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2005 DIGILAW 437 (GAU)

Union of India v. Nehu Casual Labour Association

2005-06-07

BIPLAB KUMAR SHARMA, I.A.ANSARI

body2005
JUDGMENT B.K. Sharma, J. 1. This writ appeal is directed against the judgment and order dated 24.8.2002 passed by the learned Single Judge in the writ petition being WP(C) No. 69 (SH)/1999, by which the prayer of the Petitioner representing 69 causal employees working in the establishment of North Eastern Hill University (NEHU) to extend the benefit of a particular scheme was accepted. 2. The writ Petitioner representing the interest of 69 casual workers under the establishment of NEHU filed the writ petition for granting the relief indicated in paragraph 22 of the writ petition. Paragraph 22 of the writ petition reads as follows: (1) That the restriction imposed in sub-para 2 of para 1 of letter No. F-6-2/97 (CU) dated 22/4/98 (Annexure-4) from the U.G.C. addressed to the Registrar NEHU vide Annexure 5 particularly the portion "does not apply to all those persons who have been engaged after 10/9/93" be expunged, deleted and set aside having no basis and highly arbitrary contrary to and against the "Casual Labourers (Grant of Temporary status and Regularization) Scheme of Govt. of India, 1993". (Annexure-2). (2) That those casual labourers in view of length of their service for one year and more fulfilling the condition of engagement for at least 240 days in a year be given the Temporary status from 1/9/93 or on completion of one year, whichever is later by grant of writ of Mandamus or other writ or direction by the Hon'ble High Court. (3) That a writ of the nature of Certiorari or any other writ or direction be issued setting aside and quashing the corrigendum vide No. F.13-11/Estt-1/Apptt/96/438 dated 16/10/98 Annexure-9 so that the earlier order by the said authority i.e. the NEHU vide No. F. 13-11/Estt/-1/Apptt/96-425 dated 8/10/98 (Annexure-8) be in full force and operation to entitle all casual labourer in the pre-revised scale to the benefit of Revise Scale of Rs.2550-55-2660-60-3200/- on pro-rata and on the basis of l/30th of the Min. of the scale w.e.f. 1/1/96. (4) Any other relief or relief(s) to which the Petitioners may be entitled under law and equity. (5) Cost of the suit. 3. In the writ petition, apart from the NEHU and its Vice Chancellor, the other two Respondents were the Union of India in the Ministry of Human Resource Development and the University Grants Commission (UGC). 4. (4) Any other relief or relief(s) to which the Petitioners may be entitled under law and equity. (5) Cost of the suit. 3. In the writ petition, apart from the NEHU and its Vice Chancellor, the other two Respondents were the Union of India in the Ministry of Human Resource Development and the University Grants Commission (UGC). 4. Pursuant to a decision of the Central Administrative Tribunal, Principal Bench, New Delhi, rendered way back in 1990 (16.2.1990), the Government of India in the Ministry of Personnel, PG and Pensions, issued an office memorandum dated 10.9.1993 on the subject of grant of temporary status and regularization of casual workers. The scheme is called "Casual Labourers (Grant of Temporary Status and Regularization) Scheme of Government of India; 1993. The scheme came into force with effect from 1.9.93 and was made applicable to the casual labourers working in various Ministries/Departments of Government of India and its attached and subordinate offices on the date of issue of the scheme. The scheme was not applicable to the casual labourers working in the Railways, Department of Telecommunication and the Department of Posts since they had their own schemes. 5. As per the provisions of the scheme, the casual labourers covered by the scheme were entitled to conferment of temporary status on completion of 240 days of service in a year. There is no dispute that the casual labourers involved in this proceeding were not in employment on the date of issue of the scheme vide Office Memorandum dated 10.9.93 effective from 1.9.93. Thus, the scheme was not applicable to them. The scheme was made applicable to the casual labourers of the Central Universities by the UGC by their communication dated 22.4.98. It was clarified in the said communication in tune with the scheme that the scheme would be applicable to those casual labourers who were in employment on daily wage basis on jobs meant for Group-D employees on the date of issue of the office memorandum dated 10.9.93. According to the Petitioner, such a cut off date i.e. 10.9.93 or 1.9.93 specified by the UGC was not in conformity with the idea behind the scheme. According to the Petitioner, such a cut off date i.e. 10.9.93 or 1.9.93 specified by the UGC was not in conformity with the idea behind the scheme. Referring to an earlier scheme of 1988 it was the case of the Petitioners that the benefit of conferment of temporary status stipulated in the scheme of 1993, ought to have been extended to the casual workers working in the establishment of NEHU who were engaged after the cut off date. 6. The Petitioners made a grievance in the writ petition that the NEHU Authority by their Annexure-7 and 8 orders annexed to the writ petition dated 6.4.99 and 8.10.98 extended the benefit of the scheme with effect from 15.9.98 only in respect of 35 casual workers leaving aside the case of the casual labourers involved in this proceeding. A grievance relating to revised daily wages was also made in the writ petition. However, the basic grievance raised in the writ petition was in respect of the cut off date indicated in the scheme i.e. 1/10.9.93. 7. The NEHU authority responded to the writ petition by filing counter affidavit taking the specific ground that the scheme in question was a composite one and was applicable to the casual labourers who were in employment with the requisite criteria for conferment of temporary status on the date of promulgation of the scheme. Further stand in the affidavit was that the University would have no objection to grant the Petitioners the benefit of the scheme if the Ministry of Human Resource Development and the UGC could stretch the cut off date. 8. The Union of India i.e. the Respondent No. 1 also filed counter affidavit stating inter alia that the NEHU being a Central University created by an Act of the Union Parliament can adopt the scheme through the Executive Council. The UGC i.e. the Respondent No. 2 also filed counter affidavit highlighting the various facets of the scheme and its applicability on the date of issuance of the scheme. 9. The learned Single Judge, by the impugned judgment and order dated 25.2.2002 allowed the writ petition granting the following reliefs. The UGC i.e. the Respondent No. 2 also filed counter affidavit highlighting the various facets of the scheme and its applicability on the date of issuance of the scheme. 9. The learned Single Judge, by the impugned judgment and order dated 25.2.2002 allowed the writ petition granting the following reliefs. (i) The restriction imposed in sub-para (2) of para-1 of the letter No. F-6-2/97 (CU) dated 22.4.1998 as in Annexure-4 to the writ petition of the UGC and addressed to die registrar, NEHU vide Annexure-5, particularly the potion "does not apply to all those persons who have been engaged after 10.9.1993" is hereby treated as expunged and, accordingly, the same is set aside. (ii) The writ Petitioners shall be given temporary status from 1.9.1993 or on completion of one year according to their respective dates of engagement/appointment in terms of the observations and direction of his court as highlighted in the foregoing paragraphs of this judgment. (iii) The impugned corrigendum bearing No. F.13-11/Estt-1/Apptt/96/438 dated 16.10.1998 as in Annexure-9 is hereby quashed thus restoring the earlier order issued by the Respondent-NEH Ubearing No. F.13-11/Estt/1/Apptt/96/425 dated 8.10.1998 (Annexure-8 to the writ petition). In other words, the order dated 8.10.1998 shall remain in force and operative and all casual employees, i.e. the Petitioners herein, shall be entitled to the benefit of revised scale of pay of Rs.2550.55.2660.60.3200/- on pro-rata and on the basis of 1/30th of the minimum of the scale with effect from 1.1.1998. 10. Being aggrieved, the present writ appeal has been preferred by the Union of India and other Respondents in the writ petition. The writ appeal was admitted by an order dated 26.8.2003 and subsequently, by yet Anr. order dated 27.8.2003 the impugned judgment and order was stayed so far as the same was in respect of the Union of India The stay of the impugned judgment and order was made applicable only in respect of Union of India in view of the fact that the application for stay vide Misc. case No. 176 (SH)/2002 was preferred only by the Union of India in the Ministry of Human Resource Development. However, the writ appeal has been preferred by all the Respondents in the writ petition. 11. Mr. S.C. Shyam, learned Central Government Counsel appearing on behalf of the Appellants submits that on the face of it, the directions contained in the impugned judgment and order are not tenable. However, the writ appeal has been preferred by all the Respondents in the writ petition. 11. Mr. S.C. Shyam, learned Central Government Counsel appearing on behalf of the Appellants submits that on the face of it, the directions contained in the impugned judgment and order are not tenable. Placing reliance on the decision of the Apex Court as reported in AIR 2002 SC 2001 (Union of India v. Mohan Pal), Mr. Shyam submits that the scheme having envisaged the eligibility criteria with the specific cut off date, same cannot be extended to the Petitioners as an ongoing scheme. 12. Countering the above arguments, Mr. B.N. Dutta, learned Sr. Counsel assisted by Mr. B. Dutta, learned Counsel submits that having regard to the spirit, object and purpose for which the scheme was formulated, the learned Single Judge rightly issued the directions contained in the impugned judgment and order. According to him the cut off date specified in the scheme and in the UGC's letter dated 22.4.98 ought not to have been introduced so as to exclude the Petitioners from the purview of the benefits contemplated in the scheme. Supporting the impugned judgment and order Mr. Dutta, learned Sr. Counsel also placed reliance on the following decisions of the Apex Court: AIR 2001 SC 706 (Gujarat Agricultural University v. Rathod Labhu Bechar and Ors.) AIR 2000 SC 3287 (Hindustan Machine Tools v. M. Rangareddy and Ors.) AIR 1998 SC 519 (Delhi Municipal Karmachari Ekta Union v. P.L. Singh and Ors.) 2003 (3) GLT 691 (Gyati Hangu v. Union of India and Ors.) (1988) 1 SCC 122 (Daily Rated Casual Labourer v. Union of India) 13. We have given our anxious consideration to the submissions made by the learned Counsel for the parties and the materials available on records. There is no dispute that the scheme in question came into operation with effect from 1/10.9.93. There is also no dispute that the provisions of the scheme were made applicable only to those casual labourers who were in employment on the date of promulgation of the scheme fulfilling the eligibility criteria for conferment of temporary status. It is also an admitted position that the Petitioners do not come within the purview of the scheme, they having been engaged after the cut off date. It is also an admitted position that the Petitioners do not come within the purview of the scheme, they having been engaged after the cut off date. The Apex Court dealing with the scheme in the aforesaid case of Mohan Pal has held in no uncertain terms, that as per Clause 4 of the scheme, the conferment of temporary status is to be given to the casual labourers who were in employment on the date of commencement of the scheme. As in the instant case, in the said case also, some of the Benches of the Central Administrative Tribunal took the view that the scheme was an ongoing process and as and when the casual labourers complete 240 days of work in the year, they are entitled to get temporary status. The Apex Court observed as follows: We do not think that Clause 4 of the scheme envisages it as an ongoing scheme. In order to acquire 'temporary' status, the casual labourer should have been in employment as on the date of commencement of the scheme and the should have also rendered a continuous service of at least 1 year which means that he should have been engaged for a period of atleast 240 days in a year or 206 days in case of offices observing 5 days a week. From Clause 4 of the scheme it does not appear to be a general guideline to be applied for the purpose of giving 'temporary' status to all the casual workers, as and when they complete one year's continuous service. Of course it is up to the Union Government to formulate any scheme as and when it is found necessary that casual labourers are to be given 'temporary' status and later they are to be absorbed in Group- 'D' posts. 14. The above view of the Apex Court has really clinched the issue in favour of the Appellants and the issue is no longer res-integra. Mr. Dutta, learned Sr. Counsel for the Respondent has, however, has emphasized on the exception made by the Apex Court in the said judgment. The Apex Court after laying down the law as aforesaid made an exception in respect of those casual workers who were conferred with temporary status pursuant to the orders passed by the Central Administrative Tribunal, although, they did not fulfill the criteria laid down in the scheme including the cut off date. The Apex Court after laying down the law as aforesaid made an exception in respect of those casual workers who were conferred with temporary status pursuant to the orders passed by the Central Administrative Tribunal, although, they did not fulfill the criteria laid down in the scheme including the cut off date. The Apex Court while laying down the law as aforesaid made an exception in respect of those casual labourers who were already conferred temporary status, but has not laid down any law of universal application. The Apex Court adopted such a course of action in exercise of its power under Article142 of the Constitution of India. 15. Moreover, it is the decision on question of law which alone can be followed. Needless to say, that the Apex Court has wider jurisdiction under Article 142 of the Constitution of India whereas the High Court's jurisdiction under Article 226 of the Constitution of India is limited, a decision is available as a precedent only if it decides a question of law. Merely because the Supreme Court has made an exception in the aforesaid case, the High Court in exercise of its power of judicial review cannot ignore the question of law laid down by the Apex Court so as to follow the exception made by it. In the case of State of Punjab v. Surinder Kumar reported in (1992) 1 SCC 489 , the Apex Court emphasized on the above aspects of the matter and deprecated the approach of the High Court in issuing direction towards regularization of the services of the part time workers following the orders passed by the Apex Court without assigning any reason. 16. Once it is held that the writ Petitioners were not entitled to the benefits of the scheme and consequently the learned Single Judge could not have issued direction to extend the benefits to the Petitioners, who were admittedly appointed after the cut off date, the reliance placed by Mr. Dutta on the judgments referred to above, are of no assistance to the case of the Respondents/writ Petitioners. 17. In the case of Gujarat Agricultural University (supra), the University itself adopted a scheme for absorption/regularization of the daily wage workers completing more than 10 years of continuous service. It was in that context, the Apex Court found fault with the University authority in their defence of financial viability and eligibility clause. 17. In the case of Gujarat Agricultural University (supra), the University itself adopted a scheme for absorption/regularization of the daily wage workers completing more than 10 years of continuous service. It was in that context, the Apex Court found fault with the University authority in their defence of financial viability and eligibility clause. In the instant case, it is not the NEHU authority which has formulated the scheme. It has merely adopted the scheme formulated by the Government of India. Thus this case is of no help to the case of the Respondent/writ Petitioners. 18. In the case of Hindustan Machine Tools (supra) the Apex Court having regard to the fact that the casual workers involved in the case had rendered almost 10 years of continuous service issued direction to frame scheme for absorption of such workers. In the instant case, no such prayer was made by the writ Petitioners and instead wanted the benefit of the scheme of 1993, which was not applicable to them. Moreover, unlike the said case in which there was no scheme, in the instant case the scheme was formulated pursuant to the decision of the Central Administrative Tribunal, Principal Bench which was adopted by the NEHU authority. If the Petitioners do not come within the purview of the said scheme, they cannot claim that the eligibility criteria laid down in the scheme should invariably be extended to them. It has already been held by the Apex Court in the aforesaid case of Mohan Pal that the scheme is not an ongoing process but was made as a one time measure. 19. In the case of Delhi Municipal Karmachari Ekta Union (supra), the Apex Court issued direction for providing wages to the vaccinators/immunizers involved in the appeal, the wages at the rate equivalent to the minimum pay in the scale of regularly employed vaccinators/immunizers. That was a case of extracting works of equal nature and amount from daily wage vaccinators/immunizers like that of regular employees without payment of adequate wages. Thus, this case also is of no help to the case of the Respondents/writ Petitioner. 20. The Apex Court in the case of Daily Rated casual Labourers (supra) emphasized the need for framing scheme for absorption of casual labourers working in the Department of Posts. Pursuant thereto, the Department of Posts formulate a scheme laying down different parameters for absorption of casual labourers. 20. The Apex Court in the case of Daily Rated casual Labourers (supra) emphasized the need for framing scheme for absorption of casual labourers working in the Department of Posts. Pursuant thereto, the Department of Posts formulate a scheme laying down different parameters for absorption of casual labourers. In that case also cut off date was stipulated and the scheme was not an ongoing process. As in the said case, in the instant case also the scheme has already been formulated. The Respondents cannot claim as a matter of right to extend the benefit of the scheme in the manner and method in which they want, which, if granted, will mean that the scheme is an ongoing process, which in fact is not, as has been held by the Apex Court in the aforesaid case of Mohan Pal. 21. The last case, on which Mr. Dutta, placed reliance i.e. Gyati Hangu (supra), this Court dealing with the question of regularization of the services of Casual and Contractual Transmission Executives (Dialect) in All India Radio, while holding that the conditions of recruitment cannot be relaxed and the claim for regularization is not tenable provided consideration of the case of the Petitioners sympathetically in view of their long years of service. Same is not the case in hand. It was never the case of the writ Petitioners that in view of long years of service they are entitled to regularization of their services. As per their own case, they wanted extension of the cut off date and eligibility criteria envisaged in the scheme. The learned Single Judge granted the same virtually taking the same line as was adopted by some of the Benches of the Central Administrative Tribunal that the scheme is an ongoing process. The Apex Court in the aforesaid case of Mohan Pal has laid down the law as discussed above. The issue being no longer res-integra, this Court cannot take a different view on the basis of the persuasive pursuits and efforts made by Mr. Dutta, learned Sr. Counsel for the Respondents/writ Petitioners. 22. Mr. Dutta, learned Sr. Counsel for the Respondents/writ Petitioners has forcefully argued that the NEHU and UGC having not preferred the appeal and that the NEHU having adopted the scheme in 1998, they are bound by the judgment and their action. We are afraid such an argument is not at all tenable. Counsel for the Respondents/writ Petitioners. 22. Mr. Dutta, learned Sr. Counsel for the Respondents/writ Petitioners has forcefully argued that the NEHU and UGC having not preferred the appeal and that the NEHU having adopted the scheme in 1998, they are bound by the judgment and their action. We are afraid such an argument is not at all tenable. Firstly, the appeal has been preferred by all the Respondents in the writ petition which include the NEHU authority and the UGC. While it is true that the application for stay of the impugned judgment and order was moved by the Union of India alone, that by itself cannot frustrate the appeal so far as the other Appellants are concerned. Secondly, although the University authority adopted the scheme in 1998, that by itself will not mean that the scheme was made applicable even to the casual labourers who were appointed after 1/10.9.93. Adoption of the scheme in 1998 cannot extend the benefits to those casual labourers who were appointed after the cut off date. The university authority made their position clear by their stand in the counter affidavit in paragraphs 14 and 17, relevant portion of which are quoted below: 14. That in reply to para 11 it is submitted that from the clarification as given in the foregoing para 10, it is clear that the Temporary Status Scheme of the Govt. of India is not intended to be a running Scheme as contended by the Petitioner. In so far as the Govt. of India (Department of Personnel and Training) instructions are concerned, the Scheme was rather intended to be a compressed one, meant to apply once for all to the casual labourers eligible as on the date of promulgation of the Scheme leaving no scope for eligible cases in future. 17. The University will have no objection to grant the Petitioners the benefit of the Govt. of India Scheme if the Ministry of Human Resource Development/University Grants Commission could stretch the cut off date suitably and also concur to the financial liability. The University had already apprised the UGC about desirability of deferring the cut off date vide letter No. F.13-11/Estt-7/Apptt/96-842 dtd. 5.6.99. 23. of India Scheme if the Ministry of Human Resource Development/University Grants Commission could stretch the cut off date suitably and also concur to the financial liability. The University had already apprised the UGC about desirability of deferring the cut off date vide letter No. F.13-11/Estt-7/Apptt/96-842 dtd. 5.6.99. 23. In view of the above, we are of the considered opinion that the direction contained in the impugned judgment and order are contrary to the law laid down by the Apex Court in the aforesaid case of Mohan Pal. Even otherwise also the scheme cannot be made applicable for all the time to come when the same was prepared under a particular fact situation pursuant to the aforesaid decision of the Central Administrative Tribunal Principal Bench. 24. As observed by the Apex Court, it will be open for the Appellants to adopt such future scheme as and when it is found necessary. No mandamus can be issued in this regard. Further, merely because, the NEHU authority is not adverse to extending the benefit of the scheme to the writ Petitioners/Respondents, same may itself will not cloth them with any kind of right so as to be covered by the scheme when there is no manner of doubt that the NEHU being a Central University is dependent on the grants provided by the UGC. Even otherwise also in absence of any independent scheme adopted by the University Authority, they cannot claim the benefit of temporary status as envisaged in the scheme in question on their failure to fulfil the eligibility criteria. 25. The writ appeal stands allowed by setting aside the impugned judgment and order dated 24.8.2002 passed in WP(C) No. 69 (SH) of 1999. Consequently the said writ petition stands dismissed. Having regard to the facts and circumstances involved in the case, we leave the parties to bear their own costs. 26. Writ appeal stands allowed.