Ashok Kumar vs Union Of India Thru. Secy. Min. Of ...
2012 Latest Caselaw 1410 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 35
 
Case :- WRIT - A No. - 6825 of 2004
 
Petitioner :- Ashok Kumar
 
Respondent :- Union Of India Thru. Secy. Min. Of Defence & Others
 

 
Petitioner Counsel :- C.P.Srivastava,Anubhav Chandra
 
Respondent Counsel :- S.S.C.
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Arvind Kumar Tripathi (II),J.

Heard counsel for the parties and perused the record.

This Civil Misc. Writ Petition has been filed by Ashok Kumar S/o Chottey Lal, R/o 101, R.A. Bazar, Post Office- GPO, Allahabad, for quashing the order dated 19th December 2002 (Annexure 1 to the writ petition), by which the representation of the petitioner for appointment on the post of Oil Engine Driver, was rejected. It was moved vide order of Central Administrative Tribunal, Allahabad dated 20th September, 2002, in O.A. No. 792 of 1996 filed by the petitioners Ashok Kumar and others vs. Union of India and others.

Brief facts of the case are that the petitioner had worked for a period of 264 days under the respondent No. 3, Commander Works Engineer, Military Engineering Services, Allahabad as Oil Engine Driver on casual basis. He received letter dated 21st November, 1987 to appear in trade test for appointment on the post of Oil Engine Driver, pursuant to which he appeared in the trade test and was selected, but his appointment was postponed for want of age relaxation on the ground that he was slightly over aged at the time of trade test and selection.

After some time of the declaration of the result, a ban was imposed by the Government on recruitment which was lifted in the year 1994 when the respondents decided that such casual workers as the petitioner who was initially sponsored through Employment Exchange and recruited having completed more than 240 days should be offered appointment against existing vacancies. After lifting of the ban on recruitment, petitioner again approached the office of the respondent No.3 for his appointment and submitted a representation dated 24th April, 1995.

The office of the respondent No. 3 appears to have informed the petitioner that his name has been sent to the higher authorities for relaxation of age and he will be appointed as soon as the relaxation is granted the Central Government, through Secretary, of Defence, Raksha Bhawan, New Delhi and the Engineer in Chief Military Engineering Services, Allahabad.

The case of the petitioner was wrongly forwarded to respondent No. 1 and 2 for age relaxation because the crucial date for determining the age limit should be the closing date for receipt of application from from candidates. The petitioner then preferred Original Application no. 792 of 1996, Ashok Kumar and others vs. Union of India and others, before the Central Administrative Tribunal, Additional Branch, Allahabad (hereinafter referred to as 'CAT') on 19th July, 1996.

The aforesaid Original Application was contested by the respondents and the CAT, after considering the pleading of parties, the documentary evidences available on record and the arguments advanced on behalf of the parties, directed the respondent to consider the case of the applicant and to pass a reasoned and speaking order within three months from the date of receipt of a copy of the aforesaid judgement dated 20th September, 2002 keeping in view the earlier judgement passed by it in O.A. No. 892 OF 1991 and O.A. No. 893 of 1991.

In view of the aforesaid, respondent no. 3 is allegedly to have passed an arbitrary order rejecting the claim of the petitioner vide judgment dated 20th September, 2002. Respondent No. 3 has rejected the claim of the petitioner who was not at parity to the cases of Awadh Kishore vs. Union of India and others and Jeet Narain and others vs. Union of India and others decided by the Central Administrative Tribunal in O.A. No. 892 of 1991 and O.A. No. 893 of 1991.The claim of the petitioner was also rejected on the ground that he has filed original application in the year 1996, which was barred by limitation.

Respondents have filed a counter affidavit alleging that the above civil misc. writ petition relates to regularization of casual services rendered by the petitioner during the year 1983-84 in the capacity of Oil Engine Driver under Garison Engineer (Air Force) Bamrauli and Garison Engineer (East) Allahabad. Respondents No.3 who looks after the supply of water/electricity construction and maintenance of buildings roads, and of furniture for the troops located in the area; that due to shortage of regular staff, certain Oil Engine Drivers were employed for specific work for limited period on need basis not exceeding 89 days in one spell to meet the emergent requirement of such works for troops and on completion of the specified period of work, the such casual employment/ engagement automatically comes to an end. Employees so engaged do not have any lien or right for further employment.

It is averred that the workers Union had represented to Army Head-quarter with regard to providing regular appointment to such casual workers. Pursuant thereof the Engineer-in-Chief of the Branch directed vide his letter dated 27 November, 1992 to lower formations for examining the cases of all casual workers fulfilling the following criteria and for submission of proposals for consideration of their cases for regular appointment by the Ministry of defence;

1. "Casual workers who had been initially inducted through employment exchange.

2. Casual workers who had worked for more than 240 days in two consecutive calender year and 180 days in one year."

Counsel for the petitioner on the basis of the above directions submits that the name of the petitioner along with all the eligible casual employees were forwarded to higher authorities for consideration. Subsequently the Chief Engineer Central Command, Lucknow, vide letter no. 901407/1/1518/EIC (2) dated 30.05.1994, intimated that cases for regularization of casual personnel had been referred to the Ministry of Defence, which had rejected the proposal on the ground that policy/instructions do not permit regularization of services of casual workers, who had been discharged earlier prior to issue of DOPT office memorandumNo. 49019/2/86-Estt (C) dated 07.06.1988.

In the instant case, the petitioner was disengaged from services with effect from 16th November, 1984. As the case of the petitioner did not fall within the ambit of policy decision of Government of India, Department of Personnel Public Grievances and pension and department of personnel and training as well as O.Ms. dated 07.06.88 and 08.04.91 the writ deserves dismissal. The office memorandum dated 08.04.91 provides that casual workers recruited before 07.06.88 and who were in service on the date of issue of the instructions i.e. 08.04.1911 may be considered for regular appointment.

Reliance has been placed by him on paragraph 43 of the judgment rendered in Secretary, State of Karnataka and others vs. Umadevi and others JT 2006 (4) SC 420 wherein the Apex Court held that a temporary employee cannot seek a writ of mandamus to compel the authorities to absorb or regularize them in service unless it is shown by them that legal duty is imposed by some statute in this regard or they have a legal right in this regard under any rule framed under such statute.

" 43. Normally, what is sought for by such temporary employees when they approach the Court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur vs. The Governing Body of the Nalanda College. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved arty had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent."

We find that the petitioner was recruited in the year 1984 and he was not in service on the date of issue of the order i.e. 08.04.91. Admittedly the petitioner along with other candidates was trade tested by Board of officers for the purpose of ascertaining his suitability for appointment. No assurance was given to him with regard to appointment as ban on recruitment had been imposed by the Government w.e.f. 03.06.84. The proceedings of the Board of Officers in this regard therefore could not progress. Consequently, a doubt had arisen on the eligibility of some of the candidates who were trade tested and who were over aged at that time, hence in the circumstances, the matter was forwarded to the higher authorities vide letter dated 30.03.92 for obtaining Government sanction with regard to relaxation of age in such matter. However, the matter was remitted back under covering letter dated 23.05.92 clarifying that only those personnel who meet the criteria stated above i.e. they are otherwise eligible for regular appointment (a) only such casual workers who were recruited before 07.06.88 and who are in service on 08.04.91. (b) who had worked for more than 240 days including broken period would be eligible for regularization (even if they were recruited otherwise through employment exchange and had crossed the upper age limit).Since the petitioner was disengaged from service with effect from 16.11.84 he could not be considered in these facts and circumstances.

A rejoinder affidavit was filed denying the contention of counter affidavit and reiterating the contents of the writ petition.

We have heard the petitioners counsel Sri Anubhav Chandra and learned Standing Counsel for the respondents.

It has been argued on behalf of petitioner on the basis of two decisions of this Court passed in Civil Misc. Writ Petition No. 40713 of 2002 Union of India through Secretary, Ministry of Defence, Government of India, New Delhi and others vs. Jagat Narain Mishra and another decided on 18.01.2008 and also the judgment rendered in Writ-A No. 12912 of 2006 Union of India through Secretary, Ministry of Defence, New Delhi and others vs. Shamshad Husain and another decided on 13.05.2010 that appointments had been made by the respondents by providing age relaxation to the candidates in these cases hence, the petitioner is also entitled for age relaxation on the basis of parity.

Counsel for the respondents argued that since the petitioner did not possess the eligibility criteria aforesaid, hence he was rightly not offered appointment and the representation made by him pursuant to the judgement rendered by the Central Administrative Tribunal, Allahabad. The order passed on the representation dated 19.12.2002 of the petitioner shows that it was rejected on that ground that:-

"Though he was in casual service before 7th June 1988, he was not in service on 8th April 1991."

Moreover, the petitioner has himself annexed certificate of experience as Annexure 2 to the writ petition which shows that he had worked for the following periods in the establishment:-

"1. 08.11.83 to 07.12.83

2. 22.12.83 to 18.02.84.

3. 16.04.84 to 13.07.84

4. 17.08.84 to 10.10.84 and

5. 07.12.84 to 05.01.85"

It is established from the own document of working period shown by the petitioner that he was not in service on 8th April 1991. Further paragraph 2 of Annexure No. 9 appended with the writ petition which is copy of O.M. No. 49014/4/98-Estt. (C) Ministry of Personnel, Public Grievances and Pension ( Deptt of Personnel and Trg) dated 08th April 1991 mentions that:-

" Requests have now been received from various Ministries Department for allowing relaxation in the conditions of upper age limit and sponsorship through employment exchange for regularization of such casual employees against Group 'D' posts, who were recruited prior to 7.6.88 i.e. date of issue of guidelines. The matter has been considered and keeping in view the fact that the casual employees belong to the economically weaker section of the society and termination of their services will cause undue hardship to the, it has been decided as a one time measure in consultation with the Director General Employment and Training, Ministry of Labour that casual workers recruited before 07.06.88 and who are in service on the date of issue of these instructions, may be considered for regular appointment to Group 'D' posts, in terms of the general instruction, even if they were recruited otherwise than through employment exchange and had crossed the upper age limit prescribed for the posts provided they are otherwise eligible for regular appointment in all other respects."

It is apparent from the above OM that consideration of casual workers for regularization was only as a one time measure, in consultation with the Director General Employment and Training, Ministry of Labour. Since the petitioner was not in service on 8th April, 1991, when this letter was issued he had no right of regularization.

The decisions referred to by the counsel for the petitioner are not applicable in this case as the petitioner in those cases were not in service on 8th April, 1991 the date on which the policy decision was enforced by the government. These decisions only refer to the relaxation of age, whereas it is clearly revealed in the impugned order that the application for regular appointment of the petitioner had not been rejected only on the grounds of his being over age at the time of trade test.

As in the instant case, the petitioner has not been able to show that he has any legal right to be permanently absorbed and he was not eligible on the date one time concession was granted to such employee who were working as such the petition deserves to be dismissed.

For all the reasons stated above, the writ petition is dismissed. No order as to costs.

Order Date :- 7.5.2012

v.k.updh.