it2025_00901 — Where a settlement between the Management and workers has been arrived at, the same has to be executed without any discrimination within those who are similarly situated

Where a settlement between the Management and workers has been arrived at, the same has to be executed without any discrimination within those who are similarly situated — This chunk discusses the High Court's direction to examine an applicant's case in accordance with the law, Tribunal order, and the scheme of 1993, after which the Respondents individually considered ... — Facts: In the earlier round of litigation, vide O.A. No. 23 of 2015, the following Order, dated 23-6-2017 was passed. “6. The OM, dated 7-6-1988 issued by the DoP&T has provided as follows:— "Where the nature of work entrusted to the casual workers and regular employees is the same, the casual workers may be paid at the rate of 1/30 th of the pay at the minimum of the relevant pay scale plus dearness allowance for work of 8 hours a day.” In the present case, the Respondents have taken a stand that the Applicants were not entrusted with regular work of a Group ‘D' employee and therefore, they do not fulfil the criterion laid down by the DOP&T. Although it is admitted that the Applicant have been included in the Office Order, dated 26-3-2013 of the Respondents Organization as casual workers who have completed 240 days of continuous work, their case could not be considered for 1/30 status for the reasons mentioned above. However, in the Office Order, dated 12-4-2013, 1/30 th status has been conferred upon 8 casual workers. The first paragraph of the order is quoted below:- “In pursuance of O.M. No. 49014/89-Estt. (C), dated 7th June, 1988 in Clause IV, issued by the Department of Personnel and Training, New Delhi and guidelines issued by the Director-General, Archaeological Survey of India, New Delhi vide F. No. 98/4/85-Adm.-II, dated 20th January, 1989 and subsequent F. No. 7/2/92/Adm.-II, dated 27th July - 1992 and further guidelines issued by the Director-General, ASI, New Delhi vide F. No. 7-1/2009-Admn.-II, dated 17th April, 2009 and subsequent, dated 11th May, 2009, the following casual labourers engaged up to 2004-2005 and completed 240 days in a year as on 2010-2011 are allowed to perform the similar nature of duties of Group ‘D' and will be paid wages @ 1/30 th of the pay scale at the minimum of Group ‘D' ₹ 4,750 + 1,300 + D.A. as admissible from time to time with effect from 15th April, 2013”. As mentioned above, the order states that 8 casual labourers engaged up to 2004-2005 completing 240 days in a year as on 2010-2011 are allowed to perform the similar nature of duties as Group ‘D' and will be paid wages at the rate of 1/30 th of pay scale at the minimum of Group ‘D'. By this order therefore, the Respondents authorities decided to allow the said 8 casual workers to perform similar nature of duty of Group ‘D' and also that they will be paid wages at the rate of 1/30 th of the pay scale. The OM, dated 7-6-1988 issued by the DoP&T laid down that where the nature of work entrusted to the casual workers and regular employees is the same, the casual workers may be paid at the rate of 1/30 th of the pay at the minimum of the relevant pay scale plus dearness allowance for work of 8 hours a day. In the Order, dated 12-4-2013 the Respondents first decided that the concerned casual workers will be allowed to perform similar duties of regular Group ‘D' staff. It is a conscious decision of the Respondents Department to allow the eligible casual employees to perform duties of a regular employee. The Respondents have not mentioned on which criterion this decision has been taken. It is abundantly clear that it is a conscious decision of the Respondents authorities to allow a casual worker to perform duties of a regular nature. Thereafter, as a consequence in the same order, the casual labourer is allowed to be paid at the rate of 1/30 th of pay. Therefore, the argument of the Respondents that the prayer of the Applicant in this OA cannot be allowed because they have not performed the duty of regular Group ‘D' is quite clearly fallacious. From the Order, dated 12-4-2013, it has been made clear that it is the Respondents authorities who decided whom they will allow to perform regular duty of Group ‘D' and thereafter 1/30 th status followed as a consequence. The Applicant in the OAs working under the Archaeological Survey of India Organization have not been allowed to perform the duty of a regular nature by the Respondents. Therefore, the Respondents contention is that, the Applicant have not performed the duties of regular of nature is unfair and unsustainable because such decision can be taken only by the Respondents authorities. If some casual workers were allowed to perform duties of regular nature why the present casual workers who approached the Tribunal will not be allowed to do so is an issue which the Respondents have not addressed in their reply. The Respondents organization should have a transparent policy for considering such prayer as per the DoP&T OM, dated 7-6-1988 mentioned above. The settlement under Section 12 (3) of the I.D. Act, 1947 which has been brought to the notice of the Tribunal by the Applicant reflects that the cases of casual workers who have completed 240 days of work shall be taken for consideration of 1/30 th status. In the above circumstances, the reasons assigned in the impugned order cannot be supported. The Respondents organization could of course have their own policy for consideration of such cases in a transparent manner. But as per policy, case of casual workers should be considered and on the ground that the Applicants were never entrusted to discharge the work of a regular employee, no employee can be ousted from consideration. This is because as articulated in the order, the decision to allow a casual worker to perform duties of a regular Group ‘D' has been taken by the Respondents themselves. The Ld.ACGSC while replying to the allegations of discrimination has submitted that negative equity cannot be claimed. However, making such a submission would amount to indirect admission that the facility of 1/30th status to the other casual workers was extended in an irregular manner. It is not clear from the submission of the Respondents what are the criteria they have followed in allowing casual workers to do work of regular nature same as that of a Group ‘D'. One thing is clear that the claim of the Applicant cannot be summarily thrown out. The Respondents need to keep their cases under consideration under suitable criteria for conferring 1/30th status by following the guidelines as the Government as laid down by the DoP&T in their OM, dated 7-6-1988. It is also very important to ensure that discrimination and arbitrariness should be completely avoided in the matters of such consideration. Respondents filed Writ Petition No. 1252 of 2018 before the Hon'ble High Court of Orissa and the Hon'ble High Court of Orissa was pleased to disposed of the same on 1-8-2019 with direction that the Respondents to examine the case in accordance with law, the order of the Tribunal and the scheme of 1993 and grant the relief to the Applicant, if they deserve the same. In compliance of the order of the Hon'ble High Court of Orissa, Respondents considered the case of the Applicant individually and rejected the claim and communicated the reasons as below: The Applicant has never assigned the duty of the erstwhile regular Group ‘D' post or that of Multi-tasking Staff (Group ‘C') post. In fact, the Applicant has been working purely as casual labour under the Conservation Assistant of Bhubaneswar Sub-Circle, Bhubaneswar against sanctioned estimate and specific work and the wages are being paid to them as per the rate fixed by the Labour Commissioner (Central) from time to time. It is seen from a consolidated list of the casual labourers prepared financial year-wise indicating details of completion of 240 days engagement by them under the establishment, that no person whose name has been placed below the Applicant has been either allowed to perform similar nature of work or awarded with wages based on 1/30 th of the minimum of the applicable pay scale. Therefore, the question of any arbitrariness being shown in the case of the Applicant does not arise. Further, one such person who was assigned work of regular nature previously was granted wages based on 1/30 th of the minimum of the applicable pay scale by Superintending Archaeologist, ASI, Bhubaneswar Circle and fulfilling the conditions laid down in DoP&T OM, dated 7-6-1988. It may also be brought to the notice of the Applicant that the DoP&T has time and again directed the Departments that persons on daily wages should not be recruited for work of regular nature. The latest such instructions have been issued vide DoP&T O.M. No. 49014/1/2017-Esst.(C) Pt., dated 4-9-2019. Therefore, no irregularities or any illegality have been committed as alleged by Shri Dilip Pradhan as he was never assigned the duties of regular nature of the erstwhile Group ‘D' post or that of MTS (Group ‘C') for qualifying to get 1/30 th of the minimum pay. Archaeological Survey of India performs the conservation, preservation and protection of Centrally Protected monuments against various estimates. These estimates wind up after completion of a particular work under specific estimate in any particular monument / site. So providing of regular work for entire month or entire year to the casual labourers is not possible. However, labourers are being engaged depending upon the requirement of work as per estimates and existing fund position. No work would be undertaken without making provision either in the yearly budget or Conservation Programme / Revised Conservation Programme (CP/RCP). The opposite party in the instant case is engaged as per need basis subject to the availability of funds allotted to the organizations in each financial year for conservation and preservation of protected monuments. Therefore, such work of conservation and preservation of centrally protected monuments is not permanent and perennial in nature. Immediately after completion of such particular work, the casual labourers are disengaged. At times some of them are also engaged in other subsequent estimates where there is provision of work and availability of fund and sometimes not. Merely because one casual labour completes 240 days in a year or in 3-4 years engaged against one work or the other will not automatically make him eligible for grant of wages based on 1/30 th of the minimum of the applicable pay scale, plus allowances. In order to be eligible for grant of said benefits, he has to fulfil the mandatory criteria laid down in DoP&T OM, dated 7-6-1988, i.e. he should have been engaged against work of regular nature. In the facts and circumstances of the case explained above, the request of Shri Sanjay Kumar Prusty for engagement as a Casual worker in ASI with the benefit of wages payable based on 1/30 th of the minimum of the applicable pay scale, plus DA, is not acceptable and he is informed accordingly. The Applicant, having been aggrieved by the above decision, filed the present OA with prayer to quash the impugned order of rejection and direct the Respondents to grant them 1/30 th status retrospectively from the date others were granted the same benefit. Respondents filed counter contesting the case of the Applicant. The Applicant has also filed rejoinder trying to justify as to how the stand taken by the Respondents in their counter cannot give way on granting the relief claimed in the OA.