Shakil Khan S/O Ibrahim Khan vs The Union Of India & 3 Others
2017 Latest Caselaw 625 Bom

                                                       1                           09032017  judg. wp 1994.00.odt 

                       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.]

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,

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 



                                                        4                           09032017  judg. wp 1994.00.odt 

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.

                                                        5                           09032017  judg. wp 1994.00.odt 

            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.

                                                        6                           09032017  judg. wp 1994.00.odt 

            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

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

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

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