HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE G. BHAVANI PRASAD WRIT PETITION No. 12514 OF 2010 Between: The Director General of Works (rep.UOI) Government of India, Central Public Works Department and five others ..... PETITIONERS AND Smt. Kulsum Fatima W/o late Sri Syed Afsar Ali and one another .....RESPONDENTS ORDER: (Per Hon'ble Sri Justice Ghulam Mohammed) This Writ Petition has been filed seeking a Writ of Certiorari calling for the records relating to orders dated 08.09.2009 passed in O.A.No. 771 of 2008 by the Central Administrative Tribunal, Hyderabad and quash the same as arbitrary. By the impugned order dated 08.09.2009, the Tribunal set aside the impugned letter dated 19.12.2007 and directed the respondents to grant temporary status to the applicant in accordance with the provisions of the “Casual Labourers (Grant of Temporary Status and Regularization) Scheme of Government of India, 1993” with effect from the date on which she completed 240 days of casual service. Brief facts of the case are that the husband of the first respondent- applicant was initially appointed as lift operator (Group-C) on Muster Roll in the office of Assistant Engineer (Electrical) Hyderabad, Central Electrical Sub-Division IV, CPWD, Hyderabad on 3.5.1984. While working as such, he died in harness on 24.10.1990 leaving the applicant-first respondent and three children in indigent circumstances. Therefore, the applicant-first respondent filed number of representations seeking appointment on compassionate grounds to the post of Lift Operator and finally she was appointed on 6.1.1992 and joined the post on 17.1.1992. The appointment letter, which conveyed the approval of first respondent, stated that she was being appointed on compassionate grounds in relaxation of normal procedure of recruitment through employment exchange and in relaxation of existing ban on engagement of Muster Roll workers. While working as Lift Operator, the applicant-first respondent being lady faced several problems and requested the 4th respondent herein to consider her case for appointment to the post of LDC as she was qualified to hold that post which is also a Group-C post as that of Lift Operator. Since there was no progress in the case, the applicant made a representation to the President of India, which was forwarded to the officials lower down and vide memo dated 13.11.2006 her case was rejected by the third respondent. In the meantime, based on the directions of DGW, New Delhi, S.E. (Coordination), 5th respondent herein circulated a provisional seniority list of Casual workers in Southern Region vide his office letter dated 22.2.2007 and the applicant’s- first respondent name figured at So.No. 6 in that list. After that the Provisional Seniority List was revised and another list was circulated on 31.8.2007 but the name of the applicant-first respondent was not included in the list-dated 31.8.2007. Therefore, the applicant made a representation to restore her seniority. Instead of restoring her seniority final seniority list for Casual Workers was prepared and circulated for considering the top 10 workers for regularization in accordance with the clearance given by the Screening Committee and conveyed by DGW (CPWD) vide his OM dated 12.5.2006. Aggrieved by the same, applicant-first respondent filed O.A before the Central Administrative Tribunal, Hyderabad and the Central Administrative Tribunal allowed the O.A. in part framing the following issues: (i) Whether the applicant is entitled for appointment/absorption as LDC; (ii) If not, whether the applicant is entitled for grant of temporary status and regularization as per Government of India scheme of 1993 and (iii) To what relief, if any, is the applicant otherwise entitled. The learned Assistant Solicitor General of India, appearing for the petitioners submits that based on some objections and representations received from Casual Workers and some CPWD Offices, the final seniority list was prepared and circulated and communicated on 30.11.2007 and while preparing the third and final list certain criteria had been formed and approved by the then ADG & SR and circulated for considering the top 10 workers for regularization as cleared by the screening committee. He also stated that since the applicant-first respondent was over aged on the date of engagement as NMR lift operator, her name was not included in the final seniority list. He invited our attention to the consolidated instructions issued by Department of Personnel in OM No. 14014/6/86-Est (D), dated 30.06.1987 relating to compassionate appointment and stated that such appointment can be made only to the son or daughter or near relative of a Government Servant who died in harness. The relevant portion of OM is extracted below: “1. To whom applicable: (a) To a son or daughter or near relative of a Government servant who dies in harness including death by suicide, leaving his family in immediate need of assistance, when there is no other earning ember in the family. (b) In exceptional cases when a Department is satisfied that he condition of the family is indigent and is in great distress, the benefit of compassionate appointment may be extended to a son/daughter/ near relative of a Government servant retired on medical grounds under Rule 38 of Central Civil Services (Pension) Rules, 1972, or corresponding provisions in the Central Civil Service Regulations before attaining the age of 55 years. In cases of Group ‘D’ employee whose normal age of superannuation is 60 years compassionate appointment may be considered where they are retired on medical grounds before attaining the age of 57 year. (c) To a son or daughter or near relatives of a Government servant who dies during the period of extension in service but not re-employment.” He also contended that the post of Lift Operator is under the category of work charged establishment and therefore the claim of the applicant to consider her case for appointment to the post of LDC, which is a regular one under ministerial category. On the other hand Sri Pratap Narayan Sanghi, leaned counsel appearing for the applicant-first respondent submits that once the applicant-first respondent is conferred temporary status, she may be considered for regularization to a Group-D post first and then for appointment to the Group-C post of lift operator against the direct recruitment quota and the applicant-first respondent will be entitled to the benefits that would accrue to her on conferment of temporary status. He drawn our attention to the impugned letter dated 19.12.2007, issued by the Superintending Engineer (Coord) Southern Region, Rajaji Bhavan, Basant Nagar, Chennai and the relevant portion reads as under: “With reference to the above mentioned letter on the above cited subject, it is informed that the name of casual workers Smt. Kulsum Fatima, Lift Operator and the name of casual worker Sri M. Raji Reddy, Peon could not be included in the final seniority list of casual workers issued on 30.11.2007 as pe the details given below: 1. The name casual worker Smt. Kulsum Fatima, Lift Operator could not be included in final seniority list of casual worker as she is over aged at the time of initial engagement i.e. 17.1.1992 as per recruitment rules for direct recruitment as mentioned in CPWD Manual Vol. III. 2. The name of casual worker Sri M. Raji Reddy, Peon could not be included in the final seniority list of casual workers issued on 30.11.2007 as Peon is not in the category of work charged staff and only category of work charged staff is included in the final seniority list of casual workers for regularization of 10 casual workers or the post of work charged staff as pr DG (W) OM datd 12.5.2006. In view of the above, he above casual worker ay be intimated accordingly.” Therefore, he submits that there are no grounds to interfere with the order passed by the Tribunal and accordingly, the Writ Petition is liable to be dismissed. We have heard the learned counsel appearing for both sides and perused the material made available on record. As seen from the record, the Tribunal while allowing the O.A in part decided the first issue against the applicant-first respondent and as far as issue Nos. (ii) (iii) are concerned, taking into consideration of the contentions of the applicant-first respondent that the Government of India have formulated a scheme known as “Scheme for Temporary Status & Regularization of Casual Labourers” communicated vide Do P&T OM No. 51016/90-Estt (c ), dated 10.9.1993 in which the Government had authorized the grant of Temporary Status to the casual employees who were employed by the government and have rendered one year of continuous service in Central Government Offices whether in the department of Telecom, Postal or in Railways and their services are to be regularized as per the scheme and following the judgment of the Supreme Court reported in A. N. PATHAK & OTHERS VS. SECRTARY TO GOVERNMENT OF INDIA[1], the Tribunal decided both the issues in favour of the applicant-first respondent. The relevant portion of the above judgment reported in A.N. PATHAK & OTHRS VS. SECRETARY TO GOVERNEMNT OF INDIA (supra-1), reads as under: “that to treat continuous official service as temporary would be arbitrary and violative of Articles 14 and 16 of the Constitution of India. A Division Bench of the Bombay High Court in Laxman Mahadev Tell V. Principal, Shri Pancham Khemraj Mahavidyalaya (1989) I CLR 89, had held that though purportedly appointed in a temporary capacity, indisputably the petitioner throughout worked as a peon without break for more than five years when his services were abruptly terminated. This long spell of over five years of continuous service without break cannot mean that though the petitioner was initially employed in a temporary capacity, he continued to be in a temporary capacity indefinitely. The very fact that it was not thought necessary to dispense with the petitioner’s services for over five long years by itself indicates that his services during those years cannot be said to be merely temporary. A temporary employee cannot be kept in suspended animation indefinitely. It is unfair to an employee and an unwarranted privilege on an employer to keep and employee indefinitely in a temporary capacity and thereafter at his sweet will and pleasure an irrespective of the length of uninterrupted service put in, unceremoniously terminate the employment under the refuge that the employment was temporary. The length of uninterrupted service confers on the employee the mantle of permanency and not the eternal suspense of temporariness. Thus treated as permanent.” As seen from the material made available on record, the appointment letter issued to the applicant-first respondent in proceedings No. 4/3/91- CE(SZ)II dated 16.1.1992, it is clearly mentioned that the appointment of Smt. Kulsoom Fathima on compassionate grounds is in relaxation of normal procedure of recruitment. The relevant portion reads as under: “NO. 4/3/91-CE(SZ)II Date: 16.1.1992 OFFICE MEMORANDUM Sub: Compassionate appointment of Smt. Kulsoom Fathima, Wife of late Shri Syed Akbar Ali, Lift Operator (NMR) who expired on 24.10.1990 The undersigned is directed refer to letter NO. 10/1/9 HCEC/1703 dated 27.5.1991 from the Superintending Engineer, Hyderabad Central Elect. Circle, CPWD, Hyderabad on the above cited subject, and to convey the approval of G.W, CPWD, New Delhi to the appointment of Smt. Kulsoom Fathima, Wife of Late Shri Syed Akbar Ali, Lift Operator who expired on 24.10.1990 as lift operator (Muster Roll) on compassionate grounds in relaxation of normal procedure of recruitment through employment exchange and in relaxation on the existing ban on engagement of Muster Roll worker as communicated vide DGW’s U/O No. 5/11/91-EC V dated 9.12.1991/13.12.1991. 2. The appointment is subject to the condition that she is otherwise found suitable for the post of lift operator. 3. Smt. Kulsoom Fathima may be appointed against the existing vacancy of lift operator (Muster Roll) caused by the death of her husband Shri Syed Akbar ali under HCED-I” It is no doubt true that the applicant-first respondent is entitled for conferment of temporary status on completion of 240 days of service from the time of her appointment and as per rules she is eligible only for a Group D post and could be considered for one of the regular Group D posts as per the procedure indicated in the scheme. As per the recruitment rules for lift operators 75% of the vacancies should be filled by direct recruitment and 25% by promotion on the basis of seniority-cum-fitness. Here in this particular case, though the applicant-first respondent was entitled for appointment to a Group-D post on casual basis, she has been appointed to a Group-C post, which is against the rules. As the applicant-first respondent has already completed 16 years of service in the Group-C Post, her case should be considered by relaxing the rules if necessary, for appointing her on regular basis first to a Group-D post and then to a Group- C post of lift operator. Therefore, the Tribunal rightly set aside the impugned letter dated 19.12.2007 and directed the respondents to grant temporary status to the applicant in accordance with the provisions of the ‘Casual Labourers (Grant of Temporary Status and Regularization) Scheme of Government of India, 1993’ with effect from the date on which she completed 240 days of casual service. The Tribunal further directed the respondents to consider the case of the applicant-first respondent for regular appointment to a Group-D post retrospectively in accordance with the procedure in the said scheme and to consider her case for a regular appointment as lift operator (Group-C) by relaxing the rules, if necessary, considering her continuous service for a period of more than 16 years, within a period of three months from the date of receipt of a copy of the order. In view of the above, we see no reasons to interfere with the order passed by the Tribunal and accordingly, the Writ Petition is dismissed. There shall be no order as to costs. _______________________ GHULAM MOHAMMED,J _________________________ G. BHAVANI PRASAD ,J DATE: 09.06.2010 KA ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies. [1] 1987 (2) LLJ 140