IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 24TH OCTOBER 2007 / 2ND KARTHIKA 1929 OP.No. 30096 of 2002(S) ----------------------- OA.931/2001 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER: -------------------- M.CHANDRASEKHARAN,S/O.MADHAVA MENON, AGED 44 YEARS, RESIDING AT MANOTH HOUSE, KUMBALAM P.O., KOCHI-682 506, WORKING AS TEMPORARY STATUS CASUAL LABOUR UNDER THE ASST.CONTROLLER OF DEFENCE ACCOUNTS,ACCOUNTS OFFICE,RESEARCH AND DEVELOPMENT, KAKKANADU. BY ADV. SRI.A.J.VARGHESE RESPONDENTS: ------------------------ 1. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF DEFENCE, NEW DELHI. 2. CONTROLLER GENERAL OF DEFENCE, ACCOUNTS, WEST BLOCK-VI, NEW DELHI. 3. CONTROLLER OF DEFENCE ACCOUNTS (RESEARCH AND DEVELOPMENT), C.V.RAMAN NAGAR, BANGALORE. 4. THE ASSISTANT CONTROLLER OF DEFENCE ACCOUNTS, ACCOUNTS OFFICE (RESEARCH AND DEVELOPMENT), N.P.O.L., KAKKANADU, ERNAKULAM. BY ADV. SRI.M.RAJENDRA KUMAR, ADDL.CGSC for R1 to R4 SRI.P.PARAMESWARAN NAIR, ASSISTANT SG THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 24/10/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ...2/- ...2.... O.P.NO.30096/2002 S J U D G M E N T Balakrishnan Nair, J. No representation. Dismissed 24/10/2007 Sd/-K.Balakrishnan Nair, Judge Sd/- T.R.Ramachandran Nair, Judge /True Copy/ P.S.to Judge Kss K. BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ------------------------------- O.P.No.30096 OF 2002 ------------------------------- Dated this the 2nd day of September, 2008 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The petitioner was recruited through the Employment Exchange to the post of Casual Labourer under the respondents. He was sponsored by the Employment Exchange, Ernakulam in November, 1988 pursuant to Ext.P1 requisition issued by the department. At the time of recruitment, his age was 34 years 11 months and 5 days. He was selected and appointed as a Casual Labourer in December, 1988. While so, the Central Government issued Ext.P2 scheme for conferment of temporary status on Casual Labourers, who are in employment as on 1.9.1993 and who have continuous service of at least one year, which means they must have been engaged for a period of at least 240 days. In establishments, observing 5 Days Week, the working days need be only 206 days. Paragaraph 8(i) of the said scheme dealt with the procedure for filling up of Group 'D' posts. The said clause reads as follows: O.P.No.30096/2002 2 “ Procedure for filling up of Group 'D' posts: i) Two out of every three vacancies in Group 'D' cadres in respective offices where the casual labourers have been working would be filled up as per extant recruitment rule and in accordance with the instructions issued by Department of Personnel and Training from amongst casual workers with temporary status. However, regular Group 'D' staffs rendered surplus for any reason will have prior claim fro absorption against existing future vacancies. In case of illiterate casual labourers or those who fail to fulfill the minimum qualification prescribed for post regularisation will be considered only against those posts in respect of which literacy or lack of minimum qualification will not be a requisite qualification. They would be allowed age relaxation equivalent to the period for which they have worked continuously as casual labourer.” 2. In the light of Ext.P2, the petitioner was not granted temporary status. He moved the Central Administrative Tribunal and the C.A.T. directed the respondents in that Original Application to consider the claim of the petitioner for grant of temporary status. He was granted temporary status as per Ext.P3 order dated 20.01.1995. He claimed regularisation in service in the group 'D' cadre. The said claim was rejected by Ext.P4. Challenging Ext.P4, Ext.P16 Original Application (O.A.No.931/2001) was filed before the C.A.T. The respondents resisted the application by filing Ext.P17 reply statement. Along O.P.No.30096/2002 3 with it, they have produced Ext.R1 office memorandum issued by the Government of India. They relied on Clause (x) of that office memorandum to support their stand. The said clause reads as follows: “(x) The regularisation of the services of the casual workers will continue to be governed by the instructions issued by this Department in this regard. While considering such regularisation, a casual worker may be given relaxation in the upper age limit only if at the time of initial recruitment as casual worker, he had not crossed the upper age limit for the relevant post.” They also relied on Ext.R2 produced along with Ext.P17 reply statement. Clarification No.3, therein, was specifically referred. The same reads as follows: “3. Points raised Clarifications Will the casual labourers initially engaged after crossing the upper age limit prescribed for recruitment to Group 'd” posts be eligible for grant of temporary status? No age limit has been prescribed for grant of temporary status. However, for the purpose of subsequent regularisation, the conditions regarding age and educational qualifications prescribed in the relevant recruitment rules will apply.” 3. Relying on the above quoted clarification it was contended that for subsequent regularisation, the conditions regarding age and educational qualifications prescribed in the recruitment rules will apply. The recruitment rules in this case is O.P.No.30096/2002 4 Ext.P11. The said rules provided that the age limit for direct recruitment to group 'D' posts for unskilled labourers is 30 years. The method of recruitment provided is by transfer, failing which by direct recruitment, failing both by transfer on deputation or re-employment of Ex-service men. 4. The Tribunal accepted the contentions of the respondents and held that the petitioner at the time of his initial recruitment crossed the age of 30 years and therefore he is ineligible for regularisation in Group 'D' post. Ext.P12 is the order passed by the C.A.T dismissing the Original Application filed by the petitioner. The petitioner challenges Ext.P12, mainly contending that the appointment by regularisation of casual labourers should be treated as appointment by transfer and therefore the age limit is not applicable in his case. He relies on Ext.P13 order of the C.A.T passed in the case of similarly placed employees. He also relies on Ext.P7 order of the Southern Naval Command dated 13.4.2000, as per which one Mr.M.G.Rajeevan was appointed as unskilled labourer, though at the relevant time he was aged about 35. His claim was earlier rejected on the O.P.No.30096/2002 5 same ground, based on which, the petitioners application was rejected by Ext.P6. So, the petitioner submits his appointment by regularisation in Group D cadre should be treated as appointment by transfer. 5. We heard the learned counsel for the respondents Smt.Soumini James, who represented the Assistant Solicitor General of India. Regularisation in service is not a prescribed method of appointment. It is a concession granted in relaxation of recruitment rules. Going by Ext.P11 recruitment rules, clause (12) of it provides the grades from which transfer shall be made. The said clause reads as follows: “12. In case of recruitment by promotion or deputation or transfer, grades from which promotion on deputation or transfer to be made Transfer: Persons serving in analogous, equivalent or higher grades in the lower formation of the Defence Service.” 6. Appointment by transfer is made from persons serving in analogous, equivalent or higher grades in the lower formation of the defence service. The petitioner is a casual employee who has temporary status and drawing salary on daily wages O.P.No.30096/2002 6 calculated with reference to the amount payable at the minimum of the scale of pay applicable to group 'D' employees. He cannot be treated as a person serving in analogous, equivalent or higher grade. So, the regularisation of a casual employee cannot be treated as recruitment by transfer. 7. Further, the clarifications issued in Ext.R2 is the clarification concerning Ext.P2 as evident from the opening paragraph of Ext.R2. The said opening paragraph reads as follows: “The undersigned is directed to refer to Department of Personnel and Training O.M.No.51016/2/90-Estt (c), dt.10th September, 1993 on the subject noted above and to say that many references have been received from various Ministries/Departments seeking clarifications on certain points relating to grant of Temporary status to casual labourers.” The clarification No.3 contained in Ext.R2, which we have already quoted earlier, specifically provided that for subsequent regularisation, the age limit will apply. In this case the age limit is 30 years. Admittedly, the petitioner joined service only after he has completed 34 years of age. So, we find nothing wrong with the order of the C.A.T. We are not inclined to follow O.P.No.30096/2002 7 Ext.P13. We are also not impressed by the precedent shown by the petitioner, that is the benefit granted to persons similarly placed. We can grant relief if only petitioners claim is sustainable based on the relevant recruitment rules. Going by the recruitment rules, the claim that age limit will not apply for regularisation has only to be rejected. We do so and the Original Petition is accordingly dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (M.C.HARI RANI, JUDGE) ps O.P.No.30096/2002 8 K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. =================== OP NO.30096 OF 2002-S =================== JUDGMENT DATED 2ND SEPTEMBER, 2008 =========================