondent/Central Administrative Tribunal, Chennai.
The 2nd Respondent/Central Administrative Tribunal (20th Respondent in W.P. No. 16889 of 2009), while passing the orders in O.A. No.
406 of 2006 and O.A. No. 824 of 2007, has, among other things, observed that ''O.A. No. 764/2005, O.A. No. 784/2005, O.A. No.
785/2005, O.A. No. 811/2005 and O.A. No. 482/2006 filed by the respective applicants seeking regularisation were dismissed and further
opined that since the applicants in O.A. No. 482/2006 filed W.P. No. 18969 of 2006 before this Court and if the applicants in the Writ Petition
were to succeed, then, the present applicants in O.A. No. 406 of 2006 and O.A. No. 824 of 2007 also would be entitled for the consequential
benefits and disposed of the said two Original Applications with an opinion that whatever order passed in W.P. No. 18969 of 2006 shall follow in
these two O As and that the interim relief granted in the aforesaid Writ Petition is also applicable to the applicants also.''
W.P. No. 11492 of 2006:
The Writ Petitioners/Applicants have filed the present Writ Petition as against the order dated 24.02.2006 in O.A. No. 48 of 2006 passed by
the 9th Respondent/Central Administrative Tribunal, Chennai.
The 9th Respondent/Central Administrative Tribunal, while passing orders in O.A. No. 48 of 2006, has, inter alia, observed that ''In 2005 (2)
ALSLJ 396 Suriya Begum v. Union of India and others, the Guwahati Bench held that the termination of casual labourers with stigmatic order
violate principles of natural justice. The said case related to termination of service of a part time Safaiwala and according to the Tribunal, the
stigmatic termination order will come in the way of applicant in seeking any further appointment. The said order is liable to be set aside and the
representation for regularisation of service was directed to be disposed of. In Raju alias Manoj P./Selat v. Union of India and others, a judgment of
the Central Administrative Tribunal, Ahmedabad Bench held that the applicant shall be given temporary status as per the scheme and regularisation
as per his turn. The case of the applicant is that he had satisfied the conditions for regularisation of the scheme for the year 1993. According to the
Tribunal, the applicant fulfilled two conditions laid down in para 4.1 of the said scheme and hence directed the Respondents to confer the
temporary status. These judgments in our view in no way support the case of the applicants'' and resultantly, held that ''no case has been made out
to grant the reliefs to the applicants and accordingly, dismissed the Original Application.''
W.P. No. 18969 of 2006:
The Writ Petitioners/Applicants have filed the present Writ Petition in calling for the records from the file of the 3rd Respondent in Proceedings
No. F. No. A-12034/1/2005 AD III B dated 2.5.2005 and that of the 7th Respondent in M.A. No. 173 of 2006 in O.A. No. 428 of 2006 dated
05.06.2006 and to quash the same as illegal, incompetent, irregular, Unconstitutional and without jurisdiction. Further, the Petitioners have sought
for issuance of a direction to the 4th Respondent in granting temporary status to them.
The 7th Respondent/Central Administrative Tribunal has passed orders in M.A. No. 173 of 2006 in O.A. No. 428 of 2006 on 05.06.2006
allowing the Application filed by the nine persons (Writ Petitioners) for joining together to pursue the reliefs they have prayed for in O.A. No. 428
of 2006. But dismissed the O.A. No. 428 of 2006 at the stage of admission relying on the ratio settled on the Constitution Bench decision in the
case of Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College ((1962) Supp. 2. SCR 144) wherein it is held that ''the issue of
writ of mandamus was of dependent on the aggrieved party pointing out the legal duty of an authority to grant the relief and his legal right under the
Statute or rule etc.''
Factual Matrix in W.P. No. 16733 of 2009:
The Learned Counsel for the Petitioners submits that the 1st Respondent/Applicant was appointed as a casual labourer, by means of an order
dated 03.12.1984, issued by the Assistant Collector of Central Excise, Customs Division, Nagapattinam and posted to Customs Preventive Party,
Thanjavur on monthly wages and that she worked continuously in Petitioners'' Department from 03.12.1984 onwards, without any break.
It is the plea of the Writ Petitioners that the Government of India, by means of an Official Memorandum dated 10.09.93, formulated a scheme
for the grant of temporary status to casual labourers working in Government Departments and that the 3rd Petitioner/3rd Respondent issued
orders dated 03.02.1994 and granted temporary status to her from the date of official memorandum dated 10.09.1993. Also, along with the 1st
Respondent/Applicant, 15 others were also given the temporary status. The 1st Respondent/ Applicant specified the condition prescribed in the
order dated 07.06.1988 issued by the Department of Personnel and Training and that the order granting temporary status to her on 03.02.1994 is
still in force. Further, she represented periodically for her regularisation of service. On 03.01.2005, the 2nd Petitioner/Commissioner of Central
Excise issued a notice to the 1st Respondent/Applicant stating that grant of temporary status is not in order and directed her to furnish her
explanation. She submitted her representation praying to regularise her service in the Department. In similar circumstances, some of the casual
labourers filed O.A. No. 23 of 1999 and O.A. No. 129 of 1999 before the 2nd Respondent/Central Administrative Tribunal, Chennai for
regularisation of their services. As per the orders of the 2nd Respondent/Central Administrative Tribunal, 13 casual labourers were regularised.
The 1st Respondent/Applicant filed O.A. No. 1470 of 2000 along with others seeking regularisation and by an order dated 13.12.2000, the 2nd
Respondent/Tribunal passed an order directing the Respondents therein to pass an appropriate order on the regularisation of the services. But the
Respondents therein, instead of passing orders on merits, filed W.P. No. 14326 of 2001 and obtained an order of interim stay and the said Writ
Petition was withdrawn by the Respondents on 03.11.2004. The 2nd Petitioner/Commissioner of Central Excise, with a view to comply with the
orders of the Central Administrative Tribunal in O.A. No. 1470 of 2007, issued notice dated 03.01.2005 and stated that the 1st Respondent was
not eligible to obtain the temporary status; that she was not recruited through District Employment Exchange and that the part time employees were
not entitled to temporary status.
The stand of the Petitioners, in their common reply statement before the 2nd Respondent/Central Administrative Tribunal, inter alia, is to the
effect that the 1st Respondent/Applicant was engaged as a casual labourer to do part time work on 01.12.1984 and that she was not engaged
against any regular sanctioned post and engaged only to do part time work. Moreover, she was also not engaged through Employment Exchange
and no assurance was ever given to her for regularisation. Added further, there was no provision as per the guidelines and instructions issued by
the Government from time to time to regularise or even to confer temporary status as the 1st Respondent/Applicant as a part time casual labourer
and not the full time casual labourer. As a matter of fact, only the full time casual labourers, who worked for 240 or 206 days (in 5 days week) as
on 10.09.1993, as per Department of Personnel and Training Official Memorandum dated 10.09.1993, were granted temporary status. The
temporary status initially given to the 1st Respondent/Applicant was subsequently withdrawn on receipt of instructions from the Central Board of
Excise and Customs dated 20.01.1994 wherein it was clarified that the provisions of the Department of Personnel and Training Official
Memorandum dated 10.09.1993 are not applicable to the part time casual labourers.
It is the case of the Petitioners that when 10.09.1993 scheme came into force, the 1st Respondent/Applicant was working on part time basis
and subsequent to Board''s clarification dated 20.01.1994, part time casual labourers were not eligible for the conferment of temporary status. The
Board''s letter dated 09.03.1995 paves way for granting temporary status to casual labourers who were recruited prior to 07.06.1988 and
continued till 08.04.1991 but could not be regularised by them. These instructions could not be applied to the case of 1st Respondent/Applicant
because she was engaged on part time basis during the relevant period. There was no scope or provision in any of the instructions for the part time
casual labourer to become eligible either for regularisation or for conferment of temporary status and in the meanwhile, the Central Board of Excise
and Customs issued instructions dated 07.01.98 and it was instructed that in the case of Passport Officer, Trivandram V. Venugopal, the Hon''ble
Supreme Court had upheld the decision not to grant temporary status for casual labourers on the ground that they were not sponsored by the
Employment Exchange. The 1st Respondent/ Applicant was not granted the temporary status in view of the aforesaid decision of the Hon''ble
Supreme Court also.
The Learned Counsel for the Petitioners contends that in the decision of Hob''ble Supreme Court in Union of India (UOI) and Another Vs.
Mohan Pal, etc. etc., , the Hon''ble Supreme Court held that the scheme of 01.09.1993 is not an ongoing scheme and the scheme is only on
fulfilling the conditions incorporated in clause-4 of the scheme. As such, the 1st Respondent/Applicant had no legal right to claim temporary status.
The Learned Counsel for the Petitioners urges before this Court that there is vast difference between Full time casual labourer and part time
casual labourer and since the 1st Respondent/Applicant is a part time casual labourer, she is not entitled to get the temporary status.
The Learned Counsel for the Petitioners submits that the 13 full time casual labourers, who were engaged after 10.09.1993 in the 2nd
Petitioner''s Commissionerate, were granted temporary status in pursuance of the directions of the Tribunal. The Hon''ble Supreme Court''s
judgment in Civil Appeal No. 2224 of 2000 was not available at the material point of time. As such, the temporary status casual workers survive
because of the orders of the Hon''ble Supreme Court referred to above. The order confirming temporary status to those 13 casual labourers
neither is a precedent nor binding on the Petitioners.
The Learned Counsel for the Petitioners strenuously contends that the temporary status scheme was introduced as early as in the year 1989 in
the Postal Department but the said scheme was introduced in Central Board of Excise and Customs only during September 1993. Indeed, Clause
3 of the ""Casual Labourers (Grant of Temporary Status and Regularisation) Scheme 10.09.1993 introduced by the Department of Personnel and
Training makes it clear that this Scheme is applicable to casual labourers in employment of the Ministries of Government of India and their attached
and subordinate office, on the date of issue of these orders. It shall not apply to casual workers in Railways, Department of Telecommunication
and Department of Posts who have their own schemes already. Therefore, the instructions mentioned by the 1st Respondent/Applicant in O.A.
No. 406 of 2006 cannot be applied in her case. The Department is bound by the instructions in F. No. A-12304/52/93/-Ad.IIIB dated
20.01.1994 of the Central Board of Excise and Customs.
Another submission of the Learned Counsel for the Petitioners is that the 1st Respondent/Applicant was working from 03.11.1984 and she
was only doing part time work. Therefore, the Department, in view of the instructions dated 20.01.1994, had rejected the claim of the 1st
Respondent/Applicant and also 5 other casual labourers'' requests. Non recruitment through Employment Exchange is another reason offered by
the 2nd Petitioner in his order dated 26.02.2005 for rejecting the request of the 1st Respondent/Applicant.
The Learned Counsel for the Petitioners cites the decision of the Hon''ble Supreme Court in Madhyamik Siksha Parishad, U.P. Vs. Anil
Kumar Mishra and others etc., wherein it is held that ''regularisation or absorption of a person cannot be made when there is no sanctioned post in
existence and the completion of 240 days of work does not import the right for regularisation.'' The Central Board of Excise and Customs, as per
letter F. No. 12034/1/2005 Ad. III B dated 2/5/2005 reiterated that engagement of persons on daily wages stands banned and the essential work
for which no regular posts have been created/sanctioned may be out sourced through service providers/contractors. The Department could not
allow the 1st Respondent/Applicant to work as part time casual labourer on daily wages continuously in violation of the policy of the Government,
in the absence of any fresh policy being formulated.
The Learned Counsel for the Petitioners relies on the decision of the Hon''ble Supreme Court in Secretary, State of Karnataka V. Umadevi
and others in Civil Appeal Nos. 3595-3612 of 1999 (with C.A. Nos. 1861-2063/2001, 3489/2001, 3520-3254/2002 and 1968 of 2006) (2006
SCC. Com 243), wherein in paragraph 43 the Hon''ble Supreme Court has observed as follows:
Merely because, an employee had continued under cover of an order of Court, which we have described an ''litigious employment'' in the earlier
part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court
may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be
possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his
employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required.
The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its
instrumentalities or lend themselves the instruments to facilitate the bypassing of the Constitutional and Statutory mandates.
Furthermore, in the aforesaid decision, at paragraph 44, it is held that ''it would not be just or proper to pass an order in exercise of jurisdiction
under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution of India permitting those persons
engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to
law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an
illegality.''
The Learned Counsel for the Petitioners invites the attention of this Court to the observation of the Hon''ble Supreme Court in the decision
Secretary, State of Karnataka V. Umadevi and Ors. (cited supra) wherein the Hon''ble Supreme Court has held categorically as under:
Adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our
Constitution, a Court would certainly be disable from passing an order upholding a violation of Article 14 or in ordering the overlooking of the
need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the Scheme for public
employment, this Court while laying down the law, has necessarily to hold unless the appointment is in terms of the relevant rules and after a proper
competition among qualified persons, the same would not confer any right on the appointee.
The 1st Respondent/Applicant in O.A. No. 406 of 2006 has averred that she was appointed as casual labourer, by an order dated
03.12.1984 issued by the 3rd Petitioner/Assistant Collector of Central Excise, Customs Division, Nagapattinam and posted to Customs Division
of Thanjavur on monthly wages. She was continuously working in the Petitioners'' Department with effect from 03.12.1984 without any break.
Further, she has stated that the Government of India by the Official Memorandum No. 51016/2/90-Estt(C), dated 10.09.93 formulated a scheme
for the grant of temporary status to casual labours working in Government Departments. The said Official Memorandum envisages the grant of
temporary status to the casual employees who were personally employed and had rendered one year of continuous service in Central Government
office, other than the Department of Tele Communications, Postal and Railways may be regulated by the scheme. Accordingly, the 3rd
Petitioner/3rd Respondent issued orders in C. No. II/39/22/93-Estt, dated 02.02.1994 granting temporary status to the 1st Respondent/Applicant
from the date of Official Memorandum viz., 01.09.1993. Along with the 1st Respondent/Applicant, 15 others were also given the temporary
status.
Condition No. 2 of the aforesaid orders dated 03.02.1994 states that ''Conferment of temporary status on the casual labours would not
involve any change in duties and responsibility. Moreover, the engagement would be on daily wages of pay on need basis. They may be deployed
anywhere within recruitment unit on the basis of availability of work.'' 17. The case of the 1st Respondent/Applicant is that she has fulfilled the
conditions prescribed in Order No. 49014/2/86 dated 07.06.1988 issued by the Ministry of Personnel and Public Grievances, Government of
India, New Delhi and the clarificatory instructions issued thereon by a letter No. 49014/4/90-Estt(C), dated 08.04.1991 and the order granting
temporary status to the applicant on 03.02.1994 is still in force.
The 1st Respondent/Applicant had periodically represented to the Petitioners for regularisation of her services. The 3rd Petitioner/3rd
Respondent took up her grievances for regularisation by engaging her on daily wages on part time basis from 24.05.2005 onwards. On
03.01.2005 the 2nd Petitioner/Commissioner of Central Excise issued a notice to the 1st Respondent/Applicant stating that her grant of temporary
status itself was not in order and required the applicant to submit her explanation. She made frequent representations for regularisation of services
in the Department as was done to other employees, who were similarly placed with temporary status.
The 2nd Petitioner/2nd Respondent, in the notice dated 03.01.2005, had stated that the 1st Respondent/Applicant was not eligible for the
grant of temporary status because of two reasons: (i) The 1st Respondent/Applicant was not recruited through the District Employment Exchange;
(ii)The part time employees were not entitled to temporary status. The 1st Petitioner/1st Respondent as early as on 24.09.1999 clarified that casual
labourers who were recruited prior to 07.06.1988 and were in service as on 08.04.1991 are entitled to regularisation even though not employed
through Employment Exchange and the temporary status could be given if such workers were not regularised for want of vacancies etc. Therefore,
the plea of the 2nd Petitioner/2nd Respondent in his letter dated 03.01.2005 that the 1st Respondent/Applicant was not recruited through
Employment Exchange was not a valid one.
The Petitioners/Respondents treated the 1st Respondent/ Applicant and granted the temporary status as early as on 03.02.1994 when she
sought for regularisation of her services. Inasmuch as the 1st Respondent/Applicant has already been granted temporary status as early as on
03.02.1994, with effect from 01.09.1993, there is no need to grant temporary status to her again. The said temporary status was not withdrawn till
date. The 2nd Petitioner/2nd Respondent has wrongly relied on the decision rendered by the Hon''ble Supreme Court in Passport Officer V.
Venugopal and others and the said decision rendered in C.A. No. 3363/97 was subsequent to the grant of temporary status to her. The said
decision could not have any retrospective effect.
The 2nd Petitioner/2nd Respondent passed an order on 26.01.2005 stating that the 1st Respondent/Applicant was not eligible for grant of
temporary status and rejected her representation. Subsequently, the 1st Respondent/Applicant submitted a representation to the Chief
Commissioner of Central Excise, on 28.12.2005 pointing out her grievances, but the 2nd Petitioner/2nd Respondent on 30.01.2006 wrongly
returned her representation mentioning that it was not an appealable order and further has given her opportunity to approach the Tribunal, if she so
desires.
The Petitioners/Respondents, in the common reply, had stated that the 1st Respondent/Applicant was engaged as Casual Labourer to do part
time work on 01.12.1984 and she continued to work till today and during the initial period, she was engaged to do work on a part time basis, like
four hours per day. Later, she was called upon to do the work on a full time basis depending upon the requirements of work and subsequently,
reverted back to do work on a part time basis. The plea of the Petitioners/Respondents is that the 1st Respondent/Applicant was not appointed
through Employment Exchange and moreover, she was not engaged against any regular sanctioned post and they were engaged only to do part
time work. The 1st Respondent/Applicant was engaged to do part time work like fetching water, cleaning office premises, cleaning toilets etc.
There was no provision as per the guidelines and instructions issued by the Government from time to time to regularise the part time employees
or even to confer them with temporary status. The 1st Respondent/Applicant (part time casual labourer) and other full time casual workers who
had completed 240 days / 206 days as on 10.09.1993 (the date on which the DOP & T''s and O.M. No. 51016/2/ 90-Estt.(C) dated
10.09.1993 Communicated vide Board''s F. No. A-12034/52/93.AD-III-B dated 11.10.1993) were initially granted the temporary status. On
receipt of instructions from the Board, in F. No. A-12034/52/93.AD-III-B dated 20.01.1994, wherein it was clarified that the provisions of DoP
& T''s dated 10.09.1993 are not applicable to part time casual workers and as such, the Temporary Status granted to the 1st
Respondent/Applicant was withdrawn.
Under Board''s communication F. No. A-12034/72/94.AD-III-B dated 09.03.1995, it was informed that casual employees, otherwise
covered as per the terms of DoP & T''s O.M. No. 49014/4/90-Estt.(C) dated 08.04.1991 (communicated vide Board''s letter No. A.12034/152/
88-AD-III B dated 15.04.1991) might be allowed the benefit of temporary status. The 1st Respondent/Applicant was engaged as Casual Worker
prior to 07.06.1988 and continued to be engaged as on 08.04.1991 but on part time basis. She could not be regularised in the light of aforesaid
clarifications of DOP & T at that point of time because of the reasons that she was over aged and does not possess the required educational
qualification/physical standard for group D posts to accommodate her. As per letter in C. No. II/39/22/93-Estt. dated 03.02.1994 the 1st
Respondent/Applicant and 15 others were granted the temporary status. However, as per order issued in C. No. II/39/22/93-Estt. dated
09.02.1994, the earlier order dated 03.02.1994 was modified and it was stated that 8 persons, mentioned therein, were granted Temporary
Status while rest of the part time casual labourers ordered in this Office order of even dated 03.04.1995 were deleted.
The 1st Respondent/Applicant was working on a part time basis when the 10.09.1993 Scheme came into force and since there was no
mention of part time casual labourers in the said Scheme, the 1st Respondent/Applicant was granted Temporary Status initially. On receipt of
Board''s clarification dated 20.01.1994, in and by which part time labourers were not eligible for conferring temporary status, the status granted to
the 1st Respondent was withdrawn. In the meanwhile, the Board''s communication F. No. A-12034/8/97.AD-III-B dated 07.01.1998 received
the attention of the Department and in response to clarification sought for in the matter of sponsorship by the Employment Exchange, it was
instructed that the Review Application filed was not decided by the Hon''ble Supreme Court and it was pointed out that in the decision of Passport
Officer, Trivandrum V. Venugopal C., the Supreme Court had upheld the decision not to grant temporary status to Casual workers on the ground
that they were not sponsored by the Employment Exchange. The 1st Respondent/Applicant was not granted the temporary status keeping in view
the said decision of the Hon''ble Supreme Court. The 1st Respondent/Applicant had no legal right to claim temporary status.
In respect of certain other casual labourers P. Karnkatchi, K. Sathya and V. Lakshmi, the Tribunal, in its order dated 15.12.2000 and in
respect of the 1st Respondent/Applicant, by means of an order dated 13.12.2000, in O.A. No. 1470 of 2000 dated 13.12.2000, issued
directions to the Petitioners/Respondents to consider their representations on merits. The Department filed W.P. No. 14157 of 2001 before this
Court. This Court, by virtue of an order dated 23.09.2004 in W.P. No. 14157 of 2001, observed that they were not able to understand as to why
the Union of India filed the Writ Petition, while the Tribunal had passed an innocuous order directing the Petitioners/Respondents to consider on
merits and dismissed the Writ Petition.
In view of the orders passed by this Court in W.P. No. 14157 of 2001 dated 23.09.2004 the Department withdrew the other Writ Petitions
filed before this Court including W.P. No. 14326 of 2001 (in which this 1st Respondent/Applicant was one of the Respondents). This Court, by
an order dated 30.11.2004 in W.P. Nos. 14156 and 14326 of 2001, dismissed the Writ Petitions as withdrawn.
The 1st Respondent/Applicant has cited instructions dated 17.05.1989 (in para 10 of the original application) which was issued by the
Department of Posts, which applied only to the Department of Posts and not to other departments. Clause 3 of ""Casual Labourers (Grant of
Temporary Status and Regularisation) Scheme 10.09.1993 introduced by DOP & T, the said Scheme was applicable to casual labourers in
employment of the Ministries/Departments of Government of India and their attached and subordinate office, on the date of issue of these orders.
However, it was not applicable to casual workers in Railways, Department of Telecommunication and Department of Posts who already have their
own schemes. The instructions cited by the 1st Respondent/Applicant could not be applied to her.
The 1st Respondent/Applicant being a part time worker as per Ministry''s instructions in F. No. 12034/52/93-Ad.IIIB dated 20.01.1994, the
Government of India Scheme 1993 would not be applicable to part time workers. Hence, the question of conferment of permanent status to her
does not arise. After filing of O.A. No. 406 of 2006, the 1st Respondent/Applicant, along with 24 others, filed another O.A. No. 54 of 2007
figuring as 8th Applicant on the same matter before the Tribunal and on 17.07.2007, the Central Administrative Tribunal has granted permission to
withdraw the O.A. No. 54 of 2007 as per endorsement made by the Learned Counsel for the Applicants and accordingly, dismissed the Original
Application as withdrawn, with liberty being granted to file a fresh Original Application.
Factual Matrix in W.P. No. 16889 of 2009:
The Respondents/Applicants 1, 3, 5, 6, 7 and 18 are not working in the Department. According to the Respondents/Applicants, they were
appointed as Casual Labourers from the year 1985 to 1997 in the Offices of Customs and Central Excise Department and were working
continuously without any break. They were working for more than 8 hours every day. The Department had accorded temporary status to several
casual labourers, even for persons appointed in the year 1997 and those casual workers were granted temporary status though they were not
engaged through Employment Exchange. On 03.02.2000 temporary status were conferred on 13 casual labourers, many among are their juniors.
The representations were sent to the Department for granting temporary status and their case was recommended by the 5th Petitioner in regard to
the grant of temporary status even on 16.02.2001. The 3rd Petitioner/Joint Secretary to Government, Ministry of Finance, New Delhi had passed
an order on 02.05.2005 banning the engagement of persons on daily wages by virtue of the impugned order of the 5th and 6th Petitioners were
taking steps to terminate the service of the Respondents/Applicants.
The Respondents/Applicants at Serial No. 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 were not in service at the time of issuance of Department of
Personnel and Training OM dated 10.09.93.
The main plea of the Petitioners is that the Respondents/ Applicants rendered service only as part time workers where there were no
sanctioned posts and they are entitled to perform the same service through out sourcing process proposed by the Government as policy matter.
The Central Board of Excise and Customs, as per the letter dated 02.05.2005, had reiterated that the engagement of persons on daily wages was
banned.
Factual Matrix in W.P. No. 11492 of 2006:
The Petitioners/Applicants were recruited by the Ministry of Personnel/Public grievances and Pensions (Department of Personnel & Training),
New Delhi in its proceedings O.M. No. 51016/2/90-Estt.(C) and dated 10.09.1993 as causal labourers. They were doing the job of cleaning,
sweeping, watering, gardening and other menial jobs. They were called upon to work from 7.00 a.m. till 7.00 p.m. The Respondents 1 to 8 had
recognised the temporary status of those who rendered continuous service of 206 days during a year on full time basis. The temporary status was
recognised by the Respondent, by means of an Establishment Order No. 10/2000 and dated 03.02.2000. Only the 13 persons were granted
temporary status as per the aforesaid order. The remaining 78 persons were not granted the temporary status. The Petitioners/Applicants
approached the 2nd Respondent and requested for the grant of same status but the same was not granted.
The Respondents/Applicants and others filed O.A. No. 303 of 2000 before the Tribunal and on 26.04.2000 the Tribunal passed a direction to
the Respondents 1 to 8 to pass orders on merits and in accordance with law as regards the conferment of temporary status within a period of three
months. By means of an Establishment Order 98 of 2002 dated 30.08.2002 temporary status were granted to two persons, who were originally,
appointed as casual labourers. The 4th Respondent/ Commissioner of Central Excise, Madurai had stated that the grant of temporary status would
be accorded to those individuals, who were appointed prior to 01.09.1993. Further, the 4th Respondent, in his letter dated 18.10.2004, had
stated that the case of the Petitioners/Applicants would be considered and orders would be passed. Again the 4th Respondent on 29.10.2004 had
stated that the case of the Petitioners/Applicants would be considered. However, the Joint Secretary, Government of India, in its letter dated
02.05.2005, had stated that there arose various litigations in respect of regularisation of casual labourers and as such, the engagement of daily
wagers was banned.
Most of the Petitioners/Applicants had crossed 35 years of age. They had put in useful service for over 14 years. The Government should be a
model employer and cannot resort to abrupt termination or aDoPT the rule of hire and fire. The Respondents are only seeking to out source the
job and had done it to independent contractor.
The 2nd Respondent/Chairman of Central Board of Excise and Customs, New Delhi, by means of an Establishment Order No. 10 of 2000,
granted temporary status to employees of group D post. The Petitioners are called upon to work under the contractor. The 9th
Respondent/Tribunal ought to have followed the principles laid down by the Ahmedabad and Guwathi Benches relied on before it and failed to
appreciate the legal principles, had resulted in miscarriage of justice. Engaging independent contractors and engaging the labour force on contract
basis are against the principles of the Contract Labour (Regulation and Abolition) Act, 1970.
The Respondents 1 to 9 had failed to appreciate that there was a ban in appointing the casual labourers. But there was no ban in recognising
the already existing labourers. The Petitioners/Applicants had moved the Tribunal challenging the action of the Respondents to out source
employment. The Tribunal dismissed the application and quoted the 5th Pay Commission on ''improving productivity'' and held that Government
employment through privatisation, contracting out of service, transfer of functions or conversion into co-operative institutions etc. should be
resorted to as it would freeze recruitment.
The order of the 9th Respondent/Tribunal, in dismissing the Original Application at the admission stage without hearing the Government, was
not proper.
The Respondents 1 to 8, in their counter admitted that it is true to state that casual labourers were recruited from time to time even after the
regularisation made in the light of DOP & T''s Official Memorandum No. 51016/2/90 -Estt (C) dated 10.09.1993. There was no concept of
seniority among the Petitioners/Applicants. One K. Santhanam case alone relates to the office of Central Excise, Madurai. The said Santhanam
was appointed as part time casual labourer in the then Collectorate of Central Excise, Madurai with effect from 01.04.1994. As per DOP & T''s
Scheme dated 10.09.1993, para 4 of appendix to OM No. 51016/2/90-Estt (C) ""Temporary Status will be conferred on all Casual Labourers
who are on employment on the date of issue of this Official Memorandum and who have rendered the continuous service of atleast one year which
means that they must have been engaged for a period of atleast 240 days (206 days in the case of 5 days)"".K. Santhanam being appointed in the
year 1994 had not qualified for the grant of temporary status under the 1993 Scheme. Later, in his representation dated 18.08.1999 claimed that
he was appointed as a contingent employee Canteen in June 1992. The Department of Personnel and Training Communication No. 12/5/91-Dir(c)
Government of India, Ministry of Personnel, Public Grievances and Pensions dated 23.01.1992, it is mentioned that as per the Hon''ble Supreme
Court of India''s judgment dated 11.10.1991 in W.P. No. 6189-7044 and 8246-55 -C.K. Jha and others and P.N. Sharma and others, it was
decided that the employees of the Departmental canteens were to be treated as Central Government Servants with effect from 01.01.1991 and are
entitled for all the benefits for which a Government Servant is normally entitled to.
The representations from various casual labourers (including that of K. Santhanam) were referred to the CBEC already, no further action was
taken on the said representations. Later, further correspondence on the general principles of conferment of temporary status were received. On
23.08.2002 K. Santhanam submitted a representation claiming temporary status requesting to consider the services he rendered in the Central
Excise Departmental Canteen, Madurai from June 1992. Likewise, the representations were received during the same period from R. Gandhi and
M. Murugan. The claim of these 3 persons were considered by the Commissioner of Central Excise, Madurai on 30.08.2002. Taking into account
the services rendered by K. Santhanam in the Central Excise Departmental Canteen and the services rendered by M. Murugan in the
Ilayarasanendal Forward Sector of Kovilpatti Division continuously from the year 1985, temporary status was granted to both of them on
30.08.2002. Since R. Gandhi left the services in October 1992, his case was not considered.
In Group D Cadre vacancies would arise only against sanctioned posts. While framing the one time regularisation scheme during the year
1993, the Department of Personnel and Training in Official Memorandum dated 10.09.1993 issued instructions that two out of every three
vacancies in Group D Cadre were reserved for those casual labourers who had already obtained temporary status under the above scheme to their
fulfilling the norms laid down in the Recruitment Rules and DoPT instructions. The reference to Commissioner''s letter dated 22.02.2008 with
reference to 131 vacancies was made on a hand written note from a colleague departmental officer on the number of vacancies available in the
south zone as a whole. However, this could not be considered for the reasons mentioned supra. The Commissioner, while recommending the case
of Petitioners for favourable consideration, was swayed by sympathetic consideration which was deprecated in no uncertain terms in the decision
of M/s. Uma Devi and others.
The Committee constituted by the Commissioner had no statutory or legal backing. The said Committee was in-house exercise to examine the
entire gamut of the matter. There were no executive instructions from the Board/Ministry or form Chief Commissioner''s office to institute the
committee. The said in-house committee was set up to assist the Commissioner in arrive at a possible solution. The Committee had not
categorically concluded that the case of Casual Labourers fits into the scheme of regularisation as per Law and instructions. The then
Commissioner should constitute the committee recorded in the note sheet in the file that the recommendations/ conclusions of the Committee were
incorrect. Since there is no sanctity for this Committee constituted by the Commissioner, no importance to be attached to the Committee and its
report.
The decision pertaining to casual labourers and the out sourcing of their work was taken by the Government of India on all India basis. The
circulars, letters and instructions mentioned by the Petitioners in their affidavit show that they were meant for implementation all over India for
uniform policy. The instructions repeatedly emphasise the fact an individual Head of the Department had no role to play either in appointing or
granting any person temporary status except as per DOP & T Scheme of 1993 which was an one time measure and which was closed long time
back and further on the basis of judgment of the Hon''ble Supreme Court in M/s. Uma Devi''s case for regularising various irregular appointments
made all over the country only against vacant sanctioned posts. These were taken into account by the Chairman, CBEC while passing order in F.
No. C-18013/25/2009-AD III B dated 18.08.2009.
Factual Matrix in W.P. No. 18969 of 2006:
The Writ Petitioners/Applicants were making a claim of regularisation of their services for over 8 years. Though their names were favourably
recommended, by means of a letter by the 3rd Respondent/Joint Secretary to Government, Government of India, Ministry of Finance, New Delhi,
a direction was issued to all the Commissioners of Excise and Customs and other subordinate officers not to engage the services of the casual
labourers and the Board took a decision that in cases where no regular post was available, services may be secured through contractors after
following the procedure prescribed in GFR.
According to the Petitioners, there are regular vacancies for the nature of job performed by them. However, it is the case of the Respondents 1
to 6 that instead of engaging the Petitioners services directly they could avail the very result in additional cost and expenditure to the Government
exchequer. The Contractor is to be paid his commission, apart from labour cost. The object of Contract Labour (Regulation and Abolition) Act,
1970 is to prevent the establishment of contract labour. It is not the case of the Government of India or any case study was undertaken warranting
a conclusion that out sourcing is more beneficial than engaging the regular work force.
The order of the 7th Respondent/Central Administrative Tribunal dismissing the original application even in admission stage without hearing the
Government version is not proper.
The unsuccessful Applicants moved W.P. No. 3926 and 3927 of 2006 before this Court wherein orders of status quo until further orders
were granted on 13.02.2006. Similarly, W.P. No. 7852 of 2006 was filed and interim orders are granted protecting the interest of the employees.
As long as the establishment is in existence, the routine work performed by the Petitioners could not be dispensed with. As a matter of fact, the
Establishment Order No. 98/2002 dated 30.08.2002 of the 5th Respondent/Commissioner of Central Excise, Madurai only restraints recruitment
of hands in future. It does not speak about those employees were already in service.
It is to be pointed out that in the Official Memorandum No. 49014/18/84-Estt(C) Government of India/Bharat Sarkar, Ministry of Personnel
& Training, Administrative Reforms and Public Grievances and Pension (Department of Personnel and Training), New Delhi, dated 07.05.1985, it
is, among other things, mentioned that ''... Having regard to the fact that casual workers belong to the weaker section of the society and termination
of their services will cause undue hardship to them, it has been decided, as a one time measure, in consultation with the DGE&T, that casual
workers recruited before the issue of these instructions may be considered for regular appointment to Group ''D'' posts in terms of the general
instruction, even if they were recruited otherwise than through the employment exchange, provided they are eligible for regular appointment in all
other respects.'' Also, it is reiterated that ''no appointment of casual workers should be made in future otherwise than through the Employment
Exchanges etc.''
In the Official Memorandum F. No. 49014/2/86-Estt (C), Government of India, Ministry of Personnel, Public Grievances and Pensions
Department of Personnel and Training, New Delhi dated 07.06.1988 issued by the Joint Secretary to the Government of India, it is stated that
''The Policy regarding engagement of casual workers in Central Government Offices has been reviewed by the Government keeping in view the
judgment of the Supreme Court delivered on the 17th January, 1986 in the writ petition filed by Shri Surinder Singh and other v. Union of India
and it has been decided to lay down the following guidelines in the matter of recruitment of casual workers on daily wage basis:
i) Persons on daily wages should not be recruited for work of regular nature.
ii) Recruitment of daily wages may be made only for work which is of casual or seasonal or intermittent nature or for work which is not of full time
nature, for which regular posts cannot be created.
iii) The work presently being done by regular staff should be reassessed by the administrative Departments concerned for output and productivity
so that the work being done by the casual workers could be entrusted to the regular employees. The Departments may also review the norms of
staff for regular work and take steps to get them revised, if considered necessary etc. and further, the said guidelines are directed to be strictly and
meticulously observed all Ministries and Departments to ensure that there is no more engagement of casual workers for attending to the work of
regular nature particularly after the review envisaged above is duly completed and each Head of Office should also nominate an officer who would
scrutinise the engagement of each and every casual worker and the job for which he is being employed to determine whether the work is of casual
nature or not.
In Official Memorandum No. F.2(26)-B (CDN)/92 Government of India, Ministry of Finance, Department of Economic Affairs (Budget
Division) dated 24.01.1992, the Additional Budget Officer has stated that ''following the judgment of the Supreme Court the entire provision
needed for pay and allowances of the canteen employees may be made by the respective Ministries/Departments, in their Demands for Grants,
from Revised Estimates 1991-92, under distinct subhead ""Departmental Canteens"" etc.
As per Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise and Customs instructions in F. No.
A.12034/13/91.AD.III.B dated 30.03.1992, all Heads of Department and Central Board of Excise and Customs have been informed that ''it has
been decided that the services of casual workers recruited after 7.6.88, ie., the date on which ban orders came into operation, will have to be
dispensed with forthwith. Only those casual workers who were recruited before 7.6.88 and continue to be in service can be considered for
regularisation, subject to the availability of vacancies, in terms of D.O.P & T''s O.M.F. No. 49014/4/90-Estt.(C) dated 8.4.91.'' 53. In Official
Memorandum No. 51016/2/90-Estt (C), Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel
and Training, New Delhi dated 10.09.1993, the Director has informed all Ministries/Departments of the Government of India to the effect that ''...
the grant of temporary status to the casual employees, who are presently employed and have rendered one year of continuous service in Central
Government offices other than Department of Telecom, posts and Railways may be regulated by the scheme as appended and also to ensure that
the recruitment of casual employees is done in accordance with the guidelines contained in O.M. dated 7.6.1988 etc.'' Added further, it is also
mentioned that on regularisation of casual worker with temporary status, no substitute in the place will be appointed as he was not holding any
post.
In Official Memorandum No. 49014/2/93-Estt. (C), Government of India, Ministry of Personnel, Public Grievances and Pensions
(Department of Personnel and Training), New Delhi dated 12.07.1994 wherein clarifications on certain points relating to grant of temporary status
to casual labourers have been issued by the Deputy Secretary to the Government of India.
In the Under Note of the Honorary Secretary of the Departmental Canteen of the Madurai dated 08.05.1995 it is stated that K. Santhanam
was working as a full time casual worker in the Departmental Canteen and he was working eight hours per day during the period.
In the instructions F. No. A.12034/34/96-Ad.III(B), dated 10.01.1997 issued by the Under Secretary to the Government of India addressed
to the Commissioner of Central Excise, New Delhi, it is informed that ''as per the DOP & T''s advice, temporary status can be conferred only
upon such casual workers who had rendered one year of service with 206 days on the date of issue of the DOP & T''s instructions dated
10.09.1993. Further, casual employees can be engaged for work which is of casual, occasional or which is not of full time nature etc.'' Further, it is
stated that continued engagement of the casual workers since 14.6.1993 is in gross violation of the standing instructions and the same should be
fortnightly disengaged.
In the instruction in F. No. A.-12034/37/99-Ad.III (B), Government of India, Ministry of Finance, Department of Revenue, (Central Board of
Excise & Customs) dated 24.09.1999 issued by the Under Secretary to the Government of India addressed to all Commissioner of Customs &
Central Excise etc., it is stated that ''as per the DOP & T''s advice, the casual workers recruited prior to 7.6.88 and were on service as on 8.4.91,
who are entitled to regularisation even though not employed through Employment Exchange, can be given the Temporary Status, if such workers
have not been regularised so far lack of vacancies etc. That apart, a request has been made to avoid the Court cases and the instructions has been
issued that the casual workers should not be recruited for work of regular nature.
In Official Memorandum No. 40011/6/2002-Estt(C) dated 06.06.2002 it is mentioned that the Hon''ble Supreme Court has finally decided
the matter in SLP (Civil) No. 2224/2000 in the case of Union of India (UOI) and Another Vs. Mohan Pal, etc. etc., wherein it is observed as
follows:
The scheme of 1-9-93 is not an ongoing Scheme and the temporary status can be conferred on the casual labourers under that Scheme only on
fulfilling the conditions incorporated in Clause 4 of the scheme, namely, they should have been casual labourers in employment on the date of the
commencement of the scheme and they should have rendered continuous service of at least one year i.e. At least 240 days in a year or 206 days
(in case of offices having 5 days a week). We also make it clear that those who have already been given ''temporary'' status on the assumption that
it is an ongoing Scheme shall not be stripped of the ''temporary'' status pursuant to our decision.
Continuing further, it is also mentioned that the Hon''ble Supreme Court have considered the question as to whether the services of the casual
labourers who had been given temporary status could be dispensed with as per Clause 7 as if they were regular casual labourers and observed that
-
The casual labourers who acquire ''temporary'' status cannot be removed merely on the whims and fancies of the employer. If there is sufficient
work and other casual labourers are still to be employed by the employee for carrying out the work, the casual labourers who have acquired
''temporary'' status shall not be removed from service as per Clause 7 of the Scheme etc.
In the instruction F. No. A-12034/53/2002-Ad.III (B) dated 26.11.2002 addressed to all Chief Commissioner of Central Excise and
Customs and others , the Deputy Secretary to Government of India has drawn the attention of DOP&T''s O.M. dated 7.6.88 No. 49014/2/ 86-
Estt.(C) and O.M. dated 10.9.93 No. 51016/2/90-Estt.(C) and observed that the field formations are reported to have engaged casual workers
on daily wages even after the date of issue of the aforesaid O. Ms of DOP&T and hence requested that in future Casual workers should not be
recruited in any circumstances etc.
In F. No. C-18013/75/2003.AD.III.B. dated 10.03.2004 the Director (Ad.III) has informed all the Chief Commissioner of Central Excise
and Customs (by name) and others etc. that ''As regards the casual workers on rolls who have achieved temporary status, appropriate action may
be taken in terms of guidelines contained in para-3 of Department of Personnel and Training O.M. No. 40011/6/2002 -Estt. (C) dated 6th June
2002.''
In F. No. A-12034/1/2005.AD.III.B. Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise and
Customs dated 02.05.2005 addressed to all Chief Commissioner and others, the Joint Secretary has stated, among other things, as follows:
It is once again reiterated, that engagement of persons on daily wages stands banned and the Heads of Departments cannot exercise any
powers in this regard. As already intimated vide Board''s aforementioned letter dated 10.3.2004, essential work for which no regular posts have
been created/sanctioned may be out sourced through service providers/contractors after following the procedure prescribed in the GF Rs. The
payments for such out sourced outsourced work through the service provider may be done from the provisions under ''Contingent Office
Expenditure'' and not from ''wages'' "" and also directed the said instructions to be strictly followed.
In the Official Memorandum No. 49019/1/2006-Estt(C) dated 11.12.2006, the Director has informed all the Ministries/Departments of the
Government of India etc. that the Hon''ble Supreme Court in Civil Appeal No. 3595-3612/1999 etc. in the case of Secretary, State of Karnataka
and Others Vs. Umadevi and Others, in para 44 of the judgment dated 10.4.2006 has directed that the Union of India, the State Governments and
their instrumentalities should take steps ti regularise as a one time measure the services of such irregularity appointed, who are duly qualified
persons in terms of the statutory recruitment rules for the post and who have worked for ten years or more in duly sanctioned posts but not under
cover of orders of courts or tribunals. Also, it has been informed that the Apex Court has clarified that if such appointment itself is in infraction of
the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularised.
In F. No. A.12034/69/2006.AD.III(B) dated 01.05.2007, the Director, AD.III.B, Central Board of Excise and Customs, New Delhi
addressed to all Chief Commissioners of Central Excise and Customs, has informed that ''the Board has directed that the number of such casual
employees shall be ascertained from the Commissionerates and the Directorates so that the necessary data on such employees becomes available
for consideration of regularisation against permanent Group D vacancies likely to arise in the Department etc.'' 65. In the Letter D.O. No.
32020/45/2006-GAR dated 07.09.2007 the Joint Secretary (Revenue) addressed to the Chairman, Central Board of Excise and Customs, New
Delhi has requested to get the information collected as per the enclosed pro format from the field formations by 20th September, 2007 in respect
of the regularisation of the services of daily wages [irregularly appointed daily wages who are duly qualified persons in terms of statutory
recruitment rules for the post and who have worked for 10 years or more in duly sanctioned posts and not under cover of orders of Courts or
Tribunals etc.].
In F. No. C-18013/43/2005 Ad.III.(B) dated 31.01.2008 the Director, Ad.III(B) has informed all Cadre Controlling Authorities under
CBEC that wherever a particular Zone has Group-D vacancies, but there are no casual workers in that Zone eligible for regularisation as per the
Government instructions, such vacancies could be used for regularisation of eligible casual workers from other Zones within the same State. No
inter-State movement shall be allowed for such regularisation of casual workers Preference will always be given to casual workers of the same
Zone etc.
In Communication No. A.12034/02/VIP/2008-Ad.III(B) dated 03.06.2008 the Director, Ad.III B, has informed the Chief Commissioner,
Customs & Central Excise, Hyderabad Zone that ''the DoPT have clarified that the benefit of regularisation can be extended only to those
workers, who continue to be engaged as casual workers by the Government at the time of the Judgment. The casual workers, whose services have
been discontinued and who might have been engaged by a contractor to do an outsourced work in that office, shall not be entitled to be
considered for regularisation since these workers are now employees of the contractor and not of the Government.''
On 23.10.2008 the Commissioner in the Note Order, has, among other things, stated that ''As it is conceded in the report that none of the
casual labourers under consideration were recruited against a sanctioned vacant post or the initial appointment itself was not through a regular
process of selection or they were appointed for work of temporary nature, applying the ratio of the above judgment, the guidelines governing such
appointments and the replies sent for various references/representations received, prima facie, it appears that the recommendations of the
Committee for regularisation by conferring temporary status are not correct'' and hence, ''requested the Committee to reconsider the case and file a
fresh report on or before 20.10.2008 and consequent to the transfer of Shri.S. Faheem Ahmed, ADC (Chairman), Shri.A. Jerome, AC (Member)
and S. Raja AC(Member), the Committee is reconstituted with Shri.M.G. Thamizh Valavan, JC as Chairman. Shri. Kulandai Jesurajan, AC is co-
opted as member in the place of the transferred Officers (Members). The other members of the committee will continue.''
The Commissioner of Central Excise, Madurai, in his order C. No. II/26/01/2006-Estt. Dated 01.07.2009, has stated, among other things,
that ''since the Petitioners have not fulfilled the criteria laid down, it is not possible to consider their request and has rejected the request of the
Petitioners to confer them with that of permanent status.''
The Deputy Commissioner (P & V), in his communication No. II/31/2/98-Estt. Dated 06.05.1999 addressed to the Chairman of Central
Board of Excise & Customs, New Delhi, has, among other things, stated that ''Most of the casual labourers have been working in this Department
for more than 5 years and they are also becoming over aged and further that there is no other hope to enter into the Government service and as
well as into the private/public services and that the only hope to them is become atleast a Temporary Status Casual Labourer/Sepoy etc.'' Also, it
is stated that as per Official Memorandum No. 51016/2/90-Estt.(C) dated 10.09.1993 of the Department of Personnel and Training, temporary
status can be awarded to those casual labourers who have put in 240 days of continuous service and as per the recent Supreme Court judgment in
''Haryana State Electricity Board - Contract Labour'' case, the casual labourers who have put in 240 days continuous service can be made
permanent (copy published in the daily ''The Hindu'' is enclosed herewith) and that they can be considered for appointment as Temporary Status
Casual Labourers and in this regard, the matter may be taken up suitably for DOP & T for issue of necessary directions. It is also learnt in many
other Commissionerates also similar situation may be prevailing and hence it would be possible to make a strong recommendation to DoPT for
issuing a circular as well as to that of 10.09.1993 so that the eligible Casual Labourers can be conferred with Temporary Status.
On 22.07.1999 the Under Secretary to Government of India, in his letter F. No. A.12034/37/99.AD.III.B addressed to the Joint
Commissioner (P&V), Office of the Commissioner of Central Excise, Madurai has requested to send a detailed proposal indicating the exigency
circumstances under which they were engaged whenever the engagement of casual labour were banned by the DOP&T (circulated vide Ministry
letter No. A.12034/52/93, AD.III.B dated 11.01.93 along with your recommendation, for pursuing the matter further) and has also requested to
state the reasons for not conferring the temporary status to those casual labourers (Part-time) who had engaged till before, 1988 and fulfil the
required conditions as circulated vide Ministry''s letter F. No. A.12034/72/94-Ad.III.B dated 9.3.95.
The Communication No. II/31/15/99-Estt. of the Office of the Commissioner of Central Excise, Chennai-1, dated 05.08.1999 is the Offer of
Appointment provisionally in regard to the candidates mentioned therein in permanent vacancies until further orders to the post of Sepoy of Central
Excise (Group ''D'') in the scale of pay of Rs. 2610-60-3150-65-3540 plus allowances etc.
The Communication No. II/31/15/99-Estt. dated 14.09.1999 of the Office of the Commissioner of Central Excise, Chennai-1 relates to the
recruitment to the grade of Sepoy of Central Excise pertaining to one G. Venugopal, Contingent v. Division, Chennai-II.
In C. No. II/39/16/94-Estt. dated 03.02.2000 of the Office of the Commissioner of Central Excise & Customs, some 13 casual labourers
have been granted the temporary status and their regularisation as casual workers was ordered.
In the proceedings of the Additional Commissioner in C. No. II/31/15/99-Estt. dated 30.01.2001 of the Office of Commissioner of Central
Excise, Chennai-1, instructions have been issued to fill up the post of Sepoys grade by conducting an interview among the casual
labourers/contingent staffs.
As per proceedings of the Commissioner of Central Excise, Madurai in C. No. II/39/45/2001-Estt. dated 30.08.2002, two casual labourers
viz., K. Santhanam and M. Murugan have been granted the temporary status with effect from 01.09.2002 subject to the conditions stipulated
therein.
The Commissioner of Central Excise, Madurai-2, in C. No. II/39/51/2003 dated 17.05.2004 has informed the Chief Commissioner of Central
Excise, Coimbatore as follows:
As regards casual labourers on daily wages, their case may also be considered favourably. The Hon''ble Supreme Court in the case of U.O.I. v.
Mohan Pal and others has held that grant of temporary status to casual labourers under the scheme of 1993 is one time measure and not an
ongoing scheme. However, the Hon''ble Supreme Court has observed that ''it is upto the Union Government to formulate any scheme as and when
it is found necessary that the casual labourers are to be given temporary status and later they are to be absorbed in the Group-''D'' post''. Most of
the casual labourers of this office have been working for the past 10 years. They are overaged now and they cannot seek any gainful employment
elsewhere. For the reasons stated in this office letter dated 18.11.2003, their case deserve sympathetic consideration. Chief Commissioner may
therefore consider their case sympathetically and recommended the same to Board for conferring the casual labourers (daily wages) atleast for
conferment of temporary status.
In Communication No. II/39/51/2003-Estt. dated 29.10.2004, the Commissioner of Central Excise, Madurai addressed to the Joint Secretary
(Admn.,), Government of India, Ministry of Finance, New Delhi has referred to the representation from Manikandan and others for regularisation
of the services in the Central Excise Commissionerate, Madurai. Further, he has stated that Manikandan and others were recruited in the year
1994 and the casual labourers are doing the work of regular permanent sweepers and their services were also used for movement of files from one
section to other section.
The Commissioner of Central Excise, Madurai, in his Communication No. II/39/11/2007-Estt. dated 22.02.2008 addressed to the Chief
Commissioner of Central Excise, Coimbatore on the subject of regularisation of casual workers, has stated that ''as per the Apex Court''s verdict,
we may accord temporary status in accordance with DoPT Official Memorandum No. 49019/1/2006-Estt dated 11.12.2006 for all the qualified
casual workers working in Madurai and Tirunelveli Commissionerates.''
The Joint Commissioner (CCO), Coimbatore, in his C. No. II/3/ 9/2008-Estt. (CCO) dated 27.02.2008 addressed to the Commissioner of
Central Excise, Madurai, has requested to examine the ''issue of regularisation of casual workers'' in accordance with the DoP & T instructions and
co-ordinate with the other Group ''D'' Cadre Controlling Authorities in Tamil Nadu i.e. Chief Commissioner of Central Excise, Chennai {for
Chennai C. Ex. I to IV & S. Tax}, Chief Commissioner of Customs, Chennai {for Customs House, Chennai}, CCE, Coimbatore and CCE,
Trichy for implementing the Board''s instructions dated 31.01.2008 etc.
By means of another Communication No. II/39/11/2007-Estt dated 17.03.2008, the Commissioner of Central Excise, Madurai addressed to
the Chief Commissioner of Central Excise, Coimbatore on the subject of ''Casual Workers'' has opined that ''the subject qualified Casual Workers
mentioned in Annexure-4 are eligible for regularisation as directed in the verdict of the Hon''ble Court (i.e. Regularisation of them in the post of
Group ''D'' is not possible, they may be considered for equal pay equal-work benefit) etc.''
As per Communication of the Chief Commissioner, Coimbatore Zone, in C. No. II/3/9/2008-Estt (CCO) dated 28.03.2008 addressed to the
Commissioner of Central Excise, Madurai, it is stated that ''on the issue of granting temporary status and consequent regularisation, already number
of instructions have been issued by CBEC & DoPT by referring the decisions of Apex Court. By taking into account of all those instructions, as a
Cadre Controlling Authority for Madurai & Tirunelveli Commissionerates, a request has been made to take appropriate decision legally without
any violations of Constitutional Provisions & Statutory Rules on this matter.''
The Director (Ad.IIIB), Central Board of Excise and Customs, New Delhi, in his letter dated 26.03.2008 addressed to the Chief
Commissioner of Central Excise, Coimbatore, has advised to pass a reasoned speaking order (taking cue from the enclosed note), strictly in
accordance with the directions of the Hon''ble Supreme Court in Uma Devi''s case and to place the position before the Hon''ble High Court and
thereafter.
The Director (Ad.IIIB) of Central Board of Excise and Customs, in his letter F. No. C.18013/43/2005 Ad.III (B) dated 31.01.2008
addressed to all Cadre Controlling Authorities under CBEC, has, among other things, stated that ''any regularisation of casual workers should be
strictly in accordance with the DoPT instructions mentioned in para-1 above.''
Further, the Director (Ad.IIIB) of Central Board of Excise and Customs, New Delhi, in the letter F. No. 12034/02/VIP/2008-Ad.III(B)
dated 03.06.2008 addressed to the Chief Commissioner, Customs and Central Excise, Hyderabad Zone, has, among other things, in paragraph 3
stated as follows:
Further, the DoPT have also clarified that the benefit of regularisation can be extended only to those workers, who continue to be engaged as
casual workers by the Government at the time of the Judgment. The casual workers, whose services have been discontinued and who might have
been engaged by a contractor to do an outsourced work in that office, shall not be entitled to be considered for regularisation since these workers
are now employees of the contractor and not of the Government.
and further requested to follow the advice of DoPT strictly while considering any case of casual worker for regularisation in terms of the Supreme
Court Judgment.
In D.O.F. No. A.11013/38/2008-Ad.IV dated 22.07.2008, the Joint Secretary (Admn.,), Government of India, Ministry of Finance,
Department of Revenue, Central Board of Excise and Customs, addressed to all the Cadre Controlling Authorities (CC As) under CBEC has
requested submission of Status Report indicating the progress made in filling up of the posts allocated to their cadre, out of 4,647 new posts and
906 SEZ posts as well as in respect of other normal vacancies in their cadre in respect of Group-B, C & D posts and the Status Report may cover
the period upto 20.08.2008 and may be furnished by 25.08.2008 positively.
In the Communication No. I/16/1/2007-Estt.(CCO) dated 29.07.2008, the Joint Commissioner (CCO), addressed to the Commissioner of
Central Excise, Coimbatore/Trichy/Madurai, has called for the status report covering the period upto 20.08.2008 to be furnished to JS (Admn.)
by 25.08.2008 positively, under intimation to his office.
In the Communication D.O.F. No. 32020/45/2006-GAR dated 20.07.2006 the Joint Secretary (Revenue), addressed to the Chairman,
Central Board of Excise and Customs, New Delhi, has requested for the collection of information in respect of Casual Labourers (Daily Wages)
employed in the field formations of the CBEC /CBDT, who have not been regularised so far and to forward the same by the end of the next week
for taking further action in the matter.
The Administrative Officer (H) of the Office of the Commissioner of Central Excise, Madurai, in Communication No. II/39/ 16/2008-Estt.
dated 21.07.2008 addressed to other officers of Madurai, Tirunelveli, Virudhunagar and the Superintendent R. Sitaraman, Thirunagar Range, has
forwarded a copy of the Ministry''s letter F. No. 12034/02/VIP/2008-Ad.III (B) dated 03.06.2008 for information and compliance.
In the Report of the Committee constituted to study the issue relating to regularisation of casual workers of Madurai and Tirunelveli
Commissionerates, the following recommendations are made:
The Casual Labourers irregularly engaged in the works such as sweeping, cleaning, carrying water etc. who have continuously rendered service
for ten years and above as on 11.12.2006 (Date of the letter from DoPT communicating the Apex Court judgment dated 10.04.2006) may be
considered for regularisation mutatis mutandis by conferring Temporary Status.
The Casual Labourers irregularly engaged in the works such as sweeping, cleaning, carrying water etc. who have continuously rendered service
for less than ten years may also be considered for regularisation by conferring Temporary status on completion of ten years service since all such
recruitment was prior to the ban.
The above recommendations may be considered subject to the withdrawal of the cases filed by the casual labourers in various judicial fora.
In the proceedings C. No. II/31/5/2001-Estt dated 05.04.2002 of the Joint Commissioner (P & V) of the Office of the Commissioner of
Central Excise, Chennai, six persons have been given the offer of provisional appointment in the grade of SEPOY of Central Excise.
Likewise, on 11.09.2003 the Additional Commissioner (P & V) of the Office of the Commissioner of Central Excise, Chennai, has provided
provisional appointment to six persons mentioned therein, in the grade of SEPOY of Central Excise.
Also, the Joint Commissioner (P & V) of the Office of the Commissioner of Central Excise, Chennai-1, as per proceedings C. No. II
/31/5/2001-ESTT dated 25.07.2002, has offered the appointment, provisionally, to two individuals mentioned therein, in the grade of SEPOY of
Central Excise.
In C. No. II/39/11/2007-Estt dated 28.06.2007, the Commissioner of Central Excise, Madurai addressed to the Chief Commissioner of
Central Excise, Coimbatore - 18 ''on the subject of regularisation of qualified workers appointed against sanctioned posts in irregular manner'' has
stated that ''at present 40 persons are working in Commissionerate on daily wages on part-time basis. They are engaged for attending the work of
cleaning of office premises, water carrying etc. They were not appointed against any sanctioned post and further, as per the judgment of Hon''ble
Supreme Court in Civil Appeal No. 3595-3612/1999 etc. in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, and
the instructions issued in Government of India DOP & TO.M. No. 49019/1/2006-Estt (C) dated 11.12.2006 the Casual Labourers appointed
against sanctioned posts in irregular manner and who have completed more than 10 years of service are eligible for regularisation as one time
measure. Since none of the Casual Labourers working in this Commissionerate was appointed against any sanctioned post, they were not eligible
for consideration of regularisation as one time measure.'' Also, he had stated that ''only two posts of sepoy in Gr.''D'' cadre are vacant in Madurai
Commissionerate. These two vacant posts of sepoy have to be restored to Salem Commissionerate as 6 posts of sepoy were temporarily diverted
to Madurai Commissionerate to adjust the excess of sepoy as per Chief Commissioner, Coimbatore order No. 82/2005 dated 8.12.2005 issued
in file C. No. II/39/22/2004-Estt (CCO).''
In C. No. II/3/3/2007-Estt (CCO) dated 13.08.2007, the Joint Commissioner, Office of the Chief Commissioner of Central Excise,
Coimbatore Zone addressed to the Director Ad.III (B), Ministry of Finance, Department of Revenue, Central Board of Excise and Customs, New
Delhi, had stated that ''he has enclosed the vacancy existing in respect of group ''D'' Officers in the Coimbatore Central Excise Zone and further
mentioned that none of the casual labourers satisfy the criteria laid down in the Apex Court judgment dated 10.04.2006.''
It is not out of place for this Court to point out the decision in Zilla Parishad Ahamed Nagar and Anr. v. Ramesh Sudeshu Oukre and others
[2000 L.L.R. 1080 (Bom.)], wherein it is held that non regularisation of daily wages for 15 years will amount to unfair labour practice.
We also deem it appropriate to cite the decision in Gujarat State Road Transport Corporation V. Workmen of the State Transport
Corporation [2000 L.L.R. (Guj. HC) 182] wherein it is held that ''engaging casual and temporary workers for years together and denying them
permanency will amount to unfair labour practice.''
Added further, we also point out the decision in Deputy Executive Engineer Magadella Port Development Scheme Surat V. Sukhabhai
Gandabai [2001 L.L.R. (Sum.) 413 (Guj&HC)] wherein it is held that ''the daily rated workers will be workmen under the Industrial Disputes
Act.''
We pertinently worth recalls the decision of the Hon''ble Supreme Court in H.D. Singh Vs. Reserve Bank of India and Others, wherein in
paragraph 9, it is observed as follows:
Not being satisfied with the pleas noted above the Respondent-bank had also a case that the Appellant was only a badli workman who could
be deemed to have worked only on days when the permanent workman or probationer was not employed. The bank did not make available
before the Tribunal any documentary evidence to show as to how the Appellant could be treated as a badli worker and as to whose place he
occupied during the days he worked.
The confidential circular directing the officers that workman like the Appellant should not be engaged continuously but should as far as possible, be
offered work on rotation basis and the case that the Appellant is a badli worker have to be characterised as unfair labour practice. The 5th
Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:
To employ workmen as ''badlis'', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and
privileges of permanent workmen.
We have no option but to observe that the bank, in this case, he indulged in methods amounting to unfair labour practice. The plea that the
Appellant was a badli worker also has to fail.
Apart from the above, this Court cites the following decisions:
(a) Parshotam Lal Dhingra Vs. Union of India (UOI), in paragraph 12 it is held as follows:
In the absence of any special contract the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until,
under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years'' service or the
post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other
disqualification found against him on proper enquiry after due notice to him. An appointment to a temporary post for a certain specified period also
gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put an end to during that period
unless he is, by way of punishment, dismissed or removed from the service. Except in these two cases the appointment to a post, permanent or
temporary, on probation or on an officiating basis or a substantive appointment to a temporary post gives to the servant so appointed no right to
the post and his service may be terminated unless his service had ripened into what is, in the service rules, called a quasi-permanent service.
(b) In Ram Kumar Sharma and Ors. v. Rampur District Co-operative Bank Ltd. and others, [1992 LIC 1973 at page 1975 & 1976], it is, among
other things, held that ''From the appointment letters which were issued to the Petitioners from time to time it appears that artificial breaks were
given in their continuity of service which denied them the right of acquiring regular status. Such a practice has been held to be unfair by the Labour
Court and rightly so. The Petitioner''s appointment has been continued for three years periodically by giving them appointment letters. In one case
13 appointment letters were given. So such a practice is definitely not fair. The appointments were made periodical because the Bank had chosen
a novel device of continuing the Petitioners by breaking their services periodically for a day or two. Anyhow this aspect of the case has been dealt
with by the Labour Court and there is no defect in the award of the Labour Court so far as the setting aside of the termination order of the
Petitioners'' services is concerned. The Labour Court''s award is well reasoned. It is to be altered in part because the Labour Court had failed to
give a declaration prayed for by the Petitioners about the Petitioners reinstatement which it was enjoined to make.''
(c)In Government of Tamil Nadu V. Tamil Nadu Race Course General Employees'' Union and another [1992 LIC 2004 (DB)], this Court has
held that ''Employment of workmen as casuals and continued as such for years and deprives them of status permanent workman, amounts to unfair
labour practice.''
(d)In Simla Devi v. State of Punjab and others, [2006 (3) L.L.N. 363] at page 367, in paragraph 10 it is mentioned and observed as follows:
The aforementioned view has also been expressed in Para.17 by the Supreme Court in the case of Gujarat Agricultural University (2001 (1)
L.L.N.767) (vide supra), wherein it is ordered that after such a long experience the qualification needs to be relaxed. In other words, if the
employer has felt satisfied with the working of an employee for a long time then the employer cannot be heard to say that for regularisation he
would lack qualification of discharging duty. In such a situation, the experience gained by an employee must be considered equivalent to the
educational qualification. It is admitted position that the Petitioner has now completed more than 10 years of service. The arbitrariness of the
Respondents can be gauged from the fact that her claim was rejected on 20 May 2002 (P18) when she was proceeding to complete 10 years
after about 10 days. In any case, the Petitioner has now fulfilled the qualification on completing 10 years of service and, therefore, deserve to be
regularised.
(e) In the decision of Hon''ble Supreme Court in State of Haryana and others Vs. Piara Singh and others etc. etc., , at page 122, it is held as
under:
Where a temporary or ad hoc appointment is continued for long the court presumes that there is need and warrant for a regular post and
accordingly directs regularisation. But there is no ''rule of thumb'' in such matters. The relief must be moulded in each case having regard to all the
relevant facts and circumstances of that case. It cannot be a mechanical act but a judicious one. Issuing general declaration of indulgence is not part
of court''s jurisdiction.
Also, in the aforesaid decision, at page 152 & 153, in paragraph 49 to 51, it is observed as follows:
If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation
provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the
reservation policy of the State.
The proper course would be that each State prepares a scheme, if one is not already in vogue, for regularisation of such employees consistent
with its reservation policy and if a scheme is already framed, the same may be made consistent with our observations herein so as to reduce
avoidable litigation in this behalf. If and when such person is regularised he should be placed immediately below the last regularly appointed
employee in that category, class or service, as the case may be.
So far as the work-charged employees and causal labour are concerned, the effort must be to regularise them as far as possible and as early as
possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is
continued for a fairly long spell-say two or three years-a presumption may arise that there is regular need for his services. In such a situation, it
becomes obligatory for the authority concerned to examine the feasibility of his regularisation. While doing so, the authorities ought to aDoPT a
positive approach couple with an empathy for the person. As has been repeatedly stressed by this Court, security of tenure is necessary for an
employee to give his best to the job. In this behalf, we do commend the orders of the Government of Haryana (contained in its letter dated April 6,
1990 referred to hereinbefore) both in relation to work-charged employees as well as casual labour.
(f)In V.M. Chandra Vs. Union of India and Others, at page 1625 & 1626, in paragraph 3 and 4, the Hon''ble Supreme Court has laid down as
follows:
The view taken by the Chairman of the Railway Board that there cannot be any designation assigned to a casual employee baffles all logic
because there can be engagement of a peon on casual basis and there can be engagement of a clerk on causal basis and it cannot be said that both
are casual employees and, therefore, there cannot be any distinction between a peon and a clerk as they are engaged on casual basis. In that view
of the matter we do not think that the view taken by the Chairman of the Railway Board was justified.
Considering the number of occasions the Appellant had approached the Tribunal and the authorities for relief, we do not think that any useful
purpose will be served by merely setting aside the order of the authorities and remitting the matter to them. On the other hand, it would be an
extraordinary case where we should direct the Respondents to absorb the Appellant as a skilled Artisan in Grade III in appropriate scale as
indicated in the communication No. P(S) 441/I/Misc./MP/ MAS/Vo.X of the Board and the benefit thereof should be given to the Appellant.
However, the Appellant will not be entitled to any higher monetary benefits than what she was drawing hitherto. The Appellant will be fitted in the
appropriate scale by giving increments and continuity in service on that basis. These directions shall be given effect to within a period of three
months from today.
(g) In the decision of Hon''ble Supreme Court in Triveni Shankar Saxena Vs. State of U.P. and others, at page 497, while observing that
''Terminating the services of a temporary employee having been allowed to work for 18 years despite adverse entries,'' a sum of Rs. 50,000/-as ex
gratia has been ordered to be paid for the termination of his service.
(h) In Rattan Lal and Others Vs. State of Haryana and Others, at page 479 the Hon''ble Supreme Court has observed and held as follows:
In all these petitions the common question which arises for decision is whether it is open to the State Government to appoint teachers on an ad hoc
basis at the commencement of an academic year and terminate their services before the commencement of the next summer vacation, or earlier to
appoint them again on an ad hoc basis at the commencement of next academic year and to terminate their services before the commencement of
the succeeding summer vacation or earlier and to continue to do so yearafteryear. A substantial number of such ad hoc appointments are made in
the existing vacancies which have remained unfilled for three to four years. It is the duty of the State Government to take steps to appoint teachers
in those vacancies in accordance with the rules as early as possible. The State Government of Haryana has failed to discharge that duty in these
cases. It has been appointing teachers for quite some time on an ad hoc basis for short periods as stated above without any justifiable reason. In
some cases the appointments are made for a period of six months only and they are renewed after a break of a few days. The number of teachers
in the State of Haryana who are thus appointed on such ad hoc basis is very large indeed. If the teachers had been appointed regularly, they would
have been entitled to the benefits of summer vacation along with the salary and allowances payable in respect of that period and to all other
privileges such as casual leave, medical leave, maternity leave, etc., available to all the Government Servants. These benefits are denied to these ad
hoc teachers unreasonably on account of this pernicious system of appointment aDoP Ted by the State Government. These ad hoc teachers are
unnecessarily subjected to an arbitrary ''hiring and firing'' policy. These teachers who constitute the bulk of the educated unemployed are
compelled to accept these jobs on an ad hoc basis with miserable conditions of service. The Government appears to be exploiting this situation.
This is not a sound personnel policy. It is bound to have serious repercussions on the educational institutions and the children studying there. The
policy of ''ad hocism'' followed by the State Government for a long period has led to the breach of Article 14 and Article 16 of the Constitution.
Such a situation cannot be permitted to last any longer. It is needless to say that the State Government is expected to function as a model
employer.
We, therefore, direct the State Government to take immediate steps to fill up in accordance with the relevant rules the vacancies in which
teachers appointed on an ad hoc basis are now working and to allow all those teachers who are now holding these posts on ad hoc basis to remain
in those posts till the vacancies are duly filled up. The teachers who are not working on such ad hoc basis if they have the prescribed qualification
may also apply for being appointed regularly in those posts. The State Government may also consider sympathetically the question of relaxing the
qualification of maximum age prescribed for appointment to those posts in the case of those who have been victims of this system of ''ad hoc''
appointments. If any of the Petitioners in these petitions has under any existing rule acquired the right to be treated as a regularly appointed teacher,
his case shall be considered by the State Government and an appropriate order may be passed in his case.
In regard to the plea of the Writ Petitioners/Applicants (in W.P. Nos. 11492/2006 & 18969/2006) that the Petitioners have rendered their
services for more than 14 or 13 years, as the case may be, and that engaging of independent contractors and labour force on contract basis is
against the principles laid down in Contract Labour (Regulation and Abolition) Act, 1970, it is to be pointed out that in K. Butchi Reddy and
Others Vs. Central Administration Tribunal, Hyd. and others, , it is, among other things, held that ''There cannot be any doubt whatsoever that
after coming into force of the said Act; it is the appropriate Government, alone which can issue a notification in terms of the aforementioned
provision. A Court exercising the power of judicial review or even a High Court or the Supreme Court could not direct the appropriate
Government to issue such a notification''.
It is well settled principle in law that an Employee whether temporary or permanent is a Workman inasmuch as the labour laws do not make
any distinction, in the considered opinion of this Court. Even a part time Employee is also a workman under the Industrial Disputes Act, 1947.
Moreover, the Union of India or its Department could not follow a Policy of ad hocism for lengthy period as it is not a sound personnel policy
and will amount to breach of Articles 14 and 16 of the Constitution of India.
In this connection, it is relevant for this Court to quote the following decisions, to secure the ends of justice.
(i) In the decision of the Hon''ble Supreme Court in Arun Kumar Rout and Others Vs. State of Bihar and Others, at page 72, it is held as follows:
Although in the matter of getting appointment in the Government Service, the procedure required to be followed for such appointments cannot be
by passed and if the initial appointment was illegal on account of not following the procedure for appointment, the incumbent obtaining appointment
without following due procedure cannot claim as a matter of right to be regularised. This Court, however, has looked with sympathy when question
of regulation came for consideration in cases of temporary or adhoc appointments, even made improperly, if the incumbents had been allowed to
continue for a long time because of the human problem involved in such continued service. The Appellants had requisite qualifications. Their
performance has also not been reported unsatisfactory. They have been appointed against sanctioned posts. They were not guilty of any fraud or
sharp practice. The Appellants therefore deserve sympathetic consideration in getting appointment against sanctioned posts on humane
considerations.
(ii) In the decision of the Hon''ble Supreme Court in All Manipur Regular Posts Vacancies Substitute Teachers'' Association Vs. State of Manipur,
at page 645 in paragraph 6, it is observed and held as under:
Mr. Venugopal, learned Senior Advocate appeared for the State. He also explained the genesis of the case and the problem of the Department
for regularising the services of all the substituted teachers. Having heard counsel on both sides, it appears to us that it is necessary to make the
following order to avoid further litigation and also to avoid seemingly conflicting interim orders issued by the High Court.
1 All substituted/ad hoc teachers who have put in five years of service or more as on October 1, 1990 shall be regularised without pay D.P.C.
This regularisation would be subject to their possessing the required qualifications at the time of their initial appointment.
2 The substituted/ad hoc teachers who have rendered less than five years of service as on October 1, 1990 shall be allowed to appear before the
D.P.C. for selection. The D.P.C. shall be constituted exclusively for them within three months from today. Those who are selected by the D.P.C.
shall be regularised immediately thereafter.
3 Twenty three substituted/ad hoc teachers who have been already selected by the D.P.C. shall be regularly appointed forthwith retaining their
present seniority.
4 All the substituted/ad hoc teachers who ace in service as on today shall be allowed to continue in service till the D.P.C. declares its result of the
selection. The services of those who do not appear before D.P.C. or could not be selected by the D.P.C. could be terminated unless their services
are required for a further period.
It is said that the D.P.C. earlier convened has selected some persons for direct recruitment. If there are additional vacancies in addition to those
which are being occupied by the substituted/ad hoc teachers, they may straightway be appointed against those vacancies and the remaining if any
may be appointed after the D.P.C. completes the, process of selection of substituted/ ad hoc teachers for regularisation depending upon the
vacancy position.
As to the seniority between the direct recruits and the regularised candidates, we make it clear that the direct recruits other than those mentioned
in Para (3) above, shall be ranked below all the regularised candidates.
(iii) In the decision of the Hon''ble Supreme Court in Municipal Corporation of Delhi Vs. Jagan Nath Ashok Kumar and Another, at pages 499,
500 & 501 in paragraph 4, it is, among other things, observed that ''The Petitioners who were still ''ad-hoc'' doctors on the Zonal Railways, were
thus those doctors who either failed to appear in the Combined Medical Services Examination held by the UPSC or after appearing had failed.
Having failed to get regularised in accordance with the prescribed rules and regulations for regular appointments, the Petitioners services had to be
terminated and as such there had been neither any arbitrary nor illegal action on the part of the Respondents, nor any violation of the Fundamental
Rights guaranteed under Articles 14 and 16'' and it is observed and ordered as follows:
The services of all doctors appointed either, as Assistant Medical officers or as Assistant Divisional Medical officer on ad hoc basis upto
1.10.1984 shall be regularised in consultation with the Union Public Service Commission on the evaluation of their work and conduct on the basis
of their confidential reports in respect of the period subsequent to 1. 10.1982. Such evaluation shall be done by the Union Public Service
Commission. The doctors so regularised shall be appointed as Assistant Divisional Medical officers with effect from the date from which they have
been continuously working as Assistant Medical officer/Assistant Divisional Medical officer. The Railway shall be at liberty to terminate the
services of those who are not so regularised. If the services of any of the Petitioners appointed prior to 1. 10.84 have been terminated except on
resignation or on disciplinary grounds, he shall be also considered for regularisation and if found fit his services shall be regularised as if there was
no break in the continuity of service but without any back wages.
The Petitions of the Assistant Medical officer/Assistant Divisional Medical officers appointed subsequent to 1.10.1984 are dismissed. But we
however direct that the Assistant Divisional Medical officers who may have been now selected by the Union Public Service Commission shall first
be posted to the vacant posts available wherever they may be. If all those selected by the U.P.S.C. cannot be accommodated against the available
vacant posts they may be posted to the posts now held by the doctors appointed on ad hoc basis subsequent to 1. 10.1984 and on such posting
the doctor holding the post on ad hoc basis shall vacate the same. While making such postings the principle of ''last come, first go'' shall be
observed by the Railways on Zonal basis. If any doctor who is displaced pursuant to the above direction is wiling to serve in any other Zone where
there is a vacancy he may be accommodated on ad hoc basis in such vacancy.
All Assistant Medical officers/Assistant Divisional Medical officers working on ad hoc basis shall be paid the same salary and allowances as
Assistant Divisional Medical officers on the revised scale with effect from January 1, 1986. The arrears shall be paid within four months.
No ad hoc Assistant Medical officer/ Assistant Divisional Medical officer who may be working in the Railways shall be replaced by any newly
appointed AMO/ AMO on ad hoc basis. Whenever there is need for the appointment of any AMO/ ADMO on ad hoc basis is any Zone the
existing ad hoc AMO/ADM Os who are likely to be replaced by regularly appointed candidates shall be given preference.
If the ad hoc doctors appointed after 1.10.1984 apply for selection by the Union Public Service Commission the Union of India and the
Railways Department shall grant relaxation in age, to the extent of the period of service rendered by them as ad hoc doctors in the Railways.
(iv) In the decision of the Hon''ble Supreme Court in B.N. Nagarajan and Others Vs. State of Karnataka and Others, , it is laid down that ''the
words ""regular"" or ""regularisation"" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of
appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to
methodology followed in marking the appointments.''
(v) In Ambica Quarry Works v. State of Gujarat and Ors., (1987) 1 SCC 213 at page 221 in para 18, the Hon''ble Supreme Court has held thus:
... The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an
authority for what it actually decides, and not what logically follows from it.
(vi) Also, in the decision of Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. and Others, at page 130 in paragraph 59, the Hon''ble Supreme
Court has observed that ''59. ... It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential
value of a decision.'' As regards the applying of precedents, Lord Denning has observed as follows:
Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may
alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J.) by matching the colour of
one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at
all decisive.
The term ''Ad hoc'' is a latin word, its English equivalent is ''For this'' viz., created for a particular purpose. An employment of adhoc measure
is called as ''Adhocery''.
The plea of regularising and absorbing such irregular appointments is cemented on the security of tenure which is guaranteed by Part IV of the
Constitution as per decision the decision of the Hon''ble Apex Court in Daily Rated Casual Labour Employed under P and T Department Vs.
Union of India (UOI) and Others, .
It is true that an adhoc Appointee or Promotee has no right to the post as per the decision of the Hon''ble Supreme Court in State of Uttar
Pradesh V. Kaushal [1991 SCC 691]. The question of regularisation arises when a person who has been appointed on the temporary or adhoc or
contract basis is not discharged or reverted as soon as the purpose of his irregular appointment is over, but is allowed to continue indefinitely.
If an employee is recruited on adhoc basis, fulfilling all the conditions for regularisation as laid down by the Government of India in a policy
circular and the Appointing Authority recommends regularisation on being satisfied that the conditions are fulfilled and the regular vacancies exists,
the Government cannot refuse regularisation as per the desicions Jaginder Singh V. State of Punjab [1981 (2) SLR 792 P&H and Surjit Singh V.
State of Punjab [1999 (6) SLR 766 P&H (FB)].
The Hon''ble Supreme Court in Jacob M. Puthuparambil and others Vs. Kerala Water Authority and others, in para 15 has held that ''In view
of the directives in Part IV of the Constitution, including Article 41 of the Constitution of India instead of terminating the services of adhoc
employees who are serving for reasonably long period and possessing the requisite qualifications for regular appointments should be regularised in
consultation with Public Service Commission, if necessary.''
The 1st Respondent/Applicant in W.P. No. 16733 of 2009 in O.A. No. 406 of 2006 has been appointed as a Casual Labourer, by an order
dated 03.12.84 by the Assistant Collector of Central Excise, Customs Division, Nagapattinam and posted to Customs preventive party, Thanjavur
on monthly wages and she was continuously working in Petitioners'' Department from 03.12.1984 onwards without any break. She was given the
temporary status on 03.02.1994 on the premise that the Scheme dated 10.09.1993 for the grant of temporary status to casual labourers working
in Government Department was applicable to her, according to the Department. Subsequently, the Central Board of Excise and Customs letter
dated 20.01.1994 clarified that the Scheme of 1993 was not applicable to part time workers and therefore, the temporary status given to the 1st
Respondent/Applicant was withdrawn. Moreover, the DoPT, in their letter dated 12.07.1994, had clarified that the casual workers, who were not
initially engaged through Employment Exchange, were not to be conferred with temporary status. Admittedly, she was not recruited through
Employment Exchange.
As regards W.P. No. 16889 of 2009, it is the plea of the Petitioners that the Respondents/Applicants 1, 3, 5, 6, 7 and 18 are not presently
working in the Petitioners'' Department and that the Respondents/Applicants have not been engaged through Employment Exchange and they have
been engaged as casual labourers to do part time work on various dates and they have not been engaged against any regular sanctioned post and
the Official Memorandum of the Department of Personnel and Training dated 10.09.1993 is not applicable to the part time casual labourers which
has since been clarified by the 2nd Petitioner/Chairman, Central Board of Excise and Customs, New Delhi, as per letter dated 20.01.1994.
Further, when the 10.09.1993 Scheme has come into force, some of the Respondents have been working on part time basis and subsequent to the
Board''s clarification dated 20.01.1994, the part time casual workers are not eligible for the conferment of permanent status etc.
According to the Writ Petitioners/Applicants in W.P. Nos. 11492 of 2006 and W.P. No. 18969 of 2006, as per Establishment Order No.
10/2000 dated 03.02.2000, only 13 persons were granted temporary status and remaining 78 were not granted the temporary status. It is also
stated on behalf of the Writ Petitioners/Applicants (in both the Writ Petitions) that most of them have crossed 35 years of age and it was
impossible for them to secure a post either in the State Government or Central Government service hereafter.
Even though a plea has been taken on behalf of the Writ Petitioners (Government of India) in W.P. Nos. 16733 of 2009 & 16889 of 2009
and the Respondents in W.P. Nos. 11492 of 2006 & 18969 of 2006 that the in-house machinery set up internally to assist the Commissioner in
arriving at a possible solution as recommended by the Report dated 01.07.2009 that the casual labourers irregularly engaged in the works such as
sweeping, cleaning etc. and who continuously rendered service for ten years as on 11.12.2006 (date of the letter from DoPT communicating the
Apex Court judgment dated 10.4.2006) may be considered for regularisation, mutatis mutandis, by conferring Temporary Status and also that the
said Casual Labourers irregularly engaged in the works such as sweeping, cleaning, carrying water etc. who continuously rendered service for less
than ten years may also be considered for regularisation by conferring Temporary status on completion of ten years service, since all such
recruitments were prior to the ban. Subsequently, the Commissioner of Central Excise, Madurai, as per his letter No. II/26/01/2009-Estt dated
01.07.2009, had rejected the request of the Petitioners (Applicants) to confer temporary status and dispensed with the services of the Petitioners
(Applicants). We are of the considered view that the 1st Respondent in WP. No. 16733 of 2009, Respondents in WP. No. 16899 of 2009, Writ
Petitioners in WP. Nos. 11492 of 2006 & 18969 of 2006 / Applicants had put in long years of 13 or 14 years of service and in one case served
from 03.02.1984 continuously as casual workers and their long experience needs to be considered and their plea of temporary status and
consequent absorption or regularisation could not be brushed aside by the Writ Petitioners/Respondents'' Department in a lighter vein.
In W.P.M.P. No. 13091 and 13092 of 2006 in W.P. No. 11492 of 2006, this Court has passed an order on 24.04.2006 to the effect that
''the status quo as on date shall be maintained.'' Likewise, in M.P. No. 2 of 2006 in W.P. No. 18969 of 2006, this Court, on 22.06.2006, has,
inter alia, directed ''the Union of India and other Respondents to continue the services of the Petitioners until further orders''. Moreover, in M.P.
No. 1 of 2007 in M.P. No. 2 of 2006 in W.P. No. 18969 of 2006 by the order dated 05.07.2007, this Court, observing that there is no scope to
vacate the interim order dated 22.06.2006, had made the interim order absolute and dismissed the vacate stay petition. Also, the 1st Respondent
in WP. No. 16733 of 2009, Respondents in WP. No. 16899 of 2009, Writ Petitioners in W.P. Nos. 11492 of 2006 & 18969 of 2006
/Applicants are not guilty of any fraud or sharp practice.
In Union of India (UOI) and Another Vs. Mohan Pal, etc. etc., at page 577 in paragraph 9, the Hon''ble Supreme Court has observed as
follows:
Having regard to the general scheme of 1993, we are also of the view that the casual labourers who acquire ""temporary"" status cannot be
removed merely on the whims and fancies of the employer. If there is sufficient work and other casual labourers are still to be employed by the
employer for carrying out the work, the casual labourers who have acquired ""temporary"" status shall not be removed from service as per Clause 7
of the Scheme. If there is serious misconduct or violation of service rules, it would be open to the employer to dispense with the services of a
casual labourer who had acquired the ""temporary"" status.
Also, the Division Bench of the Calcutta High Court in T. Rajakili V. Union of India [W.P. (CT) No. 86 of 1999 (Cal) (DB)] held that
Clause 7 of the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme, 1993 must be read in a manner in which it does not
render it unconstitutional. The employers cannot at their whim dispense with the services of the casual labourers who have acquired ""temporary
status. The entire object of the 1993 Scheme was to regularise all casual workers. To allow such uncanalised power of termination would also
defeat the object of the Scheme. Dispensing with the services of a causal labourer under Clause 7 in our view, could be for misconduct etc.
In the light of the above and taking note of the fact that the 1st Respondent in WP. No. 16733 of 2009, Respondents in WP. No. 16899 of
2009, Writ Petitioners in WP. Nos. 11492 of 2006 & 18969 of 2006/ Applicants had put in fairly long spell of service, we have no hesitation to
hold that denying them the temporary status and the consequent regularisation is not a prudent and fair practice (and that too when the Department
of Personnel and Training in Office Memorandum dated 10.09.1993 framed one time regularisation scheme). Otherwise, it would amount to
violating the tenor and spirit of Articles 14 and 16 of the Constitution of India, besides discrimination, arbitrariness and unreasonableness.
Viewed in that perspective and also taking note of the overall assessment of the facts and circumstances of the present cases on hand which
float on the surface, in the interest of Equity, Fair Play, Good Conscience and on humane considerations, we direct the Writ Petitioners in W.P.
Nos. 16733 of 2009 & 16889 of 2009 and the Respondents in W.P. Nos. 11492 of 2006 & 18969/2006 (Department) to frame a similar
Scheme like that of Department of Personnel and Training Official Memorandum dated 10.09.1993 (one time regularisation scheme framed
already) to provide an opportunity of regular entry to the 1st Respondent in WP. No. 16733 of 2009, Respondents in WP. No. 16899 of 2009,
Writ Petitioners in WP. Nos. 11492 of 2006 & 18969 of 2006/Applicants subject to eligibility, possessing qualification, if any and after relaxing
the age bar and consider their case for regularisation, keeping in mind the Article 41 and Part IV of the directives of Constitution of India and grant
them security of tenure in accordance with law and in the manner known to law, within a period three months from the date of receipt of a copy of
this order.
With the above directions, all the Writ Petitions are disposed of, leaving the parties to bear their own costs. Consequently, connected
Miscellaneous Petitions are closed.