Union of India Vs R. Paramasivam and The Registrar, Central Administrative Tribunal <BR>Union of India Vs M. Abraham and The Registrar, Central Administrative Tribunal <BR>Union of India Vs P. Ramakrishnan and The Registrar, Central Administrative Tribunal <BR>Union of India Vs A. Ramakrishnan and The Registrar, Central Administrative Tribunal, City Civil Court Building

@JUDGMENTTAG-ORDER

R. Mahadevan, J.@mdashThese Writ Petitions have been filed against the common order dated 18.12.2012 passed by the Central Administrative Tribunal, Chennai in O.A. Nos. 1101 to 1104 of 2011. The applicants in the Original Applications are the first respondents in the respective Writ Petitions. The Original Applications were filed invariably seeking reinstatement as part time contingent chowkidar (night watchman) at Thiruparankundram Subordinate Office, Thathaneri Subordinate Office, K. Pudur L.S.G. Subordinate Office and Thirumangalam Subordinate Office respectively and for a consequential direction to absorb the applicants as Watchmen with all service benefits. For the sake of convenience, the first respondents shall be referred as applicants and the Writ Petitioners as petitioners.

2. The applicants were employed as Contingent Night Watchmen and had put in more than 8 years of continuous service. They also claimed to have worked more than 12 hours every day. As their service was terminated, they had filed the applications. In reply, the petitioners contended that the applicants were appointed purely on temporary basis and the said fact was well known to the applicants. Since there was no Recruitment Rules at the relevant time, the applicants were directly recruited, and as per the Rules no part time employee should be engaged and paid for more than 5 hours a day. Based on the policy decision to abolish all contingent posts, the services of the applicants have been terminated.

3. After considering the rival claims, the Original Applications were allowed by the Tribunal below reinstating the applicants with a direction to the petitioners herein to absorb them as Night Watchmen. However, on the basis of the principle No work, No pay, the applicants were held not eligible for any benefits during the period they were not in service. Aggrieved, the Writ Petitions have been filed.

4. The learned counsel for the petitioners submitted that a temporary employee does not have any right to seek absorption. He also contended that based on the policy decision of the Government, Group ''D'' posts have been upgraded to Group ''C'' posts and the Group ''D'' Recruitment Rules have also become redundant and therefore, the applicants are not entitled to any relief. Further, the applicants were only paid for 5 Hours and therefore, even if they had over worked, the same cannot be considered and therefore by any stretch of imagination, the applicants cannot be considered to be eligible for regularization referring to Rule 336 of the Financial Hand Book Volume-I. He contented that since the applicants were not appointed in any sanctioned posts, they cannot seek regularisation. By placing reliance upon the Judgment of the Hon''ble Apex Court reported in Man Singh Vs. Commissioner, Garhwal Mandal, Pauri and Others, the learned counsel argued that regularization of a person appointed temporarily is impermissible and that even preferential treatment cannot be given.

5. In reply, the learned counsel for the first respondent has argued that there is no perversity in the order passed by the Tribunal. The Tribunal below has rightly applied the judgments of the Hon''ble Apex Court in Umadevis case, followed by M.L. Kesari''s case. The learned counsel further placed reliance upon the recent Hon''ble Apex Court judgment reported in Nihal Singh and Others Vs. State of Punjab and Others, and V. Radhakrishnan, K.P. Gopal, N. Murali and J. Nicky Joseph Vs. The Registrar, Central Administrative Tribunal, Madras Bench, Union of India (UOI) and The State Forest Service College, and contended that the State cannot be permitted to take heinous defences like no sanctioned posts, the applicants were only engaged for 5 hours, etc., and therefore sought for dismissal of the Writ Petitions.

6. The applicants in all the Writ Petitions were engaged as Night Chowkidars. There is no dispute regarding their engagement and disengagement, except with regard to M. Abraham. According to him, he has been in service from 01.02.1994. However, according to the petitioners, his service was terminated on 26.05.2000 and re-engaged on 02.08.2000. Since, it is not an issue significant for deciding the case on hand, it is irrelevant. All the applicants were engaged as Night Watchmen to safeguard the properties of the Postal Department. Without any explanation, it can be understood that the role of night watchman is to guard the premises during entire night hours. In the instant case, the applicants have contended by swarming an affidavit that their services were utilized during the entire night hours and that throughout the period of service, they worked not less than 12 hours daily. The argument of the petitioners that since they were paid only for 5 hours duty, they can be treated as having worked only for 5 hours does not hold water. As rightly observed by the Tribunal, the petitioners had not produced any material to show that the services of other chowkidars were engaged for the rest of night hours. From the very contention that the applicants had overstayed, it is proved beyond doubt that the applicants had worked throughout the night.

7. The next contention of the learned counsel for the first respondent is that the applicants were appointed purely on temporary basis and such appointment was not to any sanctioned posts. We have perused the appointment orders. What can be seen from the appointment orders is that the appointments were made based on initial necessity as per the scheme floated on 25.04.1991 and subsequently, brought under Group ''D''. As per clause 2 of the Scheme, such casual labours engaged for more than 8 hours are paid based on daily rates on par with regular Group ''D'' official including DA, HRA and CCA. Further, as per clause 5, they were also entitled for retirement benefits after regularization as regular Group ''D'' official. The scheme itself provided for regularization under clause 12. Once, the post is brought under a particular category and emoluments are finalized based on certain rules, the post should be deemed to be regularized. It is not the case of the petitioners that the post was created for a particular period. The necessity of night watchman cannot be withered away and is permanent. The salary to the applicants are paid by the petitioners based on the rates prescribed in Rule 336 and fixed by the Pay Commission. Therefore, in reality, the applicants have already been treated on par with regular employees. It is also not the case of the petitioners that the recruitment of the applicants are contrary to the scheme as it was in force then. Therefore, the judgment reported in Man Singh Vs. Commissioner, Garhwal Mandal, Pauri and Others, relied upon by the learned counsel for the petitioners is not applicable to the present facts of the case.

8. On the contrary, the ratio of the Hon''ble Apex Court in Umadevis case, followed by M.L. Kesaris case, as rightly observed by the Tribunal is applicable. The Hon''ble Apex Court in the judgment reported in Nihal Singh and Others Vs. State of Punjab and Others, directed the services of ex-servicemen, who were employed as Special Police Officers for more than two decades to be regularized even though the posts were not sanctioned posts, observing in paragraph 21 of the judgment as under:

But we do not see any justification for the State to take a defence that after permitting the utilisation of the services of large number of people like the appellants for decades to say that there are no sanctioned posts to absorb the appellants. 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.

In para 36, the Hon''ble Apex Court also observed that the decision in Umadevis case cannot be used as licence for exploitation by the state and its instrumentalities.

9. Under similar circumstances, one of us (N.P.V., J.) in a batch of cases reported in G. Baskar Don Bosco Vs. The Government of Tamil Nadu, The Management of Bharat Heavy Electrical Limited and The Presiding Officer, Labour Court justified the claim of the petitioners therein and ordered reinstatement. The said order was affirmed by the Division Bench of this Hon''ble Court reported in The Management of Bharat Heavy Electricals Ltd. Vs. The Presiding Officer, Labour Court and M. Ganesan, . The SLP filed against the said judgment was also dismissed.

10. The underlying principle that emanate from the Judgment of the Hon''ble Apex Court in the above decisions and the Judgment of this Hon''ble Court reported in V. Radhakrishnan, K.P. Gopal, N. Murali and J. Nicky Joseph Vs. The Registrar, Central Administrative Tribunal, Madras Bench, Union of India (UOI) and The State Forest Service College, is that the services of employees must not be exploited over a period of time, without giving permanent status to them. From the pleadings and contentions, it can be seen that the petitioners are taking contrary stand regarding existence of recruitment rules. On one hand they say that the appointment was made directly as there were no Recruitment Rules and also contend that the Recruitment Rules to Group ''D'' post has been redundant. Therefore, the petitioners cannot be permitted to contend that the appointment of the applicants were not as per the Recruitment Rules. Even though, the petitioners claim that the Group ''D'' posts have been abolished and the Recruitment Rules have become redundant, it is not the case of the petitioners that there is no necessity for night watchman.

11. Further, we find that the post can be accommodated in the category of Multi-Tasking Staff. Even as per the Gazette Notification based on which the services of the applicants have been terminated, it can be seen that there is provision for appointment from casual labourers and in the absence of direct recruitment as per the scheme circulated by the Department of Posts, from time to time. The scheme dated 25.04.1991 also provides for regularization of casual employees as regular Group ''D'' official. The petitioners have also accepted the verdict of this Hon''ble Court in W.P. No. 15438 of 2008 dated 30.07.2008 and regularized the services of one R. Durairaj as watchman, who was also a causal labourer like the applicants before the Central Administrative Tribunal. No distinguishing fact is also pleaded by the petitioners before the Central Administrative Tribunal. We do not find the existence of any valid reasons for the petitioners to take a different stand against the applicant in view of our findings above. Therefore, we do not find any illegality in the orders passed by the Tribunal and the petitioners are directed to implement the order of the Central Administrative Tribunal dated 18.12.2012, within three months from the date of receipt of a copy of this order. The Writ Petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.