IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.11.2009 CORAM THE HON'BLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HON'BLE MR.JUSTICE M.DURAISWAMY Writ Petition No.21209 of 2008 1. Council of Scientific and Industrial Research rep. by its Director General Rafi Marg New Delhi 110 001. 2. Central Scientific Instruments Organisation rep. by its Director Sector 30-C Chandigarh 160 030. .. Petitioners Vs. 1. K.Leelamma 2. Central Administrative Tribunal Madras Bench Chennai 104. .. Respondents ----- Petition under Article 226 of the Constitution of India praying for a writ of direction calling for the records of the Central Administrative Tribunal,Madras Bench in O.A.No.10 of 2007 dated 6.2.2008 and quash the same for the relief as stated therein. ----- For Petitioners : Ms.B.Saraswati For Respondent-1 : Mr.L.Chandrakumar ----- O R D E R (Made by S.J.MUKHOPADHAYA,J.) This writ petition has been preferred by the Council of Scientific and Industrial Research (for brevity "CSIR") and its https://hcservices.ecourts.gov.in/hcservices/ organisation, viz. Central Scientific Instruments Organisation (for brevity "Organisation"), against the order dated 6.2.2008 passed by the Central Administrative Tribunal, Madras Bench, in O.A.No.10 of 2007. 2. By the impugned order, while the Tribunal observed that the respondent/applicant came to be reinstated in the same post on 28.4.1994, it is also observed that the said respondent/applicant also deemed to have been regularised from the said date and is entitled for counting the qualifying service with effect from 1.3.1985, for the purpose of pensionary benefit. 3. It appears that the respondent/applicant K.Leelamma was engaged as Junior Stenographer on casual basis by the petitioners on 3.8.1983 where she worked upto 2.11.1983. She was again engaged on 3.11.1983 on piece rated basis and thereafter, engaged on fixed wage of Rs.550/- per month from 1.12.1983 to 30.4.1984, from 1.5.1984 to 11.10.1984 and from 1.11.1984 to 1.3.1985, as her services were terminated on 1.3.1985. Hence, the respondent/applicant raised an industrial dispute before the Central Industrial Tribunal, Jaipur in case No.CIT 16/1987, wherein, the following reference was made. "Whether the action of the management of Central Scientific Instrument Organisation, Service & Maintenance Centre, Jaipur in terminating the services of Miss Leelamma K.C. from 1.3.95 is justified? If not, to what relief the workman concerned is entitled to and from what date?" 4. After hearing the parties and on appreciation of evidence, the Central Administrative Tribunal, Jaipur, by order dated 20.11.1991, answered the reference in favour of the respondent/applicant and held as under: "The termination of the services of Miss Leelamma from 1.3.85 is not legal and justified and the termination order is set aside and she is declared appointed to the post of Junior Stenographer-cum-Administrative Assistant. The continuity of her service is maintained and she shall be entitled to salary and all the benefits from 1.3.85. She is also awarded Rs.100/- as costs of the case. If the respondent does not pay the dues within three months, it shall also have to pay interest @ 12% p.a." 5. Even though the petitioners challenged the award upto the Supreme Court, the said award was confirmed. Thereafter, the https://hcservices.ecourts.gov.in/hcservices/ respondent/applicant requested for regularisation of her service. The CSIR, by memorandum dated 12.7.2006, made the following observation: "In view of the above facts and order of Court, request to treat her as "Junior Stenographer cum Administrative Assistant" on regular basis wef 1.3.1985 cannot be acceded as she is to be placed in the same position on which she was working prior to her disengagement." 6. In this background, the respondent/applicant moved before the Tribunal in O.A.No.10 of 2007 for direction on the petitioners for regularisation of her services with effect from 1.3.1985 and consequential benefits, which has been partly allowed. 7. The learned counsel appearing on behalf of the petitioners submitted that the order of the Tribunal is against the fact and the Scheme framed by the petitioners from time to time. It was submitted that the respondent/ applicant was never reinstated in the permanent establishment and cannot be treated to have been regularised with effect from 28.4.1994. The note at paragraph 10 of the order of the Tribunal, as noticed, relates to reinstatement of the respondent/applicant in the same position, i.e. in the temporary status with effect from 28.4.1994 and the same cannot be termed to be a regularisation in service. 8. The learned counsel appearing on behalf of the respondent/applicant, while accepting that there is no provision for deemed regularisation, submitted that as the respondent/applicant is working continuously since 1.11.1984, the petitioners are bound to consider her case for regularisation/absorption to the post of Junior Stenographer cum Administrative Assistant, at least with effect from 1.3.1985, viz. the date on which she was retrenched from service and by virtue of the order of the Industrial Tribunal, she was reinstated with continuity of service and therefore, the petitioners cannot ask the respondent/applicant to compete in any test, along with others, at the fag end of her service career, as she has already attained the age of 56 years. It was contended that if necessary, after regularisation/absorption of the respondent/applicant with effect from 1.3.1985, she is ready to take voluntary retirement, which the petitioners may allow. 9. We have heard the learned counsel appearing on behalf of the parties and perused the records. 10. It is not in dispute that the respondent/applicant was https://hcservices.ecourts.gov.in/hcservices/ engaged from time to time and was disengaged. Ultimately, when she was engaged on 1.11.1984 and continued upto 1.3.1985, till her services came to be terminated. Against the said order of termination, on reference, the Central Industrial Tribunal answered the reference and ordered to reinstate her declaring that the order of termination illegal and further declaring that the respondent/applicant stands appointed to the post of Junior Stenographer cum Administrative Assistant with continuity of her service. Therefore, for all purpose, the said order having affirmed upto Supreme Court, the respondent/applicant will be deemed to be continuing in the service of the petitioners without any break, with effect from 1.11.1984, with temporary status. 11. It appears that CSIR took a decision of formulation of Casual Workers Absorption Scheme, 1990, pursuant to the decision of the Supreme Court in W.P.Civil No.631 of 1988. It was circulated by circulated by Circular No.14(45)/-Estt. Dated 10.10.1990. It was decided that the Casual Workers in employment on the date of issue of the instruction, having been engaged for at least one year on 1.1.1990 or having completed 240 days in the immediate preceding calendar year, are to be regularised and absorbed in the services. The relevant portion of the Scheme reads as under: "ABSORPTION OF CASUAL WORKERS IN CSIR 1. Name of the Scheme: This Scheme shall be called "Casual Workers" Absorption Scheme, 1990". 2. Administration Scheme: The CSIR hereinafter referred as 'Council' will administer the Scheme. 3. Objectives of the Scheme: The Scheme being a one- time measure will be applicable to the workers engaged on casual basis and paid either on daily wage on monthly basis at CSIR Headquarters and its National Labs./Institutes as on 1.1.1990. 4. Scope of the Scheme: The Scheme will be applicable to:- i) Casual workers engaged initially through Employment Exchange; ii) Casual workers engaged otherwise than through Employment Exchange; iii)Causal workers in employment on the date of issue of these instructions but having been engaged for at least one year on 1.1.1990 or having completed https://hcservices.ecourts.gov.in/hcservices/ 240 days (206 days in case of 5 days week) in the immediately preceding calendar year. 5. Terms and conditions of regularisation: a) Wherever age limit is prescribed, it will be determined after allowing age relaxation to the extent of completed years of casual service in the Lab./Instt. b) Causal workers should be educationally qualified for the post as prescribed from time to time for which regularisation is considered no dilution of qualifications will be allowed. c) Orders on reservation issued by GOI from time to time and made applicable to CSI shall be applied under the Scheme. d) Absorption will be against the available vacancies and/or those arising in future in Group-D or C category of posts. e) Casual workers who do not appear in test and/or interview in spite of the relaxation or who are not successful in two chances in a period of six months, will be removed from casual engagement with one month's notice or payment in lieu thereof. f) Absorption will be as per normal procedure of recruitment prescribed for the post including qualifying in the trade test, if any. 6. General Conditions:- (a) Regularisation will be considered for the entry level post of Group-C or Group-D in technical or non-technical grade. The persons may be posted in any Lab./Instt. where the vacancies are available. The panels will be drawn by respective Labs./Instts. (b) Open recruitment for filling up entry level vacancies in Group-C & D shall be banned till casual workers already engaged but satisfying the terms and conditions for regularisation, are fully absorbed. (c) Casual workers on regularisation will have no right https://hcservices.ecourts.gov.in/hcservices/ to make claim for appointment only in the same Lab./Instt. where they were engaged as casual workers. On their regular appointment, they will not be entitled to any benefit for the past period of casual service rendered by them as casual workers. Panels drawn by Lab./Instt. will be circulated to all the Labs./Instts in order to explore the possibility of their appointment against the suitable vacancies available in their Labs./Instts. (d) This Scheme is not applicable to persons engaged on contract through any outside agency. (e) This Scheme will not be applicable to casual workers/contract workers engaged in a Sponsored Project/Bilateral or any time bound project/scheme through any source. 7. DGSIR shall have the power to relax any of the provision of the Scheme and shall have the power to interpret the provisions of the Scheme within its framework, which shall be final and binding. 8. There will be complete ban on engagement of casual workers for performing duties of regular nature. If any deviation in this regard is made, COA/AO will be held responsible for the same." 12. In continuation of 1990 Scheme, the Governing body of CSIR, in its meeting held on 12.1.1994 approved conferment of temporary status in terms with Government of India instruction issued vide DOPT O.M.No.51016/2/90-Estt.(C) dated 10.9.1993 on the Daily Wage/Casual Workers already identified for absorption under the aforesaid Scheme in various CSIR Labs/Institutes. The letter for grant of temporary status of the employees who have been identified for absorption is quoted here under: (A) TEMPORARY STATUS (i) Conferment of temporary status would be without reference to the creation/ availability of regular posts. (ii)Conferment of temporary status would not involve any change in his/her duties and responsibilities. The engagement will be on daily rates of pay on need basis only. He/she may be deployed anywhere within the establishment unit/territorial circle on https://hcservices.ecourts.gov.in/hcservices/ the basis of availability of work. (iii)Temporary status would not, however, entitle them to be brought on the permanent establishment unless a proper procedure prescribed in the CSIR Scheme on absorption of casual workers. (B) TEMPORARY STATUS WOULD ENTITLE THEM TO THE FOLLOWING BENEFITS: (i) Wages at daily rates with reference to the minimum of pay scale for a corresponding regular lowest Group-D/Group-C official, as the case may be including DA, HRA and CCA. (ii) Benefits of increments at the same rate as applicable to a Group-D/Group-C employee would be taken into account for calculating pro-rata wages for every one year of service subject to performance of duty for at least 240 days (206 days in administrative office observing 5 days week) in the year from the date of conferment of temporary status. (iii)Leave entitlement will be on a pro-rata basis at the rate of one day for every 10 days of work, casual or any other kind of leave, except maternity leave, will not be admissible. They will also be allowed to carry forward the leave at their credit on their regularisation. They will not be entitled to the benefits of encashment of leave on termination of service for any reasons or on their quitting service. (iv)Maternity leave to day casual workers as admissible to regular Group-D/Group-C employees will be allowed. (v) 50% of the service rendered under Temporary Status would be counted for the purpose of retirement benefits after their regularisation. (vi)After rendering three years' continuous service after conferment of temporary status, the daily wage/casual workers would be treated on par with temporary Group-D/Group-C employees for the purpose of contribution to the General Provident Fund, and would also further be eligible for the grant of Festival Advance/Flood Advance on the same https://hcservices.ecourts.gov.in/hcservices/ conditions as are applicable to temporary Group- D/Group-C employees, provided they furnish two sureties from permanent Govt. Servants of their Department. (vii)Until they are regularised, they would be entitled to Productivity Linked Bonus/Ad hoc bonus only at the rates as applicable to Daily Wage/Casual workers. (viii) Despite conferment of temporary status, the service of a Daily Wage/Casual Worker may be dispensed with by giving a notice of one month in writing. A Daily Wage/Casual worker with temporary status can also quit service by giving written notice of one month. The wages for the notice period will be payable only for the days on which such casual worker is engaged on work. 13. The above letter is followed by another circular contained in its letter dated 6.12.1995 regarding absorption of Casual Labours, but, we are not concerned with the same. The petitioners have accepted, as noticed by the Tribunal, that the respondent/applicant is working continuously, at least from 1.3.1985. It is also not in dispute that she being identified to be eligible for absorption was granted temporary status. Such being the position, in terms with 1990 Scheme, it was incumbent on the part of the petitioners to regularise the services of the respondent/applicant or to absorb her against the available vacancy, particularly, in view of the award dated 20.11.1991 passed by the Central Industrial Tribunal, Jaipur, whereby, she was reinstated against the same post. It is true that the respondent/ applicant cannot be deemed to have been regularised with effect from 28.4.1994. Further, in view of the decision of the Central Industrial Tribunal, Jaipur, the respondent/ applicant having reinstated with effect from 1.3.1985, the petitioners cannot take a plea that the temporary status will be conferred on her only with effect from 28.4.1994. The Scheme for absorption having come into effect on 10.10.1990, it was incumbent on the part of the petitioners to consider the case of the respondent/applicant for absorption/regularisation against the post in their permanent establishment. 14. The 1990 Scheme stipulates absorption of casual workers. It further stipulates that the casual workers should be educationally qualified for the post prescribed from time to time. Though it is stipulated that the absorption will be as per the normal procedure of recruitment prescribed for the posts, including qualifying test, if any, there is nothing on record to suggest that https://hcservices.ecourts.gov.in/hcservices/ any specific test has been prescribed for the post of Stenographer cum Administrative Assistant. 15. So far as the respondent/applicant is concerned, it is not in dispute that she is working as Stenographer cum Administrative Assistant. There is no adverse remarks against her performance. She has already attained the age of 56 years. In these circumstances, this Court is of the view that the DGSIR, which has full power to relax any of the provision of the Scheme, as per Clause 7 of 1990 Scheme, should consider the case of the respondent/applicant for absorption, by relaxing the procedure, if prescribed to qualify in any trade test. 16. The case is, accordingly, remitted to the petitioners with a direction to consider the case of the respondent/applicant for regularisation of her services/ absorption in the regular cadre with effect from 10.10.1990, i.e. the date on which the Scheme came into effect. If any trade test is prescribed for such absorption, in that case, the authorities will consider the case of the respondent/applicant by relaxing the provision of the Scheme, in view of the observation made above. On such regularisation, the respondent/applicant will be entitled for terminal benefits in accordance with law and if so permissible, her services should be counted with effect from 1.3.1985, i.e. the date from which the Central Industrial Tribunal has ordered to treat her appointed against the post of Stenographer cum Administrative Assistant. All the formalities are to be completed within a month. The order passed by the Central Administrative Tribunal dated 6.2.2008 in O.A.No.10 of 2007 stands modified to the extent above. The writ petition stands disposed of with the aforesaid observation and directions. There shall be no order as to costs. Consequently, M.P.Nos.1 and 2 of 2009 are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kpl https://hcservices.ecourts.gov.in/hcservices/ To The Central Administrative Tribunal Madras Bench, Chennai 104. +1cc to Mrs.B.Saraswathi, Advocate Sr 60077 +1cc to Mr.L.Chandrakumar, Advocate Sr 60164 BV(CO) km/24.11. W.P.No.21209 of 2008. https://hcservices.ecourts.gov.in/hcservices/