Full Judgment Text
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CASE NO.:
Appeal (civil) 4499 of 2006
PETITIONER:
Indian Council of Agricultural Research and Anr
RESPONDENT:
Santosh
DATE OF JUDGMENT: 16/10/2006
BENCH:
ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No. 15643 of 2005)
ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is to the judgment rendered by a
Division Bench of the Rajasthan High Court at Jodhpur
dismissing the writ petition filed by the present appellants
questioning correctness of the order passed by the Central
Administrative Tribunal, Jodhpur Bench (in short ’CAT’).
The controversy lies within a very narrow compass.
Respondent filed O.A.No.291 of 2003 before the CAT
making a grievance that family pension and other terminal
benefits were being denied to her by the present appellant on
the ground that her deceased husband was not holding
permanent status in service. CAT held that though her
deceased husband Durga Lal was not holding a permanent
status in service, yet respondent was entitled to the family
pension and other benefits by treating him to have been
regularized on the date of his death.
The High Court dismissed the writ petition holding that
since the respondent has been given compassionate
appointment, there was no merit in the writ petition.
In support of the appeal, learned counsel submitted that
there was a scheme in operation and late Durga Lal was not
holding permanent status and was only a casual labourer who
had acquired temporary status in view of the scheme. Placing
reliance on a Constitution Bench decision of this Court in
Secretry, State of Karnataka and Ors. v. Umadevi (3) and Ors.
(2006 (4) SCC 1), it was held that CAT could not have directed
regularization and in any event directed grant of family
pension.
In response, learned counsel for the respondent
submitted that the deceased late Durga Lal had worked for
nearly 20 years and merely because there was no formal order
granting him permanent status, it had to be deemed as if late
Durga Lal was in regular service. CAT proceeded on the basis
that the respondent’s claim was acceptable with reference to
certain circulars applicable to Railways employees and Full
Bench decision of the Tribunal in Gita Rani Santra v. Union of
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India and Ors. (reported in 1997-2001 AT Full Bench
judgment page 295) .
In order to appreciate rival submissions a few provisions
need to be noted.
The scheme applicable to employees of appellant No.1 is
very specific in its scope of operation. The scheme was issued
by the Department of Personnel and Training and the scheme
is called "Casual Labourers (Grant of Temporary Status and
Regularisation) Scheme of Government of India, 1993" (in
short the ’Scheme’)". The said scheme is applicable with effect
from 1.9.1993. Clause 4 reads as follows:
"4. Temporary status:
(i) Temporary status would be conferred on
all casual labourers who are in employments
on the date of issue of this OM and who have
rendered a continuous service of at least one
year which indicates any must have been
engaged for a period of at least 240 days (206
days in the case of offices observing 5-day
week)
(ii) Such conferment of temporary status
would be without reference to the
creation/availability of regular group ’D’ posts.
(iii) Conferment of temporary status on a
casual labourer would not involve any change
in his duties and responsibilities. The
engagement will be on daily rates of pay on
need basis. He may be deployed anywhere
within the recruitment unit/territorial circle on
the basis of availability of work.
(iv) Such casual labourers who acquire
temporary status will not, however, be brought
on to the permanent establishment unless
they are selected through regular selection
process for group ’D’ posts".
Similarly, Clause 5 so far as relevant reads as follows:
"xx xx xx xx
(v) 50% of the service rendered under
temporary status would be counted
for the purpose of retirement
benefits after their regularization".
Clause 6 makes the position clear that no benefits other
than those specified earlier in the scheme shall be admissible
to casual labourers with temporary status. The relevant clause
reads as follows:
"No benefits other than those specified
above will be admissible to casual labourers
with temporary status. However, if any
additional benefits are admissible to casual
workers working in Industrial establishments
in view of provisions of Industrial Disputes Act,
they shall continue to be admissible to such
casual labourers."
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A bare reading of the provisions makes it clear that late
Durga Lal was not entitled to any family pension. The direction
given by CAT for regularization is contrary to what has been
stated in Uma Devi’s case (supra). At para 45 of the judgment
it was noted as follows:
45. While directing that appointments,
temporary or casual, be regularised or made
permanent. the courts are swayed by the fact
that the person concerned has worked for
some time and in some cases for a
considerable length of time. It is not as if the
person who accepts an engagement either
temporary or casual in nature, is not aware of
the nature of his employment. He accepts the
employment with open eyes. It may be true
that he is not in a position to bargain\027not at
arm’s length\027since he might have been
searching for some employment so as to eke
out his livelihood and accepts whatever he
gets. But on that ground alone, it would not be
appropriate to jettison the constitutional
scheme of appointment and to take the view
that a person who has temporarily or casually
got employed should be directed to be
continued permanently. By doing so, it will be
creating another mode of public appointment
which is not permissible. If the court were to
void a contractual employment of this nature
on the ground that the parties were not having
equal bargaining power, that too would not
enable the court to grant any relief to that
employee. A total embargo on such casual or
temporary employment is not possible, given
the exigencies of administration and if
imposed, would only mean that some people
who at least get employment temporarily,
contractually or casually, would not be getting
even that employment when securing of such
employment brings at least some succour to
them. After all, innumerable citizens of our
vast country are in search of employment and
one is not compelled to accept a casual or
temporary employment if one is not inclined to
go in for such an employment. It is in that
context that one has to proceed on the basis
that the employment was accepted fully
knowing the nature of it and the consequences
flowing from it. In other words, even while
accepting the employment, the person
concerned knows the nature of his
employment. It is not an appointment to a post
in the real sense of the term. The claim
acquired by him in the post in which he is
temporarily employed or the interest in that
post cannot be considered to be of such a
magnitude as to enable the giving up of the
procedure established, for making regular
appointments to available posts in the services
of the State. The argument that since one has
been working for some time in the post, it will
not be just to discontinue him, even though he
was aware of the nature of the employment
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when he first took it up, is not (sic) one that
would enable the jettisoning of the procedure
established by law for public employment and
would have to fail when tested on the
touchstone of constitutionality and equality of
opportunity enshrined in Article 14 of the
Constitution".
Merely because compassionate appointment has been
granted to the legal heir of late Durga Lal that does not in any
way improve the situation so far as the respondent is
concerned. That is an appointment given to a legal heir even if
it is accepted to be a regular, subsequent to the death of
Durga Lal and such appointment cannot alter the status of
late Durga Lal in service. The impugned judgment of the High
Court confirming that of the CAT cannot be sustained. Both
the CAT’s order and judgment of the High Court stand set
aside. The appeal is allowed but without any order as to costs.