The Union of India through Secretary, Government of India Central Board v. Bardan Toppo

2. Manoj Kumar son of Shri Shankar Ram, resident of Adalatganj Jhopri Mohalla, P.O. G.P.O., Police Station Kotwali, District Patna.

3. Hardeo Kumar son of Shri Rajendra Ram, resident of R-Block Road No. 4, Quarter no. C/9, Police station secretariat, P.O. G.P.O., District Patna.

4. Birendra Manjhi, son of Shri Uday Manjhi, resident of village and P.O. Matyar via, Phulwaria Tajpur, Police Station Manghi, District Saran (Chapra) 5. Etwa Uraon son of Shri Ghosho Uraon, resident of village Kulai, P.O. Anjan, Police Station Gumla, District Gumla.

6. Avinash Kumar son of Shri Yogendra Thakur, resident of village & P.O. Manoharpur, Kachuara, Police Station Gaurichak via, Rajendra Nagar, Patna, District Patna.

7. Bipin Kumar Gupta, son of Shri Shiv Shankar sah, resident of village Shikrhulla, P.O. Korya via Manjhaul, P.S. Birpur, District Begusarai.

8. Md. Haidar Ali, son of Md. Wasir, resident of village and P.O. Mahmada (Pusa) District Samastipur. 9. Birsai Uraon son of Shri Ledhwa Uraon, resident of village Kulhi, P.O. Aanjan, Police Station Gumla, District Gumla. - 2 -

10. Renu Devi wife of Sri Ratan Prasad, resident of Azzarpur Science College, Police Station Pirbahore, District Patna.

11. Through Registrar, Central Administrative Tribunal, Patna Bench, Patna. ----------- For the petitioner : Mr. Sanjay Kumar, C.G.C. & Miss Nividita Nirvikar For the respondents : Mr. Gautam Bose, Sr.Advocate M/S. Ratna Das & Ajay Kumar ------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ------ Dated, 28th November, 2008 The respondents the writ petition are original applicants in Original Application No. 175 of 2002 preferred by them before the Central Administrative Tribunal. The respondent nos. 1 to 9 were engaged as casual labourers in the year 1998 while respondent no. 10 was engaged in the year 1999. In the original application preferred by them, they challenged their oral termination and also prayed for a direction to the employer (present appellants) to grant them temporary status and consequential benefits.

2. The Tribunal considered various decisions of the Supreme Court and also the scheme called Casual Labourers (Grant of Temporary Status and Regularisation) Scheme, 1993 (for short - 3 - „Scheme 1993‟) and after hearing the parties gave the following directions : “(i) Within a period of six months from the date of receipt of copy of this order and after giving each applicant an opportunity of being heard in order to enable him to place his case relating to the period of working as casual worker, the respondents, with the help of their documents would decide if the applicants or which of the applicants are entitled to grant of temporary status in accordance with the observations made in this order, and grant temporary status to them with effect from the date of filing of the respective applications. If complete documents are not available with the respondents, then the claim made by the applicants about the period of their working as in the application would be treated as correct and order accordingly will be passed by the respondents for grant of temporary status. The applicants will, however, not be entitled to the wages from the date of grant of temporary status which will be notional, but they would be entitled to the wages and other facilities available to a casual labourer with temporary status with effect from the date of this order. Those applicants whose engagements had been terminated before their fling of OA, and are found fit for grant of temporary status, will be deemed to have continued in their engagement as such, notionally, but no back wages would be payable to them except in accordance with the terms of this order. (ii) So far as regularization of concerned, if their claim is found to be true, that would depend upon various factors such as availability of the vacancies, eligibility of the applicants for such posts, etc.” the applicants

3. It is this order passed by the Tribunal on 14th August, 2005 that has been challenged by the Union of India and its functionaries.

4. Mr. Sanjay Kumar, Central Government Counsel, submitted that admittedly the respondents were engaged in the year - 4 - 1998 and 1999 i.e. much after Scheme, 1993 and, therefore, Scheme, 1993 cannot be applied to those casual workers. He would submit that Scheme, 1993 is not an ongoing scheme and to be entitled to temporary status, the casual labourer ought to have been in employment on or before 1st September, 1993 and since the respondents were not in employment as casual labourers on or before on 1st September, 1993, the benefit of the Scheme, 1993 is not extendable to them. In this regard, he placed reliance upon our order dated 20th October, 2008 in the case of the Union of India and others Vs. Ram Narayan Yadav and another (C.W.J.C. No. 3493 of 2006). Counsel for the Central Government would, thus, submit that the order passed by the Tribunal deserves to be set aside.

5. Mr. Gautam Bose, Senior Counsel for the respondents did not dispute the position that the respondents were not engaged prior to January, 1994 and, therefore, in the light of our order dated 20th October, 2008 in the case of Ram Narain Yadav, Scheme, 1993 may not be applicable to the respondents. He, however, submitted that Scheme, 1993 has been extended by the Central Government even to the employees who were engaged after January, 1994 and since the Central Government has been extending such benefits to the casual labourers who have been engaged after January, 1994, the respondents have to be treated like those cases. In this regard he sought to place reliance on the Division Bench decision of this Court in the case of Union of India Vs. Central Administrative Tribunal and others, - 5 - 2005(4) PLJR, 241. He would, thus, submit that the respondents may be given liberty to make representation to the concerned authority for extending them the benefit of Scheme, 1993 and the concerned authority be directed to consider their representation in the light of other similarly situated persons who were engaged after January, 1994 and given benefit of Scheme, 1993.

6. On 1st September, 1993, the Department of Personnel & Training, came out with the Scheme, 1993. Paragraphs 3 and 4(i) of the Scheme, 1993 read thus: “3. This Scheme is applicable to casual labourers in employment of the Ministries/Departments of Govt. of India and their attached and subordinate office, on the date of issue of these orders. But it shall not be applicable to casual workers in Railways, Department of Telecommunication and Department of Posts who already have their own Schemes. 4. TEMPORARY STATUS i) Temporary status would be conferred on all casual labourers who are in employment on the date of issue of this O.M. 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)”.

7. The Scheme, 1993 has come up for consideration before the Supreme Court on more than one occasion. In the case of Union of India Vs. Mohan Pal, (2002)4 SCC, 573, the Supreme Court held thus: “ 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 - 6 - 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 think that clause 4 of the Scheme envisages it as an ongoing scheme. In order to acquire “temporary” status, the casual labourer should have been the date of in employment as on 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.”

8. The Scheme, 1993 came up for consideration again before the Supreme Court in the case of Union of India Vs. Gagan Kumar, (2005) 5 SCC 70. In paragraphs 5 and 6 of the report, the Supreme Court held thus : “5. The controversy can be resolved on the basis of the interpretation of clause 4 of the Scheme. As already notice, the Scheme came into effect from 1-9-1993. Clause 4(1) of the Scheme reads as follows: “4 Temporary status. (1) „temporary. status would be conferred on all casual labourers who are in employment on the date of issue of this 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).” 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. The Tribunal has taken 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 think 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 - 7 - 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.”

9. In a recent case in the Controller of Defence Accounts, Dehradun & Others Vs. Dhani Ram and Others, AIR 2007 Supreme Court, 2650 , while dealing with the Scheme of Government of India, 1993, it was held thus : “5. A scheme called “Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India, 1993 (in short the „Scheme‟.) was issued by the Government of India, Ministry of Personnel, PG and Pension, Department of Personnel and Training. The Scheme came into force with effect from 1-9-1993.

6. On 6-6-2002, OM No.40011/6/2002/Estt. was issued by the Government of India reiterating that the scheme relating to temporary status was not on-going scheme and the temporary status can be conferred under the scheme only subject to fulfillment of the conditions as stipulated in clause 4 of the scheme. The respondents were disengaged as there was no work available for them. They file the writ petition taking the stand that they were entitled to be continued in service as they were working up to 3-7-2002.

7. The writ petition was resisted by the respondents. In the writ petition taking the stand that the writ petitioners were not covered by the scheme of regularization as they did not fulfill the prescribed criteria, they were not entitled to grant of temporary status. The High Court, however, disposed of the writ petition holding that they were to be considered for regularization. A review - 8 - petition was filed taking the stand that in view of this court.s judgment in Union of India and another Vs. Mohan Pal and others.,{ 2002 ( 4) SCC 573}, the writ petitioners were not entitled to any relief. The High Court, however, dismissed the review petition.

8. In support of the appeal, learned counsel for the appellant submitted that the High Court.s decision is clearly contrary to the decision of this court in Mohan Pal‟s case (supra) and therefore unsustainable.

9. Learned counsel for the respondents on the other hand supported the orders of the High Court.

10. Paragraph 4 (1) of the Scheme reads as follows: “ Temporary status- Temporary status would be conferred on all casual labourers who are in employment on the date of issue of this O.M. and have rendered a continuous service of one year, which means that they must have been engaged for a period of at least 240 (206 days in the cases of offices observing five days a week).”

11. The relevant portion of paragraph of the Scheme reads as follows: “This Scheme is applicable to casual labourers the Ministries/ Department of in employment of Government of India and their attached and subordinate offices, on the date of issues of these orders.”

12. Clause 4 of the Scheme is very clear that the conferment of “temporary” status is to be given to casual labourers who were in employment as on the date of commencement of the Scheme. High Court seems to have taken 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 five days a week), they are entitled to get “temporary” status. Clearly 4 of the Scheme does not envisage it as an ongoing scheme. In order to acquire “temporary” status, the casual labourer should have been in employment as on the date of the 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 five days a week. From Clause 4 of the Scheme, it does not appear to be a general guideline - 9 - to be applied for the purpose of giving “temporary” status to all the casual workers, as and when they complete one year continuous service. Of course it is up to the Union Government to formulate any scheme as and when it found necessary that the casual labourers are to be given “temporary” status and later they are to be observed in Group “D” posts.

13. This position as highlighted in Mohan Pal‟s case (supra) was reiterated in Union of India Vs. Gagan Kumar (J.T. 2005 (6) SC 410) and Director General, Doordarshan, Mandi House, New Delhi and others Vs. Manas Day and ors. (2005 (13) SCC 437).”

10. In the case of Ram Narayan Yadav decided by us on 20th October, 2008 we not only considered the aforesaid three decisions of the Supreme Court but also took into consideration the Division Bench judgment of this Court in the case of Union of India & Others Vs. Central Administrative Tribunal, 2005(4) PLJR, 241 upon which strong reliance was placed by the Senior counsel for the respondents and also the order dated 4th July, 2006 passed by the Supreme Court whereby the petition for special leave to appeal by the Union of India against the aforesaid judgment reported in 2005(4) PLJR, 241 came to be dismissed. We considered the matter thus: “11. At the outset, we may observe that dismissal of petition for special leave challenging the judgment of this the case Union of India Vs. Central Court Administrative Tribunal (supra) does not mean that, that judgment of this Court has been approved on merit. The legal position concerning the scheme of Government of India, 1993 is no more res integra; the scheme, inter alia, provides for temporary status to be given to the casual labourers, who were in employment on the date of commencement of the scheme. The said scheme is not an on-going scheme. To be entitled to temporary status, the casual worker ought to have been in employment on 1st September, 1993. Admittedly, the present respondent was - 10 - not engaged as casual labourer prior to January, 1994. In other words, he was not in employment as casual labour on 1st September, 1993.

12. Nor the scheme of Government of India, 1993 is a general guideline to be applied to all casual workers for all times to come. It is true that such schemes are for welfare of the employees, who have been engaged as casual workers but surely regularization of such casual workers or grant of temporary status cannot be de hors the Rules.

13. The Tribunal has although noticed the judgment of the Supreme Court in the case of Mohan Pal (supra) but chose to follow its decisions given in some original applications and also decision of this Court in the case of Union of India V. Central Administrative Tribunal, Patna Bench, Patna (supra).

14. Having noticed the line of decisions of the Supreme Court in the case of Mohan Pal, Gagan Kumar, Manas Dey and Dhani Ram, we are unable to sustain the view of the Central Administrative Tribunal. If the view of the Tribunal is upheld, it would tantamount granting relief of temporary status to the respondent under the scheme, which is not at all applicable to him as he did not fulfill the eligibility provided in Clause 4 of the scheme. The Apex Court has already observed in some of the aforesaid decisions that it is up to the Union Government to formulate a scheme as and when it is found necessary that the casual workers are to be given temporary status and later they be absorbed in Group „D. post but in absence thereof, scheme of Government of India, 1993 cannot be applied by applying the scheme as an on-going scheme and a general guideline to be applied for the purpose of giving temporary status to casual workers as and when they complete one year of continuous service. The decision of the Tribunal is not tenable and has to be set aside.”

11. In the light of the consideration of the matter by us in the case of Ram Narayan Yadav (Supra), the direction given by the Tribunal in respect of the respondents cannot be sustained and the - 11 - order of the Tribunal has to be set aside.

12. Consequently, this writ petition is allowed. The order dated 14th August, 2005 is quashed and set aside with no order as to cost. R.M.Lodha, CJ. Kishore K.Mandal, J. AMIN/