CENTRAL
ADMINISTRATIVE TRIBUNAL
BOMBAY
BENCH, MUMBAI.
O.A.No.252/2010,
O.A.No.271/2010, O.A.No.272/2010
O.A.No.273/2010
and O.A.No.274/2010
Dated
this , the
th day of February, 2012.
CORAM:
HON'BLE SMT.LEENA MEHENDALE, MEMBER (A)
Smt. Vimal
Narayan Balotra,
aged 51 years,
presently
working as
Sweeper/Safaiwala
in the office of
the Asst. Collector
of Central
Excise, Kalyan I Division, Thane I
Commissionerate
and residing at
Madhul Patil
Chawl, S.N. Road,
Mulund (W),
Mumbai 400 080. ... Applicant in
O.A.No.252/2010
Janu Govind
Rohane,
age 50 years,
presently
working as Hamal
in the office
of the Central
Excise, Kalyan I
Division, and residing
at
Vahalipada, Tal.
Kalyan
Dist. Thane. .. Applicant in
O.A. No.
271/2010
Bhalerai B.
Damodar,
aged 44 years,
presently
working in the
office of the
Asst.
Commissioner, Central
Excise, Panvel
divsion,
and residing at
P.O. Kambale
Tal: Sinar, Dist.
Nasik. ... Applicant in
O.A.No.272/2010
Kripal N. Guher,
Working as
Sweeper/Safaiwala,
Audit, Central
Excise,
Thane I
Commissionerate,
and residing at:
CMM Dhobighat,
Section,
No.1327, Camp:
No.4,
Ulhasnagar
-4 ... Applicant
in
O.A.No.273/2010
Shelar D. Shripad
aged 42 years, presently
working in the office of the
Asst. Commissioner,
Central Excise, Mahad, Raigad,
Commissionerate, Ist Floor,
Complex, CBD Belapur, Navi
Mumbai and residing at
Shanishwar Apt. Tapal Naka,
2nd floor, Room No.201,
Old Panvel, Dist. Raigad. ...
Applicant in
O.A.No.274/2010
(Applicants by
Shri Ramesh Ramamurthy, Advocate)
vs.
1) Union of India through
The Commissioner of Central
Excise Thane I Commissionerate,
Nav Prabhat Chambers,
Ranade Road,
Dadar, Mumbai 400 028. .. (Common in all
the 5 O.As)
2) Joint Collector (P&V)
Central Excise Thane I
Commissionerate, Nav Prabhat
Chambers, Ranade Road,
Dadar, Mumbai 400 02...(Only in
O.A.No.252/2010)
2) Adl. Collector P&B
Central Excise,
Muambai III. Nav Prabhat
Chambers, Ranade Road,
Dadar (W), Mumbai 400 028 ...Respondent
No.2
in O.A. 271 &
272/2010)
2) Dy. Commissioner of Central
Excise,
Audit, Thane I, Valipeer Road,
Nihakanta Bldg., 3rd floor,
Kalyan (East). .. Respondent No.2 in
O.A.No.273/2010)
2) Commissioner of Central
Excise, Navprabhat Chambers
Ranade Road, Dadar (W)
Mumbai 400 028. .. Respondent No.2 in
O.A.No.284/2010)
3) Asst. Commissioner of
Central Excise,
Kalyan I Division
Thane I Central Excise Commissionerate
Sangrama Bldg., Valivpeer Road,
Opp. Rly. Goods Shed,
Kalyan. ... Respondents in
O.A.271 &
252/2010
3) Asst. Collector of
Central Excise Office,
Panvel I Division,
Raigad Commissionerate,
Panvel. ... Respondents in
(O.A.No.272/2010)
3) Asst. Commissioner,
Central Excise, Mahad,
D.N. Raigad,
Commissionerate,
Ist floor, Complex, CBD
Belapur,
Nasik. ... Respondents
in O.A.No.274/2010)
(Respondents by Shri V.S.Masurkar, Advocate in all the
O.A.s.)
O R D E R
The OAs are filed on
11.03.2010 or thereabout on the question of benefit of temporary service
towards pension. They all have similar
circumstances. They all have similar
circumstances. For convenience, the
matrix of OA No.252/2010 is referred to hereafter.
2. The brief case of the applicant is that, she was appointed as
Sweeper w.e.f. 01.12.1984 in the office of Kalyan-I, Central Excise Division
under the Central Excise Commissionerate at Thane. She was duly sponsored by the Sub Regional
Employment Exchange office and her posting was against a vacant post. Further, she was granted temporary status
w.e.f. 01.09.1993 vide order at (Annexure A-2).
She continued as a temporary status worker uninterruptedly for about 26
years till the present and on one occasion in 2005 floods in Mumbai in which
she and some more employees of the Department lost their belongings etc., the
respondent Department has also paid her a compensation of Rs.18,000/- which
they have paid to other permanent class IV employees similarly affected in the
flood. Furthermore, GPF contribution was
being deducted w.e.f. 01.06.1997 but was stopped w.e.f. 01.09.2004. All these statements have been accepted by
respondents as factua.
3. Furthermore, she claims she
has been discrimi-nated against other persons similarly situated who have been
absorbed as regular Group 'D' employee.
Her representation dated 27.07.2009 at Annexure A-5 has been
rejected. She, therefore, prays in
paragraph 8 of the O.A. as below:
“a) That this Hon'ble Tribunal be pleased to hold
and declare that the action of the respondents not considering the applicant
for regularization on par with his juniors under the 1993 scheme amounts to
violation of Article 14 & 16 by the Constitution of India and the said
action is required to be stuck down by this Hon'ble Court;
b) that this Hon'ble Tribunal be pleased to
direct the respondents to forthwith consider the applicant for regularization
and grant her the benefit of the said regularization on par with her
juniors/colleagues who have been granted the benefit of temporary status under
the establishment order no. 141/1994.
c) that this Hon'ble Tribunal be pleased to direct
the respondents to take immediate steps for absorbing the applicant in Class IV
post as done in the case of persons who are similarly situated like the
applicant;
d) that this Hon'ble Tribunal be pleased to
direct the respondents to immediately restart the GPF contribution which has
been stopped and to continue making such deductions every month and further
deduct the amounts due from the date it has been stopped till date;
e) that this Hon'ble Tribunal be pleased to
count the services rendered by the applicant prior to her being temporary
status for pension and other retiral benefits.”
4. I have carefully gone through all the papers
submitted by the applicant as well as respondents and have also carefully heard
both the learned counsel for the parties.
At the outset, there are three different prayers which are unconnected
to each other – namely, regularisation in Group 'D' have been clubbed namely,
restoration of GPF deduction (which is equivalent to granting of GPF scheme
benefit) and counting of her services towards pension. The cause for pension has not yet arisen as
the applicant is stated to be around 51 years and has still some years to go in
the service. As far as the claim of GPF
restoration is considered, it is pointed out by respondents that she has not
raised any objection when GPF deduction was stopped w.e.f. 01.09.2004 for more
than 5 years and the very first reference from her side appears in her
representation dated 27.07.2009 at Annexure A-5. I also find that many averments have been
made in the OA which are not supported by documents and at times there have
been misrepresentation or suppression of facts, as has been pointed out by the
respondents.
5. The applicant has not produced the names of
any juniors or other similarly situated persons, who as per her claim at para 4 (f) of OA have been
regularised as permanent Group 'D' employees.
The respondents at paragraph 12 have categorically denied this and have
stated that she has not furnished any names of such person, no Casual Labourer
having temporary status has been regularised.
As pointed out by the respondents, paragraph 4 (d) of OA is a
misrepresentation and Annexure A-4 appears to be some other list not connected
with the statement at paragraph 4(d) of the OA.
Paragraph 4 (d) and paragraph 4(g) both refer to a letter dated
10.04.2008 which actually points to the letter from Commissioner of Service Tax, Mumbai to the
Commissioner of Central Excise, Thane-I asking them to intimate to all the
Casual Worker to appear for physical test on 15.04.2008 at a designated place
at Worli Sea Face. Applicant claims that since she received the intimation
late, she was not able to take this opportunity. Thereafter, she made some representations which
have been rejected. She has also not
been able to substantiate as to why she did not appear for the physical fitness
test which was to be organised on 15.04.2008 at Worli Sea Face and how she
answers to the instructions on 11.04.2008 under which she was to present her
papers at the officer of Central Excise Bldg., Churchgate, Mumbai. Even her representation dated 27.07.2009 is
silent on that point.
6. The respondents have also explained the
details and circumstances under which the order for stopping the deduction of
her GPF contribution w.e.f. 01.09.2004 has been issued in view of the fact that
she is not a regular Group 'D' employee and there are instruction from
government not to make GPF deduction for temporary status employees.
7. Thus, the prayers at paragraph 4(d) and 4(e)
are immature at this stage and that leaves me only with the question of her
regularization as Group 'D' employee.
8.
Despite
all the infirmities in her OA, the basic two points to consider in this claim
are that she is an employee of 1984, who was given temporary status w.e.f.
01.09.1993 and has rendered her services now for more than 18 years as
temporary status. The crux question, therefore, is whether the Department is
entitled to take the services of someone on temporary basis for 18 years (and
still continues to do so) but not give benefits of permanent staff. The OA points out that the Ministry had
issued instructions to fill up vacancies in Group 'D' that have been arisen in
the year 2006-07, 2007-08 and 2009 from out of the existing temporary status
workers.
9. The
respondents would claim three reasons for not absorbing her service in Group
'D',firstly the application of Umadevi judgment passed in the case of Secretary,
State of Karnataka & Others Vs. Umadevi (3) & Others [2006 SCC
(L&S) 753],under which it was held that the scheme introduced
by the Government called the 1993 Scheme was a one time exception and was not
an on going scheme. The second reason
stated by the Department is that there were no recruitments in the Group 'D'
post except for a special Recruitment drive in the year 2005 for the vacancies
in the Reserved Category of Scheduled Caste and Scheduled Tribes. Thereunder,
only 9 vacancies existed for ST and no vacancies for SC. Hence, the applicant, who belongs to SC
category could not be included in that drive.
The third reason at paragraph 14 of reply statement is that there is a
ban on recruitment of Group 'D' employees.
The Ministry vide letter No......... dated 26.12.2003 has intimated that
the casual workers with temporary status cannot be absorbed as Group 'D' post
against 15% vacancies provided in recruitment rules for being filled up by
absorption. They can be appointed as
Group 'D' employees against 85% vacancies filled by direct recruitment after going
through regular selection process subject to approval of the Screening
Committee. This along with another
letter from Financial Advisor dated 30.09.2004 is cited as the reason for
non-absorption. In subsequent developments
even after the respondents having intimated to the Ministry the possibility of
filling up of 27 vacancies which arose in the year 2006-07, 2007-08, 2008-09, a
letter has been received on 13.11.2009 not to make any appointment in regular
Group 'D' post except for compassionate basis.
10. Umadevi's
Judgment... paras........
11. I find
that Annexure A-2 is the regularization order No.141/94 dated 31.08.1994 under
which the applicant was conferred temporary status w.e.f. 01.09.1993. This order states its preamble as below:
“In
pursuance of Ministry of Personnel, PG and Pensions letter No. 51016/2/90
Estt.(C) dated 10/09/93 and letter No. 49014/2/93 Estt.(C) dated 09.03.94
received under Boards F.No. A-12034/52/93 AD III dated 11/10/93 and Ministry's
F.No.C-300/3/24/94 AD.IV dated 11/04/94 respectively, the following casual
workers (safaiwalas/Hamals) who were in service as on 01.09.93 in this
department and had rendered the continuous service of minimum 206 days are
conferred temporary status w.e.f. 01.09.93”
12. In this connection, the respondents have
stated at paragraph 5 that the 1993 Scheme upon which the applicant is relying
was a one time exception to the general Rule and, therefore, the applicant
should have approached the respondents in the year 1993 itself. Although, neither the applicant nor the
respondents have brought out the Scheme on record, it is not stated by the
respondents whether the said Scheme was meant for giving temporary status to
the casual labourers or giving permanent regularization. The attempt of the respondents to put the
onus on the applicant and their emphasize that “the applicant ought
to have approached in the year 1993 and not as per her convenience and desire,
therefore, the OA suffers from delay and latches”. This cannot be taken as pertinent because
they give the temporary status to the applicant which itself was a jump from
her earlier status of causal labour and the applicant is not supposed to
understand the fine distinction made by the respondents between temporary
status and regular employment, especially in view of the fact that several
other perks were made available to the applicant and even here GPF deduction
was started in 01.06.1997. It remains to
be examine as to whether the implementation of the 1993 Scheme was in full
compliance or only a half a compliance in terms of granting temporary status to
the applicant. It is further noticed
that the Department has also not clarified as to what was the outcome of their
efforts for regularization in pursuance to Annexure A-4 dated 10.04.2008 under
which the respondents had started examining the validity of testimonials and
planned for conducting physical test. So
three aspects are important:
i) The appointment of the applicant was not a
backdoor entry or illegal. She was taken
as Casual Labour in the year 1984 and was given temporary status in the year
1993 that takes care of aspect of backdoor
entry which is the crux under the Umadevi judgment.
ii) It is fact that the respondents department has
been taking her service despite on a temporary status which clearly shows that
the department is in need of her services, but have not been able to convince
the Ministry.
iii) There appears to be no system in the department
for a time-bound review of such a situation. It is, therefore, necessary at
this stage to direct that the department should set up the system of 5 yearly
review of their requirement of Group 'D' service. It is is often seen that powers to deal with
the complaints, grievances or genuine demands of Group 'D' employees are
generally required to go upto very high Officers of the department (and many
times to DoPT and the department of Finance).
But the same senior officers of the department are also dealing with
matters of crucial strategic or financial importance having serious influence
on administration. Hence, looking at the
conplaints of Group 'D' employees receives low priority givinng rise to
avoidable litigations. Hence, the
Respondent No. 1 is directed to set up the system of 5 yearly review of all
cases of casual employment or temporary appointments.
13. As far as the present case is concerned, it is
really unfortunate that the applicant who has completed more than 18 years in
the service of the respondents department has not yet been given regular
status. Even if it is the plea of the
department that there is a ban on recruiting staff for Group 'D' post, that ban
cannot be on permanent basis when requirement of Group 'D' post has been
recognized by the Government Department.
Such ban can exist only for temporary period of extreme economic
exigencies. The respondents have not
even furnished any information about existing vacancies. The respondents have annexed R-11 dated
November 2009 wherein it is mentioned that OM No.1/1/2008-IC dated 24.12.2008
provides that in future there shall be no recruitment in IS pay band save in
exceptional circumstances, e.g., compassionate appointment as indicated in para
2.2.10 of the Report of the Sixth Central Pay Commission. Therefore, regular
recruitment in IS scale would not normally be permissible.
(Smt.
Leena Mehandale)
Member (A)
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