High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.11.2009CORAMTHE HON'BLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HON'BLE MR.JUSTICE M.DURAISWAMYWrit Petition No.21209 of 20081. Council of Scientific and Industrial Research rep. by its Director General Rafi Marg New Delhi 110 001.2. Central Scientific Instruments Organisation rep. by its Director Sector 30-C Chandigarh 160 030...PetitionersVs.1. K.Leelamma2. Central Administrative Tribunal Madras Bench Chennai 104. ..Respondents -----Petition under Article 226 of the Constitution of India prayingfor a writ of direction calling for the records of the CentralAdministrative Tribunal,Madras Bench in O.A.No.10 of 2007 dated6.2.2008 and quash the same for the relief as stated therein.-----For Petitioners : Ms.B.SaraswatiFor Respondent-1 : Mr.L.Chandrakumar-----O R D E R(Made by S.J.MUKHOPADHAYA,J.)This writ petition has been preferred by the Council ofScientific and Industrial Research (for brevity "CSIR") and its https://hcservices.ecourts.gov.in/hcservices/ organisation, viz. Central Scientific Instruments Organisation (forbrevity "Organisation"), against the order dated 6.2.2008 passed bythe Central Administrative Tribunal, Madras Bench, in O.A.No.10 of2007.2. By the impugned order, while the Tribunal observed that therespondent/applicant came to be reinstated in the same post on28.4.1994, it is also observed that the said respondent/applicantalso deemed to have been regularised from the said date and isentitled for counting the qualifying service with effect from1.3.1985, for the purpose of pensionary benefit. 3. It appears that the respondent/applicant K.Leelamma wasengaged as Junior Stenographer on casual basis by the petitioners on3.8.1983 where she worked upto 2.11.1983. She was again engaged on3.11.1983 on piece rated basis and thereafter, engaged on fixed wageof Rs.550/- per month from 1.12.1983 to 30.4.1984, from 1.5.1984 to11.10.1984 and from 1.11.1984 to 1.3.1985, as her services wereterminated on 1.3.1985. Hence, the respondent/applicant raised anindustrial dispute before the Central Industrial Tribunal, Jaipur incase No.CIT 16/1987, wherein, the following reference was made."Whether the action of the management of CentralScientific Instrument Organisation, Service &Maintenance Centre, Jaipur in terminating the services of Miss Leelamma K.C. from1.3.95 is justified? If not, to what relief theworkman concerned is entitled to and from what date?"4. After hearing the parties and on appreciation of evidence,the Central Administrative Tribunal, Jaipur, by order dated20.11.1991, answered the reference in favour of therespondent/applicant and held as under:"The termination of the services of Miss Leelamma from1.3.85 is not legal and justified and the terminationorder is set aside and she is declared appointed to thepost of Junior Stenographer-cum-AdministrativeAssistant. The continuity of her service is maintainedand she shall be entitled to salary and all thebenefits from 1.3.85. She is also awarded Rs.100/- ascosts of the case. If the respondent does not pay thedues within three months, it shall also have to payinterest @ 12% p.a."5. Even though the petitioners challenged the award upto theSupreme Court, the said award was confirmed. Thereafter, the https://hcservices.ecourts.gov.in/hcservices/ respondent/applicant requested for regularisation of her service.The CSIR, by memorandum dated 12.7.2006, made the followingobservation:"In view of the above facts and order of Court, requestto treat her as "Junior Stenographer cum AdministrativeAssistant" on regular basis wef 1.3.1985 cannot be acceded as she is to be placedin the same position on which she was working prior toher disengagement."6. In this background, the respondent/applicant moved beforethe Tribunal in O.A.No.10 of 2007 for direction on the petitionersfor regularisation of her services with effect from 1.3.1985 andconsequential benefits, which has been partly allowed.7. The learned counsel appearing on behalf of the petitionerssubmitted that the order of the Tribunal is against the fact and theScheme framed by the petitioners from time to time. It wassubmitted that the respondent/ applicant was never reinstated in thepermanent establishment and cannot be treated to have beenregularised with effect from 28.4.1994. The note at paragraph 10 ofthe order of the Tribunal, as noticed, relates to reinstatement ofthe respondent/applicant in the same position, i.e. in the temporarystatus with effect from 28.4.1994 and the same cannot be termed tobe a regularisation in service.8. The learned counsel appearing on behalf of therespondent/applicant, while accepting that there is no provision fordeemed regularisation, submitted that as the respondent/applicant isworking continuously since 1.11.1984, the petitioners are bound toconsider her case for regularisation/absorption to the post ofJunior Stenographer cum Administrative Assistant, at least witheffect from 1.3.1985, viz. the date on which she was retrenched fromservice and by virtue of the order of the Industrial Tribunal, shewas reinstated with continuity of service and therefore, thepetitioners cannot ask the respondent/applicant to compete in anytest, along with others, at the fag end of her service career, asshe has already attained the age of 56 years. It was contended thatif necessary, after regularisation/absorption of therespondent/applicant with effect from 1.3.1985, she is ready to takevoluntary retirement, which the petitioners may allow. 9. We have heard the learned counsel appearing on behalf of theparties and perused the records.10. It is not in dispute that the respondent/applicant was https://hcservices.ecourts.gov.in/hcservices/ engaged from time to time and was disengaged. Ultimately, when shewas engaged on 1.11.1984 and continued upto 1.3.1985, till herservices came to be terminated. Against the said order oftermination, on reference, the Central Industrial Tribunal answeredthe reference and ordered to reinstate her declaring that the orderof termination illegal and further declaring that therespondent/applicant stands appointed to the post of JuniorStenographer cum Administrative Assistant with continuity of herservice. Therefore, for all purpose, the said order having affirmedupto Supreme Court, the respondent/applicant will be deemed to becontinuing in the service of the petitioners without any break, witheffect from 1.11.1984, with temporary status.11. It appears that CSIR took a decision of formulation ofCasual Workers Absorption Scheme, 1990, pursuant to the decision ofthe Supreme Court in W.P.Civil No.631 of 1988. It was circulated bycirculated by Circular No.14(45)/-Estt. Dated 10.10.1990. It wasdecided that the Casual Workers in employment on the date of issueof the instruction, having been engaged for at least one year on1.1.1990 or having completed 240 days in the immediate precedingcalendar year, are to be regularised and absorbed in the services.The relevant portion of the Scheme reads as under:"ABSORPTION OF CASUAL WORKERS IN CSIR1. Name of the Scheme: This Scheme shall be called"Casual Workers" Absorption Scheme, 1990".2. Administration Scheme: The CSIR hereinafterreferred as 'Council' will administer the Scheme.3. Objectives of the Scheme: The Scheme being a one-time measure will be applicable to the workersengaged on casual basis and paid either on dailywage on monthly basis at CSIR Headquarters and itsNational Labs./Institutes as on 1.1.1990.4. Scope of the Scheme: The Scheme will be applicableto:-i) Casual workers engaged initially through EmploymentExchange;ii)Casual workers engaged otherwise than throughEmployment Exchange;iii)Causal workers in employment on the date of issueof these instructions but having been engaged forat least one year on 1.1.1990 or having completed https://hcservices.ecourts.gov.in/hcservices/ 240 days (206 days in case of 5 days week) in theimmediately preceding calendar year.5. Terms and conditions of regularisation:a) Wherever age limit is prescribed, it will bedetermined after allowing age relaxation to theextent of completed years of casual service in theLab./Instt.b)Causal workers should be educationally qualifiedfor the post as prescribed from time to time forwhich regularisation is considered no dilution ofqualifications will be allowed.c) Orders on reservation issued by GOI from time totime and made applicable to CSI shall be appliedunder the Scheme.d) Absorption will be against the available vacanciesand/or those arising in future in Group-D or Ccategory of posts.e) Casual workers who do not appear in test and/orinterview in spite of the relaxation or who are notsuccessful in two chances in a period of sixmonths, will be removed from casual engagement withone month's notice or payment in lieu thereof.f) Absorption will be as per normal procedure ofrecruitment prescribed for the post includingqualifying in the trade test, if any.6. General Conditions:-(a)Regularisation will be considered for the entrylevel post of Group-C or Group-D in technical ornon-technical grade. The persons may be posted inany Lab./Instt. where the vacancies are available.The panels will be drawn by respectiveLabs./Instts.(b) Open recruitment for filling up entry levelvacancies in Group-C & D shall be banned tillcasual workers already engaged but satisfying theterms and conditions for regularisation, are fullyabsorbed.(c) Casual workers on regularisation will have no right https://hcservices.ecourts.gov.in/hcservices/ to make claim for appointment only in the sameLab./Instt. where they were engaged as casualworkers. On their regular appointment, they willnot be entitled to any benefit for the past periodof casual service rendered by them as casualworkers. Panels drawn by Lab./Instt. will becirculated to all the Labs./Instts in order toexplore the possibility of their appointmentagainst the suitable vacancies available in theirLabs./Instts.(d)This Scheme is not applicable to persons engaged oncontract through any outside agency.(e)This Scheme will not be applicable to casualworkers/contract workers engaged in a SponsoredProject/Bilateral or any time bound project/schemethrough any source.7. DGSIR shall have the power to relax any of theprovision of the Scheme and shall have the power tointerpret the provisions of the Scheme within itsframework, which shall be final and binding.8. There will be complete ban on engagement of casualworkers for performing duties of regular nature.If any deviation in this regard is made, COA/AOwill be held responsible for the same."12. In continuation of 1990 Scheme, the Governing body of CSIR,in its meeting held on 12.1.1994 approved conferment of temporarystatus in terms with Government of India instruction issued videDOPT O.M.No.51016/2/90-Estt.(C) dated 10.9.1993 on the DailyWage/Casual Workers already identified for absorption under theaforesaid Scheme in various CSIR Labs/Institutes. The letter forgrant of temporary status of the employees who have been identifiedfor absorption is quoted here under:(A)TEMPORARY STATUS(i) Conferment of temporary status would be withoutreference to the creation/ availability of regularposts.(ii)Conferment of temporary status would not involveany change in his/her duties and responsibilities.The engagement will be on daily rates of pay onneed basis only. He/she may be deployed anywherewithin the establishment unit/territorial circle on https://hcservices.ecourts.gov.in/hcservices/ the basis of availability of work.(iii)Temporary status would not, however, entitle themto be brought on the permanent establishment unlessa proper procedure prescribed in the CSIR Scheme onabsorption of casual workers.(B)TEMPORARY STATUS WOULD ENTITLE THEM TO THEFOLLOWING BENEFITS:(i)Wages at daily rates with reference to the minimumof pay scale for a corresponding regular lowestGroup-D/Group-C official, as the case may beincluding DA, HRA and CCA.(ii) Benefits of increments at the same rate asapplicable to a Group-D/Group-C employee would betaken into account for calculating pro-rata wagesfor every one year of service subject toperformance of duty for at least 240 days (206 daysin administrative office observing 5 days week) inthe year from the date of conferment of temporarystatus.(iii)Leave entitlement will be on a pro-rata basis atthe rate of one day for every 10 days of work,casual or any other kind of leave, except maternityleave, will not be admissible. They will also beallowed to carry forward the leave at their crediton their regularisation. They will not be entitledto the benefits of encashment of leave ontermination of service for any reasons or on theirquitting service.(iv)Maternity leave to day casual workers as admissibleto regular Group-D/Group-C employees will beallowed.(v) 50% of the service rendered under Temporary Statuswould be counted for the purpose of retirementbenefits after their regularisation.(vi)After rendering three years' continuous serviceafter conferment of temporary status, the dailywage/casual workers would be treated on par withtemporary Group-D/Group-C employees for the purposeof contribution to the General Provident Fund, andwould also further be eligible for the grant ofFestival Advance/Flood Advance on the same https://hcservices.ecourts.gov.in/hcservices/ conditions as are applicable to temporary Group-D/Group-C employees, provided they furnish twosureties from permanent Govt. Servants of theirDepartment.(vii)Until they are regularised, they would be entitledto Productivity Linked Bonus/Ad hoc bonus only atthe rates as applicable to Daily Wage/Casualworkers.(viii) Despite conferment of temporary status, theservice of a Daily Wage/Casual Worker may bedispensed with by giving a notice of one month inwriting. A Daily Wage/Casual worker with temporarystatus can also quit service by giving writtennotice of one month. The wages for the noticeperiod will be payable only for the days on whichsuch casual worker is engaged on work.13. The above letter is followed by another circular containedin its letter dated 6.12.1995 regarding absorption of CasualLabours, but, we are not concerned with the same. The petitionershave accepted, as noticed by the Tribunal, that therespondent/applicant is working continuously, at least from1.3.1985. It is also not in dispute that she being identified to beeligible for absorption was granted temporary status. Such beingthe position, in terms with 1990 Scheme, it was incumbent on thepart of the petitioners to regularise the services of therespondent/applicant or to absorb her against the availablevacancy, particularly, in view of the award dated 20.11.1991 passedby the Central Industrial Tribunal, Jaipur, whereby, she wasreinstated against the same post. It is true that the respondent/applicant cannot be deemed to have been regularised with effect from28.4.1994. Further, in view of the decision of the CentralIndustrial Tribunal, Jaipur, the respondent/ applicant havingreinstated with effect from 1.3.1985, the petitioners cannot take aplea that the temporary status will be conferred on her only witheffect from 28.4.1994. The Scheme for absorption having come intoeffect on 10.10.1990, it was incumbent on the part of thepetitioners to consider the case of the respondent/applicant forabsorption/regularisation against the post in their permanentestablishment.14. The 1990 Scheme stipulates absorption of casual workers.It further stipulates that the casual workers should beeducationally qualified for the post prescribed from time to time.Though it is stipulated that the absorption will be as per thenormal procedure of recruitment prescribed for the posts, includingqualifying test, if any, there is nothing on record to suggest that https://hcservices.ecourts.gov.in/hcservices/ any specific test has been prescribed for the post of Stenographercum Administrative Assistant.15. So far as the respondent/applicant is concerned, it is notin dispute that she is working as Stenographer cum AdministrativeAssistant. There is no adverse remarks against her performance.She has already attained the age of 56 years. In thesecircumstances, this Court is of the view that the DGSIR, which hasfull power to relax any of the provision of the Scheme, as perClause 7 of 1990 Scheme, should consider the case of therespondent/applicant for absorption, by relaxing the procedure, ifprescribed to qualify in any trade test.16. The case is, accordingly, remitted to the petitioners witha direction to consider the case of the respondent/applicant forregularisation of her services/ absorption in the regular cadre witheffect from 10.10.1990, i.e. the date on which the Scheme came intoeffect. If any trade test is prescribed for such absorption, inthat case, the authorities will consider the case of therespondent/applicant by relaxing the provision of the Scheme, inview of the observation made above. On such regularisation, therespondent/applicant will be entitled for terminal benefits inaccordance with law and if so permissible, her services should becounted with effect from 1.3.1985, i.e. the date from which theCentral Industrial Tribunal has ordered to treat her appointedagainst the post of Stenographer cum Administrative Assistant. Allthe formalities are to be completed within a month. The orderpassed by the Central Administrative Tribunal dated 6.2.2008 inO.A.No.10 of 2007 stands modified to the extent above.The writ petition stands disposed of with the aforesaidobservation and directions. There shall be no order as to costs.Consequently, M.P.Nos.1 and 2 of 2009 are closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarkpl https://hcservices.ecourts.gov.in/hcservices/ To The Central Administrative Tribunal Madras Bench, Chennai 104.+1cc to Mrs.B.Saraswathi, Advocate Sr 60077+1cc to Mr.L.Chandrakumar, Advocate Sr 60164BV(CO)km/24.11.W.P.No.21209 of 2008.