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Judgment
K.P. Sivasubramaniam, J.—In these three writ petitions, three erstwhile casual employees/Drivers who were working under the first
respondent Indian Airlines (I.A.) are aggrieved by their non-selection and appointment as regular Drivers.
In W.P. No. 40768 of 2002, the petitioner states that he is a qualified automobile driver having obtained a valid driving licence in the year 1985.
Subsequently, he obtained endorsement to drive heavy vehicles from the year 1991. He has been continuously working as a driver with good
experience. He was also working as a casual driver with the first respondent on and from 18.11.1995 to 23.3.2001. The practice adopted by
Indian Airlines was to engage casuals for a maximum period of 180 days and give them an artificial break when they were about to complete 180
days. The said practice was adopted for the purpose of depriving the benefits of an employee becoming permanent. Though there are large
number of vacancies, the Airlines was adopting the practice of maintaining a list of casuals. Such method is adopted only to avoid benefits due to
permanent employees. The petitioner was serving the Airlines sincerely and faithfully for about eleven years. During the period when he was kept
out of job, he was doing regular work in private transports as detailed in the affidavit.
The Airlines was repeatedly promising that persons who have been working as casuals will be given priority and permanent employment as and
when there was recruitment. It was the statutory duty of the respondent u/s 25-H of the Industrial Disputes Act to do so. By Employment Notice
No. 22 of 1997 dated 15.9.1997, applications were called for from ex-casual drivers for the post of driver. By letter dated 28.2.1998, he was
called for trade test/interview on 23.3.1998. He attended the test and interview and he was selected and empanelled. However, though he passed
the trade test and interview and empanelled as Sl. No. 24, as a result of a simultaneous issue of employment notice calling for applications from the
general category, he was not employed as a permanent driver.
Thereafter, the Airlines issued another employment notice No. 6 of 2001 dated 28.9.2001 for the same post of driver. Though the notice
contemplates relaxation of age for those who had worked as casual drivers, there was no mention of any priority to such ex-casual drivers. On
enquiry, the petitioner was informed that priority for ex-casuals will be given at the time of the interview. The petitioner believed the representation
and submitted his application dated 26.10.2001. An interview was conducted between 1.4.2002 and 12.4.2002. About 60 applicants were
declared to have passed the trade test/interview. However, suddenly, on 19.4.2002, the Airlines called for a separate trade test and interview for
13 applicants alone. Several persons who were working as casual workers and with no working experience as drivers were amongst the said 13
and nine of them were declared to have passed the trade test and interview. Respondents-3 and 4 who had worked only as loaders without
working experience as drivers were also among the 13. The petitioner also alleged that a separate interview was conducted on 19.4.2002 only for
the purpose of favouring a few chosen persons for extraneous reasons. He would also state that the second respondent was very much junior to
the petitioner as a casual driver having worked only for 39 days, that too after the engagement of the petitioner in 1995. Hence, the above writ
petition.
In the counter affidavit filed by the respondent, it is stated that the petitioner having taken part in the selection process pursuant to the
employment notice without any protest, is estopped from challenging the employment notice. Hence, the writ petition was not maintainable. The
petitioner, as a casual employee, has no right much less legal right to claim any preference. He cannot claim any back-door entry into the regular
service, nor can he claim regularisation of service contrary to the rules.
It is further stated that 29 vacancies of drivers were released by the Headquarters to be filled up in the various stations in all the four states in the
Southern Region. Out of the said vacancies, 15 vacancies had to be filled up in Tamil Nadu. Filling up of vacancies have to be in accordance with
the recruitment and promotion Rules subject to reservation. Of the 15 vacancies in Tamil Nadu, five posts are reserved for Scheduled Caste, three
for Other Backward Classes and seven for the General Category. The eligibility criteria which was prescribed for the employment notice issued in
the month of September 2001 was that the candidate must have passed VIII Standard, must hold Heavy Vehicle Transport Driving Licence for at
least five years besides five years'' experience in a business house undertaking the job of driver. Age relaxation was given to casual daily rated
employees. Such of those candidates who fulfilled the eligibility criteria as on 1.10.2001 were called for trade test and those who were qualified in
the trade test were subjected to interview by a duly constituted Selection Board. Merit list of selected candidates was prepared in the order of
merit and appointment was to be made against available vacancies in the order of merit. About 439 applications were received from all the four
states including casual daily rated employees. 216 candidates fulfilled the eligibility criteria and they were called for trade test. Approximately 20
candidates were called for trade test followed by interview of the candidates for each day. Interview was held for eleven days in the month of
April, 2002. As far as the petitioner was concerned, he submitted his application on 25.10.2001. He belongs to O.B.C. Category. As the
petitioner was given age relaxation as per the policy of the company, he was called for the trade test and interview. He was invited for trade test
and was subjected to interview and after being qualified in the interview also, he was empanelled in the merit list of selected O.B.C. candidates.
The said panel was valid for two years. The allegation that the Airlines was engaging casual workers for ulterior motives are incorrect. In view of
the peculiarity of the Airline industry and to meet contingencies and unforeseen circumstances, casual daily rated drivers are employed from among
those who make themselves available for employment. In order to be fair and to provide equal opportunity, casual employment is offered by
rotation to those who are willing to make themselves available. They are not selected in a manner in which the regular employees are selected.
Further, it is open to the casual employees not to report for the work at all or on any day. Therefore, there was no possibility of maintaining any
seniority among them nor is it feasible to maintain a seniority list in respect of casual daily rated employees. The provisions u/s 25-H of the
Industrial Disputes Act will not apply to the facts of the present case. Casual engagement will not confer on the petitioner any claim to permanency.
The petitioner was offered casual employment on day-to-day basis as he was willing to make himself available during the said period when he was
not employed elsewhere.
As regards employment notice issued during 1997, the petitioner was empanelled in the merit list and appointments were made only in the order
of merit and the petitioner could not be appointed as there were no adequate vacancies during the validity of the panel which expired on
19.4.2000. The various other contentions raised by the petitioner in the context of experience and qualifications of respondents-2 to 4 were also
denied.
In the other two writ petitions also, similar contentions have been raised and the grounds are the same except for the individual claim of
experience and therefore, it is not necessary to deal with the pleadings in the other two writ petitions.
Mr. Sundar, appearing for the petitioners contends that the right of casual workers working for a longer period in the same establishment has
been duly recognised by the Courts and that the attitude of the Managements not conferring permanency to such workers has been deprecated in
numerous rulings as amounting to unfair labour practice. Reference was also made to Section 25-H of the Industrial Disputes Act in support of the
said contention.
On facts, learned counsel for the petitioners contends that persons who had not worked as casuals/drivers and some of them have no required
experience as drivers have been selected, whereas, the first petitioner (W.P. No. 40768 of 2002), who had been a casual employee for long
number of years, had not been selected. The other two writ petitioners have been, without any justification, denied appointment on the ground of
medical unfitness. According to the learned counsel, medical assessment has not been properly done. Further, it is stated that they were prepared
to go for assessment by independent Medical Board. It is further stated that even in the case of one of the selected candidates (Masanamuthu), the
medical result was not in his favour. Yet, he has been appointed.
Learned counsel also points out that in the employment notice issued for the impugned selection, the respondent had deliberately omitted to
mention priority in favour of the casual employees, whereas, in the employment notice issued during the year 1997, applications for appointment
were called for only from the casual employees and priority to be given to them was recognised.
Mr. N.G.R. Prasad, appearing for Indian Airlines, contends that the reliance placed on Section 25-H of the Industrial Disputes Act cannot be
sustained. The issue of regularisation of casuals in the respondent Institution itself arose for consideration in I.D. No. 37 of 1987 before the
Industrial Tribunal, Alleppey, Kerala. The Tribunal was of the view that the workmen were entitled to the benefits of Section 25-H of the Industrial
Disputes Act. The said order was set aside by the Division Bench of the Kerala High Court by order dated 5.7.1990 in W.A. No. 534 of 1989,
holding that the benefit of the provision will not be available, in view of the subsequent changes in the provisions of the Act and that the Tribunal
had overlooked the requirements u/s 25-B and 25-F. The Special Leave to appeal was also dismissed by the Supreme Court on 23.10.1990 vide
SLP (Civil) No. 11413-414 of 1990. Therefore, the petitioner cannot be heard to raise the said contention.
Learned counsel further contends that the selection was carried out in a proper manner and there was no secrecy about the proposals or the
procedure. Whether priority should have been given to the casual employees or not is a matter of administrative discretion of the Airlines. The only
motivating factor was to select proper and meritorious candidates from among casuals who were selected only on merit basis and subject only to
reservation. The first writ petitioner was in the 12th rank under O.B.C. and three persons who were placed higher than him were selected. The
other two writ petitioners were declared medically unfit. As far as the case of Masanamuthu is concerned, the medical report did not bar
consideration of his case, whereas, the reports relating to the second and third writ petitioners were adverse. The request of the petitioner for
further opinion cannot at all be accepted. Experts in the field have been consulted and there was no room for further opinion.
In reply, Mr.Sundar contends that in the Kerala case, the Supreme Court had dismissed the appeal without any discussion and hence, cannot
operate as a binding statement of law under Article 141 of the Constitution. As regards the medical opinion in favour of Masanamuthu, learned
counsel contended that the original opinion was not in favour of the employee, but on the extraordinary steps taken by the Management, his
records were sent for fresh opinion and only while giving the second opinion, he was found fit. There is no reason why the cases of the second and
third writ petitioners did not receive the same attention.
Both sides referred to volumes of case law in support of their mutual contentions and it may be sufficient to refer only one or two judgments
which would clinch the issue.
The fact of casual employees being kept under prolonged suspense without confirmation has been drawing the attention of the High Courts and
the Supreme Court for more than three or four decades and the Courts have passed very stringent remarks about the ""hire and fire"" policy of the
Managements and particularly, public sector undertakings indulging in such unhealthy practice. I had many occasions to deal with such cases. The
usual excuse which is adopted by all the Managements is that there are no sanctioned posts, as though the sanction is something so rigid, difficult
and sacred, which cannot admit of proper sensible revision and updating of the number of sanctioned posts to suit the requirements. On the
contrary, Managements artificially keep down the sanctioned strength in an unrealistic manner deliberately, and totally ignoring the real need of the
work force. Thereby, the Managements float temporary and casual category of employees only with the motive that they can extract the same
work from them at lesser salary and emoluments, and persons in authority will also have the discretion to arbitrarily hire some favourite individuals
and fire the unwanted employees. Such obnoxious labour policy continues unabated especially in public sector undertakings as the concerned
officials are not required to personally answer and if any adverse financial implications arise as a result of the employee receiving the benefit of any
judicial order requiring payment of back-wages to him. In fact, this disease of hire and fire policy has been considerably reduced in private sector
as they have to pay out from their pockets if they indulge in any such unfair practice. In public sector, no individual is answerable nor has to bear
the burden of the loss. The loss is only to the public at large.
It is rather unfortunate that Indian Airlines should be continuing to indulge in such a condemned policy and continuing the evil of unfair labour
practice and yet plead as though they were justified in their action. The statement in the counter affidavit that they had to engage the casual
employees due to the peculiarities of the Airline Industry and due to unforeseen circumstances, cannot at all be sustained. It is further stated in the
counter affidavit that in order to be fair and to provide equal opportunities, casual employment was offered by rotation. Such a methodology is not
at all necessary if they have a smaller panel of casual employees, who could be regularly appointed and confirmed whenever vacancies arise. There
is no need for a larger panel and keep everyone eternally casual. The law declared by the Supreme Court deprecates such practice, and in all such
cases, directions are issued to frame a proper scheme and to absorb those unfortunate employees. This concept is well accepted and familiar and it
would be totally unnecessary to refer to such rulings. It may be that the Airlines may have inevitable reasons to recruit casuals or may not.
However, there is no justification for keeping a list of large number of casuals, appointing them once in six months and thereby force them to
remain casuals for ever and for remaining six months they should be jobless. There is no reason why preference cannot be given for appointing
them on permanent vacancies in accordance with their seniority. There is no need to go to the open market for posts like drivers, provided, the
casuals do not suffer from any medical disability and satisfy the minimum qualifications. There is no dispute over the fact that Indian Airlines had
also framed schemes and guidelines as recognised by the Supreme Court in Indian Airlines Ltd. Vs. Samaresh Bhowmick and Others, . After
extracting the scheme and after confirming the judgment of the Division Bench of the High Court, the Supreme Court held that they were of the
opinion that the respondents having been selected in the test earlier should be given preference in the matter of their consideration under the
scheme. It was also directed that the respondents shall be given preference for relaxation of the service consistently with the scheme.
The above judgment emphasizes that preference should be given to persons/casuals who had been selected in the earlier tests.
It has to be borne in mind that this is not a case of the employees working in rotation and seeking confirmation as against permanent vacancies
without a process of selection. The said issue arose for consideration in a batch of cases relating to the respondent in W.A. No. 808 of 2000
dated 11.12.2002 - Asservadham and Ors. v. General Manager, Indian Airlines Ltd., in which, the Division Bench declined to order en masse
confirmation. This case before us is different and one of calling for applications for filling up of permanent posts and this Court is unable to
appreciate that Indian Airlines cannot accommodate casuals who were working with the Airlines for considerable period. For the post of a driver,
process of selection can be restricted to casuals on seniority-cum-merit basis without going to the open market.
The contention that the employment notice did not envisage any priority being given to the casuals cannot at all be accepted. The issue of and
terms of employment notice is within the sole discretion of the Management and it is no answer to be told that priority to casuals is not
contemplated in the employment notice. It can only mean that the Institution is not following a proper course of recruitment policy and wants to
stick to the policy of ""hire and fire"". It is an admitted position that in the Employment Notice No. 22 of 1997, applications were invited specifically
from ex-casual employees for the post of drivers. However, in the impugned Employment Notice No. 6 of 2001, applications have been left open
for all except for relaxing the age qualification for casual drivers. There is no reason why selection could not have been specifically restricted to
casuals alone as envisaged under Employment Notice No. 22 of 1997. Formulation of policy is in the hands of the Management and the Airlines
cannot formulate an employment notice which is disadvantageous to the casuals and then contend that the employment notice does not contemplate
preference being given to the casuals.
Now, we will take up the individual cases of the petitioners and their claims. We may first take up the case of the writ petitioners in W.P. Nos.
7822 and 7908 of 2003. Both of them have been found medically unfit. In the case of the petitioner in W.P. No. 7822 of 2003, - G. Murugan, in
terms of the report received from Osler Diagnostics Pvt. Ltd., his fasting blood sugar was at 137 mg.% which was higher than the normal limits of
70 to 110 mg.%. The expert opinion also confirms that he is a diabetic. In the case of the petitioner in W.P. No. 7908 of 2003 - L.Radhakrishnan,
the fasting blood sugar was 191 mg.% and he is also confirmed as a diabetic by the expert. It is needless to mention that this Court will not go into
the veracity of such expert opinion and call for a report from some other expert to suit the convenience of the petitioners. It is not in dispute that the
expert whose opinion had been relied upon, is one of the recognised and reputed consultants and there is no reason why this Court should ignore
the same. One other attempt on the part of the learned counsel for the petitioner to discredit the stand of the respondent is that in the case of
Masanamuthu (second respondent) also, the medical report was adverse regarding the blood sugar level and that only in order to favour him, the
Airlines had obtained second opinion from another lab and there is no reason why the same indulgence was not shown to the two writ petitioners.
This averment had been countered in the counter affidavit of the Airlines in W.P. No. 7908 of 2003. The respondent had stated that the report of
the second respondent was sent to Osler Diagnostics Pvt. Ltd., and as the Biochemistry findings disclosed a marginally higher value, the second
respondent had referred to M.V. Diabetes Specialities Centre as in the case of the petitioner. The panel specialist, after examining the second
respondent, in his report dated 9.11.2002, declared him medically fit and to take up the job as driver though the sugar level was marginally higher.
In the said circumstances, Airlines wanted to clarify before offering appointment to the second respondent and therefore, he was once again
referred for second opinion. Only thereafter, the second respondent was offered employment, and it is not as if he was initially found unfit.
I am unable to sustain the objection of the learned counsel for the petitioner. As the counter affidavit reveals, the first report in the case of
Masanamuthu was that he was fit to be appointed, but however the blood sugar level was noticed to be marginally higher. The Management could
have straight-away proceeded further appointing him on the basis of the certification that he was fit. However, the Management had sought for a
second opinion which cannot be found fault with. Thereafter, on the basis of the second opinion which was in favour of the second respondent, he
has been appointed. I, therefore, do not find any error in the action of the respondent rejecting the claims of the second and third writ petitioners.
Consequently, as a result of the medical unfitness, W.P. Nos. 7822 and 7908 of 2003 are liable to be dismissed and are accordingly dismissed.
The case of the petitioner in W.P. No. 40768 of 2002 stands on a different footing. He is a person who had obtained driving licence in the
year 1985 itself and obtained licence for driving heavy vehicles in 1991. He started working as casual driver with the respondent from 18.11.1995.
The following are the details of his service as driver from 18.11.1995 to 23.3.2001 in five spells:
(i) 18.11.1995 to 14.5.1996;
(ii) 1.1.1997 to 29.6.1997;
(iii) 8.1.1998 to 6.7.1998;
(iv) 20.4.1999 to 19.10.1999; and
(v) 19.9.2000 to 23.3.2001.
The above particulars disclose that during every year, he had been engaged for six months and relieved for succeeding six months, for obvious
reasons. His claim that he had worked for 897 days within a period of about four years and four months is not denied before me. I ask myself the
question whether it is a fair labour policy, that too by a public institution, to deny appointment if he is qualified to be appointed and satisfies all the
requirements against available vacancy. Even in 1998, in the previous selection, though he had passed the trade test and interview and was also
empanelled in the panel dated 20.4.1998, his claims were ignored and allowed to work again as a casual employee till 23.3.2001. Even in the
impugned panel, he is found to be qualified, selected and empanelled as Sl. No. 12. But yet, he is not selected, because of refusal to give
weightage for all the casuals in accordance with seniority as casual employees. It is pertinent to note that even as per the counter affidavit, the
second respondent had been working as a casual worker only from 1989 and the third respondent had been working from 1986. Admittedly, the
petitioner has been working from 1985 and hence, a senior to the respondents. The manner in which the counter affidavit had been filed by the
respondent with reference to the specific allegations in the affidavit leaves much to be said. Allegations in Paragraph 10 of the affidavit are very
serious in nature as follows:
When things stood as above, ""IAL"" suddenly called for a separate trade test / interview for 13 applicants alone on 19.04.2002. Several persons
who have never worked as Casual Drivers in ""IAL"" with no working experience as drivers were amongst these 13 and 9 of them were declared to
have passed the trade test/ interview. Surprisingly, some applicants including Respondents 3 & 4 above who have worked merely as loaders in
IAL"" throughout with no working experience as a driver were also amongst the above said 13. It is reliably understood that a separate interview
on 19.04.2002 was held by ""IAL"" solely for the purpose of favouring a few chosen persons for extraneous reasons other than merit apparently
under pressure from bodies like Trade Union and from existing/ex-employees of ""IAL"" whose relatives/ children are applicants.
In paragraph 11, the petitioner has positively stated that the second respondent had worked as a casual driver only for 39 days having joined
in 1995 only and that respondents-3 and 4 had worked only as loaders and not as drivers. The manner in which the allegations are dealt with in the
counter affidavit reveals only deliberate vagueness and there is no straight forward denial except for stating that the petitioner is put to strict proof
of the allegations.
In paragraph 15 of the counter affidavit, all the averments made in paragraphs 9 to 11 of the petitioner''s affidavit are clubbed together. Paragraph
15 of the counter affidavit is as follows:
Regarding the contentions in paras 9 to 11 of the affidavit filed in support of the writ petition, I deny that the Respondents No. 3 and 4 have
no working experience as Driver, as alleged and the petitioner is put to strict proof of his allegation. On the other hand, the 4th Respondent in his
application has declared that he has worked as Driver in M/s.Om Shakthi Tours and Travels from 25.12.1995 to 31.1.2001, besides employment
on casual daily rated basis in the 1st Respondent-Company for varying periods since 1986. The 3rd Respondent in his application has declared
that he has worked as Driver with M/s.Om Shakthi Tours & Travels during the period 26.9.1994 to 30.11.2000, besides employment on casual
daily rated basis in the 1st Respondent - Company for varying periods since 1989. Since they fulfilled the laid down eligibility criteria, they were
called for Trade Test and upon their qualifying in the Trade Test, they were subjected to interview. As they qualified in the interview, the 4th
Respondent who belongs to Scheduled Caste Community and the 3rd Respondent who belongs to OBC were empanelled in the Merit List of
selected SC and OBC candidates in order of merit. The contention that the 2nd Respondent had worked only for 39 days is denied and the
Petitioner is put to strict proof of his allegation. The contention that whatever certificates Respondent 2 to 4 had produced to satisfy the five years
experience condition was likely to be fabricated and false is vague and without substance and the petitioner is put to strict proof of his allegation. I
submit that on the basis of the declaration and the certificates produced by the Respondents 2 to 4 relating to experience, they were called, as in
the case of the petitioner, for the Trade Test and on their qualifying in the Trade Test, they were subjected to interview. As already stated,
appointments are made from the Merit List of selected candidates in order of merit, subject to completing pre-employment formalities and subject
to being declared medically fit by the Medical Office of the 1st Respondent-Company. The various other contentions have been traversed in the
earlier paragraphs.
In the affidavit, the petitioner had made very serious allegations that respondents-3 and 4 were working only as loaders in the Airlines and also
that the second respondent had worked only for 39 days. No direct answer is given to those allegations. Particulars of the service experience of
respondents-3 and 4 as drivers is stated to be acquired only with private companies. In what capacity both of them were working with the Indian
Airlines, is deliberately not stated. The allegation that the second respondent had worked only for 39 days and had joined only in 1995, is dealt
with in a technical manner like ""put to strict proof"", without giving the particulars which are undoubtedly available with the Airlines. Writ petition is
not a Civil Suit and both parties are expected to plead the entire facts with sufficient proof and disclose facts available with them. The petitioner
being a casual employee cannot be expected to produce any proof of the details of other employees. When the files are available with the Airlines,
nothing prevents the Corporation to plead and place all the correct facts and produce the files before the Court. The Corporation ought to have
positively placed all the facts before the Court and should have given the details of the service and experience particulars of the respondents along
with the files. Strangely, only the files relating to the medical disability certificates issued in the case of petitioner''s in W.P. Nos. 7922 of 2003 and
7908 of 2003 were produced before the Court. Curiously, again, there is no denial of one more serious allegation in paragraph 10 of the affidavit,
as extracted above, that a separate interview had been conducted on 19.4.2002 on the pressure exerted by a Trade Union. The said allegation is
in the nature of an allegation of mala fides and ulterior motives. Such a serious allegation goes undenied in paragraph 15 of the counter affidavit.
The decision of the Supreme Court relied upon by Mr. N.G.R. Prasad in 1996 VIII AD 680 (SC) , is a case of part-time employees who
were employed de hors the Rules and they were declared as not entitled to regularisation. In the present case, we are only concerned with the
claims of casuals to be given preference in the matter of selection for vacancies in the sanctioned posts. This is also not a case of part-time
employees nor a claim for regularisation.
In the decision of the Supreme Court in Himanshu Kumar Vidyarthi and Ors. v. State of Bihar and Ors. 1998 II LLJ 15 it was held that the
disengagement of temporary employment on daily wages cannot be construed as retrenchment.
I am afraid that both the above judgments cannot come to the rescue of the Airlines'' indulging in prolonged engagement of casual employees
without any attempt to regularise their services even as against vacancies which had arisen in the sanctioned strength and keeping them as casual
employees for a long period without any justification. Such action by various managements has been deprecated in a number of judgments of the
Supreme Court which should be applicable to the facts of the present case.
Therefore, I have no doubt in my mind that the petitioner in W.P. No. 40768 of 2002 had been very unjustly treated for the following reasons:
(i) He is the senior most among the casuals at least in comparison with the selected candidates. The employment notice is not a statutory provision
which requires to be challenged by the petitioner. Non-consideration of the preferential claim of casual employees goes against the law of the land
and it is not expected of the Indian Airlines to adopt ""hire and fire"" policy. It is pertinent to bear in mind that in Indian Airlines Ltd. Vs. Samaresh
Bhowmick and Others, cited above, the Supreme Court had made it clear that the casuals who had been selected earlier should be given
preference in the matter of consideration of the scheme. It is not necessary to enter into a discussion of the scope of Section 25-H of the Industrial
Disputes Act and it is sufficient to bear in mind that continued employment of workers on casual basis indefinitely and the refusal to appoint them
even as against sanctioned vacancies had always been deprecated by the Courts as amounting to a very deplorable and unfair labour policy, more
so in the case of public sector units.
(ii) There is no justification for not considering the claims of casual drivers exclusively who had put in at least five years as envisaged under the
employment notice No. 22 of 1997. The post of Driver is not a sensitive or a knowledge based post and I am unable to appreciate the process of
selection by giving marks and deliberately ignoring the long period of service rendered by casual employees who had worked as drivers without
any complaints. Elimination due to any medical unfitness or overage is appropriate, but ignoring the claims of casual employees who are otherwise
fit in accordance with seniority as casual employees cannot be sustained. The petitioner is a person who was empanelled in the year 1998 itself and
in terms of the judgment in Indian Airlines Ltd. Vs. Samaresh Bhowmick and Others, , the petitioner will be entitled to be appointed.
(iii) The allegations of favouritism as contained in paragraph 10 of the affidavit and the contention in paragraph 11 that one of the respondents had
served only for 39 days had not been properly dealt with in the counter affidavit or by production of the relevant files. It is not a healthy attitude on
the part of a mighty public sector Undertaking to state that the petitioner is put to strict proof of the case and not stating the correct facts and not
producing the files.
(iv) Likewise, the specific allegation that respondents-3 and 4 were working only as loaders and not as drivers with the Indian Airlines also goes
undenied properly in a specific and open manner and by producing all the files.
For the aforesaid reasons, I am inclined to hold that overlooking of the petitioner''s seniority as a casual employee and not giving any weightage
for his experience as casual employee, is unjust and cannot be sustained. However, I do not propose to interfere with the appointments already
made. The petitioner should be appointed forthwith with continuity of service from the date when orders of appointment were issued to the
respondents but without back-wages, in view of the fact that he had not worked during the said period.
The writ petitions are ordered as follows:
(i) W.P. Nos. 7822 and 7908 of 2003 are dismissed.
(ii) W.P. No. 40768 of 2002 is allowed. The petitioner shall be appointed with continuity of service with effect from the date on which
respondents-2 to 4 were appointed and be placed below them. Such orders shall be issued within a period of one month from the date of receipt
of a copy of this order.
(iii) But the petitioner shall not be entitled to arrears of wages. He will be entitled to wages only from the date of appointment.
(iv) It is made clear that the benefit of this order shall not be available to any other similarly placed individuals like the petitioner by filing fresh writ
petitions considering that they had not approached the Court at the proper time.
(v) No costs.
Connected W.P.M.P. Nos. 10040, 10135 and 33313 of 2003 are closed.