Jayakumar.K Keezhkadi Veedu v Union of India & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941** **OP (CAT).No.4520 OF 2013(Z)** **AGAINST THE ORDER IN OA 310/2013 DATED 20-11-2013 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER/S:** **JAYAKUMAR.K KEEZHKADI VEEDU, T C NO 50/102(3), KALADY, KARAMANA P O, THIRUVANANTHAPURAM, PIN-695002** **BY ADVS. SRI.VAKKOM N.VIJAYAN SRI.P.ANIYAN** ## **RESPONDENT/S:** **1 UNION OF INDIA REP BY THE SECRETARY TO GOVT.OF INDIA, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVT.OF INDIA, NEW DELHI-110001 2 THE CHAIRMAN DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVT.OF INDIA, NEW DELHI-110001 3 THE DIRECTOR AD 111(B)DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVT.OF INDIA , NEW DELHI-110001 4 THE CHIEF COMMISSIONER OF CENTRAL EXCISECUSTOMS COCHIN ZONE I S PRESS ROAD, KOCHI-682018** OP(CAT) 4520 of 2013 2 - **5 THE COMMISSIONER OF CENTRAL EXCISE CUSTOMS T C NO 26/334,PRESS CLUB ROAD, ICE BHAVAN, THIRUVANANTHAPURAM-695001** - **6 THE ASST.COMMISSIONER OF CUSTOMS CUSTOMS DIVISION, PRESS CLUB ROAD, ICE BHAVAN, THIRUVANANTHAPURAM-695001** **R1 BY SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R1-3 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA R4-6 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL, SCCB EX** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 11.11.2019,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(CAT) 4520 of 2013 3 ## **JUDGMENT** Dated this the 11[th] day of November, 2019 ## **V.G.ARUN, J.** The applicant had approached the Central Administrative Tribunal, aggrieved by the refusal on the part of the respondents to regularise him as a Group-D employee in the Commissionerate of Central Excise and Customs, Cochin Zone. The claim of the applicant for regularisation was based on the fact that he was temporarily appointed as casual worker in the Central Excise Division, Thiruvananthapuram as per Annexure A2 order dated 23.09.1997. It was the contention of the applicant that as per the prevailing scheme, the service of the applicant could have been regularised and the applicant appointed to one among the many vacancies in the Group-D posts. Alleging that his request for regularisation was not OP(CAT) 4520 of 2013 4 being considered, the applicant had earlier approached the Tribunal in O.A.No.796 of 2012, which was disposed of under Annexure A11 order (the Annexures referred are those marked in the Original Application), directing the Chief Commissioner of Central Excise/Customs, Cochin Zone to consider the applicant's request and take an appropriate decision thereon. Accordingly, the applicant's request was considered and rejected under Annexure A12 order. 2. In Annexure A12, the reason stated was that appointment of the applicant was purely on _ad hoc_ basis as part time casual labourer. As per the terms and conditions of appointment, his services were liable to be terminated without any notice or reason being assigned. The order of appointment does not confer any right for appointment in the Government on a permanent basis in any capacity. An OP(CAT) 4520 of 2013 5 undertaking had been given by the applicant stating that he understands and agrees that his appointment as part time contingent worker is purely temporary and that he will not get any right to a permanent appointment in the Government, based on the number of days/months/years that he puts in as a part time contingent worker. It is also stated in the order that there were no sanctioned post of part time casual labourer in the Department and that the persons are appointed as part time casual labourer for doing works which are casual, seasonal or intermittent in nature. The decision of the Honourable Supreme Court in _**State of Karnataka v. Umadevi [(2006) 4 SCC 1**_ was referred in the order to stress that the Apex Court had interdicted regularisation of casual employees, finding it to be a procedure for back door entry into public service. OP(CAT) 4520 of 2013 6 3. The main contention urged by the applicant was that, having initiated a process for regularisation of temporary workers in terms of the decision in _**Umadevi**_ 's case, as evidenced by Annexure A9, the respondents were liable to complete the process, in which event, the service of the applicant would have been regularised. In reply, the respondents submitted that Annexure A9 is only a report called for by the Ministry with the intention of regularising the services of casual workers, who had worked for ten years or more in duly sanctioned posts, as a one time measure, as permitted by the judgment in _**Umadevi**_ 's case. It was submitted that the applicant, having not been appointed to a sanctioned post, was not entitled for regularisation based on the process initiated through Annexure A9. It was pointed out that eariler there was a scheme for regularisation of casual OP(CAT) 4520 of 2013 7 labourers issued by the Department of Post and Telegraph vide O.M.No.51016/2/90-Estt (C) dated 10.9.1993, which was applicable only for casual labourers in service as on 1.9.1993. That, the applicant had joined as a part time casual labourer only in the year 1997. 4. The Tribunal considered the rival contentions and found the contention of the applicant that he was appointed against a duly sanctioned post to be factually incorrect. It was therefore held that the applicant was not entitled for the benefit of one time regularisation permitted in _**Umadevi**_ 's case. The Tribunal also noticed that with the implementation of the recommendations of the 6[th] Central Pay Commission, all Group -D posts were upgraded to Group-C posts with effect from April, 2009 and therefore, the question of regularising the applicant in a Group-D post does not arise. OP(CAT) 4520 of 2013 8 5. Assailing the findings of the Tribunal, as also the reasons stated in Annexure A12 for rejection of the applicant's claim, the learned Counsel for the petitioner submitted that the appointment of the applicant was through the Employment Exchange, after observing all requisite procedure. It is therefore contended that in all respect, the appointment of the applicant was through a known process of selection. It is submitted that the applicant is even now working on daily wages and the long continuous service of the applicant supports his contention regarding requirement of last grade employees. The learned Counsel also pleads that the denial of regularisation even after long continuous service defeats the legitimate expectation of the applicant. 6. The fact that the applicant was appointed on casual basis and that the appointment was not against a sanctioned OP(CAT) 4520 of 2013 9 post, cannot be disputed. The contention of the respondents that, in the terms and conditions of appointment itself, it was specified that the casual appointment would not confer any right for regularisation and that the applicant had given an undertaking stating that he will abide by the terms and conditions, is not controverted. As rightly held by the Tribunal, regularisation on the strength of the permission granted in _**Umadevi**_ 's case, would apply only in the case of casual labourers appointed to sanctioned posts. Any direction to consider the claim for regularisation of the applicant, who was not appointed to a sanctioned post, would therefore be in violation of the dictum laid down by the Apex Court. Therefore, we find no reason to interfere with the impugned order of the Tribunal. 7. The learned Counsel for the petitioner submitted OP(CAT) 4520 of 2013 10 that pursuant to Annexure A9, the service of similarly situated casual labourers was regularised by the respondents. If so, it is for the applicant to pursue his remedy in that regard, for which the findings herein will not be a fetter. In the result, the original petition is dismissed with the limited liberty as above. No order as to costs. **Sd/-** **K.VINOD CHANDRAN** **JUDGE** **Sd/-** **V.G.ARUN** **JUDGE** Scl/11.11x OP(CAT) 4520 of 2013 11 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A12 TRUE COPY OF THE ORDER DATED 28/01/2013 ISSUED BY THE 4TH RESPONDENT.** - **ANNEXURE A1 TRUE COPY OF THE LETTER DATED 20/08/1997 CALLING THE APPLICANT TO APPEAR FOR THE INTERVIEW.** - **ANNEXURE A2 TRUE COPY OF THE ORDER DATED 23/09/1997 APPOINTING THE APPLICANT AS CASUAL LABOURER.** - **ANNEXURE A3 TRUE COPY OF THE JOINING REPORT DATED 08/10/1997.** - **ANNEXURE A4 TRUE COPY OF THE LETTER DATED 01/12/2000.** - **ANNEXURE A5 TRUE COPY OF THE RELIEF REPORT DATED 07/09/2007.** - **ANNEXURE A6 TRUE COPY OF THE REPRESENTATION. ANNEXURE A7 TRUE COPY OF THE LETTER DATED 02/01/2008 TOGETHER WITH THE DETAILS IN RESPECT OF 25 CASUAL LABOURERS.** **ANNEXURE A8 TRUE COPY OF THE FINAL LIST DATED 08/09/2010. ANNEXURE A9 TRUE COPY OF THE LETTER DATED 17/12/2007 OF THE 3RD RESPONDENT. ANNEXURE A10 TRUE COPY OF THE REPRESENTATION DATED 20/06/2012 SUBMITTED BY THE APPLICANT BEFORE THE 2ND RESPONDENT.** OP(CAT) 4520 of 2013 12 **ANNEXURE A11 TRUE COPY OF THE ORDER DATED 27/09/2012 IN OA NO.796/12 OF HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH. ANNEXURE R1 TRUE COPY OF THE DO PT OM NO.49014/2/86-ESTT.(C) DATED 07/06/88. ANNEXURE R2 TRUE COPY OF THE ESSTT. CIRCULAR NO.1/96 DATED 04/01/06. ANNEXURE R3 TRUE COPY OF THE OM NO.51016/2/90/ESSTT(C) DATED 10/09/93. ANNEXURE R4 TRUE COPY OF THE VACANCY POSITION. ANNEXURE R5 TRUE COPY OF THE DOPT ORDER F.NO.11012/7/2008-ESSTT(A) DATED 09/04/2009. ANNEXURE R6 TRUE COPY OF THE LETTER C.NO.18013/95/2012-AD.III-B DATED 01/01/2013. ANNEXURE A13 TRUE COPY OF THE OFFICE ORDER DATED 01/01/1998. ANNEXURE A14 TRUE COPY OF THE PAGE NO.1 OF SSLC CERTIFICATE OF APPLICANT. ANNEXURE A15 TRUE COPY OF THE PAGE NO.8 OF SSLC CERTIFICATE OF APPLICANT. ANNEXURE A16 TRUE COPY OF THE ATTENDANCE ROLL FOR THE YEAR 1999. ANNEXURE A17 TRUE COPY OF THE ATTENDANCE ROLL FOR THE YEAR 2002. ANNEXURE A18 TRUE COPY OF THE ATTENDANCE ROLL FOR THE YEAR 2008.** OP(CAT) 4520 of 2013 13 - **ANNEXURE A19 TRUE COPY OF THE ADVANCE RECEIPT DATED 28/02/2002 ISSUED TO THE APPLICANT.** - **ANNEXURE R7 TRUE COPY OF THE CBEC'S LETTER F.NO.11013/27/2012-AD-IV DATED 06/03/2013.** - **ANNEXURE R8 TRUE COPY OF THE CBEC'S LETTER NO.F.NO.A-12034/50/2013-AD-II B DATED 15/07/2013.** - **EXHIBIT P1 TRUE COPY OF THE OA NO 310/2013 FILED BY THE RESPONDENT** - **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN OS NO 310/2013 FILED BY THE PETITIONER** - **EXHIBIT P3 TRUE COPY OF THE SALARY CERTIFICATE DATED 7.3.2013 ISSUED BY THE 5HT RESPONDENT** - **EXHIBIT P4 TRUE COPY OF THE SALARY CERTIFICATE DATED 30.1.2015 ISSUED BY THE 6TH RESPONDENT** - **EXHIBIT P5 TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER TO THE 6TH RESPONDENT ON 25.6.2018** - **EXHIBIT P6 TRUE COPY OF THE FORWARDING LETTER ISSUED TO THE 6TH RESPONDENT FORWARDING THE REQUEST OF THE PETITIONER TO HIM** - **EXHIBIT P7 TRUE COPY OF THE LETTER DATED 04/07/2016 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE SALARY CERTIFICATE DATED 07/03/2013 ISSUED BY THE 6TH RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE SALARY CERTIFICATE** OP(CAT) 4520 of 2013 14 ## **DATED 30/01/2015 ISSUED BY THE 6TH RESPONDENT.** **EXHIBIT P10** **TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER TO THE 6TH RESPONDENT ON 25/06/2018.** **EXHIBIT P11** **TRUE COPY OF THE FORWARDING LETTER ISSUED TO THE 6TH RESPONDENT FORWARDING THE REQUEST OF THE PETITIONER TO HIM.** **RESPONDENT'S/S EXHIBITS:** - **ANNEXURE R1 A TRUE COPY OF DOPT OM NO.49014/2/86 ESTT(C) DATED 07/06/1988.** - **ANNEXURE R1 B TRUE COPY OF CIRCULAR NO.1/96 DATED 04/01/1996.** - **ANNEXURE R1 C TRUE COPY OF DOPT'S ORDER AS PER OM NO.51016/2/90-ESTT(C) DATED 10/09/1993.** - **ANNEXURE R1 D TRUE COPY OF LIST SHOWING VACANCY POSITION.** - **ANNEXURE R1 E TRUE COPY OF DOPT ORDER DATED 09/04/2009.**