Nagina Kumar vs Central Public Works Department & ...
2001 Latest Caselaw 613 Del

ORDER

B.N. Chaturvedi, J.

1. The petitioner was working as a Peon on daily wages under respondent no.2. He was appointed in that capacity on 8.3.1999. From 1993 onwards till 1995.96 he worked for more than 240 days during the course of each year. He sought grant of temporary status in pursuance of Office Memorandum dated 10.9.1993 issued by Ministry of Personnel, P.G. and Pensions, Department of Personal and Training, Government of India, regularisation and payment of wages on par with his counter-parts employed on regular basis. He was, however, denied the same. He, therefore, approached Central Administrative Tribunal, Principal Bench, New Delhi with O.A. No. 860/97 praying for grant of temporary status regularisation and parity of wages with peons employed on regular basis.

2. The respondent 1 & 2 raised the plea that since the petitioner, who was employed as unskilled worker from 11.3.1993 on daily wages and was being paid from the administrative contingencies, had not rendered one year's continuous service by 10.9.1993 when the Office Memorandum dated 10.9.1993 came into force, he was not entitled to the benefit of temporary status. The scheme, it was pleaded, was meant for casual workers and muster roll workers only and not for daily wagers and, therefore, temporary status could not have been granted to the petitioner. It was maintained that the wages of the petitioner was being rightly paid at the approved rate of Rs.77.40 per day inclusive of payment for weekly days of rest as he was not entitled to payment of wages equal to those employed on regular basis.

3. The reliefs sought by the petitioner were declined by the Tribunal and his application was dismissed for the reasons as stated hereunder:

"It is clear from the pleadings that the applicant being neither a casual worker nor a muster roll worker, is not entitled for being granted temporary status or for being paid salary at par with his regular counterparts. Since the applicant is only a daily wage worker he has been rightly paid the approved rates of the Government of N.C.T Delhi. The Hon'ble Supreme Court has also held in State of Haryana and others Vs. Jasmer Singh and others. that daily rated workers are not required to possess qualifications prescribed for regular workers nor have they to fulfill age requirement their selection is not as rigorous as that of regular employees. They are not liable for transfer or subject to disciplinary jurisdiction of the employer. Therefore daily wage employees cannot be treated at par with regular employees holding regular post. They cannot claim regular pay. This being the position, the applicant's request for regular pay on par with that of regular employees and for temporary status or for regularisation cannot be granted. The application therefore is dismissed. We do not order any costs.

                 Sd/-                                 Sd/-
      (Mrs. Shanta Shastry)                   (V. Rajagopala Reddy)
         Member (A)                             Vice Chairman(J)

 

 4. We have heard arguments on both the sides. We have also perused the record.   

 

 5. On May 25, 2000 while issuing notice to respondent 1 & 2 to show cause, following order was passed:  

  

"Notice to respondents 1 and 2 to show cause why rule nisi be not issued confined to the extent as to whether the petitioner is entitled to the statues of a temporary employee as the learned counsel does not press parity of pay between the petitioner and other regular employees holding regular posts, returnable on 8th November, 2000.

Sd/-       

C.M.Nayar, J.

Sd/-       

May 25,2000 R.S.Sodhi, J."

6. The order dated May 25, 2000 makes it evident that the hearing is to be confined to the sole issue if the petitioner is entitled to temporary status, In the circumstances, the petitioner's case relating to regularisation and parity of wages need not be examined. As a matter of fact, grant of temporary status automatically entails the incidence of minimum pay in the pay scale of regular workers including annual increments plus Dearness Allowance and regularisation as well, in due course. It is probably for this reason that the learned counsel for the petitioner sought to confine his submissions to the relief for grant of temporary status only.

7. The controversy whirls around the question of applicability or otherwise of O.M. dated 10.9.1993 in relation to daily wagers or daily rated workers. To find an answer to this question, the O.M. dated 10.9.1993 may be noticed first. For the sake of references the O.M. and relevant part of the Appendix thereto are reproduced:

  
 

 OFFICE MEMORANDUM

 


Subject:   Grant of temporary status and regularisation of Casual Workers - formulation of a scheme in                pursuance of the CAT, Principal Bench, New Delhi, judgment dated 16th February 1990 in                   the case of Shri Raj Kamal and others Vs. UOI. 

 

The guidelines in the matter of recruitment of persons on daily-wages basis in Central Government offices were issued vide this Department's O.M.No. 49014/2/86-Estt(C) dated 7.6.1988. The policy has further been reviewed in the light of the judgment of the CAT, Principal Bench, New Delhi delivered on 16.2.1990 in the writ petition filed by Shri Raj Kamal and others Vs. Union of India and it has been decided that while the existing guidelines contained in O.M. dated 7.6.1988 may continue to be followed, the grant of temporary status to the casual employee, who are presently employed and have rendered one year of continuous service in Central Government offices other than Department of Telecom, Posts and Railways may be regulated by the scheme as appended.

2. Ministry of Finance etc. are requested to bring the scheme to the notice of appointing authorities under their administrative control and ensure that recruitment of casual employee is done in accordance with the guidelines contained in O.M. dated 7.6.1988. Cases of negligence should be viewed seriously and brought to the notice of appropriate authorities for taking prompt and suitable action."

APPENDIX

"Department of Personnel & Training, Casual Labourers (Grant of Temporary Status and Regularisation) Scheme

1. This scheme shall be called "Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India, 1993".

2. This scheme will come into force w.e.f. 1.9.1993.

3. This scheme is applicable to casual labourers in employment of the Ministries/ Departments of Government of India and their attached and subordinate offices, on the date of issue of these orders. But it shall not be applicable to casual workers in Railways, Department of Telecommunication and Department of Posts who already have their own schemes.

4. Temporary status

i) Temporary status would be conferred on all casual labourers who are in employment on the date of issue of this O.M. 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 any change in his duties and responsibilities. The engagement will be on daily rates of pay on need basis. He may be deployed any where within the recruitment unit/territorial circle on the basis of availability of work.

iv) Such casual labourers who acquire temporary status will into however, be brought on to the permanent establishment unless they are selected through regular selection process for Group 'D' posts.

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8. Two fold pleas were raised on behalf of respondents before the Tribunal, namely; first, that the petitioner had not completed one year's continued service on the date when the said Office Memor came to be applicable and second, that the scheme was applicable in relation to casual workers and muster roll workers only and the petitioner being a daily wage employee was not entitled to claim the benefit of temporary status there under. The Tribunal has omitted to record its finding on the first point and it rather proceeded to dispose of the application on the second point only.

9. To deal with the first point, apart from O.M. dated 10.9.199, yet another Office Memorandum dated 7.6.1988 concerning policy review on recruitment of casual workers and daily wagers may also be taken note of. It provided that no recruitment on daily wages should be made for work of regular nature and the daily wagers may be employed only for work which is of 'casual or seasonal or intermittent nature or for work which is not of full time nature, for which regular posts cannot be created'.

10. Sub-para (iii) of Para 4 of reply to the petitioner's application before the Tribunal, discloses that the applicant has been performing the duties of a regular nature. It would thus be noticed that in spite of O.M. dated 7.6.1988 prohibiting recruitment of persons on daily wages for works of regular nature, the respondents proceeded to employ the petitioner in contravention thereto and allowed him to perform to work of a regular nature continuously for 283 days, 264 days and 266 days during the years 1993-94, 1994-95 and 1995-96 respectively. Vide letter dated 18.6.1996 from respondent no. 2 to the Deputy Director, Admn. (II) O.O. DG (Works) CPWD, Nirman Bhawan, New Delhi, the case of the petitioner was referred for a decision if temporary status could be granted to him, if so, from what date. In that letter there is clear mention of the petitioner having been employed as casual labour working in the office of respondent no.2 since 11.3.1993 till date without any break for more than 206 days per year (being 5 working days in a week).

11. In Daily Rated Casual Labour employed under P&T Department through Bhartiya Dak Tar Mazdoor Manch Vs. UOI & Ors. the persons on whose behalf the petition was filed had been working as daily rated casual labour in the Posts and Telegraph Department as unskilled, semi-skilled and skilled workers for the last 10 years and no scheme had been formulated by the Union of India to absorb them regularly in its service. The Hon'ble Supreme Court, apart from examine their entitlement to minimum pay in the pay scale of the regular workers plus Dearness Allowance minus increments from the date of filings of the writ petition before it, dealt with the claim of their regularisation and ordered :

"We, therefore, direct the respondents to prepare a scheme on a rational basis for absorbing as far as possible the casual labours who have been continuously working for more than one year in the Posts and Telegraphs Department."

12. In an earlier decision in Dhirender Chamoli v. State of U.P. where a number of persons were engaged by Nehru Yuvak Kendras as casual workers on daily wage basis and continued to work in that capacity for a number of years but were denied regularisation on the plea of there being no sanctioned posts, the apex court lamented:

"We hope and trust that posts will be sanctioned by the Central Government in the different Nehru Yuvak Kendras, so that these persons can be regularised. It is not at all desirable that any management and particularly the Central Government should continue to employ persons on casual basis in Organizations which have been in existence for over 12 years."

13. Based on the decision in Daily Rated Casual Labourer employed under Posts & Telegraphs Department through Bhartiya Dak Tar Mazdoor Manch case (supra), in U.P. Income Tax Department Contingent Paid Staff Welfare Association v. Union of India and others, 1987 ((Supp) Supreme Court Cases 658, the Apex Court while directing payment of wages to the workmen employed as the contingent paid staff, doing the work of Clause IV employees at the rates equivalent to the minimum pay in the pay scale of the regularly employed workers in the corresponding cadre plus D.A./ADA but without any increments, issued a similar direction to prepare a scheme for absorbing as far as possible the contingent paid staff of the Income Tax Department who had been continuously working for more than one year as Class IV employees in the Income Tax Department.

14. In the present case, the petitioner has been in continuous employment of the respondent for more than one year. He is not pressing for regularisation. He is simply seeking temporary status. Of course, the Office Memo dated 10.9.1993 appears to be in the nature of one time measure to grant temporary status to all such casual employees who had been in continuous employment for one year by the date of issue there of , such benefit of temporary status cannot be refused to the petitioner merely on a technical ground that he had not yet completed one year's of service when the said office Memo came into force. There appears no rational basis to restrict the benefit of the scheme embodied in Office Memo dated 10.9.1993 only to those who had been appointed prior to 10.9.1993 and had completed one year's service by that date. The petitioner was appointed for work of regular nature in spite of prohibition on such appointment in view of Office Memorandum dated 7.6.1998 and he was allowed to perform the work of regular nature continuously without any break for more than required number of days in a particular year for grant of temporary status.

15. The question relating to applicability of Office Memorandum dated 10.9.1993 had come up for consideration of the Central Administrative Tribunal, Principal Bench earlier in a number of other cases, wherein grant of temporary status was sought on the basis thereof. This is so evident from an order dated 16.3.1998 of a Division Bench of this Court in CW 512 & CM 882/98, which is reproduced below:

"By this petition the Government has challenged the order of the Central Administrative Tribunal dated 11th April, 1997 whereby the termination orders issued with respect to the respondents were quashed and the Government was directed to re-engage the respondents herein and grant them temporary status as well as all other benefits in accordance with the Scheme of the Government. The learned counsel for the petitioner herein i.e. the Government mainly relies on the fact that the Scheme formulated in the year 1993 was only meant to deal with the cases up to the said period and it is not a continuing Scheme. On the other hand our attention has been drawn to various orders of the Tribunal, some of them have been passed by Division Benches, holding that the Scheme was an on going Scheme. The respondents herein were admittedly rendering service in the departmental canteen run by the Ministry of Petroleum and Natural Gas. The Tribunal has held that the respondent No. 1 and 2 had worked for more than 240 days. In view of these facts, we are not inclined to interact with the decision of the Tribunal."

When the benefit of the scheme in regard to temporary status has been extended to some of the employees earlier on the basis of the directions issued by the Central Administrative Tribunal on the ground that the Scheme instead of being one time measure was an on going Scheme, there is no justification to decline the relief of temporary status to the other similarly situated persons like the petitioner.

16. As a matter of fact, the relief of temporary status to the petitioner was declined not on the ground that he had not completed one year's service as on 10.9.1993 when the Office Memorandum in question had come into force, rather it was refused for the reason that he was 'neither a casual worker nor a muster roll worker' to be covered under the said Office Memorandum. No doubt, the scheme is stated to be applicable to 'casual labours' who are in the employment on the date of issue thereof and who had rendered continuous service of at least one year, it can by no stretch of imagination be held to exclude daily rated workers or daily wagers. This is so evident from a bare reading of the Office Memorandum dated 10.9.1993. It appears that the expressions 'daily wagers' and 'casual workers' have been used in the said Office Memorandum inter changeably without any real difference for the purpose of grant of temporary status. Of course, in literal sense, the expression 'daily wagers' and 'casual labours' denote different meaning but such a differences poses no problem as far as application of Office Memorandum in question is concerned. A 'casual workman' is one who is doing odd jobs and is employed as and when so required. Where the employment is of a fugitive or transitory nature it would appear to be casual but where it has any degree of permanency, or where, though short in period, it nevertheless recurs at more or less certain intervals, it is not casual. (See (1908) 2 K.B. 279). A casual labourer is distinguishable from a seasonal labourer that is, a man whose employment is at certain seasons of the year, such as a thatcher or a woodsman. (See (1919) 12 K.B. 196). Where a workman is engaged incidently and occasionally, and for limited and temporary purpose, he is a casual employee.

17. On the other hand, a daily labourer/wager is one, who by the terms of his engagement or the course of his labour, is not only a labourer, but one who works every week - day and day by day. (See (1918) 87 L.J.K.B. 1119, (1121). Halsbury, Vol. 32 (122)).

18. Thus, in literal sense, a daily rated worker or daily wager stands on a better footing than a casual labour. In any case respondent's letter dated 18.6.1996 suggests that petitioner was engaged as casual labour. Therefore, it would be unjust and unreasonable to deny the petitioner - a daily wager, the benefit of scheme contained in Office Memorandum dated 10.9.1993 on the ground that he is not covered under the category of a casual labourer or a muster roll worker. A muster roll worker simply signifies a category of daily wagers/daily rated workers and casual labours listed on the rolls of a Department concerned. In the circumstances, the view taken by the Tribunal to decline the relief of temporary status to the petitioner cannot be sustained and the impugned judgment is, therefore, liable to be set aside.

19. Accordingly, the petition succeeds. Rule is made absolute. Direction is issued to the respondents 1 & 2 to consider petitioner for grant of temporary status from the date he became eligible under office Memorandum dated 10.9.1993 and to pass appropriate orders thereon within three months from receipt of this order. The petition stands disposed of in these terms.