Central Administrative Tribunal - Cuttack
Purna Chandra Pradhan vs D/O Post on 30 April, 2024
1 O.A.No. 260/00316 & 514 of 2020
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00316 & 514 of 2020
Reserved on 09.04.2024 Pronounced on 30.04.2024
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
O.A.No. 260/00316 of 2020
Purna Chandra Pradhan, aged about 61 Years, S/O-
Bansidhar Pradhan, At -Dalasusa, Po- Saragan, Via-
Sunhat, Dist- Balasore, PIN-756002 Retired SPM,
(Group-C) Remuna SO. At/Po-Remuna, Dist-
Balasore, PIN-756019.
......Applicant
VERSUS
1. Union of India represented through it's Secretary to
Govt. Of India, Dak Bhawan, New Delhi-110001.
[
2. The Chief PMG, Odisha Circle, At/Po-Bhubaneswar
GPO-751001, Dist-Khurda. (Odisha)
3. The SPOs, Balasore Division, At/PO/Dist-Balasore-
756001. (Odisha)
......Respondents
For the applicant : Mr. T.Rath, Counsel
For the respondents: Ms. S.B.Das, Counsel
O.A.No. 260/00514 of 2020
Brusava Sa, aged about 59 Years, S/O- Late Mucha
Sa, At-Tandamunda, PO- Atgaon, Via-Rajendra
College, Dist. Bolangir, at present working as APM
2 O.A.No. 260/00316 & 514 of 2020
(SB), Bolangir HO, (Gr.-C Employee), Bolangir
Division, PIN- 767001.
......Applicant
VERSUS
1. Union of India represented through it's Secretary to
Govt. Of India, Dak Bhawan, New Delhi-110001.
2. The Chief PMG, Odisha Circle, At/Po-Bhubaneswar
GPO-751001, Dist-Khurda. (Odisha)
3. The SPOs, Bolangir Division, At/PO/Dist-Bolangir-
757001. (Odisha)
......Respondents
For the applicant : Mr. T.Rath, Counsel
For the respondents: Mr. G.R.Verma, Counsel
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
Since common question of facts and law are involved in both the O.A.Nos. 260/00316 & 514 of 2020, both the OAs were heard analogously and this common order will govern both the cases. For the sake of brevity, facts of OA No. 316/2020 are delineated hereunder.
2. Uncontrovertibly, the Reserved Trained Pool was set up in October 1980 under circular bearing 60/36/80-SPB I dated 30.10.1980 issued by the office of the Director General, Indian Posts & Telegraphs 3 O.A.No. 260/00316 & 514 of 2020 Department, for constitution of a standing pool of trained reserved candidates for Post and RMS offices. The circular set out that in many operative offices the smooth flow of work was hampered by shortage of staff due to absenteeism and other cause. Meeting this shortage with overtime arrangements was not always a satisfactory solution. Hence it was decided that a standing pool of trained reserve candidates (hereinafter referred to as RTPs) should be formed in each recruiting unit to meet these short-time needs and recurrent needs. The scheme was made applicable the cadres of Postal Assistants and Sorting Assistants. As per existing practice, at the time of each recruitment, after the select list was drawn up, an additional list of candidates known as Part `B' or part II list was being prepared by each recruiting unit. The candidate in part `B' list were called up against drop-outs from the main list. They were imparted training only after they were brought to the main list. It was now proposed under the new scheme that after the main list is drawn up, a specific additional reserve list of candidates equal in number to 50% of the number of candidates in the main select list will be drawn up. The candidates in the reserve list will also be imparted training like the candidates in the main list. The candidates in the reserve list will constitute a standing pool of trained 4 O.A.No. 260/00316 & 514 of 2020 reserve. They will be absorbed in regular vacancies in their turn after the candidates in the main list are absorbed. Till then they will be used as short duty staff against vacancies due to absenteeism or any other reason. Besides, they will be used for handling peak hour work. Since the purpose of having them as short duty staff is to minimize staff shortages, they may be called for engagement depending upon their ready and easy availability on demand and not necessarily in the order of their position in the reserved list. Their eventual absorption, however, will be in the order of their merit. They may be employed according to needs but subject to a maximum of eight hours a day. They will be paid on hourly rates of wages. Clause 5 of the circular provides for the manner of absorption. It says that reserved candidate are recruited as a stand-by over and above the vacancies announced at the time of recruitment. The surplus recruited candidates will be given priority of absorption against vacancies for subsequent recruitment in the manner which is set out in that clause. This scheme was in operation from the date of the circular till 04.03.1986 when the scheme was abolished. The initial creation of reserved pool was on the basis of 50% of the notified vacancies. In 1982, the percentage of reserved pool 5 O.A.No. 260/00316 & 514 of 2020 was reduced to 15% of the notified vacancies. The entire scheme was abolished with effect from 04.03.1986.
3. The case of the applicant, Sri Purna Chandra Pradhan, is that on 06.10.1983 he was provisionally selected as RTP candidate to perform short term work of postal department in Balasore Division. Thereafter, on 10.10.1983, he was sent for theoretical training at Postal Training Centre, Darbhanga from 10.10.1983 to 23.12.1983 and practical training at Motigunj from 30.12.1983 for a period of 15 days. After completion of training, on 20.06.1984 he joined on short term duty at Balasore HO and was worked there till 26.02.1988. With effect from 27.02.1988, he was appointed as Temporary Postal Assistant in the pay scale of Rs. 975-1660/- at Balasore HO. On 03.06.2004, he was granted one time bound promotion (TBOP) counting the period from his date of temporary appointment, i.e. w.e.f. 27.02.1988. On 01.09.2008, he was conferred second financial upgradation under MACP. On 26.09.2018, he represented to regularize the service from the date of his initial engagement as RTP for the purpose of promotion. On 18.05.2020, the CPMG (O) rejected his representation, which was communicated to him vide letter dated 26.05.2020. It is alleged that since non-counting the period from the date of his initial engagement 6 O.A.No. 260/00316 & 514 of 2020 as RTP and rejection of his representation being bad in law, he approached this Tribunal in the present OA filed on 01.08.2020. The prayer of the applicant in this OA is as under:
"(a) To set aside the order of CPMG (O) & SPOs, Balasore Division bearing No- ST/46-20/RTP/2018 dated 18.05.2020 & No- B-391/Ch-l dated 26.05.2020 respectively.
(b) To direct the respondents to extend the benefit of regularization of his RTP period for the purpose of Increment and Pay fixation as has been granted to similarly situated applicants by virtue of common order of Hon'ble CAT, Hyderabad bench and other benches.
(c) To direct the respondents to re-fix the date of financial Upgradation of TBOP & MACP of the applicant taking in consideration of period of RTP services.
(d) And pass appropriate orders as may be deemed fit and proper in the facts and circumstances of the case with costs."
4. By filing MA No. 385/2020, the applicant has prayed for condonation of delay in approaching this Tribunal.
5. The Respondents have filed reply to the MA objecting the prayer for condonation of delay and counter to the OA contesting the case of the applicant on merit. The applicant has also filed rejoinder to the counter trying to justify grant of relief claimed in the OA.
6. Arguments were heard and documents were perused.
7 O.A.No. 260/00316 & 514 of 2020
7. According to the respondents, the department introduced a Scheme known as Reserved Trained Pool (RTP) in the year 1980 as per which a panel of such persons was ordered to be retained, who could not be covered under the number of vacancy declared for regular vacancies of Postal Assistant and Sorting Assistant to be detailed on duty on wages to be paid on hourly basis to meet the short term needs and current needs with further condition that the RTP personnel were to be given priority for absorption against subsequent vacancies. In the year 1983, the RTP personnel were given an option to opt for serving Army Postal Services (APS). Such persons, who opted so were appointed as PA/SA on ad hoc basis and deputed to APS. The said RTP candidates deputed to APS were directed to be entitled to get the benefit of regular appointment in civil post from the date their immediate junior was appointed on regular basis in civil post. The said RTP Scheme was abolished w.e.f. 04.03.1986. The applicant being aware of the terms and conditions, remuneration, nature of work etc. laid down in RTP Scheme, accepted the offer unhesitatingly and joined in induction training in RTP on 10.10.1983. He was appointment as Postal Assistant on 27.02.1988. The contention of Ld. Counsel for the 8 O.A.No. 260/00316 & 514 of 2020 respondents is that the OA is not maintainable at this belated stage, i.e. after more than three decades.
7.1 According to Ld. Counsel for the respondents, the prayer of the applicant for his absorption in Postal Assistant to be counted from the date of his joining in RTP is also not permissible as per the order of the Hon'ble Apex Court in the case of UOI & Anr. Vs. K.N.Sivados and others, CA No. 80-123 of 1996. The Postal Directorate vide letter No. 44-1/2011-SPB-II dated 12.04.2012 (R/2) has taken the decision that the service rendered under RTP Scheme by the personnel prior to their regular appointment as PA/SA cannot be counted for promotion, seniority and grant of MACP. They have further relied on the decision of the Hon'ble High Court of Judicature at Patna, Civil Writ Jurisdiction Case No. 5265 of 2011, Bipin Bihari Dutta Vs. UOI & Ors., where the Hon'ble High Court taking note of the decision of K.N.Sivadas (supra) decided that the issue is not dependent upon the number of days a casual labouer worked in the RTP Scheme, but upon the right flowing from such a scheme and no right will accrue for counting RTP service as regular service in a substantive post.
7.2 Ld. Counsel for the applicant, on the other hand, submits that the case of K.N.Sivadas (supra) is not applicable to the instant case. Ld. 9 O.A.No. 260/00316 & 514 of 2020 Counsel for the applicant, by virtue of the interim order passed by the Hon'ble High Court of AP & Telengana in WP MP No. 21403 in WP No. 17400/2016 and others, submits that the postal directorate extended the benefit of counting the RTP period service as qualifying service for the purpose of all consequential benefits including grant of financial upgradation under TBOP, MACP etc. to the applicants therein, which has been executed vide order under Annexure-A/9 and, hence, the present applicants, being similarly situated, should also be granted the similar benefits.
8. Similarly situated candidates, who were recruited under RTP Scheme and subsequently on availability of vacancies were absorbed approached before the CAT, Ernakulam and CAT, Hyderabad Bench of this Tribunal seeking declaration that on completion of one year of such service, they are deemed to have attained temporary status and regularization counting the entire period for granting them the service benefits. The Tribunal allowed their claim. The respondents department challenged the orders before the Hon'ble Apex Court. The Hon'ble Apex Court set aside the orders of the Tribunal and held that any service, which was rendered prior to regular appointment in the cadre by the RTP workers, cannot be counted for the purpose of the 10 O.A.No. 260/00316 & 514 of 2020 said rule because it cannot be considered as service in any eligible cadre. The Tribunal was, therefore, wrong in granting to RTPs the benefit of service rendered by them prior to their regular appointment. [Union of India & Anr. vs K.N. Sivadas & Ors, AIR 1997 SC 3100 = 1997 SCC (L&S) 1592]. The Hon'ble High Court of Patna in the case of Bipin Bihari Dutta (supra) relying on the decision of K.N.Sivadas (supra) have held that no right will accrue for counting RTP service as regular service in a substantive post.
9. In our considered view, definitely the applicant has approached this Tribunal belatedly after a long lapse of time of more than three decades. The applicant was inducted training in RTP on 10.10.1983 and, thereafter, he was appointed as Temporary Postal Assistant in the scale of pay of Rs. 975-25-1150-EB-30-1660 on 27.02.1988 without any demur or protest, knowing the terms and conditions, remuneration, nature of work etc. laid down in RTP Scheme accepted the offer of appointment under RTP Scheme. Agitating the matter at this distant point of time, will definitely unsettled a settled proposition. Further, the applicant was provisionally selected as RTP candidate on 06.10.1983 to perform short duty of Postal Assistant in Balasore 11 O.A.No. 260/00316 & 514 of 2020 Division and, consequently, underwent theoretical training on 10.10.1983. Similar claim to that of the present applicant to extend the benefit of regularization of his RTP period for the purpose of increment and pay fixation has already been considered and rejected by the Hon'ble Apex Court in the case of K.N. Sivadas (supra). 9.1 No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the laches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum. 9.2 The applicant in this OA claims to extend the benefit of regularization of his RTP period for the purpose of increment and pay fixation. In such an event, the applicants' position of seniority in the grade where he was appointed would obviously go above the persons in the seniority list but none of the persons who would be affected in such an event has been made party in this OA. The applicant, as it appears, has asked the benefits in an indirect manner, which he is not entitled to directly, which is impermissible in law. In the instant OA, the applicant was well aware of the terms and conditions laid down in RTP scheme and they accepted such offer unhesitantly. The Directorate 12 O.A.No. 260/00316 & 514 of 2020 while conveying approval for implementation of interim order dated 10.03.2017 of Hon'ble High Court of AP & Telengana had directed that implementation of above said order should not be treated as precedent in other cases." And Directorate vide letter dated 28.02.2019 (Annexure R/3) had intimated that "it was decided to implement the interim order dated 10.03.2017 of Hon'ble Court of AP and Telengana in WP MP No. 21403 of 2016 in WP no. 17400 of 2016 and WP MP no. 21429 of 2016 in WP No. 17425 of 2016 to case specific." The respondents submitted that the benefits claimed by the applicants relate to their service rendered in the capacity of reserved trained pool (RTP) Postal Assistant during the year from 1983 and the claim for such benefit by the applicant is barred by limitation. The applicants never claimed for fixation of their seniority in PA cadre from the date of joining as RPT i.e. on 09.08.1983 nor approached the court of law when cause of action arose rather approaches this Tribunal in 2020. The applicant had accepted all their promotions/financial upgradation without raising any objections at that time. The respondents further submitted that Hon'ble High Court of Orissa in judgment dated 24.07.2018 (Annexure R/4) in WP (C) No. 7015 of 2017 rejected the belated claims of the applicants concerned maintaining the settled 13 O.A.No. 260/00316 & 514 of 2020 principle that the person who did not challenge the wrongful action in their cases and acquiesced into same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
9.3 Where there exist conflicting views and how to deal with such a dilemma was dealt with by a Full Bench of CAT (Principal Bench) in OA No.555/2001 in (Dr. A.K.Dawar v/s. Union of India & Ors.). In the said case, the Principal Bench was considering the situation arising out of conflicting decision of the Hon'ble High Court, after referring to the decision in M/s. East India Commercial Company Ltd., Calcutta & Anr. V/s. Collector of Customs, Calcutta (AIR 1962 SC 1893), State of Orissa V/s. Bhagaban Sarangi, 1995 (1) SCC 399, IPCL & Anr. V/s. Sharmik Sena {(2001) 7 SCC 469}, Director General (I&R) V/s. Holy Angel Schools {1998 CTJ 129 (MRTPC)}, it is held as under :
" xxxxxxxx
14 O.A.No. 260/00316 & 514 of 2020
17. Consequently, we hold:
That if there is a judgment of the Hon'ble High Court on the point having territorial jurisdiction over this Tribunal, it would be binding;
xxx xxx xxx"
OA No. 514/2020: In this case, the applicant was provisionally selected as Reserved Trained Pool candidate to perform short duty of Postal Assistant in the Balangir Division on 14.03.1984. On 28.05.1984, he joined as short duty staff under RTP scheme at Bolangir HO and worked their till 24.07.1985. On 25.07.1985, he was appointed as Temporary Postal Assistant. He made representation on 24.04.2019 to regularize his RTP period of service including the induction training as regular service for the purpose of promotion, which has been rejected vide order dated 09.07.2019. Accordingly, he has filed this OA to set aside the rejection order dated 09.07.2019 and to extend the benefit of regularization of his RTP period for the purpose of increment and pay fixation as has been granted to similarly situated applicants by virtue of common order of Hon'ble CAT, Hyderabad Bench and other benches with further direction to re-fix his date of financial upgradation of TBOP & MACP taking in consideration of period of RTP services. He has filed MA 643/2020 seeking condonation of delay in filing this OA. 15 O.A.No. 260/00316 & 514 of 2020
10. In view of the facts and law discussed above, we refrain from expressing any opinion on the merit of the matter since these two OAs suffer from delay and laches. Accordingly, MA Nos. 385/2020 and 643/2020 filed in OA Nos. 316/2020 and 514/2020 respectively are dismissed. Consequently, both the OA Nos. 316/2020 and 514/2020 fails. Parties to bear their own costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS