Lekha P.A. v Union of India and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 27TH DAY OF FEBRUARY 2017/8TH PHALGUNA, 1938 OP (CAT).No. 103 of 2014 (Z) ----------------------------AGAINST THE ORDER IN OA 25/2012 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 31-10-2012 PETITIONER: ------------------ LEKHA P.A., AGED 45 YEARS, W/O. JOSE A.P., ADAKKARA VAYALIL, AIRAPURAM P.O., PERUMBAVOOR, ERNAKULAM DISTRICT, KERALA STATE, PIN-683 541. BY ADVS.SRI.T.C.GOVINDA SWAMY SMT.KALA T.GOPI SMT.T.N.SREEKALA RESPONDENTS: ----------------------- 1. UNION OF INDIA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF EXTERNAL AFFAIRS, NEW DELHI-110 001. 2. THE JOINT SECRETARY (CPV) & CHIEF PASSPORT OFFICER MINISTRY OF EXTERNAL AFFAIRS, NEW DELHI-110 001. 3. THE REGIONAL PASSPORT OFFICER REGIONAL PASSPORT OFFICE, PANAMPILLY NAGAR, KOCHI-682 036. BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 27-02-2017, ALONG WITH OPCAT. 109/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 103 of 2014 (Z) ----------------------------- ## **APPENDIX** ## PETITIONER'S EXHIBITS ----------------------- - P1 : COPY OF ORDER DTD.31.10.2012 IN OA NO.25/2012 RENDERED BY THE LEARNED CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. - P2 : COPY OF OA NO.25/2012 DTD.3.1.2012 ALONG WITH ITS ANNEXURES FILED BY THE PETITIONER BEFORE THE LEARNED CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. - P3 : COPY OF REPLY STATEMENT DTD.14.8.2012 FILED ON BEHALF OF THE RESPONDENTS. - P4 : COPY OF JUDGMENT DTD.18.12.2007 IN OP NO.34447/2001 RENDERED BY THIS COURT. - P5 : COPY OF ORDER DTD.10.8.2009 IN OA NO.709/2008, RENDERED BY THE HON'BLE TRIBUNAL. - P6 : COPY OF JUDGMENT DTD.14.10.2009 IN WPC NO.25647/2009 RENDERED BY THIS HON'BLE COURT. - P7 : COPY OF OFFICE ORDER BEARING NO.KOZ/551/13/2006 DTD.10.12.2010, ISSUED BY THE PASSPORT OFFICER, KOZHIKODE. - P8 : COPY OF OFFICE ORDER BEARING KOZ/586/03/2010 DTD.15.2.2012 ISSUED BY THE PASSPORT OFFICER, KOZHIKODE. - P9 : COPY OF OFFICE ORDER BEARING NO.KOZ/586/04/2010 DTD.28.2.2012 ISSUED BY THE PASSPORT OFFICER, KOZHIKODE. ## RESPONDENTS' EXHIBITS:: NIL ## TRUE COPY P.S. TO JUDGE dsn ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. -------------------------------------------------O.P.(CAT)Nos.103 & 109 of 2014** **-------------------------------------------------DATED THIS THE 27[th] DAY OF FEBRUARY, 2017** ## **JUDGMENT** ## **ANIL K. NARENDRAN, J.** These Original Petitions arise out of the order of the Central Administrative Tribunal, Ernakulam Bench dated 31.10.2012 in O.A.No.25 of 2012. The petitioner in O.P.(CAT)No.103 of 2014 is the 2[nd] applicant and the petitioner in O.P.(CAT)No.109 of 2014 is the 1[st] applicant in O.A.No.25 of 2012. They have filed the said O.A. seeking for an order to quash Annexure A4 order dated 1.11.2011 of the 3[rd] respondent by which their request for retention as casual labourers (daily rated clerks) in the Regional Passport Office, Kochi has been declined. The petitioners have also sought for an order directing the respondents to engage them as daily rated clerks in accordance with their seniority as shown in Annexure A1 list. 2. The reliefs sought for in the O.A. were opposed by the respondents by filing Ext.P3 reply statement. After considering the rival contentions, the Tribunal by Ext.P1 order dated 31.10.2012 dismissed the O.A. Feeling aggrieved by the said order, the petitioners/applicants are before this Court in these Original Petitions. 3. We heard the arguments of learned counsel for the O.P.(CAT)Nos.103/14 & 109/14 -2- petitioners/applicants and also learned Assistant Solicitor General of India for the respondents. 4. Going by the averments in the O.A., the applicants were eneged as casual labourers (daily rated clerks) in the office of the 3[rd] respondent on 13.7.1992 and 20.4.1992 respectively, on being sponsored by the Employment Exchange. They continued in the office of the 3[rd] respondent till August, 1996 when they were transferred to the Regional Passport Office, Thiruvananthapuram. In August, 1997 they were sent back to the Regional Passport Office, Kochi and while continuing in the office of the 3[rd] respondent, they were disengaged with effect from 15.3.1999. Though the 1[st] applicant was offered reengagement in the year 1999 itself, she could not accept that offer as she was in advanced stage of pregnancy. The 2[nd] applicant was reengaged from 9.2.2000 to 6.11.2000 and she was disengaged with effect from 4.12.2000. The applicants are ranked at Sl.Nos. 96 and 131 in Annexure A1 combined list of casual labourers in the Regional Passport Offices at Kochi, Kozhikode and Thiruvananthapuram. According to the applicants, their juniors who are Sl.Nos.168 to 180 in Annexure A1 list were reengaged with effect from 10.11.2008. 5. Since the applicants were not considered for re engagement, they filed O.A No.147 of 2009 before the Tribunal, seeking an order directing the respondents to engage them for work in any of the O.P.(CAT)Nos.103/14 & 109/14 -3- Passport Offices in Kerala, in preference to their juniors and freshers, with all consequential benefits. The said O.A. was disposed of by Annexure A2 order dated 8.6.2010, by directing the respondents to consider their engagement as and when need arises in future, in preference to their juniors and freshers. The said order was under challenge in O.P.(CAT)No.1680 of 2011 filed by the respondents, which ended in dismissal. 6. According to the applicants, during the pendency of O.A.No.147 of 2009, the respondents reengaged two daily rated clerks, namely, K.Anilkumar and Udayaraj Janardhanan, who are ranked at Sl.Nos.163 and 171 in Annexure A1 list, with effect from 10.12.2010. Pointing out the said fact, the applicants submitted Annexure A3 representation before the 3[rd] respondent, which was rejected by Annexure A1 order dated 1.11.2011 stating that their request cannot be acceded to since the Ministry is not engaging any more employees as casual labourers in future. 7. Feeling aggrieved by Annexure A4 order, the applicants approached the Tribunal in O.A No.25 of 2012 seeking an order to quash Annexure A4 order; to direct the respondents to engage them as daily rated clerks in accordance with their seniority in Annexure A1 list; and to declare that they are entitled to be engaged as daily rated clerks. 8. The respondents filed Ext.P3 reply statement contending that O.P.(CAT)Nos.103/14 & 109/14 -4- the applicants who were engaged as daily rated clerks in the office of the 3[rd] respondent were disengaged from service due to administrative reasons on 15.3.1999. They were offered re engagement in 1999 itself. The 1[st] applicant did not accept that offer. Though the 2[nd] applicant was reengaged in 2000, she was disengaged on 4.12.2000. The Tribunal in Annexure A2 order directed the respondents to consider engagement of the applicants as and when need arises. As the Ministry did not approve the engagement of casual labourers in future, the decision was conveyed to the applicants vide Annexure A4. 9. The respondents contended further that, Sri.Anilkumar K. and Udayaraj Janardhanan were reengaged on 10.1.2010 in compliance of the judgment of this Court in W.P.(C)No.25647 of 2009 (Ext.P6) and to avoid contempt of court proceedings and their re engagement was also subject to the outcome of the S.L.P. filed before the Apex Court. Similarly, Sri.Rajesh C. and four others were reengaged in compliance of the judgment of this Court in W.P.(C)No.34447 of 2001 (Ext.P4). As per the Ministry's instructions, no engagement of casual labourers can be acceded in future and as such, the applicants are not entitled for any of the reliefs prayed for. 10. The Tribunal by Ext.P1 order dismissed the O.A. taking note of the stand taken by the respondents that, they no longer need casual labourers on daily wage basis. As discernible from Annexure A3 O.P.(CAT)Nos.103/14 & 109/14 -5- representation, after disengagement, the 2[nd] applicant was informed vide memo dated 28.2.2001 of the 3[rd] respondent that her further engagement as casual labourer could be considered if need arises and approval is granted by the Ministry of External Affairs. 11. Claiming re engagement and regularisation, the applicants approached the Tribunal in O.A.No.530 of 2005 and the said O.A. was disposed of directing the respondents to consider their representation. Pursuant to the said order, the respondents considered the said representation and turned down the request made therein, in the year 2005, stating that there is no need for engaging causal labourers. The pleadings and materials on record would indicate that, the applicants never challenged the said order by which their request for re engagement and regularisation was turned down by the respondents. 12. When there was a proposal to conduct a special department test on all India basis for regularisation of existing casual labourers who were working in various Passport Offices in India, the applicants approached the Tribunal in O.A.No.619 of 2005 and obtained an order permitting them to appear for the said test scheduled to be held on 21.5.2006. However, the said examination was cancelled by the Ministry of External Affairs. 13. In **State of Karnataka v. Umadevi [(2006) 4 SCC 1]** a Constitution Bench of the Apex Court has laid down the principle that, no O.P.(CAT)Nos.103/14 & 109/14 -6- temporary, contractual or casual employee can invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. 14. However, in paragraph 53 of Umadevi's case (supra), the Constitution Bench carved out an exception to the general principles enumerated in paragraph 47. In **Amarkant Rai v. State of Bihar [(2015) 8 SCC 265]** the Apex Court observed that, the objective behind the exception carved out in paragraph 53 of Umadevi's case (supra) was to permit regularisation of such appointments, which are irregular but not illegal, and to ensure security of employment of those persons who had served the State Government and its instrumentalities for more than ten years. 15. In **State of Karnataka v. M. L. Kesari [(2010) 9 SCC 247]** the Apex Court explained that, the object behind the direction contained in paragraph 53 of Umadevi's case (supra) is two-fold. First is to ensure that those who have put in more than ten years of continuous O.P.(CAT)Nos.103/14 & 109/14 -7- service without the protection of any interim orders of Courts or Tribunals, before the date of decision in Umadevi was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/ instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. 16. The Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India, 1993 formulated vide OM dated 10.9.1993, in pursuance of the order of the Central Administrative Tribunal, Principal Bench dated 16.2.1990 in Raj Kamal and others v. Union of India, inter alia stipulates certain conditions for grant of temporary status to persons recruited on daily wage basis in the Central Government Offices. As per Clause 2, the Scheme shall come into force with effect from 1.9.1993. As per Clause 3, the Scheme is applicable to casual labourers in employment of the Ministries/ Departments of Government of India (except Railways, Department of Telecommunication and Department of Posts) and their attached and subordinate offices, on the date of issue of the OM. Clause 4 of the Scheme provides that, 'temporary' status would be conferred on all O.P.(CAT)Nos.103/14 & 109/14 -8- casual labourers who are in employment on the date of issue of the OM and who have rendered a continuous service of at least one year, which means that they must have been engaged for a period of at least 240 days (206 days in the case of offices observing 5 days week). 17. In **Union of India v. Mohan Pal [(2002) 4 SCC 573]** the question that came up for consideration of the Apex Court was as to whether the conferment of 'temporary' status under the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme is an one time programme or is it an ongoing Scheme to be followed by the Department and whether the casual labourers are to be given 'temporary' status as and when they complete 240 days of work in a year (206 days for the offices observing 5 days a week). Interpreting Clause 4 of the Scheme, the Apex Court held that, the conferment of 'temporary' status is to be given to the casual labourers who were in employment as on the date of commencement of the Scheme. In order to acquire 'temporary' status, the casual labourer should have been in employment as on the date of commencement of the Scheme and he should have also rendered a continuous service of at least one year, which means that, he should have been engaged for a period of at least 240 days in a year or 206 days in case of offices observing 5 days a week. However, the Apex Court made it clear that, those who have already been given 'temporary' status on the assumption that it is an O.P.(CAT)Nos.103/14 & 109/14 -9- ongoing scheme shall not be stripped of the 'temporary' status pursuant to this judgment. Paras.6 and 11 of the said judgment read thus; “6. Clause 4 of the Scheme is very clear that the conferment of 'temporary' status is to be given to the casual labourers who were in employment as on the date of commencement of the Scheme. Some of the Central Administrative Tribunals took the view that this is an ongoing Scheme and as and when casual labourers complete 240 days of work in a year or 206 days (in case of offices observing 5 days a week), they are entitled to get 'temporary' status. We do not thing that Clause 4 of the Scheme envisages it as an ongoing Scheme. In order to acquire 'temporary' status, the casual labourer should have been in employment as on the date of commencement of the Scheme and he should have also rendered a continuous service of at least one year which means that he should have been engaged for a period of at least 240 days in a year or 206 days in case of offices observing 5 days a week. From Clause 4 of the Scheme, it does not appear to be a general guideline to be applied for the purpose of giving 'temporary' status to all the casual workers, as and when they complete one year's continuous service. Of course, it is up to the Union Government to formulate any scheme as and when it is found necessary that the casual labourers are to be given 'temporary' status and later they are to be absorbed in Group 'D' posts. xxx xxx xxx 11. In Civil Appeals Nos.3168, 3182, 3179, 3176-78, 3169 of 2002 arising out of SLP(Civil)No.2224 of 2000, SLP(Civil)No.13024 of 2001, SLP(Civil)No.1563 of 2001, SLP(Civil)No.17174-17176 of 2000, SLP(Civil)No.2151 of 2000, the respondents have been given 'temporary' status, even though, they did not specifically fulfil the condition in Clause.4 of the Scheme. Some of them were engaged O.P.(CAT)Nos.103/14 & 109/14 -10- by the Department even after the commencement of the Scheme. But these casual labourers had also rendered service for more than one year and they were not given 'temporary' status pursuant to the directions issued by the Court. We do not propose to interfere with the same at this distance of time. However, we make it clear that the Scheme of 1.9.1993 is not an ongoing Scheme and the 'temporary' status can be conferred on the casual labourers under that Scheme only on fulfilling the conditions incorporated in Clause.4 of the Scheme, namely, they should have been casual labourers in employment as on the date of the commencement of the Scheme and they should have rendered continuous service of at least one year, i.e., at least 240 days in a year or 206 days (in case of offices having 5 days a week). We also make it clear that those who have already been given 'temporary' status on the assumption that it is an ongoing Scheme shall not be stripped of the 'temporary' status pursuant to our decision.” 18. The law laid down in Mohan Pal's case (supra) has been taken note of and relied on by the Apex Court in **Union of India v. Gagan Kumar [(2005) 6 SCC 70]** ; **Director General, Doordarshan v. Manas Dey [(2005) 13 SCC 437]** ; **Controller of Defence Accounts, Dehradun v. Dhani Ram [(2007) 10 SCC 462]** ; and in **Manjula Bhashini A. v. Managing Director, A.P. Women's Cooperative Finance Corporation Ltd. [(2009) 8 SCC 431]** . 19. In view of the law laid down by the Apex Court in the decisions referred to supra, the policy framed by the Government of India in 1993 for grant of temporary status to the casual labourers and O.P.(CAT)Nos.103/14 & 109/14 -11- regularisation of their services cannot be interpreted as creating a right in favour of all casual labourers to be regularised in service irrespective of the date of completion of the specified period. The conferment of 'temporary' status has to be given to the casual labourers who were in employment as on the date of commencement of the Scheme. In order to acquire 'temporary' status, the casual labourer should have been in employment as on the date of commencement of the Scheme and he should have also rendered a continuous service of at least one year, which means that, he should have been engaged for a period of at least 240 days in a year or 206 days in case of offices observing 5 days a week. Therefore, Clause 4 of the Scheme is not a general guideline to be applied for the purpose of giving 'temporary' status to all the casual workers, as and when they complete one year's continuous service. 20. In the instant case, as we have already noticed, claiming re-engagement and regularisation, the applicants approached the Tribunal in O.A.No.530 of 2005 and the said O.A. was disposed of directing the respondents to consider their representation. Pursuant to the said order, the respondents considered the said representation and turned down the request made therein, in the year 2005. The pleadings and materials on record would indicate that the applicants never challenged the said order by which their request for re engagement and regularisation was turned down by the respondents. O.P.(CAT)Nos.103/14 & 109/14 -12- 21. The applicants approached the Tribunal in O.A No.147 of 2009, seeking an order to engage them as daily rated clerks in any of the Passport Offices in Kerala. By Annexure A2 order, the Tribunal disposed of the said O.A. by directing the respondents to consider engagement of the applicants as and when need arises in future, in preference to their juniors and freshers. Alleging re engagement of certain persons as daily rated clerks overlooking seniority, the applicants filed Annexure A3 representation before the 3[rd] respondent, which was rejected by Annexure A1 order dated 1.11.2011 stating that their request cannot be acceded to since the Ministry is not engaging any more employees as casual labourers in future. 22. In O.A No.25 of 2012 filed before the Tribunal, the applicants sought for an order to quash Annexure A4 order and to direct the respondents to engage them as daily rated clerks in accordance with their seniority in Annexure A1 list. Such a relief was sought for mainly based on the re engagement of certain persons who are juniors to the applicants in Annexure A1 list. However, as contended by the respondents, such persons were reengaged in compliance of Exts.P4 to P6 judgments/order, to avoid contempt proceedings. The applicants could not point out any re engagement of casual labourers (daily rated clerks) other than those who are the applicants/petitioners in those cases. As discernible from Ext.P1 order, the specific stand taken by the O.P.(CAT)Nos.103/14 & 109/14 -13- respondents before the Tribunal was that, as per the Ministry's instructions, no engagement of casual labourers can be acceded in future and as such, the applicants are not entitled for re engagement. 23. The only direction contained in Annexure A2 order of the Tribunal in O.A No.147 of 2009 is to consider engagement of the applicants as and when need arises in future, in preference to their juniors and freshers. Before the Tribunal, the respondents have pointed out that, no freshers are taken and juniors in Annexure A1 list were engaged to avoid contempt proceedings and subject to the outcome of SLP. The respondents have also pointed out that, many Passport Seva Kendras have been opened with Tata Consultancy Services (TCS) as Technology Partner. When the processing of passport application is totally computerised and TCS is overseeing such work, there is no need to engage daily rated clerks in the Regional Passport Offices. In such circumstances, the Tribunal dismissed the O.A. concluding that the respondents cannot be faulted with for not engaging the applicants. The reasoning of the Tribunal to that effect in Ext.P1 order is neither perverse nor patently illegal warranting an interference of this Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. In the result, these Original Petitions fail and they are accordingly dismissed. However, the dismissal of these Original Petitions will not O.P.(CAT)Nos.103/14 & 109/14 -14- stand in the way of the petitioners/applicants approaching the respondents with an appropriate representation, in case any freshers or any juniors in Annexure A1 list are engaged as casual labourers (daily rated clerks) overlooking their preferential claim in terms of Annexure A2 order of the Tribunal, in which event, the competent authority shall consider the same and pass appropriate orders thereon, with notice to the petitioners/applicants and after affording them an opportunity of being heard. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** dsn True copy P.S. to Judge