Union of India (UOI) vs Sh. Wilson Massey and Others

Anil Kumar, J.—The petitioner has challenged the order dated 30th July, 2009 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in O.A No. 218/2009 titled as Sh. Wilson Massey and Anr. v. Director General of Works and Ors. holding that the action of the petitioner regularizing prospectively the services of the respondents cannot be found faulty within law, however, that will not preclude the petitioner from operating and regulating the erstwhile period for the purpose of qualifying service under the provisions of CCS (Pension) Rules, 1972.

The respondents were continuously working with the petitioner without any break since 1988. Respondents contended that the juniors to them namely Sh. V.S. Rawat and Gurdeep Singh had been regularized. The respondents, therefore, filed an O.A. No. 309/2005 which was allowed by the order dated 4th April, 2006. According to respondents, the petitioners were directed to reconsider the regularization of the respondent by passing a detailed order.

No appeal was filed by the petitioner against the said order, however, the order was not implemented and consequently, the respondent filed a M.A. No. 166/2008. In reply to the M.A filed, it was submitted by the petitioners that they had reconsidered the case of the respondents and had passed a detailed office order dated 16th June, 2006 holding that the regularization of the respondents could not be considered as no vacancy existed for accommodating the respondents and no persons junior to the respondent had been regularized as per the decisions of the Supreme Court reported in Secretary, State of Karnataka and Others Vs. Umadevi and Others, .

Aggrieved by the order dated 16th June, 2006 the respondents filed O.A. No. 218/2009 titled Wilson Massey and Anr. v. Director General of Works and sought setting aside of office order dated 16th June, 2006 and directions to the petitioners for grant of regularization to the respondent.

The Tribunal relying on the decision in Shiela Rani v. Union of India and Ors. decided by the Apex Court in C.A. No. 5666/2006 holding that the regularization should not upset the seniority of regular appointees and must take into prospectively, has held that though the respondents are entitled for regularization, however, they could be regularized only prospectively. The Tribunal has also held that the decision of the petitioners, not to regularize respondent retrospectively cannot be faulted. The Tribunal, however, relying on G.M. South Central Railway Nilayam, Secunderabad, A.P. and Anr. v. Sheik Abdul Khader 2004(4) ATJ (SC) 23 holding that in the matter of reckoning qualifying service of casual workers later on regularized, full service from temporary status till regularization is done, has to be reckoned as qualifying service for pension. In the order dated 30th July, 2009 impugned before us, it has been held that petitioners will not be precluded from operating and regulating the erstwhile period for the purpose of qualifying service under the provisions of CCS (Pension) Rules, 1972.

The learned Counsel for the petitioner has very emphatically contended that the relief regarding the qualifying service under the provisions of CCS (Pension) Rules, 1972 was not sought by the respondent and in the circumstances the said relief could not be granted to the respondents and consequently the Tribunal has committed an irregularity.

This cannot be disputed that the dispute before the Tribunal was whether the respondents are entitled for regularization from their initial date of appointment or prospectively when the respondents were regularized. Relying on the decision of Shiela Rani�s case where the Apex Court had held that regularization should not upset the seniority of regular appointees and must take effect prospectively, the decision dated 16th June, 2006 has been upheld. Whether this period that is when the respondents were temporarily employed till they were regularized was also material and had to be adjudicated by the Tribunal and in the circumstances relying on G.M. South Central Railway Nilayam, Secunderabad, A.P (Supra) if it has been held that the erstwhile period for the purpose of qualifying service under the provisions of CCS (Pension) Rules, 1972 shall be taken into consideration, it cannot be held that it was not a dispute before the Tribunal and should not have been so held by the Tribunal.

The learned Counsel for the petitioner has not been able to show any other precedent that for the purpose of pension for the qualifying service, the time spent by the respondents is not to be counted nor the petitioners counsel has been able to show that the ratio laid down in G.M. South Central Railway Nilayam, Secunderabad, A.P (Supra) is not applicable in the present facts and circumstances. In the circumstances, this Court does not find any such irregularity and illegality in the order of the Tribunal which should require any interference by this Court. The writ petition in the facts and circumstances is without any merit and it is, therefore, dismissed.