Central Administrative Tribunal - Chandigarh
No Jc-105964-N Subedar Bhag ... vs Union Of India on 11 April, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
O.A.NO. 1112/PB/2011 Date of order:----April 11, 2014.
Coram: Honble Mr. Sanjeev Kaushik, Member (J)
Honble Mr. Uday Kumar Varma, Member (A).
1. NO JC-105964-N Subedar Bhag Singh(Retd.), r/o # NO. 178/5, Adarsh Nagar, DERA BASSI-Distt. Mohali (PB).
2.NO-JC 54148 W Subedar (APS) M.L.Mehta (Retd.), r/o # NO-EG-1031, Mohalla Govind Garh, JALLANDJHAR City (PB).
3.NO-JC 162687 M Subedar Tirath Ram(Retd.), r/o # No.56, Tower Enclave, Phase I, Near Wadala Chawk, Nakodar Road, Jullundhar City(PB).
4. No-JC 55767 M Sub Maj MOhinder Singh (Retd.) age 75 yrs. r/o House at V&PO Virk, Tehsil PHillaur, Distt. Jallandhar.
5.No. JC 36596-W, Sub Maj Harnam Dass (Retd.) age about 73 yrs. Resident of House No.46-47, B.Dayal Bagh, Ambala(Hyna).
6. NO JC-85342-H Sub Sarvjit Singh (Retd.) r/o # in village: The. Gulam Nabi Post: NM Singh Distt. Gurdaspur(PB).
7. NO-JC 34584-H Sub Diyal Singh Jaswal (Retd.) r/o # No.139, Dyal Bagh, near Brahm Kumari Asram, Ambala Cantt.
8. NO 64876-A, Sub Charanjit Rai(Retd.) No.540, Gali No.1, Harcharan Nagar, Near Shingar Cinema Ludhiana.
9. No.JC-72443 Sub Tarjit Singh, r/o House NO.9, Pink Avenue Kapurthala(PB).
Applicants
( By Advocate :- Mr. Sham Lal Sharma )
Versus
1. Union of India, Ministry of Defense, through Secretary, New Delhi-110011.
2.The Government of India, Ministry of Defence, Department of Ex.servicemen Welfare, New Delhi-110011.
3. The Director General, Indian Posts & Telegraph Services, New Delhi.
4. The Additional Director General Army Postal Services, Kamptee-Pin 908700 c/o 56 APO
Respondents
( By Advocate : Mr. Sanjay Goyal ).
O R D E R.
Honble Mr. Uday Kumar Varma, Member (A):
This Original Application has been filed by a group of retired Postal Department employees who were on deputation to Army Postal Services for a considerably long period of time. They were according to the terms of deputation, repatriated to their parent department i.e. Department of Posts, following which they sought voluntary retirement from their parent department and thus retired. Through this OA, they are now seeking the following reliefs:-
a) To grant service benefits including pensionary awards to the applicant-petitioners at the Notional scales as admissible to the JCOs of the Regular Armed forces of the ranks of J.C.O. with other such consequential service benefits on the basis of the principles of Equal Pay for Equal works A Fundamental Right, an accompaniment of equality;
b) To issue orders, instructions or directions commanding the respondents to quash the impugned portion of clauses as in the Circular Notification dated 22.10.1977(Annexure A-1) to the extent that the conditions prevailing for the Retention of individuals on deputations beyond the expiry of short terms engagement period of 18 months, to the discretions of Respondents with uncertain/unlimited period as for so long thereafter as the services of individual may be required basis, and lay down the fresh orders, instructions for the individual on deputations to continue in such service by Army ( c ) To issue orders, instructions or directions commanding the respondents to otherwise step up the pensions and family pensions of the Applicant(s) equal to those Subedars of Regular Army who retired in the same rank of Subedar in a manner that the rates of pensions payable to applicant(s) are at par with those who are drawing in the same pension of a ranks of Sub Post 1.1.2006;
(d) To issue orders, instructions or directions commanding the respondents to pay and release the arrears of enhanced pensions after removing the anomaly from the due date till the date of payments with rates of interests @ 18% till final payments.
2. The case in brief is as follows:-
In response to notification dated 9.10.1957, as amended vide notification dated 22.10.1977, for calling the volunteers for serving on deputation with the Army Postal Services ( for short APS), the applicants were sent on deputation to APS. According to the terms of deputation, the period of deputation was 18 months and so long thereafter his services may be required. According to the terms of deputation, they were given promotion as Naib Subedar and Subedar at appropriate time. On completion of age of compulsory repatriation to parent department i.e. 56 years, they were relieved from APS. The applicants sought voluntary retirement from their parent department which was accepted by the competent authority. At the time of voluntary discharge from APS, the final settlement of accounts of the applicants were carried out by the Office of Director of Accounts Postal, Nagpur, and all terminal benefits were paid to them and as such, all outstanding claims/terminal benefits were adjusted/paid to all the applicants.
The case of the applicants is that they were kept on deputation for a very long spell of about 25 years without seeking their written consent for continuing in the APS on deputation. The applicants were doing the same work as regular employees of APS. The composition of APS is 75% from P&T department on deputation while 25% are directed recruited and enjoy the terms of service as army personnel. In view of the fact that the deputation period was for a period of 18 months, that they were carrying out the same job as their counter parts as recruited directly by Army and that they also got promotions during their deputation, the applicants contend that they are entitled to the same pensionary and other benefits as those of the directly recruited army personnel.
3. The learned counsel for the applicants vociferously argued the case of the applicants on the above lines and in addition also submitted the following rulings:-
i) Umpati Choudhary versus State of Bihar & Ors.(1999(3) R.S.J. Page 353);
ii) T.Shantharam vs. State of Karnataka & Ors ( Civil Appeal No.922 of 1995) decided on 16.1.1995;
iii) Punjab Ex.Servicemen Corporation vs. Presiding Officer, Industrial Tribunal, Punjab & Another ( 2010(1) R.S.J. Page 744);
iv) Gujarat Agricultural University vs. Rathod Labhu Bechar & Ors. (2001(1) R.S.J. Page 770);
v) State of Kerala vs. B.Renjith Kumar & Ors. (Civil Appeal No.4104 of 2004) decided on 5.6.2008.
4. The learned counsel for the respondents in his arguments submitted that the petitioners were treated according to the terms of deputation and, therefore, they were entitled to what they have duly given and nothing more.
5. It may be useful to understand the terms and conditions of deputation which has been brought into dispute in this OA. The relevant part of the terms and conditions reads as follows:-
Sub.: Terms and conditions of service for P and T Non-gazetted personnel on deputation to APS.
1.Volunteers for field service from P and T department will be enrolled in the Army Postal Service Corps under Army Act on short term engagement.
2. The deputation of engagement will be 18 months and so long thereafter as their services may be required.
3. Age : The volunteers should not be over 40 years of age on the date of enrolment.
4. Medical/physical standards- They should be in medical category `A and meet physical standards as prescribed from time to time.
5. Discipline: They will be governed by the Army Act and other orders applicable to Army Personnel during their service in the Army Postal Service.
Xx xx Promotions An official granted promotion under `NBR will be eligible for promotion to the corresponding appointment in the APS. If for any reason, promotion to corresponding appointment cannot be given, he will normally be retransferred to his parent P and T Circle, but may be retained in the appointment already held, if the exigencies of service so require and the promote has no objection.
Any official may be given promotion to higher appointment in the Army Postal Service, but such promotion does not entitle him to a corresponding promotion in his parent cadre.
Xx xx xx
13. Other conditions of service: In regard to all other conditions of service including concessions and allowances which have not been referred to above, they will be governed by the same rules, as are applicable to the corresponding ranks of the regular army.
14. Termination of field Termination of field service will not be permissible during the initial period of engagement except on extreme compassionate grounds. The terms of deputation make it clear that duration of deputation will be 18 months and so long thereafter their services may be required. They could have been repatriated after 18 months, however, they were retained beyond 18 months. The moot question is whether their retention beyond 18 months is a violation of the deputation terms? The significant issue to be resolved in the instant OA is whether the applicants were continuing on deputation beyond 18 months on their own and with their consent to this effect or they were retained there against their will? Looking through the records and even on oral questioning, the applicants were not able to show us any evidence by way of a letter or any other form of communication vide which they were retained in APS against their wishes. They had the freedom to seek repatriation and could have asked to be sent back to their parent department after 18 months. There is nothing on record to suggest anything of this kind. We would, therefore, surmise that they continued on deputation voluntarily and thereby understanding and accepting all the implications of continuing on deputation. During deputation they were quite clear that they will not be getting the pensionary and other benefits as was available to their counterparts which had come through 25% direct recruitment stream, but they continued to serve in APS. It may also be noted that they were not forced to come on deputation. They had joined the Department of Posts and had sent their names for deputation to which they never raised any objection. Therefore, even though there may not be explicit consent, implicitly they came on deputation and continued on deputation willingly. This is understandable because the terms and conditions of their deputation in the APS actually compared favourably to their parent departments terms and conditions. Therefore, this argument of the applicants that the deputation was only for 18 months and since they were retained on deputation for far beyond 18 months in violation of terms of deputation is actually not correct.
The concept of deputation has been very well elaborated in the judgment passed in the case of Umapati Choudhary(supra). The relevant part of the judgment reads as follows:-
9. Deputation can be aptly described as an assignment of an employee (commonly referred to as the deputationist) of one department or cadre or even an organization ( commonly referred to as the parent department or lending authority) to another department or cadre or organisation ( commonly referred to as the borrowing authority). The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. It also involves the consent of the employee to go on deputation or not. In the instant case, all the ingredients as laid down by the Honble Apex Court are fulfilled and, therefore, the tenure of the applicants with APS has to be treated as deputation and nothing else. We have also gone through the rulings referred to by the learned counsel for the applicants. The ruling in respect of Umapati Choudhary (supra) indeed strengths the case of the respondents, rather, than the applicants. The case of T.Shantharam (supra) deals with the issue of absorption where the applicant was mistakenly given charge of a higher post and discharged his duties of higher responsibilities to the satisfaction of all concerned for about 32 years and, therefore, his repatriation back to the old post in the parent department was set aside. In the instant case, the applicants were neither working against higher post nor is it a case of absorption. Therefore, this ruling does not help the applicants. The two other rulings in the cases of Punjab Ex. Servicemen Corporation and Gujarat Agricultural University (supra) emanate from disputes under the Industrial Disputes Act and obviously are very distinguishable.
6. In view of the above discussion, we are of the view that the applicants who voluntarily retired in between 1983 to 2001 and have decided to move the present OA for their parity with their army counterparts in APS is not justified. It is also clear that during their service career, they had never raised this issue.
7. The plea that the terms of deputation were not fair and just and that there can not be a distinction between direct recruits and deputationists in their service benefits as they were discharging the same responsibilities, will be difficult to entertain. This plea should have been raised while they were in service. Raising it after almost two decades and in some cases after 28 years may hardly be justified.
8. Resultantly, this OA being devoid of merit is dismissed. No costs.
(UDAY KUMAR VARMA) (SANJEEV KAUSHIK) MEMBER (A). MEMBER (J) Dated: April 11, 2014. Kks