ORDER
P. Lakshmana Reddy, J. (Vice Chairman)
1. This is an application filed seeking declaration that the action of the respondents in not considering the representation of the applicants dated 7.6.2004 for granting temporary status and for regularising their services as illegal and arbitrary and also to declare that the action of the respondents in issuing notification dated 26.5.2004 to fill up the vacancies from open category is illegal and arbitrary and consequently for a direction to respondents to grant temporary status to the applicants and also to regularise their services with all consequential benefits.
2. The relevant facts in brief are as follows:
The applicants who are 8 in number jointly filed this application with the leave of this Tribunal. They pleaded in the application that the applicants 2, 3 & 4 are working as casual labours in Archaeological Survey of India since 1989 and the other applicants are working since 1990 without any break in service. While so, Government of India, Ministry of Personnel issued OM dated 10.9.93 granting temporary status to all the casual labours who are in service as on the date of issuance of OM and rendered continuous service of 240 days. In pursuance of those guidelines, the respondents issued proceedings dated 11.2.94 and 8.4.94 granting temporary status to the applicants with effect from 1.9.93. While so, all of a sudden, the temporary status granted to the applicants were suspended by proceedings dated 31.1.95. Thereafter, the applicants filed OA 1445/1998. In that OA, it is stated that a clarification has been issued stating that the OM dated 10.9.93 is applicable only to those who are sponsored through Employment Exchange for appointment as casual labour and not to others. As in the orders suspending the temporary status for the applicants nothing was indicated, the applicants made several representations requesting the respondents to restore the temporary status. But, as there was no response, they had to file OA 1445/1998. This Tribunal disposed of the said OA on 16.7.2001 directing the respondents to consider the representation dated 10.3.98 with regard to their claim for restoration of temporary status. But, even after considerable time, the said order was snot implemented and ultimately, the representation was rejected stating that in view of the clarification of the DOPT, in its letter dated 12.7.94, the temporary status conferred on the applicants has been withdrawn and the request for restoration could not be considered. But the applicants contended that the rejection of the representation is arbitrary and illegal. It is further pleaded that the respondents, all of a sudden issued notification dated 26.5.2004 calling for the applications from the open category to fill up the vacancies and coming to know of it, the applicants made written representation to the respondents on 7.6.2004 requesting to grant temporary status to regularise their services. But the respondents did not consider their request and hence they filed the present OA. During the pendency of the OA, the respondents have disposed of the said representations.
3. On 15.10.2004, this Tribunal passed interim order directing the respondents to take a decision on the representation submitted by the applicants and to pass appropriate orders within a period of one month while permitting the respondents to proceed with the selection process in terms of the notification dated 26.5.2004 but shall not take any final decision till the disposal of the OA. On 16.3.2005, the respondents produced the order dated 28.2.2005/2.3.2005 before this Tribunal by which the representations of the applicants have been rejected. Thereafter, the applicants amended the OA and challenged the said orders dated 28.2.2005/2.3.2005 also contending that the said orders are illegal and arbitrary.
4. Respondents filed reply stating that as per Government of India OM No. 51016/2/90-Estt. (C) dated 10.9.93, the applicants were granted temporary status. But, subsequently as per the clarification issued on the above order vide F. No. 49014/2/93 Estt. (C) dated 12.7.94 by the Department of Personnel and Training those who have been recruited as casual labour through Employment Exchange are only eligible for the award of temporary status. But, those who have joined the department before 7.6.88 even if they are not sponsored by Employment Exchange are also eligible for conferring temporary status. Sponsoring from the Employment Exchange is mandatory for awarding the temporary status for those who have joined as casual labours after the above cut off date, i.e. 7.6.88. Therefore, to implement this order dated 12.7.94, the temporary status of those who were not sponsored by the Employment Exchange after the cut off date of 7.6.88 was withdrawn by order dated 31.1.95 which is legal and valid. The applicants have never challenged the above order. Further, the applicants were engaged for only conservation work and not for watch and ward duty, and were not recruited through Employment exchange against any permanent vacancy but were merely engaged by the Conservation Assistant as labourers for the conservation works. As and when there is conservation work the same labourers were engaged by the Conservation Assistant, as a consideration even though labour is available locally. Had the Conservation Assistant engaged local people for different works at different places, the petitioners could not have made any claim, but as a consideration to their experience the Conservation Assistant engaged the petitioners for various conservation works being taken up in the sub-circle. As per the Government of India circular No. 51016/2/90-Estt. (C) dated 10.9.93 for every 3 vacancies 2 persons from temporary status should be regularised and 1 person should be recruited directly. Accordingly, since the year 1986 so far 123 casual labourers were regularised. For the past three decades no direct recruitment was done. In the above said ratio for 123 casual labourers regularised so far, 41 posts have to be filled up by direct recruitment. Out of 41 posts only 36 vacancies are being filled up after taking permission from the Director General, Archaeological Survey of India, New Delhi. Even in the direct recruitment casual labourers who fulfill the criteria for direct recruitment are being given priority. As such, the contention of the applicants is far fetched and is a clear case of misrepresentation of facts before the Hon’ble Tribunal. The respondents further stated that the department has examined and considered the representation of the applicants and in view of the Circular OM No. 49014/2/93-Estt. (C) dated 12.7.94, rejected their request for conferment of temporary status on the grounds that they have not been recruited through the Employment Exchange. Further, the temporary status was suspended with the issuance of the DOPT’s clarification vide OM No. 49014/2/93-Estt. (C) dated 12.7.94 since it is mandatory to engage casual labourers through Employment Exchange. The temporary status was withdrawn in respect of all the labourers including the applicants who were not sponsored from the Employment Exchange as per the DOPT guidelines issued vide OM mentioned above. The respondents stated that it is not true that merely working for 240 days continuously as on the date of issuance of circular dated 10.9.93 is enough for sanctioning temporary status but the incumbent should have come from the Employment Exchange especially after the cut of date, i.e. 7.6.88. Exemption is given to all those who were engaged before 7.6.88 by the Government. The respondents further stated that it is not true that out of the seniority list of casual labourers, some are given temporary status while others are denied. The temporary status is conferred purely based on the seniority list and also after satisfying the criteria laid down in the Circular OM No. 51016/2/90-Est. (C) dated 10.9.93 of the DOPT. All the remaining casual labourers figuring in the seniority list are being paid on pro-rata basis i.e., 1/30th of the basic pay plus D.A. Per day (around Rs. 145/- per day), and not as per schedule of rates which is only Rs. 101/- per day. The applicants have so far never challenged the conferment of the temporary status to the persons in the seniority list who have fulfilled all the conditions of the above circular. The Director General had taken up the matter with the DOPT for regularising the casual labourers. The DOPT had turned down the request stating that those who have not come from Employment Exchange cannot be considered for the conferment of temporary status. As per the circular issued by the DOPT vide OM No. 51016/2/90-Estt. (C) dated 10.9.93 for awarding temporary status for every three ensuing vacancies two vacancies should be filled up by the persons working on temporary status and not by the casual labourers. Accordingly, permission was obtained from the Director General, Archaeological Survey of India, New Delhi for filling up 36 vacancies, which are required for the monuments where entry fee has been enforced. After obtaining NOC from Surplus Cell the posts were advertised in News Papers and was also informed to the local Employment Exchange. The whole process is being done as per rules in force. The respondents further stated that the present posts of monument attendants are earmarked for direct recruitment as per the permission obtained from the Directorate. As per the DOPT instructions out of 3 vacant posts of Gr. ‘D’ 2 posts are to be filled up by regularisation of temporary status and the rest is to be filled up through direct recruitment. The posts called for vide notification/advertisement dated 25.5.2004, could not be offered to the casual labourers now working in the circle, as the quota has already been filled up and the present posts fall under direct recruitment quota. However, those casual labourers who fulfill the recruitment rules and who have applied in response to our advertisement/notification were considered along with others, but no preferential treatment could be given. Further, this office has regularised the casual labourers as per their seniority since April 1986 onwards and upto June 2003, 123 casual labourers were regularised basing on their seniority and eligibility. The present posts are earmarked for direct recruitment as per the permission obtained from the Directorate vide No. 31/2/2003-Adm-II, dated 18.12.2003. It is stated that since three decades, no direct recruitment was made for the post of monument attendants by this circle. As per the Director General’s/DOPT’s instructions, out of 3 vacant posts of Gr. `D’, 2 posts are to be filled up by regularisation of casual labourers on temporary status and the rest through direct recruitment. It is not true that the casual labourers were not considered for interviews for direct recruitment. All eligible casual labourers fulfilling recruitment rules were sent call letters for attending the interviews. In respect of the regularisation of the temporary status, the following clarification was issued by the Director General, Archaeological Survey of India, New Delhi in consultation with DOPT : With reference to your letter No. 1/75/2002-Adm/15, dated 7.10.2003 on the subject mentioned above (request for restoration of temporary status regarding) and to say that the case has been examined in detail in consultation with DOPT which has clarified that those who are not recruited through Employment Exchange cannot be allowed the benefit of temporary status. You are, therefore, advised to decide such cases ensuring that the conditions stipulated by DOPT and Hon’ble Supreme Court of India from time to time is adhered strictly. The respondents prayed for dismissal of the OA.
5. The applicants filed rejoinder reiterating the contentions raised in the application. The applicants submitted that all the applicants fulfilled the conditions as stipulated in OM No. 51016/2/90 dated 10.9.93 for grant of temporary status and that in fact, they have been granted temporary status initially and that later it was withdrawn on the ground of certain clarification dated 12.7.94 and that law is well settled that if a benefit is granted on fulfilling certain conditions as per the proceedings, the same cannot be taken away by way of a clarification and the clarification cannot run contrary to the original order and therefore, the action of the respondents is illegal and arbitrary.
6. The points that arise for consideration in this application are:
(i) Whether the impugned orders are not sustainable in law?
(ii) To what result?
7. Point No. (i):
The learned Counsel for the applicant reiterated the contentions raised in the application and rejoinder. He contended that the applicants continuously worked for 15 years without intervention of any orders of Tribunal or Court. Therefore, they cannot be denied the benefits of the scheme of granting of temporary status and regularisation. The learned Counsel relied upon a decision of Central Administrative Tribunal, Guwahati Bench in OA Nos. 138, 141, 144 of 1995 dated 1.4.97 where it is held that the temporary status granted granted cannot be cancelled on the ground that those casual labourers were not originally sponsored through Employment Exchange and their services cannot be terminated. They also relied upon 1997 (3) CAT page 245. On the other hand, the learned standing counsel invited our attention to a latest decision of the Apex Court in Secretary, State of Karnataka and Ors. v. Umadevi and 3 Ors. dated 10.4.2006 wherein the Constitutional Bench of the Apex Court held that it is not permissible for the Courts and the Tribunals to give directions for absorption, regularisation, or permanent continuance of temporary, contractual, casual, daily-wage or ad hoc employees appointed/recruited and continued for long in public employment dehors the constitutional scheme of public employment. He also relied upon other decision of the Apex Court in Union of India and Anr. v. Mohan Pal and Ors. wherein it is held that the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme 1993, it only a one-time programme applicable to casual labourers who were in employment on the date of commencement of the Scheme and had also rendered continuous service for the prescribed period and that it does not postulate giving temporary status to all casual workers as and when they complete continuous service for the period prescribed in Clause 4 of the Scheme. He submitted that the applicants were originally granted temporary status under the scheme by mistake and the said mistake was rectified later after obtaining clarification from DOPT and that the said cancellation was not challenged and that the said scheme is applicable only to those who were appointed prior to 1.6.88 without following the procedure and without being sponsored through Employment Exchange and served continuously for 240 days by the date of the commencement of the scheme but as the applicants were admittedly engaged subsequent to 1.6.88 and not sponsored through Employment Exchange, they are not entitled for the benefits of the said scheme and hence, the temporary status erroneously granted was withdrawn in January 1995 and therefore, the respondents rightly rejected the representations of the applicants and there is no need for interference by this Tribunal. He further submitted that in view of the above cited Constitutional Bench decision of the Apex Court, this Tribunal cannot grant the relief prayed for in this application and the applications are liable to be dismissed.
8. First of all, it has to be seen whether this Tribunal has got power to grant relief prayed for in this application. It is useful to extract the relief prayed for in this application which reads as follows:
In view of the facts stated above it is humbly prayed that this Hon’ble Tribunal be pleased to declare the action of the respondents in not considering the representation dated 7.6.2004 for granting Temporary Status and not regularising the services of the applicants in spite of law laid down by the Hon’ble Supreme Court of India in Civil Appeal No. 3168 of 2002 and further declare that the action of the respondents in issuing the notification dated 26.5.2004 to fill up the vacancies from the open category, is illegal and arbitrary and consequently direct the respondents to grant the Temporary Status and regularise the services of the applicants with all consequential benefits and pass such other or further order or orders as this Hon’ble Tribunal may deem fit and proper in the circumstances of the cases.
The representation dated 7.6.2004 is the representation made by the applicants for grant of temporary status and for regularisation of their services after revocation of suspension of temporary status. They pleaded in the representation that mercy may be shown on the applicants who are low paid casual labourers by regularising their services in the available vacant posts as they are working since nearly 1= decades. It is not disputed that the Government of India introduced a scheme dated 10.9.93 to grant temporary status to all those casual employees who are employed and served continuously for a period of 240 days. It is also not disputed that the present applicants were employed much prior to the introduction of the said scheme and they have served for more than three years by the date of the introduction of the said scheme as the applicants were employed during the years 1989 and 1990. It is also not disputed that in pursuance of the said scheme, the present applicants were granted temporary status, but later in January 1995, the temporary status was suspended vide letter dated 31.1.95 on the ground that the DOPT issued clarification on 12.7.94 clarifying that the scheme dated 10.9.93 is applicable only to those who were sponsored by Employment Exchange and were appointed as casual labourers and that those who were employed prior to 7.6.88 alone were entitled for the benefits of the scheme irrespective of the fact whether they were sponsored by Employment Exchange or not. We have gone through the OM dated 10.9.93. As seen from the said OM No. 51016/2/90-Estt. (C) dated 10.9.93, the guidelines in the matter of recruitment of persons on daily wage basis in the Central Government offices, issued in earlier OM dated 7.6.88 has been reviewed and decided that the existing guidelines contained in OM dated 7.6.88, may continue to be followed, the grant of temporary status to the casual employees, who are presently employed and have rendered one year of continuous service in the Central Government offices. It is further stated therein that the future recruitment of casual employees shall be done in accordance with the guidelines contained in OM dated 7.6.88 and that the cases of negligence would be viewed seriously. It is nowhere stated in this OM that those who were not sponsored through Employment exchange and were employed subsequent to 7.6.88, are not eligible for grant of temporary status. On the other hand, the reading of words ‘who are presently employed’ disclose that all those who are employed as on 10.9.93 and who rendered one year’s continuous service are eligible for grant of temporary status, For future appointment of casual workers, the departments were directed to follow the guidelines contained in OM dated 7.6.88 strictly. It shows that even after the guidelines issued on 7.6.88, some of the departments have not followed the said guidelines strictly and therefore, as one time measure, the Government has decided to give benefits to all those who were employed as on 10.9.93 and worked continuously for one year. There is no justification to suspend the temporary status granted to the applicants on the sole ground that they have not sponsored through Employment Exchange at the time of their appointment as casual labour subsequent to 7.6.88. Therefore, in our considered view, the said suspension of temporary status is not sustainable. But this Tribunal cannot give any direction to regularise their services or to prevent the respondents from taking up the process of direct recruitment to fill up the vacant posts. Very recently, on 10.4.2006, the Constitutional Bench of the Apex Court laid down law regarding the powers of Courts and Tribunals in respect of absorption, regularisation, or permanent continuance of temporary, contractual, casual, daily-wage or ad hoc employees. In the said decision, the Hon’ble Supreme Court observed as follows:
On a survey of judgements of the Supreme Court on the point, the predominant view is seen to be that appointments made without following the due process or the rules for appointment did not confer any right on the appointees and that the court cannot direct their absorption or regularisation or re-engagement or making them permanent. Those decisions which run counter to the principles settled in this decision, or in which directions running counter to what has been held herein have been given, will stand denuded of their status as precedents.
In view of the said authoritative decision of the Constitutional Bench of the Hon’ble apex Court, we are of the considered view that this Tribunal has got no power to direct the respondents to regularise the casual workers who were conferred with temporary status or to direct the respondents not to fill up the vacant post by way of direct recruitment. Therefore, the relief of regularization of the services of the applicants cannot be granted. Similarly, no declaration can be given to the respondents setting aside the notification dated 26.5.2004 to fill up the vacancies from the open category. So far as granting of temporary status is concerned, it had already been granted earlier on 11.2.94 and 8.4.94 w.e.f. 10.9.93 in pursuance of the scheme set out in OM No. 51016/2/90-Estt (C) dated 10.9.93. But the same was withdrawn on 31.1.1995. It is already found supra that the said withdrawal is not sustainable in law as it runs counter to the underlying object of formulation of the scheme by way of O.M. No. 51016/2/90-Estt (C) dated 10.9.93. Therefore, the earlier orders dated 11.2.1994 and 2.4.1994, granting temporary status to the applicants stand. Hence, the respondents can be directed to treat the applicants as casual labourers with temporary status w.e.f. 10.9.93.
9. Point No. (ii):
In the result, the OA is partly allowed setting aside the suspension of temporary status order dated 31.1.95 and restoring the earlier orders dated 11.2.94 and 2.4.94 declaring the applicants as casual labours with temporary status with effect from 10.9.93. The application is dismissed in all other respects. There shall be no order as to costs.