The Administrator, Lakshadweep UT v. P.K. Kunhi; K.K. Seethi; T.K. Abdulla; P.M. Kunhi Seethikooya; Union of India

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 09TH DAY OF JULY 2019 / 18TH ASHADHA, 1941** ## **OP (CAT).No.139 of 2015** **AGAINST THE ORDER/JUDGMENT IN OA 221/2011 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 04-06-2015** ## **PETITIONERS/RESPONDENTS 2 TO 6:** |**1**|**THE ADMINISTRATOR,**| |---|---| ||**UT OF LAKSHADWEEP**| ||**KAVARATTI, PIN - 682 555.**| |**2**|**THE SECRETARY TO THE ADMINISTRATOR,**| ||**UT OF LAKSHADWEEP, KOCHI, PIN - 682 003.**| |**3**|**THE SUPERINTENDING ENGINEER,**| ||**LAKSHADWEEP PUBLIC WORKS DEPARTMENT, UTL, KAVARATTI,**| ||**PIN - 682 555.**| |**4**|**THE EXECUTIVE ENGINEER,**| ||**LAKSHADWEEP PUBLIC WORKS DEPARTMENT, UTL,**| ||**KADAMATH, PIN - 682 556.**| |**5**|**THE ASSISTANT ENGINEER,**| ||**LAKSHADWEEP PUBLIC WORKS DEPARTMENT, UTL,**| ||**KADAMATH, PIN - 682 556.**| ||**BY ADVS.**| ||**SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN.**| ||**SRI.MANU.S, CGC, ADMINISTRATION OF THE UTL**| _OP(CAT) No.139/2015_ 2 ## **RESPONDENTS/APPLICANTS & 1ST RESPONDENT:** **1 P.K.KUNHI AGED 52 YEARS, S/O.ATTAKIDAVU, LABORATORY HELPER, WATER QUALITY TESTING LABORATORY, LPWD SUB DIVISION, UTL, CHETLAT - 682 554. 2 K.K.SEETHI, AGED 57 YEARS, S/O.SAYED CHERIYAPURA, LABORATORY HELPER, WATER QUALITY TESTING LABORATORY, LPWD SUB DIVISION, UTL, KILTAN - 682 558. 3 T.K.ABDULLA, AGED 55 YEARS, S/O.KOYAMMA PUTHIYA ILLAM, LABORATORY HELPER, WATER QUALITY TESTING LABORATORY, LPWD SUB DIVISION, UTL, KADAMAT - 682 556. 4 P.M.KUNHI SEETHIKOYA, AGED 48 YEARS, S/O.SAYED ISMAIL KOYA, LABORATORY HELPER, WATER QUALITY TESTING LABORATORY, LPWD SUB DIVISION, UTL, ANDROTH - 682 551. 5 UNION OF INDIA REPRESENTED BY SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF PERSONNEL AND PUBLIC GRIEVANCES, DEPARTMENT OF PERSONNEL AND TRAINING, NEW DELHI - 110 001. BY ADVS. SRI.N.UNNIKRISHNAN FOR R1 TO R4 SMT.LAILA I.S. , CGC SRI.GIRISH KUMAR.V., CGC** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 01.07.2019, THE COURT ON 09.07.2019 PASSED THE FOLLOWING:** _OP(CAT) No.139/2015_ 3 ## **JUDGMENT** ## Ashok Menon, J. Are the applicants in O.A.No.221/2011 on the files of the Central Administrative Tribunal, Ernakulam Bench, working as Laboratory Helpers in Water Quality Testing Laboratory under the Lakshadweep PWD, a Group-D post, entitled to get the pay drawn by them while working as Casual Labourers with temporary status in the same department, protected consequent to their being made permanent, is the short question that arises for consideration in this petition filed by the department challenging the impugned Order in the aforesaid O.A. dated 04.06.2015, setting aside Annexure A8 O.M. dated 12.11.2008 of the Administrator and directing the petitioners herein to refix the pay and other benefits due to the applicants. 2. The facts in brief are thus: The Government of India issued Annexure A1 O.M.No.51016/2/90/Estt.(C) dated 10.09.1993, stating that Casual Labourers would be given the status of _OP(CAT) No.139/2015_ 4 temporary workers, with increments of pay during their service. Annexure A21 O.M.No.49014/4/2007-Estt.(C) dated 9.5.2008 directs protection of the pay of the Casual Labourers (with temporary status) on their regularisation. 3. The contention of the petitioners is that the said O.Ms. are not applicable to the applicants, they were appointed to the permanent posts by way of direct recruitment, and not by way of regularisation of Casual Labourers with temporary status, usually done to fill 2/3[rd] of vacancy arising in Group-D. 4. Another contention of the petitioners is that the Tribunal proceeded under the impression that the applicants, who were temporary Labourers, were regularised in service and therefore, they are entitled to the benefit of pay protection of Annexure A21. Therefore, the order of the Tribunal is erroneous and needs to be set aside. 5. The applicants were appointed as Laboratory Helpers in Water Quality Testing Laboratory under the Lakshadweep PWD through the District Employment Exchange _OP(CAT) No.139/2015_ 5 by way of direct appointment vide Annexure A3 order dated 16.10.1998. Their pay was fixed at Rs.2550/-, the starting of the scale was Rs.2550-2600-60-3200 payable to Group D employees. But during their service as Casual Labourers with temporary status, they had been earning yearly increments, and were drawing a pay of Rs.2990/- in the said scale. They made representation to rectify this anomaly. The representations were rejected vide Annexure A8. 6. Annexure A2 is copy of O.M. F.No.2/6/246/97-C1 dated 27.02.1998, wherein 27 candidates including the applicants, were called for an interview for the permanent post of Helper. Consequent to the interview, vide Annexure A3 Office Order No.2/6/ 1517/97-C1 dated 16.10.1998, 12 persons were appointed as Helpers, specifically stating that they were introduced by the District Employment Exchange, Kavaratti. 7. The petitioners herein had even raised a contention that the application is barred by limitation in view of Section 21 of Administrative Tribunals Act and filed even without an application for condoning the delay. _OP(CAT) No.139/2015_ 6 8. Miscellaneous Application at Ext.P6 for condoning the delay of 447 days was filed before the Tribunal on 23.02.2014 and the petitioners filed Ext.P7 objection to the Application. The applicants filed rejoinder at Ext.P8 subsequent to the filing of the objection. The delay was condoned. Ignoring the difference in the mode of appointment and understanding the difference between direct recruitment and regularisation of temporary hands of Casual Labourers, the application was allowed. 9. We heard the learned Standing Counsel appearing for the petitioners, the Counsel appearing for respondents 1 to 4 and the CGC appearing for the 5[th] respondent-Union of India. 10. The questions that arise for consideration are two fold. First, whether the condonation of delay of 447 days in filing the O.A. was right. Secondly, whether the applicants are entitled to get their pay protected on being made regular employees. _OP(CAT) No.139/2015_ 7 11. The Honourable Supreme Court in _**Union of**_ ## _**India v. Tarsem Singh, 2008 KHC 4907: 2008 (8) SCC 648**_ held thus: _“5. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.”_ 12. Importing the ratio in the above cited decision to the case in hand, what the applicants are seeking is only protection of their pay as on the date they were _OP(CAT) No.139/2015_ 8 made regular. By granting them relief, it does not affect the settled right of any third parties, and therefore, we do not find any infirmity in condoning the delay of 447 days in filing the O.A. by the Tribunal. There is also no doubt that the remedy sought for by the applicants comes within the exception to the rule that the claim has to be rejected on the ground of delay and laches for the reason that it relates to a continuing wrong. Protecting the pay scales granted to the applicants would definitely not affect any hardship or inconvenience or injustice on third parties. 13. Coming to the merits of this case, it is noted that the four applicants in the O.A. had entered service of Lakshadweep Administration as Casual Labourers on different dates between 1983 and 1988. They had been registered with the Employment Exchange and had the requisite qualification. While they were working as Casual Labourers, they were granted temporary status in accordance with Annexure A1 scheme, which came into force on 01.09.1993, to the result, the _OP(CAT) No.139/2015_ 9 applicants were getting the annual increments regularly. They were drawing a basic pay of Rs.2990/in the scale of Rs.2550-2600-60-3200. On 27.02.1998, the 4[th] petitioner issued Annexure A2 O.M. directing the Casual Labourers with temporary status like the applicants to attend for an interview on 16.03.1998 for being considered for appointment to the post of Helper in Water Quality Testing Laboratory, Lakshadweep PWD. Consequent to that interview, the applicants were selected as Helpers vide Annexure A3 order dated 16.10.1998. However, consequent to their joining as Helper vide Annexure A5 dated 21.09.1998, their pay was fixed in the minimum of the scale of Rs.2550-2600-603200 and thereby suffering a financial loss of Rs.440/per month in their salary. This action on the part of the petitioners is said to be illegal and arbitrary, according to the applicants. They have been enjoying all the benefits such as NMR GPF Account, which was later transferred as New GFP account vide Annexure A4. The fixation of their pay was as per Annexures A5 and A6. It is seen that the applicants submitted A7 _OP(CAT) No.139/2015_ 10 representation to the 4[th] petitioner and in consequent to that, the impugned order at Annexure A8 was made holding that they were appointed as Laboratory Helper on the basis of direct recruitment and that O.M. dated 09.05.2008 at Annexure A21 issued by the Ministry of Personnel, Public Grievances and Pension, Department of Personnel & Training, New Delhi, cannot be made applicable in their case. Thereafter, the applicants were made various representations, such Annexures A9 to A16, in vain and ultimately approached the Tribunal. 14. The learned Counsel for the applicants have relied on several earlier orders of the Tribunal, such as Annexure A17 dated 25.03.2008 in O.A.No.440/2006 and connected matters, order in O.A.No.889/2004 dated 21.07.2006, the judgment of this Court in W.P.(C) No.2847/2006 as also the decision of this Court in O.P.No.13244/2001. **==> picture [432 x 13] intentionally omitted <==** Government of India, which has been extracted by the Tribunal in para 11, entitles the Casual Labourers to the benefits of increments at the same rate as is _OP(CAT) No.139/2015_ 11 applicable to Group-D employees and it has been made clear that on regularisation of these Casual Labourers with temporary status against 2/3[rd] vacancies arising in Group-D cadre, their benefits of increment could be taken into account while calculating the pro-rata wages. On 29.01.1998 an O.M. was issued by the Department stating that the pay of Casual Labourers with temporary status on regularisation against Group-D post may be fixed at the minimum of pay scale of the relevant Group-D post. After consideration of the matter vide Annexure A21, it was decided that in supersession of the O.M. dated 29.01.1998 the pay of Casual Labourers with temporary status against Group-D posts in identical grades will be fixed after taking into account increment already earned by them in Group-D pay scale which was taken into account for payment of wages while working as Casual Worker with temporary status. This O.M. was made applicable to all Ministries and Departments. _OP(CAT) No.139/2015_ 12 16. The only question that arises for consideration in this matter is whether the aforesaid Annexure A21 O.M. would be applicable to only those Casual Labourers with temporary status, who have been regularised towards the 2/3[rd] vacancy arising in the cadre of Group-D or also to those who are directly recruited from among the casual labourers having temporary status. Prior to this O.M. dated 09.05.2008, the Departments were following the O.M. dated 29.01.1998 and fixing the pay of the Casual Labourers of temporary status at the minimum of the pay scale at the relevant Group-D post. But after the matter was considered by the Standing Committee, this stand was reviewed. In case pay protection is given to Casual Labourers having temporary status on being regularised to the 2/3[rd] vacancy, they filled in the cadre of Group-D, why could not similarly placed Casual Labourers with temporary status be given the protection of their pay on being posted towards the vacancy arising as direct recruitment. In fact, they stand in a better position, because they qualified for being appointed as direct _OP(CAT) No.139/2015_ 13 recruits and not merely by regularisation. The O.M. at Annexure A21 would suggest that there is a change in the policy of the Government. 17. The Tribunal has rightly pointed out to the fact that the benefit that is granted to the Casual Labourers with temporary status on being regularised in the post should be given also to those who were in similarly placed, and then directly appointed. The benefits of the increment that they have earned as Casual Labourers with temporary status during their prolonged service cannot be ignored and their pay reduced to the minimum of the scale. 18. It is seen that the applicants did not apply for fresh appointment. On the other hand, Annexures A2 and A3 recruitment process was undertaken by the Lakshadweep PWD, and on being asked to do so, the applicants had appeared for an interview along with several others. 12 persons from out of 27 called for interview were found eligible to be appointed towards the direct recruitment vacancies. The mere fact that _OP(CAT) No.139/2015_ 14 they were registered with the Employment Exchange, should not work to their detriment. 19. Under the circumstances, we find no irregularity or error in the findings of the Tribunal quashing Annexure A8 O.M. dated 12.11.2008 and directing the petitioners herein to refix the pay and other benefits of the applicants by protecting their basic pay, as on date of working as Casual Labourers with temporary status. In the result, the Original Petition is dismissed. No costs. **Sd/-** ## **V.CHITAMBARESH** **JUDGE** **Sd/-** **ASHOK MENON** _dkr_ **JUDGE** _OP(CAT) No.139/2015_ 15 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 COPY OF THE ORIGINAL APPLICATION NO.221 OF 2011 WITH ANNEXURES. EXHIBIT P2 COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENT IN O.A. EXHIBIT P3 COPY OF THE REJOINDER FILED BY THE APPLICANTS. EXHIBIT P4 COPY OF THE ORDER IN O.A.NO.221/2011 DATED 04.01.2013 FILED BY THE APPLICANTS. EXHIBIT P5 COPY OF THE JUDGMENT PASSED BY THIS COURT IN OP(CAT) 1248 OF 2013 DATED 03.02.2015. EXHIBIT P6 COPY OF THE MISCELLANEOUS APPLICATION TO CONDONE THE DELAY. EXHIBIT P7 COPY OF THE OBJECTION FILED TO THE MA. EXHIBIT P8 COPY OF THE REJOINDER TO THE REPLY TO THE MA FILED BY THE APPLICANTS. EXHIBIT P9 COPY OF THE CERTIFIED COPY OF THE ORDER SHEET OF THE TRIBUNAL IN O.A.NO.221/2011. EXHIBIT P10 COPY OF THE ORDER IN O.A.NO.221/2011 DATED 04.06.2015.**