Central Administrative Tribunal - Delhi
Shri Santan vs Union Of India Through The General ... on 1 May, 2014
Central Administrative Tribunal Principal Bench OA No.4525/2013 New Delhi, this the 1st Day of May, 2014 Honble Shri G. George Paracken, Member(J) Honble Shri P.K. Basu, Member(A) Shri Santan S/o Sh. Ashik R/o T-7/1,Railway Colony Kishanganj, New Delhi Working as Painter under SSE(Works) Northern Railway Baroda House New Delhi. ..Applicant (By advocate: Shri Yogesh Sharma) Vs.
1. Union of India through the General Manager Northern Railway, Baroda House New Delhi.
2. Divisional Railway Manager Northern Railway, State Entry Road New Delhi.
3. The Secretary Ministry of Railway, Govt. of India Railway Board, Rail Bhawan New Delhi. Respondents (By Advocate: Shri A.K. Srivastava and Shri Shailendra Tiwari) Order (Oral) Shri G. George Paracken, M(J) The applicant has filed this Original Application against the impugned Annexure A-1 order dated 02.01.2013 passed by the Respondents rejecting his request for counting the half casual service and full casual service with temporary status for the purpose of granting consequential benefits under the MACP Scheme, pensionary benefits etc.
2. The respondents have filed their reply opposing the claim of the applicant. However, it is seen that the issue in this case has already been settled by the Honble Supreme Court in SLP No. 20041/2008- Union of India & Ors. v. Sarju, wherein it has been held as under:-
We have heard learned counsel for the parties and perused the record. We have also gone through the judgment of this Court in Union of India and others vs. K.G. Radhakrishnan Panickar and others {(1998) 5 SCC 111}. In our view, the directions given by the Tribunal in the matter of counting of part service of the respondents for the purpose of calculation of the retrial benefits did not suffer from any legal infirmity and the High Court rightly declined to interfere with the same. The judgment of this Court in Union of India vs. K.G. Radhakrishan Panickar (supra) on which reliance has been placed by learned counsel for the petitioners is clearly distinguishable. In that case, the Court was called upon to consider whether the services rendered by the employees as Project Casual Labour can be treated as part of the qualifying service for the purpose of calculation of the retrial benefits and whether the cut off date fixed in the policy framed by the Railway Administration for counting half of the service rendered as Project Casual Labour was discriminatory and violative of Article 14 of the Constitution. After adverting to the relevant policy decisions, this Court held that the policy of the Railways does not suffer from any constitutional infirmity. That judgment has no bearing on the decision of the issue whether temporary service, which was followed by regularization should be counted as part of the qualifying service for the purpose of retrial benefits. As a matter of fact, if the respondents had prayed for counting half of the service rendered by them as Project Casual Labour as part of qualifying service, we may have examined the issue in detail and decided whether the said prayer should be granted. However as they did not challenge the orders of the Tribunal before the High Court, we refrain from expressing any opinion on the issue.
The special leave petitions are accordingly dismissed. The petitioners are directed to calculate the pension and other retrial benefits payable to the respondents keeping in view the directions given by the Tribunal and pay the arrears within next three months with interest at the rate of 12% from the dates of their retirement on attaining the age of superannuation.
A report showing compliance of this order shall be filed in the Registry of this Court within four months and the matter be posted before the Court in the 3rd week of February, 2012.
3. Based on the aforesaid judgment, this Tribunal has also passed Order in OA No.665/2011 Manash Sarkar v. General Manager, Northern Railway and Ors. The operative part of the said order reads as under:-
6. We have heard the learned counsel for the parties and have gone through the material placed on record. We are of the view that the controversy in issue is covered by the judgment of the Andhra Pradesh High Court in Shaik Abdul Khaders case (supra) as well as the judgment of the High Court of Delhi in Chander Pals case (supra) dated 28.1.2008. At this stage, it will be useful to quote the relevant portion of the judgment of the High Court of Delhi in the case of Chander Pal (supra), which has been passed based upon the judgment of the Andhra Pradesh High Court and thus reads:-
Learned counsel for the petitioner very fairly submits that one of the questions arising for consideration in these writ petitions is whether the service rendered by an employee with temporary status is to be counted for purposes of fixation of his pension and other benefits on his being regularized.
We may note that the Central Administrative Tribunal had answered this question in the affirmative relying upon the judgment of the Central Administrative Tribunal, Hyderabad passed in the case of Shaik Abdul Kahder Vs. Union of India. The writ petition filed in the High Court of Andhra Pradesh, had been dismissed and the SLP preferred by the Railways had also been dismissed as withdrawn. The petitioner had sought to contend that the SLP had been dismissed as withdrawn on humanitarian grounds. The Court had the occasion to consider this while disposing of writ petition bearing WP(C) No.631-33/2006 and noted that the order passed by the Supreme Court did not contain any such indication of the SLP being withdrawn on humanitarian grounds. Accordingly, the Review Petition filed being Review Petition No.360-2007 in WP(C) No.631-33/2006 was dismissed. Another Coordinate Bench of this Court, following the aforesaid writ petition, had dismissed WP(C) No.2528/2007. Mr. Dateer raises an objection that the claims of applicants before the Tribunal i.e., respondents in the writ petition are premature, as they have not yet retired. Ms. Meenu Maini, on the other hand, informs us that substantial number of applicants i.e., respondents in the writ petitions before us have already retired and others are at the verge of retirement. In these circumstances, the plea sought to be raised by learned counsel for the petitioners is wholly devoid of merit.
In these circumstances, following the aforesaid two judgments of the High court in the aforesaid two writ petitions being Review Petition No.360/2007 in WP(C)No.631-33/2006 and WP(C)No.2528/2007, the present writ petitions are also dismissed.
7. In view of what has been stated above, we are of the view that the applicant herein has made out a case for grant of relief. Accordingly, for parity of reasons given in the judgment of the Andhra Pradesh High Court in the matter of Shaik Abdul Khader (supra), this OA is allowed in the same terms. However, before parting with the matter, it may be observed that the learned counsel for applicant has drawn our attention to Railway Boards circular dated 25.2.2010 based upon another circular dated 4.12.2009, which stipulates that for the purpose of extension of the benefit of MACP Scheme, 50% of temporary status casual labour service on absorption in regular employment may be taken into account. Suffice it to observe that here we are not concerned with the extension of benefits of MACP Scheme but the case of the applicant is regarding taking into consideration the full period of temporary status for counting of qualifying service instead of 50% of the period for the purpose of pensionary benefits and not for the purpose of MACP Scheme.
8. For the foregoing reasons, the OA shall stand disposed of. No costs.
4. In view of the above position, this OA is allowed and the impugned order dated 02.01.2013 is quashed and set aside. Consequently, we direct the respondents to count the entire 100% temporary status casual service and 50% of casual service of the applicant as qualifying service for the purpose of granting the benefits under MACP, pensionary benefits etc. The respondents shall also pass appropriate orders implementing the aforesaid directions within a period of two months from the date of receipt of a copy of this order. There shall be no orders to costs.
(P.K. Basu) (G. George Paracken) Member(A) Member(J) /vb/