IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 OP (CAT).No. 457 of 2011(S) OA.586/2009 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH PETITIONERS 1. CHAIRMAN AND MANAGING DIRECTOR, BHARAT SANCHAR NIGAM LTD., SANCHAR BHAVAN, NEW DELHI. 2. PRINCIPAL GENERAL MANAGER, TELECOM, BSNL, ERNAKULAM. 3. THE DIVISIONAL ENGINEER (SFMSS), TELECOM, BSNL, CENTRAL TELEGRAPH OFFICE, ERNAKULAM, COCHIN - 682016. 4. SUB DIVISIONAL ENGINEER, (ADM), O/O.THE PRINCIPAL GENERAL MANAGER, ERNAKULAM. 5. CHIEF GENERAL MANAGER, TELECOMMUNICATIONS, BSNL, KERALA CIRCLE, TRIVANDRUM. BY ADV. SRI.C.S.RAMANATHAN RESPONDENTS: 1. P.M.HANEEFA, TEMPORARY STATUS MAZDOOR, CENTRAL TELEGRAPH OFFICE, KOCHI - 682016. 2. P.K.YESUDAS, TEMPORARY STATUS MAZDOOR, TELEGRAPH OFFICE, PALARIVATTOM, KOCHI - 682025. ADV. SRI.M.V.SOMARAJAN FOR R1&2 THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 11/10/2011, ALONG WITH OP (CAT) NO. 2411 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(CAT) 457/2011 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 THE COPY OF THE LETTER DATED 14.8.1984 OF THE GOVERNMENT OF INDIA. EXT.P2 THE COPY OF THE LETTER DATED 15.2.1985 OF THE GOVERNMENT OF INDIA. EXT.P3 THE COPY OF THE LETTER DATED 22.6.1988 OF THE GOVERNMENT OF INDIA. EXT.P4 THE COPY OF THE LETTER DATED 17.12.1983 OF THE GOVERNMENT OF INDIA. EXT.P5 THE COPY OF THE LETTER DATED 12.2.1999 OF THE GOVERNMENT OF INDIA. EXT.P6 THE COPY OF THE LETTER DATED 15.6.1999 OF THE GOVERNMENT OF INDIA. EXT.P7 THE COPY OF THE O.A. 586 OF 2009. EXT.P8 THE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS. EXT.P9 THE COPY OF THE ORDE4R DATED 20.10.2010 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL. RESPONDENTS' EXHIBITS: EXT.R1- TRUE COPY OF THE ORDER IN O.A. NO. 913/2001 AND 914/01 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH DATED 1.5.2002. EXT.R2 TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENTS (APPLICANTS IN THE O.A.) ON 28.6.2010 IN THE PROCEEDINGS IN O.A. NO. 586/09, CAT, ERNAKULAM BENCH. EXT.R3 TRUE COPY OF THE ORDER IN O.A. 778/09 DATED 5.4.2010 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH. // TRUE COPY // P.S. TO JUDGE. KNC/- C.N. RAMACHANDRAN NAIR, Ag. C.J. & P.S. GOPINATHAN, J. = = = = = = = = = = = = = = = = = O.P.(CAT) 457 & 2411 OF 2011 = = = = = = = = = = = = DATED THIS, THE 11TH DAY OF OCTOBER, 2011. COMMON JUDGMENT Gopinathan, J. Both these petitions preferred under Article 227 of the Constitution of India are directed against the order of the Central Administrative Tribunal, Ernakulam Bench, dated 20.10.2010 in O.A. 586 of 2009. The respondents before the Tribunal are the petitioners in O.P. (CAT) 457/2011. The applicants are the petitioners in the other O.P. (CAT). (Hereinafter, the parties and the documents are referred to as in O.P. (CAT) 2411/2011). 2. The petitioners entered the service of the Telecom Department as casual mazdoors in the year 1983 and 1985. With effect from 21.2.2000, they were given full-time casual mazdoor status and were subsequently, appointed as temporary status mazdoor. On the eve of the constitution of the BSNL on 1.10.2000, the Department, vide Ext.P3 order dated 29.9.2003, regularized all casual mazdoors. But BSNL did not act upon Ext.P3. By Ext.P6 dated 28.2.2001, the petitioners were appointed as O.P. (CAT) Nos. 457 & 2411/2011 2 temporary status mazdoors. Though other similarly placed mazdoors were regularized, Ext.P6 order was later cancelled assailing which the petitioners preferred separate applications as O.A. 913 of 2001 and 914 of 2001. By Ext.P9 common order dated 1.5.2002, the order impugned was set aside. Though the respondents preferred O.P. 26750 of 2002 and 2681 of 2002, assailing Ext.P9 order, both petitions were dismissed as per Ext.P10 judgment dated 15.9.2003. But nothing transpired to regularize the petitioners. Therefore, the petitioners were persuaded to move this Court by another writ petition as W.P.(C) 18913/2005. In that proceedings, the standing counsel for the respondents submitted that petitioners are entitled to be regularized. Directing them to represent before the respondents, by Ext.P11 judgment dated 11.8.2005, the writ petition was disposed of. Again the petitioners represented; but with no effect. Thereupon, the petitioners again moved this Court by filing W.P.(C) 26062/2006. By Ext.P14 judgment dated 1.11.2006, that writ petition was disposed of directing the respondents to consider Exts.P10 and P11 produced in that case (now produced as Exts.12 and P13). But the respondents rejected the representations by Exts.P15 and P16 orders. The petitioners thereupon preferred another writ petition as W.P.(C) 2621 of 2008. By Ext.P17 judgment dated 22.1.2008, the petitioners were directed to file a fresh O.P. (CAT) Nos. 457 & 2411/2011 3 representation, pointing out their claim for regularization in service, before the Chief General Manager, within one month from the date of that judgment and the Chief General Manager was directed to dispose of the representation within a period of two months untrammeled by Exts.P15 and P16. Thereupon, Ext.P18 and P19 representations were preferred by the petitioners. Exts. P18 and P19 were rejected by the Chief Manager as per Exts.P20 and P21 orders stating that he is not the authority competent to consider the issue as per the new policy evolved by the BSNL. Assailing Exts.P20 and P22, the petitioners moved the Tribunal again by filing the original application, in which the order impugned herein was passed. 3. By Ext.P22 impugned order, the Tribunal quashed Exts. P20 and P21 and further declared that the petitioners are entitled to be considered for appointment in group-D cadre in their turn in accordance with the rules. In ordering so, the Tribunal, in Para 12 of the impugned order, held as follows: 'The issue that comes up for consideration in this O.A. is regarding regularisation of the applicants as Group-D employees. The contention of the respondents that the appointment of applicants as Full Time Mazdoors and subsequent grant of temporary status was a mistake, would no more be valid in view of the order of the Tribunal in O.A. Nos. 913/2001 & 914/2001, affirmed by the High Court. The applicants having been appointed O.P. (CAT) Nos. 457 & 2411/2011 4 as Full time Mazdoors and granted temporary status after completion of 240 days of work on 21.2.2001 and the cancellation of the same was set aside by the Tribunal affirmed by the High Court, they are entitled to be appointed in Gr.D cadre, in their turn along with other temporary status attained Mazdoors as and when vacancies arise." 4. Assailing Ext.P22, the respondents preferred O.P. 457 of 2011. Assailing Ext.P22 so far as it declined to direct the respondents to regularize the petitioners with effect from the date of Ext.P6, the other writ petition was filed. 5. We have heard the either side and perused the records. The learned standing counsel for the respondents had fairly conceded that in the light of Ext.P9 order confirmed by this Court in Ext.P10, the contention of the respondents regarding the status of the petitioners is not sustainable. But the argument that was advanced is that in Ext.P17, a direction was issued by this Court to the Chief General Manager to consider the claim of the petitioners. Since the Chief General Manager was not the authority competent to consider the same, the representation had to be rejected by Exts.P20 and P21 orders. We find absolutely, no merit in the submission because at the time of pronouncing Ext.P17 judgment, it was not mentioned before this Court that the Chief General Manager is not the authority competent to decide the claim of the petitioners. If it was pointed out that O.P. (CAT) Nos. 457 & 2411/2011 5 the Chief General Manager was not the competent authority, direction would have been given to the competent authority. Ext.P17 would show that the Chairman and Managing Director, Principal General Manager, Divisional Engineers and Sub Divisional Engineers were on the party array. In the event the Chief General Manager was not the authority competent, the matter would have been referred to the competent authority, whoever may be, and the representation should have been disposed of on merits. We regret to note that the respondents are somehow or other declining the due right of the petitioners who are in the lower strata and multiplying litigation. Prima facie, we feel that the Chief General Manager in declining the representation of the petitioners had shown disrespect to this Court. Petitioners, despite their right to get due official status, have to run from pillar to post to get their right established only because of the indifferent attitude of the respondents. Despite several round or litigation, petitioners are not getting their due. In the light of Ext.P9 order, confirmed by this Court by Ext.P10, we find that the claim of the petitioners can no way be declined. The Tribunal, in the impugned order, had correctly set aside Exts.P20 and P21 and declared the status of the petitioners. We find no error of jurisdiction, illegality or impropriety in the order. As rightly argued by the learned counsel for the petitioners, the Tribunal had omitted O.P. (CAT) Nos. 457 & 2411/2011 6 to mention the date of regularization. From the conduct of the respondents, we find that unless it is specified, at least now by this Court, the respondents would again drag the petitioners to further litigation. The respondents, as we stated earlier, cannot escape from Ext.P6 order. The petitioners are entitled to be regularized with effect from the date of Ext.P6. Therefore, O.P.(CAT) 457/2011 is devoid of merits. The other original petition is to be allowed. In the result, O.P. 457/2011 is dismissed with costs. O.P. 2411 of 2011 is allowed with costs and the respondents are directed to regularize the petitioners with effect from the date of Ext.P6 but without any backwages and allowances. The respondent shall issue orders at the earliest not later than six weeks from the date of receipt of a copy of the judgment, which shall be produced before the respondents by the petitioners This judgment shall be maintained in O.P. 2411 of 2011 and a copy thereof shall be maintained in the other original petition. C.N. RAMACHANDRAN NAIR, (Ag. CHIEF JUSTICE). P.S. GOPINATHAN, (JUDGE) knc/-