SUPREME COURT OF INDIA
Indian Council of Agricultural Research and Another
Vs
Santosh
Appeal (Civil) 4499 of 2006 (Arising Out of Slp (C) No. 15643 of 2005)
(Arijit Pasayat and L. S. Panta, JJ)
16.10.2006
ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is to the judgment rendered by a Division Bench of the
Rajasthan High Court at Jodhpur dismissing the writ petition filed by the
present appellants questioning correctness of the order passed by the Central
Administrative Tribunal, Jodhpur Bench (in short 'CAT').
The controversy lies within a very narrow compass.
Respondent filed O.A.No.291 of 2003 before the CAT making a grievance that
family pension and other terminal benefits were being denied to her by the present
appellant on the ground that her deceased husband was not holding permanent
status in service. CAT held that though her deceased husband Durga Lal was not
holding a permanent status in service, yet respondent was entitled to the
family pension and other benefits by treating him to have been regularized on
the date of his death.
The High Court dismissed the writ petition holding that since the respondent
has been given compassionate appointment, there was no merit in the writ
petition.
In support of the appeal, learned counsel submitted that there was a scheme in
operation and late Durga Lal was not holding permanent status and was only a
casual labourer who had acquired temporary status in view of the scheme.
Placing reliance on a Constitution Bench decision of this Court in Secretry,
State of Karnataka and Ors. v. Umadevi (3) and Ors. 2006 (4) SCC 1, it
was held that CAT could not have directed regularization and in any event
directed grant of family pension.
In response, learned counsel for the respondent submitted that the deceased
late Durga Lal had worked for nearly 20 years and merely because there was no
formal order granting him permanent status, it had to be deemed as if late
Durga Lal was in regular service. CAT proceeded on the basis that the
respondent's claim was acceptable with reference to certain circulars
applicable to Railways employees and Full Bench decision of the Tribunal in
Gita Rani Santra v. Union of India and Ors. (reported in 1997-2001 AT Full
Bench judgment page 295) .
In order to appreciate rival submissions a few provisions need to be noted.
The scheme applicable to employees of appellant No.1 is very specific in its
scope of operation. The scheme was issued by the Department of Personnel and
Training and the scheme is called "Casual Labourers (Grant of Temporary
Status and Regularisation) Scheme of Government of India, 1993" (in short
the 'Scheme')". The said scheme is applicable with effect from 1.9.1993.
Clause 4 reads as follows:
"4. Temporary status:
(i) Temporary status would be conferred on all casual labourers who are in
employments on the date of issue of this OM and who have rendered a continuous
service of at least one year which indicates any must have been engaged for a
period of at least 240 days (206 days in the case of offices observing 5-day
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 anywhere within the recruitment
unit/territorial circle on the basis of availability of work.
(iv) Such casual labourers who acquire temporary status will not, however, be
brought on to the permanent establishment unless they are selected through
regular selection process for group 'D' posts".
Similarly, Clause 5 so far as relevant reads as follows:"..............
(v) 50% of the service rendered under temporary status would be counted for the
purpose of retirement benefits after their regularization".
Clause 6 makes the position clear that no benefits other than those specified earlier
in the scheme shall be admissible to casual labourers with temporary status.
The relevant clause reads as follows:
"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."
A bare reading of the provisions makes it clear that late Durga Lal was not
entitled to any family pension. The direction given by CAT for regularization
is contrary to what has been stated in Uma Devi's case (supra). At para 45 of
the judgment it was noted as follows:
"45. While directing that appointments, temporary or casual, be
regularised or made permanent. the courts are swayed by the fact that the
person concerned has worked for some time and in some cases for a considerable
length of time. It is not as if the person who accepts an engagement either temporary
or casual in nature, is not aware of the nature of his employment. He accepts
the employment with open eyes. It may be true that he is not in a position to
bargain 'not at arm's length' since he might have been searching for some
employment so as to eke out his livelihood and accepts whatever he gets. But on
that ground alone, it would not be appropriate to jettison the constitutional
scheme of appointment and to take the view that a person who has temporarily or
casually got employed should be directed to be continued permanently. By doing
so, it will be creating another mode of public appointment which is not
permissible. If the court were to void a contractual employment of this nature
on the ground that the parties were not having equal bargaining power, that too
would not enable the court to grant any relief to that employee. A total
embargo on such casual or temporary employment is not possible, given the
exigencies of administration and if imposed, would only mean that some people
who at least get employment temporarily, contractually or casually, would not
be getting even that employment when securing of such employment brings at
least some succour to them. After all, innumerable citizens of our vast country
are in search of employment and one is not compelled to accept a casual or
temporary employment if one is not inclined to go in for such an employment. It
is in that context that one has to proceed on the basis that the employment was
accepted fully knowing the nature of it and the consequences flowing from it.
In other words, even while accepting the employment, the person concerned knows
the nature of his employment. It is not an appointment to a post in the real
sense of the term. The claim acquired by him in the post in which he is temporarily
employed or the interest in that post cannot be considered to be of such a
magnitude as to enable the giving up of the procedure established, for making
regular appointments to available posts in the services of the State. The
argument that since one has been working for some time in the post, it will not
be just to discontinue him, even though he was aware of the nature of the
employment when he first took it up, is not (sic) one that would enable the
jettisoning of the procedure established by law for public employment and would
have to fail when tested on the touchstone of constitutionality and equality of
opportunity enshrined in Article 14 of the Constitution".
Merely because compassionate appointment has been granted to the legal heir of
late Durga Lal that does not in any way improve the situation so far as the
respondent is concerned. That is an appointment given to a legal heir even if
it is accepted to be a regular, subsequent to the death of Durga Lal and such
appointment cannot alter the status of late Durga Lal in service. The
impugned judgment of the High Court confirming that of the CAT cannot be
sustained. Both the CAT's order and judgment of the High Court stand set aside.
The appeal is allowed but without any order as to costs.