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Orissa High Court · body

2018 DIGILAW 682 (ORI)

Bansidhar Naik v. Union of India

2018-07-23

B.R.SARANGI, VINEET SARAN

body2018
JUDGMENT Dr. B.R. SARANGI, J. - The petitioners have filed this writ petition challenging the order dated 21.05.2003 passed by learned Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.679 of 2002 refusing to absorb the petitioners against permanent post of Group-D by regularizing their services with all consequential benefits at par with regular Group-D employees working under the Central Rice Research Institute-opposite party no.3 as per ICAR Circular No.24(15)/93-CDN dated 23.11.1994, which has been adopted from the scheme prepared by the Department of Personnel and Training (DOP &T) for grant of temporary status and regularization of casual workers. 2. The factual matrix of the case, in hand, is that the Indian Council of Agricultural Research is a Society registered under the Societies Registration Act, 1860 which is amenable to the jurisdiction of the Central Administrative Tribunal, pursuant to notification dated 28.02.1990 under Section 14(2) of the Administrative Tribunals Act, 1985. The Central Rice Research Institute at Cuttack is a research unit/project of the Indian Council of Agricultural Research. It is fully aided by the Government of India and is engaged in the Agricultural Research activities and other allied sciences. It performs its duties and functions under the statutory provisions and in doing so it engages daily rated labourers for various activities. These labourers are being paid their wages as per the minimum wages fixed by the Government of India from time to time under the Minimum Wages Act. They were engaged due to exigency of work, without considering relevant factors about their educational qualification, age limit and other relevant requirements for the purpose of regular appointment under the requirements rules/schemes. 3. Guidelines have been issued from time to time to engage such type of daily rated wagers. All the Directors/Project Directors under the ICAR were requested to review the appointment of the Casual Workers in their institutes. Vide Office Order dated 31.01.1990, opposite party no.3 enhanced the rate of wages at the rate of 1/30th of pay at the minimum of the pay scale of S-S-Grade-I, i.e., Rs.750-12-870-EB-14-940 with D.A. as admissible to the Central Government Employees from time to time for the work of 8 hours a day w.e.f. 16.12.1988. Vide Office Order dated 31.01.1990, opposite party no.3 enhanced the rate of wages at the rate of 1/30th of pay at the minimum of the pay scale of S-S-Grade-I, i.e., Rs.750-12-870-EB-14-940 with D.A. as admissible to the Central Government Employees from time to time for the work of 8 hours a day w.e.f. 16.12.1988. The engagement of such casual employees was restricted only to the days on which they actually performed duty under the institute, with a paid weekly as per calculation of pay scale, pursuant to the office order issued by the authority concerned. Taking into consideration the length of service put in as Casual Workers, a list was drawn up indicating their seniority as on 01.01.1991 and the same was circulated among the casual workers inviting objection to the list as drawn up by the authority. Therefore, the petitioners name found place at Sl. No.267, 268 and 269 respectively in the said list taking into consideration their initial date of joining i.e. 15.12.1982, 13.12.1982 and 13.12.1982. Opposite party no.2 adopted the scheme issued by the Government of India, Ministry of Personnel and Pension, vide Memo No.51016/2/90-Estt.(C) dated 10.09.1993, in respect of grant of temporary status and regularization of casual workers who are illegible in accordance with the said guidelines which was given effect from 01.09.1993. As per the scheme, the temporary status would be confirmed for all casual labourers, who were in employment on the date of issue of the said memorandum and who rendered a continuous service of at least one year, which means that they must have engaged for a period of 240 days or 206 days in case of offices observing five days week such conferment of temporary status would be without reference to the creating availability of regular Group-D posts. The temporary status casual labourers were entitled to the minimum pay scale for a corresponding regular Group- D Official including D.A., H.R.A. and C.A. Besides that they were entitled to other benefits such as, increment, live entitlement, maternity benefit. 4. The temporary status casual labourers were entitled to the minimum pay scale for a corresponding regular Group- D Official including D.A., H.R.A. and C.A. Besides that they were entitled to other benefits such as, increment, live entitlement, maternity benefit. 4. As per the provisions contained in the scheme prepared by the D.O.P. & T which was adopted and circulated vide letters dated 23.09.1994 and 23.11.1994, the Director of Central Rice Research Institute issued an Office Order dated 13.01.1995 by granting the temporary status w.e.f. 01.09.1993 and regularizing the services of the casual labourers in the said list, where the names of the petitioners found place at Sl. Nos.111, 113, 115, 116, 044 and 045 respectively. Consequence thereof, the petitioners have been paid the wages at daily rates with reference to the minimum of the pay scale for a corresponding regular Group-D Officials including DA, HRA, CCA. But, the benefits of increments at the same rate, as applicable to Group-D employees were not paid and the leave entitlement in a prorate basis, maternity leave and even after, rendering three years continuous service after conferment of temporary status were not allowed. Therefore, the petitioners approached the authority concerned for several times for absorption in the Group-D posts and to extend full benefits at par with Group-D employees working under opposite party no.3. Needless to say, by the time the petitioner approached the authority concerned they had already rendered more than 20 years of services besides, after completion of three years of temporary status, they should have considered for their absorption against permanent Group-D posts. But the same having not been done, the petitioners approached the Central Administrative Tribunal by filing OA No.679 of 2002. Learned Tribunal dismissed the said O.A. vide order dated 21.05.2003. Hence this application. 5. Mr. R.B. Mohapatra, learned counsel for the petitioners contended that the order passed by the Central Administrative Tribunal is an outcome of non-application of mind inasmuch as the Tribunal has failed to take note of the contentions raised in the counter affidavit that as and when Ban Order on filling up of posts and creation of posts for regularization of the services of the casual employees having temporary status would be lifted, the prayer of the petitioners working in their organization would be considered as per seniority and suitability pursuant to the guidelines laid down by the Government in this regard. Instead of making observation that as and when the ban order lifted, the case of the petitioners would be considered, the Tribunal dismissed the application which is contrary to the materials available on record itself. Reliance has been placed on Amarkant Rai v. State of Bihar and Ors., (2015) 8 SCC 265 and it is submitted keeping in view the ratio decided therein the petitioners’ case should be considered to regularize their services basing upon their suitability in terms of the circular issued by the Government of India adopted by opposite party no.3. 6. Mr. S.B. Jena, learned counsel appearing for opposite party no.4 contended that the learned Central Administrative Tribunal is well justified in its order dated 21.05.2003 rejecting the claims of the petitioners, which does not warrant interference of this Court at this stage. 7. We have heard Mr. R.B. Mohapatra, learned counsel for the petitioners and Mr. S.B. Jena, learned counsel for opposite party no.4 and perused the records. Pleadings having been exchanged between the parties and with the consent of learned counsel for the parties, the matter is being disposed of finally at the stage of admission. 8. The facts delineated above are undisputed. As such, the petitioners have been granted temporary status with effect from 01.09.1993, pursuant to the scheme prepared by the Department of Personnel and Training, which was adopted and circulated vide letters dated 23.09.1994 and 23.11.1994. Consequence thereof, the Director of C.R.R.I. issued an office order on 13.01.1995. The scheme also prescribes the procedure for filling up of Group-D posts and regularization of casual workers with a temporary status. Two out of every three vacancies in Group-D cadres in respective offices, where the casual labourers have been working, would be filled up as per the existing recruitment rules and in accordance with the instructions issued by the Department of Personnel and Training, from amongst casual workers with a temporary status. Regular Group-D staff referred surplus for any reason will have prior claim for absorption against existing/future vacancies. On 10.01.2000, the opposite parties issued a letter to all the Directors/Project Directors of the Institute/Centre clarifying the points in respect of scheme prepared by the Department of Personnel and Training, wherein it has been stated that the facilities of paid weekly off would be admissible only after six months of continuous work. On 10.01.2000, the opposite parties issued a letter to all the Directors/Project Directors of the Institute/Centre clarifying the points in respect of scheme prepared by the Department of Personnel and Training, wherein it has been stated that the facilities of paid weekly off would be admissible only after six months of continuous work. Relying upon the said circular, the petitioners have been paid the wages at daily rate basis with reference to the minimum of the pay scale for a corresponding regular Group- D officials including DA, HRA and CCA and the benefit of increments at the same rate as applicable to Group-D employees are not paid and the leave entitlement in a prorate basis, maternity leave after rendering three years continuous service after conferment of temporary status were not allowed. Needless to say, the petitioners have already rendered 20 years of services under opposite party no.3. Besides that, after completion of three years of temporary status they should have been considered for absorption against the permanent Group-D post. 9. It is well settled law laid down by the apex Court that the casual workers having temporary status continuing for two to three years, the presumption can be taken that there is a regular need of their services and they should have been absorbed against Group-D posts. 10. The Constitution Bench of the apex Court in Secretary, State of Karnataka and Others v. Umadevi (3) and Others, (2006) 4 SCC 1 observed in paragraph-53 that regular appointment of employees who have worked for more than ten years should be considered in merits. 11. Therefore, applying the principles laid down by the apex court to the present context, as the petitioners have worked for more than 20 years and by virtue of circular issued by the Department of Personnel and Training adopted by opposite parties no.2 and 3 since they have already got temporary status with effect from 01.09.1993, their services have to be regularized against the vacant posts of Group-D. 12. Reliance has been placed on the judgment of Umadevi (supra) in the case referred by the learned counsel for the petitioner in Amarkanta Rai mentioned (supra). Reliance has been placed on the judgment of Umadevi (supra) in the case referred by the learned counsel for the petitioner in Amarkanta Rai mentioned (supra). As the petitioners have already completed more than 20 years of service by the time learned Central Administrative Tribunal passed the order, the authority should have considered their case for regularization in service against vacant posts of Group-D and non-consideration of the same is vitiated in the eye of law. As it appears, the order of the learned Central Administrative Tribunal was passed on 21.05.2003 and by that time the Constitution Bench judgment of Umadevi (supra) had not seen the light of the day. During pendency of the writ petition, there is change of position laid down by the apex court, which has been followed in a subsequent case in Amarkant Rai (supra). 13. Keeping in view the ratio decided in both Umadevi and Amarkant Rai (supra), we are of the considered view that the petitioners’ case for regularization as Group-D posts should be taken into consideration by the authority concerned in the light of those judgments. As such, the order dated 21.05.2003 passed by the Central Administrative Tribunal in O.A. No.679 of 2002, being contrary to the law laid down by the apex Court, we are inclined to quash the same and allow the writ petition permitting the opposite parties to regularize the services of the petitioners taking into consideration the ratio decided in Umadevi and Amarkant Rai mentioned (supra). 14. The writ petition is accordingly allowed. No order as to cost. Petition allowed.