Central Administrative Tribunal - Allahabad
Radha Krishna vs Post Up Circle on 5 November, 2024
(Open Court)
Central Administrative Tribunal, Allahabad
Bench Allahabad
****
Original Application No.230/2024
This the 05th Day of Novemer, 2024.
Hon'ble Mr. Justice Rajiv Joshi, Member (J)
Radha Krishna aged about 61 years, son of Late Ram Swaroop,
Resident of Village and Post - Sakrawa, District -Farrukhabad.
........... Applicant
By Advocate: Shri Ashish Srivastava
Versus
1. Union of India through the Secretary, Ministry of Post,
Telecommunication and IT, Department of Post, New Delhi.
2. Director General (Post), Department of Post, New Delhi.
3. Chief Post Master General, UP Circle, Lucknow.
4. Post Master General, Kanpur Region, Kanpur.
5. Superintendent of Post Office, Fatehgarh Division, Farrukhabad.
.............. Respondents
By Advocate: Shri Chakrapani Vatsyayan
ORDER
Heard Shri Ashish Srivastava, learned counsel for the applicant and Shri Chakrapani Vatsyayan, learned counsel for the respondents.
2. At the very outset, the learned counsel for the applicant submitted that an identical issue has already been decided by this Tribunal in OA No. 522/2023 (Arun Kumar Tiwari vs. Union of India & Ors.), and he would be satisfied if a similar direction is issued in the present case.
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3. The applicant has filed the present Original Application on 01.03.2024, Under Section 19 of the Administrative Tribunals Act, 1985 seeking the following main relief(s) which is stated in Para- 8 of the OA:-
"i. This Hon'ble Tribunal may be pleased to direct the respondents to grant the applicant entire pensionary benefits including pension w.e.f. 01.02.2024.
ii. This Hon'ble Tribunal may be pleased to direct the respondents to allow the applicant pension and other post-retiral benefits on his retirement on 31.01.2024. The applicant may also allow the interest @ 12% per annum thereupon following the ratio of law laid down by this Hon'ble Court in catena of cases, affirmed by Hon'ble High Court and Hon'ble Supreme Court."
2. The brief facts of the case, as per the Original Application, are that the applicant was initially appointed as a Contingency Paid Chaukidar on 02.11.1982. He was granted temporary status on 29.11.1989 and was allowed the minimum pay and allowances admissible to regular Group D employees. The applicant retired from the post of Contingency Paid Chaukidar on 31.01.2024 upon reaching the age of superannuation i.e. 60 years.
3. It is stated in the Original Application that the appointment of Contingency Paid Chaukidars is regulated by Clause 154 of the "Manual for Pay and Allowances to the Officers of Postal & Telecommunication Department." Therefore, after retiring, the applicant filed a representation on 05.02.2024 seeking post-retirement benefits but received no response, leading to the filing of the present Original Application.
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4. The counter affidavit has been filed by the respondents on 15.07.2024, denying the applicant's claim. It is stated by the respondents' counsel that the applicant was engaged as a Contingency Paid Chaukidar at Sakrawa Sub Post Office in District Kannauj under Fatehpur Postal Division only for the payment of monthly allowances for his service. The applicant was given temporary status as a Group 'D' employee and was retired from service on 31.01.2024 upon reaching the age of superannuation.
5. It is also submitted by the respondents' counsel that the applicant declined promotions to the post of MTS (formerly Group-D Cadre) in 2012 and 2019, choosing to remain a Contingency Paid Chaukidar until his superannuation i.e. on 03.01.2024. Consequently, he is not entitled to pension and retirement benefits. After his superannuation, the applicant filed Original Application No. 230/2024 seeking these benefits by referring the OA No. 710/2012 (Narensh Chandra Prajapati vs. Union of India & Ors.), but the case of the applicant is different from the N.C. Prajapati's case because N.C. Prajapati was never offered a promotion unlike the applicant.
6. The learned counsel for the applicant has filed rejoinder affidavit denying the assertions made in the counter affidavit and reiterating the claims stated in the Original Application. In the rejoinder, the applicant has also submitted a copy of the order dated 26.07.2024 passed in OA No. 522/2023 (Arun Kumar Tiwari vs. Union of India & Ors.). The SUSHIL KUMAR SRIVASTAVA Page No.4 applicant states that as per the order dated 05.05.1991, a list of candidates was published granting temporary status with effect from 29.11.1989, in which the name of Shri Arun Kumar Tiwari appears immediately after the applicant's name. The applicant seeks the same benefits granted to Arun Kumar Tiwari, whose name was listed directly after his in the said list.
7. I have perused the rival submissions made by learned counsel for both parties and perused the pleadings as well as relied upon judgments/orders available on record.
8. The records show that the applicant was appointed as a Contingency Paid Chaukidar by letter dated 02.11.1982 and vide order dated 26.12.1991 issued by the Department of Posts Office of the Superintendent of Post Offices, Fatehgarh Division, Farrukhabad granting 'Temporary Status' to various employees, effective from 29.11.1989. In this list, the applicant's name appears just before the Arun Kumar Twari, who has filed OA No.522/2023 and the said OA was allowed vide order dated 26.07.2024. It is mentioned that he had been continuously serving since his appointment. Therefore, it is undisputed that 'Temporary Status' was granted to the applicant on 29.11.1989 and that he retired from service upon reaching superannuation on 31.01.2024.
9. It is argued by the learned counsel for the applicant that the issue has been settled by several decisions of CAT, High Court and the SUSHIL KUMAR SRIVASTAVA Page No.5 Hon'ble Supreme Court. If the temporary status has been granted then after 03 years the employee will deemed to be regularized. The applicant was receiving the all benefits of a regular employee of Group 'D' post, therefore, the respondents cannot deny the benefit of pension and the post retiral benefits.
10. From the perusal of the law, it appears that the controversy involved in this case has already been settled by various decisions of CAT, High Court and the Hon'ble Supreme Court etc.
11. Temporary status to the employees has been granted in pursuance of a Scheme known as Casual Labours (Grant of Temporary Status in Regularization) Scheme. The said Scheme was formulated by the Department of Post, Government of India vide communication dated 12.04.1991 issued by the Director General, Department of Post, New Delhi in compliance of the interim order dated 31.01.1989 passed in W.P. No.1276 of 1986 by the Supreme Court. The aforesaid writ petition was finally decided on 29.11.1989 along with two other writ petitions [Writ Petition No. 1276, 1623 and 1624 of 1986] in Jagrit Mazdoor Union (Regd.) &Ors. Vs. Mahanagar 5 Telephone Nigam Ltd. & Anr.,1989 SCR Supl (2) 329 = 1990 SCC Supl.113 = JT 1989 Supl. 364 = 1989 SCALE (2) 1455. Relevant paras of the order of the Supreme Court in the said writ petition are quoted here in under:-
SUSHIL KUMAR SRIVASTAVA Page No.6 "On 31.01.1989, when the Writ Petition No. 1276 of 1986 came up for hearing before this court, the following order was made :
'learned counsel for the petitioners concedes that the regularization of 21,000.00 employees in the Department of Telecommunications has been effected but complains that no such proceeding has taken place in respect of the postal employees. He states that there is pressing need for a parity of service conditions including pay, house rent allowance and other allowances between the temporary employees and the regular employees covered by this category. The learned Additional Solicitor General of India assures us that the scheme will be finalised latest by first week of April, 1989 and that complete position will be placed before the court at that stage...' The scheme known as "Casual Labourers(Grant of Temporary Status in Regularisation) Scheme" has been formulated and put into operation from 01/10/1989 and a copy thereof has been placed for our consideration. We find that the scheme is comprehensive and apart from provision for conferment of temporary status, it also specifies the benefits available on conferment of such status. Counsel for the respondent-Nigams have told us that the scheme will be given full effect and other benefits contemplated by the scheme shall be worked out. In these circumstances, no further specific direction is necessary in the two applications relating to the two Nigams of Bombay and Delhi except calling upon the respondents to implement every term of the scheme at an early date."
12. As noticed earlier the Supreme Court had approved a Scheme for casual labours namely (Grant of Temporary Status in Regularization) Scheme. The said Scheme was drawn up by the Postal Department in consultation with the Ministries of Law, Finance & Personnel. The Scheme provides inter alia 'temporary status' should be conferred on casual labours in employment as on 29.11.1989 and continued to be employed on the said date and have rendered continuous service of at least one year. If an employee get the temporary status he should be entitled for minimum of the pay scale SUSHIL KUMAR SRIVASTAVA Page No.7 for a regular Group D including DA/HRA and CCA. One of the important features of the Scheme which has relevance for the present controversy is that no recruitment from open market will be done till the casual labours were available to fill up the posts. The paragraph 17 of the Scheme is extracted hereunder below:-
"17. No recruitment from open market for group 'D' posts except compassionate appointments will be done till casual labourers with the requisite qualification are available to fill up the posts in question."
13. In the case of Union of India and others Vs. Shyam Lal Shukla, 2012(1) ADJ698 = 2011 AHC 175055 [DB] [Civil Misc. Writ Petition No.60272 of 2009 decided on 23.12.2011], temporary status was granted w.e.f. 29.11.2089. The O.A. No.1626 of 2005 was allowed on 28.07.2009 by a single bench of CAT Allahabad. The D.B. of Allahabad High Court dismissed the Writ petition filed against the aforesaid decision and said:-
"From the perusal of Rule 154 A of Manual it is manifestly clear that the Chowkidar, Sweeper, Malis, Khalassis who worked side by side with regular or with employees in Work Charge Establishment should be brought on regular Establishment and should be treated 'regular employees'. The Rule itself has used the word 'regular employee' without any reference to formal order of regularization. The Tribunal has relied on Rule 154 A of the Manual of appointment and allowances of the Officers of the Indian Post & Telegraphs Department. It is, undisputed fact that the respondent no.1 has worked and has received the payment from contingent fund w.e.f. 10.4.1982 to 26.11.1989 i.e. Seven Years Six Months and Nineteen days, thereafter from the consolidated fund of Central Government from 26.11.1989 to 29.11.1992 three years and then from 30.11.1992 till the date of retirement i.e. 30.6.2003 as temporary Government Employee of Group D, for ten years Seven months and One day. The total qualifying service for pension comes to 17 years, four months and 10 days.
It is admitted case that the respondent no.1 from his initial engagement i.e. 10.4.1982 till his date of superannuation i.e. 30.6.2003 SUSHIL KUMAR SRIVASTAVA Page No.8 has worked uninterruptedly and to the entire satisfaction of the Department as has been stated in the Counter Affidavit, Supplementary Counter Affidavit before the Tribunal and in the Writ Petition before this Court and there is no mention that the work of the respondent no.1 was unsatisfactory.
The Tribunal has also relied on the order of the Supreme Court in Special Leave to Appeal dated 13.1.1997 arising out of the Original Application No. 159/93 of Tribunal, in the case of (Ram Lakhan v. Union of India and others) as well as order dated 2nd September, 2005 in Original Application No. 917 of 2004, (Chandi Lal versus. Union of India and others). The aforesaid orders were on the record of the Tribunal as Annexure-AR-2 and AR-3 with affidavit filed on 26.8.2008 in similar facts.
In our view the said Rule clearly spells out its essential purpose, to give pensionary benefit to certain class of employees as 'regular employee', notwithstanding the fact that no formal order of regularization was passed."
14. The S.L.P. No. 12664/2012, against the aforesaid judgment was also dismissed by the Hon'ble Supreme Court on 06.08.2012 by saying:-
" Delay Condoned.
We find no merit in this petition for special leave to appeal. It is dismissed.".
15. In O.A No. 917/04 [Chandi Lal Vs. U.O.I and Ors.] decided on 2.9.2015 by CAT, Allahabad Bench, the applicant was working in the Department of Posts on work charge establishment w.e.f. 15.04.1982. He was granted temporary status w.e.f. 29.11.1989 and thereafter, he was brought on the pay scale of Group 'D' employees and also accorded service benefits admissible to the Group 'D' employee. Though no formal order of the regularisation was issued in the said case but the Tribunal held the applicant entitled to pension SUSHIL KUMAR SRIVASTAVA Page No.9 treating him a Group 'D' regular employee. The Writ Petition No. 11297/2006 filed against the said order was dismissed by Hon'ble Allahabad High Court vide order dated 02.03.2007 reported in 2007 AHC 2752 (DB) and Hon'ble Supreme Court also upheld the order of Tribunal and High Court vide order dated 03.03.2008 passed in SLP (Civil) No. 3248/2008. The Supreme Court dismissed the SLP not only on account of Delay but also on merits. The Supreme Court said:-
"There is an inordinate delay of 223 days in filing the present petition. The explanation offered in the application for condonation of delay is neither satisfactory nor reasonable. The application for condonation of delay is , therefore , dismissed.
Even on merits, we do not find any ground to interfere with the impunged judgment and order. Consequently the special Leave petition is dismissed both on ground of delay and merit."
16. The cases of Chandi Lal[Supra] and Shyam Lal Shukla[Supra] went up to the Hon'ble Supreme Court and it has been settled that such employees shall be deemed to have been regularized and consequently required to be treated as regular employees of the respondents' department and consequently, they are entitled to all pensionary benefits.
17. The aforesaid both judgments have been followed by Allahabad High Court in:-
"(1) Writ petition No. 68773 of 2014 decided on 10.02.2015.
(2) Judgment dated 11.01.2018 passed by D.B. of Allahabad High Court in Writ-A No. 75830 of 2010 [U.O.I. Vs. Krishna Pal Singh] and 4 connected writ Petitions.
SUSHIL KUMAR SRIVASTAVA Page No.10 (3) Union of India Vs. Heera Lal and Another, Writ-A No. 10505 of 2023 [Neutral citation No. 2023:AHC 228061 -DB] Allahabad High Court."
18. By following the aforesaid cases of Shyamlal (Supra) and Chandilal (Supra), this Tribunal also passed the order in:-
(1) Bacchu Lal Vs. U.O.I.etc., O.A. No. 1035 of 2021 decided on 08.02.2023, (2) Zamaluddin Vs. U.O.I.,etc., O.A. No. 1266 of 2011 decided on 07.04.2016, and, (3) Lalmani Devi Vs. U.O.I.etc., O.A. No. 474 of 2020 decided on 31.08.2023.
(4) Rasheed and another Vs. U.O.I. etc., O.A. No. 1073 of 2015 decided on 18.07.2023.
19. Recently vide order dated 01.12.2023 the Division Bench of Allahabad High Court in Writ (A) Petition No.10505/2023 (Union of India & Ors. vs. Heera Lal & Anrs.) has also taken a similar view and held that:-
"We are also mindful of the fact that no such exercise is required to be made in the present facts as the respondent and others are individual citizens, pitted against the almighty State that too none other than the Union of India. A citizen who has given all his productive life to Union of India, may not be out witted on legal niceties and procedural technicalities at the behest of the Union of India. The respondent has no option available to survive in life or to do anything other than what he did for more than 30 years i.e. to serve the Union of India. His productive years are lost. Accordingly, interference is declined. Writ petition is accordingly dismissed. No order as to costs.
38. Let all pensionary dues be computed and paid out to the respondent within next three months, in any case not later than 31.03.2024, failing which the same may attract interest @ 6 % per annum."
20. In the present case, the applicant was granted 'temporary status' w.e.f. 29.11.1989. According to the aforesaid legal position, he will be SUSHIL KUMAR SRIVASTAVA Page No.11 treated as a 'regular employee from the date 29.11.1989'. He superannuated w.e.f. 31.12.2022. Therefore, after retirement, he is entitled to pensionary benefits.
21. Therefore, after consideration, the OA is allowed. The respondents are directed to ensure the payment of pension and other post-retiral benefits to the applicant due, treating him as a regular appointee in Group 'D' employee with all consequential benefits, within the next three months, from the date of receipt of certified copy of this order. Upon failure, the respondents will also be liable to pay the interest @6% per annum to the applicant from the date of this order till the date of actual payment of the amount.
22. The respondents are further directed to ensure the regular monthly pension to the applicant.
23. There shall be no order as to costs.
All pending M.As (Miscellaneous Applications), if any, are considered disposed of. The registry will take the necessary steps to remove the M.As.
(Justice Rajiv Joshi) Member (J) Sushil SUSHIL KUMAR SRIVASTAVA