Vasudev vs Union Of India & Ors

Dr. S. Muralidhar, J

This petition challenges an order dated 1st November, 2017 passed by the Central Administrative Tribunal, Principal Bench, New Delhi

(“CATâ€), dismissing the Petitionerâ€s OA No. 349/2016, whereby he had sought the relief of a declaration that the Clause/Condition No. 17 of

the Office Memorandum (“OMâ€) dated 18th November, 2014 was arbitrary and illegal. He also sought for a direction to the Respondents to grant

pension to him as per the provisions of the CCS (Pension) Rules, 1972 (“CCS Pension Rulesâ€), along with all consequential benefits, by

accounting for the services rendered by him from 4th February, 1985 onwards.

The short question that arises for the consideration of this Court is whether the Petitioner is entitled to be regularised with effect from the date of

the filing of his earlier OA No. 2410/1997 which was allowed by the CAT on 17th August, 1998 directing the Respondents to consider the prayer of

the Petitioner for regularisation in the post of Mason, in the Central Public Works Department (“CPWDâ€). The said order was affirmed by this

Court on 15th July, 2010 dismissing the Respondentâ€​s W.P.(C) No. 5107/1999.

The background facts are that the Petitioner was engaged as a Mason on hand receipt/muster roll basis in the CPWD with effect from 4th

February, 1985. He was to be conferred temporary status under the casual workerâ€​s scheme of 1993 with effect from 1st September, 1993, and was

not given the status of a regular employee.

The Petitioner had earlier filed OA No. 2410/1997 before the CAT seeking regularisation which as noticed hereinabove was allowed, directing the

Respondent to consider his claim for regularisation from the date he had completed 240 days of continuous service on casual and work charge basis.

Against the aforesaid order, Review Application No. 256/1998 was filed by the Respondents, which was dismissed by the CAT by an order dated

12th May, 1999.

Thereafter, the Respondents preferred W.P.(C) No. 5107/1999, which was dismissed by this Court on 15th July, 2010. The operative portion of the

said order reads as under:

“We are thus of the considered view that though the respondent may have failed the trade test but the lethargy of the petitioners to bring it to the

notice of the CAT and also in view of the fact that we are still not being informed about the current status of the respondent, the respondent? case for

regularization be considered sympathetically as per the rules and necessary action be taken by the petitioners within three months from today, if the

respondent still continues to work with them as a casual worker. In case, he is already regularized and is being paid the salary of a permanent worker

from the date of regularization, no further directions are called for.

The impugned order is accordingly modified to the aforesaid extent and the writ petition is disposed of in the aforesaid terms, leaving the parties to

bear their own costs.â€​

Thereafter, on 18th November, 2014 the impugned order was issued by the Deputy Director (Coordinator) Northern Area, CPWD granting

regularisation to the Petitioner but with effect from 11th December, 2006. Clause 17 of this order stated that the Petitioner would be governed under

the New Pension Scheme (“NPSâ€) which had been notified on 22nd December, 2003 by the Ministry of Finance (“MoFâ€), Government of

India.

The Petitioner first made a representation on 18th February, 2015 to the Respondents pointing out that this condition was discriminatory. He further

pointed out that colleagues of his who were similarly situated had been given the benefit of Old Pension Scheme (“OPSâ€), by treating their

services rendered “as casual/hand receipt/temporary and regular employees.†When this representation was rejected by an order dated 7th

November, 2015, the Petitioner for the second time filed OA No. 349/2016 before the CAT assailing the denial of the applicability of the OPS to him.

He also sought for a direction to the Respondents to grant him pension in terms of the CCS Pension Rules, with all consequential benefits, giving him

the benefit of services rendered by him with effect from 4th February, 1985.

By the impugned order dated 1st November, 2017, the CAT dismissed the Petitionerâ€s OA on the ground that he was not granted temporary

status as he had never applied for it. It was further held that “there is no OM or circular of the Government which provides that if regularisation is

taken place after 2004, the regularised employees would be entitled to the benefit of the Old Pension Scheme except in cases where the casual

labourer was covered under the Scheme of September, 1993.†The CAT then examined the 1993 scheme and held that the process of regularisation

under the scheme is “a follow up process after grant of temporary statusâ€. It was then held that since the Petitioner was never granted temporary

status, he could not be covered under the OPS even if he had been regularized on or after 1st January, 2004. For all the above reasons, the CAT

rejected the prayer of the Petitioner.

This Court has heard the submissions of Mr. Tripurari Ray, learned counsel for the Petitioner and Mr. Sandeep Mahapatra, learned counsel for the

Respondents.

In response to the query as to why the date of regularization of the Petitioner was chosen by the Respondents as 11th December, 2006, the only

explanation offered by the counsel for the Respondent was that till 10th December, 2006, the Petitioner was engaged on hand receipt basis. This

further raises the question as to why despite the order dated 17th August, 1998 of CAT, which was affirmed by the Supreme Court, the Petitioner

was not regularised earlier and continued to be engaged on a hand receipt basis. Learned counsel for the Respondent then sought more time for

instructions.

The Court is not inclined to grant any further time for the simple reason that the Petitioner has been agitating the issue of his regularisation for the

past 23 years. In fact, more than three decades have elapsed since he was first engaged on casual basis by the Respondents as a Mason with effect

from 4th February, 1985. The Petitioner has had to litigate twice for this simple relief of regularization, and has been made to wait for more than 23

years for the same. Clearly, no further delay can be countenanced.

The facts in this case are abundantly clear. The Petitioner did seek, and was granted the relief of regularization way back by the CAT on 17th

August, 1998. Even if the Petitioner had not prayed for grant of temporary status, the scheme framed by the Respondents in September, 1993

envisaged the grant of such status to everyone fulfilling the requirements without waiting for a formal application from such person. In any event, once

the Petitioner was granted regularization, the question as to whether he should have been granted temporary status to being with, was no longer

relevant. The only question that became relevant was the date from which he should be regularised.

Undoubtedly, in terms of the 1993 Scheme what was envisaged was the grant of temporary status followed by regularization. However, once

regularization itself is granted, the fact that the same person was not granted earlier temporary status cannot obviously be put forth to deny him the

benefits flowing from regularisation.

The only question therefore, which had to be considered by the CAT was regarding the effective date of regularization of the Petitioner and why it

was arbitrarily determined by the Respondents as 11th December, 2006.

The Court has carefully examined the reply filed by the Respondents in OA No. 349/2016. One of the documents enclosed with the said counter

affidavit is a communication dated 29th September 2016 by the Directorate General, CPWD to all the SDGs of CPWD in which inter alia, attention

was drawn to an OM dated 11th December, 2006 of the Department of Personnel and Training (“DoPTâ€) which states that “in accordance

with casual workers unit 10 years or more service in duly sanctioned posts are required to be regularizedâ€. It appears that the decision to regularise

the Petitioner was perhaps taken pursuant to said OM and, therefore, the date of his regularisation was also fixed accordingly.

The Court is of the considered view that the approach of the Respondents in granting regularization only from the date of the OM was totally

flawed, as the entire service put in by the Petitioner till that date stood completely ignored, which was definitely not the purpose of the OM.

The perusal of the OM itself reveals that it was made pursuant to the observations of the Supreme Court dated 10th April, 2006 in Secretary, State

of Karnataka v. Uma Devi (2006) 4 SCC 1. What was lost sight of by the Respondents was that long prior to the said scheme put in place by the

afore-mentioned OM, there was already a 1993 scheme of the Respondents themselves which envisaged a two-step process. The first was the grant

of temporary status followed by regularization. As already noticed, it did not require the Petitioner to apply for the grant of temporary status and then

seek regularisation. It is incumbent upon the Respondents themselves to consider his case for those benefits irrespective of whether he had prayed for

it or not. In any event having failed in the challenge to the order of the CAT requiring him to be regularised, the Respondents were bound to implement

the 1993 scheme vis-a-vis the Petitioner and grant him the regularization.

Therefore, the date of 11th December, 2006, being the date from which the Petitionerâ€s service was regularised, is an arbitrary date and in the

teeth of the 1993 scheme of the Respondents, and therefore, cannot be accepted.

The Court, therefore, disagrees with the CAT that since the Petitioner had not applied for grant of temporary status, he could not have been

considered for regularization under the 1993 scheme and thus could not insist on being covered by the OPS.

In the view of the above, it is held by this Court that the effective date of the Petitionerâ€s regularisation should date back to the date of his

application made before the CAT that is the date of filing of OA No. 2410/1997. The Court further notes that under the 1993 Scheme, the date of the

Petitionerâ€s grant of temporary status would relate to 1st September, 1993 itself since by that time the Petitioner had completed at least 240 days of

service on a continuous basis. This period from 1st September, 1993 onwards, would therefore, also accrue to the benefit of the Petitioner for

determining his pension and other retiral benefits.

In that view of the matter, the Court sets aside the impugned order dated 1st November 2017 of the CAT and modifies the order dated 18th

November, 2014, thereby granting regularization to the Petitioner with effect from the date of his filing OA No. 2410/1997 (8th October, 1997) and

temporary status to the Petitioner with effect from 1st September, 1993.

The consequential orders will now be issued not later than a period of 12 weeks and the arrears be paid to the Petitioner together with interest @

6% per annum from the date that the arrears of pension were due to the Petitioner. If there is a delay in complying with the above time bound

directions, the Respondents would be liable to pay simple interest @ 9% per annum for the period of delay.

The petition is allowed in above terms. No orders as to costs.