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Order N senthil kumar judge CAT order upheld THE HONOURABLE MR. JUSTICE D. KRISHNAKUMAR AndTHE HONOURABLE MR. JUSTICE N. SENTHILKUMAR W.P.No. 29282 of 2019K. Dayalan .. PetitionerVersus.

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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 24.11.2023
Judgment Pronounced on : 12.01.2024
CORAM:
THE HONOURABLE MR. JUSTICE D. KRISHNAKUMAR And
THE HONOURABLE MR. JUSTICE N. SENTHILKUMAR
W.P.No. 29282 of 2019
K. Dayalan .. Petitioner
Versus

  1. Union of India
    Represented by the Chief Postmaster General Tamil Nadu Circle, Chennai – 600 002.
  2. The Manager,
    Mail Motor Service
    Greams Road, Chennai – 600 006.
  3. The Registrar,
    Central Administrative Tribunal
    Madras Bench, Chennai – 600 104. .. Respondents
    Writ Petition filed under Article 226 of the Constitution of India, prays to call for the records from the files of the 3rd respondent Tribunal in OA/310/00700/2019 and quash the order made therein dated 14.08.2019. For Petitioner : Mr.K.M. Ramesh, Senior Counsel
    For Mr.V. Subramani
    For Respondents : Mr.N. Ramesh,
    Senior Standing Counsel

[Central Administrative Tribunal]

ORDER
N. SENTHILKUMAR, J.
This Writ Petition has been filed challenging the impugned order passed in OA/310/00700/2019, dated 14.08.2019 by the third
respondent/Central Administrative Tribunal and quash the same.

  1. The grievance of the petitioner is that he was sponsored by the Employment Exchange for the post of Daily Wage Driver. The second respondent informed the petitioner by his letter dated 15.04.1985 to submit all the documents and to appear in person on or before 29.04.1985 for engagement as a Daily Wage Driver. After scrutinizing all the relevant documents, he was engaged as Daily Wage Driver from 19.04.1985. On 25.04.1987, he was informed by the second respondent that he was provisionally selected for engagement as casual Driver on daily wage
    basis.
  2. Vide letter dated 16.11.1987, the second respondent directed the petitioner to undergo medical examination and to produce certificate regarding his fitness. Subsequently, the second respondent appointed the petitioner as Motor, Jeep, Lorry and Staff Car driver. On 30.11.1987 the scale of pay of Rs.950-1500 in the existing vacancies in Mail Motor Service, Madras, with effect from 01.12.1987 on temporary and adhoc basis. On 31.12.1987, the second respondent extended the adhoc and temporary appointment for a period of two months from 29.02.1988. Again, by order dated 31.05.1988 the adhoc appointment was extended for a period of six months from 01.06.1988 to 30.11.1988. Thereafter, the second respondent issued a Corrigendum dated 24.06.1988 stating that the word “adhoc” appearing in the initial order and the subsequent extension orders treated as deleted and by order dated 08.12.1988, the “adhoc” appointment was extended until further orders.
  3. According to the petitioner, his services were confirmed by order dated 06.12.1994 with effect from 01.01.1994 and he was promoted to Grade-II Driver by way of Memo dated 30.01.2008 with effect from 01.02.2008. On 23.12.2010, he was promoted to Grade-I Driver and was further promoted to Special Grade Driver vide order dated 28.02.2019.
  4. The petitioner gave a representation to the respondents on
    19.09.2018 requesting to regularize his service with effect from 19.04.1985 instead of 01.12.1987. Again, the petitioner has submitted further representation dated 26.12.2018 to the respondents along with a copy of the order passed in OA.Nos. 288, 737 and 838 of 2009, dated 20.10.2010, wherein the claim for retrospective regularization of coemployees of the petitioner was considered and granted.
  5. The second respondent by his impugned letter dated
    20.02.2019 disposed his representation stating that he was appointed as Casual Leave Driver prior to 29.11.1989 and the question of regularization of the service prior to regular appointment does not arise and the same was communicated to the petitioner vide letter 45-95/87-SPB-I, dated 12.04.1991.
  6. Challenging the said letter of the 2nd respondent dated
    20.02.2019, the petitioner has filed OA/300/00700/2019 before the Central Administrative Tribunal/3rd respondent, Madras, and the same was dismissed on 14.08.2019 on the ground that the inordinate delay in making representation to the respondents. Aggrieved by the same, the petitioner has come forward with the present Writ Petition.
  7. The learned Senior Counsel appearing for the petitioner had contended that the Tribunal, namely, the third respondent in O.A.Nos. 288, 737 and 838 of 2009 dated 20.10.2010 which has given a positive direction by the Tribunal to regularize his service of the petitioner. The order is extracted below:-
  8. For the reasons stated above, the applicant in all these applications are also entitled for the grant of relief sought for by them. Accordingly, the applications are allowed and the orders of respective impugned orders in these applications are set aside and there will be direction to the respondents to regularize the services of the applications in the cadre of driver with retrospective effect from the date of their appointment with all the attendant benefits arising therefrom. The above exercise shall be completed within a period of six weeks. In the circumstances, there will be no order as to costs.
  9. Based on the order dated 20.10.2010, the petitioner had preferred a representation dated 26.12.2018 to the second respondent which was rejected vide order dated 20.02.2019 which are as follows:-
    “No. MSE/B9-7/CL, dated 20.02.2019 at
    Chennai – 600 006,
    Sub : Regularization of the temporary service – reg.
    Ref : 1)C.O. Letter No. ESB/300-MMS GDS dlgs 2013, dated 18.11.2013 2) Your representation dated 26.12.2018 received in two separate covers.
    Since, you were appointed as CL driver priot to 29.11.1989, regularization of the service prior to regular appointment does not arise as per the Directorate Letter No. 45-95/87-SPB-1, dated 12.04.1991. Further, it is intimated that the case referred in your letter dated cited above 26.12.2018 in respect of Shri A. Raman & R. Angusamy are case specific. Hence, your request could not be acceded to.
    Manager,
    MMS,
    Chennai-600 006.”
  10. The learned Senior Counsel vehemently contended that the second respondent did not follow the order passed in the above OAs and therefore, the petitioner has challenged the order dated 18.09.2009 in O.A.No. 790 of 2008 passed by the second respondent to regulrize his
    service.
  11. The Tribunal had dismissed the OA.No.OA/310/00700/2019, dated 14.08.2019. The said rejection passed by the third respondent is absolutely in deviation of his earlier order in O.A.Nos.288, 737 & 838 of 2009 where the petitioner is entitled to based on the order in the above OAs.
  12. The learned Senior Counsel further contended that the Tribunal did not consider the various representations made by the petitioner herein to regularise his service was summarily rejected.
  13. Per contra, the learned Senior Standing Counsel (CAT) appearing for the respondents would contend that it is not in dispute that the petitioner was engaged only as a Daily Wage Driver purely on a temporary basis since April, 1985.
  14. The learned Senior Standing Counsel further submitted that
    the petitioner was appointed as Time Scale Driver provisionally, vide 2nd respondent Memo No. MSE/B9-19/IV, dated 30.11.1987 by following the recruitment Rules and the petitioner assumed charge on 01.12.1987 and he was confirmed on 01.01.1994 and then he was promoted as Grade-II
    Driver with effect from 01.02.2008, which is extracted below:“The petitioner was then confirmed on 01.01.1994
    vide 2nd respondent order No. MSE/B15-2/Ch./VII, dated
    06.12.94 and promoted as Grade II Driver with effect from
    01.02.2008 vide first respondent order No. STA/37110/07, dated 30.01.08. Further, the petitioner was promoted as Grade I Driver with effect from 24.10.2010 vide first respondent order No.STA/37-186/2005, dated 23.12.2010. Subsequently the petitioner was promoted as Special Grade Driver with effect from 07.07.2018 vide 1st respondent order No. STA/37-186/2013, dated
    28.06.2018.”
  15. The learned Senior Standing Counsel for the respondents contended that the petitioner vide its representation dated 19.09.2018 and 26.12.2018 seeking to regularize his temporary service from 19.04.1985 to 01.12.1987 as his Casual Wage Driver. Though the petitioner has relied upon order passed by the Tribunal in O.A.Nos. 288, 737 & 838 of 2009. He further contended that there was a delay of 31 years to regularize his Adhoc service with his regular appointment with effect from 01.12.1987 was not raised. Even after a positive direction was passed by the Tribunal dated 26.10.2010 in O.A.Nos.288, 737 & 838 of 2009. The petitioner was 18 for almost 9 years and he has not any interested to make regularize his service and waiting for the outcome of the Tribunal and even after the outcome of the Tribunal, the petitioner did not make any attempt to regular his service. The second respondent had passed the impugned order dated 14.08.2019.
  16. The learned Senior Standing Counsel has relied upon the various judgments in the case of State of UP and others Vs. Arvind Kumar Srivatsava reported in 2015 (1) SCC 347, (ii) M/s.Dhampur
    Sugar Mills Limited Vs. Bhola Singh, reported in 2005 SCC (L&S)
    292, (iii) The Chief Commissioner of Income Tax & Amp; others Vs. Susheela Prasad & others reported in (2007) 12 SCC 402, (iv)
    Harminder Kaur and Others Vs. Union of India & Others reported in
    (2009) 13 SCC 90, (v) Accounts Officer, APSRTC Vs. Ramana and
    Others reported in 2007 (1) L.L.J. 1042, and (vi) Kendriya Vidyalaya Sangathan Vs. L.V. Subramanyeswara reported in (2007) 5 SCC 326.
  17. We have heard both sides and perused the materials available on record.
  18. The learned Senior Counsel for the petitioner had advanced his arguments two contentions, namely, after being regularized for his continuous service in the Department, the Department ought to have followed the orders passed in O.A.Nos.288, 737 & 838 of 2009 wherein the Tribunal has given a positive direction to regularize the service of the applicants therein who were similarly placed like the petitioner herein.
  19. Per contra, the learned Senior Standing Counsel would submit that though the petitioner was sponsored by the Employment Exchange and the second respondent vide its letter dated 15.04.1985 directed the petitioner to submit all the relevant documents and to appear on 29.04.1985, and thereafter, on 30.11.1987 the petitioner was appointed on a temporary and adhoc basis for the existing vacancy in mail, motor service, Madras with effect from 01.12.198.
  20. The petitioner’s period was extended time and again and his service was confirmed by order dated 06.12.1994 with effect frfom 01.01.1994 and he was promoted as Grade II Driver by way of Memo dated 30.01.2008 with effect from 01.02.2008. On 23.12.2010, the petitioner was promoted as Grade-I Driver and further promoted as
    Special Grade Driver on 28.02.2019.
  21. The learned Senior Counsel further would submit that the Tribunal in O.A.Nos.288, 737 & 838 of 2009 vide its order dated 20.10.2010 and given a positive direction to the applicants therein the petitioner herein was waiting for the outcome and he made a representation to regularise his service by way of representation dated 26.12.2018. The second respondent vide a Letter No. 45-95/87-SPB-I, dated 12.04.1991 has rejected the claim of the petitioner herein. The petitioner has challenged the impugned Letter No. 45-95/87-SPB-I, dated 12.04.1991, before the Tribunal in OA/300/00700/2019 which was dismissed on 14.08.2019 on the sole ground that the representations dated 19.09.2018 and 26.12.2018 unexplained inordinate delay on the part of the petitioner who was waiting for the outcome of the O.A.Nos.288, 737 & 838 of 2009 and the petitioner has approached the Tribunal and the Tribunal was pleased to dismiss it on the sole ground of inordinate delay.
    The Tribunal has also observed that;
    “From the above, it is clear that the applicant was a fence-sister and he slept over the matter till 2019 and has now come before this Tribunal seeking a similar relief which was passed by this Tribunal in 2010 in O.A.Nos. 288, 737 & 838 of 2009. The applicant could not give any explanation for the inordinate delay and the OA is clearly barred by limitation. So, this OA cannot be entertained as it is hopelessly barred by limitation as per Section 21 of the AT Act.”
  22. The learned Senior Standing Counsel for the respondents has relied upon the judgments in the case of State of UP and Others Vs.
    Arvind Kumar Srivatsava reported in (2015) 1 SCC 347 is as follows:-
    (i) “The legal principles which emerge from the reading of the aforesaid judgments cited both by the appellants as well as the respondents can be summed up as under:
    (1) Normal rule is that when a particular set of employees are given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.”
    (ii) In the case of M/s.Dhampur Sugar Mills Limited Vs. Bhola Singh, reported in 2005 SCC (L&S) 292, has held that when a workman is appointed in terms of a scheme of daily wages he does not derive any legal right to be regularized in service after completion of 240 days of continuous service in a year may not by itself be a ground for directing regularization particularly in a case when the workman had not been appointed in accordance with the extant rules.
    (iii) In the case of The Chief Commissioner of Income Tax & Amp; others Vs. Susheela Prasad & others reported in (2007) 12 SCC 402, observed that regularization of an employee employed on casual basis without following procedure for appointment on permanent basis is not regular.
    (iv) In the case of Harminder Kaur and Others Vs. Union of India & Others reported in (2009) 13 SCC 90, the Hon’ble Supreme Court held that long adhoc contractual service without following recruitment rules and calling for applications is irregular and
    (v) In another case of Accounts Officer, APSRTC Vs. Ramana and Others reported in 2007 (1) L.L.J. 1042, the Constitutional Bench of Hon’ble Supreme Court held that absorption, regularization or permanent continuance of temporary, contractual, casual, daily wage or adhoc employees dehors the rules and constitutional scheme of public employment, cannot be granted by the Courts and even if the contract labourers or casual workers or Adhoc employees have worked for a long period they cannot be regularized dehors the rules for selection, as has been held in Umadevi case.
    (vi) In the case of Kendriya Vidyalaya Sangathan Vs. L.V. Subramanyeswara reported in (2007) 5 SCC 326, the Hon’ble Supreme Court held that candidates not selected by regular selection committee and appointed on adhoc basis in leave vacancies even if they worked for a long time cannot be regularized. In view of the apex Court judgments cited supra and the Recruitment Rules on the subject, it is submitted that the claim of the petitioner seeking regularization of his adhoc services as daily wage driver purely on temporary and need basis from April 1985 till his regular appointment on 01.12.1987, is not entertainable in the eyes of law.
  23. The Hon’ble Supreme Court the above said judgments has clearly narrated that in the absence of any acceptable reasons given by the petitioner in explaining the delay, it is the duty of the respondents to consider the same. The petitioner has given the representations dated 19.09.2018 and 26.12.2018 after a lase of 8 years from the date of the order passed by the Tribunal OA.Nos. 288, 737 and 838 of 2009. The Courts are not expected to crocodile tear shed by the petitioner and attending to gain sympathy under the guise of the previous order passed by the Tribunal in the very same nature of the petitioner.
  24. We are aware of the fact that entering into any Government Service by way of a temporary appointment is purely for a particular purpose. When the department has given promotion at various stages, the conduct of the petitioner only show that he is not keen in getting his service regularized for whom there cannot be a misplaced sympathy. The Court has a duty to look into the rights of the petitioner and the rules governing the regularization. In the absence of any violation committed by the respondents herein, any interference by this Court in the impugned order will be traversity of justice.
  25. By following the judgments of the Hon’ble Apex Court with regard to inordinate delay and latches the petitioner is herein has not made out a case and we find no reasons to interfere with the impugned order passed by the Central Administrative Tribunal, the third respondent herein. The order of the Central Administrative Tribunal in OA/300/00700/2019, dated 14.08.2019 is confirmed.
  26. With the above observations, the Writ Petition is dismissed.
    However there shall be no order as to costs. Consequently, connected Miscellaneous Petitions are closed.
    [D.K.K., J] [N.S., J]
    12.01.2024
    Index:Yes/No
    Speaking order: Yes/No
    Neutral Citation: Yes/No
    MSM
    To
  27. Union of India
    Represented by the Chief Postmaster General Tamil Nadu Circle, Chennai – 600 002.
  28. The Manager,
    Mail Motor Service
    Greams Road, Chennai – 600 006.
  29. The Registrar,
    Central Administrative Tribunal
    Madras Bench, Chennai – 600 104. 
    D. KRISHNAKUMAR, J and N. SENTHILKUMAR, J
    MSM
    Pre-Delivery Judgment in
    W.P.No. 29282 of 2019
    Delivered on 12.01.2024

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