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2008 DIGILAW 1886 (PNJ)

Raj Kumar v. Central Administrative Tribunal

2008-11-10

JORA SINGH, M.M.KUMAR

body2008
Judgment M.M.Kumar, J. 1. Challenge in the instant petition filed under Article 226 is to the order dated 11.09.1998 passed by the Central Administrative Tribunal, Chandigarh (for brevity The Tribunal) rejecting the plea raised by the petitioners that the temporary status granted to them by the respondent was continuous and was rightly granted to them in pursuance to the scheme dated 10.9.1993. 2. Brief facts of the case necessary for disposal of the controversy raised in the instant petition are that the petitioner had been working as Casual Labour with the respondent from different dates which would be clear from the following table: "S. No. Name Date of Employment Reference by Employment Exchange 1. Raj Kumar 21.11.1993 OC-27/93. dated 17.07.93 2. Sat Pal 24.11.1993 -do- 3. Ram Charan 28.11.1993 -do- 4. Ashok Kumar 01.12.1993 -do- 5. Sohan LaL 14.06.1994 OC/DW/ll/94/3029. dated 6.10.94 6. Banwari 14.06.1994 -do- 7. Ram Kumar 16.06.1994 OC/DW/ll/84/3029 dated 6.10.94 8. Kashmiri Lal 09.10.1994 -do- 9. Sish Pal 10.10.1994 -do- 10. Shankar 15.10.1994 -do- 3. On coming into force of the scheme dated 10.09.1993, the respondent granted them temporary status w.e.f. various dates of December, 1994 onwards which is evidenced from the following table: "S. No. Name Date of grant of Temporary Status 1. Raj Kumar 01.121994 2. Sat Pal 01.12.1994 3. Ram Charan 01.12.1994 4. Ashok Kumar 01.12.1994 5. Sohan Lal 08.10.1995 6. Banwari 08.10.1995 7. Ram Kumar 08.10.1995 8. Kashmiri Lal 09.10.1995 9. Sish Pal 10.10.1995 10. Shankar 15.10.1995" 4. The scheme was circulated on 10.09.1993 to which reference has been made in the petition (noticed at page 63). The salient feature of the scheme are reproduced herein below: "Temporary status should be conferred on all Casual Labourers who are in employment on 01.09.93 (recruited through employment exchange) and have rendered continuous service of at least one year (they have been engaged for 240 days as on 01.09.1993." 5. The perusal of the aforementioned para would reveal that temporary status would have been conferred on such Casual Labourers who are in employment on 01.09.1993 and they should have rendered continuous service of at least one year as on 01.09.1993. On the basis of clarification issued on 20.09.1998, the petitioners were deprived of temporary status by passing an order dated 14.04.1998 (Annexure P-9). The order dated 04.08.1998 (Annexure P-10) was challenged by the petitioner before the Tribunal. On the basis of clarification issued on 20.09.1998, the petitioners were deprived of temporary status by passing an order dated 14.04.1998 (Annexure P-9). The order dated 04.08.1998 (Annexure P-10) was challenged by the petitioner before the Tribunal. The claim made by the petitioner that the order suffers from legal infirmities has been negatived. The Tribunal has observed that as per the scheme, the temporary status of the petitioners would have been conferred as they fulfilled the requirements. The first requirement was that they should have been in service on 01.09.2003 and secondly they should have rendered continuous service of at least one year or if they satisfy the requirement of being engaged for 240 days as on 01.09.1993. The Tribunal has concluded that the petitioners did not fulfill the aforementioned requirements and it has been further observed by the Tribunal that under no law it has been recognized that a Casual Labourers would become entitled to be regularized or granted temporary status after completing 240 days in service and such a claim has to be covered under some rules which if at all adopted by various departments of Government of India. Arguments that principles of natural justice should have been followed by issuing notice to them at the pre-decisional stage has also been rejected with the observation that in case of correction of a mistake there is no necessity to issue a show-cause notice. In that regard, reliance has been placed by the Tribunal on the judgment of Honble the Supreme Court in the case of State of M.P and others vs. Shyama Pardhi, 1996(7) SCC 118 6. Feeling aggrieved, the petitioner has challenged the order of the Tribunal in the instant petition. However, no one has appeared for the petitioners. 7. Mr. Namit Kumar, learned counsel for the petitioner has cited a judgment of Honble the Supreme Court rendered in the case of Controller of Defence Accounts vs. Dhani Ram and others, 2007(4) RAJ 637 and argued that the same scheme was under consideration in that case. Learned counsel has maintained that temporary status could be given to those casual labourers who were in employment as on the date of commencement of the scheme subject to fulfillment of conditions of the scheme. Learned counsel has maintained that temporary status could be given to those casual labourers who were in employment as on the date of commencement of the scheme subject to fulfillment of conditions of the scheme. He has further submitted that according to the views expressed by their Lordships of Honble the Supreme Court, the scheme is not continuous one and it is not an ongoing scheme. In other words, the petitioners would not become to continue working permanently in accordance with the scheme. Learned counsel has maintained that once the aforesaid legal proposition is settled by Honble the Supreme Court, then there is no room to disagree with the view expressed by the Tribunal. 8. Having heard the learned counsel for the respondents, we are of the considered view that there is no merit in the petition and the same is liable to be dismissed, the scheme on the basis of which the petitioners were granted temporary status was circulated by the Department of Personnel, vide letter dated 10.09.1993. The salient features of the scheme are given below which reads thus: (a) Temporary status should be conferred on all Casual Labourers who are in employment on 1.9.93 (recruited through Employment Exchange) and have rendered continuous service of at least one year they have been, engaged for 240 days as on 1.9.1993. (b) Temporary status will be conferred even when no regular Group D post is available. (c) Casual Labour granted temporary status will be entitled for daily rates of pay with references to minimum of pay scale for group D post plus DA, NRA, CCA and Interim relief. (d) They will be entitled for annual increment on - completion of one year services (minimum 240 days work) from the date of conferment of temporary status." 9. Honble the Supreme Court interpreted a clause similar to the clause (a) which has been reproduced above, it has been held in Paras 12 and 13 of the Judgment in the case of Dhani Ram and others (supra) that the scheme does not envisage - as an ongoing scheme. The views of their Lordships is discernible in paras 12 and 13 of the Judgment which reads thus: "12. Clause 4 of the Scheme is very clear that the conferment of "temporary" status is to be given to the casual labourers who were in employment as on the date of commencement of the Scheme. The views of their Lordships is discernible in paras 12 and 13 of the Judgment which reads thus: "12. Clause 4 of the Scheme is very clear that the conferment of "temporary" status is to be given to the casual labourers who were in employment as on the date of commencement of the Scheme. High Court seems to have taken the view that this is an ongoing scheme and as and when casual labourers complete 240 days of work in a year or 206 days (in case of offices observing 5 days a week), they are entitled to get "temporary" status. Clearly clause 4 of the Scheme does not envisage it as an ongoing scheme, (n order to acquire "temporary" status, the casual labourer should have been in employment as on the date of commencement of the Scheme and he should have also rendered a continuous service of at least one year which means that he should have been engaged for a period of at least 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 bea general guideline to be applied for the purpose of giving "temporary" status to all the casual workers, as and when they complete one years continuous service. Of couse, it is up to 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 Group "D" posts. 13. This position as highlighted in Mohan Pals case (supra) was reiterated in Union of India vs. Gagan Kumar, JT 2005(6) SC 410 and Director General, Doordarshan, Mandi House, New Delhi and Ors. vs. Manas Dey and Ors., 2005(13) SCC 437." 10. When the aforementioned principles are applied to the facts of the present case, no doubt is left that the scheme floated by the respondents, is not a continuous scheme and the view expressed by the Tribunal deserves to be upheld. The matter is squarely, covered by the Judgment of Honble the Supreme Court in the case of Dhani Raim and others (supra)." 11. The matter is squarely, covered by the Judgment of Honble the Supreme Court in the case of Dhani Raim and others (supra)." 11. The argument of the petitioners as per the pleadings before this Court as also before the Tribunal has been that the principles of natural justice were required to be followed by the respondents before passing the impugned order on 11.09.1998. The aforementioned argument has been repelled on the strength of the Judgment of Honble the Supreme Court rendered in Shyma Pardhis case (supra). While endorsing the view taken by the Tribunal, it would be further appropriate to notice that the principles of natural justice are not required to be followed if the result of quashing an order on that ground would have the effect of revivaJ of an illegal order. \n that regard reliance may be placed on the Judgment of Honble the Supreme Court in case of Gadde Venkatesawara Rao vs. State of Andhra Pradesh, 1966(2) SCR 172 Therefore, it is not always necessary to set aside an order merely on the ground that the order has been passed against the petitioner in breach of natural justice. The courts can under Article 226 refuse to exercise its discretion of setting aside such an order if it would results in restoration of another order passed earlier in favour of the petitioner which was not in accordance with law. The aforementioned view has been followed in the case of M.G. Mehta vs. Union of India, 1999(6) SCC 23 7 and Raj Kumar Soni vs. State of U.P., 2007(10) SCC 635 12. The order of conferring temporary status on the petitioners passed by the respondent was not in accordance with the stipulations of the scheme circulated on 10.09.1993 because as per the requirement of the scheme, the petitioner should have been in service as on 01.09.2003. The petitioners did not fulfill both the aforementioned requirements the lack one year service to their credit on 01.09.1993 and they were also not in service on that date. Therefore, setting aside the order dated 11.09.1998 withdrawing the temporary status from the petitioners would result into revival of order conferring temporary status on them to which they were not entitled according to the scheme. Therefore, setting aside the order dated 11.09.1998 withdrawing the temporary status from the petitioners would result into revival of order conferring temporary status on them to which they were not entitled according to the scheme. Respectfully following the view taken by their Lordships of Honble the Supreme Court, we endorse the view of the Tribunal and refuse to exercise jurisdiction under Article 226 in favour of the petitioner. 13. As a sequel of the above discussion, the writ petition fails and the same is accordingly disposed of.