ORDER
Mukesh Kumar Gupta, Member (J)
1. Seven applicants in this set of O.As., who were working as seasonal Khalasis in the Central Water Commission filed under Section 19 of the Administrative Tribunals Act, 1985, have prayed for the following reliefs:
(i) To direct the respondent to grant the status of seasonal Khalasis on the applicants as per the Scheme 1997 and further direct the respondents to regularise the applicants for the post of work charged Khalasis, relaxing upper age limits if any, having regard to the services rendered by the applicants for such a long period and having regard to the fact that applicants were found eligible at the time of their initial appointments as seasonal Khalasis in the interest of Justice and equality.
(ii) Grant such other reliefs as this Hon’ble Tribunal deems fit in the facts and circumstances of this case, in the interest of justice and equality.”
2. The aforementioned O.As. were allowed by this Tribunal vide order dated 30th August, 1999 with a direction to the respondents to consider the case of all the applicants for conferment of temporary status and thereafter to consider them for regularisation giving them the benefit of age relaxation as contemplated under para 10 (iv) of the 1997 Scheme.
3. The said order dated 30th August, 1999 was carried before the High Court of Karnataka in Writ Petition Nos. 25016-25026 of 2001. The aforementioned order dated 30th August, 1999 passed by this Tribunal was set aside by the High Court vide order dated 10th Dec. 2001 and this Tribunal was requested to reconsider the matter in accordance with law, by permitting the respondents herein to file their statement of objections etc.
4. Pursuant to the said judgment dated 10th December, 2001, the respondents filed their reply and the applicants filed their rejoinder, etc.
5. The facts of the case, as stated by the applicants are that all the applicants were engaged as Seasonal Khalasis with respondents. 1st applicant was engaged in June, 1987 in the minimum of the pay scale of Work Charged Khalasi plus other allowances during the monsoon season and continued to work upto year 1998 except for 1988, 1989 and 1994 monsoon seasons. Similarly, the 2nd applicant was engaged, in June, 1985 and continued to work upto year 1998 except 1988 monsoon season. 3rd applicant was engaged in June, 1985 and continued to work upto year 1998 except for 1997 monsoon season. 4th applicant was engaged in June, 1988 and continued to work upto 1998 except 1994 monsoon season. 5th applicant was engaged in August, 1991 and continued to work upto 1998 except 1994, 1995 and 1996 monsoon seasons. 6th applicant was engaged in 1985 and worked till 28.11.1998. 7th applicant was employed in June, 1985 and continued to work upto 1994 monsoon season. During 1995 he was offered appointment as seasonal Khalasi and since he did not report for duty, he was not offered appointment in subsequent monsoon seasons.
6. Seasonal Khalasis are employed by the Central Water Commission all over India depending upon the exigencies arising out of monsoon for specific monsoon period. Prior to 1988, recruitment to work charged Khalasis was made on the basis of guidelines prescribed in the Categorisation Committee Report 1973, according to which the age limit prescribed was 18-35 years relaxable in case of retrenched staff/ex-servicemen and the qualification prescribed therein had been middle school examination pass.
7. Government of India, Ministry of Water Resources prepared a scheme known as ‘Grant of temporary status and regularisation of Seasonal Khalasis in the work charged establishment of the Central Water Commission, 1997’ pursuant to various judgments and directions issued by various Benches of this Tribunal. As per the said scheme, which came into force with effect from 1.6.1997, Seasonal Khalasis in employment on the work charged establishment of the Central Water Commission on the date of commencement of the said scheme and who continued to be so employed and had rendered a minimum of 120 days continuous service during the preceding one year were entitled to the grant of temporary status. Conferment of said status did not automatically imply that such seasonal Khalasis would be appointed on the work charged establishment on regular basis within any fixed time frame. However, the grant of said status would entitle the work charged seasonal Khalasis certain benefits during the period of their functioning like wages at the minimum of the pay scale including DA, HRA, CCA, increments, leave entitlement and counting of 50% of the service rendered under the temporary status for the purpose of retirement benefits after their regularisation, etc. As per para 10 of the said scheme, seasonal Khalasi holding temporary status would be considered for regularisation if he possesses educational and other qualifications and passes such tests as prescribed in the recruitment rules for the post in question. Para 11 of the said scheme imposed a complete ban on appointment of fresh seasonal Khalasis, casual labourers and ad hoc Khalasis till all the seasonal Khalasis with temporary status are regularised.
8. As per para 10(iv) of the said scheme, a seasonal Khalasi is entitled to the age relaxation to the extent of continuous service rendered by him as seasonal Khalasi. The applicants contention is that despite the fact that they satisfied the conditions as laid down in the aforementioned scheme, they have not been conferred the said temporary status and consequently not regularised. It has also been contended that the respondents have regularised 8 other similarly situated officials who were junior to the applicants without conferring temporary status on them. The reason so informed to the applicants for not regularising them was the alleged ‘overage’ of the applicants. It has been contended that all the applicants except applicant No. 7 had served more than 120 days minimum prior to the commencement of the said scheme of 1997 and, therefore, they were entitled to the grant of temporary status and consequential regularisation.
9. The respondents have filed their reply and stated that on creation of 151 regular Khalasi posts in Cauvery Division for opening new sites under Hydrology Projects, 73 posts have been filled up from eligible seasonal Khalasis as per Recruitment Rules, 1988. It is stated that none of the seasonal Khalasis working in the Cauvery and Southern Rivers (for short known as C&SR) Circle were eligible for grant of temporary status. Therefore, it was decided to fill the vacancies from amongst seasonal Khalasis as per the Recruitment Rules of 1988. Accordingly, all the seasonal Khalasis including the applicants, working under C&SR circle were asked to get their original documents verified to examine their eligibility or otherwise. Since the applicants did not fulfill the criteria in respect of age as per Recruitment Rules, 1988 and subsequent clarification vide CWC circular dated 22nd June, 1988 (Annexure-R4), they were not offered appointments as regular Khalasis. In paragraph 16 of the reply, the respondents have stated that out of 7 applicants the first four have worked during the year 1998 monsoon season only for 81, 82, 81 and 80 days respectively. Applicant Nos. 5 and 6 did not work during the said period and 7th applicant was not offered the said engagement at all.
10. The respondents have also taken a plea that the relaxation of upper age limit under the 1988 recruitment rules could not be considered. It has been further urged that it is not possible to relax the provisions of recruitment rules of 1988 to consider applicants for regularisation. The reliance placed by the respondents upon the circular dated 22.6.1988 would show that the condition of re-nomination by the Employment Exchange on second and subsequent occasions had been dispensed with and the said communication further conveyed the decision of the Government that seasonal staff in Central Water Commission recruited for short term vacancies have also been made eligible for regular work charged posts if they possess requisite age and qualifications after they have rendered 240 days of service in all as is being done in the case of muster roll staff in CPWD.
11. We have carefully perused Annexure-R2, the copy of the alleged Recruitment Rules as well as Circular dated 22nd June, 1988 (Annexure-R4) which has been referred as clarification issued by the Central Water Commission. Pursuant to the direction issued by this Tribunal vide order dated 3rd January, 2003, the learned Counsel for the respondents has produced a complete set of alleged Recruitment Rules of 1988. In fact, copy of the so called Rules is nothing but an administrative decision communicated by the Under Secretary (TS), Central Water Commission vide communication dated 22nd April, 1988 addressed to all field Chief Engineers and all Superintending Engineers, Central Water Commission, Under the subject title it recited as: “Revised cadre structure and recruitment rules for W/C staff in CWC.” In the opening paragraph the said communication stated that in December, 1986 a committee consisting of field Chief Engineers, Director, PCP Directorate, Superintending Engineer, Investigation Circle No. 1 and Under Secretary (TS) was constituted to review the cadre and service conditions of work charged employees in the Central Water Commission. The Committee submitted its report in October, 1986. The report has since been considered by the Commission and certain decisions have been taken. Para 8 of the said decision reads as follows:
“8. Recruitment Rules.
Fresh guidelines for recruitment have also been framed for the revised cadre structure and the same are enclosed. These may be followed in making fresh appointment in the new cadre structure as also for promotions.”
(Emphasis supplied)
The post of Khalasi is found to be mentioned in the work charged establishment at page 25 of the said communication wherein the said post has been classified as unclassified/ unskilled with the age limit for direct recruitment as 18-30 years and educational qualification prescribed as middle school pass.
12. The applicants have filed rejoinder wherein it has been stated that the respondents vide office order dated 25.1.2000 had conferred temporary status on 83 seasonal khalasis with effect from 1.6.1997. They have also given the names and details of those 8 persons who have been regularised without conferring temporary status under 1997 Scheme. They are S/Shri (1) V.L. Rajappa, (2) D. Chandrappa, (3) S.S. Revanappa, (4) Devendrappa, (5) M.K. Suman, (6) T. Mallaiah, (7) R. Muralidharan and (8) Ramanujam Kumar. The applicants have also filed the seniority list of work charged seasonal khalasis as on 1.1.1997 wherein all the applicants name as well as 8 juniors as noted hereinabove are found mentioned. The applicants have also filed M.A. No. 299/02 raising additional facts and grounds in support of their claim. In the said M.A. it is contended that the condition under 1997 Scheme particularly para 5.1 which states that temporary status will be conferred on all those seasonal khalasis engaged on work charged establishment of Central Water Commission on the date of commencement of the said scheme i.e., 1.6.1997 or any time during the preceding one year and have rendered minimum of 120 days of continuous service on such date alone would be entitled for the temporary status is unreasonable and arbitrary and unconstitutional. It is stated that some times the respondents engage seasonal khalasis only for a period of 3-6 months depending upon the nature of rainfall. Unless they are engaged in the monsoon season for not less than 120 days, the prescription of 120 days service in a year is illegal and arbitrary.
13. The respondents have filed reply statement to the rejoinder as well as reply to the M.A. No. 299/02. In the said reply statement it is admitted that 8 persons who have been regularised in the year 1998 had not been granted and conferred temporary status under the 1997 Scheme. The respondents have contended that: “even if the applicants hold the temporary status, they cannot be regularised since they were overaged at the time of their initial appointment and as such do not fulfill the eligibility conditions of recruitment rules.” (emphasis supplied) A reliance has also been placed upon the judgment of the Delhi High Court in CWP No. 4688/01 decided on 18.5.2002. The said reply statement also states that: “the seniority list of work charged seasonal khalasis prepared as on 1.1.1997 is still in its draft stage.” It is admitted therein that office order dated 25.1.2000 was issued granting Temporary Status to 83 seasonal khalasis under the C&SR Circle, but contended that the said order was cancelled vide order dated 8.10.2001 except in case of four officials viz., Babuchari, N.V. Prasanna, S.M. Manjunathaiah and P.S. Basavarajaiah. In sum and substance the emphasis laid by the respondents is that the applicants were overaged in terms of the recruitment rules of 1988 and accordingly they could not be regularised as seasonal khalasis.
14. We have considered the pleadings very minutely as well as heard Counsel for both sides at great length. In our considered view the said circular dated 22.6.1988 does not advance the case of the respondents, on the other hand it lends support to the applicants case as it stated that for the purpose of recruitment, there need not be a renomination by the Employment Exchange on second and subsequent occasions.
15. Details of applicants’ engagement on yearly basis have not been provided by the respondents except for the year 1996 monsoon year. Specific contention raised in Ground ‘B’ that applicants 1-6 justified the conditions laid down in 1997 Scheme have not been specifically rebutted by the respondents in their reply dated 25.2.2002. Therefore, it cannot but be held that the applicants No. 1-6 were entitled to the grant of Temporary Status under the 1987 Scheme. A perusal of Annexures A-23, 30 and 32 proves beyond doubt that applicants No. 2, 3, 7 had worked as ad hoc Khalasis during 1986, 1987 and 1989 for more than 120 days. The requirement of para 5(i) of the Scheme is that:
“Temporary Status will be conferred on all those … and have rendered a minimum of 120 days of continuous service preceding such date.”
(Emphasis supplied)
Therefore, the respondents action in not granting such temporary status is not just and legal. The reliance placed on Delhi High Court judgment in CWP No. 4688/2001 dated 18.5.2002 is misplaced.
16. On our query, the learned Counsel for the respondents, have informed us that communication dated 22.4.1988 is the only copy of the rules and it has not been published in the Gazette of India. As such, it clearly emerges from the aforesaid facts that the communication dated 22nd April, 1988 could under no circumstances be termed as Statutory RRs, under which misconception the respondents had acted and treated the applicants till date. No doubt the said communication dated 22.4.1988, states and prescribes the age limit for direct recruitment to the post of khalasi as 18-30 years.
17. The question which basically now arises for adjudication and determination is whether this communication dated 22.4.1988 which prescribes the different age limit for recruitment as 18-30 years in comparison to 1973 report of Central Water and Power Commission, Ministry of Irrigation and Power, which prescribed the age limit for khalasi as 18-35 years, which administrative instruction and decision would be relevant in determining as to whether the applicants were overaged at their initial appointment and recruitment, as seasonal khalasis?
18. As noted hereinabove the applicants No. 1, 2, 3, 6 and 7 were admittedly engaged in the year 1985. If we have regard to the 1973 report, which prescribed the age limit for khalasi (observation) which requirement was in force at the time of their engagement, then it is crystal clear that, all these officials were very well within age limit on the date of their initial recruitment. Applicants No. 4 and 5 who were appointed in the year 1988 and 1991 respectively certainly will have to be governed by the administrative decision as contained in 22.4.1988 which communication prescribed the age limit as 18-30 years. On the other hand 8 seasonal khalasis who have been regularised without the grant of temporary status were also not within the age limit of 18-30 years as prescribed in the communication dated 22.4.1988. Shri Devandrappa and S. Muralidharan who are amongst eight seasonal Khalasis regularised in 1998, were at Sl. No. 16 and 80 respectively in the seniority list of the seasonal khalasis as on 1.1.1997, as communicated vide circular dated 2.1.2000, were more than 30 years on the date of their initial appointment as seasonal khalasi. Devandrappa whose date of birth is 7.5.1955 was engaged with effect from 17.6.1985 and similarly Muralidharan whose date of birth is 4.5.1952 was engaged for the first time on 2.6.1986. Thus it could be seen that the age limit of 18-30 as now insisted upon for applicants regularisation had not been followed in respect of these two officials. It has been urged by the learned Counsel for the applicants that they being similarly placed to above mentioned officials could not have been treated alike and differently and this action of the respondents amount to violation of Articles 14 and 16 of the Constitution of India. It is not the case of the respondents these officials i.e., Devendrappa and R. Muralidharan have regularised inadvertently. On the other hand the said officials were also appointed as Seasonal Khalasis, like the applicants, except No. 4 and 5 prior to administrative instruction dated 22.4.1988, when the age limit prescribed was 18-35 years. In our considered view these above mentioned two officials who have also been regularised without the grant of temporary status are similarly placed to the applicants. As such we are of the considered view that under the administrative instructions dated 22.4.1988, the applicants who were within the age limit as prescribed in 1973 report, could not have been made ineligible for regularisation. It is not the case of the respondents that the administrative instructions dated 22.4.1988 are of retrospective applications. It is well settled law that: “An executive order of the Government cannot be made operative with retrospective effect.” (See 1994(1) SCC 437, Govind Prasad v. R.G. Prasad).
19. The Hon’ble Supreme Court in AIR 1980 SC 1992, Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir and Anr., at page 1999 in para 11 observed as under:
“…. Unlike private individual, the State cannot act as it pleases in the matter
of giving larges. Though ordinarily a private individual would be guided by economic considerations of self-gain in any action taken by him, it is always open to him under the law to act contrary to his self-interest or to oblige another in entering into a contract or dealing with his property. But the Government is not free to act as it likes in granting larges such as awarding a contract or selling of leasing out its property. Whatever be its activity, the Government is still the Government and is, subject to restrains inherent in its position in a democratic society….. Every activity of the Government has a public element in it and it must, therefore be informed with reason and guided by public interest. Every action taken by the Government must be in public interest; the Government cannot act arbitrarily and without reason and if it does, its action would be liable to be invalidated. // the Government awards a contract or leases out or otherwise deals with its property or grants any other largess, it would be liable to be tested for its validity on the touch-stone of reasonable ness and public interest and if it fails to satisfy either test, it would be unconstitutional and invalid.”
(Emphasis supplied).
Similarly in (1990) 2 SCC 48 Management of Nally Bharat Engineering Co. Ltd. v. State of Bihar and Ors., it has been held that:
“It is a rule to ensure the vast power in the modern State is not abused but properly exercised. The State power is used for proper and not for improper purposes. The authority is not misguided by extraneous or irrelevant considerations. Fairness is also a principle to ensure that statutory authority arrives at a just decision either in promoting the interest of affecting the rights of
persons. To use the time hallowed phrase that justice should not only be done but be seen to be done is the essence of fairness equally applicable to administrative authorities. Fairness is thus a prime test for proper and good administration.
(Emphasis supplied)
If we have regard to the above law laid down by the Hon’ble Supreme Court, which is squarely applicable to the facts of the present case, it cannot but be held that the respondents action in treating the applicants as overaged at the time of their initial appointment, as contended and thereby made them ineligible for regularisation under the so called 1988 recruitment rules is nothing but illegal, unjust, arbitrary and discriminatory treatment meted out to the applicants. As we have already observed hereinabove that all the applicants except Nos. 4 and 5 were engaged as seasonal Khalasis prior to administrative instructions dated 22.4.1988, they were well within the age limit prescribed under the 1973 report as well as based on the request sent to Employment Exchange at Annexures A-2 and A-3 wherein the age limit prescribed was 18-35 years. As all the applicants except Nos. 4 and 5 were within the prescribed age limit at the time of their initial engagement, the respondents action to treat them ineligible for regularisation on the ground or the alleged Recruitment Rules, 1988, which in our opinion are not the recruitment rules notified under proviso to Article 309 of the Constitution, and are not applicable, is illegal, unjust, unfair and arbitrary.
20. It is also well settled law laid down by the Hon’ble Supreme Court in 2001(5) SCC 664 Tandon Brothers v. State of West Bengal that where the Government action runs counter to good faith, is not supported by reasons and law it cannot but be described as mala fide.
21. In view of the findings recorded hereinabove, we hold that the applicants No. 1, 2, 3, 6 and 7 are entitled to similar treatment as accorded to S/Shri Devendrappa and R. Murleedharan and accordingly be considered for regularisation as Khalasis. As far as applicants No. 4 and 5 are concerned, since they were engaged after the instructions dated 22.4.1988 were put in operation and they did not satisfy the requirement of age limit or 18-30 years, they are not entitled to similar treatment. Accordingly O.As. are partly allowed in above terms. The respondents are directed to carry out above directions as early as possible and not later than three months from the date of receipt of this order.