CIVIL WRIT JURISDICTION CASE No.13206 OF 2005 ****** In the matter of an application under Article 226 of the Constitution of India. ****** 1. THE UNION OF INDIA, through the Secretary, Central Board of Excise and Customs, Government of India, New Delhi. 2. The Deputy Secretary to Government of India, Ministry of Personnel and Public Grievances and Pension, Department of Personnel and Training, Government of India, New Delhi. 3. The Commissioner of Central Excise and Customs, Revenue Building, Patna-800001. 4. The Assistant Commissioner, Customs (Per.), Motihari Division, Motihari. ….. Petitioners. Versus 1. Shiv Kumar Mishra, Son of Late Ram Dani Mishra, Resident of Ashram Road, Raxaul, District- West Champaran. 2. Rajdeo Prasad Singh, son of Late Bhilaari Prasad Singh, resident of Chikni, Post Jokyari, Raxaul, District West Champaran. 3. Vishwanath Thakur, son of Late Kishun Thakur, resident of Ward no.5, Deincon Hospital, P.S. Haraunia, Raxaul, District West Champaran. 4. Mahesh Mallik, Son of Sri Gopal Mallick, Resident of Ward no.7, Alnerio Tola, P.S. Raxaul, District West Champaran. ……. Respondents. ----------- For the Petitioners: Ms. Nivedita Nirvikar, Advocate. For the Respondents: Mr. Gautam Bose, Senior Advocate with Ms. Ratna Das, Mr. Ajay Kumar and Mr. Vikash Jha, Advocates. ******** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA ******** S.K. Katriar, J. This writ petition is directed against the order dated 2.7.2004, passed by the Central Administrative Tribunal, Patna Bench, in O.A. No.724 of 1999 (Shiv Kumar Mishra and three 2 others Vs. Union of India and others), whereby the original application preferred by the four applicants (the respondents herein) has been allowed, and the authorities have been directed to give them the benefit of temporary status within the meaning of Clause (4)(i) of the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India 1993 (hereinafter referred to as the „ Scheme‟ ) . 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. The four respondents herein had worked in the establishment of the department of Central Excise and Customs for various periods on daily-wages. In view of such engagement of Class-IV employees in various departments of the Central Government all over the country, the Central Government formulated a Scheme to grant temporary status and regularisation to such persons, namely, Casual Labourers (Grant of Temporary Status and Regularisation) Scheme which was enforced with effect from 1.9.1993. Clause -4 of the Scheme is relevant in the present context and is reproduced hereinbelow: “4. Temporary Status: (i) Temporary status would be conferred on all casual labourers who are in employment on the date of issue of this O.N. and who have rendered a continuous service of at least one year which means that they must have been engaged for a period of at least 240 days (206 days in the case of offices observing 5 days week). 3 (ii) Such conferment of temporary status would be without reference to the creation/availability of regular Group „D‟ posts. (iii) Conferment of temporary status on a casual labourer would not involve any change in his duties and responsibilities. The engagement will be on daily rates of pay on need basis. He may be deployed anywhere within the recruitment unit/territorial circle on the basis of availability of work. (iv) Such casual labourers who acquire temporary status will not, however, be brought on to the permanent establishment unless they are selected through regular selection process for Group „D‟ posts.” The authorities refused to recognise the services of the respondents herein and declined to grant them the benefit under the Scheme leading to the aforesaid O.A. No.724 of 1999, which has been allowed. Hence this writ petition at the instance of the authorities. 3. Learned counsel for the petitioners has assailed the validity of the order of the learned Tribunal on various grounds. She relies on the following reported judgments: (i) (2002)4 S.C.C. 573 (Union of India and another Vs. Mohan Pal and others). (ii) 2002 (3) P.L.J.R. 620 (The Union of India and others Vs Manoj Kumar Ram and others). (iii) A.I.R. 2007 S.C. 2650= (2007)10 S.C.C. 462 (Controller of Defence Accounts, Dehradun and others Vs. Dhani Ram and others). 4. We have perused the materials on record and considered the submissions of learned counsel for the parties. It 4 appears to us that any person claiming the benefit of “Temporary Status” within the meaning of Clause 4 of the Scheme will have to establish that he had worked for a minimum number of days as indicated to qualify for the benefit. This is an issue of fact and has to be asserted by the applicant, and affirmed or countered by the employer, before the forum of facts. In view of complete absence of materials in this behalf on behalf of the petitioners as well as the respondents before us, we are constrained to fall back on the observations of the Tribunal in the impugned order, paragraph 6 whereof is reproduced hereinbelow: “6. The applicant has also filed rejoinder and reiterated their claims with further submission that they had been working with the respondents continuously and uninterruptedly since the date of their initial appointment, and they have worked against the regular post of regular employees, as has been admitted by the respondents in their written statement, in absence of permanent staff. Therefore, they cannot be treated as part time casual labourers, being appointed for a limited hours. Moreover, the respondents have not placed on record any documents to substantiate their plea that the applicants have been appointed for limited hours as part time casual labourers.” (Emphasis added) 5. It is thus evident that the authorities did not before the Tribunal contest the position that the original applicants (respondents herein) had not worked for as many days as is required in terms of Clause-4 of the Scheme so as to qualify for the benefit of the Scheme. Furthermore, the petitioners herein have not made any attempt to establish before us that the respondents herein did not as a matter of fact work for the minimum number of days 5 required by the Scheme. The issue is thus concluded by findings of facts recorded by the Tribunal. 6. In the result we do not find any merit in this case. It is accordingly dismissed. (S K Katriar, J.) B.P. Verma, J. I agree. (Birendra Prasad Verma, J.) Patna High Court, Patna. Dated the 24th day of June, 2010. S.K.Pathak/ (N.A.F.R.)