Vishnu Raj Upadhyaya vs Union Of India & Ors

Om Prakash VII, Member (J)

1) The present O.A. has been filed under Section 19 of the AT Act, with the following reliefs:-

a) To issue an order or direction in the suitable nature quashing the impugned order dated 28.4.2014 passed by respondent No.3 which is enclosed as Annexure No. A-1 to this Original Application.

b) To issue an order or direction in the suitable nature of mandamus commanding the respondents to regularize the services of the applicant on the post of Box Porter (Guard) at Lalkuan Railway Station with all consequential benefits within a period to be specified by Hon’ble Tribunal.

c) To issue any order or direction, which this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the case.

d) To award the cost of the application to the applicant.

The brief facts of the case are that the applicant was engaged by the then Station Manager, Lalkuan as Casual Box Porter (Guard) after getting approval and financial sanction from the higher authorities. The applicant joined at Lalkuan station on 1.11.2006. Applicant discharged his duties but the payments were not made. Applicant made several representation to the Divisional Railway Manager for his wages. Applicant also filed O.A. No. 553/2012 and this Tribunal by means of order dated 23.1.2014 disposed off the O.A. with direction to the respondents to decide the representation of the applicant dated 22.12.2007 and 20.10.2007 by means of a reasoned and speaking order. In compliance of the order of the Tribunal, respondents have passed impugned order dated 28.4.2014, rejecting the claim of the applicant without any valid reason, which is challenged in the present O.A.

Counter Affidavit has been filed by the learned counsel for respondents in which it is stated that a report of Area Manager, Gorakhpur regarding work done by Box Porter was submitted. A bare perusal of the above report will clearly reveals that saving which can be achieved by out sourcing this activity, work can be managed by payment to licenced porters much more economically. According, to the above decision, CMPE (Diesel) NE Railway, Gorakhpur Divisional Railway Manager (Operating) NE Railway, Izatnagar issued a letter dated 26.10.2006 (Annexure CR-2) for loading and unloading of boxes by the privates sources. The above letter dated 26.10.2006 clearly reveals that eleven station of Izatnagar Division were sanction Rs. 8/- per round for each guard box and different equipment for loading and unloading to pay the external agencies and separate money was sanctioned for doing the above wage at Lalkuan Railway Station. In the same reference, the applicant was paid Rs. 8/- per box whenever a helper is needed. It is also stated that applicant was not a permanent / temporary or daily wage employee of the railway because the Railway has not given any appointment letter to the applicant. It is also stated that applicant has played mischief on the vender card. Station Superintendent has put a cross on the post and name of the applicant on the Vender Card but the applicant written the word ‘Box Porter’ on that cross.

Heard the learned counsel for the parties.

Learned counsel for the applicant argued that applicant was engaged as a Casual Box Porter by the then Station Manager, Lalkuan and joined on 1.11.2006. When he was not paid his salary, he made representation to the authorities but no response. Thereafter, on the direction of this Tribunal in O.A. No. 553/2012, respondents have passed the impugned order without any valid reason. It is further argued that applicant was a regular employee, which requires to be regularized.

Learned counsel for respondents have argued that the Railway department has never appointed the applicant on any post and he was engaged in pursuance of letter dated 26.10.2006, by which it is clearly provided that eleven station of Izatnagar Division were sanctioned Rs. 8/- per round for each guard box for loading and unloading whenever a help is needed. The work was taken by any labour or helper. No particular person was allotted the work loading and unloading.

I have considered the rival submissions and have gone through the entire record.

Admittedly, the applicant was never appointed in the Department on regular basis. No posts were advertised, examination conducted or interview held. Applicant is claiming relief merely on the ground of alleged appointment as Casual Box Porter on 1.11.2006. Department has not accepted his continuous appointment for 240 days in a year prior to the ban. Applicant has failed to produce any appointment order or pay slip to substantiate his claim. There is no evidence on record to support that applicant had been working in the department during the said period. Even if, his claim is accepted that he had worked for considerable period in the department, that by itself would not give any right to him for regularization or for appointment of permanent nature in the said department.

Constitution Bench of Hon’ble Apex Court in the case of Secretary, State of Karnataka and others Vs.Umadevi (3) and Others reported in (2006) 4 SCC 1 has held that absorption, regularization, or permanent continuance of temporary, contractual, casual, daily wage or adhoc employee appointed/ recruited and continued for long in public employment dehors the constitutional scheme of public employment. The Court further held that constitutional court should not issue direction for regularization of service of such employees.

In Ashwani Kumar and others Vs. State of Bihar and others (1996 Supp. (10) SCR 120), this Court was considering the validity of confirmation of the irregularly employed. It was stated:

"So far as the question of confirmation of these employees whose entry was illegal and void, is concerned, it is to be noted that question of confirmation or regularization of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorized and is not against any sanctioned vacancy, question of regularizing the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularization or confirmation is given it would be an exercise in futility.”

The Hon’ble Apex Court further reiterated the aforesaid law in the case of Satya Prakash and others Vs. State of Bihar and others reported in 2010 (2) UPLBEC 1181, wherein following observations were made by the Court:-

“6. We are of the view that the appellants are not entitled to get the benefit of regularization of their services since they were never appointed in any sanctioned posts. Appellants were only engaged on daily wages in the Bihar Intermediate Education Council. In Muadevi’s case (supra) this Court held that the Courts are not expected to issue any direction for absorption/regularization or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees. This Court held that 5 such directions issued could not be said to be in consistent with the constitutional scheme of public employment. This Court held that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. In view of the law laid down by this Court, the directions sought for by the appellants cannot be granted.

paragraph 53 of Umadevi’s Judgment, deals with irregular appointments (not illegal appointments). Constitution Bench specifically referred to the judgment in S.V. Narayanappa v. State of Mysore, (1967)1 SCR 128, B.N. Nanjudappa v. T. Thimmiah, (1972) 1 SCC 409, in paragraph 15 of Umadevi’s judgment as well.

Let us refer to paragraph 15 and 16 of Umadevi’s judgment in this context. Necessity of keeping in mind the distinction between regularization and conferment of permanence in service jurisprudence has also been highlighted by this Court by referring to the following passages from R.N. Nanjundappa’s case, which reads as follows:-

“If the appointment itself is in infraction of the rules of if it is in violation of the provisions of the Constitution illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority but there has been some non compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment.”

In view of the judgments of Hon’ble Apex Court in the case of State of Karnataka Vs. Uma Devi (supra) , Ashwani Kumar and others Vs. State of Bihar (Supra) and Satya Prakas and others Vs. State of Bihar (supra), law is now well settled that casual labour has no right to seek regularization. In the instant case, even the claim of working of applicant as casual labour for substantial period of time has not been proved. Identity card said to have been issued by the Department concerned is not a genuine document. Some manipulation appears to have been done in it. Mere opening of passbook by the applicant itself is not sufficient to presume that applicant has been appointed on regular basis. Letter (Annexure SA-1) could also not be taken as conclusive proof of appointment of applicant on regular basis, particularly when department has made inquiry against the official concerned regarding issuance of I. Card and other documents. Thus, it is also evident that applicant had played mischief in the vender card of the department.

Considering all the facts and circumstances of the case, claim of applicant cannot be accepted. Accordingly, O.A. is dismissed.

No order as to costs.