NANDESWAR BORAH vs THE UNION OF INDIA and 7 ORS

1.Heard Mr. D. Borah, learned counsel for the petitioner as well as Mr. D.C. Borah, learned CGC appearing for the respondents.

The petitioner was engaged on daily wage basis for 6 (six) months w.e.f 10.12.1992 to 31.05.1993 (172 days) by a work order issued by the

Assistant Engineer, Debendranagar Central Division CPWD, Tezpur. By another work order dated 06.05.1993 issued by the respondent No. 7, the

petitioner was again engaged on daily wage basis for 6(six) months w.e.f 01.06.1993 to 31.10.1993. While the petitioner was serving as such, the

Ministry of Personnel, Public Grievances and Pension (Department of Personnel and Training) issued an office Memorandum dated 10.09.1993 on the

subject of granting temporary status and regularization of casual workers. In the Appendix appended to the OM dated 10.09.1993 at point 4(1), it is

provided that temporary status would be conferred on all casual workers who are in employment on the date of issue of the OM and who have

rendered a continuous service of at least one year, which means that they must have been engaged for a period of at least 240 days (206 days in the

case of offices observing 5 days). It is the case of the petitioner that while the OM dated 10.09.1993 was issued, the petitioner as on 10.09.1993 had

completed 271 days and therefore he was eligible to be considered for granting of temporary status by the respondents. However, the same has not

been done and therefore being aggrieved the present writ petition.

Mr. D. Borah, learned counsel for the petitioner submits that when the office memorandum dated 10.09.1993 was issued, the petitioner had

completed 271 days on daily wage basis and therefore, the petitioner is covered by the OM dated 10.09.1993 for granting of temporary status. To that

effect, the Executive Engineer, Tezpur Central Division, CPWD Tezpur by a communication dated 21.10.2009 had addressed to the Superintending

Engineer, Assam Central Circle-1, CPWD, Bamunimaidan, Guwahati by which the application made by the petitioner requesting for granting

temporary status was recommended and forwarded for granting of temporary status. Thereafter, there were several communications within the

department and the respondent No. 6 by another letter dated 25.07.2014 addressed to the respondent No. 3 stated that the petitioner was engaged on

Hand Receipt/Work Order for the period 10.12.1992 to 30.09.1994 and was recommended and forwarded to the Superintending Engineer, Assam

Central Circle-1, CPWD, Bamunimaidan, Guwahati by letter dated 21.08.2009 for grant of temporary status. It was also stated that the petitioner was

working in the Division and his case as sent earlier was again submitted for necessary action. It is submitted that the contends of the letter dated

21.08.2009 and 25.07.2014 would clearly indicate that the petitioner was engaged under the Central Public Works Department on daily wage basis

and that he had completed 271 days making him eligible to be considered for being granted temporary status under the OM dated 10.09.1993. In that

view of the matter, learned counsels submits that directions be issued to the respondents for granting temporary status to the petitioner.

Mr. D.C. Borah, learned CGC appearing on behalf of the respondents on the other hand submits that as per the record of the respondent office, the

petitioner has been engaged as office peon on contract basis in the department till 30.09.1994 through work order as per terms and conditions of

contract and since then he has not been engaged by the department as office peon. It is also submitted that at present the petitioner is engaged in the

office by the contractor who has been awarded work order for supply of computer operators, MTS etc., It is also submitted that the case of the

petitioner had already been considered by the respondents and by a communication dated 22.08.2013 the case of the petitioner has been rejected on

two grounds namely (a) the grant of temporary status to casual employees is applicable to those worker/muster roll against Grade-D post who have

completed one year (240 days) service as on 10.09.1993 and not applicable to the workers who are employed on the basis of work order and (b) the

petitioner is not eligible to be granted temporary status in terms of the OM dated 10.09.1993 as he has rendered only 214 days as on 10.09.1993. As

the work order engaging the petitioner w.e.f. 10.12.1992 to 31.10.1993 was not issued by the respondents, the petitioner cannot be construed to have

been engaged by the respondents and therefore, the OM dated 10.09.2013 does not cover the case of the petitioner and therefore his case has been

rightly rejected by the letter dated 22.08.2013. In that view of the matter, he submits that there is no merit in the petition and the same deserves to be

dismissed.

I have considered the submissions forwarded by the learned counsel for the parties.

This court has considered the work orders by which the petitioner has been engaged on daily wage basis w.e.f 10.12.1992 to 31.10.1993.

Consideration of the work orders would clearly indicate that the said work orders were issued by the Assistant Engineer, Debendranagar Central

Division, CPWD, Tezpur. This would indicate that the work order has been issued by the Central Public Works Department and not by the contractor

concerned. Further, a consideration of the communication dated 21.08.2009 and 24.07.2014 written by the respondent No. 6 would clearly indicate

that the petitioner has been considered as an employee engaged in the Central Public Works Department and not otherwise.

The OM dated 10.09.1993 clearly indicates that the grant of temporary status would be to all casual workers who are in employment on the date of

the issue of the OM and have rendered one year of continuous service in Central Government offices other than the department of Telecom, Posts

and Railways. As the petitioner has been engaged under the Central Public Works Department, this Court is of the considered opinion that the OM

dated 10.09.1993 is applicable to the petitioner. Considering the engagement of the petitioner, it is noticed that from 10.12.1992 (the date on which the

petitioner was engaged on daily wage) till 10.09.1993 i.e. the date on which the OM was issued, the petitioner had completed about 271 days. In that

view of the matter, this Court is of the opinion that there has been some miscalculation on the part of the department while computing the number of

days rendered by the petitioner on daily wage basis as on 10.09.1993 as indicated in the letter dated 22.08.2013. This Court has also noticed that

despite the letter dated 22.08.2013 written by the Section Officer (Administrative) in the Office of the Chief Engineer (NEZ), Central Public Works

Department, the respondent No. 6 had again written the letter dated 25.07.2014, which clearly indicates that the petitioner who was engaged on Hand

Receipt/Work Order was still considered as an employee in the Division under the Central Public Works Department.

In the facts and circumstances of what has been discussed herein above, this Court is of the considered opinion that the case of the petitioner is

covered by the OM dated 10.09.1993. The matter is remanded back to the respondent No. 3 to reconsider the case of the petitioner for grant of

temporary status in terms of the office memorandum dated 10.09.1993. Let such consideration be done and completed within a period of 3 (three)

months from the date of receipt of this order by the respondent No.3. While the case of the petitioner is considered, the respondent No. 3 shall also

take into consideration the 2 (two) work orders (Annexure A and B to the writ petition) issued by the Assistant Engineer, Debendranagar Central

Division, CPWD engaging the petitioner from 10.12.1992 to 31.10.1993. Till the consideration is made by the respondent No. 3, the engagement of the

petitioner shall not be disturbed.

With the above observations and directions, this writ petition is disposed of.