IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY FIFTH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE V.ESWARAIAH and THE HON'BLE SRI JUSTICE P.SWAROOP REDDY WRIT PETITION NO : 1208 of 2000 Between: 1 Chief Commissioner Cenral Excise and Customs Basheerbagh, Hyderabad 2 Superintendent of Central Excise Azamabad Range, Hyderabad 3 Union of India rep.by the Secretary Ministry of Finance, Govt. of India New Delhi ..... PETITIONER(S) AND Mr.C.Narsing S/o.Ramulu O/o.The Superintendent of Central Excise Azamabad Range Hyderabad .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a direction, or order or writ, more particularly one in the nature of certiorari calling for records in OA.No.1418/1998 on the file of the Central Administrative Tribunal , Hyderabad Bench and quash the order Dt.28/10/1998 in the said OA and pass such other order. Counsel for the Petitioner:MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) Counsel for the Respondent No.: MR.V.HARI HARAN The Court made the following : WRIT PETITION NO : 1392 of 2000 Between: 1 The Chief Commissioner of Customs and Central Excise L.B.Stadium Road Basheerbagh Hyderabad. 2 The Asst.Commissioner of Central Excise Subashnagar Nizamabad. 3 Union of India Rep.by its Secretary,Ministry of Finance Govt.of India New Delhi. ..... PETITIONER(S) AND Mr.G.Rajesham S/o.Mr.Mallaiah Office of the Superintendent of Central Excise Peddapalli Range. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to To issue as direction more particularly one in the nature of Writ of Certiorari calling for the records in O.A.No.561 of 1999 on the file of the Central Admn Tribunal,Hyderabad Bench and quash the order dated 27- 10-1999 in the said O.A. and pass such other order or orders. Counsel for the Petitioner:MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) Counsel for the Respondent No.: . WRIT PETITION NO : 1457 of 2000 Between: 1 The Chief Commissioner of Customs and Central Excise, L.B.Stadium Road, Basheerbagh , Hyderabad 2 The Asst. Commissioner of Central Excise Subashnagar, Nizamabad 3 Secretary Ministry of Finacne, Govt of India Union of India New Delhi ..... PETITIONER(S) AND P.Das son of Maruti, Safalwala, Office of the Inspector of Central Excise, Shakkarnagar, Nizamabad Dist .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ or direction, order or Writ, more particulalry one in the nature of Certiorari calling for records in OA.No. 566/1999 on the file of the Central Administrative Tribunal, Hyderabad Bench and quash the order dt. 27/10/1999 in the said OA.and pass Counsel for the Petitioner:MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) Counsel for the Respondent No.: . WRIT PETITION NO : 1640 of 2000 Between: 1 The Chief Commissioner of Custmos and Central Excise, L.B. Stadium Raod, Basheerbagh Hyderabad 2 The Asst. Commissioner of Central Excise Subashnagar, Nizamabad 3 Secretary Ministry of Finance, Govt of India Union of India New Delhi ..... PETITIONER(S) AND Ch.Posani W/o Lakshmaiah Superintendent of Central Excise, Subhashnagar, Nizamabad .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ or direction, order or Writ, more particulalry one in the nature of Certiorari calling for records in OA.No. 567/1999 on the file of the Central Administrative Tribunal, Hyderabad Bench and quash the order dt. 27/10/1999 in the said OA.and pass Counsel for the Petitioner:MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) Counsel for the Respondent No.: MR.M.V.KRISHNA MOHAN WRIT PETITION NO : 16821 of 2008 Between: V.Koteshwar Rao S/o.Sri Krishna Asst.Commissioner of Centrarl Excise Bandar Road Vijayawada ..... PETITIONER AND 1 Union Of India rep.by its Secretary Govt of India Ministry of Finance Department of Revenue Centrarl Board of Excise & Customs New Delhi 2 The Chairman Central Board Of Excise & Customs Govt of India New Delhi 3 The Director(P&V) Centranl Board of Excise & Customs Government of India New Delhi 4 The Chief Commissioner Customs & Centrarl Excise Hyderabad Zone L.B Stadium Road Basheerbagh Hyderabad 5 The Asst.Commissioner Of Central Excise Bandar Road Vijayawada 6 The Member(Judi) The Central Administrative Tribunal Hyderabad Benchat Hyderabad .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ,order or direction more in the nature of writ of Mandamus declaring the order dt.20-6-2007 in O.A No.797 of 2006 on the file of 6th repondent ie Centrarl Administrative Tribunal Hyderabad Bench and consequently set aside the same by directing the respondents herein to consider petitioner application and grand temporary status and other benefits in accordance with other employees and pass Counsel for the Petitioner:MR.V.HARI HARAN Counsel for the Respondent No.: MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) The Court made the following : VE & PSR, JJ. W.P.Nos. 1208; 1392; 1457; 1640 of 2000 and 16821 of 2008 Common Order: (Per P. Swaroop Reddy, J.) As common question of law and facts arise for consideration in all these writ petitions, filed by the State - the petitioners herein against the orders of various OAs of the Central Administrative Tribunal, Hyderabad, all these writ petitions are heard together and are being disposed of by this common order. The parties herein would be referred to as they are arrayed before the learned Tribunal. 2. W.P.No. 1208 of 2000: (a) This writ petition is filed against the order of the learned Central Administrative Tribunal, Hyderabad Bench, Hyderabad in O.S.No.1418 of 1998. The case of the applicant is that he joined as Scavenger/Casual Labourer at Azamabad range of the Central Excise Department w.e.f. 1.11.1992 on daily wages. He was continuously working since then as Scavenger, as could be seen from the Superintendent, Central Excise Lr.No.11/31/1/97 Estt.5(FF-1) dated:14.2.1997. On the date of filing of the O.A., he was being paid @ Rs.45.00 per day, excluding Sundays and Holidays. Thus he completed more than five years of continuous service as Casual Labourer, put in more than 208 days of continuous service as on 1.9.1993. (b) The Government of India through the Department of Personnel & Training formulated a scheme known as “Casual Labourers (Grant of Temporary Status and Regularization) Scheme (Hence forth referred to as the Scheme”), which came into force from 1.9.1993 and is made applicable to all the Casual Labourers, who are in employment as on 10.9.1993 in the Ministries/Departments, the Government of India and their attached subordinates. According to that scheme, temporary status would be conferred on the Casual Labourers who are in employment on the date of issue of Official Memorandum and who ever rendered continuous service of at least one year i.e, who were engaged for a period of at least 240 days (In case five days working, 206 days). The conferment of temporary status would be without reference to the creation/availability of regular posts. (c) Though the applicant had put in more than 206 days of continuous service by the date of promulgation of the scheme on 1.9.1993 and was eligible for benefit under the scheme, he was not given the benefit. He went on making representations and finally submitted a representation on 31.7.1997 for granting temporary status contending that some of his juniors have been granted temporary status and that the learned Tribunal directed to grant temporary status to Sri Top Bahadur; P. Panduranga; M. Srinivas and P. Ashok Kumar, who were similarly engaged like the applicant vide orders in O.A.No.404 of 1996; OA.No.1313 of 1996 and O.A.No.1451 of 1997. The ratio decided in the above judgment is fully applicable to the case of the applicant also. It is also the contention of the applicant that the clarification issued in respondent’s Lr.No.49014/2/93-Estt © dated:12.7.1994 adverting that the casual employees who are engaged other wise than from the Employment Exchange cannot bestowed with the temporary status is not tenable in law, as the original scheme dated:10.9.1993 did not make any reference to the recruitment of casual labourer from Employment Exchange and the scheme was made only for those casual labourers, who were already employed and completed one year service as on 1.9.1993. The clarification issued on 12.7.1994 could not have retrospective effect in the absence of giving opportunity to the employees who were already entitled for conferment of temporary status as per the original scheme dated:10.9.1993. 3. (a) The relevant facts of the counter filed by the respondents are as follows: According to the scheme referred to by the applicant, temporary status would be conferred on those casual labourers, who were in employment on the date of issue of the scheme – 10-9-1993 and who have rendered continuous service of at least one year; that clarification was issued on 20.1.1994 clarifying that the provisions of the scheme are not applicable to the part time casual labourers. On12.7.1994 further clarification was issued in respect of granting of temporary status to the Casual Labourers as per the scheme, wherein it was clarified that temporary status would be conferred only on those Casual Labourers, who are engaged as Full Time casual labourers sponsored through Employment Exchange. Since most of the Casual Labourers were not drawn from the Employment Exchange, the department has not conferred the temporary status on those casual labourers, who were not engaged through Employment Exchange, though they are otherwise eligible as per Official Memorandum dated:10.9.1993. Some Casual Labourers have approached the learned Central Administrative Tribunal vide O.A.Nos. 408/95; 509/95; 982/95 and 404/96. The learned Tribunal disposed of all those O.As., holding that applying the clarificatory Official Memorandum dated:12.7.1994 with retrospective effect i.e., 10.9.1993 is arbitrary of Constitutional rights under Article 14 and directed the respondents to grant temporary status to the applicants therein with effect from 1.9.1993 with all consequential benefits, irrespective of the fact whether they are engaged through Employment Exchange or not, if they are otherwise eligible as per Official Memorandum dated:10.9.1993. Consequent to the above direction, the department after scrutinizing the eligibility criteria of the casual labourers has granted temporary status to all those casual labourers in whose favour the learned Central Administrative Tribunal has issued orders with effect from 1.9.1993, withal all consequential benefits. Later all the remaining Casual Labourers who are similarly placed started filing OAs, one-by-one and got similar orders. (b) On verification of the records available at the Division Office, Hyderabad, where the applicant was working, it is revealed that the application was appointed as a Scavenger on part time basis with effect from 1.11.1992 and was paid Rs.4.00 per day. No appointment order was issued. At that time the wages for a full time casual labourers were Rs.8.00 per day. The applicant was appointed as a part time casual labourer from .11.1992. He submitted a representation 28.4.1995 pleading enhancement of daily wages from Rs.4.00 per day to Rs.15.00 per day and his request was sympathetically considered since June 1995. At that time the wages for full time casual labourers was Rs.30.00 per day. Again in November, 1996, the applicant submitted another representation pleading Full time Wages @ Rs.45.00 day, as he was working for more than eight hours per day, which request was considered and his wages were enhanced from Rs.15.00 to Rs.45.00 per day with effect from 1.11.1997. Thus, the applicant was paid part time wages since his date of joining on 1.11.1992 to 1.11.1997 and was being paid Full time wages only from 1.11.1997 onwards. The records also reveal that he has worked for 208 days continuously as on 1.9.1993 on part time basis; as such he is not entitled for conferment of temporary status. It is also stated in the counter that the applicant was appointed as a part time casual labourer with effect from 1.11.1992, as revealed from the letter of the Superintendent of Central Excise vide Lr.C.No.1/22/98-Cashier dated:9.12.1998 and as such he cannot be given temporary status. The applicant is not similarly placed to the applicants inO.A.No.404; 1451 and 1313 of 1996 and as such he cannot claim similar relief. After receiving the orders in O.A.No.404 of 1996, the department has considered cases of the similarly placed casual labourers without going into the aspect of sponsorship from Employment Exchange and granted temporary status; but the application was not a full time casual labourers as on1.9.1993, he could not be considered along with others. © It is also stated in the reply that the clarification with regard to the sponsorship of the candidates from the Employment Exchange was held operative prospectively and the second clarification that the part time casual labourers cannot be granted temporary status is supported by another clarification dated:14.5.1998. It is not clear as to which clarification cannot be held to be operative. It is also mentioned in the reply that sponsorship of the candidates from the Employment Exchange was also relaxed by the respondents and the applicant was denied temporary status on that ground. It is also stated that the applicant cannot be granted relief of a decision to which he is not a party. (It appears that the department is not denying that similarly placed persons, were given benefit of the scheme). It is further stated in the reply that all the casual labourers who were granted temporary status were working on Full time as on1.1.1993 and completed 206 days as on the crucial date as such the applicant is not similarly placed to them. (d) The said O.A. was allowed “holding that similar issue arose before the Tribunal inO.A.N.1092 of 1998, which was disposed of with direction to the respondents to grant temporary status to the applicant with all consequential benefits.” (e) Aggrieved by the said order, the department filed a clarification petition in R.A.No.40 of 1999, which was disposed of on 15.9.1999 on the following main grounds: i) The contents of the Official Memorandum dated:20.1.1994 are not applicable to the part time casual labourers; ii) The applicant was not originally sponsored by the Employment Exchange and therefore, he was not eligible for conferment of temporary status. iii) The applicant was appointed as Scavenger on part time basis since 1.11.1992 and was paid Rs.4.00 per day; whereas full time casual labourers were paid RS.8.00 per day as wages at the relevant time. 4. The Tribunal in the review petition observed that “the question with regard to the necessity of sponsorship of Employment Exchange is dealt with by the Hon’ble Supreme Court in Excise Superintendent v. K.S. N.Visweshwar Rao[1], where the Hon’ble Apex Court took the view that many candidates were unable to have the names sponsored though Employment Exchange; that it should be mandatory for the requisitioning authority to intimate the Employment Exchange and the Employment Exchange to sponsor the names of the candidates to the requisitioning department for selection strictly in accordance with the seniority and reservation as per the requests in addition, the appropriate department or undertaking or establishment should call for the names on publication in the news papers having vide circulation and also display on their notice boards or announce on Radio and TV and Employment News bulletin and then consider the cases of all the candidates that might have applied and that if this procedure was adopted, the cause of fair play would be served and equality in the matter of employment would be available to all eligible candidates. 5. In view of the decision of the Hon’ble Supreme Court, the condition of being sponsored through the Employment Exchange is not mandatory. With regard to the temporary status, the Tribunal observed that as per the letter dated:14.2.1997 issued by the controlling authority, it was evident that the applicant was working as a full time scavenger since 1.11.1992. The applicant has also stated that as per the endorsement made on the representation dated:10.5.1999 submitted along with his reply, it was evident that the applicant was performing his duties since his initial appoint from 1.11.1992 for eight hours from 8.AM to 4.00 PM, every day. The applicant was agitating against the discrimination meted out to him in payment of wages as could be seen from the representation dated: 28.4.1995 and November, 1997, copies of which are enclosed to the reply affidavit as Exhibits R7 and R-8 in paragraph-7. The record reveals that the applicant was in continuous service as Casual Labourer from 1.11.1992 from the date anterior to the date of promulgation of the Scheme. 6. It is also referred to in the Review Order that the respondents themselves have produced letter of the applicant dated:28.4.1995 at Annexure R-5 annexed to the Counter affidavit in which it is stated that he was paid Rs.4.00 per day; whereas Rs.15.00 per day was paid in the first floor of the Habsiguda building and therefore his wages should be enhanced to Rs.15.00 per day. It is further stated that the applicant was attending to the work for more than eight hours a day; but, he was paid Rs.15.00 per day and it would be difficult to live with a meager wage of Rs.15.00 per day. 7. It is a case where there is sufficient material to show that the applicant was working as Full time workman i.e., eight hours a day from inception, though he was paid as part-time workman and the record filed with the counter in the present writ petition also reveals the same. The condition of sponsoring through Employment Exchange has become unnecessary in view of the averments of the counter, itself, as well as in view of the decision of the Supreme Court, referred to above. There appears to be no dispute about similarly placed persons being considered. It appears to be a case where when none were available to discharge the duties at such a cheap rate of Rs.4.00 or 8.00 per day, he was engaged and work was extracted and thereafter he was not considered for conferment of temporary status. 8. W.P.No. 16821 of 2008: It is the case of the petitioner, as mentioned in O.A.No.797 of 2006 that he was engaged as a Casual Labourer/Contingent worker in the office of the Assistant Commissioner of Central Excise, Vijayawada with effect from 8.8.1991 and he has been continuously working as such performing full time work @ Rs.8.00 per day. That the petitioner is entitled for the benefit of the scheme. He further submitted that he submitted several representations right from 1993 to 27.3.2006 through proper channel; but there was no response. The fact that the petitioner was in service as on 10.9.1993 was never disputed, as he has been continuously working right from 8.8.1991. The department subsequently resorted to convert the existing casual labourers as contract labour and quotations were called for from different agencies for letting out contracts for house keeping service. It is evident from the quotation submitted by one Sri Ganesh Enterprises, Hyderabad, vide their letter dated:2.5.2005 offering to utilize the existing workers in the department as contract workers under the private contract, at the cost of Rs.130.00 per day, per eight hours duty, with a proportionate charge for additional duty hours. 9. The OA was dismissed with an observation that the applicant had earlier filed O.A.No. 877 of 1999 in which the following order was passed: “It appears that in the earlier O.A.No.1418 of 1998 on the same subject was decided on28.1.2000 against which the respondents having been aggrieved filed A Writ petition before the Hon’ble High Court of A.P., being W.P.No.1208 of 2000. When the matter came up for admission, the Hon’ble High Court passed an interim order as follows: “Interim suspension as prayed for and Notice”. In view of the stay granted by the Hon’ble High Court, it would not be in order for met to go ahead with the hearing of the present O.A. However, I believe that the interests of justice will be served if the present O.A., as consented by the parties, is disposed of with an observation that any order that may be passed by the Hon’ble High Court of A.P., inW.P.No.1208of 2000 after finally hearing the case, shall be binding on both the applicants well as the respondents. The present OA is disposed of accordingly. No costs.” 9. W.P.No. 1392 of 2000: In this case, the case of the applicant is that the second respondent appointed him as Sweeper- cum-water carrier (Casual Labourer) in the office of the Superintendent of Central excise, Peddapalli Range with effect from 1.10.1992 and he is continuously working in the said office. He was being paid Rs.52.00 per day, excluding holidays and Sunday on the date of filing of O.A. Though the applicant had put in about one year of continuous service by the date of promulgation of the scheme i.e., 1.9.1993 and became eligible for granting temporary status under the scheme, he was not granted temporary status, in spite of his representations; whereas similarly placed employees, who have put in lesser service, than the applicant were granted temporary status. The Tribunal gave direction in the case of Sri Top Bahadur,P. Panduranga; P. Ashok Kumar and K. Bhogurambha etc., vide orders in O.A.No. 404/1996; 1451/1997 and 1092 of 1998. The present second petitioner, who is the second respondent in the O.A. after verification of the records certified that the applicant has been working continuously since 1.10.1992 and completed more than 206 days of service by 1.9.1993 as Full time casual labourer and recommended for grant of temporary status and regularization vide letter No.1/22/1/99-Admn dated:13.1.1999; but, till now no orders are issued. The applicant further submitted that he has put in more than six years of continuously service as Sweeper-cum- Water carrier. 10. W.P.No. 1457 of 2000: The case of the applicant is that he was appointed as Safaiwala (Casual Labourer) in the office of the Inspector of Central Excise, Shakkarnagar with effect from 16.3.1988 and was continuously working in the said office, which comes under the jurisdiction of the present second petitioner, who is the second respondent in the O.A. He was paid @ Rs.47.00 per day, excluding Sundays and Holidays, on the date of filing of O.A. and he has put in more than five years of continuous service and became eligible for conferment of temporary status under the scheme. Though he has been making representations since 16.7.1988 for granting temporary status, he was not granted the same, though the same benefit was extended to similarly placed employees, whose names have been referred to in other OAs. Though the present second petitioner (second respondent in the O.A.), after verification of the records certified that the applicant was continuously working since 16-3-1988 by completing more than 206 days of service by 1.9.1993 as Full time Casual Worker and recommended for grant of temporary status and regularization by his Lr.No.1/22/1/99-Admn. Dated:13.1.1999, still orders were not issued. Thus, the applicant did put in more than eleven years of continuous service as Safaiwala under the control of the present second petitioner, who is the second respondent and eligible for conferment of temporary status. 11. W.P.No. 1640 of 2000: The applicant was appointed as a Sweeper-cum-water carrier in the office of the Superintendent of Central Excise, Subashnagar, Nizamabad, with effect from 1.6.1975 and was continuously working in the said office, which comes under the jurisdiction of the present second petitioner (the second respondent in the O.A.), and became eligible for conferment of temporary status under the scheme. Though the application had put in more than five years of continuous service by the date of promulgation of the scheme, the respondents have not taken favourable action. Though he was representing from 15.6.1998 onwards, for granting temporary status, which was granted to similarly placed persons, referred in other OAs, his request was not considered. 12. After verification of the records, the present second petitioner (the second respondent in the O.A.) has certified that the applicant was continuously working since 1.6.1975 and has completed more than 206