Chattisgarh High Court
Yamal Singh Mogre vs Union Of India And Ors on 17 August, 2022
1
AFR
HIGH COURT OF CHHATTISGARH BILASPUR
WPS No. 6057 of 2014
Yamal Singh Mogre, S/o Shri Mohan, Aged About 44 Years,
Presently Posted as Safaiwala (wrongly mentioned as part time in
the memo of original application) R/o Sindhi Colony, Kasturba Nagar,
Bilaspur, Chhattisgarh, 495001.
---- Petitioner
Versus
1. Union of India Through the Secretary, Ministry of Labour and
Employment, Shram Shakti Bhawan, New Delhi, 110028.
2. Director General of Mines Safety, Head Office, Directorate of
Mines Safety Hirapur, Dhanbad Jharkhand, 826001.
3. Director Mines Safety Seminary Hills, C.G.D. Complex, 6th
Floor, Western Zone, Nagpur, Maharashtra, 440006.
4. Director of Mines Safety, Bilaspur Region, Bilaspur,
Chhattisgarh, 495001.
---- Respondents
(Cause-title taken from Case Information System)
For Petitioner : Mr. Rahul Kumar, Advocate
For Respondents No.1 : Mr. Bhupendra Pandey, Central
Government Advocate
Date of hearing : 29.06.2022
Date of order : 17.08.2022
Hon'ble Shri Arup Kumar Goswami , Chief Justice
Hon'ble Shri Parth Prateem Sahu, Judge
C A V Order
Per Parth Prateem Sahu, Judge
Petitioner aggrieved by an order of dismissal of his Original
Application No.126 of 2010 dated 06.08.2014 as also dismissal of his
Review Application No.203/00088/2014 vide order dated 01.10.2014 has
preferred this writ petition seeking following reliefs :
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"i. To kindly call for the records of the case
from the respondents.
ii. To kindly set aside the order dated
06.08.2014 (Annexure P/1) and 01.10.2014
(Annexure P/1-A) passed by the Central
Administrative Tribunal.
iii. To kindly direct the respondents to consider
the case for grant of temporary status to the
applicant as per the Casual Labourers (Grant
of Temporary Status and Regularization)
Scheme, 1993 and regularization on the post of
Safaiwala.
iv. To kindly make any other order that may be
deemed fit and just in the facts and
circumstances of the case including awarding
of the costs to the petitioner."
2. Facts
relevant for disposal of this writ petition, are that, petitioner
has filed original application before Central Administrative Tribunal,
Jabalpur Bench, Circuit Sitting, Bilaspur (in short 'CAT') pleading therein
that petitioner was appointed as casual Safaiwala on 18.07.1989 in the
office of Director of Mines Safety, Bilaspur through Employment
Exchange. Petitioner was appointed as Safaiwala on 06.12.1989 vide
memo dated 23.03.1990. He joined his service on 01.06.1990 and was
paid sweeping and cleaning charge at the rate of Rs.390/- per month.
Office of Mines Safety, Bilaspur received communication from the office
at Dhanbad for regularization of casual labourers. In the year 2002,
Deputy Director General of Mines Safety, Western Zone, Nagpur sent a
letter to Director General of Mines Safety, Dhanbad on 12.10.2002
requesting for sanction of the post of Chowkidar and Safaiwala. Pending
consideration for sanction of post, judgment of Hon'ble Supreme Court in
case of Secretary, State of Karnataka and Others v. Umadevi (3)
and Others reported in (2006) 4 SCC 1 was passed, but even then, no
action whatsoever was taken by the respondents to regularize the service
of petitioner. Respondent No.2 wrote a letter to respondent No.4 on
03.03.2009 asking for proposal for outsourcing of the work. Petitioner
made representation to respondent No.2 and respondent No.4 and also
sent reminder for his regularization, but even after his long continuous
service as a daily wager or part-time worker, his service was not
regularized, overlooking the fact that he was appointed against regular
post and prayed for following reliefs : -
"8.1 To kindly call for the records of the case
from the respondents.
8.2 To kindly direct the respondents to consider
the case of the petitioner for regularization in
the post of Safaiwala.
8.3 To kindly grant any other relief deemed fit
and just by this Hon'ble Court.
8.4 To kindly award the cost of this application.
8.5 To kindly direct the non-applicants to
consider the case for grant of temporary Status
as per the Casual Labourers (Grant of
Temporary Status and Regularization) Scheme
of Government of India 1993."
3. Respondent submitted reply to the original application denying
the pleadings made in original application. It was further pleaded that
there was no regular post of Safaiwala. At the time of engagement of
petitioner, he was asked to submit his willingness to work on payment of
'Safai Shulk' (cleaning charges) at the rate of Rs.390/- per month. He
submitted his acceptance to the offer and he was appointed to work on
Safai Shulk of Rs.390/- per month. The application submitted by the
petitioner for his appointment on daily wages as casual labourer was
rejected by the Mining Directorate vide letter dated 28.04.1992 and since
then, petitioner was working on safai shulk basis.
4. Learned CAT considering the pleadings as also submissions
made by learned counsel appearing for respective parties, dismissed the
original application observing as follows :
"4. It is an admitted fact that the applicant was
never appointed as a full time casual employee
and he started working in 1990 on 'Safai Shulk'
basis which was not even as part time casual
employee. Initially he was working on 'Safai
Shulk' basis at the rate of Rs.390/- per month
and his application for enhancement of the
charges was rejected even on 30.9.1994
(Annexure R-7). It is clearly mentioned in this
communication that it is not possible to appoint
him as full time or part time Safaiwala.
According to the Scheme of 1993, which came
into effect w.e.f. 1.9.1993, temporary status
was to be confirmed to only on those casual
labourers who were in employment on the date
of issue of the scheme and who had rendered
continuous service of one year which means
they were engaged for at least for a period of
240 days. Since the applicant was never
engaged as full time casual labourer, during
this period, he is not entitled for grant of
temporary status/regularization according to
this scheme."
5. Aggrieved by the order of dismissal of original application,
petitioner filed review petition, which was dismissed vide order dated
01.10.2014 (Annexure P/1-A).
6. Mr. Rahul Kumar, learned counsel for the petitioner would submit
that petitioner was engaged on the post of Safaiwala in the year 1991
and since then, he was continuously working. He contended that as per
scheme of Casual Labourers (Grant of Temporary Status and
Regularization) Scheme of Government of India, 1993 (for short 'Scheme
of 1993'), petitioner is entitled for at least grant of temporary status. He
also contended that in view of dictum of Hon'ble Supreme Court in case
of Umadevi (supra), petitioner is entitled for regularization because he
was appointed through valid recruitment proceeding. Before appointing
the petitioner, respondents have called the names from Employment
Exchange, conducted interview and thereafter, appointed the petitioner.
Petitioner was working as casual Safaiwala and he was not informed that
he has been engaged as part-time Safaiwala. It is further contended that
representations dated 11.02.1991 and 05.07.1994 were filed by the
petitioner only with an object to provide full time work as he was already
giving full time duty. Above representations cannot be interpreted
differently. He submits that respondents be directed to regularize the
petitioner on the post of Safaiwala. In support of his contention, he places
reliance upon the judgments passed by Hon'ble Supreme Court in case
of Rajbinder Singh v. State of Punjab and Others reported in (1988)
Supp SCC 428, State of Haryana and Others v. Piara Singh and
Others reported in (1992) 4 SCC 118, Umadevi (supra) and Hargur
Pratap Singh v. State of Punjab and Others reported in (2007) 13
SCC 292.
7. Per contra, Mr. Bhupendra Pandey, learned Central Government
counsel, appearing for respondent No.1 would submit that contention of
learned counsel for the petitioner that petitioner was engaged as casual
full time labourer is not correct. Though, names have been called from
Employment Exchange for engaging Safaiwala and petitioner was
appointed, but he was appointed as part-time Safaiwala on 'Safai Shulk'
basis for consolidated charge of Rs.390/- per month. He contended that
before he started the work, undertaking was given by the petitioner. After
the date of his joining, he was continuously working on safai shulk basis
and therefore, he made representation on 28.10.1991 to respondent No.4
stating that he was working as part-time Safaiwala, getting charges of
Rs.390/- per month and he may be permitted to work on daily wage
basis. The undertaking given by petitioner as also representation are
submitted along with reply stating that as the petitioner is only a part-time
worker, he is not entitled for relief as sought for by him for regularization
of his service.
8. We have heard the learned counsel appearing for the parties and
have perused the documents placed along with the pleadings.
9. Perusal of documents placed along with reply submitted by
respondents before this Court would go to show that petitioner agreed to
work of cleaning and sweeping on the basis of cleaning charges at the
rate of Rs.390/- per month. The said acceptance under the signature of
petitioner is dated 25.05.1990. After lapse of about one year, petitioner
submitted representation before respondent No.4 mentioning therein that
he is working as part-time Safaiwala and he may be permitted to work on
daily wage basis / daily rate basis.
10. Pleadings of the respondents supported by the documents are
not controverted by way of filing rejoinder by the petitioner. From the
documents placed on record by respondents along with reply to the writ
petition, it is appearing that petitioner prior to joining on the post was
aware that he was being engaged for cleaning and sweeping on the
basis of cleaning charges at the rate of Rs.390/- per month and also gave
undertaking in writing. He was not full time daily wage employee, and
therefore, submission of learned counsel for the petitioner that the
petitioner was not aware at the time of engagement / appointment, that
he was appointed as part-time worker, is not sustainable. Hence,
submission of learned counsel for the petitioner is repelled.
11. So far as relief sought for by the petitioner in this writ petition in
paragraph-10(iii) for grant of temporary status as per Scheme of 1993 is
concerned, clause 4 of Scheme of 1993 being relevant, same is
extracted herein-below :-
"4. Temporary Status - (i) Temporary status
would be conferred on all casual labourers who
are in employment on the date of issue of this
OM and who have rendered a continuous
service of at least one year, which means that
they must have been engaged for a period of at
least 240 days (206 days in the case of offices
observing 5 days week).
(ii) Such conferment of temporary status would
be without reference to the creation/availability
of regular Group 'D' posts.
(iii) Conferment of temporary status on a
casual labourer would not involve and change
in his duties and responsibilities. The
engagement will be on daily rates of pay on
need basis. He may be deployed anywhere
within the recruitment unit/territorial circle on
the basis of availability of work.
(iv) Such casual labourers who acquire
temporary status will not, however, be brought
on to the permanent establishment unless they
are selected through regular selection process
for Group 'D' posts."
12. The expression 'casual labourers' coupled with the expression
'who are in employment' in Clause-4 of the Scheme of 1993 would
indicate that they are full time casual labourers who have been employed
for the prescribed period on payment of wages. Admittedly, petitioner was
not engaged as full time worker on daily wages or monthly wages, but he
was engaged as part-time worker on consolidated charges of cleaning,
which is specifically mentioned as 'Safai Shulk' (cleaning charges). The
nature of job, on which petitioner is engaged, therefore, cannot be
equated with the nature of job of daily wage labourers / daily rated
workers.
13. The decisions upon which petitioner has placed reliance, in the
opinion of this Court, are distinguishable on facts.
14. The case of Rajbinder Singh (supra) is on the issue of
continuation of adhoc teachers till the regular appointments by the Public
Service Commission.
15. In case of Piara Singh (supra), Hon'ble Supreme Court has held
that adhoc / temporary employee should not be replaced by another
adhoc / temporary employee and they can be replaced only by regularly
selected employee.
16. The case of Hargur Pratap Singh (supra) is also on the issue of
adhoc arrangement and adhoc employment of petitioner therein was
protected till regular incumbents are appointed.
17. As we have discussed in preceding paragraphs, petitioner was
not full time casual labourer, but he was engaged for cleaning purpose as
Safaiwala on consolidated sweeping charges and not on wages, and
therefore, we do not find any infirmity or perversity in the order passed by
learned CAT.
18. The writ petition being devoid of any substance, is liable to be
and is hereby dismissed. No costs.
Sd/- Sd/-
(Arup Kumar Goswami) (Parth Prateem Sahu)
Chief Justice Judge
Yogesh
