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2007 DIGILAW 266 (CAL)

JAYANTA CHAKRABORTY v. UNION OF INDIA

2007-04-05

GIRISH CHANDRA GUPTA, PRASENJIT MANDAL

body2007
MANDAL, J. ( 1 ) THIS writ application has been filed against the judgment and order dated 9/7/2004 passed by the Central Administrative Tribunal, calcutta Bench in O. A. No. 779 of 2003. The Tribunal has observed that the applicants had never worked for a continuous period of 240/206, days under the respondents preceding the date of issue of the O. M. dated 10/9/1993. So their claim for conferment of temporary status was not granted. ( 2 ) FACTS in short are that the three writ applicants have claimed that they were engaged as casual labourers sometime in 1984-1988 or thereafter under the respondents; but the respondents did not consider their claim of absorption as regular Group-D employees as per circular issued by the D. O. P. T in the letters dated 21. 03. 1979 and 26. 10. 1984. The writ applicants filed the cases before the Tribunal earlier which issued directions upon the respondents to consider their claim again and to pass a speaking order thereon. Then the respondents considered their case and rejected their claim. Being aggrieved by and dissatisfied with such rejection they have filed the case before the Tribunal which passed the impugned order. ( 3 ) AFTER careful consideration of the record and on hearing submission of the learned Advocate for the writ applicants, we find that the three writ applicants have failed to show that they had worked minimum for 240 days in each year for two consecutive years to get absorption under the respondents. They had relied upon the certificates marked as annexure P-11 to show that they had worked under the respondents. Such certificates, we hold, had not been issued by the competent authority on the basis of the office records. The certificates does not lay down that the writ applicants worked for 240 days minimum for each year for two consecutive years. The respondents have also contended that the writ applicant No. 3 did not work at all under the respondents but one certificate had been procured somehow. There is every doubt if the competent authority issued the certificates of Sri Jayanta Chakraborty, writ applicant no. 1, Sri Bharat Rajak, writ applicant No. 2 and Sri Tapan Kumar Shee, writ applicant No. 3. The writ applicant No. 3 was not engaged at all under the respondents as per officer record. There is every doubt if the competent authority issued the certificates of Sri Jayanta Chakraborty, writ applicant no. 1, Sri Bharat Rajak, writ applicant No. 2 and Sri Tapan Kumar Shee, writ applicant No. 3. The writ applicant No. 3 was not engaged at all under the respondents as per officer record. They could not show where or which unit of the field work/drill work they were attached to. There is dispute about the genuineness of the certificates. Real fact about the genuineness of the certificates could be ascertained by thorough enquiry only before the appropriate forum. There is no scope for holding such enquiry before the Tribunal or the Writ Court. For these reasons we hold that the Annexure p-11 could not be acted upon at all either before the Tribunal or before the writ Court. ( 4 ) THE writ applicants have contended that the number of days to be counted for their claim of absorption was 206 days not 240 days on taking into consideration of 5 day a week. Such contention, we hold, could not be accepted because as per record the writ applicant Nos. 1 and 2 were engaged in the field work, that is, drilling unit, investigation camps in the field etc. for a short time on contingent basis. The casual labourers were engaged for doing occasional works when required and their engagement was terminated when there was no work or at the end of the project. In case of engagement in the field work or drilling work the principle of 6 day a week is followed as per record. The learned Advocate for the writ applicant have referred to judgment where 5 day a week was considered in the case of other employees. With due respect to him, we hold, that those decisions on 5 day a week was considered in case of workers on daily wage basis in the office work and not in the field work or. drilling work. We are discussing afterwards that those judgments are not applicable in the Instant writ application. The writ applicants have based their claim on the circular O. M. dated 26. 10. 1984. This circular clearly lays down that the casual workers may be appointed if they are otherwise eligible and that the casual workers may be given one-day paid weekly off after 6 days of continuous work (Annexure P-6 ). The writ applicants have based their claim on the circular O. M. dated 26. 10. 1984. This circular clearly lays down that the casual workers may be appointed if they are otherwise eligible and that the casual workers may be given one-day paid weekly off after 6 days of continuous work (Annexure P-6 ). So in the case of engagement of casual workers in the field or drilling work the principle of 6 day a week shall be followed. The writ applicants were, therefore, required to show that they had worked at least 240 days in each year for regularization of their employment. But they had failed to show that they had worked for minimum 240 days in each year for the two consecutive years. So their claim for absorption could not be considered. ( 5 ) THE respondents had issued circulars from time to time such as d. O. P. T. 's O. M. s dated 21. 03. 1979, 26. 10. 1984 and 10. 09. 1993 for regularization of the casual labourers in the employment of the Government service which are summarized as follows:- (1) The applicant must have worked minimum 240/206 days in each year for two consecutive year before presentation of his claim. (2) The applicant must be on the roll on the date of Notification dated 10. 09. 1993. (3) The name of the applicant must be sponsored by the employment Exchange. (4) The applicant must be within the upper age limit meant for recruitment while he was first engaged as casual labour and (5) The applicant must possess the educational qualification, i. e. , required for appointment in the Group-D post. ( 6 ) THAT writ applicant did not claim that they had fulfilled such 5 criteria for absorption. Save some vogue certificates (Annexure P-11) the writ applicants had failed to produce any other paper to show fulfillment of the above criteria. Even they had failed to show any receipt of payment as casual labourers. There is no evidence that the writ applicants were within the upper age limit meant for recruitment while they had been engaged as casual labourers for the first time and that they possessed the minimum education qualification that was required for appointment in the Group-D post. As per contention of the writ applicants, they were not on the roll on the date of issuance of the O. M. dated 10,09. As per contention of the writ applicants, they were not on the roll on the date of issuance of the O. M. dated 10,09. 1993. Their services were terminated long back. The result was they were ineligible for consideration in the Government employment. ( 7 ) THE writ applicants have contended that they are relying on the circular O. M. dated 26. 10. 1984 and claiming reliefs accordingly. Such contention, we hold, cannot be accepted because of the fact that the O. M. dated 26. 10. 1984 could not be considered in isolated form ignoring the two other circulars O. Ms, dated 21. 03. 1979 and 10. 09. 1993. The circular o. M. dated 26. 10. 1984 was in further modification of the circular dated 21. 03. 1979. Similarly the circular dated 10. 03. 1993 had been made in further modification in the changed circumstances to satisfy the need of the society. The combined effect of these three circulars should be taken into consideration. ( 8 ) THE writ applicant Nos. 1 and 2 and others filed the O. A. No. 54 of 1999 and the writ applicant No. 3 and others filed the O. A. Case No. 1052 of 1997 before the Tribunal for regularization/absorption in the Government employment. Those two cases were disposed of with direction for reconsideration within three months from the date of communication. The competent authority considered their cases accordingly and they rejected the claim of the writ applicant Nos. 1 and 2 by order dated 21. 11. 2002 upon due consideration of the circular O. M. dated 21. 03. 1979 as modified from, time to time. The competent authority also rejected the claim of the writ applicant No. 3 on 07. 04. 2003 as he did not work at all as a casual worker at any point of time. Thereafter, they have filed the O. A. No. 779 of 2003 before the Tribunal. 03. 1979 as modified from, time to time. The competent authority also rejected the claim of the writ applicant No. 3 on 07. 04. 2003 as he did not work at all as a casual worker at any point of time. Thereafter, they have filed the O. A. No. 779 of 2003 before the Tribunal. ( 9 ) THE learned Advocate for the writ applicants has referred to the judgment of the O. A. No. 726 of 1990 (Annexure P-7), O. A. No. 1164 of 1995 (Annexure P-8) and O. A. No. 1071 of 1993 (Annexure P-9) passed by the Tribunal and submitted that under the similar circumstances casual workers engaged in between 1984-90 were absorbed in the department of the respondents and so the writ applicants should be treated equally and they should get absorption accordingly. Such submission of the learned advocate for the writ applicants, we hold, cannot be accepted because the facts of the three cases referred to are quite different from the present one. In O. A. No. 726 of 1990 (Annexure P-7) the casual workers were engaged in various types of official works such as clerical, machine operators, vehicle operators, storekeepers etc. and they worked more than 206 days taking 5 day a week. Therefore, the judgment of the O. A. No. 726 of 1990 cannot be taken as applicable in the instant case. Similarly, the judgment of the O. A. No. 1164 of 1995 (Annexure P-8) relates to direction upon the high power committee to consider the cases of the applicants for their absorption in the Group-D category if they are found eligible. I have held earlier that the writ applicants have failed to show eligibility for regularization/absorption and so they are not entitled to get employment at all. So this judgment is not also relevant in the present one. So far as the last judgment is concerned, i. e. , the O. A. No. 1071 of 1993 the respondents are directed to complete the process of verification for eligibility of some applicants within a specified period. This judgment is not also relevant because of ineligibility of the writ applicants for regularisation/absorption. So far as the last judgment is concerned, i. e. , the O. A. No. 1071 of 1993 the respondents are directed to complete the process of verification for eligibility of some applicants within a specified period. This judgment is not also relevant because of ineligibility of the writ applicants for regularisation/absorption. ( 10 ) ABOVE all, recently the Constitution Bench of the Apex Court has laid down the procedure for recruitment in the Government employment from the casual workers in the ruling Secretary, State of karnataka v. Umadevi, reported in 2006 (TLS) 42256: 2006 AIR (SCW)1991: 2006 (4) JT 420 . The Apex Court has directed that the Government is not precluded from making temporary appointment for engaging workers on daily wages but regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts are to be filled up and filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other consideration. Therefore, in view of such direction of the Apex Court the writ applicant Nos. 1 and 2 could be recruited only through the regular process of recruitment if they were eligible. The question of consideration of the writ applicant No. 3 did not arise at all because he was not engaged as a casual worker at any time. ( 11 ) IN the light of above observations we are of the view that the writ application is devoid of merits. The Tribunal has rightly rejected the o. A. No. 779 of 2003. The writ application is, therefore, dismissed.