CIVIL WRIT JURISDICTION CASE No.11818 OF 2005 In the matter of an application under Article 226 of the Constitution of India. --- 1. The Union of India through the Chief Post Master General, Bihar Circle, Patna. 2. The Sr. Superintendent of Post Office, Patna Division, Patna, 3. The Senior Post Mater, Bankipur Head Office, Bankipur, Patna -- Petitioners. Versus 1. Raj Kumar Sharma, Son of Late Ram Kishun Thakur, resident of village and P.O. Korari, P.S. Barh, District Patna. 2. Central Administrative Tribunal through its Registrar. ---- Respondents. ----------- For The Petitioners : Mr. Rakesh Kumar Singh, Central Govt. Counsel. For The Respondent : M/S Gautam Bose, Sr. Adv. With Ratna Das, Hemant Karu, Ajay Kumar and Vikash Jha, Advocates. P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA ---- Shiva Kirti Singh & Birendra Pd. Verma, JJ: Petitioners are Union of India and officials of Postal department posted at Patna. They have moved this Court seeking interference with the order of the Central Administrative Tribunal, Patna Bench, Patna (hereinafter referred to as “the Tribunal”), dated 28.01.2005 passed in O.A. No. 179 of 2003. By that order the claim of the applicant (respondent herein) that he has been illegally retrenched from working as a labourer on daily wages while his juniors have been retained and granted temporary status, has been accepted and order dated 25.10.2002 issued by the concerned authority rejecting the claim of the applicant for being given temporary status on the ground that he has not completed 240 working days in any of the years of his service has been quashed. 2. From the submissions advanced before us it is manifest that only defence of the petitioners is that as per the scheme juniors were granted temporary status because they had pre-requisite of working of more than 240 days as Mazdoor whereas this pre-requisite was not available to the 2 applicant. The Tribunal has considered such defence of the petitioners in detail and has found that the applicant had worked as Mazdoor on daily wages for about 12 years between the year 1988 and 2000 and his claim finds support from certificates issued in his favour by the concerned authorities, which were annexed with the O.A. as Annexure- A/1-a to Annexure- A/1-c. The Tribunal noticed that except verbal denial of the applicant’s claim on the ground that he had not worked for 240 days in any years, no material was produced in support of such stand of the authorities. A plea was taken that the records from 13.09.1993 to 26.05.1997 were not available with the authorities. The certificates in question were of the year 1993 and 1995 and clearly no material was produced by the petitioners to doubt the correctness of the certificates issued by competent authorities. The fact that the juniors have been given temporary status was an admitted fact and in such circumstances, the learned Tribunal applied the well settled principle applicable in the case of casual labourers that those who come last must go first. It found that this principle governing retrenchment was not followed in the case of respondent- applicant. In that view of the matter, and also noticing divergent grounds for rejecting the claim of the applicant in different orders passed from time to time, the Tribunal came to the opinion that the order rejecting the applicant’s claim had been passed on extraneous reasons and hence it held that the applicant is entitled for the reliefs sought for. After quashing the order dated 25.10.2002 the Tribunal directed to re- engage the applicant as casual Mazdoor and thereafter to pass appropriate orders for conferment of temporary status within a period of two months from the date of receipt of copy of the order and thereafter to consider his case for regularization against available vacant post within a reasonable period. 3. Learned counsel for the petitioner has placed reliance upon the judgment of the Supreme Court in the case of Union of India and another Vrs. Kartick Chandra Mondal and another, reported in (2010) 2 SCC 422 3 in which it has been held that illegal or irregular appointment cannot be justified on the basis of similar appointments made in the past. For this proposition reliance has been placed in that judgment upon a Constitution Bench judgment in the case of Secretary, State of Karnataka and others Vrs. Uma Devi (3) and others, reported in (2006) 4 SCC 1. 4. On the other hand, learned counsel for the respondent- applicant has placed reliance upon a judgment of the Supreme Court in the case of U.P. State Electricity Board Vrs. Pooran Chandra Pandey and others, reported in 2008 (1) All India Services Law Journal 314 where in paragraph- 16 it has been observed that often Uma Devi’s case (Supra) is being applied by Courts mechanically without appreciating that a little difference in facts or even one additional fact may make a lot of difference in the precedential value of a decision. On the basis of different facts, in the aforesaid case the Apex Court did not go into the nature of initial appointment and accepted the plea of the writ petitioners that they should not be discriminated against, vis-à-vis the original employees of the Electricity Board, once they have been taken over by the Electricity Board in the same manner and position. Reliance was also placed upon another judgment of the Supreme Court in the case of Director, Fisheries Terminal Division v. Bhikubhai Meghajibhai Chavda, reported in 2010 AIR SCW 542. In that case the facts were similar and related to retrenchment of an employee while juniors had been continued to be engaged as workman. The only difference is that in aforesaid case the workman had moved the Labour Court whereas in present case the applicant has moved Central Administrative Tribunal. In our considered view, the principles applicable to lawful entry or illegal entry de-hors the recruitment rules are not attracted in a case where admittedly dispute is being raised by a daily rated wager working as a labourer or Mazdoor raising issues relating to termination which have to be decided on settled principles like last come first go. Such a principle emanates not only from section 25F and 25G of the Industrial 4 Dispute Act, but also from requirements of Articles 14 and 16 of the Constitution of India. Hence, in our view, the judgments relied by the learned counsel for the petitioners are not applicable in the facts of the case. 5. Lastly it was submitted on behalf of the petitioners that since the applicant is placing reliance upon the principles flowing from the Industrial Dispute Act, he should have first approached the Labour Court and not the Central Administrative Tribunal. In this regard it has rightly been submitted that no objection was raised by the petitioners on the ground of lack of jurisdiction in the Tribunal. It has further rightly been submitted that if the order of the Tribunal is found to advance the cause of justice, this Court will not interfere in exercise of powers under Article 226 of the Constitution of India. We find substance in these submissions advanced on behalf of the respondent- employee. 6. We find no merit in this writ petition which is, accordingly, dismissed. But there shall be no order as to costs. ( Shiva Kirti Singh, J ) ( Birendra Prasad Verma, J ) Patna High Court Dated 8th July, 2010 BTiwary/ A.F.R.