Union of India and Others vs M.S. Gopi

Manjula Chellur, Ag. C.J.

By consent of both the parties the matter is taken up for final disposal. We have gone through the order of Central Administrative Tribunal in O.A. No. 267 of 2011 dated 09.02.2012 and also order dated 15.05.2012 in M.A. No. 420 of 201 in R.A. No. 25 of 2012 in O.A. No. 267 of 2011. The petitioners before us were respondents before the Tribunal. The respondent herein admittedly was a ''seasonal Khalasi'' initially i.e. in the year 1987. On earlier occasion also he approached the Tribunal by filing O.A. No. 267 of 2011 seeking regularisation of his status as a regular Khalasi instead of temporary Khalasi, as persons similarly placed were regularised with effect from 1997. At that point of time, the Tribunal after taking into consideration the relevant facts and circumstances proceeded to grant the following reliefs:

(i) Finalise the seniority list of the seasonal Khalasis on the basis of their actual aggregate length of service in successive years after notifying the same first provisionally inviting objections if any from the concerned employees and then notifying the final seniority list after considering the finalising the objections if any from the concerned employees.

(ii) Consider the applicants for appointment against the work charged posts of Khalasis on regular basis based on their seniority without reference to the "scheme" in R1(A) modified by R1(B).

(iii) Grant necessary relaxations in favour of the applicants from the provisions of the recruitment rules as required for (ii) above.

(iv) Till regularisation, applicants be continued to be engaged as seasonal Khalasis.

Subsequent to this order dated 18.04.2000, one has to see what steps were taken either by the writ petitioners or the applicant/respondent Mr. Gopi. Apparently, this order in OA No. 1552 of 1997 was not challenged by the Original Applicant/the respondent employee. An appeal was filed challenging the order by the Department, but the same came to be dismissed. Above directions of the Tribunal indicates, first a provisional seniority list has to be prepared and thereafter, after considering the objections, if any, final seniority list has to be prepared. Thereafter, the cases of the applicants could be considered for appointment against the work charged post of Khalasi on regular basis based on their seniority without reference to the Scheme in Annexure R1(A) modified by Annexure R1(B).

Apparently, the respondent was engaged as a seasonal Khalasi and he got regular appointment with effect from 13.04.2005. The grievance of the respondent applicant before the Tribunal was, he was entitled for such regularisation on par with other similarly placed Khalasies right from 1997. However, the Tribunal in the present Original Application has considered the case of the respondent applicant only with effect from 01.08.2000, but rejected the claim from 1997. This claim of the respondent for regularisation with effect from 1997 was not challenged by the respondent applicant. The claim of the petitioners herein is, regularisation of applicant has to be in terms of the Scheme proposed by the Department. We cannot accept this stand of the petitioners for the simple reason that in the earlier round of litigation the seniority list had to be prepared and Khalasies have to be appointed against work charged posts without reference to any of the Scheme including the revised scheme. All these issues have reached finality as the Original Petition filed by the petitioners came to be dismissed.

The question is whether the respondent applicant was placed above the other juniors or not. As per the directions of the Tribunal dated 18.04.2000, a provisional list had to be prepared and after receiving objections, considering the same, a final list of seniority had to be prepared. Apparently, provisional and final list of seniority were prepared and that never came to be challenged by the respondent applicant herein. It happened subsequent to the order dated 18.04.2000. Regularisation of applicant was with effect from April 2005 and payment of increments and other benefits from 01.08.2000 as per the scheme. So far as the restriction not to refer to the scheme pertains to only regularisation but not payment of increment. Therefore, so far as Annexure A9 the applicant''s name finds place at Serial No. 4 and he is given all increments as per the revised scheme with effect from 01.08.2000.

So far as the regularisation as contended by the learned Assistant Solicitor General, the respondent was regularised only with effect from April 2005 as he reached eligible criterion only in the year 2005. It is also pertinent to mention that this order of regularisation in 2005 was never challenged claiming that he is entitled for regularisation from 1997. As already stated above his claim for 1997 regularisation came to be rejected in the earlier round of litigation and the department has followed the directions of Tribunal in so far as preparing the seniority list.

The reasoning of the Tribunal for considering retrospective regularisation of the applicant from 01.08.2000 is reflected at paragraph 4 which reads as under:

We have heard both sides. The applicant seeks regularisation with effect from 1997 which is clearly barred by law of limitation though he has been corresponding with the respondents by filing representations as contended by the counsel. It is settled law that mere sending representations after representations will not keep the cause of action alive once it is submitted out of time. But by Annexure A9 dated 17.02.2011 which is an office order the applicant had been given increment benefit with effect from 01.08.2000, second increment from 01.08.2002 and 3rd increment on 01.10.2004. If he was no entitled to regularisation retrospectively, with effect from 01.08.2000 the question of payment of increment does not arise. Therefore, even vide Annexure A9 the regularisation can be given to the applicant from 01.08.2000 as the department have themselves treated him as a regular employee giving increments with effect from 01.08.2000. Therefore, we declare that the applicant stands regularised with effect from 01.08.2000 the date on which he was given increment as per Annexure A9 and all service benefits will accrue to him accordingly.

As already stated above, the increments are given to the applicant as indicated at Annexure A9 in terms of the scheme and there is no restriction or prohibition or bar to apply the scheme so far as the increments. Only with regard to the regularisation there should not be any reference to the scheme. As a matter of fact, on a reading of the entire scheme no where it says how temporary or seasonal Khalasies have to be regularised. In that view of the matter, the regularisation cannot be in terms of the scheme at all, as there is no such procedure envisaged in the scheme. Reading of paragraph 4 of the order of CAT indicates reasoning why his regularisation has to be considered from 01.08.2000. This reasoning has no support either from the earlier directions of the Tribunal or the scheme. In that view of the matter, mere payment of increments from 01.08.2000 will not automatically entitle the applicant to get regular employee status with effect from 01.08.2000. So far as the other relief of working as Out Board Engine Driver (for short ''OBED''), the Tribunal has rejected the claim of the applicant and there is no challenge regarding the same.

In view of the above discussion and reasoning, we are of the opinion, the order of the Tribunal at Exts. P6 and P9 deserve to be set aside conferring the regularisation of the applicant with effect from 13.04.2005. The Original Petition is allowed as above.