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CASE NO.: Appeal (civil)  4499 of 2006

PETITIONER: Indian Council of Agricultural Research and Anr

RESPONDENT: Santosh

DATE OF JUDGMENT: 16/10/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 15643 of 2005)

ARIJIT PASAYAT, J.

       Leave granted.  

       Challenge in this appeal is to the judgment rendered by a  Division Bench of the Rajasthan High Court at Jodhpur  dismissing the writ petition filed by the present appellants  questioning correctness of the order passed by the Central  Administrative Tribunal, Jodhpur Bench (in short ’CAT’).  

The controversy lies within a very narrow compass.

Respondent filed O.A.No.291 of 2003 before the CAT  making a grievance that family pension and other terminal  benefits were being denied to her by the present appellant on  the ground that her deceased husband was not holding  permanent status in service. CAT held that though her  deceased husband Durga Lal was not holding a permanent  status in service, yet respondent was entitled to the family  pension and other benefits by treating him to have been  regularized on the date of his death.  

The High Court dismissed the writ petition holding that  since the respondent has been given compassionate  appointment, there was no merit in the writ petition.

In support of the appeal, learned counsel submitted that  there was a scheme in operation and late Durga Lal was not  holding permanent status and was only a casual labourer who  had acquired temporary status in view of the scheme. Placing  reliance on a Constitution Bench decision of this Court in  Secretry, State of Karnataka and Ors. v. Umadevi (3) and Ors.  (2006 (4) SCC 1), it was held that CAT could not have directed  regularization and in any event directed grant of family  pension.  

In response, learned counsel for the respondent  submitted that the deceased late Durga Lal had worked for  nearly 20 years and merely because there was no formal order  granting him permanent status, it had to be deemed as if late  Durga Lal was in regular service. CAT proceeded on the basis  that the respondent’s claim was acceptable with reference to  certain circulars applicable to Railways employees and Full  Bench decision of the Tribunal in Gita Rani Santra v. Union of

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India and Ors. (reported in 1997-2001 AT Full Bench  judgment page 295) .

In order to appreciate rival submissions a few provisions  need to be noted.  

The scheme applicable to employees of appellant No.1 is  very specific in its scope of operation.  The scheme was issued  by the Department of Personnel and Training and the scheme  is called "Casual Labourers (Grant of Temporary Status and  Regularisation) Scheme of Government of India, 1993" (in  short the ’Scheme’)". The said scheme is applicable with effect  from 1.9.1993. Clause 4 reads as follows:

"4. Temporary status:

(i)     Temporary status would be conferred on  all casual labourers who are in employments  on the date of issue of this OM and who have  rendered a continuous service of at least one  year which indicates any must have been  engaged for a period of at least 240 days (206  days in the case of offices observing 5-day  week)

(ii)    Such conferment of temporary status  would be without reference to the  creation/availability of regular group ’D’ posts.

(iii)   Conferment of temporary status on a  casual labourer would not involve any change  in his duties and responsibilities. The  engagement will be on daily rates of pay on  need basis. He may be deployed anywhere  within the recruitment unit/territorial circle on  the basis of availability of work.  

(iv)    Such casual labourers who acquire  temporary status will not, however, be brought  on to the permanent establishment unless  they are selected through regular selection  process for group ’D’ posts".          

Similarly, Clause 5 so far as relevant reads as follows:

       "xx             xx                      xx              xx (v)     50% of the service rendered under  temporary status would be counted  for the purpose of retirement  benefits after their regularization".

Clause 6 makes the position clear that no benefits other  than those specified earlier in the scheme shall be admissible  to casual labourers with temporary status. The relevant clause  reads as follows:

       "No benefits other than those specified  above will be admissible to casual labourers  with temporary status. However, if any  additional benefits are admissible to casual  workers working in Industrial establishments  in view of provisions of Industrial Disputes Act,  they shall continue to be admissible to such  casual labourers."

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        A bare reading of the provisions makes it clear that late  Durga Lal was not entitled to any family pension. The direction  given by CAT for regularization is contrary to what has been  stated in Uma Devi’s case (supra). At para 45 of the judgment  it was noted as follows:  

45. While directing that appointments,  temporary or casual, be regularised or made  permanent. the courts are swayed by the fact  that the person concerned has worked for  some time and in some cases for a  considerable length of time. It is not as if the  person who accepts an engagement either  temporary or casual in nature, is not aware of  the nature of his employment. He accepts the  employment with open eyes. It may be true  that he is not in a position to bargain\027not at  arm’s length\027since he might have been  searching for some employment so as to eke  out his livelihood and accepts whatever he  gets. But on that ground alone, it would not be  appropriate to jettison the constitutional  scheme of appointment and to take the view  that a person who has temporarily or casually  got employed should be directed to be  continued permanently. By doing so, it will be  creating another mode of public appointment  which is not permissible. If the court were to  void a contractual employment of this nature  on the ground that the parties were not having  equal bargaining power, that too would not  enable the court to grant any relief to that  employee. A total embargo on such casual or  temporary employment is not possible, given  the exigencies of administration and if  imposed, would only mean that some people  who at least get employment temporarily,  contractually or casually, would not be getting  even that employment when securing of such  employment brings at least some succour to  them. After all, innumerable citizens of our  vast country are in search of employment and  one is not compelled to accept a casual or  temporary employment if one is not inclined to  go in for such an employment. It is in that  context that one has to proceed on the basis  that the employment was accepted fully  knowing the nature of it and the consequences  flowing from it. In other words, even while  accepting the employment, the person  concerned knows the nature of his  employment. It is not an appointment to a post  in the real sense of the term. The claim  acquired by him in the post in which he is  temporarily employed or the interest in that  post cannot be considered to be of such a  magnitude as to enable the giving up of the  procedure established, for making regular  appointments to available posts in the services  of the State. The argument that since one has  been working for some time in the post, it will  not be just to discontinue him, even though he  was aware of the nature of the employment

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when he first took it up, is not (sic) one that  would enable the jettisoning of the procedure  established by law for public employment and  would have to fail when tested on the  touchstone of constitutionality and equality of  opportunity enshrined in Article 14 of the  Constitution".

Merely because compassionate appointment has been  granted to the legal heir of late Durga Lal that does not in any  way improve the situation so far as the respondent is  concerned. That is an appointment given to a legal heir even if  it is accepted to be a regular, subsequent to the death of  Durga Lal and such appointment cannot alter the status of  late Durga Lal in service.  The impugned judgment of the High  Court confirming that of the CAT cannot be sustained. Both  the CAT’s order and judgment of the High Court stand set  aside. The appeal is allowed but without any order as to costs.