IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 14TH JANUARY 2008 / 24TH POUSHA 1929 WP(C).No. 1896 of 2005(A) ------------------------------------- PETITIONER: ------------------- K.P.FRANCIS, S/O. K.C. PAILY, AGED 43 YEARS, KOLARIKKAL HOUSE, SOUTH CHITTOOR, COCHIN-27, WORKED AS MAZDOOR, B.S.N.L. BY ADV. SRI.A.X.VARGHESE. RESPONDENTS: ------------------------ 1. UNION OF INDIA, REP. BY SECRETARY TO GOVERNMENT, MINISTRY OF COMMUNICATIONS, DEPARTMENT OF TELECOM, NEW DELHI. 2. THE CHIEF GENERAL MANAGER, TELECOM, KERALA CIRCLE, B.S.N.L., THIRUVANANTHAPURAM. 3. DISTRICT MANAGER, TELE COMMUNICATIONS, ERNAKULAM-16. 4. THE GENERAL MANAGER, TELECOM, B.S.N.L., ERNAKULAM. 5. THE DIVISIONAL ENGINEER, CABLES B.S.N.L., PANAMPILLY NAGAR, COCHIN. 6. THE ASSISTANT GENERAL MANAGER, BUILDING PLANNING, B.S.N.L., ERNAKULAM. BY SRI. MATHEWS K. PHILIP, SC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.1896/2005-A: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE CERTIFICATE ISSUED BY THE OFFICERS OF THE B.S.N.L., STATING THAT, THE PETITIONER HAD WORKED FROM 07/01/1980 TO 28/01/89 DT. NIL. EXT.P.2: COPY OF THE ORDER DTD. 30/03/1990. EXT.P.3: COPY OF THE REPRESENTATION DTD. 23/05/90. EXT.P.4: COPY OF THE REPRESENTATION DTD. 25/05/93 GIVEN TO THE R.2. EXT.P.4.A: COPY OF THE RELEVANT PART OF THE COMMON JUDGMENT IN O.A. 1507/91. EXT.P.5: COPY OF THE REPRESENTATION DTD. 05/10/01 TO THE R.2. EXT.P.6: COPY OF THE LETTER DTD. 25/06/02. EXT.P.7: COPY OF THE ORDER PASSED BY THE C.A.T. ABSORBING THE SERVICE OF THE ABOVE STATED MEN DTD. 03/08/99. EXT.P.8: COPY OF THE RELEVANT PORTION OF THE JUDGMENT IN O.A. NO. 1331/91. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No.1896 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of January, 2008 JUDGMENT Case of the petitioner in brief is as follows: Petitioner joined the service of BSNL as casual Mazdoor and continued in service uninterruptedly till 28.1.1980. During these periods he had worked under different officers. Petitioner, while working was affected with severe rhumatic ailments. There was a break in the service. Thereafter he was not given further engagement. He submitted representations. The petitioner along with four others approached the Central Administrative Tribunal by filing O.A. 516/88. Ext.P2 is the order passed therein. Thereafter he submitted representation as Ext.P3. He did not receive reply. Then, he filed O.A.1507 of 1991 seeking direction to re- engage recognising his claim. Pursuant to the same, he filed Ext.P4. He was re-engaged. He was performing all important works done by permanent group of employees like carrying of files from Section to Section etc. His case is that even though he was working for more than two years continuously, his service was not regularised. He therefore submited Ext.P5 representation. He was denied employment without any reason and another person is working in his place. It is stated that the said person is not WPC.1896/2005. 2 having previous experience. It is stated that a person who was junior to the petitioner is also regularised. Ext.P7 is the copy of the order of the Tribunal absorbing the service of the above mentioned man. Therefore it was unfair, he submitted. He stated that there are several other cases where junior employees were re-engaged into service by the respondents. Reference is made to one Sri. K.M.Joseph, even though he had approached the CAT eleven years after the disengagement. There is reference to another employee, who had worked only for 84 days. Therefore there is discrimination, he submits. The prayer is for a direction to the respondents to re-induct the petitioner as Mazdoor in BSNL and also to regularise him in service. 2. Counter affidavit is filed on behalf of respondents 1 to 6. Therein it is inter alia stated as follows: Petitioner does not have a legal right to perpetuate his casual engagement. The claim of the petitioner is patently stale and time barred as found in Ext.P2 and constitutes res judicata. It is stated that there is suppression of material facts. It is stated that the Tribunal, in O.A. 1507 of 1991, had dismissed the O.A on the basis of the finding on judicial principles earlier laid down by the Tribunal in identical matter. Ext.R4(a) is produced as the relevant portion of the common judgment including O.A. WPC.1896/2005. 3 1507 of 1991. Petitioner was only worked on casual basis during July 1978 to January, 1980. He does not fall under the category of casual workers directed to the empanelled and later regularised under the judicial scheme evolved by the Tribunal in O.A. 1027 of 1991 and related cases. He also does not fall under the scheme evolved by the Telecom department during 1989 for conferment of temporary status. He was not an approved casual Mazdoor. He was not even sponsored by Employment Exchange nor recruited by competent department authority. He was engaged during intervals on casual basis for emergency works and such labourers were dispensed with on completion of emergency works. It is stated that pursuant to the policy decision of the Government, engagement of casual workers had been stopped in the Telecom Department. It is also stated that the instances relied on relate to the claims of casual workers found valid and affirmed by the court, whereas in the event of the petitioner the Tribunal had refused the claim on two earlier occasions. 3. I heard learned counsel for the petitioner Sri.A.X. Varghese. He would submit that there is discrimination and the persons who are junior to the petitioner are given re-engagement and empanelled. He would also invite my attention to Ext.R4(a). In Ext.R4(a), which is an order in O.A. 1507 of 1991 filed by the petitioner along with other applicants, it is stated WPC.1896/2005. 4 as follows: “In these applications, according to the appellants themselves, their last casual service ended more than seven years ago and they were not heard of for more than seven years. In accordance with the general principle evolved by us they have to be presumed to have abandoned service and their claim for re-engagement or regularisation on the basis of their previous service cannot be accepted. The applications are, therefore, dismissed. This, however, will not disqualify them for being engaged as fresh hand if they are registered with Employment Exchange and in accordance with law and in relaxation. If the respondents so decide, of the present ban on appointment of fresh casual labourers.” 4. The claim of the petitioner is for re-induction and for regularisation. What is sought is a writ of mandamus. For the issuance of a writ of mandamus the fundamental postulate required in law is the existence of a legal right. A perusal of Ext.P2 order of the Tribunal dated 30.3.1990 would show that it is submitted on behalf of the petitioner that the orders sought for by them are stale and time barred. Admittedly the petitioner was engaged in the year 1978 and continued till 1980. The employment is stated to be casual in nature, and he stated to have been engaged in emergency works, which employment would come to an end on the termination of the WPC.1896/2005. 5 emergency work. Ext.R4(a) would also show that the attempt of the petitioner for re-engagement or regularisation on the basis of the previous service was not accepted by the Tribunal. Exts.P2 and R4(a) would therefore clearly show that the petitioner had raised the claim for re- induction and regularisation before the competent Tribunal, which had turned down the plea. No doubt, in Ext.P2 it was stated that it is open to them to make representation for getting benefits of regularisation. But thereafter by Ext.R4(a) categorically the application of the petitioner has been dismissed. Not only the petitioner is not in a position to show me the source of his legal right for claiming re-induction and regularisation, I find that the application filed by the petitioner seeking re-inductment or regularisation has been specifically rejected. Therefore it may not be open to me in this proceedings under Article 226 of the Constitution to re-open the findings, which have apparently become final. More importantly, after the decision of the Supreme Court in Secretary, State of Karnataka v. Umadevi ((2006) 4 SCC 1), it may not be open to a person, who has not completed ten years service, to claim regularisation. Of course petitioner is right in pointing out that in Ext.R4(a) the Tribunal has observed that the judgment in O.A. 1507 of 1991 will not disqualify them for being engaged WPC.1896/2005. 6 as fresh hands if they are registered with Employment Exchange and in accordance with law and in relaxation if the respondents so decide of the present ban on appointment of fresh casual labourers. As far as this court is concerned, this court can only reject the prayers sought for by the petitioner. As regards the plea based on discrimination, paragraph 7 of the counter affidavit answers the said plea. In the absence of a reply affidavit to the same, I need not even consider the question apart from the fact that the case of the petitioner is covered by Exts. P2 and R4(a). Accordingly the writ petition fails and it is dismissed. (K.M. JOSEPH, JUDGE) sb