SUDARSANA BEHERA V. UNION OF INDIA

WP(C)/19999/2021

AI Insights

Sudarsana Behera, engaged as a daily wager since 2004 at the Zonal Accounts Office of the CBDT in Bhubaneswar, sought regularization of his employment following the retirement of a regular Group-D staff member. Despite recommendations for his regularization, his requests were repeatedly denied based on the DoPT scheme of 1993, which he did not qualify for as he was not employed on the cutoff date required for temporary status and regularization. The CAT and subsequently the High Court upheld these decisions, citing the absence of a sanctioned regular post and adherence to the established scheme for regularization of casual laborers.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 725709 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 22-07-2021
• Assessment Year: misc
• Other Referred Cases: Secretary, State of Karnataka v. Uma Devi (2006) 4 SCC 1, Ravi Verma v. Union of India, Nihal Singh v. State of Punjab AIR 2013 SCv3547, State of Karnataka v. M.L. Kesari (2010) 2 SCC (L&S) 826, Sheo Narain Nagar v. State of U.P. (2018) 13 SCC 432
• Laws Referred To: DoP&TOM No. 51016/2/90 Estt.(C), DoP &T OM No. 49014/2/2014-Estt(C)
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: P K PARHI
• Assessee Lawyers: SWAPNA OJHA
• Keywords: Central Administrative Tribunal; Employment; Regularization; Temporary Status; Casual labor
• Section: 240 days

Judgement Text

" Page 1 of 7 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 19999 of 2021 Sudarsana Behera …. Petitioner Mr. Swapna Kumar Ojha, Advocate -versus- Union of India & Others …. Opp. Parties Mr. P.K. Parhi, A.S.G. CORAM: THE CHIEF JUSTICE JUSTICE B. P. ROUTRAY Order No. ORDER 22.07. 2021 Dr. S. Muralidhar, CJ. 2. 1. This matter is taken up by video conferencing mode. 2. The Petitioner challenges an order dated 29.06.2021 passed by the Central Administrative Tribunal (CAT), Cuttack Bench, Cuttack in Original Application No. 205 of 2020. 3. The background facts are that the Petitioner was engaged as daily wager in the Zonal Accounts Office of the CBDT, Aayakar Bhawan at Bhubaneswar since 2004 and continued on casual basis from 2009 after retirement of the Multi-Tasking Staff (MTS). 4. According to the Petitioner around the time of the retirement of the MTS a recommendation had been made on 20th November, // 2 // Page 2 of 7 2009 by the Zonal Accounts Office to the Office of the Principal Chief Controller in the following manner: “Under these circumstances, this office is managing the same work with a daily wager, Shri Behera considering the tremendous pressure from the Departmental staff side Shri Behera has been engaged as a daily wager for a long period very sincerely and loyally. It would be highly beneficial if your kindness will consider his case generously for a favourable order to appoint him as a regular Group-D staff after the retirement of Smt. A.R. Berman, the only Group-D staff who is retiring on 30.11.2009. This is for favour of your kind consideration and necessary action.” 5. It appears that on 19th July, 2011 the above recommendation was reiterated by the Zonal Office. When nothing happened thereafter, the Petitioner first approached the CAT with O.A. No. 501 of 2017 which was disposed of on 24th August, 2018 by the following order: “We also find that in the present OA, the facts and points of law are similar to the OA No. 915 of 2013. In the circumstances, the case laws cited by the Respondents will not be applicable in the present case. Following the order passed by the Division Bench of this Tribunal in OA No. 915/2013 in which one of us was a Member, we adopt the same ratio and following judicial precedent, we direct the respondents to extend the same treatment to the applicant in the present OA provided he is similarly placed and eligible for consideration keeping in view his legal entitlement and the departmental norms.” 6. Thereafter, the impugned order dated 27th March, 2020 was passed by the Office of the Principal Chief Controller of // 3 // Page 3 of 7 Accounts declining the Petitioner’s prayer. The relevant portion of the said order reads as follows: “WHEREAS, in compliance of the aforesaid, the respondent No.4 has re-considered the matter and after examination of records it is ascertained that Sri Sudarsana Behera was initially engaged as casual labour since July 2004, with intermittent breaks in engagements, on need basis for work of casual nature and not against any sanctioned/regular posts without formal appointment order. His engagement was not made through regular government notified recruitment process. Shri Behera was getting the remuneration as per Central Labour Commissioner, Bhubaneswar from time to time. It is also established that Shri Behera was not in employment on the date of the issue of the DoP&TOM No. 51016/2/90 Estt.(C) dated 10th September, 1993 w.e.f. “Grant of temporary status and regularization of casual workers”. Therefore, he is not entitled to the conferment of Casual Labour (Temporary Status) as well as regularization since completion of 240 days as on 10.09.1993 is a mandatory requirement as per DoP&T Scheme dated 10.09.1993. Further, Vide the DoP &T OM No. 49014/2/2014-Estt(C) Dated 26.02.2016 the Government of India has clarified that: “It is emphasized that the benefit of temporary status is available only to those casual labourers who were in employment on the date of the issue of the OM dated 10th September, 1993 and were otherwise eligible for it. No grant of temporary status is permissible after that date” It is also confirmed, based on the information provided by the Office of the Principal Chief Commissioner of Income Tax, Odisha, vide their letter F.No. Pr.CCTT/Estt./IV-05(Part File) 2019- // 4 // Page 4 of 7 20/31289 dated 17.03.2020, that no Applicants involved in OA No. 915/2013 has been regularized since the order issued by Hon’ble CAT, Cuttack. Thus, in conformity with the Government rules and regulations, this office is not in a position to regularize your engagement in the job or to give you a temporary status, as being a casual labourer employed after 10.09.1993.” 7. Aggrieved by the above order, the Petitioner again approached the CAT with O.A No. 205 of 2020. The CAT has in the impugned order rejected the Petitioner’s prayer upheld the above order dated 27th March 2020 for the following reasons: “Taking into consideration the principle of law passed in the case of Uma Devi (Supra) this Tribunal finds that the applicant has not been able to show that he is entitled for regularization of his job in question, since there is no vacant post, no advertisement and no regular mode of selection. Accordingly we do not find any illegality or irregularity in the impugned order passed by the respondents while rejecting the claim of the applicant for regularization and hence we do not find any merit in interfering in the same. The citations relied by learned counsel for the applicants are not applicable to the facts and circumstances of this case.” 8. Mr. Ojha, learned counsel appearing for the Petitioner submits that it was erroneous on the part of the Opposite Parties to reject the prayer relying on DoPT Scheme dated 10th September, 1993 when in fact the Petitioner was engaged on casual basis since 2004. He further submits that notwithstanding the decision of the // 5 // Page 5 of 7 Supreme Court in Secretary, State of Karnataka v. Uma Devi (2006) 4 SCC 1 it was incumbent on the Opposite Parties to have accounted for the fact that the Petitioner has continuously worked as casual labour since 2004 and was entitled to regularisation. In this context, he relies on a judgment dated 13th March, 2018 of the Supreme Court of India in C.A Nos. 2795-2796 of 2018 (Ravi Verma v. Union of India). According to him, in similar circumstances, casual employees in the Income Tax Department were asked to be regularised. 9. He also places reliance on the decisions of the Supreme Court in Nihal Singh v. State of Punjab AIR 2013 SCv3547, State of Karnataka v. M.L. Kesari (2010) 2 SCC (L&S) 826), Sheo Narain Nagar v. State of U.P. (2018) 13 SCC 432. Accordingly, he submits that a directions be issued to the Opposite Parties to regularise the Petitioner’s service. 10. This Court is unable to accept the above submission made on behalf of the Petitioner. As seen from the impugned order dated 27th March 2020, the scheme that is being applied the CBDT for the purposes of grant of temporary status and regularization of casual labourers is the DoPT scheme dated 10th September, 1993 which requires completion of 240 days of service as on 10th September, 1993. The requirement for the State and State undertakings to draw up schemes for regularization, as mandated in Uma Devi (supra) arises when in fact there is no scheme for regularization at all. That is not a case here. There is a scheme for regularization, which happens to be the scheme drawn up by the // 6 // Page 6 of 7 DoPT and is applicable to several departments of the Central Government including the CBDT. This explains the decision of the Supreme Court in Ravi Verma v. Union of India (supra) as Para-4 of that judgment reveals. The appellants there were appointed as casual employees in the Income Tax Department “in the year 1993-94”. Since then they were working continuously, it appears that the DoPT scheme may have been applicable. 11. As far as the Appellant’s case is concerned, there is no scheme other than the DoPT scheme for considering his claim for regularization. As already noted by the Opposite Parties in the impugned order dated 27th March, 2020, none of the applicants similarly placed as the present Appellant have been regularized. The important fact to be noted as there was no sanctioned regular post against which such regularization could be ordered. 12. Mr. Ojha, learned counsel for the Petitioner then relied on the observation in Nihal Singh v. State of Punjab (supra) that: “Sanctioned posts do not fall from heaven. State has to create them by a conscious choice on the basis of some rational assessment of the need.” 13. It is not known whether in Nihal Singh v.State of Punjab any scheme similar to the DoPT Scheme, 1993 was available for implementation. In any event, no mandamus can be issued to the Opposite Parties to frame a further scheme ignoring the requirement for having the sanctioned posts for that purpose. // 7 // Page 7 of 7 14. Consequently, the Court finds no grounds made out for interference with the impugned order. The writ petition is dismissed. 15. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court’s website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court’s Notice No.4587, dated 25th March, 2020 as modified by Court’s Notice No. 4798, dated 15th April, 2021. (Dr. S. Muralidhar) Chief Justice ( B.P. Routray) Judge K. Majhi "