IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3493 of 2006 ***** 1. The Union of India through the Director General of Archaeological Survey of India, Janapath Road, New Delhi. 2. The Superintending Archaeologist, Archaeological Survey of India, J.C. Road, P.O. Bankipore, District-Patna (Bihar). 3. The Conservation Assistant Archaeological Survey of India at Kumhrar, P.O. Lohia Nagar, Patna (Bihar). …… ……. Petitioners Versus 1. Ram Narayan Yadav son of Shri Baijnath Yadav, aged about 27 years, resident of Village Kumhrar (Naya Tola), p.o. Lohia Nagar, District Patna (Bihar) working as Ex-Casual Labour at the Site of Archaeological, Patna Bihar. 2. Central Administrative Tribunal, Patna Bench, Patna through its Registrar. …… …….. Respondents ----------- For the Petitioners : Mr. Sanjay Kumar, (C.G.C.) For the Respondent No.1 : Mr. Amar Nath Jha, Advocate ------------ P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ------------ Dated, the 20th October, 2008. On 1st September, 1993, the Department of Personnel & Training, Casual Labourers (Grant of Temporary Status and Regularisation) Scheme, 1993, came into effect. Paragraph 3 and 4(i) of the said scheme read thus: - “3. This Scheme is applicable to casual labourers in employment of the Ministries/Departments of Govt. of India and their attached and subordinate office, on the date of issue of these orders. But it shall not be applicable to casual workers in Railways, Department of Telecommunication and Department of Posts who - 2 - already have their own Schemes. 4. TEMPORARY STATUS i) Temporary status would be conferred on all casual labourers who are in employment on the date of issue of this O.M. 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 week).” 2. The present respondent was engaged as casual labour on daily wages under the Archaeological Survey of India, Kumhrar, Patna in the month of January, 1994. He worked there up to the month of September, 1997 and disengaged thereafter. Having completed more than 240 days, he claimed temporary status under the Scheme of Government of India, 1993. He approached the Central Administrative Tribunal, Patna Bench by filing original application. The Tribunal after hearing the parties directed the respondents therein (present petitioners) to engage the original applicant (present respondent) as casual labour and bestow upon him temporary status by passing appropriate orders within two months of receipt of the copy of the order. Operative order reads thus: - “I hereby direct the respondents to engage the applicant immediately as casual labourer and to bestow upon him temporary status presently which order should be passed within two months of receipt of a copy of this order. So far the question of regularization is concerned, as was decided in the aforesaid OA 192 of 2004 by this Tribunal, that would depend upon a number of factors such as availability of a Group „D‟ post as also the eligibility of the applicant, including age factor which however, may be relaxed by the authorities. The respondents would consider the question of regularization as and when the turn of this applicant comes for that. And for that purpose the applicant, for the sake of his seniority, would be deemed to be continuing - 3 - as casual labourer during October, 1997.” 3. The petitioners aggrieved by the aforesaid order have filed the present writ petition. 4. The scheme of the Government of India, 1993, with which we are concerned, has come-up for consideration before the Supreme Court on more than one occasion. 5. In the case of Union of India v. Mohan Pal, (2002) 4 SCC 573, the Supreme Court held thus: - “Clause 4 of the Scheme is very clear that the conferment of “temporary” status is to be given to the casual labourers who were in employment as on the date of commencement of the scheme. Some of the Central Administrative Tribunals took the view that this is an ongoing scheme and as and when casual labourers complete 240 days of work in a year or 206 days (in case of offices observing 5 days a week), they are entitled to get “temporary” status. We do not think that clause 4 of the Scheme envisages it as an ongoing scheme. In order to acquire “temporary” status, the casual labourer should have been in employment as on the date of commencement of the Scheme and he should have also rendered a continuous service of at least one year which means that he should have been engaged for a period of at least 240 days in a year or 206 days in case of offices observing 5 days a week. From clause 4 of the Scheme, it does not appear to be a general guideline to be applied for the purpose of giving “temporary” status to all the casual workers, as and when they complete one year‟s continuous service.” 6. The Supreme Court in the case of Union of India v. Gagan Kumar, (2005) 6 SCC 70, in paragraphs 5 and 6 held thus: - “5. The controversy can be resolved on the basis of the interpretation of clause 4 of the Scheme. As already notice, the Scheme came into effect from 1-9-1993. - 4 - Clause 4(1) of the Scheme reads as follows: “4 Temporary status. (1) „temporary‟ status would be conferred on all casual labourers who are in employment on the date of issue of this 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‟ week).” 6. Clause 4 of the Scheme is very clear that the conferment of “temporary” status is to be given to the casual labourers who were in employment as on the date of commencement of the scheme. The Tribunal has taken the view that this is an ongoing scheme and as and when casual labourers complete 240 days of work in a year or 206 days (in case of offices observing 5 days a week), they are entitled to get “temporary” status. We do not think that clause 4 of the Scheme envisages it as an ongoing scheme. In order to acquire “temporary” status, the casual labourer should have been in employment as on the date of commencement of the Scheme and he should have also rendered a continuous service of at least one year which means that he should have been engaged for a period of at least 240 days in a year or 206 days in case of offices observing 5 days a week. From clause 4 of the Scheme, it does not appear to be a general guideline to be applied for the purpose of giving “temporary” status to all the casual workers, as and when they complete one year‟s continuous service. Of course, it is up to the Union Government to formulate any scheme as and when it is found necessary that the casual labourers are to be given “temporary” status and later they are to be absorbed in Group „D‟ posts.” 7. In yet another case, Director General, Doordarshan, Mandi House v. Manas Dey, (2005) 13 SCC 437, while dealing with the same scheme, the Supreme Court considered its earlier decisions in the case of Mohan Pal and Gagan Kumar and considered the matter thus: - “8. The controversy can be resolved on the basis - 5 - of the interpretation of clause 4 of the Scheme. As already noticed, the Scheme came into effect from 1-9- 1993. 9 Clause 4 of the Scheme is very clear that the conferment of “temporary” status is to be given to the casual labourers who were in employment as on the date of commencement of the Scheme. The Tribunal has taken the view that this is an ongoing scheme and as and when casual labourers complete 240 days of work in a year or 206 days (in case of offices observing 5 days a week), they are entitled to get “temporary” status. We do not think that clause 4 of the Scheme envisages it as an ongoing scheme. In order to acquire “temporary” status, the casual labourer should have been in employment as on the date of commencement of the Scheme and he should have also rendered a continuous service of at least one year which means that he should have been engaged for a period of at least 240 days in a year or 206 days in case of offices observing five-day a week. From clause 4 of the Scheme, it does not appear to be a general guideline to be applied for the purpose of giving “temporary” status to all the casual workers, as and when they complete one year‟s continuous service. Of course, it is up to the Union Government to formulate any scheme as and when it is found necessary that the casual labourers are to be given “temporary” status and later they are to be absorbed in Group „D‟ posts. 10. This position was highlighted in Union of India v. Gagan Kumar (2005) 6 SCC 70. 11. Above being the position, the Tribunal‟s order is clearly untenable and the High Court was in error in proceeding under the assumption that the protection given to some of the parties in Mohan Pal case (2002) 4 SCC 573 applied to the facts of the present case. 12. As was observed in Gagan Kumar case the observations in para 11 of Mohan Pal case were rendered in a different factual background and context and have no application to the facts of the present case. The appeal is allowed with no order as to costs.” 8. In a recent case in the Controller of Defence Accounts, Dehradun & Ors. Vs. Dhani Ram & Ors, AIR 2007 - 6 - Supreme Court 2650, while dealing with the scheme of Government of India, 1993, dealt with the matter thus: - “5. A scheme called “Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India, 1993 (in short the „Scheme‟) was issued by the Government of India, Ministry of Personnel, PG and Pension, Department of Personnel and Training. The Scheme came into force with effect from 1-9-1993. 6. On 6-6-2002, OM No.40011/6/2002/Estt. was issued by the Government of India reiterating that the scheme relating to temporary status was not on-going scheme and the temporary status can be conferred under the scheme only subject to fulfillment of the conditions as stipulated in clause 4 of the scheme. The respondents were disengaged as there was no work available for them. They file the writ petition taking the stand that they were entitled to be continued in service as they were working up to 3-7-2002. 7. The writ petition was resisted by the respondents. In the writ petition taking the stand that the writ petitioners were not covered by the scheme of regularization as they did not fulfill the prescribed criteria, they were not entitled to grant of temporary status. The High Court, however, disposed of the writ petition holding that they were to be considered for regularization. A review petition was filed taking the stand that in view of this court‟s judgment in Union of India and another Vs. Mohan Pal and others.,{ 2002 ( 4) SCC 573}, the writ petitioners were not entitled to any relief. The High Court, however, dismissed the review petition. 8. In support of the appeal, learned counsel for the appellant submitted that the High Court‟s decision is clearly contrary to the decision of this court in Mohan Pal‟s case (supra) and therefore unsustainable. 9. Learned counsel for the respondents on the other hand supported the orders of the High Court. 10. Paragraph 4 (1) of the Scheme reads as follows: “ Temporary status- Temporary status would - 7 - be conferred on all casual labourers who are in employment on the date of issue of this O.M. and have rendered a continuous service of one year, which means that they must have been engaged for a period of at least 240 (206 days in the cases of offices observing five days a week).” 11. The relevant portion of paragraph of the Scheme reads as follows: “This Scheme is applicable to casual labourers in employment of the Ministries/ Department of Government of India and their attached and subordinate offices, on the date of issues of these orders.” 12. Clause 4 of the Scheme is very clear that the conferment of “temporary” status is to be given to casual labourers who were in employment as on the date of commencement of the Scheme. High Court seems to have taken the view that this is an ongoing scheme and as and when casual labourers complete 240 days of work in a year or 206 days (in case of offices observing five days a week), they are entitled to get “temporary” status. Clearly 4 of the Scheme does not envisage it as an ongoing scheme. In order to acquire “temporary” status, the casual labourer should have been in employment as on the date of the commencement of the Scheme and he should have also rendered a continuous service of at least one year which means that he should have been engaged for a period of at least 240 days in a year or 206 days in case of offices observing five days a week. From Clause 4 of the Scheme, it does not appear to be a general guideline to be applied for the purpose of giving “temporary” status to all the casual workers, as and when they complete one year continuous service. Of course it is up to the Union Government to formulate any scheme as and when it found necessary that the casual labourers are to be given “temporary” status and later they are to be observed in Group “D” posts. 13. This position as highlighted in Mohan Pal‟s case (supra) was reiterated in Union of India Vs. Gagan Kumar (J.T. 2005 (6) SC 410) and Director General, Doordarshan, Mandi House, New Delhi and others Vs. Manas Day and ors. (2005 (13) SCC 437).” - 8 - 9. The counsel for the respondent relied upon a Division Bench judgment of this Court in the case of the Union of India & Ors. Vs. Central Administrative Tribunal, 2005(4) PLJR 241, wherein the Division Bench considered the matter as follows: - “11. After hearing learned counsel for the petitioners and learned counsel for respondents no.2 to 4 and after considering the materials on record produced by both the parties it is quite apparent that respondents no. 2 to 4 are casual workers. It is not in dispute that they fulfilled all the criteria for the post at the time of their appointment that they were directly appointed by the Directorate which had the power to appoint and that they are continuously working since more than 8-10 years and were never disengaged. These facts lead to a clear and unambiguous conclusion that the Directorate has regular need of their service which fact takes away the casual nature of their employment. These facts also lead to a conclusion that respondents no.2 to 4 were neither appointed on work contract basis nor they have been working as contract workers because there is no material to show that they are working for any fixed period or as per any contract with any one. 12. It is not in dispute that respondents no.2 to 4 have continuously spent 8-10 years in service and have already spent prime period of their life in the service of the petitioners having requisite qualification and satisfactory service record and now if they are not regularized they will have no place to go and their entire future would be doomed, in spite of serving the petitioners for such a long period. In such a situation it becomes obligatory for the concerned authority to examine the feasibility of their regularization and while doing so they must adopt a positive approach coupled with an empathy for such persons. This becomes more important in case where the authority is a welfare State or its functionary. These observations are being made impelled by the facts of this case and the spate of litigations by such hapless employees. This is not exhaustive, nor they can be deemed to be immutable and the Government or its authority must decide such cases as per their criteria and principles with respect to regularization considering all the relevant circumstances, but they must do it expeditiously without waiting for the employees to spend such long years. - 9 - 13. Much before the Scheme of 1993 came into force, the guiding principle for regularization of service of such workers had been laid down by the Hon‟ble Apex court in its decision in the case of State of Haryana and Ors. etc. Vs. Piara Singh and Ors etc. reported in AIR 1992 Supreme Court 2130 in which it was held that in such matters Courts should act with due care and caution and in cases regarding problems of wholesome regularization of daily wage workers or casual labourers who are not workmen under Industrial Disputes Act, blanket direction to regularize all of them on completion of one year service was not proper. But at the same time it was also held that when any casual worker continued for 2-3 years, the presumption would be that there was regular need of his service and hence the authorities must make efforts for his regularization as early as possible subject only to them being qualified and to availability of work. And for that purpose the following guiding principles have been prescribed in Paragraph-25 of the said judgment: “25…………………….. The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employees by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/ temporary employee. Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority. Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he - 10 - should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. An unqualified person ought to be appointed only when qualified persons are not available through the above processes. If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. The proper course would be that each State prepares a scheme, if one is not already in vogue, for regularization of such employees consistent with its reservation policy and if a scheme is already framed, the same may be made consistent with our observations herein so as to reduce avoidable litigation in this behalf. If and when such person is regularized he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be. So far as the work-charged employees and casual labour are concerned the effort must be to regularize them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell- say two or three years- a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularization. While doing so, the - 11 - authorities ought to adopt a positive approach coupled with empathy for the person. As has been repeatedly stressed by this court, security of tenure is necessary for an employee to give his best to the job…………..” 16. It may be noted that the petitioners are authorities of a Welfare State and the Union of India is a model employer, hence it is not expected of them to cling to the technicalities of the forms, rather they should see the substance and realities of accepting facts and prevailing situation, which in the instant case is of their own making. It appears quite unfair on the part of the petitioners to keep on quibbling on the questions with respect to the date of appointment of respondents no.2 to 4 and applicability of Scheme of 1993 which appears to be quite immaterial in the facts and circumstances of this case. There is also no dispute with respect to the fact that there is a disparity in salaries and emoluments and other working conditions between casual workers and regular employees doing the same work and for the same duration in the same conditions but one of them with and the other without the real benefits of the job, securities, facilities and emoluments etc. Hence respondents no.2 to 4, who are working continuously for 8-10 years on a job of permanent nature and all of them having required qualifications at the time of their appointments by the authorities who had the power to appoint them, fully deserve the same security, facilities and benefits of service as of the permanent employees. This view finds support from another decision of the Hon‟ble Apex Court in the case of State of West Bengal & Ors.vs. Pantha Chatterjee & Ors (S.C.) reported in 2004(1) All India Services Law Journal 135. 17. Furthermore, from the scheme of 1993, it appears that no bar has been provided therein with regard to temporary status or regularization of casual labourers, who were to be engaged after 1993. Furthermore, the petitioners themselves have been extending such benefits to casual labourers of various departments from time to time, even after coming into force of the Scheme of 1993. In any view of the matter such types of scheme are formulated for the welfare of such employees and not for exploiting them as “Begaars” and throwing them out after taking work during the prime period of their life for 8-10 years. Such acts are clearly violative of the directive principles of State policy enshrined in Article 39 of the Constitution of India and also the endeavour the State has - 12 - to make under Article 43 thereof. Hence in the aforesaid circumstances, respondents no.2 to 4 are definitely entitled to similar treatment if not by the authorities then at least by the Courts. 18. In the aforesaid facts and circumstances, the decision of the Tribunal cannot be faulted with, which is based on its opinion that respondents no.2 to 4 were also entitled for extension of benefits of the aforesaid Scheme, which had been extended from