OP (CAT) No.173 of 2016 (Z) – U. Unnikrishnan v Union of India and 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 MAY 2020 / 21ST VAISAKHA, 1942** ## **OP (CAT).No.173 OF 2016(Z)** **OA 532/2014 DATED 24-03-2016 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** **PETITIONER/S:** ## **U.UNNIKRISHNAN** **AGED 57 YEARS,S/O. UNNICHEKKAN, BSNL, TSM, OFFICE OF THE SDE (ELECTRICAL),THRISSUR, RESIDING AT INCHODI HOUSE, NENMANIKKARA HOUSE, PUTHULLAD P.O, PIN 680 301,NOW RESIDING AT BSNL STAFF QUARTERS, QUARTERS NO.B5/5,POOTHOLE, THRISSUR 680 004** **BY ADVS. SRI.M.R.HARIRAJ SRI.P.A.KUMARAN SRI.NIRMAL V NAIR** ## **RESPONDENT/S:** **1 UNION OF INDIA REPRESENTED BY THE SECRETARY, DEPARTMENT OF TELECOMMUNICATION IN NEW DELHI 110 001 2 BHARATH SANCHAR NIGAM LTD REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, SANCHAR BHAVAN, NEW DELHI 110 001** - **3 CHIEF GENERAL MANAGER TLECOMMUNICATIONS, BSNL, THIRUVANANTHAPURAM** - **4 PRINCIPAL GENERAL MANAGER TELECOMMUNICATIONS, BSNL,TRICHUR 680 026** **R1 BY SRI.K.SHRI HARI RAO, CGC R1 BY ADV. SRI.K.SHRI HARI RAO CGC R2-4 BY ADV. SRI.SAJI VARGHESESCBSNLBHARAT SANCHA** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 11.05.2020, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(CAT) No.173 of 2016 2 ## **JUDGMENT** Dated this the 11[th] day of May, 2020 ## **V.G.ARUN, J.** The petitioner allegedly commenced service as a daily wages casual labourer (Pump Operator) in the erstwhile Telecom Department in the year 1988. Later, on publication of Annexure A2 paper notification, the petitioner applied and was empanelled as Casual Mazdoor vide Annexure A4 dated 03.08.1999. Aggrieved by the stipulation in Annexure A4 that his engagement as an empanelled casual labourer would not entitle him for regularisation and that the engagement was without any right for even being conferred with temporary status, the petitioner filed O.A. No. 422 of 2000 before the Central Administrative Tribunal, which was disposed under Annexure A6 order dated 09.03.2001, declaring the petitioner O.P.(CAT) No.173 of 2016 3 to be entitled for engagement as casual labourer on the basis of seniority and eligibility, without any condition as to the days of his engagement, whenever casual labourers are engaged and for consequential benefits such as conferment of temporary status and regularisation in accordance with the rules in force. 2. After being conferred with temporary status, petitioner approached the respondents seeking regularisation as Regular Mazdoor (Group D) in the BSNL. By Annexure A10, the Assistant General Manager, BSNL clarified that Temporary Status Mazdoors with 10 years of service as on 31[st] March of each year alone will be considered for regularisation. Therefore, on completion of 10 years service after confirmation of temporary status, the petitioner demanded regularisation in services w.e.f. 01.04.2013. Alleging inaction O.P.(CAT) No.173 of 2016 4 on the part of the respondents in taking action on the request, petitioner filed O.A. No. 1077 of 2013, which the Tribunal disposed under Annexure A12 order, directing consideration of the representation within three months based on the merits of the case and the rules in force. Accordingly, respondents considered the representation and rejected the same under Annexure A1 order dated 28.02.2014. The instant original application was thereupon filed seeking to quash Annexure A1 and to direct the respondents to consider the petitioner for regular appointment w.e.f. 01.10.2000, with all consequential benefits, including areas of pay and allowances with interest. 3. Heard Sri. M.R. Hariraj, learned Counsel for the petitioner and Sri.Saji Varghese, the learned Standing Counsel for BSNL. 4. The learned counsel for the petitioner contended O.P.(CAT) No.173 of 2016 5 that the rights of the petitioner having crystallised by Annexure A6 and A12 orders, rejection of his request for regularisation is illegal. It is pointed out that the services of similarly placed casual mazdoors conferred with temporary status in terms of Annexure A8 notification had been regularised. It is the petitioner's case that Annexure A8 notification was not given adequate publicity, resulting in the petitioner being unaware of Annexure A8 and thereby prevented from submitting the application for regularisation. It is pointed out that the petitioner falls within the second category of employees mentioned in Annexure A8 and as such, refusal to regularise the petitioner’s service, in spite of the directions in Annexures A6 and A12 unjust. 5. According to the learned Standing Counsel, all the eligible Temporary Status Mazdoors/Casual Labourers/Ayas O.P.(CAT) No.173 of 2016 6 were regularised w.e.f 01.10.2000 in terms of Annexure A8 order and that the Scheme/Order on regularisation of Temporary Status Mazdoor is not being followed in the BSNL anymore in view of the law laid down by the Apex Court in _**State of Karnataka v. Umadevi [(2006) 4 SCC 1]**_ . It is pointed out that the policies for regularisation were formulated earlier pursuant to the decision of the Apex Court in _**Daily Rated Casual Labour v Union of India [(1988) 1 SCC 122]**_ , which is no longer good law in view of the observations in _**Umadevi**_ . It is submitted that the acute financial crisis being faced by BSNL has rendered the continuance of service of even the existing regular employees uncertain. 6. As far as the contention of the directions in _**Daily Rated Casual Labour**_ being held not good law, the answer is at paragraph 18 of _**Umadevi,**_ which is extracted hereunder; _**“** 18. Without keeping the above distinction in mind and without_ O.P.(CAT) No.173 of 2016 7 _discussion of the law on the question or the effect of the directions on the constitutional scheme of appointment, this Court in Daily Rated Casual Labour v. Union of India [(1988) 1 SCC 122 : 1988 SCC (L&S) 138 : (1987) 5 ATC 228 : (1988) 1 SCR 598] directed the Government to frame a scheme for absorption of daily-rated casual labourers continuously working in the Posts and Telegraphs Department for more than one year. This Court seems to have been swayed by the idea that India is a socialist republic and that implied the existence of certain important obligations which the State had to discharge. While it might be one thing to say that the daily-rated workers, doing the identical work, had to be paid the wages that were being paid to those who are regularly appointed and are doing the same work, it would be quite a different thing to say that a socialist republic and its executive, is bound to give permanence to all those who are employed as casual labourers or temporary hands and that too without a process of selection or without following the mandate of the Constitution and the laws made thereunder concerning public employment. The same approach was made in Bhagwati Prasad v. Delhi State Mineral Development Corpn. [(1990) 1 SCC 361 : 1990 SCC (L&S) 174 : 1989 Supp (2) SCR 513] where this Court directed regularisation of daily-rated workers in phases and in accordance with seniority.”_ 7. In _**Umadevi**_ , the Honorable Supreme Court deprecated, in the strongest terms, the practice of usurping public employment by resort to the back door method of initial employment on daily/casual basis followed by regularisation. The following paragraphs of the judgment leaves no room for doubt that, neither the authorities nor the O.P.(CAT) No.173 of 2016 8 ## Courts could hitherto indulge in or encourage such practise: “ **43.** _Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had_ O.P.(CAT) No.173 of 2016 9 _continued under cover of an order of the court, which we have described as “litigious employment” in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates._ _**53.** One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to_ O.P.(CAT) No.173 of 2016 10 _fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme._ _**54.** It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.”_ 8. The petitioner cannot be heard to contend that he falls within the exempted category of duly qualified persons mentioned at paragraph 53 above, since those are persons engaged in duly sanctioned vacant posts, who continued to work for ten years or more without the intervention of orders of the courts or of tribunals. The resultant position is that the declaration of law in _**Umadevi**_ would apply on all fours in the case of the petitioner. Moreover, the Apex Court having declared even the decisions which run counter to the principle settled in _**Umadevi**_ to be denuded of their status as O.P.(CAT) No.173 of 2016 11 precedents, the earlier policy of regularisation of service of Temporary Casual Mazdoors, cannot survive. For the same reason, Annexure A6 and Annexure A12 orders of the Tribunal will not aid the petitioner in his cause, since Article 141 of the Constitution of India makes the law declared by the Supreme Court binding on all courts within the territory of India. 9. Annexure A5 order neither condones the petitioners absence after his initial engagement nor even reckons the earlier engagement as eligible service for the purpose of regularisation. The order only directs engagement in accordance with seniority; without reckoning days of his earlier engagement and conferment of consequential benefits of temporary status and regularisation in accordance with the rules in force. That is to say the rules in force at the time when the issue of conferment of such benefits arise and not the O.P.(CAT) No.173 of 2016 12 rules on his date of initial engagement or re-engagement. The rules obviously were against him, when his turn arose as per the earlier rules; that too for reason of the authoritative pronouncement of the Supreme Court on the invalidity of regularisation on the basis of initial casual engagement in public employment without following the constitutional scheme of a due process of selection participating the eligible from the general public. In the result the original petition is dismissed. No order as to costs. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/JUDGE** **V.G.ARUN** Scl/11.05 xxx O.P.(CAT) No.173 of 2016 13 ## **APPENDIX OF OP (CAT) 173/2016** **PETITIONER'S/S EXHIBITS:** **P2 A TRUE COPY OF ORIGINAL APPLICATION 532/2014 ALONG WITH THE ANNEXURES THEREOF ANNEXURE A1 A TRUE COPY OF THE ORDER NO.LC/O.A.1077/2013 DATED 28.02.2014 ISSUED BY THE 4TH RESPONDENT ANNEXURE A2 A TRUE COPY OF THE PAPER NOTIFICATION ISSUED BY THE 3RD RESPONDENT ANNEXURE A3 A TRUE COPY OF THE LETTER NO G- 28/TESD/TCR/95/264 DATED 21.04.1995 ISSUED BY THE ASSISTANT ENGINEER ANNEXURE A4 A TRUE COPY OF THE ORDER NO E5/MAZ/XIV/21 DATED 3.08.1999 ANNEXURE A5 A TRUE COPY OF THE ORDER NO TFC/282/EMP/99 DATED 21.10.1999 ANNEXURE A6 A TRUE COPY OF FINAL ORDER DATED 9.03.2001 IN O.A. NO. 422/2000 ON THE FILES OF THIS HONOURABLE TRIBUNAL ANNEXURE A7 A TRUE COPY OF JUDGMENT DATED 2.01.2002 IN O.P. NO.15445 OF 2001 ON THE FILES OF THE HONOURABLE HIGH COURT OF KERALA ANNEXURE A8 A TRUE COPY OF THE DIRECTION NO.26994/98-STN-II DATED 29.09.2000 ISSUED BY THE DEPARTMENT OF TELECOM. ANNEXURE A9 A TRUE COPY OF THE MEMO NO. E- 5/XIII/PART/125 DATED 5.06.2003 ISSUED BY THE ASSISTANT GENERAL MANAGER (ADMN)** O.P.(CAT) No.173 of 2016 14 **ANNEXURE A10 A TRUE COPY OF THE LETTER NO. STA/225/2000-16/TSM/REGU/27 DATED 05.02.2007 MADE BY THE ASSISTANT GENERAL MANAGER** **ANNEXURE A11 A TRUE COPY OF THE REPRESENTATION DATED 23.05.2012 MADE BY THE APPLICANT** - **ANNEXURE A12 A TRUE COPY OF THE FINAL ORDER DATED 6.11.2013 IN O.A.1077/2013 ON THE FILES OF THIS HONOURABLE TRIBUNAL** **P1 A TRUE COPY OF THE FINAL ORDER DATED 24-3-2016 IN OA 532/2016 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH EXHIBIT P3 A TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS, ALONG WITH THE ANNEXURE THEREOF EXHIBIT P4 A TRUE COPY OF REJOINDER FILED BY THE PETITIONER RESPONDENT'S/S EXHIBITS: ANNEXURE -R2 (A)** A TRUE COPY OF THE LETTER NO.269-4/93 STN III DATED 22.06.1988 **ANNEXURE-R2(B)** A TRUE COPY OF THE DOT LT NO. 269-27/91-STN DATED 03.01.1992 **ANNEXURE -R2(C)** A TRUE COPY OF THE OFFICE LT NO.7-10/2013-LE DATED 04.11.2013 O.P.(CAT) No.173 of 2016 15 O.P.(CAT) No.173 of 2016 16 O.P.(CAT) No.173 of 2016 17 O.P.(CAT) No.173 of 2016 18 O.P.(CAT) No.173 of 2016 19