Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 833 (HP)

Paras Ram Sharma v. Union of India

2014-07-04

DHARAM CHAND CHAUDHARY, V.K.SHARMA

body2014
JUDGMENT V.K. Sharma, J. (Oral). In this petition under Articles 226/227 of the Constitution, the petitioner has laid challenge against the orders dated 9.8.2007 (in review) and 2.7.2007 (in the original application), rendered by the learned Central Administrative Tribunal (in short, ‘CAT’), Chandigarh Bench. 2. The case set up by the petitioner before the learned Tribunal in the original application (OA), copy of which has been brought on record as Annexure P-3, was based on the following substantive prayers vide paras i) to iii):- “i) That the respondents may kindly be directed not to dis-engage the services of the applicant as ordered by them not to come from 26th March,2004 and the respondents may kindly be directed to allow the applicant as Cook-cum-Chowkidar in Guest House Manali, H.P. ii) That the respondents may further kindly be directed to give Temporary Status to the applicant on completion of one years of service as per the Scheme Framed by the Government of India with all consequential benefits and arrears. iii) That the respondents may kindly be directed to regularize the services of the applicant after completion of the eight years of service with all consequential benefits and arrears with interest at the rate of 12% per annum”. 3. The petitioner was non-suited by the learned Tribunal mainly on the ground that his initial engagement as a Cook-cum-Chowkidar on casual basis was not through the Employment Exchange. 4. Before this court, the petitioner is seeking the following substantive reliefs:- “i) That the impugned orders dated 9.8.2007 and 2.7.2007 contained in Annexure-P-1 and P-2 passed by the learned Central Administrative Tribunal may kindly be quashed and set aside and the relief(s) claimed in the O.A. and Review Application may please be granted in favour of the petitioner. ii) That the respondents may kindly be directed not to dis-engage the service of the Applicant as ordered by them not to come from 26th March,2004 and the Respondents may kindly be directed to allow the Applicant as Cook-cum-Chowkidar in Guest House, Mandi, H.P. iii) That the respondents may further kindly be directed to give Temporary Status to the applicant on completion of one year of service as per the Scheme framed by the Government of India with all consequential benefits and arrears. iv) That the respondents may kindly be directed to regularize the services of the Applicant after completion of the eight years of service with all consequential benefits and arrears with interest at the rate of 12% per annum. 5. Be it stated at the very outset that the petitioner is not pressing the claim for regularization. 6.The respondents are contesting the writ petition on the averments stated vide para 8 of their reply, which is as under:- “8. That the contents of para-8 of the writ petition are admitted to the extent that the petitioner joined service in the year 1992. However, it is submitted that the claim of the petitioner for temporary status after completion of one year and regularization after eight years of service is not tenable as per the instructions issued by the Government of India from time to time. Moreover, the Government of India has clarified, vide its office Memorandum dated 12.7.1994, that it is mandatory that the name of the casual worker be sponsored through the Employment Exchange along with the condition that the casual worker should have rendered one year’s service with 206 days on the date of issue of orders from the Department of Personnel and Training dated 10.9.1993. A copy of office Memorandum dated 12.7.1994 is appended herewith as Annexure R-1. It is further submitted that the case of the petitioner along with 31 other similarly engaged casual workers was sent to the Central Board of Excise & Customs by the cadre controlling authority. Chandigarh, vide letter dated 7.7.1998, for relaxation of the provisions of the Recruitment Rules and further regularization of these casual workers, who were not engaged through Employment Exchange. Copy of such letter is appended herewith as Annexure:R-2. However, the concerned Ministry has disapproved such relaxation and vide letter dated 10.5.1999, a copy of which is appended herewith as Annexure:R-3.The Ministry has directed that the Department should take action as per Department of Personnel& Training instructions issued vided office Memorandum dated 7.6.1988, a copy of which is appended herewith as Annexure:R-4 and office Memorandum dated 10.9.1993, a copy of which is appended herewith as Annexure:R-5. It was in these circumstances that the petitioner was not granted temporary status.” 7. We have heard the learned counsel for the petitioner and the learned Central Government Standing Counsel and gone through the records. 8. It was in these circumstances that the petitioner was not granted temporary status.” 7. We have heard the learned counsel for the petitioner and the learned Central Government Standing Counsel and gone through the records. 8. The ‘Report regarding regularization of casual workers in respect of Central Excise Commissionerate, Chandigarh-T/(Chandigarh-T)/CEST, Amritsar’, a photo copy of which is available at page 36 of the paper book, reveals that names of as many as 17 workers were included in the said list for grant of the benefit thereunder. In compliance of the learned CAT order dated 17.11.2000, in OA No.16/HP/2000, OA No.53/HP/2000 and OA No.55/HP/2000, out of those workers, three namely, Naresh Kumar, Sanjeev Kumar and Ram Nath, who figured at Sr. Nos.7, 8 and 9, respectively, were granted temporary status vide Establishment Order No.104/2005, dated6.10.2005, Annexure S-1. However, it appears that the petitioner who had already been disengaged with effect from 26.3.2004, pursuant to an oral order, as alleged by him and the OA filed by him was still pending adjudication before the learned CAT, was left out. 9. In support of his claim, the petitioner is relying heavily on ‘Department of Personnel & Training Casual Labourers (Grant of Temporary Status and Regularization) Scheme’, which came into force with effect from 1.9.1993 and was issued vide Office Memorandum dated 10.9.1993, AnnexureA-2 (colly.). 10. Per contra, reliance is placed on behalf of the respondents on Office Memorandum dated 12.7.1994, Annexure R-1. It is contended that temporary status cannot be bestowed upon all those casual workers, who have not been engaged through Employment Exchanges. 11. The scheme of 1993, Annexure A-2 (colly.) was the subject matter of consideration before the Hon’ble Apex Court in Union of India and another vs. Mohan Paland others and the connected matters, (2002) 4 Supreme Court Cases 573, wherein the Hon’ble Court has held as under vide para 11 of the report:- “11. In Civil Appeals Nos.3168, 3182, 3179, 3176-78 and 3169 of 2002 arising out of SLPs (Civil)Nos.2224 of 2000, 13024, 1563 of 2001, 17174-76 and 2151 of 2000, the respondents have been given “temporary” status, even though, they did not specifically fulfil the condition in clause 4 of the Scheme. Some of them were engaged by the Department even after the commencement of the Scheme. Some of them were engaged by the Department even after the commencement of the Scheme. But these casual labourers had also rendered service for more than one year and they were not given “temporary” status pursuant to the directions issued by the Court. We do not propose to interfere with the same at this distance of time. However, we make it clear that the Scheme of 1-9-1993 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 as 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”. 12. Indisputably, the petitioner was working on the establishment of the respondents as on 1.9.1993, when scheme Annexure A-2 (colly.) of even date was promulgated. He was engaged on 1.1.1992 and by 1.9.1993, he had already worked for over one year and eight months and in the absence of any contest to the contrary, he would be deemed to have fulfilled the requisite conditions under clause 4 of the said scheme, including having continuously worked for at least 240 days in the relevant year. Thus, the petitioner could not have been disengaged orally, albeit the fact that according to the respondents, it was done in terms of communication dated 10.3.2004, Annexure R-6. 13. In view of the above, the writ petition is allowed with a direction to the respondents to re-engage the petitioner along with temporary status from the due date, that is, 1.9.1993, continuity in service and seniority, but without any back wages, forthwith. 14. The petition as also pending application(s), if any, stand disposed of.