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2016 DIGILAW 55 (ALL)

Parshuram Yadav v. Union of India

2016-01-06

RITU RAJ AWASTHI, SATYENDRA SINGH CHAUHAN

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JUDGMENT Heard learned counsel for the petitioner as well as Mr. Mahendra Kumar Mishra, learned counsel for Union of India and perused the records. 2. The writ petition has been filed challenging the orders dated 3.11.2013 and 17.12.2013, passed by the Central Administrative Tribunal, Lucknow, by means of which the original application as well as the review application filed by the petitioner were rejected. 3. The petitioner was initially appointed as Contingency Paid (C.P.) Chowkidar on 24.01.1980 and subsequently the Sub Post Office, Janaura, District Faizabad was abolished on 23.09.1986 and the service of the petitioner was terminated without any notice. The petitioner preferred O.A.No. 40/1989 before the Central Administrative Tribunal. The Tribunal by means of the order date 4.11.1991 allowed the claim of petitioner. In pursuance of the aforesaid order the respondents reinstated the petitioner on 16.12.1991 on the vacant post of C.P. Chowkidar. The petitioner thereafter made an application for back wages and other consequential benefits and when nothing was heard from the side of the opposite parties, he again filed O.A. No.40/93 which was dismissed by means of the judgment and order dated 4.2.1993. The petitioner had superannuated on 31.1.2009 after completing the age of superannuation of 60 years. After retirement the petitioner made an application for grant of pensionary benefits and when the same was denied, the petitioner ultimately proceeded to file an O.A. before the Central Administrative Tribunal. The Central Administrative Tribunal, Lucknow thereafter had considered the claim of the petitioner and came to the conclusion that the petitioner has failed to demonstrate as to when temporary status was conferred to him and, therefore, he was not entitled to the pensionary benefits. The review petition filed by the petitioner was also rejected on the same ground. 4. Learned counsel for the petitioner has submitted that he has derived information under Right to Information Act and the said information goes to indicate that the petitioner was conferred with temporary status on 1.1.1993. The aforesaid document was not available at the time when the claim of the petitioner was decided by the learned Tribunal. 5. Learned counsel for the petitioner further submits that the only question which was to be decided by the learned Tribunal was as to whether temporary status was conferred upon the petitioner or not. The aforesaid document was not available at the time when the claim of the petitioner was decided by the learned Tribunal. 5. Learned counsel for the petitioner further submits that the only question which was to be decided by the learned Tribunal was as to whether temporary status was conferred upon the petitioner or not. The aforesaid information which has been placed on record has not been denied by learned counsel for Union of India, rather it has been admitted by learned counsel for Union of India that temporary status was conferred upon the petitioner. Learned counsel for the petitioner also states that once the temporary status was conferred upon the petitioner, he was entitled to be paid retiral dues as contemplated under the law. In support of his submissions, learned counsel for the petitioner has relied upon the Division Bench decision of this Court which was rendered in Writ Petition No. 225 (SB) of 2008; Ram Das v. Central Administrative Tribunal, Lucknow & others. 6. Learned counsel for Union of India, on the other hand, submits that irrespective of the fact whether temporary status was granted to the petitioner or not but he was never regularised on the post in question and, therefore, the claim raised by the petitioner is not sustainable under the law and neither he is entitled for the retiral dues as claimed by him and the Tribunal has committed no illegality in rejecting the claim of petitioner. 7. We have heard the arguments raised by learned counsel for the petitioner and learned counsel for Union of India. 8. The arguments of learned counsel for the petitioner as well as learned counsel for Union of India has to be considered in the light of the fact that as to whether grant of temporary status is sine qua non for grant of retiral benefits or the regularisation on the post in question is necessary. 9. We find that the Tribunal while considering the case of the petitioner came to the conclusion that no such document was placed on record to indicate that he was conferred with temporary status at any point of time. 9. We find that the Tribunal while considering the case of the petitioner came to the conclusion that no such document was placed on record to indicate that he was conferred with temporary status at any point of time. The aforesaid finding recorded by the Tribunal itself belies from the document which has been filed before this Court and it has been admitted by the opposite parties/Union of India that the petitioner was granted temporary status and once the petitioner was granted temporary status, we find that the case of the petitioner is squarely covered by the judgment rendered in Ram Das (supra). In Ram Das (supra) also the same question was involved and the petitioner therein was conferred with temporary status. The Division Bench in the case of Ram Das (supra) has relied upon a Division Bench Judgement passed in Civil Misc. W.P.No. 60272 of 2009, Union of India and others v. Shyam Lal Shukla reported in (2012) 1 UPLBEC 225 and laid down the law being approved in identical terms wherein the conferment of temporary status was considered as a ground to award all retiral dues. The Division Bench in Ram Das (supra) relied upon the findings recorded in Union of India and others (supra) which on reproduction read as under: - "As noticed earlier the Supreme Court had approved a Scheme for casual labours namely (Grant of Temporary Status in Regularization) Scheme. The said Scheme was drawn up by the Postal Department in consultation with the Ministries of Law, Finance & Personnel. The Scheme provides inter alia 'temporary status' should be conferred on casual labours in employment as on 29.11.1989 and continued to be employed on the said date and have rendered continuous service of at least one year. If an employee get the temporary status he should be entitled for minimum of the pay scale for a regular Group D including DA/HRA and CCA. One of the important feature of the Scheme which has relevance for the present controversy is that no recruitment from open market will be done till the casual labours were available to fill up the posts. The paragraph 17 of the Scheme is extracted hereunder below : - "17. One of the important feature of the Scheme which has relevance for the present controversy is that no recruitment from open market will be done till the casual labours were available to fill up the posts. The paragraph 17 of the Scheme is extracted hereunder below : - "17. No recruitment from open market for group 'D' posts except compassionate appointments will be done till casual labourers with the requisite qualification are available to fill up the posts in question." It is admitted fact that the Senior Superintendent of Post Office, Allahabad had issued a communication dated 2.1.92 and granted 'temporary status' to the respondent no.1 w.e.f. 29.11.1989 and his name was placed at Serial No. 11 in the list. It is neither the case of the petitioner nor is it believable that from the year 1992 till the date of superannuation of respondent no.1 no post was available for his regularization. The action of the Department/Petitioner was in the teeth of paragraph 17 of the Scheme approved by the Apex Court mentioned herein above. Apart from the aforesaid fact the respondent no.1 was entitled for the pension in term of the Post & Telegraphs Ministerial Manual Establishment Rule 154 (a) which is quoted herein below : - "154.(a) Selected categories of whole time contingency paid staff, such as Sweepers, Bhisties, Chowkidars, Chobdars, Malis or Gardeners, Khalassis and such other categories as are expected to work side by side with regular employees or with employees in work charged establishment, should, for the present, be brought on to regular establishments of which they form adjuncts and should be treated as "regular"employees." From the perusal of Rule 154 A of Manual it is manifestly clear that the Chowkidar, Sweeper, Malis, Khalassis who worked side by side with regular or with employees in Work Charge Establishment should be brought on regular Establishment and should be treated 'regular employees'. The Rule itself has used the word 'regular employee' without any reference to formal order of regularization. The Tribunal has relied on Rule 154 A of the Manual of appointment and allowances of the Officers of the Indian Post & Telegraphs Department. The Rule itself has used the word 'regular employee' without any reference to formal order of regularization. The Tribunal has relied on Rule 154 A of the Manual of appointment and allowances of the Officers of the Indian Post & Telegraphs Department. It is, undisputed fact that the respondent no.1 has worked and has received the payment from contingent fund w.e.f. 10.4.1982 to 26.11.1989 i.e. Seven Years Six Months and Nineteen days, thereafter from the consolidated fund of Central Government from 26.11.1989 to 29.11.1992 three years and then from 30.11.1992 till the date of retirement i.e. 30.6.2003 as temporary Government Employee of Group D, for ten years Seven months and One day. The total qualifying service for pension comes to 17 years, four months and 10 days. It is admitted case that the respondent no.1 from his initial engagement i.e. 10.4.1982 till his date of superannuation i.e. 30.6.2003 has worked uninterruptedly and to the entire satisfaction of the Department as has been stated in the Counter Affidavit, Supplementary Counter Affidavit before the Tribunal and in the Writ Petition before this Court and there is no mention that the work of the respondent no.1 was unsatisfactory. The Tribunal has also relied on the order of the Supreme Court in Special Leave to Appeal dated 13.1.1997 arising out of the Original Application No. 159/93 of Tribunal, in the case of (Ram Lakhan v. Union of India and others) as well as order dated 2nd September, 2005 in Original Application No. 917 of 2004, (Chandi Lal v. Union of India and others). The aforesaid orders were on the record of the Tribunal as Annexure-AR-2 and AR-3 with affidavit filed on 26.8.2008 in similar facts. In our view the said Rule clearly spells out its essential purpose, to give pensionary benefit to certain class of employees as 'regular employee', notwithstanding the fact that no formal order of regularisation was passed. Sri Singhal has relied on the judgment of Central Administrative Tribunal, Lucknow Bench, Lucknow passed in Original Application No. 509 of 2004. We have perused the said judgment. Sri Singhal has relied on the judgment of Central Administrative Tribunal, Lucknow Bench, Lucknow passed in Original Application No. 509 of 2004. We have perused the said judgment. In the said case, the learned Tribunal has not taken note of the Scheme framed by the Department dated 12.4.2001 and paragraph 17 of the Scheme wherein it is clearly provided that no recruitment will made from open market for Group D posts (except on compassionate appointment) till casual labours with requisite qualifications are available to fill up the posts in question. Moreover, the Tribunal has also misconstrued Rule 154 (a) as it has not appreciated the said Rule in correct prospective. It appears, the relevant part of the said Rule wherein it is provided that the Chowkidars etc. should be treated as "regular employee" subject to completion of conditions mentioned therein, has escaped the notice of the learned Tribunal. Sri Singhal has also relied on the judgment of the Supreme Court passed in the case of Secretary, State of Karnataka v. Umadevi reported in 2006 (2) UPLBEC 1880. The said judgement has no application in the present case as in the present matter the Scheme has been framed by the Postal Department in compliance of the order of the Supreme Court and the said Scheme has been approved by the Supreme Court. Thus the Postal Department/Petitioner herein cannot resile from its obligation to implement the said Scheme in letter and spirit. In the background of the aforesaid facts we are satisfied that there is no error in the impugned judgment of the Tribunal and it does not call for interference under Article 226 of the Constitution. Hence, the writ petition is dismissed. However, no order is passed as to costs." 10. We are in full agreement with the law propounded by the Division Bench and same is based on sound principles of law, hence the argument advanced on behalf of Union of India is of no help to it. The grant of temporary status was considered by the learned Tribunal and the requirement under the law for being awarded retiral dues is the conferment of temporary status which is evident from the documents placed on record to have been conferred to the petitioner. 11. The grant of temporary status was considered by the learned Tribunal and the requirement under the law for being awarded retiral dues is the conferment of temporary status which is evident from the documents placed on record to have been conferred to the petitioner. 11. In this view of the matter and the arguments of learned counsel for the petitioner we, therefore, are of the view that the orders passed by learned Tribunal are erroneous and cannot be sustained in law. 12. Accordingly, the writ petition is allowed. 13. A writ in the nature of certiorari is issued quashing the orders dated 3.11.2013 and 17.12.2013, passed by the Central Administrative Tribunal, Lucknow. The petitioner would be entitled to the consequential benefits. The opposite parties shall take decision in the matter within a period of four months from the date of production of a certified copy of this order.