WP(C) 2913/2003 BEFORE THE HON’BLE MR. JUSTICE P.G. AGARWAL THE HON’BLE SMT. JUSTICE A. HAZARIKA Heard Mr. K. N. Choudhury, learned counsel appearing for the writ petitioner and Mr. M. Sarania, learned counsel appearing for the respondents applicants. 2. The Indian Council of Agricultural Research (for short ICAR) set up/established a Farm House in the state of Meghalaya where casual labourers we re recruited from different parts of the North East Region to look after the day to day works. The respondents-applicants, 68 in number, were so engaged in the year 1976-1984 on different dates. There was some dispute between the workers an d the ICAR leading to declaration of lockout and subsequently, ICAR asked for un dertaking from the concerned employees and later on services of the employees we re terminated in the year 1986. The respondents/applicants filed a writ petition being Civil Rule No.712/1986 which was subsequently transferred to the Central Administrative Tribunal, Guwahati and was renumbered and registered as G.C. No.1 12/1987 and it was disposed. The respondents again approached the Central Admini strative Tribunal by way of O.A. No.230/93. The said O.A. No.230/93 was withdraw n by the applicants and another O.A. No.174/97 was filed subsequently in the sai d case. The Tribunal directed the present writ petitioners (ICAR) to consider th e representation dated 27.8.1994. Thereafter, the writ petitioners vide order da ted 24.6.1999, dismissed the said representation whereupon O.A.175/2001 was file d before the Tribunal by the respondents applicants for setting aside the order dated 24.6.1999 and to provide the applicants benefits given to the other employ ees in G.C. No.112/1987. It is mentioned here that some other causal employees, who were also subjected to termination, had approached the Tribunal in G.C. No.1 12/1987 wherein direction was given for reinstatement of those employees with al l service benefits. The said order was complied with by ICAR by issuing a notifi cation dated 22.4.1990 asking all employees, whose services were terminated, to report for duty. Admittedly, the present respondents did not report for duty pur suant to the said notifications. It is submitted by Mr. Sarania that the applica nts had no information. 3. Vide impugned judgment/order the Tribunal held that the applican ts being similarly situated persons as that of applicants in G.C. No.112/1987, a re entitled to get the benefits and the above stand of ICAR denying the benefits cannot be accepted. The Tribunal, therefore, provided as follows: The respondents are accordingly directed to reinstate the applicants an d provide them the benefits arising form the reinstatement. We, however, make it clear that the applicants stall not be paid the backwage from the reinstatement . The applicants will be entitled for the entire benefits for the purpose of sen iority, promotion and retiral benefits with the continuity of service. The respo ndents are directed to fix the pay of the applicants notionally. 4. Hence, the present writ petition by ICAR. The case of the writ p etitioners is that, pursuant to the said direction in G.C. No.112/87, the ICAR h ad published notifications dated 22.4.1990 and 23.4.1990 allowing the casual wor kers to resume their duty with immediate effect. But the respondents had failed to comply with the above directions. Moreover, the scheme for regularization has been made in the year 1993 in respect of the persons, who were serving employee s as on 1.9.1993. As the respondents were not subsisting employees, benefits of the said scheme cannot be given to them. There is no dispute at the Bar that the respondents/applicants did not resume their duty pursuant to the notifications dated 22.4.1990 and 23.4.1990. Mr. Sarania has also submitted that although 68 a pplicants had joined together initially, at present 20 of the applicants are not interested to pursue their claim only 48 applicants remain. 5. The next submission of the petitioners is that the ICAR even tri ed to help these respondents applicants by submitting a proposal for creation of 100 nos. of posts but the proposal has not been considered by the Finance Depar tment, Govt. of India till today. There is no existing vacancy to accommodate th e respondents. Annexure-J has been filed by the petitioners to show that though the number of sanctioned post is 137, 139 staffs are working and as such two per sons are in excess, who are required to be adjusted against the future vacancies . 6. The law regarding absorption, regularization, or permanent conti nuance of temporary, contractual, casual, daily-wage or ad-hoc employees were se ttled by the Constitution Bench of the Apex Court in the case of Secretary, Stat e of Karnataka and others vs- Uma Devi and others, reported in 2006 (4) SCC 1. In the above case, the Apex Court held that the theory of legitimate expectation does not apply in the case of any temporary employee in casual work without pro per selection as recognized by the rules or procedure. Right of such employees f or regularization was not held to be created as it would amount to impropriety a nd illegality in the matter of public employment. 7. In the present case, we find that the respondents/applicants wer e engaged as casual workers in 1980 and they continued till 1986. For last twent y years they are not employees in ICAR and admittedly they must have made altern ative arrangement for their livelihood by somehow and in view of that, the Tribu nal did not grant them back wages. As the regularization can be made against the existing vacancies/posts only and in view of the statement made by the petition ers that no vacancy exists as on today, we propose to modify the directions issu ed by the Tribunal in the light of the fact that similarly situated persons were given certain benefits in G.D. No.112/87 which had been complied with by the pe titioners. The ICAR shall maintain a proper list of the respondents-applicants a nd whenever any vacancy arises to which the respondent-applicants are eligible, the posts should be offered to them. This shall be considered for appointment al ong with others but preference will be given to these employees which would be o n the basis of the seniority in the matter of appointment to the casual post. 8. We further provide that in case ICAR need causal workers at any point of time, the case of the respondent-applicants shall be given first prefer ence and the casual work may be offered to them. The question of regularization shall be considered on merit against the existing/available vacancy only. 9. In case, the respondents are found to be over aged, their case f or relaxation shall be considered as per the rules and regulations.