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Judgment
Dr. Sanjiv Kumar, Member (A)
The instant OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking relief to extend the benefits of judgments rendered by Division Bench of this Tribunal in OA No. 82 of 2011 dated 28.08.2018 in the case of Ahibaran Singh vs. Union of India and others which has been allowed following the ratio of this Tribunal in OA No. 1626 of 2005 – Shyamalal Shukla vs. Union of India and others dated 28.07.2009 as well as order dated 17.09.1996 in OA No. 159 of 1993 – Ram Lakhan vs. Union of India and others, OA No. 917 of 2004 dated 02.09.2005 in the case of Chandi Lal vs. Union of India and others confirmed up to the level of Hon’ble Supreme Court and to treat the petitioner as a regular Group ‘D’ employee and to extend him the pension and other pensionary benefits w.e.f. 01.07.2017 from the date he was allowed to superannuate with payment of arrears of monthly pension, commutation, Gratuity, leave encashment, insurance etc and further to grant the interest @ 12% per annum on the arrears from the date when the said amount became due till the payment is actually made, within a period of fixed time frame, and pass any other direction passed and award cost.
The facts of the applicant is that he was appointed as casual labour in the category of contingent paid waterman w.e.f. 01.03.1980 and was posted with the Railway Colony Post Office, Gorakhpur w.e.f. 02.04.1994 his services were made full time, without interruption his service was continued and it was unblemished. The applicant contends that the Hon’ble Supreme Court in the cases of Daily Rated Casual Labours Employees under Post & Telegraph Department through Bhartiya Dak Tar Mazdoor Manch vs. Union of India and others connected matters reported in 1998 SCC (L&S) 138 was pleased to direct the Postal Department to pay all such persons working as casual labours belonging to several categories of employees in the Post & Telegraph Department at the rate equivalent to the minimum pay in the pay scale of the regularly employed workers in the corresponding cadres but without any increment w.e.f. 05.02.1986 with payment of corresponding dearness and additional dearness and other benefits as are being paid to the regular Group ‘D’ employees. Further, the Hon’ble Apex Court directed that the respondents shall prepare a scheme on rational basis for absorbing all those casual labours who have been continuously working for more than one year in the Department. Pursuant to the aforesaid judgment the Postal Department formulated a scheme in the name and style of Casual Labour (Grant of Temporary Status and Regularization) Scheme on 29.11.1989 and circulated vide letter dated 12.04.1991. Pursuant to this circular the applicant was allowed temporary status w.e.f. 02.04.1994 and further. He has also extended the regular pay scale of Group ‘D’ post together with the benefit of DA, HRA, CCA. The applicant was also allowed the benefit of leave encashment, LTC, Bonus, Insurance as well as deduction toward the contribution of GPF.
The applicant asserts that plain reading of the aforesaid scheme would substantiate that the temporary status was decided to be conferred upon all casual labours in employment as on 29.11.1989 and to be continued to be currently employed rendered at least one year of continuous service during the year they must have been engaged for a period of 240 days and those who fulfilled the criteria were paid minimum of the pay scale for the regular Group ‘D’ officials including dearness allowance, HRA, CCA etc., and since the appropriate day as per the circular as the applicant was having required length of service, was allowed temporary status by the respondents, then the benefit of regular pay scale and other benefits were conferred on him. The applicant was never regularized, although he was entitled as per the judgment of the Hon’ble Supreme Court and he was continued to work as contingent paid Waterman benefit extended to him and he retired from the service attaining the age of 60 years on 30.06.2017.
The applicant strongly asserts that several similarly situated placed persons working in the capacity of contingent paid chowkidar, casual labours were also given the similar treatment and their services were also not regularized, but they were given all other benefits and subsequently were extended the benefit of pension also by the order of different Tribunals which were upheld by the Hon’ble High Court and the Hon’ble Apex Court. So in terms of those orders the applicant also claims that as being similarly situated worker he should also get the same benefit and get pension and other consequential benefits. The applicant asserts that scheme dated 09.09.2005 issued by the Chief Postmaster General, UP Circle Lucknow based on the judgment of this Tribunal. He further states that he submitted a representation dated 05.01.2016 to the respondent No. 3 claiming regularization in Group ‘D’ cadre, but the same remained not acted upon. In terms of the other similarly placed persons who have got benefit of pension without being regularized, as him, the applicant seeks pension and other consequential benefits and prays to allow his OA.
Counter affidavit has been filed by the respondents wherein they say that Shri Ram Prasad was initially engaged as a casual labour in the Department of posts as contingency paid Waterman on 01.03.201980 in Railway Colony SO Gorakhpur and in compliance of DG Posts letter dated 45-95/87-S dated 12.04.1991 he was engaged as casual labour and was granted temporary status at par with Group ‘D’ w.e.f 02.04.1994 vide SSPOs Gorakhpur letter No. A-2/8/ Gorakhpur dated 06.02.1997. They further say that the applicant retired as temporary status casual labour on attaining the age of 60 years on 30.06.2017. He was not regularized as departmental Group ‘D’, where regularization is made as per gradation list of casual labour maintained at Divisional level and as per seniority cum fitness basis. They further say that in the year 2017 the employee at Sl. No. 6 Sri Rajeshwar Prasad got promotion on the post of Group ‘D’ and the applicant was at Sl. No. 27 does not fulfil the seniority criteria in the gradation list and hence not fit for regularization as MTS post and retired on 30.07.2017 as non-regularized candidate. So he was not entitled for pension and other terminal benefits, hence, he was not given those benefits.
The respondents say that the petition referred by the applicant dated 05.01.2016 and 05.04.2016, on bare perusal appears to be forged and no such applications / petitions has been filed by the applicant before the department and those are presented before the Tribunal only to make the case of applicant strong.
The respondents further say that the case of Chandi Lal is not applicable in the case of the applicant because in that case chandi Lal is a regular employee as his services were regularized taking into consideration the said facts on record under the garb of review a party cannot be permitted to reopen his case and to gain a full fledged inning to take a view contrary to what had been taken earlier [Zahira Habibulla Sheikh vs. State of Gujrat (2004) 5 SCC JJ 13]. They further aver that Hon’ble High Court has observed that grant of pensionary benefits to temporary status Group ‘D’ employees is not at all maintainable. Hence, they say that there is no case for the applicant and this OA should be dismissed.
Rejoinder affidavit has not been filed in this case.
The case came for last hearing on 28.04.2023. Shri D. Tiwari brief holder of Shri Rakesh Verma, learned counsel for the applicant and Shri Shree Prakash Rai, learned counsel for the respondents were present and heard. I have gone through the records carefully and considered the rival contentions.
From the averments of the applicant and the respondents it is very clear that the basic facts in this case were not denied that the applicant joined as contingent paid Waterman w.e.f. 01.03.1980 and the services of the applicant was full time w.e.f. 02.04.1994, although he was not regularized, but the temporary status was given to him from 29.11.1989 till his date of retirement, and he was given all the benefits of temporary employee. The applicant in his favour has quoted several similarly placed persons’ cases where this Tribunal has given judgments in favour of the applicants and granted them pensionary benefits, which have been further upheld at the level of Hon’ble High Court and Hon’ble Supreme Court. The judgment in OA No. 82 of 2011 dated 28.08.2018 and in OA No. 1323 of 2019 dated 10.04.2023 and other quoted cases are similar in nature. From the content of OA No. 1323 of 2019, it is very clear that the case of the applicant in the present case and in the said OA were identical, as para 10 of the said judgment mentions following:-
“10. From perusal of record it is clear that the applicant was appointed as Contingency paid Chaukidar with effect from 8.6.1988 in the Postal Department and was granted temporary status w.e.f. 29.11.1989. He was working continuously on the aforesaid post and receiving allowances as revised from time to time like other employees of the Postal Department. The respondents granted „temporary status‟ to the applicant thereby extending all benefits including contribution to G.P.F. at par with other regular employees (as contemplated under relevant Rules) except for issuing formal order of regularization. Applicant retired from service on 30.6.2018 after attaining the age of superannuation but his pension has not been paid by the Postal Department only on the O.A. No.1323/2019 Page 6 of 9 ground that due to non-availability of vacancy applicant could not be regularised.”
This clearly shows that the present case and the case of the applicant in OA No. 1323 of 2019, where orders were passed on 10.04.2023, were identical. Hence, judgment in the present case cannot be very different than the said judgment where the Tribunal observed following:-
In the case of Union of India and others Vs. Shyam Lal Shukla and another in Civil Misc. Writ Petition No. 60272 of 2009 decided on 23.12.2011, Hon‟ble High Court of Allahabad has observed as under:-
“From the perusal of Rule 154 A of Manual, it is manifestly clear that the Chowkidar, Sweeper, Mails, Khalasis 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 work „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 Indian Post and 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 Govt. from 26.11.1989 to 29.11.1992 three years and then from 30.11.1992 till the date O.A. No.1323/2019 Page 7 of 9 of retirement i.e. 30.6.2003 as temporary Govt. 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. 10.04.1982 till his date of superannuation i.e. 30.06.2003 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 Vs. Union of India and others) as well as order dated 2nd September, 2005 in Original Application No. 917/2004 (Chandi Lal Versus Union of India). The aforesaid orders were on the record of the Tribunal as Annexure AR-2 and AR-3 with affidavit filed on 26.08.2008 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 regularization was passed.
In O.A No. 917/04 – Chandi Lal Vs. U.O.I and Ors. decided on 2.9.2015 by CAT, Allahabad Bench, the applicant was working in the Department of Posts on work charge establishment w.e.f. 15.4.1982. He was granted temporary status w.e.f. 29.11.1989 and thereafter, he was brought on the pay scale of Group „D‟ employee and also accorded service benefits admissible to the Group „D‟ employee. Though no formal order of the regularisation was issued in the said case but the Tribunal held the applicant entitled to pension treating him a Group „D‟ regular employee.
The Writ Petition No. 11297/2006 filed against the said order was dismissed by Hon‟ble Allahabad High Court vide order dated 02.03.2007 and Hon‟ble Supreme Court also upheld the order of Tribunal and High Court vide order dated 03.03.2008 passed in SLP (Civil) ---------/2008 (CC 3248/2008).
The facts and circumstances of above noted cases are almost similar to the case in hand. In the instant case, the applicant was appointed as Contingent Paid Chaukidar on 8.6.1988 and was extended temporary status w.e.f. 29.11.1989 and thereafter he was accorded the benefits of Group „D‟ employees. The cases of Chandi Lal and Shyam Lal Shukla went up to Hon‟ble Supreme Court and it has been settled that such employees shall be deemed to have been regularised and consequently required to be treated as regular employees of the respondents‟ department and consequently they are entitled to all pensionery benefits. Applicant‟s case is squarely covered with the law laid down in Raj Narain (supra), Gangadeen (supra) and Chhangur Sharma (supra) also.
The aforesaid judgment of the Hon‟ble High Court was challenged before the Hon‟ble Supreme Court in SLP No. 12664/2012 which was dismissed by vide order dated 6.8.2012. Hence, the judgment of the Hon‟ble High Court attained finality.
Thus, relying upon the judgment passed by the Hon‟ble High Court as well as by the Hon‟ble Apex Court, the O.A. is liable to be allowed.
Accordingly, the O.A. is O.A. No.1323/2019 Page 9 of 9 allowed. The respondents are directed to ensure payment of pension and other post retiral benefits to the applicant along with interest @ 6% per annum from the date it became due till the date of actual payment as expeditiously as possible within a period of three months from the date of receipt of certified copy of this order.”
Considering the above ratio of judgments of this Tribunal as well as the order quoted therein of the Hon’ble Apex Court, I have no other option, but to follow the relief as has been granted in the earlier cases. Other contentions raised by the learned counsel for the parties are not relevant directly to the present case, hence are left open. Hence, I pass following orders:-
“Thus, relying upon the judgment passed by the Hon’ble High Court as well as by the Hon’ble Apex Court, the O.A. is liable to be allowed. Accordingly, the O.A. is allowed. The respondents are directed to ensure payment of pension and other post retiral consequential benefits to the applicant along with interest @ 6% per annum from the date it became due till the date of actual payment as expeditiously as possible within a period of four months from the date of receipt of certified copy of this order. Associated MAs, if any, shall stand disposed off. No costs.”