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2016 DIGILAW 1036 (ORI)

Pradip Kumar Nayak v. Union of India

2016-11-03

K.R.MOHAPATRA, VINOD PRASAD

body2016
JUDGMENT : K.R. Mohapatra, J. Petitioners, in this Writ Petition, assail the judgment dated 01.10.2014 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack (for short, ‘the Tribunal’ in Original Application bearing O.A. No.499 of 2012 dismissing the O.A. filed by the present petitioners. 2. The Petitioners filed O.A. No.499 of 2012 with the following prayers:- “(i) The decision taken by the respondent no.2 to engage/appoint contract labour system to discharge the function of the establishment may kindly be quashed. (ii) The letter dated 6.5.2012 vide Annexure-1 issued by the respondent no.2 to the respondent no.1 for allocation of funds may kindly be quashed. (iii) The order of disengagement w.e.f. 1.7.2012 by way of refusal to employment to the applicants by the Respondent no.2 may be declared as illegal and be quashed and the applicants may kindly be allowed to continue as causal labourers in the respective services. (iv) After reinstatement, applicants services may kindly be regularized in a permanent cadre in the post of M.T.S. with effect from their date of joining. And may kindly grant any other benefits which your lordships deem think fit and proper. And for which act of your kindness the applicant shall as in duty bound ever pray.” 3. The claim of the petitioners therein was that they were engaged as causal labourers and discharged services as such for more than 25 years. They were holding posts of casual Multi Tasking Staff (MTS) in different Sections/Divisions in the office of Accountant General, Odisha, Bhubaneswar (O.P. No.2). On 30.07.2010, an advertisement (Annexure-3) was published by the opposite party No.2 inviting applications for direct recruitment to the vacant posts of Multi Tasking Staff (MTS) in Pay Band-I carrying G.P. of Rs.1,800/-in different offices of Indian Audit and Accounts Department located at Bhubaneswar. Relaxation in upper age limit as well as educational qualification was given to the applicants who were engaged and continuing in the office of Opposite Party No.2. Accordingly, the petitioners and few others applied for the posts of MTS pursuant to the said advertisement. It is the claim of the petitioners that as the petitioners were continuing as casual labourers their names were made through in the process of scrutiny. Accordingly, call letters were issued to the petitioners to appear in the Selection test which was held on 25.06.2011 at 2.30 PM. Pursuant to such call letters, they appeared in the Selection test. It is the claim of the petitioners that as the petitioners were continuing as casual labourers their names were made through in the process of scrutiny. Accordingly, call letters were issued to the petitioners to appear in the Selection test which was held on 25.06.2011 at 2.30 PM. Pursuant to such call letters, they appeared in the Selection test. In total, 110 numbers of candidates had applied for the post of MTS out of which 88 numbers of casual labourers were selected for appointment leaving apart these petitioners and few others. It is the contention of the petitioners that they were continuing as causal labourers and were eligible to be selected for appointment to the regular posts of MTS which was not considered by the appointing authority. Thus, the petitioners filed the Original Application for aforesaid relief. It is further contended that during pendency of the Original Application, the petitioners had filed M.A. No.596 of 2012 before the Tribunal with a prayer for a direction to the opposite parties to allow them to sign the attendance register. The opposite party No.2 filed objection to the said Misc. Case contending that the petitioners were working as contingent workers intermittently and were disengaged with effect from 01.07.2012 due to non-availability of contingent nature of work in his office. The petitioners in reply vehemently objected to the same and contended that they were working as causal workers and not as contingent workers. The Opposite Party No.2 utilized their services as casual labourers. They also filed certain documents in support of their case. The miscellaneous application was disposed of on 22.08.2012 holding that there was a genuine dispute with regard to the status of the petitioners as to whether they were casual labourers or contingent workers, which requires adjudication. As such, learned Tribunal did not grant the prayer made by the petitioners in the said M.A. Further, due to their disengagement, petitioners sought for amendment of the Original Application by filing M.P. No.1095 of 2012, which was allowed. The Original Application was disposed of on 01.12.2014 holding that the petitioners do not have any legal right to be considered either for regularization or for any engagement under the opposite parties. It was further held that since petitioners were working as contingent labourers for a considerable number of years, their services would be utilized if any contingent nature of work would be available in future. It was further held that since petitioners were working as contingent labourers for a considerable number of years, their services would be utilized if any contingent nature of work would be available in future. The petitioners assailing the same, filed this Writ Petition. The Opposite Parties filed their counter affidavit denying the averments and contentions made in the Writ Petition. The Opposite Parties specifically denied the engagement of the petitioners as causal workers at any point of time. They were being engaged to attend contingent nature of work which arose occasionally and intermittently. The advertisement was made by the nodal office, i.e., Office of Principal Accountant General (Civil Audit), Odisha, Bhubaneswar for direct recruitment of MTS as per the prescribed terms and conditions slated in the advertisement. In total, 110 numbers of eligible candidates found place in the merit list prepared on 26.04.2012. A Committee was constituted comprising of Officers of Principal Accountant General (A and E), Odisha and Accountant General, Odisha (CW and RA), Odisha and Principal Director of Audit, East Coast Railways, Bhubaneswar, with approval of the Comptroller and Auditor General of India, New Delhi, who conducted the necessary scrutiny. The scrutiny was made following due procedure and giving due weightage to educational qualification, marks secured in the interview and work experience as contingent labourers engaged in Indian Audit and Accounts Department. Keeping in view the vacancy position/reservation category, and the total marks obtained by the applicant the final merit list of 110 posts was prepared with due approval of the Office of the Comptroller and Accountant General of India. Out of the final merit list of 110 candidates, 88 numbers of contingent labourers were already engaged in different departments/offices under the Indian Audit and Accounts Office (IA and AD) located at Bhubaneswar and rest 22 numbers were outsiders who were also qualified as per the total marks secured in selection process. Accordingly, all 110 posts of MTS, as per the advertisement, were filed up. It was an open recruitment by publishing advertisement in the news papers. It was never meant for regularization of contingent labourers. The work experience of the contingent labourers was not the sole criteria for selection of the candidates. It was one of the parameters for selection as mentioned above. As the petitioners could not stand the selection process, they were not appointed as such. It was never meant for regularization of contingent labourers. The work experience of the contingent labourers was not the sole criteria for selection of the candidates. It was one of the parameters for selection as mentioned above. As the petitioners could not stand the selection process, they were not appointed as such. Learned Tribunal also raised doubt about the status of the petitioners as casual labourers and thus, observed that their status could be determined at the time of hearing. Learned Tribunal, therefore, vide interim order dated 03.07.2012, directed that if the petitioners are working as casual labourers they should not be replaced by the opposite parties by a fresh set of casual labourers. Since the petitioners were never engaged as casual workers, the question of reengagement of the petitioners did not arise. However, some contingent workers were engaged to attend certain contingent nature of works as and when required. Petitioners having participated in the selection process and being unsuccessful are estopped to find fault with the same. Although, the petitioners claimed to have been engaged as casual labourers under the opposite parties, they could neither place any material before the Tribunal nor before this Court to substantiate their claim. As such, the learned Tribunal was justified in dismissing the Original Application which needs no interference. Thus, they prayed for dismissal of the writ petition. 4. Heard Mr.R.N.Acharya, learned counsel for the petitioners and Mr.Arobinda Mohanty, learned Central Government Counsel appearing for the opposite parties. We also meticulously perused the pleadings of the parties and materials placed before us. 5. Mr.Acharya, learned counsel for the petitioners reiterating the contentions raised in the Writ Petition submitted that the opposite parties all throughout treated the petitioners as casual workers. In this context, he referred to Clauses-3(B)(vii), 3(D) and 4 of the advertisement for direct recruitment to the post of MTS (annexure-3 to the writ petition) and submitted that the petitioners being casual labourers were allowed to participate in the selection process held for the posts of MTS. He further referred to the affidavits of the petitioners at Annexure-4 series to the writ petition and submitted that the petitioners have described themselves as casual workers which was never disputed by the opposite parties. Taking into consideration the affidavits filed, call letters were issued to the petitioners on 07.12.2011 fixing date of selection to 25.12.2011. He further referred to the affidavits of the petitioners at Annexure-4 series to the writ petition and submitted that the petitioners have described themselves as casual workers which was never disputed by the opposite parties. Taking into consideration the affidavits filed, call letters were issued to the petitioners on 07.12.2011 fixing date of selection to 25.12.2011. Petitioners were also directed in the said call letters (Annexure-5 series) to bring original transfer certificates/school leaving certificates duly countersigned by the concerned Inspector of Schools/District Inspector of Schools in support of their age and qualification. Mr.Acharya also referred to Annexure-6 of the writ petition and submitted that only causal labourers were considered for appointment to the posts of MTS and not the contingent workers. He also referred to Annexre-7 of the writ petition and submitted that the said list of unsuccessful casual labourers included these 12 petitioners. The lists at Annexures-6 and 7 also reflect the days the petitioners-casual labourers have rendered the services under opposite party No.2. The aforesaid materials were not taken into consideration by the Tribunal which vitiates the impugned order. Hence, he prayed to set aside the said order under Annexure-1, to recognize the petitioners as casual labourers and regularize their services. 6. Mr.Aurovinda Mohanty, learned Central Government Counsel (CGC), refuting submissions of Mr.Acharya, on the contrary submitted that the petitioners were never engaged as casual labourers under the opposite parties. Though they claimed to have discharged 20-25 years of service under the opposite parties, they could not produce any materials to that effect. They neither produced their appointment letters nor produced any other material to substantiate their claim to the effect that they were engaged as casual labrouers and working as such. The advertisement under Annexure-3 was never intended for casual labourers only. It was an open advertisement and the casual/contingent labourers were given certain relaxation in the said advertisement. The petitioners having served under the opposite parties, were given some relaxation. It does not conclusively establish that they were serving as casual labourers. The Tribunal has taken into consideration all these material aspects and came to a conclusion that the petitioners have never discharged their duties as casual labourers. The burden of proof is on them to prove their case to the hilt. It does not conclusively establish that they were serving as casual labourers. The Tribunal has taken into consideration all these material aspects and came to a conclusion that the petitioners have never discharged their duties as casual labourers. The burden of proof is on them to prove their case to the hilt. The pleading with regard to their initial date of engagement and their date of disengagement are conspicuously absent, both in the original application and in the writ petition. Thus, they cannot at all be treated as casual labourers nor their case can be considered for regularization. Relying upon the decision of the Hon’ble Supreme Court in the case of Secretary, State of Karnataka and Ors. Vs. Umadevi and Ors., reported in AIR 2006 SC 1806 , Mr. Mohanty submitted that when a person engaged as contractual and casual worker and the engagement is not based on proper selection as per relevant Rules and procedure he cannot invoke the doctrine of legitimate expectation for being regularized in the said post. Following due procedure of law, process of selection to the post of MTS was initiated pursuant to the advertisement under Annexure-3. The petitioners were given ample opportunity to participate in the said selection process. They, at no stage of process of selection, had objection to the procedure followed or the selection process itself. Being unsuccessful to get an appointment in due process, they approached the Tribunal to declare them as casual labourers and regularize their services as MTS, which was rightly turned down. In that view of the matter, Mr.Mohnanty submitted that the contentions raised by the petitioners are de hors law, and need no consideration by this Court. As such, the order under Annexure-1 needs no interference and the writ petition is liable to be dismissed. 7. In the premises of the arguments advanced by learned counsel for the parties, the only issue that cropped up for consideration is that whether the petitioners were engaged as casual labourers under the opposite parties and continued as such till the date of their disengagement, because all other reliefs claimed are consequential to the answer on this issue. 8. The materials available on record do not give a clear picture with regard to the appointment/engagement of the petitioners as casual labourers. 8. The materials available on record do not give a clear picture with regard to the appointment/engagement of the petitioners as casual labourers. However, opposite parties in their counter affidavit, both before the Tribunal as well as before this Court, contended that the petitioners were never engaged as casual labourers and they were engaged as contingent workers intermittently when contingent nature of work arose. They were neither issued with any engagement or disengagement order at any point of time. Thus, this Court proceeded to scrutinize the record as to whether any other material is available on record to arrive at a conclusion that petitioners were ever engaged as causal labourers under the opposite parties. In this context, Mr.Acharya drew our attention to the following clauses of advertisement under Annexure-3 in support of his case.:- “Clause-3(B)(viii) — As per orders of the Comptroller & Auditor General of India, Casual Workers, who have been engaged at least for two years as on last day of submission of application in the concerned offices of the Indian Audit & Accounts Department to which the vacancies relates, will also be eligible for age relaxation to the extent of period of their engagement as casual labourers. This relaxation would be over and above the relaxation admissible to the SC/ST/OBC/PH/Ex-S candidates. (emphasis supplied) xx xx xx Clause-3 (D) Proof of Age:-The date of birth as recorded in the Matriculation Certificate or in a certificate recognized as equivalent to Matriculation. No other documents like horoscopes, affidavits, birth extracts from Municipal Corporation service records and the like will be accepted. Birth Certificates issued by Municipalities/Municipal Corporations are however admissible. However, if the casual workers engaged in I.A. & A.D., in whose case the minimum required educational qualification would continue to be 8th class pass are non-matriculate, they will be required to submit a certificate indicating their Date of Birth as per records of the recognized Educational Institution, from where they have passed 8th class, duly countersigned by the Inspector of School/District Education Officer. (emphasis supplied) xx xx xx 4. Educational Qualification: (As on 01.01.2010) The minimum required educational qualification is 10th Class pass. Norte –1 In case of casual workers engaged in IA & AD, the minimum required educational qualification would continue to be 8th class pass. However, if recruited, these candidates would be appointed to Pay Band-IS. For confirmation, following conditions will have to be fulfilled. Educational Qualification: (As on 01.01.2010) The minimum required educational qualification is 10th Class pass. Norte –1 In case of casual workers engaged in IA & AD, the minimum required educational qualification would continue to be 8th class pass. However, if recruited, these candidates would be appointed to Pay Band-IS. For confirmation, following conditions will have to be fulfilled. (emphasis supplied) xx xx xx” 9. The aforesaid Clauses of the advertisement disclose that some relaxation was given to the casual labourers of the establishment to participate in the selection process. Be that as it may, it was an open advertisement made for direct recruitment of MTS in consultation with the Public Service Commission. The advertisement is never confined to casual labourers/contingent workers. Accordingly, petitioners were given relaxation to participate in the selection process, which cannot itself be sacrosanct to come to a conclusion that they were causal labourers. True it is that, they have submitted their affidavits (Annexure-4 series) describing themselves as casual labourers, which is a self-declaration and has no endorsement of the authorities under whom they claimed to have been engaged as casual labourers. Most surprisingly, the petitioners have neither provided their initial date of engagement nor establishment under which they were allegedly engaged as casual labourers. The silence of the petitioners speaks volume of their conduct. The petitioners have also not made any endeavour either to call for the records from the opposite parties relating to their engagement, i.e., their muster role or attendance register to establish that they were in fact engaged as casual labourers. Learned Tribunal taking into consideration the rival contentions of the parties came to a categorical conclusion that the petitioners failed to produce an iota of evidence to substantiate their point of view. In order to arrive at a conclusion, learned Tribunal has meticulously scrutinized the materials placed before it and raised serious doubt about genuineness of the claim of the petitioners and held that there was neither any order of engagement nor any disengagement order in favour of the applicants (petitioners herein). It appears from the case record that the opposite parties at some place used the words ‘casual labourers’ very loosely which is not meant to be used as such, which is apparent from Annexures-6 and 7. It appears from the case record that the opposite parties at some place used the words ‘casual labourers’ very loosely which is not meant to be used as such, which is apparent from Annexures-6 and 7. Annexure-6, the final result of MTS recruitment in IA and AD Department does not reflect that the list of candidates appearing therein were casual labourers under the opposite parties. The list under Annexure-6 defeats the claim of the petitioners to the effect that only casual labourers were given appointment pursuant to the selection process under Annexure-3. Further, it appears from Annexure-7, upon which the petitioners strongly relied upon, that the words ‘casual labourers’ have been loosely used in the said list, primarily for the reason that the same contents the list of names of the unsuccessful candidates. It also does not contain their initial date of engagement as well as the date of their disengagement. Thus, by no stretch of imagination, it can be conclusively held to be the list of unsuccessful casual labourers as contended by the petitioners, as it also included the names of contingent workers. 10. This Court has the power of superintendence and supervision over the Tribunals including the Central Administrative Tribunal under Article 227 of the Constitution of India. The scope and interference of decision of the Tribunal is very limited. It is the trite law that the High Court can only exercise its extra-ordinary jurisdiction under Article 227 only when the impugned order is perverse, suffers from non-consideration of materials on record and de hors the law causing flagrant miscarriage of justice. In the case at hand, the Tribunal has taken into consideration the rival contentions of the parties, considered materials placed before it and came to a conclusion that the petitioners had never served with opposite parties as casual labourers. Writ Court cannot sit over the judgment of the Tribunal as an appellate forum and re-appreciate the materials. It should not interfere with the impugned order of the Tribunal only because a second view may be possible on assessment of the materials available on record. Moreover, the petitioners have not come to the Court with clean hands. In spite of our repeated query to place materials with regard to their initial engagement, the petitioners neither produced any material nor made any prayer to call for such records from the opposite parties. Moreover, the petitioners have not come to the Court with clean hands. In spite of our repeated query to place materials with regard to their initial engagement, the petitioners neither produced any material nor made any prayer to call for such records from the opposite parties. Mr.Acharya only harped upon the materials referred to hereinabove to substantiate his claim. The materials placed before us has been taken into consideration by the Tribunal and the learned Tribunal has come to a conclusion, which is neither perverse nor suffers from any material irregularity nor the same is de hors law. 11. In view of the discussions made above, we do not find any merit in the writ petition, which is accordingly dismissed. Vinod Prasad, J. I agree.