w w w . L a w y e r S e r v i c e s . i n



Geeta Devi & Others v/s Union of India through Secretary, Ministry of Communication and Information Technology, New Delhi & Others


Company & Directors' Information:- INDIA INFORMATION TECHNOLOGY LTD [Active] CIN = U74140DL1992PLC048211

Company & Directors' Information:- S M INDIA LTD [Strike Off] CIN = U26942ML1998PLC005541

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- NEW COMMUNICATION TECHNOLOGY PVT LTD [Active] CIN = U31909GJ1989PTC012512

Company & Directors' Information:- C H C INFORMATION TECHNOLOGY LIMITED [Strike Off] CIN = U72200WB2001PLC093126

Company & Directors' Information:- V R INFORMATION TECHNOLOGY PRIVATE LIMITED [Active] CIN = U72900MH2000PTC128632

Company & Directors' Information:- K. K. INFORMATION TECHNOLOGY PRIVATE LIMITED [Active] CIN = U72200OR2009PTC011100

Company & Directors' Information:- S A I S INFORMATION TECHNOLOGY PRIVATE LIMITED [Active] CIN = U72100TN2010PTC075284

Company & Directors' Information:- S H INFORMATION TECHNOLOGY PRIVATE LIMITED [Strike Off] CIN = U72200DL2005PTC135610

    O.A. Nos. 063/00184 to 063/00186 of 2015

    Decided On, 20 February 2017

    At, Central Administrative Tribunal Chandigarh Bench

    By, THE HONOURABLE MR. JUSTICE M.S. SULLAR
    By, MEMBER (J) & THE HONOURABLE MR. UDAY KUMAR VARMA
    By, MEMBER (A)

    For the Applicants: P.M. Kansal, Advocate. For the Respondents: R1, Anshul Bansal, R2 to R4, D.R. Sharma, Advocates.



Judgment Text

Oral Order:

M.S. Sullar, Member, J.

1. As the identical questions of law and facts are involved, so we propose to dispose of Original Applications (OAs) bearing Nos. 063/00184/2015 titled Geeta Devi & Others Vs. Union of India & Others (for brevity, Ist case), 063/00185/2015 titled Giani Devi Vs. Union of India & Others (in short, IInd case) and 063/00186/2015 titled Sonu Kumari & Others Vs. Union of India & Others (referred to, as IIIrd case), vide this common decision, in order to avoid the repetition of the facts, with the consent of learned counsel for the parties.

2. The epitome of the facts and material, which needs a necessary mention for deciding the core controversy involved in the instant O.As, and emanating from the record is that all the applicants were engaged as part-time casual labourers, during the period 1986 to 1998, in the erstwhile Department of Telecommunication (DoT). The DoT issued a policy decision, circulated vide letter dated 16.09.1999 (Annexure A-4) to convert all part-time casual labourers, who were working for four or more hours per day, into full time casual labourers. It was alleged that vide another policy decision of DoT, circulated by way of letter dated 25.08.2000 (Annexure A-5), it was decided to convert all part-time casual labourers, who were working for less than four hours per day, into full-time casual labourers. The DoT issued another order dated 29.09.2000 (Annexure A-6) to regularize the services of all the casual laborers working in the department, including those who have been granted temporary status w.e.f. 01.10.2000.

3. The case set up by the applicants, in brief, insofar as relevant, is that the Bharat Sanchar Nigam Limited (BSNL), a Government of India Enterprises, came into existence w.e.f. 01.10.2000 and the directives, contained in the aforesaid letters, were adopted by it. The applicants were converted into full-time casual labourers, vide orders issued during the years 2000, 2001, 2002 and 2003, pursuant to the approval of the competent authority, in pursuance of DoT letter dated 25.08.2000 (Annexure A-5), endorsed vide letter dated 11/2000 with immediate effect. Since the applicants were converted into full-time casual labourers, so their services were to be regularized w.e.f 01.10.2000 by the competent authority.

4. It was pleaded that both the casual labourers, working in the department and those who have been given temporary status have been treated equal for the purpose of regularization of their services. Although the corporate office of BSNL clarified vide letter dated 16.01.2013 that the casual labourers/temporary status Mazdoors, who were regularized/will be regularized by the BSNL on or after 01.10.2000 in pursuance of the order dated 29.09.2000, will also be covered by the General Provident Scheme (GPF) and not by EPF/CPF Scheme. Thus, according to the applicants, their services deserve to be regularized as the respondents cannot adopt two standards, which would be violative of Articles 14 and 21 of the Constitution of India. They repeatedly requested the respondents and also sent a legal notice dated 03.04.2014 (Annexure A-3) in this regard, but in vain.

5. Applicants approached this Tribunal by filing three separate OAs bearing No. 063/00061/2015, 063/00062/2015 and 063/00063/2015, which were disposed of by a common order dated 09.04.2015 (Annexure A-2), wherein the respondents were directed to take a view on the legal notice (Annexure A-3). In compliance thereof, the Telecom District Manager, Telecom H.P. Circle rejected the claim of the applicants, vide the impugned orders dated 19.06.2015 (in Ist case) 18.06.2015 (in IInd case) and 24.06.2015 (in IIIrd case)(Annexure A-1) in these OAs.

6. Aggrieved thereby, the applicants have preferred the instant OAs, challenging the impugned order (Annexure A-1) and claiming the regularization of their services on the following grounds:-

'A. That the action of respondents in not regularizing the services of applicants as Regular Mazdoor (RM) is illegal, arbitrary and discriminatory and violative of Articles 14 and 16 of the Constitution of India. Had the respondents taken steps to regularize the services of applicants in terms of decision dated 29.09.2000 then the services of the applicants would have been regularized by now and the present situation would not have arisen. As such the applicants are deemed to have been regularized w.e.f. 01.10.2000 in the light of aforesaid policy decision dated 29.09.2000 which clearly include all part time casual labourers who have been converted into full time casual labourers vide letter dated 25.08.2000.

B. That the impugned order is also unsustainable in the eyes of law because vide order dated 09.04.2015 the Tribunal had directed to the Competent Authority to take a view on the legal notice by passing a speaking and reasoned order in accordance with law and rules. The competent authority to pass the speaking order is respondent no. 2 but the respondent no. 4 has passed Office order dated 19.06.2015 rejecting the claim of applicants for regularization of services from full-time casual labourers along with all consequential benefits.

C. That the applicants were converted into full-time casual labourers pursuant to approval of Competent Authority in terms of said DoT letter dated 25.08.2000 endorsed vide CGMT HP Circle SM letter No. Staff/S-1035/81 dated 11/2000, they (applicants) became eligible for regularization of their services in terms of aforementioned DoT order vide No. 269-94/98-STN-II dated 29.09.2000. But till date their services have not been regularized. No steps have been taken by the respondents for regularizing the services of the applicants. As per Circulat No. 500-85/2002/CA 1/BSNL dated 16.01.2003 issued by the Corporate Office of BSNL as well the Casual Labourers/Temporary Status Mazdoors who wre regularized/will be regularized by BSNL on or after 01.10.2000 in pursuance of order NO. 269-94/98-STN-II dated 29.09.2000 will be covered by General Provident Scheme (GPF) and not by EPF/CPF Scheme. Meaning thereby that Casusal Labourers can be and deserve to be regularized.

C. That when in other circles the BSNL has regularized the services of full time casual labourers then the services of applicants also deserve to be regularized. Many posts are available in H.P. Circle as well.

D. That the Hon’ble C.A.T. Ernakulam Bench vide order dated 05.04.2010 of respondent B.S.N.L. in O.A. No. 778/2009 titled Metilda Cubellio has issued directions to regularize the services of the applicant therein as Mazdoor in the light of the judgments/circulars supra, w.e.f. 29.09.2000 with all consequential benefits but without back wages (Annexure A-10)

E. Xxxxxxxx

F. Xxxxxxxx

G. Xxxxxxxx

H. Xxxxxxxx

I. That the applicants have already completed 10 years service. Their claim for regularization is also covered with judgment of the Honble Supreme Court in State of Karnatka Vs. Umadevi and others (2006 4 SCC 1). The work performed by the applicants is of perennial nature and are similar to that performed by the regular employees. Applicants are from the lowest strata of the society; initially were inducted as part time casual labourers for performing and discharging duty and function of sweeper and then their status was converted into full time casual labourers, but thereafter they are not being regularized despite having rendered more than 20-30 years of service.

J. That the authority to create posts vests exclusively with the respondents. The respondents cannot extract the work from the persons like the appellants for decades and turn back to tell the applicants and the Court that it cannot regularize the services of such persons in view of the fact that these appointments were not made against any sanctioned posts. The applicants are amenable to the disciplinary control of the respondents as in the case of any other regular employee. The creation of a cadre of sanctioning of posts for a cadre is a matter exclusively within the authority of the respondents. That the respondents did not choose to create a cadre but chose to make appointments of persons creating contractual relationship only demonstrates the arbitrary nature of the exercise of the power. The appoints made have never been terminated thereby enabling the respondents to utilize the services of employees of the State for a long period on nominal wages and without making available any other service benefits which are available to the other employees of the State, who are discharging functions similar to functions that are being discharged by the appellants.

K. That it has also been repeatedly held by the Hon’ble Supreme Court of India, various High Courts and Administrative Tribunals as well that when the matter is settled then the similarly placed employees should not be compelled to go to the Court of law and the benefits deserve to be extended to the similarly placed employees. Reference is made to the judgment of the Hon’ble Supreme Court in the case of K.C. Sharma versus Union of India, 1997 (3) SCT 641 and Satbir Singh versus Stte of Haryana, 2002 (2) SCT 354. The Full Bench of Central Administrative Tribunal, Bangalore in the case of C.S. Elias Ahmed and others Vs. U.O.I. & others (O.A. Nos. 451 and 541 of 1991), held that the entire class of employees who are similarly situated are required to be given the benefit of the decision whether or not they were parties to the original writ.

7. At the outset, it may be mentioned here that the applicants have also assailed the impugned order/action of the respondents on the similar grounds, in the connected cases as well. On the strength of the aforesaid grounds, the applicants seek quashing of the impugned order (Annexure A-1) and claim regularization of their services in the manner indicated hereinabove. They have also placed reliance upon certain judgments mentioned therein.

8. Sequelly, the respondents have refuted the claim of the applicants, and filed separate written statements in all the connected matters, wherein it was pleaded that although the applicants are working as full time labourers, but they are not entitled to regularization, as claimed by them, in view of the fact that after the year 2000, the BSNL has come into existence and as a sequel thereof the above-mentioned instructions issued by the DoT became redundant for the purpose of regularization. However, it was acknowledged that the applicants were converted into full time labourers vide letter dated 07.04.2003 (Annexure R-2)(in the Ist case), letters dated 25.09.2001, 29.10.2001, 27.12.2001, 14.08.2002, 19.08.2002 (Annexures R-2,R-3,R-4,R-5 & R-6) )(in IInd case) and letters dated 29.08.2001 and 17.05.2002 (Annexures R-2 & R-3) (in the IIIrd case), in pursuance of DoT letter dated 25.08.2000, in which it was mentioned that they will not be entitled for grant of temporary status and thereafter regularization of their services. Since it was one-time relaxation measure, therefore, the applicants are not entitled to the regularization of their services, in view of law laid down by the Hon’ble Apex Court in the case of Secretary, State of Karnatka and Others Vs. Uma Devi & Others (2006) 4 SCC 1.

9. The case of the respondents further proceeds that the applicants cannot claim the benefit of regularization of their services, in view of the above mentioned letters of DoT, as per law laid down by the Hon’ble Supreme Court in Uma Devi’s case (supra), and in the absence of any regularization policy of the BSNL. It will not be out of place to mention here that virtually acknowledging the factual matrix and reiterating the validity of their orders, the respondents have stoutly denied all other allegations and grounds contained in the OAs and prayed for its dismissal. It may be added here that the respondent No. 1 has taken a categorical stand that the applicants were absorbed employees of BSNL (Respondents No. 2 to 4) in its M.A. No. 063/00035/2016.

10. Controverting the pleadings filed by the contesting respondents and reiterating the grounds contained in the O.A. and explaining the vacancy position in the BSNL vide chart (Annexure A-14/15), the applicants filed the replication.

11. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, we are of the view that the instant O.As deserve to be allowed for the reasons and in the manner indicated herein below.

12. Ex-facie the arguments of the learned counsel for the respondents that the pointed letters, on the basis of which the applicants are claiming regularization of their services, became redundant, after the inception of the BSNL, and since there is no regularization policy of the BSNL, so the services of the applicants cannot be regularized, more so in view of judgment in Uma Devi’s case (supra), are not only devoid of merit but misplaced as well.

13. As is evident from the record that The BSNL was incorporated in pursuance of policy of the Govt. of India (National Telecom Policy 1999) to hive off its business of providing telecom services and operate the same through a corporate entity. It started functioning w.e.f 01.10.2000. As per the terms of agreement, all the assets and liabilities of the DoT stood transferred to the BSNL Company. Thus, the BSNL cannot escape from fulfillment of its obligations and responsibilities of regularizing the applicants. This matter is no more res integra and is now well-settled.

14. An identical question came to be decided by this Tribunal in a bunch of cases with the main case No. 063/00157/2014 titled Sh. Vikas Tomar Vs. CGM and Others decided on 26.10.2015 (Annexure A-9). Relying upon the judgment dated 02.03.2015 passed by the Hon’ble High Court of Punjab and Haryana in a bunch of matters, including CWP NO. 9167-CAT-2007, and CWP NO. 24583 of 2013 titled Union of India and Others Vs. Siri Krishan and Others, this Tribunal held as under:-

'No doubt the aforesaid observations were qua part time employees of Department of Posts but fact remains that the respondent BSNL is a Government Company and was incorporated on 15.09.2000 under the Companies Act, 1956. Prior to the incorporation of the petitioner company, the telecommunication services were being provided by Government of India, Ministry of Communication through its two departments, namely Department of Telecommunication Services (in short "DTS") and Department of Telecommunication Operation (in short "DTO"). The company was incorporated pursuant to the policy of the Government of India (National Telecom Policy 1999) to hive off its business of providing telecom services and operate the same through a corporate entity. The petitioner was constituted as a wholly owned Government of India enterprise for taking over the business of providing telecommunication services from DTO and DTS. It started functioning w.e.f. 01.10.2000. As per the terms of the agreement the assets and liabilities of the Department of Telecommunications, Department of Telecom Services and Department of Telecom operations (the Government) stood transferred to the Company, with effect from 1st October, 2000. Thus, the BSNL cannot save its skin from fulfillment of its obligations and responsibilities of conversion of applicant from part timer to full timer by saying that since it is a Company, it is not bound by the policy of the Department of Telecommunication. The observations made by the Honble High Court in the case of Krishan & Others (supra) on issue of part-timer would fully apply to the facts and circumstances of this case on all fours and as such it is disposed of in the same terms. The reliance placed by the learned counsel for the respondents on decisions relied upon by him is misconceived in view of the specific facts and circumstances of the case and law settled by jurisdictional High Court at Chandigarh.'

15. Therefore, once it is proved that all the assets and liabilities were transferred from the DoT to the BSNL, then it cannot possibly be saith and the respondents cannot be heard to say that the indicated letters of regularization of services issued by the DoT would become redundant, as urged on behalf of the BSNL.

16. What cannot be possibly be disputed here is that all the applicants were appointed as part time casual labourers, during the period of 1986-98 in the DoT. The DoT formulated a policy dated 16.09.1999 (Annexure A-4) to convert all part-time casual labourers, who were working for four or more hours per day, into full time casual labourers. As per letter dated 25.08.2000 (Annexure A-5), the part-time casual labourers with less than four hours of duty per day who have worked for 240 days in the preceding 12 months, were converted into full time casual labourers. It was stipulated therein that such casual labourers be engaged subject to suitability and qualification. It is not a matter of dispute that the applicants (in the Ist case) were converted from part time to full time casual labourers w.e.f. 13.03.2000, in pursuance of DoT letter No. 269-13/99-STN-II dated 25.08.2000. Similarly, the applicants in the connected cases were also converted from part time to full time casusal labourers in pursuance to the same Dop&T letter dated 25.08.2000, as per chart (Annexure A-7).

17. Not only that the respondents have issued another order No. 269/94/98-STN-2 dated 29.09.2000 (Annexure A-6) for regularization of services of the applicants, which, in substance, is as under:-

'Extract relating to Order vide No. 269-94/98-STN-II dated 29.09.2000

At the time of corporatization of the service functions of the Department of Telecom & Department of Telecom Services through formation of telecom PSU, BSNL, an assurance was given to the Federations of the Employees that all the Left-out casual labourers who fulfilled the conditions will be regularized w.e.f. 1st October 2000, the date of formation of BSNL. As per the agreement an order was also issued by DoT vide No. DTS No. 269-94/98-STN-II dated 29.09.2000 stipulating the following:

‘The employees’ unions are demanding regularization of all the casual labourers. This issue was under consideration for quite some time. It has been decided to regularize all the casual labourers working in the Department, including those who have been granted temporary status, with effect from 01.10.2000, in the following order-

(1) All casual labourers who have been granted temporary status up to the issuance of orders No. 269-4/93-STN-II dated 12.02.99, circulated vide letter No. 269-13/99-STN-II dated 12-02.99 and further vide letter NO. 269-13/99-STN II dated 09.06.2000.

(2) All full time casual labourers as indicated in the annexure.

(3) All part time casual labourers who were working for four or more hours per day and converted in to full time casual labourers vide letter NO. 269-13/99-STN-II dated 16.09.1999.

(4) All part time casual labourers who were working for less than four hours per day and were converted into full time casual labourers vide letter No. 269-13/99-STN-II dated 25.08.2000.

(5) All ayahs and Supervisors converted into full time casual labourers as per order No. 269-10-97- STN-II dated 29.09.2000.'

18. A bare perusal of the order (Annexure A-6) would reveal that the Competent Authority has decided to regularize all the casual labourers working in the department including those who have been granted temporary status w.e.f. 01.10.2000. The case of the applicants squarely falls under clause 4 of this order, which postulates that services of all the part time casual labourers who were working for less than four hours per day and were converted into full time casual labourers vide letter dated 25.08.2000, would be regularized. As indicated hereinabove, the applicants were converted from part time casual labourers to full time casual labourers, in pursuance of letter dated 25.08.2000 and according to the vacancy position chart (Annexure A-14/15), 590 posts of regular mazdoor are still lying vacant. Therefore, once the case of the applicants squarely falls within the ambit of clause 4 of order dated 29.09.2000 (Annexure A-6), and the posts are vacant, in that eventuality, their services are liable to be regularized.

19. Moreover, a bare perusal of the impugned orders (Annexure A-1) would reveal that the claim of the applicants for regularization of their services was rejected mainly on the ground of verdict of the Hon’ble Apex court in Uma Devi’s case and judgment dated 16.01.2009 passed in the case of BSNL Jammu Vs. Teja Singh.

20. As mentioned herein above, the applicants were initially appointed between the years 1986-1998 and since then they are continuously working with the respondents. Even, they were converted into full time casual labourers after having been adjudged qua their suitability and qualification, as per clause II of letter dated 25.08.2000 (Annexure A-5). Also, after conversion of the applicants into full time casual labourers in pursuance of letter dated 25.08.2000, they are working with the respondents. Even, the respondents have permitted them to continue for so many years after passing of judgment in Uma Devi’s case (supra). Thus, under these circumstances, the respondents are estopped from and cannot possibly be heard to say at this stage that initial appointment of the applicants was not legal.

21. There is yet another aspect of the matter, which can be viewed entirely from a different angle. The learned counsel for the respondents have fairly acknowledged that the services of the similarly situated category of casual labourers, who were working in the department, including the casual labourers, who were converted into full time labourer vide letter dated 25.08.2000, were regularized by the competent authority. That means that the respondents are adopting pick and choose policy. The BSNL has also regularized the services of similarly situated casual labourers in pursuance of the order dated 29.09.2000 (Annexure A-6), and refused to regularize the services of the applicants on speculative grounds. In this manner, the respondents cannot legally be permitted to adopt ‘pick and choose’ policy and discriminate the applicants in this r

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egard. 22. Therefore, the applicants are also legally entitled to the same very treatment on the basis of parity in the similar circumstances of the case under Articles 14 & 16 of the Constitution and in view of law laid down by Hon’ble Apex Court in cases Man Singh Vs. State of Haryana and others AIR 2008 SC 2481 and Rajendra Yadav Vs. State of M.P. and Others 2013 (2) AISLJ 120 wherein, it was ruled that the concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equal is to be treated equally even in the matter of executive or administrative action. As a matter of fact, the Doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. It was also held that the administrative action should be just on the test of 'fair play' and reasonableness. Hence, the respondents cannot discriminate the applicants, and their services also deserve to be regularized against the vacant posts on the basis of parity and equity under Articles 14 and 16 of the Constitution of India. 23. Therefore, it is held that the policy decisions (Annexure A-4 to A-6) of the DoT are mutatis mutandis applicable to the BSNL as well. They cannot escape from their liability of regularizing the services of the applicants, in pursuance of the regularization policy (Annexure A-6). The case of regularization of services of the applicant cannot legally be rejected on indicated speculative grounds, particularly when the posts of pointed category are still lying vacant. 24. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 25. In the light of the aforesaid reasons, the OAs are accepted. The impugned orders dated 19.06.2015 (in the Ist case), dated 18.06.2015 (in IInd case) and dated 24.06.2015 (in IIIrd case) (Annexure A-1) are set aside. At the same time, the respondents are directed to regularize the services of the applicants, in pursuance of letters dated 25.08.2000 (Annexure A-5) and dated 29.09.2000 (Annexure A-6), against the vacant posts, within a period of three months from the date of receipt of certified copy of this order. However, the parties are left to bear their own costs.
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