Amar Nath Chowdhury and Others vs Union of India (UOI) and Others

Kalyan Jyoti Sengupta, J.—I have had the benefit of reading the draft judgment of my learned Brother and I record my concurrence with the order passed by His Lordship, however, I wish to add a few words of my own. The fact of the case has been recorded in details by my learned Brother, the summary of which is that the applicants worked as casual workers in the establishment of Geographical Survey of India and they performed their duties in various positions such as clerk, machine operator, cable operator, store keeper etc. They rendered continuous service for 206 days or: more in a single year or in two consecutive years from the date of 1984 until they were disengaged by an order dated 17th May, 1990. They claimed that by virtue of Office Memorandum dated 26th October, 1994 they were entitled to be regularized instead of being disengaged going by the number of days they worked. Being aggrieved by the order of disengagement 35 casual workers along with the present applicants filed an application before the learned Tribunal being O.A. No. 726 of 1990. The said application was heard and disposed of upon contest by an order dated 17th February, 1994. By the said order dated 17th February, 1994 the respondent-authority was directed amongst others, to review the working of all other remaining applicants except applicant No. 23 therein and if, their period of service is within the criteria fixed in the circular they shall be regularized; if any opportunity arises for engagement of casual workers, the respondent-administration shall consider the cases of the applicants for such engagement along with others keeping in view of the length of service they are putting and experience earned thereby. The said direction was not carried out at the first instance by the respondent, so a contempt application was filed and thereafter the respondent-authority in terms of the order dated. 17th February, 1994 considered the respective eases including applicants herein and passed several orders all dated 28th February, 1997. By those orders the claim and contention of all the applicants have been rejected. Being aggrieved by the said orders passed in compliance of the said order dated 17th February, 1994 the applicants herein filed subsequent application being O.A. No. 691 of 1997 on which the impugned order was passed. The said application was contested by the respondents. Upon hearing, the learned Tribunal dismissed the application observing that the claim and contention of the applicants have been considered by the respondent authority appropriately and in accordance with the scheme and policy decision. The learned Tribunal observed that reasons given by the respondent-authority are acceptable. It is recorded and observed by the learned Tribunal that some of the applicants though rendered their services for. minimum number of working days in a year they were over-aged at the time of initial engagement in terms of the norms while rest of the applicants did not render their services for minimum number of days in a year as per this office memorandum.

Thus, the question posed before us is whether the learned Tribunal has correctly examined several orders in the context of the judgment and order passed by it previously and the office memorandum as recorded in the earlier judgment dated 17th February, 1994 or not.

In order to consider the aforesaid issue we think that the direction of the learned Tribunal passed on 17th February, 1994 is to be read carefully and the scope and purport thereof examined for which we reproduce the relevant portion thereof hereunder:

(a) The respondent-administration shall review the working of all other remaining applicants except applicant No. 23 and if their period of service availed within the criteria fixed in the circular they shall also be regularized.

(b) If any opportunity arises for engagement of casual workers the respondent-administration shall consider the cases of the applicants for such engagement along with others keeping in view the length of service they are putting and the experience earned thereby. In passing the said judgment and order the learned Tribunal has recorded and considered the office memorandum dated 7th June, 1988 issued by Ministry of Personnel, Public Grievance and Pension, Department of Personnel and Training relating to recruitment of casual workers and the persons on daily wages review policy.

In the said circular it is provided as has been observed by the learned Tribunal that any casual employee putting more than 206 days of service in a years or in two consecutive years is entitled to be regularized. The respondents were directed to consider the case by the judgment and order dated 17th February, 1994 in the light of the Circular dated 7th June, 1988. The respondent-authority, it appears, considered the cases of the applicants herein individually and separately in the manner as follows:

The applicants, Amarnath Chowdhury, Tapan Kumar Dutta were found to be over-aged at the time of the initial appointment and their case for regularization was rejected, however, their names have been empanelled for future engagement as casual workers as and when required by the department concerned. Consequently, they do not have any claim for regularization in future. The claim of rest of the applicants, Sambhunath Ghose and Sudarshan Auddya were considered for regularization and/or absorption and it was found upon scrutiny that they had completed only 206 days of continuous service in one single year. Therefore, their names have been empanelled for future engagement as casual workers'' as and when required by the department. As such, they do not have any claim for regularize lion of their service in future. It is pertinent to mention that in these two orders there is no whisper whether their case was considered in the light of the office memorandum dated 7th June, 1988. The claim of the remaining applicants viz. Tarak Majumdar, Kajal, Tapan Kumar Dey, Tapan Naskar, Tapan Bhattacharya, Dinesh, Ram Kumar Chatterjee and Ram Krishna Mondal were also considered and it was found upon consideration that as they did not complete 206 days of continuous service in any single year so their claim for regularization was not considered. It appears from the said orders that the department concerned considered the Office Memorandum No. 4901/5/71/C dated 6th July, 1979 of DOPT. We are of the view that their case, was not considered in the light of the earlier judgment dated 17th February, 1994 as by the aforesaid judgment the respondent was obliged to consider the case taking note of the office memorandum dated 7th June, 1988. On that ground alone those orders could have been set aside by the learned Tribunal and the department concerned should have been asked for taking a fresh decision.

But we feel that the controversy between the parties is an old and long outstanding one and it is unnecessary to drive the litigants once again to the department or the learned Tribunal to take fresh decision, so we thought it fit to examine by ourselves, what are the requirements for regularization in terms of the above Circular.

Now the relevant portion of the Circular being OM No. 4904/2/86 -CSTT(C) dated 7th June, 1988 with regard to regularization is quoted hereunder: (Page 65 of the present: petition)

The regularization of the service of the casual workers will continue to be governed by the instruction issued by this department in this regard. While considering such regularization a casual worker may be given relaxation in the upper age limit Only if at the time of initial recruitment as a casual worker he had not crossed the upper age limit in the relevant post.

Thus under the scheme the age limit is one of the criteria for absorption at the time of initial recruitment, apart from continuous working of the minimum number of days in a year. We have already noted that Amar Nath Chowdhury and Tapan Kumar Dutta were found to be over aged. Therefore, the rejection of their claim is not illegal or unjustified as they could not produce any document showing that they were not over aged at the time of initial appointment by producing their age certificate before us or before the learned Tribunal. My learned Brother has already taken note of the relevant provisions of the Evidence Act namely Section 106 as what is the age of a particular person, is within his own specific knowledge and onus is upon him to prove the same. We think applicants Sambhu Nath Ghosh and Sudarshan Auddya though found to have fulfilled age criteria were not regularized, because they were found not to have completed more than 206 days of services in consecutive two years which is direction of the learned ''Tribunal. On fact they do not fulfil the condition mentioned in the Office Memorandum of 1978 and the direction given in the Tribunal. This Court cannot make any roving enquiry in this regard. The rest of the applicants were found that they did not complete 206 days of continuous service in any single year. This fact findings cannot be upset by us. Mr. Amzad Ali contends that this fact findings is based on no evidence as it would be cleared from the statement made in the affidavit in reply filed before the learned Tribunal that the records are not available nor traceable. Statement of nonavailability was made in the previous application being OA No. 276 of 1990, but the same does not appear to have been accepted by the learned Tribunal while rendering decision on 17th February, 1999 as in spite of such statement the learned Tribunal directed to consider cases of all the applicants. The learned Tribunal in the said previous judgment noted that the casual employees putting more than 206 days of service in consecutive two years is entitled to be regularized and it was also noted that the applicants therein, some of which are applicants herein, were admitted to have worked in the establishment of the respondents, but how many day they worked, were requited to be ascertained. This judgment and order of the learned Tribunal had not been appealed against, as such it reached its finality. Thus it is clear the learned Tribunal was satisfied that there must be some materials or documents where from it could be ascertained that the applicants herein fulfilled the conditions as regard age limit, number of days of working. We are, therefore, unable to accept the contention because of previous statement made in the affidavit by the respondents as regard non-availability of records subsequent findings of fact should be upset as a matter of course. Even if it is assumed that the records are not available from the custody of the department, but the same is not only and single source of evidence. The applicants themselves could prove, but they are unable to substantiate that they worked more than 206 days of continuous service in consecutive two years, We cannot take any adverse inference just because records are not available. Adverse inference can be drawn when records, though available are not produced and further such records is only and exclusive source of proof.

In this connection position of the law with regard to proof is very clear in Section 102 of the Evidence Act which is quoted hereunder.

On whom burden of proof lies: The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

Thus in the facts and circumstances of this case the burden obviously lies with the applicant as evidence of their working or their age are not proved by any evidence. Therefore, their case automatically fails as they could not bring evidence in support of their case. It appears to us there must be some records available otherwise one or two candidates could not have been regularized in terms of the earlier judgment of the learned Tribunal. As a matter of fact while reading the judgment of the learned Tribunal we noticed that the applicants at the time of hearing prayed for production of further document in support of the claim or they may be permitted to make fresh representation enclosing available documents in support of their case before the competent authority. This recording of the submission of the learned Counsel is not questioned nor stated to be an untrue here. Therefore, the applicants were cognizant of the fact that they were in a position to prove their case. It is submitted that it is not necessary one has to render service for more than 206 days in two consecutive years. We are of the view such contention of Mr. Ali cannot be accepted in view of the earlier judgment and order of the learned Tribunal where by it was observed specifically that one of the criteria is to put in more than 206 days of service in consecutive two years. These findings is subsisting as not being upset.

It is settled position of law that absorption or regularization can only be done under the relevant recruitment rules or any scheme framed thereunder. This proposition of law time and again has been reiterated by the Hon''ble Supreme Court in the following amongst other judgments:

Director, Doordarshan Kendra, Trivandrum and Others Vs. S. Kuttan Pillai and Others, , Union of India (UOI) and Others Vs. Mukesh Srivastava and Others, and lastly in the decision of the Constitution Bench in (State of Karnataka and Ors. v. Uma Devi and Ors. 2006 (109) FLR 826 (SC) : 2006 (42) AIC 935 (SC)) the ratio of those judgments has been already analyzed by my learned Brother and I do not wish to repeat the same.

It is suffice to say that the claims of the applicant are not permissible under the scheme of the regularization of the Office Memorandum dated 7th June, 1998 read with the previous judgment and order of the learned Tribunal dated 17th February, 1994.

Prasenjit Mandal, J.

This application is directed against the order dated 14.7.2003 passed by the Central Administrative Tribunal, Calcutta Bench in O.A. No. 691 of 1997 wherein the learned Tribunal has dismissed the application of the petitioners for regularisation of their services.

The facts of the case in short are that the petitioners were engaged as casual workers for doling various types of jobs such as clerical machine operator, store keeper, etc. in the Geological Survey of India and they got their remuneration for doing their respective jobs by signing on the vouchers, They had been working since 1984 on number days in a year, till they were disengaged by the circular dated 17.5.1990, A casual worker serving for a period of 240 days in case of 6-day a week and 206 days in case of 5-day a week for two consecutive years is entitled to be regularised as per circular of the respondents. Subsequently, other circulars were issued one of which was to the effect that the casual workers working for a period of 206 days in a 5-day a week system served for two years should be regularised in the Group-''D'' departing from earlier circular mentioning qualifying words Consecutive or Continuous. In 1990 thirty five casual workers filed an application u/s 19 of the Administrative Tribunals Act, 1985 being No. 726 of 1990 before the Central Administrative Tribunal, Calcutta Bench, which was heard and disposed of directing the respondents to consider the case of the applicants including the present applicants for engagement in the Group-''D'' services. Thereafter the respondent, authorities engaged some of the petitioners of the O.A. No. 726 of 1990 leaving the applicants herein. Being aggrieved by the said order of selective implementation of the order dated 17.2.1994, the petitioners herein preferred another application O. A. No. 691 of 1997 before the same Tribunal, Calcutta Bench.

The respondent-authorities contested subsequent application contending, inter alia, that out of the said applicants only two casual workers had worked for a period of 206 days or more in two consecutive years but. they were over-aged and for that reason none of the applicants could be regularised. So their application should be dismissed.

The learned Advocate for the petitioners has submitted that the contention of the respondent-authorities cannot be accepted because in the earlier application u/s 19 of the Administrative Tribunals Act, 1985 filed by the petitioners and Ors. the respondent-authorities contended, inter alia, that the records were not available and had been destroyed according to the Rules of preservation of the documents and thus aforesaid plea of rejection of the claim of the petitioner is without any basis. The learned Advocate of the writ petitioners has also assailed the judgment of the learned Tribunal in O.A. No. 691 of 1997 on the ground that the learned Tribunal did not consider at all the materials furnished by them as R-1 and R-2 in their affidavit -in-reply.

True, that the respondent-authorities are not in a position to produce the records in respect of the engagement of the casual workers including the petitioners, but from the annexures filed in the writ application it is evident that pursuant to the order of the learned Tribunal the respondent-authorities considered the case of the individual applicants to see whether regularisation is possible. The learned Tribunal discussed each and every individual cases and passed reasoned orders which were based on the documents available, It is no part of the obligation of the respondents to preserve documents for indefinite period in anticipation of litigation to be filed in future. It is the applicants who are expected to have the documents in support of their claim that they were not over - aged at the time of initial recruitment that is on 1.5.1990. The possession of the document relating to age that is the birth certificate like other document must be within the special knowledge of the concerned applicant and as such according to Section 106 of the Evidence Act, they are supposed to prove that they were not over-aged on the date of their initial engagement that is on 1.5.1990. So in respect of those two applicants that is namely, Amar Nath Chowdhury and Tapan Kumar Dutta who were described as over-aged on the date of initial engagement that is on 1.5.1990 and 3.5.1997 respectively, we hold cannot be considered at all. As regard the fate of the rest of the applicants, we hold there being no document on either side in support of the engagement for a period of 206 days in case of 5-day a week for two years, their case is bound to fail.

The learned Advocate for the petitioners has contended that from the two documents namely Annexures R-1 and R-2 annexed to the affidavit-in-opposition of the respondents it will reveal that the respondent-authorities are bound to recruit Group-''D'' employees from the additional staff engaged on daily wages basis and that the Government has been requested to take appropriate actions with regard to absorption of the eligible casual employees in accordance with the rules published therein. We are unable to accept this contention of the learned Advocate for the writ petitioners, we hold that those two annexures do not support the case of the petitioners at all because there are certain terms and conditions which are to be complied with by the concerned daily wage staff before being absorbed lawfully, such as casual employees should have been engaged through Employment Exchange, rendering continuous six months service, maximum age limit on the date of regularisation after deduction of the period in which they worked as casual employees, must be -below the age limit on the date of regularisation, requisite qualification required for regularisation in the Group - ''D'' post completion of two years service including the condition of 206 days in case of 5-day a week, etc. The writ petitioners did not have any document except bare statement to show the eligible criteria according to such annexures before the learned Tribunal. They having failed to show compliance of such conditions are not entitled to be considered at all for the regularisation of their services in the Group-''D'' post.

Above all, the writ petitioners failed to show that there was any scheme for regularisation at the time of their initial appointment, In absence thereof, the case of absorption of the petitioners cannot be accepted at all. In this regard, reliance may be placed in the case of Director, Director, Doordarshan Kendra, Trivandrum and Others Vs. S. Kuttan Pillai and Others, and Union of India (UOI) and Others Vs. Mukesh Srivastava and Others, . The petitioners have failed to show that there was any scheme for regularisation of their service at the time of their initial engagement as casual workers. The learned Tribunal has rightly concluded that the petitioners have failed to make out a case for their regularisation. Above all, the Apex Court has held in the case of Secretary, State of Karnataka and Ors. v. Umadevi and Ors. 2006 (109) FLR 826 (SC) : 2006 (42) AIC 935 that the wide powers under Article 226 are not intended to be used for issuance of directions for regularization/absorption of casual workers to defeat the concept of social justice, equal opportunity for all and the constitutional scheme of public employment. The Apex Court has also observed:

when a person enters into a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection....

During argument Mr. Ali, learned Senior Advocate for the writ petitioners, has submitted that after disposal of the first O.A. application No. 726 of 1990 the respondent-authorities gave appointments to some of the writ applicants leaving 15 as not being eligible. Thus, the respondent-authorities had accepted the policy of pick and choose. We are of the view that such submission cannot be accepted because whenever the respondent-authorities or the concerned applicants were able to show the fulfilment of the criteria for absorption, those applicants were absorbed. In the case of rejection, the respondent-authorities had given reasons in details in each individual case. The petitioners are not able to show any material contrary to the observations made by the respondent-authorities in the individual case. So such submission of Mr. Ali cannot be accepted. We do not deem fit that there is any scope for issuing directions upon the respondent-authorities to decide the matter afresh with respect to the present applicants. In the circumstances, findings of the learned Tribunal cannot be said to be perverse at all.

In view of the above discussion, we do not think that the learned Tribunal has done wrong dismissing O.A. application No. 691 of 1997. There is nothing to interfere with the said judgment and order.

Accordingly, the instant application is dismissed.

Considering the circumstances, there will be no order as to costs.

Urgent xerox certified copy of this order, if applied for, be made available to the learned Advocates for the parties on compliance of all formalities.