Central Administrative Tribunal - Hyderabad
A. Mutyal Rao vs Union Of India & Ors. Air 1991 Sc 284 And M. ... on 29 July, 2009
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH HYDERABAD O.A. 850/2007 Date of order: 29 -07-2009 Between: 1. A. Mutyal Rao, SK ND Yard, Eastern Naval Command Hqrs., Visakhapatnam - 530 008. 2. G. Rudreswara Rao, SK, WED, Eastern Naval Command Hqrs., Visakhapatnam - 530 008. 3. B. Raju, SK, MO(V), Eastern Naval Command, Visakhapatnam - 530 008. 4. K. Sambasiva Rao, SK, WED, Visakhapatnam 530 008. ... Applicant A N D 1. The Union of India, rep. by its Secretary, Ministry of Defence, New Delhi. 2. The Chief of Naval Staff, Integrated Naval Headquarters, New Delhi. 3. The Director of Logistics Support, Integrated Headquarters, 'C' Wing, Sena Bhavan, New Delhi - 110 011. 4. The Flag Officer Commanding-in-Chief, Eastern Naval Command, Visakhapatnam. 5. The Material Superintendent, Material Organisation, Eastern Naval Command, Visakhapatnam - 8. 6. The Base Victualling Officer, Base Victualling Yard, NAD Post, Visakhapatnam 530 009. ... Respondents Counsel for the applicants : Mr. P. Venkata Rama Sarma for Dr. P.B. Vijayakumar Counsel for the respondents : Mr. T. Damodar C O R A M : THE HON'BLE MRS. BHARATI RAY, MEMBER (J) THE HON'BLE MR. HRIDAY NARAIN, MEMBER(A) O R D E R
(Per Hon'ble Mrs. Bharati Ray, Member (J) This application has been filed by the applicants seeking for the following relief:
To declare the proceedings No. SE/2076/2077 dated 30.11.2006 of the 3rd respondent as illegal, arbitrary, void, bad in law, capricious and violative of Article 14 of the Constitution of India and contrary to the judgment dated 22-6-1994 in OA No. 800 of 1991 on the file do this Hon'ble Tribunal and by nullifying the same consequently direct the respondents to recast the seniority of the applicants by placing at appropriate place in the seniority list duly taking into consideration of their regularisation in the cadre of Assistant Store Keeper as per letter dated 17.1.1995 of the Respondents and order dated 22-6-1994 in OA No. 800 of 1991 on the file of this Hon'ble Tribunal with all consequential and attendant benefits.
2. The applicants' along with others who were serving in various establishment of Eastern Naval Command came before this Tribunal earlier by filing OA No. 800/91 praying to direct the respondents therein to regularise their services from the date of their initial appointment as Assistant Storekeeper/MT Drivers by condoning the artificial breaks with all consequential benefits. The Tribunal vide its order dated 22.06.1994 allowed the OA with a direction to the respondents to regularise their services with effect from the dates on which they were initially appointed as Assistant Storekeepers/MT Drivers. The said OA was allowed following its earlier order in OA 402/86 and batch cases decided on 14.05.1987. In compliance with the judgment delivered by this Tribunal on 22-6-1994 an approval was accorded by the Ministry of Defence and the services of the applicants were regularised with effect from the date of their initial appointment as indicated in the enclosure to the letter of Chief Staff Officer dated 17-01-1995 to all Establishments concerned, a copy of which is enclosed as Annexure A-III at page 11 to the OA.
3. The applicants along with others approached this Tribunal once again in OA 1035/2002 praying for grant of financial upgradation from respective dates of completing 12 years in terms of Assured Career Progression Scheme with effect from 9.8.1999. The order of the Tribunal dated 27.8.2002, copy of which is enclosed as Annexure A-IV to the OA, is extracted herein below :
There are 7 applicants in this OA who have filed this application praying for grant of financial upgradation from respective dates of completing 12 years in terms of Assured Career Progression scheme introduced with effect from 9.8.1999.
2. The applicants initially were appointed as Group-D in the respondents organisation in Visakhapatnam. Since they were not regularised as Asstt. Store Keepers with effect from the respective dates of their appointment to Group-C, they have filed OA 800/91 seeking relief of regularisation of their service from the date of their initial appointment as Asstt. Store Keepers. The said OA was decided by this court on 22.6.1994 with a direction to the respondents to regularise their services with effect from the dates on which they were initially appointed as Assistant Store Keepers/MT Drivers.
3. In implementation of the directions of this Court, the respondent authorities issues seniority list indicating date of regularisation of the applicants which is at page-11 of the OA. In most of the cases of the applicants, their services were regularised from September,1987. The applicants have filed a letter dated 29.12.2000 issued by the respondent authorities (Annexure-VII to OA) in which 4 of the applicants viz. S/Shri B.Raju, A. Muthyala Rao, G. Rudreswara Rao, K. Sambasiva Rao although they were all regularised from 9.9.1987 but in the order dated 29.12.2000 the respondent authorities have mentioned that their services were regularised from 1.8.1989 and in some cases from 1.2.1990, which is against the guidelines issued by this Tribunal in their judgment dated 22.6.1994.
4. Since all the applicants have completed 12 years of service in terms of Assured Career Progression scheme introduced by the Government, it is the case of the applicants that they are entitled for promotion from the date they have completed 12 years of service. Counsel for the respondents has no instructions on th matter from the Department.
5. We find that all the applicants in this OA have filed their representations before the respondent authorities except applicants at Sl. No.1 and 2 and those representations are also pending with the respondents. The applicants are directed to make fresh detailed representations to the respondents within one month from the date of this order which shall be disposed of by the respondents within 2 months thereafter. The respondents are further directed to consider the case of all the applicants for Assured Career Progression from the date they have completed 12 years of service as per the seniority list annexed at page-11 to the OA which has been prepared following the directions issued by this Tribunal in its judgment dated 22.6.1994 in OA 800/91.
6. With the above observations, the OA is disposed of at the admission stage itself with no order as to costs.
4. In implementation of the order of the Tribunal in OA 1035/2002 dated 27.8.2002 the Competent Authority at Integrated Headquarters of Ministry of Defence (Navy) (DCP) has accorded approval for counting of casual service (subsequently regularised as per CAT order) for grant of ACP benefit to the individuals. The applicant submitted a representation to the Chief of Naval Staff Integrated Headquarters, New Delhi 2nd respondent herein wherein they have mentioned about the order of the Tribunal dated 22-06-1994 in OA 800/91 and oder dated 27-8-2002 in OA No. 1035/2002 and its implementation. The 2nd applicant further informed that in the latest seniority list promulgated in January 2005 for Store House Staff (Assistant Store Keeper) the name of second applicant was placed at Sr. No. 138 and his date of regularisation has been shown as 01-02-1990 and date of issue of ACP as 02-01-2002. Although he had been awarded ACP with effect from 09-09-1999 by considering his date of appointment as well as date of regularisation as 09.09.1987 i.e. after completion of 12 years of service the same were not shown in the roster as a result of which one Mr. S.L. Mayekar, ASK who is junior to the applicant and whose date of appointment and regularisation is 29-09-1987 has been placed at Sl No. 85 where actually the name of the applicant has to be placed as per his seniority. Copy of the representation is enclosed at page-21 of the OA.
5. The Deputy Director(WAP) Integrated Headquarters, Ministry of Defence (Navy), New Delhi vide letter dated 30.11.2006 intimated The Flag Officer Commanding-in-Chief, Visakhapatnam i.e. respondent No.4 herein that the representation of the applicant no.2 i.e. G. Rudreswara Rao, ASK has been examined and that in the judgment delivered on 22 June,1994 in OA 800/91 the Tribunal has directed the respondents to regularise their services with effect from the dates on which they were initially appointed as Assistant Store Keeper/MT Drivers, the same does not mention any benefit with regard to change in seniority of the individual. The 4th respondent was directed to inform the same to the applicant no.2 accordingly.
6. Questioning the said communication dated 30-11-2006, copy of which is enclosed as Annexure A-I to the OA the applicants have approached this Tribunal seeking for the aforesaid relief.
7. Respondents have contested the application by filing a counter reply. While admitting the contention of the applicant in regard to the judgment passed by this Tribunal in OA 800/1991 and its implementation the respondents have stated in the counter reply that the seniority of the applicants have been given with effect from regularisation of their services against the Government sanctioned posts in accordance of the Govt. of India orders and the law set by Hon'ble Supreme Court in KC Joshi and others vs. Union of India & Ors. AIR 1991 SC 284 and M. Dharani and Ors. 1997 SCC (L&S) 1484. It is, therefore, the contention of the respondents that in view of clear directions of the Supreme Court in regard to the seniority only from the date of regular appointment and also pay fixation criteria no further direction is necessary in the OA in regard to drawing up of seniority list of Assistant Store Keeper category. Respondents have also referred to the judgment of the Hon'ble High Court of AP in Writ Petition No. 26465 of 1998 in the case of M. Ganesh Babu and 9 ors which was allowed by the Hon'ble High Court relying upon the judgment of the Apex Court in Civil Appeal No. 9922/1995. The Hon'ble High Court of AP in the said judgment set aside the judgment of the Tribunal passed in OA No. 1304/94. The Hon'ble High Court of AP in the said case followed the judgment of the Apex Court in the case of M. Dharani and Ors. 1997 SCC (L&S) 1484. Respondents have also referred to the judgment of the Hon'ble Supreme Court in the case of K.C. Joshi (supra) where the Apex Court has held that adhoc or fortuitous appointments on a temporary or stopgap basis cannot be taken into account for the purpose of seniority, even if the appointee was subsequently qualified to hold the post on a regular basis. To give benefit of such service would be contrary to equality enshrined in Article 14 read with Article 16(1) of the Constitution of India. It is, therefore, the contention of the respondents that in the light of the above legal position the applicants cannot seek enforcement of their right in violation of the law set by the Hon'ble Supreme Court. Respondents have also referred to the decision of Apex Court in the case of Uma Devi & Ors. 2006(4) SCALE 197.
8. We have heard Mr. P. Venkata Rama Sarma for Dr. P.B. Vijaya Kumar learned counsel for the applicants and Mr. T. Damodar learned counsel counsel for the respondents. We gone through the facts of the case and material papers placed before us.
9. In view of the above facts and circumstances the question that falls for consideration is whether the applicants are entitled to assign their seniority with effect from their initial date of appointment which is the date of regularisation in terms of the order of the Tribunal in OA No. 800/1991 decided on 22-6-1994. It is not disputed that the applicants were initially appointed as Group D employees at Eastern Naval Command, Visakhapatnam and subsequently they were qualified in the prescribed departmental examination for the post of Group C cadre and were appointed as Assistant Store Keeper/MT Drivers with effect from different dates. From the order of the Tribunal dated 22-6-1994 in OA 800/1991 we find that the applicants were initially appointed as Group 'D' employees in Headquarters, Eastern Naval Command, Visakhapatnam and were subsequently qualified in the prescribed departmental test for appointment to Group 'C' and were appointed as Assistant Storeskeeper/MT Drivers with effect from different dates. The services in the post of Assistant Storekeeper/MT Driver were however regularised subsequently with effect from later dates. Similarly situated civilian employees of Head Quarters, Eastern Naval Command approached the Hon'ble High Court of AP as also the bench of this Tribunal claiming regularisation of their services from the date of their initial appointment. In OA 79/90 decided on 26.3.1991 a reference was made to WP No. 7269 of 1981 decided in favour of the petitioners therein by AP High Court and also Writ Appeal No. 239 of 1989 which was followed by the Tribunal in OA 514/86. Referring to the earlier case this Tribunal in OA 79/90 directed the respondents to regularise the applicants therein from the date of their initial engagement. The Tribunal further noticed that in OA 402/86 and batch decided on 14.05.1987 similar benefits were given by the Tribunal to the petitioners therein with regard to their regularisation of their services from the date of their initial engagement. Finally this Tribunal allowed the said OA 800/91 by directing the respondents to regularise their services with effect from the dates on which they were initially appointed as Assistant Storekeepers/MT Drivers. It is not in dispute that the respondents have implemented the said order by regularising the services of the applicants with effect from their initial appointment as can be seen from Annexure A-III at page 11 of the OA. It is also not in dispute that in implementation of the order of this Tribunal in OA 1035/2002 dated 27.8.2002 the applicants therein have been granted ACP duly counting their services from their initial date of appointment which was regularised as per CAT order in OA 800/91 treating the period as qualifying service for the purpose of grant of ACP.
10. The learned counsel for the respondents argued that in view of the judgment of the Hon'ble Supreme Court in the case of KC Joshi (supra) adhoc or fortuitous appointment on a temporary or a stopgap basis cannot be taken into account for the purpose of seniority even if the appointee subsequently qualify to hold the post on a regular basis. It is further submitted by the learned counsel for the respondents that the Apex Court in the case of UOI & Others vs. M. Dharani & Ors clearly stated that the terms and conditions of employment of casual labourers and regularisation of their services will be done on the conditions laid down in the letter dated 31.1.1991. Since the applicants were appointed as casual labour and subsequently qualified and appointed in a regular post they are not entitled to be assigned seniority from the date of initial appointment. In so far as the order of the Tribunal is concerned the respondents have stated that in a similar case of granting of seniority counting the casual service from the date of initial appointment, the order of the Tribunal dated 30.4.1997 in OA 1304/94 was set aside by the Hon'ble High Court of A.P. in Writ Petition No. 26465 of 1998 on 27-8-2002, copy of which is enclosed as Annexure R-III to the counter reply filed by the respondents. It is also mentioned that the said OA 1304/94 was allowed by the Tribunal by following its earlier order in OA 259/1991. Learned counsel for the respondents submitted that in view of the legal position the applicants are not entitled to get the relief claimed for.
11. In view of the above facts and circumstances the fact remains that seniority is to be assigned from the date of regular appointment. While it is true that the applicants were initially appointed on casual basis, but by virtue of the order of the Tribunal their services were regularised with effect from their initial date of appointment. Accordingly, the services rendered by them from the initial date of appointment was taken into account for the purpose of granting ACP in terms of the judgment in OA No. 1035/2002 which reached the finality. That being so, the applicants cannot be denied the benefits once the service rendered by the applicants from the date of appointment has been reqularised and the said services had been taken into account for grant of ACP benefit. In regard to the judgment of the Hon'ble High Court of AP we find that the Hon'ble High Court has set aside the order of the Tribunal in OA 1304/94. However, while disposing of the writ petition the Hon'ble High Court has stated that :
"An argument was made before the Supreme Court that in a letter dated 26th June, 1995 of Ministry of Defence there was a mention that the judgments of Central Administrative Tribunal, New Bombay Bench were implemented even for the non-petitioners who were similarly placed. In the present case also a mention has been made with regard to the directions given by the Tribunal earlier with respect to some others in whose favour the directions of the Tribunal have been implemented. The respondents may make a representation and if the persons who have been granted the benefits of seniority from the date of initial appointment are similarly placed as the respondents, the Writ Petitioners may extend the same benefits to them."
12. In view of the above we direct the respondents to examine the case of the applicants and if it is found that the persons who were granted the benefit of seniority from the date of initial appointment are similarly placed as of the applicants herein i.e. persons who have been granted regularisation with effect from the date of initial appointment in terms of the order of the Tribunal they may be extended the same benefit in regard to the seniority. The respondents shall pass appropriate order within a period of two months from the date of receipt of a copy of this order and communicate the same to the first applicant i.e. A. Mutyal Rao the first applicant herein is directed to communicate the order to other applicants within one week from the date of receipt of the order from the respondents.
13. The OA is disposed of accordingly with no order as to costs.
(HRIDAY NARAIN) (BHARATI RAY)
MEMBER (A) MEMBER (J)