,,
1. By this petition under Article 226 and 227 of the Constitution of India, the petitioners have challenged the legality and validity of the judgment dated",,
29.09.2015 passed by the learned Central Administrative Tribunal (hereinafter referred to as ‘the Tribunal’), Guwahati Bench, in Original",,
Application No. 261/2013.,,
2. The following facts can be culled out from the record of the petition:,,
(i) That the petitioners are a former part of the Department of Tele Communications, Government of India. The petitioner no. 1, namely, Bharat",,
Sanchal Nigam Limited (BSNL), is a company incorporated under the Companies Act, 1956 since 15.09.2000 and is a State under Article 12 of the",,
Constitution of India. The basic facts arising in this petition relates back to the proceedings of WP(C) 302/1986 and WP(C) 273/1986, filed before the",,
Hon’ble Apex Court by ‘Bharatia Dak Tar Mazdoor Manch’ for the cause of Daily Rated Casual Labourers employed under the Posts &,,
Telegraph Department existing then. Vide a Circular dated 30.03.1985, issued by the Director General, Posts & Telegraphs, there was already a ban",,
on fresh employment of casual labourers by Telecom Circles/Districts, which came into effect from 30.03.1985. The Hon’ble Apex Court by",,
judgment dated 27.10.1987, reported in Daily Rated Casual Labour Employed Under P & T Department vs. Union of India and Others, reported in",,
(1988) 1 SCC 122, directed the Union of India and others, who were party to the said petitions, to prepare a scheme on a rational basis for absorbing",,
as far as possible the casual labourers who had been continuously working for more than one year in the Posts and Telegraph Department. Thus, a",,
direction was issued for regularization of only such casual labourers who had been continuously working for more than one year on the date of the,,
judgment and order of the Apex Court. As per the directions issued by the Hon’ble Apex Court, the Union of India and the Posts and Telegraph",,
Department formulated a scheme for the same. The said scheme was named as the “Casual Labourers (Grant of Temporary Status and,,
Regularization) Scheme of Department of Telecommunications, 1989†(hereinafter referred to as “1989 Schemeâ€), which was introduced vide a",,
Circular No. 269-10/89-STN dated 07.11.1989. The said scheme was prepared to cover only those class of casual labourers who were already,,
classified by laying down conditions to be read with the provisions of the scheme and Circular dated 30.03.1985. The Circular dated 07.11.1989 also,,
provided that the scheme was a one-time scheme. The said scheme inter alia further provided that fresh recruitment and employment of casual,,
labourer for any type of work in Telecom Circles/Districts should be stopped after 30.03.1985 and normally no casual labourer engaged after,,
30.03.1985 would be available for consideration for conferring temporary status. It also provided that in the unlikely event of there being any cases of,,
casual labourers engaged after 30.03.1985 requiring consideration for conferment of temporary status, the same should be referred to the Telecom",,
Commission with relevant particulars regarding the action taken against the officers under whose authorization the irregular engagement/non-,,
retrenchment was resorted to. Thus, the scheme normally provided that no casual labourer who has been recruited after 30.03.1985 should be granted",,
temporary status without specific approval from the office of the Telecom Commission. The said scheme came into force from 01.10.1989 onwards,,
and the same was made applicable to the casual labourers employed by the Department of Telecommunications. The said scheme also provided,,
various provisions relating to temporary status, entitlement, termination of service etc.",,
(ii) The record indicates that the Ministry of Telecommunications, vide a letter No. 269-4/93-STN dated 25.06.1993, issued a further Circular providing",,
for conferment of temporary status under the scheme to a particular group of casual labourers engaged in Project Circles and Railway Electrification,,
Circles thereby extending the scope of the scheme to those casual labourers engaged after 31.03.1985 to 22.06.1988 as special case on the condition,,
of their being still continuing for such works in the specified areas and who were not absent for the last more than 365 days counting from the date of,,
issue of the letter dated 25.06.1993. Another Circular came to be issued by the Department on 17.12.1993 for the casual labourers working in Railway,,
Electrification project. The record further indicates that the Government of India in Tele Communication Department issued another Office,,
Memorandum vide No. 269-4/93-STN-II(PT) dated 12.02.1999. By the said Office Memorandum the Department of Tele Communication withdrew,,
the power to engage casual labourer from the officers of Department of Tele Communication putting emphasis on the issue that the Department has,,
already imposed a ban on recruitment/engagement of casual labourer vide letter dated 22.06.1988. The said Office Memorandum also inter alia,,
emphasized that as per the scheme there is no provision for any fresh engagement of such casual loabourers after the said date, i.e. 22.06.1988. Thus,",,
after such curtailment of power and the prohibition, any engagement of casual labourers and any certificate issued to that extent will be null and void",,
and the Department of Tele Communication would not be bound by any such illegal action of their officers for engagement of casual labourer after,,
22.06.1988.,,
(iii) It is also a matter of record that the Posts & Telegraph Manual Vol. X came to be amended and paragraph 193 and also paragraphs 150 to 177 of,,
the Financial Handbook Vol. III (Part 1, Chapter 6) came to be deleted with regard to payment of casual labourers and the said Office Memorandum",,
dated 12.02.1999 also clarified that the casual labourers who have already been conferred with temporary status and have completed ten years of,,
service were to be regularized. It appears from the record that in order to avoid any anomaly, The Government of India, Department of Tele",,
Communication, vide Circular No. 269-13/99-STN.II dated 01.09.1999, issued further clarification and clarified that the date for conferment of",,
temporary status to such class of casual labourers would be effective from 01.09.1999, i.e. the date of issue of the Circular dated 01.09.1999 and in",,
case of regularization of temporary status Mazdoors eligible as on 31.03.1997 would be 01.04.1997.,,
(iv) Again, by a letter dated 29.09.2000, the Department of Telecom Services, Government of India, authorized all the Chief General Managers of the",,
BSNL to regularize eligible casual labourers up to 01.08.1998 as per Circular dated 12.02.1999 and to disengage those ineligible labourers forthwith.,,
As stated above, the BSNL came into existence with effect from 15.09.2000 and pursuant to the order passed by the learned Central Administrative",,
Tribunal (CAT), Guwahati Bench, in Original Application No. 297/2001, the BSNL decided to scrutinize the engagement particulars of all the casual",,
labourers engaged by the erstwhile Department of Tele Communication.,,
Accordingly, the cases of the present respondents were also scrutinized by the Verification Committee constituted for that purpose and the said",,
committee held that the present respondents could not satisfy the eligibility criteria under the scheme and, as a result, their cases were not considered",,
favourably and by passing a speaking order dated 26.12.2002, the respondents were also informed about the same. It is also a matter of record that",,
the present respondents were not applicants in O.A. 297/2001. However, the respondents, thereafter, after a time lapse of about ten years approached",,
the learned CAT, Guwahati Bench, by filing O.A. 239/2012 without mentioning about the order dated 26.12.2002. In the proceedings of the said O.A.",,
239/2012, the respondents herein made statements without any basis that they were still continuing to work as casual labourers under the BSNL.",,
Initially, by an order dated 13.08.2012, status quo was granted in O.A. 239/2012. Although the services of the present respondents had already been",,
disengaged, as a matter of compliance of the order of the CAT dated 13.08.2012, the BSNL considered the comprehensive representations submitted",,
by the present respondents and, by a speaking order dated 28.01.2013, their representations came to be considered and rejected. Thereafter, the",,
respondents again approached the learned CAT, Guwahati Bench, through Original Application No. 261/2013 challenging the order dated 28.01.2013",,
passed by the BSNL on their comprehensive representations. The BSNL contested the said Original Application and contended inter alia that the,,
respondents were disengaged way back in 1998. It was also contended that the cause of action arose on different dates as they had been disengaged,,
on different dates from 01.01.1998 to 13.06.1998, which had been communicated to them by a speaking order dated 26.12.2002. It was also",,
contended that the claim of the respondents was clearly barred by limitation under section 20 and 21 of the Administrative Tribunals Act, 1985. It is",,
also alleged that the respondents have suppressed the fact that they had earlier approached the Tribunal by filing O.A. 239/2012. Ultimately, the said",,
proceedings (O.A. 261/2013) culminated into the final order dated 29.05.2015, which is impugned in the present writ petition on various grounds.",,
3. The respondents have filed an affidavit-in-opposition and the petitioners have also filed their rejoinder denying the contentions raised by the,,
respondents in their affidavit-in-opposition.,,
4. Heard Mr. B. Pathak, learned counsel for the petitioners, and Mr. H. K. Das, learnd counsel appearing for all the respondents.",,
5. We have also perused the record of the petition including the affidavit-in-opposition and the affidavit-in-reply. We have also perused the impugned,,
judgment and order.,,
6. Mr. Pathak, learned counsel for the petitioners has taken this Court through the impugned order and has contended that the impugned order is bad",,
in law and is liable to be quashed as the respondents have suppressed material fact and also the fact that they had not challenged the speaking order,,
dated 26.12.2002, by which their claim for conferment of temporary status had been rejected by the BSNL authority. Mr. Pathak has further",,
contended that the learned Tribunal has believed the statements made by the respondents, which are false to the effect that they are continuing in",,
service, whereas they have shown on their own that they stood disengaged in the year 1998, which is clear from the orders dated 26.12.2002 and",,
28.01.2013 passed by the petitioner authority.,,
7. Mr. Pathak has contended that the learned Tribunal has failed to appreciate the provisions of the scheme and has also ignored the fact that the,,
scheme of 1989 is not an ongoing one but was introduced as a one-time measure. It is also contended by the learned counsel for the petitioners that,,
the said scheme was in consonance with the ratio laid down by the Hon’ble Apex Court in the case of General Manager, Uttaranchal Jal",,
Sansthan vs. Laxmi Devi & Ors., reported in (2009) 7 SCC 205. Mr. Pathak further contends that as such no reasoning is given by the Tribunal for",,
giving direction to the present petitioners (original respondents) to confer temporary status to the present respondents (original applicants). It is also,,
contended by the learned counsel for the petitioners that even as per the judgment of the Hon’ble Apex Court in the case of Secretary, State of",,
Karnataka & Others vs. Umadevi (3) and Others, reported in (2006) 4 SCC 1, which was relied upon by the petitioners before the Tribunal, no such",,
status can be conferred upon the respondents de hors the scheme.,,
8. Mr. Pathak also contended that the Tribunal has also not thoroughly examined the aspect whether the respondents fulfill the eligibility criteria for,,
applicability of the scheme or not and has directly passed an order for considering the case of the respondents for conferment of temporary status. On,,
the aforesaid grounds, it is contended by Mr. Pathak that the writ petition deserves to be allowed.",,
9. Per contra, Mr. H. K. Das, learned counsel for the respondents has supported the impugned judgment and has contended that the Tribunal has",,
considered all the relevant provisions of the scheme and has rightly came to the conclusion that the scheme would be applicable to the respondents,,
and has committed no error in directing the respondents to apply the provisions of the scheme and to confer temporary status upon the respondents.,,
Mr. Das has contended that there is no error apparent on the face of records, which requires interference of this Court in exercise of extra-ordinary",,
jurisdiction under Article 226 and 227 of the Constitution of India, and the writ petition being meritless deserved to be dismissed.",,
10. No other or further submissions, grounds or contentions have been raised by the learned counsel appearing for the parties.",,
11. As can be seen from a bare reading of the impugned judgment passed by the Tribunal, it clearly indicates that the Tribunal has no doubt narrated",,
the contentions raised by both the sides before it, but has not given any reason for the final direction which is given in paragraph 16 of the impugned",,
judgment except holding that the order dated 28.01.2013, by which the representations of the present respondents were rejected, was de hors the",,
scheme. It is a matter of fact that the scheme was a one-time measure as per the binding decision of the Hon’ble Apex Court in the case of,,
Umadevi (supra). As narrated hereinabove, by the Circular dated 07.11.1989, the scheme was evolved for conferment of temporary status on casual",,
labourers, which provides as under:",,
“IN THE DEPARTMENT OF TELECOMMUNICATIONS,,
1. Regularization of Casual Labourers of Department of Telecom and conferment of temporary status â€" 1. A Scheme for conferring,,
temporary status on casual labourers who are currently employed and have rendered a continuous service of atleast one year has been,,
approved by the Telecom Commission. Details of the Scheme are furnished in the Annexure.,,
2. Immediate action may be taken to confer temporary status on all eligible casual labourers in accordance with the above scheme.,,
3.1 Instruction were issued to stop fresh recruitment and employment of casual labourers for any type of work in Telecom Circles/Districts.,,
Casual labourers could be engaged after 30.03.1985. In Project and electrification Circles only for specific works and on completion of,,
the work the casual labourers so engaged were required to be retrenched. According to the instructions subsequently issued, fresh",,
recruitment of casual labourers even for specific works for specific periods in Projects and Electrification Circles also should not be,,
resorted to.,,
3.2 In view of the above instructions normally no casual labourers engaged after 30.03.1985 would be available for consideration for,,
conferring temporary status. In the unlikely event of there being any cases of casual labourers engaged after 30.03.1985, requiring",,
consideration for conferment of temporary status, such cases should be referred to the Telecom Commission with relevant details and",,
particulars regarding the action taken against the officers under whose authorization/approval the irregular engagement/non-retrenchment,,
was resorted to.,,
3.3. No casual labourer who has been recruited after 30.03.1985 should be granted temporary status without specific approval from this,,
Office.,,
4. The Scheme furnished in the Annexure has the concurrence of Member (Finance) of the Telecom Commission, vide No. SMF/78/89, dated",,
27.9.1989.,,
Annexure,,
Casual Labourers (Grant of Temporary Status and Regularization) Scheme,,
1. This Scheme shall be called “Casual Labourers (Grant of Temporary Status and regularization) Scheme of the Department of,,
Telecommunications, 1989â€.",,
2. This Scheme will come into force with effect from 1.10.1989 onwards.,,
3. This Scheme is applicable to the casual labourers employed by the Department of Telecommunications.,,
PROVISIONS,,
4. The provisions in the Scheme would be as under â€",,
(A) Vacancies in the Group ‘D’ Cadres in various offices of the Department of Telecommunications would be exclusively filled by,,
regularization of casual labourers and no outsiders would be appointed to the cadre except in the case of appointments on compassionate,,
grounds, till the absorption of all existing casual labourers fulfilling the eligibility conditions including the educational qualifications",,
prescribed in the relevant recruitment rules.,,
However, regular Group ‘D’ staff rendered surplus for any reason will have prior claim for absorption against existing/future",,
vacancies.,,
In the case of illiterate casual labourers, the regularization will be considered only against those posts in respect of which illiteracy will not",,
be an impediment in the performance of duties.,,
They would be allowed age relaxation equivalent to the period for which they had worked continuously as casual labourer for the purpose,,
of age limits prescribed for appointment to the Group ‘D’ cadre, if required.",,
Outside recruitment for filling up the vacancies in Group ‘D’ will be permitted only under the condition when eligible casual,,
labourers are NOT available.,,
(B) Till regular Group ‘D’ vacancies are available to absorb all the casual labourers to whom this scheme is applicable, they would",,
be conferred a temporary status, as per the details given below.",,
5. Temporay Status,,
(i) Temporary Status would be conferred on all the casual labourers currently employed and who have rendered a continuous service of at,,
least one year, out of which they must have been engaged on work for a period of 240 days (206 days in the case of offices observing five",,
days week). Such casual labourers will be designated as Temporary Mazdoor.,,
(ii) Such conferment of temporary status would be without reference to the creation/availability of regular Group ‘D’ posts.,,
No change in duties,,
(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 a need basis. He may be deployed anywhere within the recruitment unit/territorial circles 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.,,
Entitlement,,
6. Temporary status would entitle the casual labourers to the following benefits:-,,
(i) Wages at daily rates with reference to the minimum of the pay scale for a regular Group ‘D’ official including DA, HRA and CCA.",,
(ii) Benefits in respect of increments in pay scale will be admissible for every one year of service subject to performance of duty for at least,,
240 days (206 days in administrative offices observing 5 days week) in the year.,,
(iii) Leave entitlement will be on pro rata basis, one day for every 10 days of work. Casual leave or any kind of leave will not be admissible.",,
They will also be allowed to carry forward the leave at their credit on their regularization. They will not be entitled to the benefit of,,
encashment of leave on termination of services for any reason of their quitting service.,,
(iv) Counting of 50% of service rendered under Temporary Status for the purpose of retirement benefits after their regularization.,,
(v) After rendering three years continuous service on attainment of temporary status, the casual labourers would be treated at par with",,
temporary Group ‘D’ employees for the purpose of contribution to General Provident Fund and would also further be eligible for the,,
grant of Festival Advance/Flood Advance on the same conditions as are applicable to temporary group ‘D’ employees, provided they",,
furnish two sureties from permanent Government servants of this Department.,,
(vi) Until they are regularized, they would be entitled to Productivity Linked Bonus only at the rates as applicable to casual labour.",,
7. No benefits other than those specified above will be admissible to casual labourers with Temporary Status.,,
Termination of Service,,
8. Despite conferment of temporary status, the services of a casual labourer may be dispensed with in accordance with the relevant",,
provisions of the Industrial Disputes Act, 1947, on the ground of non-availability of work. A casual labourer with temporary status can quit",,
service by giving one month’s notice.,,
9. If a labourer with temporary status commits a misconduct and the same is proved in the enquiry after giving him reasonable opportunity,",,
his services will be dispensed with. They will not be entitled to the benefits of encashment of leave on termination of services.,,
10. The Department of Telecommunications will have the power to make amendments in the Scheme and/or to issue instructions in detail,,
within the framework of the Scheme.â€,,
Sl. No.,Name,Date of disengagement
1,Nipu Hazarika,10.06.1998
2,Pobitra Chutia,01.01.1998
3,Atul Gogoi,01.06.1998
4,Sri Jitul Neog,01.01.1998
5,Mafizur Rahman,01.04.1998
6,Durgeswar Khanikar,01.06.1998
7,Mahendra Borah,01.06.1998
8,Sunaber Ali,01.06.1998
9.,Bipin Borah,01.06.1998
10.,Rati Kanta Gogoi,01.06.1998
11,Anil Changmai,01.01.1998
12,Moni Kanta Chutia,01.01.1998
13,Promod Gogoi,13.06.1998
14,Bhaben Gogoi,01.04.1998
15,Alauddin Ahmed,01.04.1998
16,Jitu Hazarika,05.06.1998
17,Mridul Lahon,01.06.1998
18,Dipen Hazarika,01.06.1998
19,Makan Gogoi,01.05.1998
20,Binoy Gogoi,01.06.1998
21,Dharani Gogoi,01.06.1998
22,Nirupama Buragohain,01.06.1998
