ORDER
P. Shanmugam, J. (Vice Chairman)
1. The applicant who is a Part time Contingent Gardener/Water Carrier in the office of the Senior Superintendent of Post Offices, Tiruchirapalli Division, has challenged her order of termination dated 16.6.2005.
2. The brief facts of the case are as follows: According to the applicant she belongs to very poor family. She was appointed as Gardener-cum-Water Carrier-cum-Outdoor Sweeper with effect from 6.3.1997 in a regular vacancy in the place of then incumbent one Shri V. Muniyandi, who was appointed as EDDA/MC by the second respondent. She had completed 240 days as a Part time Casual Labourer and she was hoping to get Temporary status. While so, she was surprised to receive a show cause notice dated 6.1.2005 calling upon her to make representation on the proposal to terminate her on the ground that her appointment was made in contravention of Director General’s instructions. It was stated that as per DG’s letter dated 11.5.1989, no new Casual Labourers are to be engaged after 10.9.1993 and therefore her appointment is liable to be terminated. The applicant submitted a representation dated 31.1.2005 inter alia contending that she was carrying out her duties of Gardener/Water Carrier as an outsider, on payment of contingent charges calculated on daily wages basis. Whereas, the DG’s instruction dated 11.5.1989 related to the restriction of creation of the posts of Casual Labourers and do not prevent the authorities to incur contingent charges for getting the work of scavenging/Water Carrying etc. She has further stated that she had understood that she had no claim for absorption in the Department in any capacity and her engagement is under the principle of payment on daily wages for the actual work performed. Since she has no alternate source for her livelihood, she prayed for continued engagement and once again she declared that she shall not claim any previlege in the Department based on her contingent engagement. However, her representation was rejected by the impugned order dated 16.3.2005 stating that after careful consideration of her representation as per the Directorate’s order, no part time or full time casual labourers should be engaged hereafter and as such, the appointment order made in cotravention of the Directorate’s order are to be terminated and accordingly, her services were ordered to be terminated. This O.A. is against the said communication.
3. We have heard the learned Counsel for the applicant and the learned standing Counsel for the respondents.
4. The fact that the applicant was appointed as part time Gardener/Water Carrier is not in dispute. Her appointment order itself says that she is provisionally appointed as part time contingent Gardener cum Water Carrier cum Outdoor Sweeper with effect from 6.3.1997 consequent on the appointment of one Shri V. Muniyandi, the then part time contingent, staff as EDDA/MC. Therefore, it is clear that there is a necessity of engagement for the work of Gardener/Water Carrier since the same had been done previously by Shri V. Muniyandi and after his appointment as EDDA/MC, it was continued by the applicant from the year 1997.
5. The only ground set out in the show cause notice is that her appointment is contrary to Director General’s letter dated 11.5.1989. The show cause notice also states that as per the Directorate’s letter dated 11.5.1989 no new casual labourers whether part time or full time are to be engaged/appointed after 10.9.1993 and therefore her appointment is irregular.
6. The applicant’s representation was very clear and categorical to the fact that her appointment does not come under the purview of the Directorate’s letter dated 11.5.1989 and the said letter relates to restriction for creation of posts of Casual Labourers and did not prevent the authorities to incur contingent charges for getting the work of scavenging/water carrier etc. Inspite of this clear representation, the impugned order though referring to the representation did not address itself but simply repeated that her appointment was contrary to the Directorate’s letter. There is clear non-application of mind by the second respondent. On this ground alone, the O.A. is liable to be allowed.
6A. However, the reply filed in reference to the O.A. repeats the same plea taken in the show cause notice that there is a ban on employment of casual labourers from 1993 and therefore, the engagement of the applicant is contrary to the said ban and it is liable to be terminated. It is further pointed out that the applicant cannot make any legal claim on the basis of her long time continuous work. The respondents have also enclosed a copy of their communication dated 11.5.1989 (Annexure R. 4) which is the basis for the termination of the applicant.
7. We have carefully gone through the said communication. Learned Standing Counsel drew our attention to Paragraph 6 of the letter dated 11.5.1989 which reads as follows:
“No new casual labourers, whether part time and full time, are to be engaged, or posts of ED sanctioned in bigger offices, especially in urban areas, except to the extent permitted under the orders quoted above.”
8. The preamble to the communication refers to the direction of the Supreme Court to the Department to evolve a rational scheme for absorption of casual workers who have put in one year of service. The order relates to absorption of casual workers and the Director General directed all the Establishment Heads to work out the consolidated requirements of posts in the light of the guidelines and send the information so as to comply with the direction of the Hon’ble Supreme Court on a time bound basis. The Heads of Department were directed to submit a comprehensive proposal for sanction of Group ‘D’ posts. By no stretch of imagination, the said letter of the Director General can be construed to hold that the engagement of contingent staff is prohibited and that they must be terminated. As rightly pointed out that the appointment of casual workers is different from engagement of part time contingent staff, the right that would flow out of this engagement are entirely different from casual appointment. The respondents in our view have mixed up the two categories of appointment inspite of the same having been clearly pointed out in the applicant’s representation. It is not open to them to quote a wrong communication to base their termination. We find that the only ground on which the termination was made is on the basis of the letter dated 11.5.1989 of the Director General of Posts. As such, the impugned order of termination is liable to be set aside.
9. The applicant is not seeking for regularisation nor claim temporary status on the basis of her contingent employment. The reply affidavit referred to the judgment of the Delhi High Court in W.P. No. 8615 of 2004 (copy enclosed as Annexure R-5) which is totally not applicable to the facts of this case.
10. It is pointed out that the applicant has made her position very clear that her appointment order itself says that she was appointed as part time contingent staff provisionally and in her reply to the show cause notice, she has declared that she understood that she has no claim for absorption in the department and her engagement is under the principle of payment on daily wages for the actual work performed and she once again declared that she will not claim any previlege in the department based on her contingent engagement.
11. It has to be clearly understood that contingency paid staff is not a part of any regular service or engaged against a regular service post and employment of such staff is conditional upon the post being available for contingency for which the casual employment is created on the duration of the work of such casual employment etc. In short, employees of contingency staff are not employed on regular basis but the employment is merely incidental to an office for the period during which they have actually worked.
12. In the above circumstances, there is absolutely no hope for the respondents to plead in their reply that the applicant cannot claim a right to be regularised on the basis of the long time continuous engagement as casual labourer. In other words, if the respondents’ stand is accepted based on their reply affidavit, the applicant has to be treated as casual worker and on that score, she cannot be terminated from service. The respondents cannot misrepresent the claim of the applicant so as to reject her right to be continued in service.
13. For the above reasons, we hold that the impugned order is liable to be set aside on the following grounds:
1. That there is total non-application of mind by the second respondent in reference to the explanation submitted by the applicant.
2. Directorate’s letter dated 11.5.1989 will not apply to the facts of this case since the applicant is not a casual labourer.
3. The termination made is arbitrary since no proper reasons given.
14. It is now pointed out by the learned standing Counsel for the respondents that respondents have appointed one V. Madhu who has already working as contingent sweeper to attend to the duties of the applicant as per the Directorate’s instructions. From the file, it is seen that the decision on the appointment of the said Shri V. Madhu has been taken subsequent to the receipt of the notice from this Tribunal and made during the pendency of this O.A. That apart, the engagement for which the applicant was made is subsisting and the appointment of the Department to put Shri V. Madhu to work against the time allotted is also restricted to 8 hours. All these show that the termination order and the appointment of Shri V. Madhu is made for the purpose of the case to restrict the rights of the applicant.
15. For all these reasons, the impugned termination order is liable to be set aside and it is accordingly set aside. The respondents are directed to reinstate the applicant in the post of Water Carrier-cum-Gardener-cum-Sweeper at the office of the second respondent with effect from 16.3.2005 with arrears of pay within a period of two weeks from the date of receipt of a copy of this order. The O.A. is allowed as above. No order as to costs.