P.K. Pocker v Bharat Sanchar Nigam Ltd & Others (OP (CAT) 174 of 2016)

## **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.174 OF 2016(Z)** **OA 574/2013 DATED 24-03-2016 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONER/S:** **P.K.POCKER AGED 51 YEARS, S/O KUNJUMOHAMMED, TEMPORARY STATUS MAZDOOR, OCB SOUTH, OFFICE OF SDE BSNL, TRICHUR SOUTH, NEAR MUNICIPAL STAND, TRICHUR, RESIDING AT POTTAYIL HOUSE, VETTIKATTIRI, VALLATHOL NAGAR, TRICHUR 679 531.** **BY ADVS. SRI.M.R.HARIRAJ SRI.P.A.KUMARAN SRI.NIRMAL V NAIR** ## **RESPONDENT/S:** - **1 BHARATH SANCHAR NIGAM LTD, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, SANCHAR BHAVAN, NEW DELHI 110 001.** - **2 THE CHIEF GENERAL MANAGER TELECOMMUNICATIONS, BSNL, THIRUVANANTHAPURAM.** - **3 GENERAL MANAGER TELECOMMUNICATIONS, BSNL, TRICHUR 680 026. R1-3 BY ADV. SRI.SAJI VARGHESE,SC, BSNL** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 11.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(CAT) 174 of 2016 2 ## **JUDGMENT** Dated this the 11[th] day of May, 2020 ## **V.G.ARUN, J.** Petitioner, a Temporary Casual Mazdoor in the BSNL, had approached the Central Administrative Tribunal seeking a direction to the respondents to consider him for regular appointment w.e.f. 01.10.2000 or at least w.e.f. 27.02.2012, with all consequential benefits, including arrears of pay and allowances with interest. The application was founded on the following facts: The petitioner asserted that he commenced service as Casual Labourer in the Telecom Department on 19.03.1983 and was conferred Temporary Status w.e.f 01.10.1989 as per Annexure A1 dated 19.02.1990. While continuing as Temporary Status Casual Labourer, the petitioner was O.P.(CAT) 174 of 2016 3 disengaged consequent upon his failure to report for duty from 01.07.1992 onwards. Later, based on the petitioner’s request, despite the break in service, a decision taken by the competent authority to re-engage the petitioner. Communication in this regard, though issued to the petitioner, was returned unclaimed, purportedly for reason of the petitioner being employed abroad. In the meanwhile, the Department had decided to consider the case of Casual Mazdoors w.e.f. temporary status engaged prior to 31.03.1983 and having completed ten years of service or more as on 31.03.1993 for regularisation and accordingly, the Departmental Promotion Committee considered the case of the petitioner along with others on 15.11.1993. Even though the petitioner was eligible, his name was not recommended since he was not in employment at that point of time. Unaware about the consideration and rejection of his name, O.P.(CAT) 174 of 2016 4 the petitioner had filed O.A. No. 1076 of 1999 before the Tribunal and in spite of the respondents pointing out the factum of rejection by the DPC, the Tribunal, vide Annexure A4 judgement, directed the respondents to consider the representation seeking regularisation. Thereupon, the representation was considered and rejected and petitioner approached the Tribunal again in OA No. 1059 of 2000, which was allowed in his favour directing the respondents to reengage the petitioner, subject to availability of work. Accordingly, the petitioner was re-engaged on 14.02.2002 and is working as Temporary Status Mazdoor under the third respondent from then onwards. The petitioner had in the meanwhile approached the Tribunal again in O.A No. 1076 of 1999, seeking to get condoned, the break in his service from 06.06.1993, the date of disengagement and 14.02 2002, the date on which he was re-engaged. That original application O.P.(CAT) 174 of 2016 5 was dismissed by the Tribunal. Aggrieved, the petitioner approached this Court in O.P.No.523 of 2003, which was also dismissed under Annexure A6 judgement. Later, petitioner and other similarly placed Temporary Casual Mazdoors approached the respondents for getting their service regularised, taking into account their long uninterrupted tenure after re-engagement. By Annexure A7, 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 from the 1[st] April of that year. The clarification is the basis on which the petitioner claims regularisation, contending that, having completed 10 years after re-engagement on 1402.2012, his service should have been regularised with effect from 01.04.2012. 2. The respondents countered the claim on the O.P.(CAT) 174 of 2016 6 premise that the issue is covered by Annexure A6 judgement of this Court, wherein it has been categorically held that the petitioner deserves nothing beyond re-engagement as a casual labourer. The further contention of the respondents is that the policy of regularisation of Temporary Casual Mazdoors is not in vogue after the Constitution Bench decision of the Supreme Court in _**State of Karnataka v. Umadevi [(2006) 4 SCC 1]**_ . It is pointed out that BSNL is in such acute financial crisis that continuance of service of even the existing regular employees is uncertain. 3. The Tribunal accepted the contention of the respondents and dismissed the original application, finding that the issue is covered against the petitioner by Annexure A6 judgement as well as the declaration in _**Umadevi**_ (supra). 4. Heard Sri. M.R. Hariraj, learned Counsel for the petitioner and Sri. Saji Varghese, the learned Standing Counsel O.P.(CAT) 174 of 2016 7 5. The factual contention of the petitioner having been re-engaged on 14.02.2002 as per the direction in Annexure A5 judgment and of the petitioner's efforts to get his service break condoned having been rejected by the Tribunal and that decision having attained finality by Annexure A6 judgment is not in dispute. According to the respondents, the claim for regularisation was rightly rejected by the Tribunal as the issue stood concluded in the light of the findings in Annexure A6. It would therefore be apposite to have a look at the contextually relevant portion of Annexure A6, which is extracted hereunder: _In fact, the matter had already been adjudicated by the Tribunal and under the order, the authority was not bound to grant any relief for condonation of any break. Even otherwise, we are satisfied that the petitioner has already got more than his due. Jobs under the Government are meant for persons who are serious about their work. The petitioner was totally casual about the service. Thus, he_ O.P.(CAT) 174 of 2016 8 _deserves nothing beyond being re-engaged as a casual labourer.”_ 6. The Division Bench having specifically held that the petitioner deserved nothing beyond the re-engagement already granted, the claim for regularisation based on Annexure A7 communication issued by an Assistant General Manager of the BSNL cannot be entertained. Further, as rightly pointed out by the learned Counsel for the respondents, there cannot be any regularisation of casual employees engaged by the Government and its instrumentalities after _**Umadevi**_ , wherein the practice of usurping public employment by regularising the service of casual/daily waged employees appointed without undergoing due process of selection has been deprecated in the strongest terms. The following paragraphs of the judgment leaves no room for doubt that neither the authorities nor the Courts O.P.(CAT) 174 of 2016 9 ## could hitherto permit 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 continued under cover of an order of the court, which we have described as “litigious_ O.P.(CAT) 174 of 2016 10 _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 fill those vacant sanctioned posts that require to be filled up, in cases where temporary_ O.P.(CAT) 174 of 2016 11 _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.”_ 7. The petitioner cannot for a moment contend that he falls within the exempted category of duly qualified persons mentioned at paragraph 53, 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) 174 of 2016 12 precedents, the fact that the policy of regularisation of Temporary Casual Mazdoors was followed earlier, is of no relevance. In the result the original petition is dismissed. Parties shall suffer their respective costs. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** Scl/11.05xxx O.P.(CAT) 174 of 2016 13 ## **APPENDIX OF OP (CAT) 174/2016** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE FINAL ORDER DATED 24-03-2016 IN OA 574/2016 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** - **EXHIBIT P2 A TRUE COPY OF THE ORIGINAL APPLICATION 574/2013 ALONG WITH THE ANNEXURES THEREOF.** - **EXHIBIT P3 A TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS ALONG WITH THE ANNEXURE THEREOF.** - **EXHIBIT P4 A TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER.** - **EXHIBIT P5 A TRUE COPY OF ADDITIONAL REPLY STATEMENT FILED BY THE RESPONDENTS.** **ANNEXURE A1 A TRUE COPY OF THE ORDER NO. E-5/MAZ /TS DATED 19.02.1990 ISSED FOR THE 3RD RESPONDENT.** - **ANNEXURE A2 A TRUE COPY OF ORDER NO. E5/MAZ/TS/V/23 DATED 30.09.1994 ISSUED BY THE ASSISTANT GENERAL MANAGER** **ANNEXURE A3 A TRUE COPY OF ORDER NO. E 2555/93/III/6 DATED 06.041993** **ANNEXURE A4 A TRUE COPY OF THE FINAL ORDER DATED 27.06.2000 IN OA NO. 1076/1999** **ANNEXURE A5 A TUTRUE COPY OF THE FINAL ORDER DATED 04.01.2001 IN OA. NO. 1059/2000** O.P.(CAT) 174 of 2016 14 **ANNEXURE A6 A TRUE COPY OF THE JUDGMENT DATED 10.01.2003 IN O.P. 523/2003 ANNEXURE A7 A TRUE COPY OF THE ORDER NO. STA/225/2000-06/TSM/ REGU/27 DATED 05.02.2007 ISSUED FOR THE THIRD RESPONDENT. ANNEXURE A8 A TRUE COPY OF THE ORDER NO. SA108/TSM/PAY/54 DATED 08.08.2008 ANNEXURE R3(A) A TRUE COPY PROCEEDINGS OF THE REVEIW HELD ON 09.11.1993 AND 15.11.1993** O.P.(CAT) 174 of 2016 15 O.P.(CAT) 174 of 2016 16