Delhi High Court
Kuntesh & Anr vs Union Of India & Anr on 1 March, 2016
Author: Sanjiv Khanna
$~2.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION(CIVIL) No. 11934/2015
Date of decision: 1st March, 2016
KUNTESH & ANR. ..... Petitioners
Through Mr. S.K. Gupta and Mr. Vikram
Singh, Advocate.
Versus
UNION OF INDIA & ANR ..... Respondent
Through Mr. Kishan Nautiyal, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAJMI WAZIRI
SANJIV KHANNA, J.
We have heard the learned counsel for the petitioner and
respondents and with their consent have taken up the writ petition for
final disposal.
2. Kuntesh and Mohit Kumar are widow and son of late Ram Kishan.
They had filed OA No.144 of 2013 for quashing and setting aside the
communication dated 16th October, 2012 and for direction that Mohit
Kumar may be considered for compassionate appointment.
3. The impugned order passed by the Central Administrative
Tribunal, Principal Bench dated 28th March, 2014, dismisses the
aforesaid OA and has declined the prayers observing that the deceased
Ram Kishan was a casual employee, who was conferred temporary status
with effect from 1st December, 1993 in accordance with Casual
Labourers (Grant of Temporary Status and Regularization) Scheme of
the Government of India, 1993. He was not regularized till he expired
on 28th March, 2012 and not being a regular employee, Mohit Kumar,
petitioner No.2 is not eligible for being considered for appointment on
compassionate basis. The respondents have relied upon their office
order dated 4th May, 2000, which stipulates that only a dependent family
member of a Government servant, who has died while in service, retired
on medical grounds, etc. is eligible for appointment on compassionate
basis. Note II of the said office order dated 4th May, 2000 defines the
term "Government servant" as under:-
"Note II "Government servant" for the purpose
of these instructions means a Government
servant appointed on regular basis and not one
working on daily wage or casual or apprentice
or ad-hoc or contract or re-employment basis."
It may also be relevant to take into consideration Note III of the said
office order, which is as under:-
"Note III "Confirmed work-charged staff" will
also be covered by the term „Government
servant‟ mentioned in Note III above."
4. A reading of Note II would show that it draws a distinction
between Government servant appointed on regular basis and
Government servant, who is working on daily wages, casual, apprentice,
ad-hoc, contract or on re-employment basis. Note III states that
"confirmed work-charged staff" would be covered by the term
"Government servant". We perceive and believe that for the purpose of
Note II, Government servant appointed on regular basis would be one
who does not fall in the excluded category i.e. is not a daily wager,
casual worker, apprentice, ad-hoc or a contractual employee or an
employee employed on re-employment basis. It is obvious that the term
"Government servant" would include the "confirmed work-charged staff".
5. Casual Labourers (Grant of Temporary Status and Regularization)
Scheme of the Government of India, 1993 has been quoted in the
impugned judgment and states that it would be applicable to casual
workers, who were working when the Scheme came into force with
effect from 1st September, 1993 in the Ministries/Departments of
Government of India and their attached and subordinate offices, but shall
not be applicable to the casual workers in Railways, etc. It specifically
stipulates that casual labourers, who were in employment on the date of
issue of the said OM and had rendered continuous service of at least one
year, which means that they had been engaged for a period of at least
240 days or 206 days in the case of offices observing five day week,
would be entitled to the said benefit. Conferment of temporary status
would be without reference to creation/availability of regular Group „D‟
posts. However, such casual labourers, who acquire temporary status,
would not be brought on record the permanent establishment unless they
were selected through regular selection process for Group „D‟ posts.
6. The Scheme specifically envisaged that the temporary status
would entitle the said workers to get minimum pay scale of
corresponding regular Group „D‟ post including DA, HRA and CCA etc.
as held by the OM dated 15th January, 1996. They shall be entitled to
increments as applicable to Group „D‟ employees taking into account pro
rata wages for every one year of service. Such employees were also
entitled to leave on pro rata basis, maternity leave and 50% of the service
rendered under temporary status would be counted for the purpose of
retirement benefits after their regularization. However, after rendering
three years‟ of continuous service post grant of temporary status, such
employees would be treated at par with temporary Group „D‟ employees
for the purpose of contribution to the General Provident Fund and
eligible for grant of Festival Advance, Flood Advance, etc. Until they
are regularised, they would be entitled to productivity linked bonus/Ad-
hoc bonus only at the rates applicable to casual labourers. Despite
conferment of temporary status, their services could be dispensed with
by giving a notice of one month in writing. Paragraph 8 of the aforesaid
Scheme stipulated the procedure of filling up of Group „D‟ posts and for
induction of casual labourers with temporary status as "regular
employees".
7. A reading of the aforesaid stipulations would clearly show that the
status of deceased Ram Kishan as a temporary worker could not be
equated and treated at par with a daily wager or a casual employee. He
was also not an ad-hoc or a contractual employee. Though not conferred
status of "regular employee", deceased Ram Kishan was certainly in a
much better and favourable position as compared to a daily wager,
casual, ad-hoc or contractual employee. What is more pertinent is the
fact that the deceased Ram Kishan had started working with the
respondents in the year 1988. Thereafter, as noticed above, he was
conferred temporary status on 17th December, 1993 and with effect from
4th February, 1997, was treated as a Group „D‟ employee for the purpose
of General Provident Fund etc. It is a case of the petitioners that
deceased Ram Kishan should have been regularised in normal course
much before his death on 28th March, 2012, but this unfortunately did
not happen. The deceased had made representations dated 16 th
September, 2009 and 4th March, 2011, requesting that he should be
regularised.
8. The respondents in the counter affidavit filed before us have
accepted that one Prem Lata Devi, legal heir of a temporary status
employee was granted compassionate appointment, but it is claimed that
this was an erroneous appointment and, therefore, would not confer any
right to the petitioners herein. However, we notice that there is a
decision of this Court dated 4th November, 2015 in W.P.(C) No.
10382/2015, titled Union of India & Ors. Vs. Babita, wherein a
temporary employee, who had worked for 20 years, had died in service
and request for compassionate appointment was declined. The Tribunal
in the said case had allowed the OA and had directed the Union of India
to consider the legal heir‟s case for compassionate appointment. The
High Court in the said order has referred to the nature and character of
temporary status under the aforesaid Scheme and has observed that once
the temporary worker had rendered three years of continuous service, he
was entitled to certain benefits and was virtually treated in similar
manner as regular employees. The High Court has also referred to the
aim and objective of compassionate appointment, which is to provide
succour and help to the family of the deceased employee, who has died
in harness, to get over penury and financial hardship as a result of the
untimely death. It is stated that age of Kuntesh is 39 years and Mohit
Kumar is slightly more than 19 years.
9. In view of the aforesaid discussion, we would allow the present
writ petition with a direction to the respondents to consider the petitioner
No.2, Mohit Kumar, for compassionate appointment in accordance with
the scheme and as per law, which means that the application would be
examined under the relevant scheme and consideration would not be
rejected on the ground that the deceased Ram Kishan was not a regular
employee. Other aspects, whether the petitioner No.2 deserves and is
entitled to compassionate appointment etc. are not matters, which we
have examined and considered.
10. The writ petition is partially allowed to the extent indicated above.
In the facts of the present case, there will be no order as to costs.
SANJIV KHANNA, J.
NAJMI WAZIRI, J.
MARCH 01, 2016
NA
