AI Structured Summary
Not yet generated for this judgment
Judgment
Manish Garg, Member (J)
Applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:
“(a) Issue, Writ, Order or direction in the nature of certiorari call for the records and quash impugned letters/Orders dated 24.09.2018 & 28.10.2018 passed by the respondent 4 & 5 (Annexure No.A-I&II) to the compilation No.I.
(b) Issue, Writ, Order or direction in the nature mandamus commanding the respondents to give all benefit related Service, Gratuity & Pensionary of the applicant treating the services of the applicant w.e.f. 23.09.1983 forthwith.
(c) Issue, Writ, Order or direction in the nature mandamus commanding the respondents to give remaining service gratuity after counting the services of applicant w.e.f. 23.09.1983 forthwith.
(d) Pass any other writ, order or direction, which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.
(e) Award the cost of the writ petition to the applicant.”
Applicant applied for the post of Postal Assistant in Chamoli Division of Postal Department in the year 1982. He received a letter dated 15.06.1982 that he got selected by selection committee and he should be present by 30.06.1982 for completing the required formalities for approval of appointment before respondent No.4. In compliance of appointment letter dated 15.06.1982, he appeared before respondent No.4 on 22.06.1982 and completed all required formalities. Thereafter, on 07.05.1983 applicant received a letter that all his documents are returned without giving any valid reason. He made an enquiry from the office of respondent no.4, who vide letter dated 13.05.1983 informed him that his appointment is subject matter of enquiry before Post Master General, UP Circle, Lucknow, result of which will be communicated to him. When the applicant did not receive any information, he filed Writ Petition no.13541/1984 before the Hon’ble High Court of Allahabad where following order was passed on 28.02.1985:
“On 6.9.1984, learned counsel for Union of India was granted three weeks time to file a counter affidavit. No counter affidavit had been filed. In the circumstances, an interim mandamus is issued to the opposite parties to show cause within a period of one month from the date of copy of the order is produced before them, as to why the petitioner may not be appointed on the post of Steno-Typist Assistant in PO Chamoli, Gopeshwar. The petition may be listed immediately after the expiry of one month from today.”
In compliance of the aforesaid order, applicant was sent for training for appointment on the post of Postal Assistant vide order dated 28.05.1986 and after completion of the training he was given posting in Chamoli Division on the post of Postal Assistant vide letter dated 14.08.1986. It is submitted that S/Sh.Pushkar Singh Khati and Ramadhar Ram, were also sent for the said training immediately after their selection and given charge on 23.09.1983, but the applicant has been put to loss of seniority and employment due to delay on the part of respondents in allowing the applicant to join duty on 03.09.1986. Had the applicant been also allowed to join timely, he would not have suffered loss of seniority. An assurance in this behalf was also given by the respondent at the time of joining that he will be given his due seniority. It is further submitted that although the seniority of the applicant was fixed above the aforesaid persons but he was being paid less salary than the said junior persons. Against this discrimination, the applicant made a representation to the authority concerned but of no avail. He also made a representation to Directorate of Public Grievances but nothing has been done.
Meanwhile, after creation of this Tribunal, the Writ Petition No.13541 of 1984 stood transferred to this Tribunal and numbered as TA No.1405/1987, which was disposed of on 09.08.1990.
It is submitted that applicant came to know about the promotion of T/S Assistant in Chamoli Postal Division in the higher pay scale of Rs.4500-7000 through letter dated 20.11.2001, perusal of which reveals that on the basis of seniority list circulated in the year 2001, the persons junior to the applicant have been given promotion ignoring his rightful claim. Aggrieved, applicant made representation dated 27.11.2001 but the same was not responded to. Thereafter, he sent a legal notice to the respondent authority through his counsel but the same also remain un-responded.
Thereafter, applicant approached the Allahabad Bench of this Tribunal by way of OA No.15/2002 which was disposed of on 07.10.2002, with a direction to the respondents to give detailed reply to the legal notice within a period of three months from the date of receipt of that order. The same was replied to by the respondents on 26.08.2003. In the meanwhile applicant also filed Writ Petition No.368 of 2004 (S/S) before Hon’ble High Court of Uttarakhand at Nainital for directing the respondents to give all benefits to him treating him in service with effect from the date of his appointment on the post of Postal Assistant on 15.06.1982. The said Writ Petition was finally allowed by the Hon’ble High Court vide judgment dated 29.08.2006.
Aggrieved by the aforesaid judgment, the respondent filed Special Appeal No.33/2007 before the Hon’ble High Court of Uttarakhand at Nainital which was dismissed on 09.03.2010. It is submitted that the respondent No.4 vide order dated 30.06.2014 granted third MACP to the applicant on completion of 30 years of continuous service meaning thereby that they have considered services of the applicant for granting benefit of MACP w.e.f. 23.09.1983, as evident from Memo dated 30.06.2014. However, after the retirement of applicant, respondent No.4 calculated his service gratuity from 30.09.1986 instead of 23.09.1983. Feeling aggrieved, applicant sent a representation dated 19.05.2018 to respondent No.4 requesting to count his service from 23.09.1983 so as to enable him to get benefit of 33 years service for the purpose of pensionary benefits/DCRG. Hence the OA.
On the other hand, respondents have filed their reply thereby vehemently opposed the averments made in the OA. It is submitted that the applicant is claiming the pay and allowances for the period from 23.09.1983 to 02.09.1986 while he assumed the service in the department on 03.09.1986. The pay for the aforesaid period is not admissible as per financial rules. As regards compliance of the Hon’ble High Court’s order dated 29.08.2006 in Writ Petition No.368/2004, it is submitted that the same has been fully complied with and was accepted by the Hon’ble High Court of Uttarakhand at Nainital while dismissing the Contempt Petition No.65/2010 filed by the applicant. It is further submitted that applicant stood retired from service on attaining the age of superannuation on 30.06.2018 and in compliance of Hon’ble High Court of Uttarakhand judgment dated 29.08.2006 in WP No.368/2004 as also judgment dated 09.03.2010 passed in Special Appeal have been fully complied with and the pay of the applicant has been stepped up with his immediate junior Sh. Pushkar Singh Khati, who joined the service on 23.09.1983 while the applicant joined service on 03.09.1986. His pension was also fixed as per the last pay drawn. The applicant claimed all the benefits related to service gratuity and pensionary benefits for the period from 23.09.1983 to 02.09.1986 treating his service from 23.09.1983 while the applicant assumed service on 03.09.1986. In this regard, his case was referred to Circle Office for further guidance, who vide letter dated 14.09.2018 informed that there is no provision of step-up in the case of promotion but the joining date in the service cannot be changed and cannot be taken than actual in any case.
Heard learned counsel for the parties and perused the material on record.
The sum and substance of the argument of the counsel for applicant is that applicant ought to have been accorded gratuity benefits w.e.f. 23.09.1983.To substantiate his argument, he would draw a reference to earlier round of litigation wherein he filed Writ Petition No.368 of 2004 (S/S) before Hon’ble High Court of Uttarakhand at Nainital for directing the respondents to give all benefits to him treating him in service with effect from the date of his appointment on the post of Postal Assistant on 15.06.1982. The said Writ Petition was finally allowed by the Hon’ble High Court vide judgment dated 29.08.2006. The respondent challenged the same in Special Appeal No.33/2007 before the Hon’ble High Court of Uttarakhand at Nainital, which was dismissed on 09.03.2010. We find that as per applicant’s own showing, his date of entry in department is in the year 1983 when he was accorded third MACP in PA cadre whereas his gratuity is calculated w.e.f. 03.09.1986 by the respondents by virtue of the impugned order which is uncalled for.
Learned counsel for respondents would draw reference to the fact that the respondents have fully complied with the decision rendered in Writ Petition in true letter and spirit and there is no occasion by the applicant to grant gratuity w.e.f. 23.09.1983 but the Hon’ble High Court in Writ Petition No.33/2004, the learned Single Judge has directed the respondents to consider the payment of same pay as is being paid to the persons junior to him in the cadre and also consider his promotion according to his seniority. However, no orders qua counting of past service and for according arrears, if any, were passed by the Hon’ble High Court. He further draws a reference that even the pension has been accorded to the applicant from the date of entry into service, i.e., 03.09.1986, as per the pension calculation sheet, which has not been challenged till date.
In Aspinwall & Co., Kulshekar, Mangalore Vs. Lalitha Padugady & Ors. Etc., 1996 AIR 580, the Hon’ble Apex Court held as under:
“Section 4 postulates determination of the „completed year of service‟ meaning thereby one year‟s period of continuous service, rendered by an employee for the purposes of computation of gratuity and therein is a method provided for determining a completed year of service. The starting point of the said period is from the date an employee gets employment, which in the nature of things would vary from employee to employee. It is no where envisaged in the scheme from the above provisions that the continuous service of the employee would he computed in a chain from calendar year to calendar year. Completed year of service would plainly mean continuous service for one year reckonable from the date of joining employment. It cannot be confused with that of a calendar year. The understanding of the year as a calendar year, as available in the General Clauses Act is not importable to shadow for our purposes the concept of„completed year of service‟. To illustrate the point if an employee joins service in the first week of July in a particular year, it cannot be said that for the purposes of the provisions of the Act, he would be deemed to have worked or half an year to begin with, and thereafter to have worked for each calendar year till the date of the last one, and then till the year of his termination. On the contrary, the Act envisages that the day an employee enters into service, his continuous service from year to year would be computed from the date of his joining. In the nature of things regimenting or streamlining the whole concept into calendar year apportionments is totally ill-filled in the scheme of the Act. Explanation II to Section 2(c) plainly provides that an employee of a seasonal establishment shall be deemed to being continuous service, if he has actually worked for not less than seventy five percent of the number of days on which the establishment was in operation during the year. Now what is that year. It obviously is the completed year of service of an employee, meaning thereby continuous service for one year. The provisions of Section 4 clearly reveal that before an employee can claim gratuity, he must have rendered continuous service for not less than five years. Further, for every completed year of service or part thereof in excess of six months, the employer is required to pay him gratuity at the rate of fifteen days‟ wages based on the rate of last drawn wages by the employee concerned. The first proviso relates to the right conferred under sub-section (2) to employees other than those employed in a seasonal establishment.
For these reasons, we are of the considered view that the Controlling Authority as also both the Benches of the High Court in ignoring the concept of „continuous service for one year‟, which has reference to an individual workman and not universally relatable to the calendar year, had wrongly conferred the benefit of two seasons to the workmen holding them entitled to fourteen days‟ wages as gratuity. We, therefore, upset these orders and direct that the appellant-employer shall pay to the respondents gratuity at the rate of seven days wages for each season, continuous as it is from September of a particular year till June of the following calendar year. The appeals are thus allowed. Since there is no representation on the other side, there shall be no order as to costs.”
Under conditions of service of Government Servant, retirement/Death Gratuity is payable under Rule 50 (1) (a), a Government servant, who has completed five years' qualifying service and has become eligible for service gratuity or pension under Rule 49, shall, on his retirement, be granted retirement gratuity equal to one-fourth of his emoluments for each completed six monthly period of qualifying service, subject to a maximum of 16½ times the emoluments.
(i) The length of “qualifying service” is decisive factor. To arrive at the period of “qualifying service”, the same is relatable pension also as both Rule 49/50 deals with provisions for grant of Pension/Gratuity. An employee is borne to a department /cadre the day an employee enters into service i.e. the date of his joining unless and until otherwise specified or provided for.
In facts of present case, following points are undisputed:-
(ii) The Learned Single Judge in WP had passed following order(s):-
“Admittedly, the petitioner is senior than Sri Pushkar Singh Khati and other persons in the seniority list circulated in the year 1986 and 2001. The petitioner is legally entitled for the same salary, which is being paid to Pushkar Singh Khati and other persons junior to him. According to the petitioner he was denied the joining on the pretext of enquiry by the respondents although he had appeared for joining on 22.6.1982 but he was given joining on 28.5.1986 after the order of Allahabad High Court dated 28.2.1985. Thus the petitioner cannot be penalised or to suffer without any fault of his own.
In view of above, a writ of mandamus is issued directing the respondents to consider the payment of the same pay as is being paid to the persons junior to him in the cadre and also consider his promotion according to his seniority.
Accordingly, writ petition is allowed. No order as to costs.”
(iii) The above directions were confined and limited to grant of seniority only in relation to applicant’s junior. There was no direction for payment of arrears of salary nor there was any direction for counting services for the purpose of the pensionary benefits.
(iv) Even otherwise, to our mind no such directions could have been passed that the applicant had not borne in the services or cadre. The extension of benefit of seniority only in relation to applicant’s junior was due to the fact the appointment was delayed for no fault of the applicant and as such could not have been deprived of the benefit of benefit of seniority which would have had lasting impact in his career progression and promotional avenues.
(v) Even in terms of Section 4 of the 1972 Act, on the contrary, the Act envisages that the day an employee enters into service, his continuous service from year to year would be computed from the date of his joining. (emphasised)
(vi) The said decision became final and binding upon the applicant as on date.
Conclusion
We thus do not find any merit in the case of the applicant. Hence the OA is dismissed. No order as to costs.