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TMI Blog2014 (7) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... 25-6-2014 - Naresh H. Patil And Ravindra V. Ghuge,JJ. For the Petitioner : Mr. Rahul G. Walia For the Respondent : Mr. Sachindra B. Shetye JUDGMENT (Per Ravindra V.Ghuge, J.) 01. Heard. Rule. Rule made returnable forthwith and heard finally by the consent of the parties. 02. By this petition, the petitioner seeks to challenge the judgment and order dated 02/11/2013 delivered by the Central Administrative Tribunal, Mumbai Bench in Original Application No.663 of 2001. 03. The learned advocate for the petitioner-Shri.Rahul G. Walia submits that the petitioner was orally appointed as a sweeper with the respondent No.2 Department viz. Dy.Commissioner, Central Excise Pune - VII IV Division, having his Office At - ICE House, 1st Floor 41-A, Sasoon Road, Pune - 411 001. It is claimed that the petitioner has been continuously working w.e.f. 01/01/1993 till the date of his oral termination dated 30/08/2001. A categorical statement is made in Paragraph 3 of the petition that the petitioner served continuously from the date of his oral appointment as sweeper in the said department and completed more than 240 days of service. The petitioner was orally terminated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill come into force w.e.f. 1-9-1993. 3. This scheme is applicable to casual labourers in employment of the Ministries/Department of Govt. of India and their attached and subordinate officer, on the date of issue of these orders. But it shall not be applicable to casual workers in Railways, Department of Telecommunication and Deptt. of Posts who already have their own schemes. 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.H. 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 officers observing 5 days week). ii) Such conferment of temporary status would be without reference to the creation/availability of regular Group 'D' posts. 7. Despite conferment of temporary status, the services of a casual labourers may be dispensed with by giving a notice of one moth in writing. A casual labourer with temporary status can also quit service by giving a written notice of one month. The wages for the notice period will be payable only for the days on which such casua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) has submitted that artificial breaks in service, which are aimed at depriving an employee of the benefits of continued service, need to be ignored. He has further submitted, placing reliance on The workmen of Bhurkunda Colliery of M/s. Central Coalfields Ltd. (supra), that continued employment for long spells entitles an employee for permanency. 14. The learned counsel-Shri.Sachindra B. Shetye on behalf of both the respondents takes a serious exception to the delay caused by the petitioner in filing this writ petition. He submits that O.A.No.663 of 2001 was filed by four applicants and the petitioner was applicant No.4. The said O.A. was dismissed by the impugned judgment dated 28/11/2003. The first three applicants have accepted the said judgment and have not challenged it. The petitioner, by filing this petition after seven years, has sought to challenge the said judgment. He submits that in the entire memo of the writ petition, the petitioner has not explained the delay of seven years in order to convince this Court that the delay be condoned. A lame and feeble excuse has been put forth by the petitioner stating that he was trying to bring the other three applicants togethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be debited to the subhead wages; 5. Whether the casual employees working in administrative offices observing 5 days week would be entitled to the benefit of paid weekly off ? Since the facility of paid weekly off is admissible after 6 days of continuous work, this would not be admissible to casual employees working for 5 days in a week. 6. For the purpose of assessing leave entitlement how should qualifying period be reckoned ? Qualifying period should be reckoned with reference to actual number of days duty performed ignoring days of weekly off, leave and absence etc. All days of duty will be counted irrespective of intervening spells of absence, which do not constitute break in service. 7. Frequency at which leave will be credited. Twice a year, on the 1st January and 1st of July credit will be afforded for the proceding half year or fraction, thereof, on a pro-rate basis at the rate of one day for every 10 days of work. 18. The learned advocate for the respondents, therefore, submits that a casual employee who has been enrolled through the Employment Exchange was alone entitled for the benefits under the said scheme. Clause (6) of the memorandum indicates that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be accorded the temporary status. However, Clause (6) clearly indicates that such causal labourers who acquired temporary status would not be brought on the permanent establishment unless they were selected through regular selection process. 24. The Honourable Supreme Court in the case of Secretary, State of Karnataka Ors. Vs. Umadevi (3) Ors. reported in (2006) 4 SCC 1, has held that unless permanent vacant posts are created and the recruitment is made by following the due procedure of law, casuals and temporaries could not have been accommodated in service. Paragraph Nos.45 and 47 of the Secretary, State of Karnataka Ors. judgment (supra) read thus :- 45. While directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been search ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post. 25. So far as the judgment of the C.A.T. in case of Shashikant Suhash Vilankar Vs. Union of India in O.A.No. 704 of 2002 dated 09/07/2004, is concerned, learned C.A.T. had specifically come to a conclusion in Paragraph 11 as follows : 11. It is observed that the applicant was engaged prior to the due date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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