Delhi High Court
Union Of India vs Ajay Kumar & Ors on 4 July, 2008
Author: A.K.Sikri
Reportable
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP (C) No. 14247/2006, WP (C) No. 8491/2006
WP (C) Nos. 17528-30/2006 and WP (C) No. 4806/2007
Reserved on : May 01, 2008
% Pronounced on : July 04, 2008
1. WP (C) No. 14247/2006
Union of India . . . Petitioner
through : Mr. H.K. Gangwani, Advocate
VERSUS
Ajay Kumar & Ors. . . . Respondents
through : Mr. M.K. Bhardwaj, Advocate
2. WP (C) No. 8491/2006
Union of India . . . Petitioner
through : Mr. J.P. Sharma, Advocate
VERSUS
Ashok Kumar & Ors. . . . Respondents
through : Mr. M.K. Bhardwaj, Advocate
3. WP (C) Nos. 17528-30/2006
Union of India & Ors. . . . Petitioners
through : Mr. R.V. Sinha, Advocate
VERSUS
Sunil & Ors. . . . Respondents
through : Mr. R.K. Saini, Advocate
WP (C) No. 14247/2006 & batch nsk Page 1 of 15
4. WP (C) No. 4806/2007
Union of India . . . Petitioner
through : Mr. H.K. Gangwani, Advocate
VERSUS
Giriraj Sharma . . . Respondent
through : Mr. R.N. Singh, Advocate
CORAM :-
THE HON‟BLE MR. JUSTICE A.K. SIKRI
THE HON‟BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local newspapers may be allowed
to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
A.K. SIKRI, J.
1. In all these writ petitions Union of India is the petitioner. Though
the respondents in all these cases are different and had filed separate
OAs before the Central Administrative Tribunal and all those OAs are
also allowed by the Tribunal by passing different orders, the question
of law which was raised before the Tribunal and before us in these
writ petitions is common. All these petitions were, accordingly,
clubbed together for hearing. Therefore, we propose to dispose of
all these petitions by this common judgment. Of course, after we
deal with the common issue, one additional issue which arises out of
one of the writ petitions would be dealt with thereafter. For the
sake of convenience, we make take note of the facts as they appear
in WP (C) No. 14247/2006.
2. The Central Government formulated a scheme on 10.9.1993 for
grant of temporary status to daily wagers. This scheme, inter alia,
stipulated that a daily wager who worked for 240 days in two years
shall be conferred temporary status, which would be without
reference to the creation/availability of the regular Group D post and
engagement will be on daily rates pay on need basis. It is not
necessary to give the details of the said scheme as we are not
concerned with that aspect. What is important for us is that the
respondents, who are 124 in number, were granted temporary status
under the said scheme. On the grant of the said status, which was
the result of directions given by the Tribunal in OAs filed by them
and which order was upheld till the Supreme Court, the respondents
started getting DA, HRA, CCA, etc. In terms of the DOPT‟s Office
Memorandum, the contribution towards GPF was also being
deducted on completion of three years continuous service, as is done
in the case of Group D employees. They were also given all kinds of
leave and holidays as admissible to temporary employees. They
were also given the benefit of counting of service for the purpose of
pension, Central Government Employees‟ Insurance Scheme, GPF,
Medical Aid, LTC and all allowances admissible to Group D
employees. In this manner, the respondents herein were treated as
temporary employees in Group D with regular pay scale and all the
benefits which are admissible to such employees. They were also
contributing towards GPF, as mentioned above. The exact benefits
under the Scheme of 1993, as contained in para 5 of Appendix
attached to the said Scheme, are as under :-
"(i) Wages at daily rates with reference to the minimum of
the pay scale for a corresponding regular Group „D‟
official including DA, HRA and CCA, (Special
Compensatory Allowance or Compensatory (City)
Allowance or Composite Hill Compensatory Allowance,
etc., i.e. only one of the compensatory allowance, more
beneficial to them, can be taken into account for the
purpose of calculating their wages - OM No. 3(2)/95-
E.II(B), dated the 15th January, 1996).
(iii) Benefits of increments at the same rate as applicable to a
Group „D‟ employee would be taken into account for
calculating pro rate wages for every one year of service
subject to performance of duty for at least 240 days
(206 days in administrative offices observing 5 days
week) in the year from the date of conferment of
temporary status.
(v) Leave entitlement will be on a pro rate basis at the rate
of one day for every 10 days of work. Casual or any
other kind of leave, except maternity leave, will not be
admissible. They will also be allowed to carry forward
the leave at their credit on their regularization. They
will not be entitled to the benefits of encashment of
leave on termination of service for any reason or on
their quitting service.
(vii) Maternity leave to lady casual labourers as admissible to
regular Group „D‟ employees will be allowed.
(ix) 50% of the service rendered under temporary status
would be counted for the purpose of retirement benefits
after their regularization.
(xi) After rending three years‟ continuous service after
conferment of temporary status, the casual labourers
would be treated on par with temporary Group „D‟
employees for the purpose of contribution to the
General Provident Fund, and would also further be
eligible for the grant of Festival Advance, Flood Advance
on the same conditions as are applicable to temporary
Group „D‟ employees, provided they furnish two sureties
from permanent Government servants of their
Department.
(xiii) Until they are regularized, they would be entitled to
productivity-Linked bonus/Ad hoc Bonus only at the
rates applicable to casual labourers.
6. No benefits other than those specified above will be
admissible to casual labourers with temporary status.
However, if any additional benefits are admissible to
casual workers working in industrial establishments in
view of provisions of Industrial Disputes Act, they shall
continue to be admissible to such casual labourers.
7. Despite conferment of temporary status, the services of a
casual labourer may be dispensed with by giving a notice
of one month in writing. A casual labourer with
temporary status can also quit service by giving a written
notice of one month. The wages for the notice period
will be payable only for the days on which such casual
worker is engaged on work."
3. However, The DOPT issued another OM dated 26.4.2004 which
pertains to the introduction of „New Pension Scheme - Modification
of Scheme for Grant of Temporary Status‟. The operative portion of
the Scheme is as under:-
"The undersigned is directed to say that the scheme for grant of
temporary status and regularization of casual works in Central
Govt. Offices formulated in pursuance of the judgment dated
16.2.90 of the Central Administrative Tribunal Principal Bench
in the case of Raj Kamal & Others vs. Union of India has been
reviewed in the light of introduction of New Pension Scheme
in respect of persons appointed to the Central Govt. service on
or after 1.1.2004 and it has been decided to modify the scheme
as under :-
(i) As the new pension scheme is based on defined
contributions, the length of qualifying service for the purpose
of retirement benefits has lost its relevance, no credit of casual
service, as specified in para 5(v) shall be available to the casual
labourers on their regularization against Group „D‟ posts on or
after 1.1.2004.
(ii) As there is no provision of General Provident Fund in
the new pension scheme, it will not serve any useful purpose
to continue deductions towards GPF from the existing casual
employees, in terms of para 5 (vi) of the scheme for grant of
temporary status. It is, therefore, requested that no further
directions towards General Provident Fund shall be effected
from the casual labourers w.e.f. 1.1.2004 onwards and the
amount lying in their General Provident Fund accounts,
including deductions made after 1.1.2004, shall be paid to
them.
2. The existing Guidelines contained in this Department‟s
OM No. 49014/2/86-Estt(C) dated 7.6.88 may continue to be
followed in the matter of engagement of casual workers in the
Central Government Officers."
4. After the introduction of the scheme vide the said OM dated
26.4.2004, it was decided that GPF of these respondents shall not be
deducted after 1.1.2004 from their salary. The respondents felt
dissatisfied with this OM as according to them the same disturbed
their established service conditions and that too by giving
retrospective effect which, in any case, was not permissible. This
contention has been accepted by the Tribunal in its impugned
judgment dated 26.12.2005. The Tribunal held that the prevailing
benefit which had been accorded to these employees could not be
curtailed by issuing executive instructions by giving retrospective
operation. The Tribunal also mentioned that this issue had been
settled by the Jaipur Bench of the CAT in its order dated 25.5.2005
passed in OA No. 284/2004 and the Government had not stated as
to whether the said order was challenged by filing any writ petition
in the High Court. The Tribunal also relied upon the judgment of
the Supreme Court as well and, therefore, while quashing orders
dated 26.4.2004, directed the petitioner herein to follow the
practice prevalent before issuing the said orders, by giving the
following direction :-
"7. We cannot avoid to (take - sic) note of another striking
feature appearing in the case of Union of India and Anr. vs.
Mohan Pal, etc., JT 2002 (Supp.1) SC 312 wherein the Hon‟ble
Supreme Court has also not approved the action of the
respondents, who had taken steps not to deduct the GPF
Contribution from the salary of the casual labourers.
8. Be it noted that the applicants are enjoying the benefits
whatever provided to the regular Group „D‟ employees. In
that view of the matter, following the observations of the
Division Bench orders passed by the Jaipur Bench and
Chandigarh Bench in OA No. 284/2004 and OA No. 60/2002
respectively and also the mandate of the Supreme Court in
Mohan Lal‟s case (supra), we cannot agree with the action
taken by the DoPT in issuing the impugned order dated
26.4.2004 by which the deduction of contribution towards the
GPF amount has been withdrawn. Accordingly, the order
dated 26.4.2004 is hereby quashed and the authorities are
directed to follow the practice whatever prevalent before
issuing of the aforesaid impugned order."
5. Thus, though it is not disputed that the Government could come out
with such a Scheme, as contained in OM dated 26.4.2004, in the
opinion of the Tribunal, it could not be applied retrospectively in
respect of those employees, like the respondents herein, who had
been conferred the temporary status and were contributing towards
GPF for the last number of years. We may note that in other OAs
decided by the Tribunal same view is taken. We may point out at
the outset that on earlier occasion also identical judgment was
rendered by the Tribunal in OA No. 1195/2006 on 30.11.2006.
Against that judgment, Union of India had filed WP (C) No.
2294/2007. However, the said writ petition was dismissed by a
Division Bench of this Court vide judgment dated 26.3.2007
accepting the reasoning given by the Tribunal that OM dated
26.4.2004 could not be applied retrospectively. In the short order
dated 26.3.2007, while dismissing the writ petition filed by UOI in
limine, this Court observed as under :-
"4. In our view, a right has vested in the Respondents by
virtue of their regularization on 31st March, 2004 and a
modification of 26th April, 2004 cannot apply retrospectively
particularly when the said modification does not say
specifically that it will apply retrospectively. It only modifies
the existing scheme and has to be understood to operate in
future and not retrospectively.
5. Accordingly, the CAT has rightly held that modification
by virtue of the OM dated 26th April, 2004 will not apply to
the Respondents (Petitioner herein). We fully concur with the
reasoning of the CAT."
6. It would also be necessary to point out at this stage that against the
order passed by the CAT, Jaipur Bench, which is noted in the
impugned judgment of the Tribunal, WP (C) No. 7041/2005 was
preferred by the Union of India. That writ petition was also
dismissed on 12.7.2007, confirming the orders of the Tribunal, in the
following manner :-
"2. The scheme called Casual Labours Grant of Temporary
Status and Regulation Scheme, 1993 which came into effect fro
1.9.1993 is applicable to casual labourers in employment of
Government of India and its attached subordinated offices
excluding Railways, Department of Telecommunication and
Department of Posts. It provides scheme for conferment of
temporary status to the casual labourers on fulfillment of the
conditions mentioned therein. Clause 5 (vi) reads thus :
"5(vi) after rendering three years continuous service
after conferment of temporary status, the casual
labourers would be treated on part with temporary
Group „D‟ employees for the purpose of contribution to
the General Provident Fund, and would also further be
eligible for the grant of Festival Advance/Flood Advance
on the same conditions as are applicable to temporary
Group „D‟ employees, provided they furnish two sureties
from permanent Government servants of their
Department."
3. The Central Administrative Tribunal considered the
Scheme of 1993 and also the scheme of 2004 and the
clarificatory letter dated 26.4.2004 and concluded that the
Scheme of 2004 and clarificatory letter dated 26.4.2004 do
not govern the employees who have been conferred with
temporary status by virtue of clause (vi) of Scheme of 1993.
4. On thoughtful reflection of the matter, we are of the
view that the consideration of the matter by the Central
Administrative Tribunal does not suffer from any error of law
justifying interference by us.
5. Writ petition is dismissed in limine."
7. Learned counsels for the petitioner tried to contend that the view
taken by this Court is not proper. Attempt was to persuade us to
refer the matter to the Full Bench. It was primarily argued that there
was no entitlement to regularization as decided by the Constitution
Bench of the Supreme Court in Secy., State of Karnataka & Ors. v.
Umadevi, (2006) 4 SCC 1. The respondents had not become the
members of service so far. Benefit of temporary status was given
vide one scheme by issuing administrative orders and such
administrative orders could always be superseded by other
administrative orders, more so when no right had accrued in favour
of the respondents.
We are not convinced with this argument. No doubt, there is
no right of regularization in favour of the respondents. However, by
virtue of the Scheme of 1993 the respondents have been conferred
with the temporary status. They have, therefore, acquired a
particular status and certain benefits which flow from that status,
namely, the regular pay-scale and other benefits like HRA, CCA,
holidays, leave, etc. By virtue of the said temporary status they also
started contributing towards GPF. Therefore, vested right accrued in
their favour. No doubt, it was by way of administrative directions in
the form of Scheme of 1993 and the Government has the right to
substitute or modify or revoke those administrative directions by
coming out with another Scheme, which is done vide OM dated
26.4.2004. However, that may apply only prospectively and would
not take away the vested right of those who are already enjoying the
benefit under the old scheme. We, therefore, are not inclined to
take a different view that what was taken by the earlier Bench as
well as the Rajasthan High Court.
8. We may point out at this stage that the Jaipur Bench of the CAT in its
judgment dated 25.5.2005 in OA No. 284/2004 went into this
question in greater detail and found that on grant of temporary
status under the Scheme of 1993, various benefits were conferred
upon such persons. After reproducing those benefits, which we have
taken note of in the former part of this judgment, the Tribunal
opined that by giving temporary status, these employees were
elevated to the status of temporary employees and even CCS
(Temporary Service) Rules became applicable to such employees.
The relevant portion of the judgment needs to be reproduced at this
stage, which is to the following effect :-
"A perusal of the Scheme extracted above, particularly para
5(vi) thereof, will go to show that it not only entitles the
temporary status employees with certain monetary benefits but
it also elevates status of temporary employees. Reading of
para 5(vi) would go to show that after an employee is
conferred with temporary status, and continuously renders 3
years of service after conferment of temporary status his status
further elevates at par with temporary Group D employees for
the purpose of contribution to GPF Scheme as part of earlier
pension scheme. Thus, an employee who has rendered
particularly 3 years of service, he attains the status of
temporary government employee. Meaning thereby that he
holds a civil post under the Government of India, though as a
temporary employee and from this very scheme itself, it is also
clear that if the service of such temporary status employees are
to be dispensed with then one month‟s notice is required to be
served on the casual employees with temporary status which is
pari-passu with the provisions existing in the CCS (Temporary
Service) Rules, applicable to the temporary government
servants. Further para 5(v) of the Scheme also shows that 50%
of the service rendered as temporary status is also to be
counted for the purpose of retiral benefits. In a way, after a
person is conferred with temporary status, he becomes entitled
to certain benefits with regard to the counting of service for
the purpose of retiral benefits, obviously under the old
Scheme. However, if he has rendered further 3 years of service
with temporary status, he is further elevated as a temporary
employee and he gains in status. So, such employees like
applicants would be covered under the old Scheme of the
Government of India and not under the new Scheme of
Pension introduced by letter dated 7.1.2004. Letter dated
26.4.2004 shows that only casual employees are not to be
asked to pay contribution towards GPF but it does not apply
to those employees who have attained the status of temporary
employees though by virtue of Scheme of 1.9.1993. Thus, the
interpretation of the Scheme of 7.1.2004 and as amplified by
letter dated 26.4.2004 does not govern the employees who
have been conferred with temporary status and by virtue of
clause (vi), they have further attained the status of temporary
Group D employees. Thus, we find that there is sufficient merit
in the O.A. and the respondents cannot invoke the instructions
dated 26.4.2004 against these applicants. Though the title of
the letter dated 26.4.2004 shows that there is modification of
the scheme of grant of temporary status but by this letter, the
Government cannot modify Scheme to the detriment of the
employees who have already earned the vested right under the
old rules and those vested right cannot be taken away by
retrospective operation of the Scheme by issuance of
administrative instructions by the DOPT. It is well settled that
the administrative instructions which have the effect of
modifying the original scheme cannot be allowed to stand.
Hence we are of the considered view that these instructions as
contained in the letter dated 26.4.2004 are not applicable in
the case of the applicants. The applicants are entitled to
contribute towards the GPF Scheme, part of the Old Pension
Scheme, as envisaged under the Original Scheme of 1.9.1993."
9. Influenced by all these considerations, we are of the view that there
is no merit in all these writ petitions. With this, we now take up for
discussion the additional issue which arises in WP (C) No. 8491/2006.
In this case, in addition to the direction that the applicants in the said
OA (respondents in the writ petition) would be allowed contribution
of GPF, further direction is given „to consider the cases of applicants
for regularization, within a period of three months....‟. We agree
with the submission of Mr. J.P. Sharma, learned counsel for the
petitioner/UOI, that this direction needs to be set aside in view of the
judgment of the Supreme Court in Umadevi (supra). This writ
petition is, therefore, allowed partly to this limited extent and the
direction regarding contribution of GPF of the Tribunal is
maintained. Other writ petitions are dismissed. In all these four
petitions, the petitioners shall pay cost of Rs.5,000/- each to the
respondents.
(A.K. SIKRI)
JUDGE
(J.R. MIDHA)
JUDGE
July 04, 2008
nsk
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP (C) No. 8491/2006
Reserved on : May 01, 2008
% Pronounced on : July , 2008
Union of India . . . Petitioner
through : Mr. J.P. Sharma, Advocate
VERSUS
Ashok Kumar & Ors. . . . Respondents
through : Mr. M.K. Bhardwaj, Advocate
CORAM :-
THE HON‟BLE MR. JUSTICE A.K. SIKRI
THE HON‟BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local newspapers may be allowed
to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
A.K. SIKRI, J.
For orders, see WP (C) No. 14247/2006.
(A.K. SIKRI)
JUDGE
(J.R. MIDHA)
JUDGE
July , 2008
nsk
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP (C) Nos. 17528-30/2006
Reserved on : May 01, 2008
% Pronounced on : July , 2008
Union of India & Ors. . . . Petitioners
through : Mr. R.V. Sinha, Advocate
VERSUS
Sunil & Ors. . . . Respondents
through : Mr. R.K. Saini, Advocate
CORAM :-
THE HON‟BLE MR. JUSTICE A.K. SIKRI
THE HON‟BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local newspapers may be allowed
to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
A.K. SIKRI, J.
For orders, see WP (C) No. 14247/2006.
(A.K. SIKRI)
JUDGE
(J.R. MIDHA)
JUDGE
July , 2008
nsk
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP (C) No. 4806/2007
Reserved on : May 01, 2008
% Pronounced on : July , 2008
Union of India . . . Petitioner
through : Mr. H.K. Gangwani, Advocate
VERSUS
Giriraj Sharma . . . Respondent
through : Mr. R.N. Singh, Advocate
CORAM :-
THE HON‟BLE MR. JUSTICE A.K. SIKRI
THE HON‟BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local newspapers may be allowed
to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
A.K. SIKRI, J.
For orders, see WP (C) No. 14247/2006.
(A.K. SIKRI)
JUDGE
(J.R. MIDHA)
JUDGE
July , 2008
nsk
