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2018 DIGILAW 884 (JK)

Ghulam Nabi Ahanger v. Union of India

2018-11-12

ALI MOHD.MAGREY

body2018
ORDER : ALI MOHD. MAGREY, J. 1. The petitioners were engaged as monument attendants/casual labourers way back in 1990 in the department of Archaeological Survey of India and are continuing till date. It is submitted that the petitioners rendered their services in the respondent department continuously and without any break as their services are required in the department. The petitioners on the strength of their continued service in the department seek a direction from this court commanding the respondents to consider their case for regularization. It is submitted that the continuous performance of the duties by the petitioners for such a long time suggests that there is permanent availability of the job with the respondent department. It is submitted that the respondent department without any reason or justification has continued the petitioners as casual labourers and accorded them the status of temporary nature vide order dated 12.5.2014 and are being paid 1/30th of minimum pay of the pay scale plus DA per month. 2. It is stated that respondents 1 and 2 have regularized the services of three casual labourers which is borne out by Annexure-B attached to the petition. It is stated that though these employees were initially working as casual labourers and were similarly situated with the petitioners, their cases for regularization have been taken in isolation and the petitioners have been denied the same treatment without any rhyme or reason. It is stated that in 2013, a process for regularization of services of the petitioners was initiated by the respondent department and the relevant records pertaining to the petitioners were called from Srinagar circle. However, the process was shelved without any reason and justification. It is stated that after according the status of temporary nature to the petitioners, they had later been converted as "Multi-tasking Staff" in the department and are presently discharging their duties against the said posts. 3. Learned counsel for the petitioners states that the petitioners have attained the status of permanency in the department by the dint of continuous service of 28 years and petitioners are denied pay parity (in pay scale) and are denied equal pay for equal work, which is otherwise guaranteed to the petitioners in terms of Article 39 (d) Constitution of India and is enforceable vide the ambit and scope of Article 14 of Constitution. It is stated that the respondent department cannot deny the regularization to the petitioners on the pretext that there is no regularization policy available in the department. 4. Learned counsel for the petitioners to buttress his argument cites law laid down in Uma Devi's case, 2006 (4) SCC para 53, wherein the Apex Court has held continuous employment for more than 10 years for the benefit of regularization to incumbent in the office. It is stated that the law laid down in this case is applicable with full force to the case of the petitioners and their appointment being regular in nature they are as such are entitled to regularization. To further augment his argument, the learned counsel for the petitioners states that the petitioners are being discriminated against and are denied the benefit of the law laid down by the Hon'ble Supreme Court in State of Punjab and others v. Jagjit Singh and others, 2017 (1) SCC 148 . It is stated that the ratio of this judgment squarely covers the case of the petitioners so far as their claim for removal of pay parity is concerned. It is stated that because the petitioners are discharging the same duties which are being performed by the regular employees against sanctioned posts, they are similarly situated with them and hence have to be treated similarly, more so when the source of appointment of the petitioners and all those regular employees - Monument Attendants- is same. The petitioners, it is stated, cannot be singled out so far as the fixation and grant of pay is concerned. 5. In their reply, the respondents have submitted that the petitioners have no cause of action to invoke the writ jurisdiction of this court. It is stated that the petitioners were engaged in 1990 but they remained disengaged for a period of more than two years with effect from 10.10.1992, hence they have not rendered continuous service since 1990. It is stated that the three beneficiaries mentioned in Annexure-B have been regularized against the post of Monument Attendants as per their merit, suitability and eligibility and that the petitioners have no cause to claim similarity with them. 6. It is stated that the three beneficiaries mentioned in Annexure-B have been regularized against the post of Monument Attendants as per their merit, suitability and eligibility and that the petitioners have no cause to claim similarity with them. 6. Learned counsel for the respondents states that the petitioners did not fulfil the required conditions for regularization of services as laid down in the O.M dated 10.09.1993, as none of the petitioners was in the employment during the year 1993 and there has been a break of more than two years in their casual employment with effect from 16.10.1992, it is stated that the petitioners were re-engaged in 1994 and they did not fulfil the basic requirement viz. that they ought to have been in the employment on the crucial date i.e. 10.09.1993. It is stated that the petitioners had approached the Central Administrative Tribunal, Chandigarh Bench, with an application seeking benefit from the scheme known as "Casual Labourers (Grant of Temporary Status and Regularization) Scheme of India 1993, but same was rejected by the CAT keeping in view the fact that the petitioners were found lacking in the basic requirement envisaged under clause 4 of the said scheme, which required them to be in the employment as Casual Labourers on the date of commencement of the scheme and that they should have rendered continuous service of at least one year i.e. 240 days in a year. It is submitted that the decision rendered by the CAT was subsequently upheld by the Hon'ble Division Bench of this Court while dismissing the writ petition that was filed by the petitioners vide order dated 9.7.2012 in SWP no. 1466/2007. 7. Heard learned counsel for the parties and perused the records. 8. The petitioners have admittedly rendered a continuous service of more than two decades in the respondent department. On the strength of their continued service, they have approached the department for regularization of their services and accord of benefit of pay scale. When their plea was not considered by the respondent department, the petitioners have been constrained to approach this court through the medium of instant writ petition. It is pleaded by the petitioners that since they have rendered a continuous service of 28 years in the department, they are entitled to be considered for regularization and for release of pay scale attached to the post. It is pleaded by the petitioners that since they have rendered a continuous service of 28 years in the department, they are entitled to be considered for regularization and for release of pay scale attached to the post. It is stated that at one point of time, the respondent department had initiated a process of regularization of services of the petitioners and the relevant records and documents pertaining to the petitioners were called by the respondent department from the Srinagar circle. However, the process was later shelved without any reason and justification. The claim of the petitioners is strongly opposed by the respondents on the plea that the petitioners did not fulfil the required conditions as laid down in the OM dated 10.09.1993. It is argued that none of the petitioners was in the employment of the respondent department during the year 1993 as according to the respondents, the petitioners had been disengaged from casual employment with effect from 16.10.1992. It is stated that though the petitioners were engaged in the year 1990 but they were disengaged for two years and were not in the employment of the respondent department at the relevant point in time in 1992. The petitioners were re-engaged for casual work in the year 1994 and are continuing since in the department. The discharge of the services by the petitioners since 1994, as is admitted by the respondents, is strong evidence to the fact that there is continuous requirement of the service of the petitioners in the respondent department. Even if they have been engaged in the year 1994, as is admitted by the respondents, the petitioners have completed 24 years continued service in the respondent department. The petitioners have attained the status of permanency in the department by the dint of continuous service of 24 years and at this stage they cannot be shown the door or denied the regularization of their services more so when the department remains in need of their services, which is evidenced by their continued service in the respondent department. The petitioners have attained the status of permanency in the department by the dint of continuous service of 24 years and at this stage they cannot be shown the door or denied the regularization of their services more so when the department remains in need of their services, which is evidenced by their continued service in the respondent department. It is stated that the petitioners had approached the Central Administrative Tribunal, Chandigarh Bench, with an application seeking benefit from the scheme known as "Casual Labourers (Grant of Temporary Status and Regularization) Scheme of India 1993, but same was rejected by the CAT in view of the fact that the petitioners were not found fulfilling the basic requirement envisaged under clause 4 of the said scheme, which required them to be in the employment as Casual Labourers on the date of commencement of the scheme i.e. 1993. Having found the petitioners to be out of job on 01.09.1993 i.e. the date when the said scheme came into force, the CAT did not accept the case of the petitioners. It is stated that the said scheme of 1993 was not an ongoing scheme and the temporary status could be conferred on casual labourers under the scheme only by virtue of clause 4 of the said scheme, which stipulated that the casual labourer should have been in the employment as on the date of commencement of the said scheme. 9. This court vide order dated 20.02.2018 while disposing of IA no. 01/2018 in the instant writ petition had directed the respondents to accord consideration to the representation of the petitioners, stated to be pending with them and to file report of consideration by or before next date. Failing to implement the order, the petitioners have moved a contempt petition, being CPSW no. 248/2018, in which the respondents have filed statement of facts raising the same stand that the petitioners have failed to fulfil the basic requirement viz. that they ought to have been in the employment on the crucial date i.e. 10.09.1993. It is stated that there is no provision under the OM of 1993 or any other rule which envisages for granting temporary status or regularizing services of casual labourers merely because they have worked on casual employment after the crucial date. that they ought to have been in the employment on the crucial date i.e. 10.09.1993. It is stated that there is no provision under the OM of 1993 or any other rule which envisages for granting temporary status or regularizing services of casual labourers merely because they have worked on casual employment after the crucial date. It is stated that the benefit from the scheme known as "Casual Labourers (Grant of Temporary Status and Regularization) Scheme of 1993, could not have been extended to the petitioners as they were out of job when the scheme came into force. 10. The fundamental question that arises for consideration of this court is that if the petitioners were found ineligible for regularization under the "Casual Labourers (Grant of Temporary Status and Regularization) Scheme of India 1993, as they were not in the employment of the respondent department in the year 1993, when the scheme was launched, would they be rendered ineligible for being considered for regularization for all times to come? If that contention of the respondents is valid, the petitioners despite rendering service of more than two decades cannot be considered for regularization, which will be against the law of equity and fair play. Similarly, the petitioners cannot be singled out in the fixation and grant of pay scale to them, particularly when the source of appointment of the petitioners and all those regular employees, Monument Attendants, is one and the same. 11. The Supreme Court in Narendra Kumar Tiwari & others v. State of Jharkhand & others, civil appeal nos. 7423-7429 of 2018 (arising out of S.L.P. (Civil) Nos. 19832-19838 of 2017) observed that the purpose and intent of the decision in Umadevi was two-fold: To prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The Apex Court observed that the fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. The Apex Court held that this is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (3) and Kesari sought to avoid. 12. This position was further made clear by the Apex Court of the country in the decision reported in (2010) 9 SCC 247 : 2010 (6) Supreme 262 State of Karnataka & Ors. v. M.L. Kesari & Ors, holding that benefit... is not only applicable to the said case viz., Umadevi case, but also to similarly placed daily wage/ad hoc employees, who had put in ten years of continuous service without availing the protection of any interim order of Courts or Tribunals. 13. Against the backdrop of what has been stated above, the writ petition of the petitioners is allowed the respondents are directed to accord consideration to the regularization of services of the petitioners from the date they have completed 10 years' continuous service, giving the petitioners same treatment as has been provided to the similarly situated casual labourers. Further, the respondents shall consider the release of pay scale in favour of the petitioners. The needful shall be done within a period of three months from the date copy of this judgment is received by the respondents. 14. The writ petition and the contempt petition are disposed of.