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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.1994 of 2000
Shakil Khan s/o Ibrahim Khan
aged 33 years, Daily Wages Driver,
Office of the Sr. Supdt. of Post Offices, Nagpur,
Mfl. Division, Nagpur, R/o.-Kamptee, Distt. Nagpur. .... Petitioner.
Versus
1] The Union of India
through its Secretary,
Department of Posts Ministry of Communication,
New Delhi.
2] The Chief Post Master General,
Maharashtra Circle, Mumbai.
3] The Post Master General, Nagpur Region, Nagpur.
4] The Sr. Supdt., of Post Offices, Nagpur
Mfl. Division, Nagpur. .... Respondents.
Shri A.H. Jamal, Advocate for petitioner.
Shri R.S. Sundaram, Advocate for respondents
Coram : B.P. Dharmadhikari &
Mrs. Swapna Joshi, JJ.
th Dated : 09 March, 2017.
ORAL JUDGMENT [Per B.P. Dharmadhikari, J.] ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:03:05 ::: 2 09032017 judg. wp 1994.00.odt The matter was heard yesterday for some time. Today, we have again heard learned Advocate Shri Jamal for the petitioner and learned Advocate Shri Sundaram for the respondents.
2] The short submission of learned Advocate Shri Jamal for the petitioner is that, though the Central Administrative Tribunal [CAT] after considering the position then prevailing, found the petitioner not entitled to regularization as a driver i.e. in group 'C' post, that consideration was on the date of filing of the Original Application. In the year 2003, thereafter, the petitioner has been regularized in group 'D' post and in 2013, he has been promoted as a 'Motor Vehicle Mechanic' in group 'D' post. All the while, he has continued to drive the motor vehicles. He contends that, in this situation, when the documents produced before the CAT proved existence of vacancies in the cadre of driver in 1996 as also in 1997, the direction to consider the eligibility of the petitioner to be regularized as a driver in group 'C' cadre was needed to be issued. He adds that though the petitioner may not have any experience in July, 1989 when he started working as a daily wager, after completion of four years, the norms were satisfied and there was no legal bar to that consideration. He is relying upon the judgments of Hon'ble apex Court in the case of Bhagwati Prasad v. Delhi State Mineral Development Corporation, reported at AIR 1990 SC 371, paragraph 6 and Ajaypal Singh v. Haryana Warehousing Corporation, ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:03:05 ::: 3 09032017 judg. wp 1994.00.odt reported at 2015 I CLR 591, paragraph 18.
3] Learned Advocate Shri Sundaram for the respondents, on the other hand, submits that the employment with the respondents being public employment, there cannot be any back door recruitment and the petitioner who started working as a driver therefore cannot be recognized as a candidate eligible to claim any relief. He points out that the name of the petitioner was never entered in any employment exchange. He never faced any competent selection process and started working when he was minor i.e. when legally a driving license could not have been issued in his favour.
4] The learned Advocate invites our attention to the consideration of these aspects by the CAT in paragraphs 4 and 6 of its judgment. It is pointed out that as per the operative part, the candidature of the petitioner was considered for regularization against a group 'D' post and by order dated 12-09-2003 that direction was complied with. Thereafter, in due course, he has been promoted as a 'Skill Artisan (MV Mechanic)' in group 'C'. The learned Advocate, therefore, submits that as the directions issued by the CAT are fully complied with, the petitioner is not entitled to any other relief.
5] The fact that, after adjudication by the CAT on 07-07-1999, the
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present Writ Petition has been filed on 27-04-2000, is not in dispute. During the pendency of this petition i.e. on 12-09-2003, the petitioner the then daily wager was given a group 'D' post as 'MV Cleaner'. He continued to work in group 'D' post and by order dated 04-07-2013, he has been promoted as 'Motor Vehicle Mechanic' in group 'C' post. Thus, all these promotions are during the pendency of the present challenge and therefore subject to the adjudication by the High Court. 6] The judgment of the Larger Bench of the Hon'ble apex Court in the case of Bhagwati Prasad (supra), in paragraph 6, considers the question of paying equal pay for equal work and in that backdrop, it is apparent that, if the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground they lack the prescribed educational qualifications. The Hon'ble apex Court also observes that three years experience ignoring artificial break in service for short period should be sufficient for confirmation. This view of the Larger Bench is prior to the consideration of the controversy by the Constitution Bench of the Hon'ble apex Court in case of State of Karnataka v. Umadevi, reported 2006 II CLR 261 SC. The Constitution Bench has pointed out that there should not be any misplaced sympathies in such matters. ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:03:05 :::
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7] The later judgment of Hon'ble apex Court in the case of Ajaypal
Singh (supra) considers grant of relief of reinstatement to such a daily wager. However, there while considering the above mentioned judgment of the Constitution Bench, in paragraph 18, the judgment delivered by the Hon'ble apex Court in case of Maharashtra State Road Transport and another v. Casteribe Rajya Parivarthan Karmachari Sanghatana, reported at 2009 III CLR 262 SC, is also considered. In that judgment, the Hon'ble apex Court has looked into the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 [for short, the 'MRTU and PULP Act'] and held that the judgment in the case of State of Karnataka v. Umadevi has not overridden powers of Industrial and Labour Courts in passing appropriate order, once unfair labour practice on the part of the employers is established. As such the said judgment does not denude the Industrial and Labour Courts of their powers under the Industrial Disputes Act, 1947 and MRTU and PULP Act. The Hon'ble apex Court found that if the vacancies are shown to be available, the judgment in the case of State of Karnataka v. Umadevi does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with section 32 of the MRTU and PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of Schedule IV where the posts on which they have been working exist. ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:03:05 :::
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8] When the present matter is looked into in this backdrop, the
petitioner has applied for his selection as a driver on 13-09-1996 and thereafter on 12-05-1997. In his application, he has mentioned the memo dated 12-09-1996 and dated 30-04-1997 issued by the employer calling upon such applications. These documents show that in September, 2006 and thereafter in May, 1997 there were vacancies in the post of driver i.e. in group 'C' category.
9] The CAT has in paragraph 4 looked into the defence raised by the employer while opposing the Original Application. It has found that the petitioner did not possess the technical proficiency certificate from an institute recognized by the Government. The employer also contended that if the experience of the petitioner from the date of issuance of driving license (14-08-1987) is to be looked into, he had experienced of only one year and eight months on the date on which he was given employment i.e. on 13-07-1989. Therefore, on that day, he had not completed four years of service/experience. In paragraph 6 while recording its findings it has reached a conclusion that, the petitioner did not possess a relevant trade proficiency certificate and experience of driving. These findings therefore necessarily are qua the date on which the petitioner started working as a driver i.e. from July, 1989. The fact that the petitioner continued as a driver even after filing of Original Application is not in dispute. Thus, on the date on ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:03:06 ::: 7 09032017 judg. wp 1994.00.odt which the CAT was delivering judgment, the petitioner had more than four years of experience. The exact meaning of phrase 'trade proficiency certificate' is not apparent anywhere on record and the petitioner has not explained it. In present fact it may only imply a driving certificate from a school recognized by the Central Government. The fact that the petitioner has a driving license since August, 1987 and has been driving vehicles of the respondents thereafter continuously till date, is not in dispute. The insistence upon that certificate therefore in the backdrop of observations of the Larger Bench of the Hon'ble apex Court in the case of Bhagwati Prasad (supra) does not appear sound.
10] In paragraph 7 of its judgment, the CAT has looked into the aspect of completion of 240 days' of service in one year of the petitioner and issued the directions. The CAT though found that the petitioner is not eligible for absorption/regularization in group 'C' post, has directed the employer to consider him against a group 'D' post. That exercise has been accomplished on 12-09-2003. 11] The judgment of Hon'ble apex Court in the case of Maharashtra State Road Transport and another (supra) shows that, if the posts exist/vacancies are available, the employer may be directed to regularize a person who is being continued on daily wages for years ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:03:06 ::: 8 09032017 judg. wp 1994.00.odt together. This view has been reached in light of the provisions in a State legislation namely the MRTU and PULP Act. Pari materia provisions are also found in the Industrial Disputes Act. However, this Court is not required to delve more into the controversy as the petitioner never approached the Industrial Court and went to the CAT where only constitutional provisions are relevant. 12] In this situation, we find that, if on 12-09-2003 a vacancy in group 'C' category in the cadre of driver was available, the entitlement of the petitioner for regularization against that vacancy ought to have been looked into. That exercise has not been undertaken because the employer found it sufficient to comply with the directions issued by the CAT. The petitioner has been regularized on 12-09-2003 in group 'D' category and thereafter has been promoting as 'Motor Vehicle Mechanic' in 2013 in group 'C' category. The interest of justice, therefore, can be met with by directing the employer to find out whether the petitioner can be regularized against the post of driver at any point of time before the promotion as 'Motor Vehicle Mechanic' on 04-07-2013.
13] We, therefore, direct the respondent employer to examine the eligibility of the petitioner for regularization in group 'C' post from 12-09-2003 and thereafter up to 04-07-2013. If the petitioner is found ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:03:06 ::: 9 09032017 judg. wp 1994.00.odt eligible for such regularization against a vacancy then available, the petitioner shall accordingly be regularized as a group 'C' employee from such a date.
14] The consequential benefits, if payable, shall be released to the petitioner, within period of six months thereafter. We are issuing these directions as the petitioner has all through i.e. right from July, 1989 continued to work as a driver though he did not receive wages/salary for that purpose.
15] Accordingly, the Writ Petition is partly allowed and disposed of. No costs.
JUDGE JUDGE
Deshmukh
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