V.K.Shukla - (1.) IN this bunch of writ petitions, petitioners are assailing the validity of decision taken by respondents cancelling the order by means of which petitioners, who were full time sweepers, working under G.M.T.D. Mirzapur, were regularized as regular majdoors, have been reverted to their original cadre of full time sweeper/casual labourer and further action of directing recovery of the amount which has been paid in excess to each one of petitioners.
(2.) BRIEF background of the case is that each one of petitioners had been performing and discharging duties as part time casual labourers/ sweepers. Policy decision was taken by Department of Telecom on 29.9.2000, mentioning therein that Employees Unions were demanding regularization of all the casual labourers and this issue was under consideration for quite sometime and in this background, decision had been taken to regularize the services of casual labourers working in the Department, including those, who had been granted temporary status with effect from 1.10.2000. Relevant extract of said scheme dated 29.9.2000, giving the order of regularisation and scheme to be adhered to is being quoted below : "(1) All casual labourers, who have been granted temporary status up to the issuance of orders No. 269-4/93-STN-II dated 12.2.99, circulated vide letter No. 269-13/99-STN-II dated 12.2.99 and further letter No. 269-13/93-STN-II dated 9.6.2000. (2) All full time casual labourers as indicated in Annexure. (3) All part time casual labourers who were working for four or more hours per day and converted into full time casual labourers vide letter No. 269-13/93-STN-II dated 16.9.99. (4) All part time casual labourers who were working for less than four hours per day and converted into full time casual labourers vide letter No. 269-13/93-STN-II dated 25.8.2000. (5) All Ayas and Supervisors converted into full time casual labourers as per order No. 269-10/97-STN-II dated 29.9.2000. The number of casual labourers to be regularised in categories (2) to (5) above is given in the Annexure-enclosed. The figures given in the Annexure are based on information received from the Circles. The casual labourers indicated from Clause (i) to (iv) of communication dated 29.9.2000 were to be adjusted against available vacancies of regular majdoors. However, Chief General Managers are also authorised to create posts of regular majdoors as per prescribed norms, and to that extent, the prescribed ceiling for the Circle will stand enhanced. As per this order, letter No. 269-13/99-STN-II dated 12.2.99 vide which temporary status was granted to casual labourers eligible on 1.8.98, no casual labourers were to be engaged after this date and all the casual labourers are to be disengaged forthwith. Therefore, there should be no casual labourers after 1.8.1998. Other than those indicated in serial Nos. (2) to (5) above. However, if there is still any case of casual labourers left out due to any reasons, that may be referred to the Head Quarters separately." In the year 2000 merger took place, Bharat Sanchar Nigam Limited, a Government of India Enterprises came into existence, and as per the averments mentioned in paragraph 3 of the supplementary counter-affidavit, Bharat Sanchar Nigam Ltd. adopted directives contained in letter dated 29.9.2000. In respect of absorption of Group "C" and "D" staff working in B.S.N.L., Employees Federation had been pressing upon for absorption of casual labourers, as such preliminary meeting had been held with three Federations and Bharat Sanchar Nigam Limited on 9.11.2000, empowered the Management to negotiate with the Unions, pursuant to which meeting was held with three Federations on 2.1.2001 and following proposals were approved : "1. IMPLEMENTATIOIN OF STANDING ORDERS OF THE INDUSTRIAL EMPLOYMENT ACT, 1946. B.S.N.L. service rules are to be finalized after discussion with the recognized union formed by the optees of B.S.N.L. , and the Standing Orders of Industrial Employment Act, 1946. 2. SERVICE RULES In the meantime it was agreed that Government will continue to apply existing rules/regulations. This is in line as per the provisions of Rule 1313 of Standing Orders of Industrial Employment Act, 1946. However, certain provisional terms and conditions for absorption are enclosed as Annexure-I . 3. ABSORPTION OF CASUAL LABOURS Orders have been issued by D.O.T. for regularising Ayas and all casual labourers including part time casual labourers. Left out cases, if any will be settled by B.S.N.L. in accordance with order No. 269-94/98-STN dated 29.9.2000. 4. OPTION OF STAFF FOR ABSORPTION IN B.S.N.L. The B.S.N.L. will absorb the optees on as is where is basis. A list of optees will be made available to the three federations/ unions. 5. OPTIONS OF STAFF FACING DISCIPLINARY CASES It was agreed that the employees with on-going disciplinary cases can also opt for absorption in B.S.N.L. but their absorption will be subject to the outcome of the vigilance case. Their pending cases will be expedited on a fast track mode by D.O.T. authorities. 6. PROMOTIONAL AVENUES After absorption there will be negotiations with the newly formed recognised union regarding promotional avenues. Pending adoption of Standing Orders on promotional policy,the present OTBP/BCRACP (whichever is applicable) etc. will continue to be followed by B.S.N.L. 7. CHANGE OVER TO I.D.A. PAY SCALES The pay scales and fitment formula will also be adopted through Standing Orders after negotiation with the recognised union in respect of non-executives. After detailed discussions, it was mutually agreed that pending fitment in the I.D.A. Pay scales, the Group C and D optees will continue in the Central Government (C.D.A.) pay scales. In addition to this, they will also be paid an ad hoc amount of Rs. 1,000 per month w.e.f. 1.10.2000 which will be adjusted from their I.D.A. emoluments, perks and benefits on fixation of the same in the revised I.D.A. scales. The revised negotiated I.D.A. pay scales will be applicable from the date of absorption, i.e., 1.10.2000. 8. TIME FRAME FOR VARIOUS POST ABSORPTITION CAVITIES It was agreed that options will be called in January, 2001 providing about one month time to employees to give their options and the entire activity is expected to be completed by the end of 28th Feb. 2001. A list of optees of B.S.N.L. will be exhibited to rectify inaccuracies, if any. The existing system of informal meetings with applicant Unions, as on 30.9.2000 and formal meetings with the three Federations shall continue. 9. The employees who opt for permanent absorption in B.S.N.L. would be governed by the provisions of Rule 37A of C.C.S. Pension Rules, notification for which was issued by the Department of Pension Welfare on 30.9.2000. for the purpose of reckoning emoluments for calculation of pension and pensionary benefits, the emoluments as defined in C.C.S. Pensions Rules, on P.S.U. in the I.D.A. pay scales shall be treated as emoluments. 10. D.O.T. has already clarified that the word "formula" mentioned in Clause 8 of the Rule 37A means payment of pension as per Government Rules in force at that time. It has also been clarified by the D.O.T. that B.S.N.L. will not dismiss/remove an absorbed employee without prior review by the Administrative Ministry/ Department. 11. The Group C and D employees who appear for any provisional examination whether direct or departmental and qualify in such examinations/outsiders coming through direct recruitment process, would rank junior to all the other employees in the promotional cadre, who had already been qualified in earlier examinations even though they get absorbed in B.S.N.L. subsequently. The above modalities have been worked out in consultation with the following three federations for termination of the deemed deputation status in B.S.N.L. and the parties have put their signatures in token of their consent and agreement on this date 2.1.2001." Thereafter, on 14.5.2001, from the office of the Chief General Manager Telecom, Bharat Sanchar Nigam Limited, Lucknow, communication was issued, mentioning therein that for conversion of part time casual labourers working for not less than four hours duty into full time casual labourers, exercise be undertaken with the condition specifically provided for and same is one time relaxation, and was effective w.e.f. 25.8.2000. Thereafter on 21.6.2002, Deputy General Manager, B.S.N.L., U. P. (East) Circle, Lucknow, addressed letter in accordance with instructions contained in D.O.T., New Delhi dated 14.8.1998, 25.8.2000, approved by C.G.M.T. U. P. (East) Circle, Lucknow for conversion of part time casual labourers into full time casual labourers (performing duty four hours or more and less than four hours per day), as per enclosed Annexures-I and II, on the following terms and conditions : "1. The sanction of part time casual labourers by the competent authority and their continuously service till date with minimum 240 days working in the preceding 12 months as on 25.8.2000. 2. The Head of S.S.As. should personally verify the payment records of these approved part time casual labourers and obtain a certificate of the payment made from his I.F.A. and therefore verify their eligibility as per the rule on the subject before ordering the conversion of the part time to full time casual labourers. It may further ensure that the payment of the part time casual labourers has been made directly by the department and not by any other agency like contractor etc. 3. The part time casual labourers should be engaged as full time casual labourers only where there is shortage of Gr. D staff (i.e. Existence of vacant Gr. D posts accounting for all S.M. and existing full time casual labourers) and no post should be created for the purpose. In the event there is no shortage in Gr. D posts as full time casual labourers, the part time casual labourers will not be converted into full time labourers. 4. Payment to the above full time casual labourers may be made as provided of under Rule 331 P and T FHB Vol. I under circumstances should they are paid through MUSTER ROLL. 5. In case of any violation to the above instructions/ departmental instructions on the subject, the Head of S.S.As. will be personally responsible . It may also be ensured that no part time casual labourers have been engaged after the cut off date given by the D.O.T., New Delhi. The Head of S.S.As. must get satisfied himself personally in each case before converting part time casual labourers into full time casual labourers and ensure that all the conditions laid down on the subject and departmental instructions are followed. 6. The name of part time casual labourers, who are found suitable for conversion into full time are attached to Annexures-I and II. This is based on the report received from S.S.A. concerned."
(3.) REQUISITE steps were undertaken in this direction and thereafter each one of petitioners, who were working as part-time casual labourers, were converted into full time casual labourers and requisite letter in this respect was issued by General Manager, Telecom district Mirzapur on 10.10.2002. Decision was taken on 23.1.2006 that all those part time casual labourers, who had been converted into full time casual labourers, qua them proceedings be undertaken for extending the benefit of regularization against Group 'D' vacancies. REQUISITE direction was issued in this behalf by General Manager, East Circle, Lucknow alongwith communication dated 23.1.2006 sent by the office of the Chief General Manager, Telecom, U. P. Lucknow. List was also appended therewith. In the said letter it was categorically mentioned that directives were issued for undertaking requisite exercise and for verification of records. As against sanctioned strength of 116 regular majdoors, only 64 had been functioning as on 31.3.2006, as such there was shortage of 52 regular majdoors. Thereafter letter dated 17.5.2006 was sent by the office of the General Manager, Telecom, U. P. Circle, Lucknow, asking therein to forward the list after extending the benefit of regularization. Thereafter, requisite exercise was undertaken pursuant to said letter and on 20.7.2006, General Manager, Telecom district Mirzapur issued letter of regularisation qua each one of petitioners converting them from casual labourers to regular majdoors. Pursuant to said order requisite fixation of pay was done, and petitioners were paid their salary accordingly. Thereafter, impugned order has been passed qua each one of the petitioners. Claim of petitioners has been rejected as per respondents solely on the ground that by no stretch of imagination, after pronouncement of judgment of Hon'ble Apex Court in the case of Secretary, State of Karnataka v. Uma Devi, 2006 (4) SCC 1 : 2006 (5) AWC 5325 (SC), regularisation could have been made, and in this background, it has been contended that action taken is strictly in consonance with the said verdict, as the benefit of regularisation has been extended in ignorance of the directives of Hon'ble Apex Court, as such claim of petitioners is unsustainable.;