Kerala High Court
Sabu C vs Union Of India on 24 February, 2025
Author: Amit Rawal
Bench: Amit Rawal
OP(CAT) 174/2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
MONDAY, THE 24TH DAY OF FEBRUARY 2025 / 5TH PHALGUNA, 1946
OP (CAT) NO. 174 OF 2023
AGAINST THE ORDER DATED 09.10.2023 IN OA NO.197 OF 2023 OF CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
PETITIONER/APPLICANT:
SABU C., AGED 54 YEARS, S/O. BHASKARAN,
PART TIME CASUAL LABOUR, CENTRAL G.S.T.,
CENTRAL EXCISE KOTTAYAM DIVISION, KERALA-686001,
RESIDING AT CHENGAZHATHU PARAMPIL,
KOLLAD P.O., KOTTAYAM, KERALA-., PIN - 686004
BY ADVS.
KALEESWARAM RAJ
THULASI K. RAJ
APARNA NARAYAN MENON
MANJIMA
RESPONDENTS/RESPONDENTS:
1 UNION OF INDIA, REPRESENTED BY THE SECRETARY,
MINISTRY OF FINANCE, NORTH BLOCK,
NEW DELHI, PIN - 110001
2 SECRETARY, DEPARTMENT OF PERSONNEL & TRAINING,
MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES & PENSIONS,
NEW DELHI, PIN - 110001
3 SECRETARY, DEPARTMENT OF EXPENDITURE,
MINISTRY OF FINANCE, NORTH BLOCK,
NEW DELHI, PIN - 110001
4 THE CHAIRMAN, CENTRAL BOARD OF EXCISE AND CUSTOMS,
MINISTRY OF FINANCE, NORTH BLOCK,
NEW DELHI, PIN - 110001
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5 THE CHIEF COMMISSIONER, CENTRAL EXCISE AND CUSTOMS,
CENTRAL REVENUE BUILDING, I.S PRESS ROAD,
KOCHI, PIN - 682018
6 THE COMMISSIONER, CENTRAL EXCISE AND CUSTOMS,
I.S PRESS ROAD,
KOCHI, PIN - 682018
BY ADVS. S. BIJU
OTHER PRESENT:
SRI.PRENJITH KUMAR CGC
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 24.02.2025, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
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"CR"
JUDGMENT
K. V. JAYAKUMAR, J
The present OP(CAT) is preferred impugning the order of the
Central Administrative Tribunal in O.A.No.197/2023 dated 09.10.2023,
whereby the following claim of the petitioner/applicant has been rejected by
the Tribunal.
"i) To declare that the applicant is entitled to get
regularization in service as Part Time Casual Labourers from
their initial date of appointment with all consequential
benefits including arrears of salary, extending the benefit of
Annexure A2 and Annexure A3;
ii) To direct the respondents 1,5 and 6 to pass
orders regularizing the service of the applicant as Part Time
Casual Labourers from his-initial date of appointment with all
consequential benefits including arrears of salary extending
the benefit of Annexures A2 and Annexure A3;
iii) To direct the respondents 1 to 7 to disburse the
arrears of salary to the applicants in the scale of pay in par
with regular Part Time Casual Labourers in the revised rate,
immediately on regularizing the service of the applicant;
iv) To issue such other appropriate orders or
directions that this Hon'ble Tribunal may deem fit, just and
proper in the circumstances of the case;
v) To grant the costs of this Original Application."
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2. The petitioner/applicant, Sabu C., is a part time Casual
Labourer, initially engaged on 06.10.1997. He has been continuing as a
Casual Labourer for the past 25 years. The applicant placed reliance on
Annexure-A2 order of the Madras High Court dated 20.09.2011, wherein, it
was directed to frame a scheme for regularizing temporary status to the
employees in the Central Excise Department. The case of the applicant was
that, he ought to have been regularized with effect from the date of his first
engagement. The petitioner/applicant has also referred a scheme of 1993,
even though he was not a part time Casual Labourer during the currency of
that scheme and also relied on Annexure-A4 scheme, framed by the
Principal Chief Commissioner of GST and Central Excise, TamilNadu and
Puducherry, on the basis of which, services of the Part Time Casual
Labourers were regularized.
3. Even though the petitioner/applicant submitted
representations claiming the aforementioned relief, that was turned down by
the respondents.
4. Thereafter, the petitioner/applicant approached the
Tribunal and instituted OA No.443/2020. The said OA was disposed of as
per Annexure-A6 order dated 13.01.2021 directing the respondents to
consider and dispose of the application within a time frame. Even though
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the respondents had considered the claim for regularization but,
petitioner/applicant was not regularized. The petitioner/applicant was also
called for a personal hearing on 26.09.2022 but was not granted
regularization.
5. The petitioner again approached the Tribunal seeking
declaration that, he is entitled to be regularized in service as Part Time
Casual Labourer from the date of appointment with all consequential
benefits, including arrears of salary, extending the benefit of Annexures-A2
and A3.
6. The contention of the petitioner/applicant was that, even
though he possesses all necessary qualifications required for regularization,
for no fault of his, has been excluded from the list. His SSLC book went
missing at the time of consideration of his regularization. Later, on
15.11.2021, obtained a duplicate copy of SSLC book (Annexure-A7).
Annexure-A7 indicates that, he passed SSLC in March 1985. The delay in
production of his SSLC book should not be taken as a ground for rejecting
the claim for regularization.
7. The contention of the respondents before the Tribunal
and before us is that, the applicant was engaged in 1997 on Adhoc basis. It is
a Part Time job for doing cleaning of office building and premises, toilets,
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keeping drinking water in Sections, gardening etc., which are not full time in
nature.
8. The Tribunal, noticing the rival contentions of the
parties, dismissed the claim of the petitioner placing reliance on the decision
reported in Secretary, State of Karnataka v. Umadevi [2006(4) SCC
1].
9. The learned counsel for the respondents supported the
order of the Central Administrative Tribunal.
10. Adv.K.S.Prenjith Kumar, the Central Government
Counsel submitted that, no interference is warranted in this matter.
11. On the other hand, Adv.Kaleeswaram Raj, learned
counsel for the petitioner submitted that the petitioner/applicant had been
continuing as Part Time Casual Labourer for more than 25 years and his
claim for regularization was rejected based on the Full Bench decision of the
Apex Court in Umadevi's case (supra).
12. We have heard the rival submissions of the counsel for
the parties and appraised the paper book.
13. Adv.Kaleeswaram Raj has invited the attention of this
Court to the judgment of the Honourable Apex Court in Jaggo v. Union of
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India and Others [2024 SCC Online SC 3826]. In paragraph 26 of
Jaggo's case (supra), the Apex Court observed as under:
"26. While the judgment in Uma Devi (supra)
sought to curtail the practice of backdoor entries and ensure
appointments adhered to constitutional principles, it is
regrettable that its principles are often misinterpreted or
misapplied to deny legitimate claims of long-serving
employees. This judgment aimed to distinguish between
"illegal" and "irregular" appointments. It categorically held
that employees in irregular appointments, who were engaged
in duly sanctioned posts and had served continuously for
more than ten years, should be considered for regularization
as a one-time measure. However, the laudable intent of the
judgment is being subverted when institutions rely on its
dicta to indiscriminately reject the claims of employees, even
in cases where their appointments are not illegal, but merely
lack adherence to procedural formalities. Government
departments often cite the judgment in Uma Devi (supra) to
argue that no vested right to regularization exists for
temporary employees, overlooking the judgment's explicit
acknowledgment of cases where regularization is
appropriate. This selective application distorts the
judgment's spirit and purpose, effectively weaponizing it
against employees who have rendered indispensable services
over decades.
27. In light of these considerations, in our opinion,
it is imperative for government departments to lead by
example in providing fair and stable employment. Engaging
workers on a temporary basis for extended periods,
especially when their roles are integral to the organization's
functioning, not only contravenes international labour
standards but also exposes the organization to legal
challenges and undermines employee morale. By ensuring
fair employment practices, government institutions can
reduce the burden of unnecessary litigation, promote job
security, and uphold the principles of justice and fairness
that they are meant to embody. This approach aligns with
international standards and sets a positive precedent for the
private sector to follow, thereby contributing to the overall
betterment of labour practices in the country."
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14. The learned counsel for the petitioner/applicant also
placed reliance on the decision in Shripal and Another v. Nagar Nigam,
Ghaziabad [2025 SCC Online SC 221].
15. In Shripal's case (supra), the Honourable Apex Court
followed the judgment of Jaggo's case (supra) and directed the respondents
to reinstate the workmen in their respective posts in Nagar Nigam,
Ghaziabad who had rendered prolonged service in that institution. The
relevant paragraph of Shripal's case (supra) is extracted hereunder:
"14. The Respondent Employer places
reliance on Umadevi (supra) to contend that daily-wage or
temporary employees cannot claim permanent absorption in
the absence of statutory rules providing such absorption.
However, as frequently reiterated, Uma Devi itself
distinguishes between appointments that are "illegal" and
those that are "irregular," the latter being eligible for
regularization if they meet certain conditions. More
importantly, Uma Devi cannot serve as a shield to justify
exploitative engagements persisting for years without the
Employer undertaking legitimate recruitment. Given the
record which shows no true contractor-based arrangement
and a consistent need for permanent horticultural staff the
alleged asserted ban on fresh recruitment, though real, cannot
justify indefinite daily-wage status or continued unfair
practices."
16. The learned counsel for the petitioner further placed
reliance on a Division Bench of this Court in R.Anilkumar v. Union of
India [OP(CAT) No.151/2023 dated 12.11.2024]. In Anil Kumar's
case (supra), this Court took the view that the petitioner who has been
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working as Part Time employee for more than 30 years deserves benevolent
consideration. The relevant paragraphs are extracted hereunder:
"12. The question still to be considered is whether
the petitioner can be denied the right only for the reason that
he was not a candidate sponsored by the employment
exchange, although he fulfills all other eligibility criteria. In
Umadevi [(2006) 4 SCC 1] the Apex Court evolved a one-
time measure of regularisation in favour of the part-time
employees, who completed 10 years service as on
10.04.2006. A few other conditions including that such
persons should have been serving against sanctioned posts,
etc. were also stipulated. It is a fact that the petitioner has
completed more than 10 years as on 10.04.2006. He,
however, might not be entitled to get the benefit of the
directions in Umadevi [(2006) 4 SCC 1] for want of
fulfilling a few other conditions. But when several similarly
placed employees were regularised as per Annexure A23 and
the Department decided to absorb the applicants in
O.A.No.519 of 2020, the petitioner's claim on the ground of
principle of parity has a reasonable force. In Arvind Kumar
Srivastava [(2015) 1 SCC 347], the Apex Court held that
the normal rule is that when a particular set of employees
had been given reliefs by the court, other identical persons
need to be treated alike by extending the same benefit.
13. In view of the aforesaid facts and propositions
of law, the claim of petitioner, who has been working as a
part time employee for the last more than 30 years, deserves
a benevolent consideration. In that view of the matter, the
order of the Tribunal vide Exts.P3 and P7 rejecting the claim
of the petitioner outright is liable to be modified.
Accordingly, this original petition is disposed of directing the
respondents to consider the claim of the petitioner for
assigning temporary status and regularisation as a
MTS/Havildar benevolently and in the light of the
observations we made hereinbefore. The competent among
the respondents is/are directed to take a decision in that
regard within a period of two months from the date of receipt
of a certified copy of this judgment."
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17. The learned counsel for the petitioner submitted that, in
view of the judgment of Jaggo's case (supra) and Shripal's case (supra),
the case of the petitioner/applicant requires benevolent consideration. The
judgment in Umadevi's case (supra) ought not have been interpreted to
deny the legitimate claims of the employees who have been serving for
considerable length of time. The dictum laid down in Umadevi's case
(supra) cannot be used as a shield to justify exploitative engagements
persisting for years without the Employer undertaking legitimate
recruitment.
18. Now coming back to the facts of the instant case. The
learned Tribunal dismissed the claim of the petitioner/applicant holding
that, regularization of part time employees falls within the domain of the
policy decision of the State. Further, it is purely discretionary on their part
and the Court cannot advice or direct them to frame a scheme to regularize a
particular employee or a group of employees. We will be failing our duty if
we do not extract the relevant paragraph of the order of the Tribunal.
"19. The learned Standing Counsel has submitted
that Courts cannot issue directions to regularise a Part Time
employee, which is the province of the State. She has relied
on the decisions in A. Umarani v. Registrar, Co-
operative Societies and Others [(2004) 7 SCC 112],
State of Karnataka and Others v. KGSD Canteen
Employees Welfare Association and Others [(2006)1
SCC 567], State of U.P v. Neeraj Awasthi and Others
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[(2006) 1 SCC 667] Secretary, State of Karnataka
and Others v. Umadevi and others [(2006) 4 SCC 1].
20. Regularisation of part time employees falls
within the domain of policy decision of the State. It is purely
discretionary on their part and the Court cannot advise or
direct them to frame a Scheme or to regularise a particular
employee or group of employees. The very same analogy is
applicable here. It appears that the dictum in Indian Drugs
and Pharmaceuticals Ltd. v. Workmen, Indian
Drugs and Pharmaceutical Ltd. ((2007) 1 SCC 408]
also can be adopted. Here, a Scheme was framed in 2020. It
is a one time Scheme, it was made clear that no further
enlargement of the list will be permissible. The list was
forwarded on 24.03.2021. At that time the applicant had no
claim that he possessed necessary educational qualifications
nor did he seek time to produce duplicate copy of the SSLC
book. He has no complaint that he was not given opportunity
or principles of natural justice were violated. In the
circumstances, the respondents had no option, but to
proceed as if the applicant did not possess necessary
educational qualifications for the purpose of granting
regularization in terms of the Scheme.
20. It is also very pertinent to note that the
applicant has no case that there are vacancies on the date of
the claim in which he could be adjusted. It is a very
important aspect while granting any positive direction to the
respondents.
21. On evaluation of the above
circumstances and materials, I am of the view that the
applicant has failed to make out a case in his favour.
Therefore, the O.A is only to be dismissed. Dismissed with
regrets. No costs."
19. In the instant case, one of the reason for non-
consideration of the claim of the petitioner appears to be non-production of
his SSLC book during the relevant time. The case of the petitioner is that, his
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SSLC book, which is the basic qualification for the post, went missing and he
produced Annexure-A7 duplicate of the same only in the year 2021.
20. In the light of the above discussion, we are of the view
that the claim of the petitioner/applicant for regularization deserves
benevolent consideration. Therefore, we are of the considered opinion that
the respondents shall reconsider the regularization of the
petitioner/applicant, in view of the judgments of Jaggo's case and
Shripal's case referred above. The impugned order of the Central
Administrative Tribunal is therefore set aside. OP(CAT) is disposed of with
the above direction. The respondents shall take a decision in this regard
within a period of two months from the date of receipt of a certified copy of
this judgment.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
Sbna/
OP(CAT) 174/2023
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APPENDIX OF OP (CAT) 174/2023
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE ORDER NO. C NO. II/3/2/95/5657
DATED 26.09.1997 OF THE ASSISTANT COMMISSIONER OF
EXCISE, KOTTAYAM DIVISION
Annexure A2 TRUE COPY OF THE ORDER DATED 20.09.2011 IN WP(C)
NO.20664/2011 PASSED BY THE MADRAS HIGH COURT
Annexure A3 TRUE COPY OF THE ORDER DATED 20.09.2016 IN O.A
NO.180/00896/214
Annexure A4 TRUE COPY OF THE GCCO/II/39/OTH/24/2022-CCAESTT
DATED 30.03.2022 ISSUED BY THE OFFICE OF THE
PRINCIPAL CHIEF COMMISSIONER OF GST AND CENTRAL
EXCISE, TAMIL NADU AND PUDUCHERRY
Annexure A5 TRUE COPY OF THE PROPOSAL TO ALL THE CADRE
CONTROLLING AUTHORITIES BY THE UNDER SECRETARY TO
THE GOVERNMENT, DEPARTMENT OF REVENUE, MINISTRY
OF FINANCE, GOVERNMENT OF INDIA DATED 05.08.2021
Annexure A6 TRUE COPY OF THE ORDER IN O.A. 180/00443/2020
PASSED BY THE HON'BLE CENTRAL ADMINISTRATIVE
TRIBUNAL, ERNAKULAM BENCH DATED 13.01.2021
Annexure A7 TRUE COPY OF THE DUPLICATE SSLC LEAVING
CERTIFICATE DATED 21.10.2021
Annexure A8 TRUE COPY OF OC NO. 6547/21 DATED 10.12.2021 OF
ADDITIONAL COMMISSIONER (P&V), HEADQUARTERS
OFFICE, THIRUVANANTHAPURAM.
Annexure A9 TRUE COPY OF LETTER OC NO. 1102/2021 DATED
14.12.2021 OF DEPUTY COMMISSIONER, KOTTAYAM
DIVISION.
Annexure A10 TRUE COPY OF THE LETTER GEXCOM/II/(39)/155/2021-
ESTT8 DATED 21.09.2022.
Annexure A11 TRUE COPY OF THE RECORD OF PERSONAL HEARING
CONDUCTED ON 26.09.2022 BEFORE THE JOINT
COMMISSIONER (P&V), HEADQUARTERS OFFICE, KOCHI
Annexure A12 TRUE COPY OF THE REPRESENTATION DATED 15.12.2022
SUBMITTED BY THE APPLICANT TO THE CHIEF
COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS.
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Exhibit P1 TRUE COPY OF THE MEMORANDUM OF O.A.NO.197/2023
TOGETHER WITH ANNEXURES
Exhibit P2 TRUE COPY OF THE REPLY STATEMENT DATED 30.05.2023
IN O.A.NO.180/00197/2023
Annexure R1(A) TRUE COPY OF THE LETTER NO. C- 18013/25/2009-
AD.IIIB DATED 02.12.2022 ISSUED BY THE CBIC
Exhibit P3 TRUE COPY OF THE ORDER DATED 09.10.2023 IN
O.A.NO.180/00197/2023 BEFORE THE HON'BLE CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM
Exhibit P4 TRUE COPY OF THE APPOINTMENT RT MESSAGE VIDE
C.NO. II/3/9/96 DATED 03.12.1997 ISSUED BY THE
ASSISTANT COMMISSIONER OF THE CENTRAL EXCISE AND
CUSTOMS, COCHIN
