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Judgment
P. Madhavan, Member J
The applicant has filed this Original Application seeking the following reliefs:
i) to declare that the applicant is legally entitled to be conferred with temporary status with effect from 15.4.1987 and to treat her on par with Group
D with effect from 15.4.1990 in accordance with Annexure A6 Scheme and also is entitled to such benefits as are admissible to Group D employees
on regular basis as directed in the decision reported in (1990) Supp SCC 113 and Annexure A9 order of the Bangalore Bench of the Hon'ble Central
Administrative Tribunal;
ii) to declare that the action of the respondents in treating the applicant as post 1.1.2004 employee for pensionary benefits on the ground that she were
appointed as regular Group D subsequent to 1.1.2004 notwithstanding that she completed three years in the temporary status on and from 15.4.1990
long before the coming into force of the New Contributory Pension as illegal, arbitrary and unreasonable offending Article 14 of the Constitution of
India;
iii) to issue appropriate direction or order directing the respondents to issue orders granting temporary status to the applicant with effect 15.4.1987 and
to treat the applicant on par with Group D with effect from 15.4.1990 and all the benefits as are admissible to Group D employees on regular basis as
directed in the decision reported in (1990) Supp SCC 113 and Annexure A9 order of the Bangalore Bench of the Hon'ble Central Administrative
Tribunal;
iv) issue appropriate direction or order directing the respondents to refund the amounts illegally recovered from the applicant towards new contributory
pension Scheme with interest applicable to GPF expeditiously and at any rate within a time frame that may be fixed by this Hon'ble Tribunal;
v) to issue appropriate direction or order directing the respondents to grant pension and other retiral benefits due to the applicant admissible under CCS
(Pension) Rules, 1972 reckoning her qualifying service for pension in the cadre of Group D with effect from 15.4.1990 and other benefits admissible to
regular Group D employees on that basis with effect from 30.9.2016 the date of superannuation of the applicant expeditiously at any rate within a time
frame that may be fixed by this Hon'ble Tribunal;
vi) to issue appropriate direction or order directing the respondents to reckon 50% of their Casual Labour Service with temporary status with effect
from 15.4.1987 to 15.04.1990 as qualifying service for pension in the cadre of Group D and for other benefits admissible to regular Group D
employees on that basis with effect from 30.9.2016;
vii) to grant such other reliefs which this Hon'ble Tribunal may deem fit, proper and just in the circumstances of the case such other;
and
viii) to award costs to the applicant.
The applicant's case in short is as follows:-
The applicant in this case had retired from service as Multitasking Staff, RMS, Tirur on 30.9.2016. The applicant was initially appointed as Part Time
Casual Labourer in the Sub Record Office of RMS, Kuttippuram with effect from 15.4.1987. Thereafter the applicant was allotted to full time casual
labourer duties which were entrusted to Group-D employees with a quantum of work of 8 hours duty with effect from 1.9.1999 on an experimental
basis. The said memo dated 26.8.1999 from the Sub Record Officer, RMS, Kuttippuram is produced as Annexure A2. On 20.1.2000 the applicant
was posted as Full Time Casual Labourer on regular basis with effect from 1.9.1999. The said order is produced as Annexure A3. Thereafter on
16.7.2010 the applicant was selected as a Group-D employee against the vacancy for the year 2008 and he was allotted to Sub Record Office, Tirur.
The orders are produced as Annexures A4 and A5. The applicant thereafter was appointed as Multitasking Staff with effect from 20.7.2012.
The department had issued a scheme for granting temporary status and regularization as ""Casual Labourers (Grant of Temporary Status and
Regularization) Scheme"" as per OM dated 12.4.1991. The said OM is produced as Annexure A6. As per the said scheme the casual labourers in
employment under the Department of Posts would be conferred with temporary status if they are in employment on 29.11.1989 or continued to be
currently employed and have rendered continuous service of at least one year with at least 240 days of engagement. According to the applicant he
was appointed as casual labour on 15.4.1987 and he had completed more than 240 days and therefore she is eligible to be conferred with temporary
status. Even though the applicant had given representation on 12.10.1994 (Annexure A7) for considering her case for grant of temporary status, no
action was taken by the respondents. As per paragraph 6 of the scheme, 50% of the service rendered in temporary status would be counted for the
purpose of retirement benefits. The applicant is legally entitled to get 50% of service rendered in temporary status with effect from 15.4.1987. The
Hon'ble Supreme Court in Jagrit Mazdoor Union (Regd.) & Ors. v. Mahanagar Telephone Nigam Ltd. & anothe r- 1990 (Supp) SCC 113 held as
follows:
After rendering three years of continuous service with temporary status, the casual labourers shall be treated at par with temporary grade Group D
employees of the Department of Posts and would thereby entitled to such benefits as are admissible to Group D employees on regular basis.
Accordingly, the Government of India, Department of Posts issued letter No. 66-9/91-SPB.I, dated 30.11.1992 directing that the casual labourers
conferred with temporary status should be treated at par with temporary Group-D employees with effect from the date they complete three years of
service in the newly acquired temporary status. According to the applicant casual labourers who are treated at par with Group-D employees are
entitled to count the services rendered as such for the purpose of pension and terminal benefits. The said order of the Postal Department is produced
as Annexure A8. On appointment as Group-D employee the respondents had taken 10% of monthly pay towards pension contribution as per New
Pension Scheme which came into force from 1.1.2004.
This is completely wrong as the applicant ought to have been granted temporary status and his service ought to have been considered for pension. The
Bangalore Bench of this Tribunal in OA No. 397 of 2009 has held that if an employee completes three years services in temporary status; he is
entitled to get the benefits as ordered by the Supreme Court in Jagrit Mazdoor Union's case (supra). The copy of the said order is produced as
Annexure A9. It was also contended that this Tribunal in OA No. 164 of 2012 had considered the above matter and passed an order dated 6.3.2013
declaring that applicants' therein are entitled to count their service rendered under temporary status and consequently their date of initial appointment
shall be advanced to 1996 and 1997 respectively. The Tribunal treated the applicants' appointment as deemed date of appointment and held that it
dates back to the period anterior to 1.1.2004 and they are entitled to pension under the CCS (Pension) Rules, 1972. A copy of the order is produced as
Annexure A11. Even though the respondents have challenged the same before the Hon'ble High Court of Kerala, it was dismissed on 27.1.2014. So
according to the applicant she is entitled to get temporary status with effect from 15.4.1987 as she has completed three years service on 15.4.1990.
50% of the service under the temporary status has to be considered for pensionary benefits. So the applicant prays for the above reliefs.
The respondents entered appearance and filed detailed reply admitting the part time casual service, full time casual service, etc. and appointment of
the applicant as MTS and her retirement as stated in the OA. But according to them the applicant was appointed only as part-time casual labour on
15.4.1987. She was appointed to work for 8 hours only with effect from 1.9.1999 on an experimental basis. Later she was appointed as full time
casual labour only on 20.1.2000. The Departmental Promotion Committee considered the name of the applicant and she was appointed as Group-D in
RMS Division on 16.7.2010. She was appointed in the retirement vacancy of Shri T. Saseendran on 30.4.2008. She was also informed that she is not
entitled to get the old pension scheme. The respondents also would contend that the Casual Labour (Grant of Temporary status and Regularization)
Scheme dated 12.4.1991 is not applicable to the applicant as she was appointed as full time casual labour only on 1.9.1999. It is specifically mentioned
in the OM that the scheme is only applicable to the casual labourers on employment under the Department of Posts and temporary casual labourers
who were in employment on 29.11.1989. This scheme was extended to casual labourers recruited after 29.11.1989 and up to 1.9.1993. In this case the
applicant was a part time casual labour till 31.8.1999. She was appointed as full time casual labour with effect from 1.9.1999 and the benefit of
temporary status is available to only those casual labourers who were appointed as on 1.9.1993. The applicant is not entitled to get any temporary
status as claimed by her in the OA. According to the respondents the order in OA No. 164 of 2012 is not passed in a similar case. In that case the
applicants were full time casual labourers conferred with temporary status. So that decision is not applicable to the present case. So there is no merit
in the contention raised by the applicant in this case and the OA is therefore, liable to be dismissed.
We had heard the counsels appearing for the applicant as well as the respondents. The main point to be considered in this case is whether the
applicant was entitled to get temporary status as per the scheme issued by the Postal Department as per Annexure A6. If we go through Annexure
A6 it can be seen that the said scheme was drawn by the Department for granting temporary status to all casual labourers in employment as on
29.11.1989 and who continue to be currently in employment and have rendered continuous service of at least one year; during the year they must have
been engaged for a period of 240 days. It is also clarified in the 2nd paragraph of the scheme that such casual workers engaged for full time working
hours of 8 hours will be paid at daily rates on the basis of minimum of the pay scale for a regular Group-D official including DA, HRA and CCA. It is
also stipulated in paragraph 6 that 50% of the service rendered in temporary status would be counted for retirement benefits after regularization as
Group-D employee. After rendering three years of continuous service after conferment of temporary status the casual labourers would be treated on
par with temporary Group-D employees for the purpose of contribution to General Provident Fund. From the above, it can be seen that the scheme
envisaged the granting of temporary status to casual labourers who were in service on 29.11.1989 and who were continuing in service on that date.
The 2 nd paragraph clearly shows that such casual labourers engaged for full time working hours i.e. 8 hours will be paid daily rates. As per OM
dated 30 th November, 1992 (Annexure A8) it is made clear that on completion of three years service in temporary status the casual labourers will be
treated at par with temporary Group-D employee as per order of the Hon'ble Supreme Court in the decision cited earlier. The main contention put
forward by the counsel for the applicant is that the employment of the applicant is on casual basis and she has been treated as a casual employee for
the purpose of service and no difference can be made as part time casual employee and full time casual employee. She mainly relies upon Annexure
A13 letter dated 17.5.1989 in support of her case. Annexure A13 reads thus:
Part-time and Full-time Casual Labourers.- It is hereby cleared that all daily wagers working in Post Offices or in RMS Offices or in
Administrative Offices or PSDs/MMS under different designations (mazdoor, casual labourer, contingent paid staff, daily wager, daily-rated mazdoor,
outsider) are to be treated as casual labourers. Those casual labourers who are engaged for a period of not less than 8 hours a day should be
described as full-time casual labourers. Those casual labourers who are engaged for a period of less than 8 hours a day should be described as part-
time casual labourers. All other designations should be discontinued.
Substitutes engaged against absentees should not be designated casual labourer. For the purpose of recruitment to Group 'D' posts, substitutes should
be considered only when casual labourers are not available. That is, substitutes will rank last in priority, but will be above outsiders. In other words, the
following priority should be observed:-
(i) NTC Group 'D'
(ii) EDAs of the same Division.
(iii) Casual labourers (full-time or part-time. For the purpose of computation of eligible service, half of the service rendered as a part-time casual
labourer should be taken into account. That is, if a part-time casual labourer has served for 480 days in a period of 2 years he will be treated, for
purposes of recruitment, to have completed one year of service as full-time casual labourer.
(iv) EDAs of other divisions in the same Region.
(v) Substitutes (not working in Metropolitan cities).
(vi) Direct recruits through employment exchanges.
Counsel for the respondents has invited our attention to the decision in the case of Union of India & Anr. v. Mohan Pal & Ors. - (2002) 4 SCC 573.
The Hon'ble Supreme Court has held as under:
Clause 4 of the Scheme is very clear that the conferment of 'temporary' status is to be given to the casual labourers who were in employment as
on the date of commencement of the Scheme. Some of the Central Administrative Tribunals took the view that this is an ongoing Scheme and as and
when casual labourers complete 240 days of work in a year or 206 days (in case of offices observing 5 days a week), they are entitled to get
'temporary' status. We do not think that clause 4 of the Scheme envisages it as an ongoing Scheme. In order to acquire 'temporary' status, the casual
labourer should have been in employment as on the date of commencement of the Scheme and he should have also rendered a continuous service of
at least one year which means that he should have been engaged for a period of at least 240 days in a year or 206 days in case of offices observing 5
days a week. From clause 4 of the Scheme, it does not appear to be a general guideline to be applied for the purpose of giving 'temporary' status to all
the casual workers, as and when they complete one year's continuous service. Of course, it is up to the Union Government to formulate any scheme
as and when it is found necessary that the casual labourers are to be given 'temporary' status and later they are to be absorbed in Group 'D' posts.
According to the counsel for the applicant casual labourers includes full time and part time as per the said OM. On careful examination of
Annexure A13 OM it can be seen that the said OM was issued for the purpose of appointment to Group-D post from casual labourers and other
EDAs etc. It is not an OM clarifying that part time casual labourers will also come under casual labour. So we find that Annexure A13 has no
application for the purpose of this case. The various documents produced by the applicant herself will show that the applicant was initially appointed as
part time casual labour with effect from 15.4.1987 and thereafter she was entrusted with 8 hours duty on an experimental basis with effect from
1.9.1999 only. She was made a casual labour on regular measure only with effect from 1.9.1999. Subsequently on 16.7.2010 she was appointed as
Group-D employee as per Annexure A4. These documents clearly shows that the applicant was not a full time casual labourer and she cannot be
treated as a person eligible for granting temporary status as per Annexure A6 scheme envisaged by the Department. Paragraph 1 of the scheme
clearly states that the scheme applies to casual labourers. Paragraph 2 clarifies that the casual labourer should put in at least 8 hours of work in a day.
This is not the case of the applicant herein. She was a part time casual labourer and she does not come within the ambit of the scheme. So she is not
entitled to be granted temporary status as claimed by her. Therefore, she is also not entitled to get 50% of the service rendered as casual service for
the purpose of retirement benefits. Hence, we find no merits in the contentions put forward by the applicant.
In the result the OA is dismissed. No order as to costs.