Madras High Court
Union Of India Rep By vs K.N.Sivadas & on 4 November, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
WP.No.1373 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.11.2024
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HON'BLE MR.JUSTICE M.JOTHIRAMAN
WP.No.1373 of 2021
and WMP.No.1545 of 2021
1.Union of India rep by
The Chief Postmaster General
Tamil Nadu Circle,
Anna Salai, Chennai – 2.
2.Deputy Director
Foreign Post,
Chennai – 600 001. .. Petitioners
v.
1.The Registrar
Central Administrative Tribunal
High Court Campus,
Chennai – 600 104.
2.G.Rajarathinam … respondents
Prayer : Petition filed under Article 226 of the Constitution of India
seeking to issue writ of certiorari to call for the records of 1 st respondent
in OA.No.32 of 2016 dated 30.08.2019 in disposing the OA filed by the
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2nd respondent and quash the same.
For Petitioners : Mr.AR.L.Sunderesan, ASG
assisted by
Mr.R.Subramanian, CGSC.
For Respondents : R1 – Tribunal
Mr.R.Malaichamy for R2.
ORDER
(Made by the Hon'ble Mr.Justice S.M.SUBRAMANIAM) Under assail is the order dated 30.08.2019 passed in OA.No.32 of 2016 on the file of the Central Administrative Tribunal, Madras bench.
2. Union of India is the petitioner before us. The second respondent instituted Original Application in OA.No.32 of 2016, challenging the order of rejection issued by the second petitioner herein in proceedings dated 12.11.2015 and to direct the petitioners herein to extend the benefits of judgment made in OA.No.79 of 2011 and batch cases of Ernakulam bench of Central Administrative Tribunal dated 01.10.2013.
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3. The learned Additional Solicitor General of India Mr.AR.L.Sunderasan appearing on behalf of the petitioner would submit that the issues are no more res-integra and already decided by this Court elaborately considering the issues in a batch of writ petition filed in WP.Nos.13633 of 2020, 1540, 289 & 188 of 2021 dated 24.01.2023. The judgment relied on by the 2nd respondent before the Central Administrative Tribunal itself was set aside by the Division Bench of this Court in the judgment cited supra on 24.01.2023. Therefore, the present writ petition is to be considered.
4. Mr.Malaichamy, the learned counsel for the second respondent would oppose preliminarily by stating that the judgment of the Delhi Central Administrative Tribunal is taken by way of an appeal before the Hon'ble Supreme Court of India which is subjudice. The Delhi High Court held in favour of the employees. In the event of rejecting the appeal instituted by Union of India by the Hon'ble Supreme Court, the second respondent would be deprived of the benefits.
5. The learned Additional Solicitor General would contend that the https://www.mhc.tn.gov.in/judis 3/26 WP.No.1373 of 2021 original application is hit by principles of latches as the employees approached the Central Administrative Tribunal during their fag end of services. Monetary benefit under time bound one time promotion (TBOP) cannot be granted with retrospective effect. Since, the second respondent had not approached the Tribunal within the reasonable period of time, the claim if considered would unsettle the seniority and would cause greater financial implications to the Union of India.
6. The issue in nutshell to be considered is that the second respondent was initially recruited to the cadre of postal assistant in the year 1983. Admittedly, there was a ban on recruitment and therefore to mitigate the circumstances arose in the postal department, candidates were recruited and kept in reserved training pool. However, they were not appointed on regular basis nor their services were regularised from the date of initial recruitment. These employees were allowed to continue as reserved training pool employees on temporary basis and hourly basis salary was paid to them.
7. Admittedly, these employees were not appointed on regular time https://www.mhc.tn.gov.in/judis 4/26 WP.No.1373 of 2021 scale of pay in the sanctioned post. Therefore, they were not became regular employees of the postal department. However, after lifting the ban by the Union of India, these reserved training pool employees were observed in the regular sanctioned vacancies in the time scale of pay and their services were regularised during the year 1988. The service of the second respondent was regularised with effect from 25.04.1988. The second respondent continued in service and reached the age of superannuation on 31.05.2015.
8. The date of regularisation of service in the regular post with effect from 25.04.1988 was taken into consideration for the purpose of reckoning seniority grant of TBOP and other monetary benefits including upgradation of monetary benefits. The TBOP was granted to the second respondent with effect from 15.05.2004 and MACP-II was granted with effect from 01.09.2008. Even after receiving the monetary benefits from and out of TBOP and thereafter under MACP-II, the second respondent has not claimed any further benefit and accepted those benefits. That being the factum now belatedly he cannot claim the benefit based on the judgment of the Kerala Bench of the Central Administrative Tribunal as https://www.mhc.tn.gov.in/judis 5/26 WP.No.1373 of 2021 affirmed by the Division Bench of the Kerala High Court.
9. Since, the issues are already covered and the coordinate division Bench of this Court elaborately considered the inordinate delay in approaching the Central Administrative Tribunal as well as the eligibility for claiming the monetary benefit with retrospective effect from the date of recruitment, it become unnecessary for us to reconsider those issues. However, the legal principles settled is that the regular monetary benefits granted under TBOP and MACP-II are to the granted with effect from the date of regular appointment of an employee. In other words, an employee after becoming a member of regular service is eligible for all service benefits, under the Rules.
10. In the present case, admittedly the second respondent was initially engaged as reserved training pool employee on temporary basis and was receiving hourly basis salary. Further, his engagement was on need basis. Subsequently, his services were regularised with effect from 25.04.1988 and it is not in dispute that all service benefits to the second respondent are granted with effect from the date of his regular https://www.mhc.tn.gov.in/judis 6/26 WP.No.1373 of 2021 appointment in the sanctioned post with effect from 25.04.1988.
11. The Original Application itself was filed in the year 2016 after attaining the age of superannuation in the year 2015. Thus the claim of the second respondent is belated and the Original Application was filed after retirement claiming monetary benefit from the date of initial recruitment as reserved training pool employee. Thus the claim of the respondent deserves no merit consideration.
12. The consideration of the issues regarding delay and on merits in the batch of writ petitions by coordinate bench of this court are extracted hereunder :-
“7. Having gone through all the related papers including the judgment and rulings adduced on both sides it is essential to go into the genesis of constitution of a standing pool trained reserved candidates for Post and RMS offices. It is a well known fact that our Post and RMS offices have a huge network and infrastructure covering nook and corner https://www.mhc.tn.gov.in/judis 7/26 WP.No.1373 of 2021 of our country and play a very important role. It was in this context that the Director General, Post & Telegraphs Department, New Delhi had circulated on 30.10.1980 the details of the scheme of RTP. The major objective as could be deciphered from the copy of the letter dated 30.10.1980 circulated by the Director General, Post & Telegraphs Department is to bridge the gap between the occurence of vacancy and placement of approved and trained candidates to fill the vacancies and also to cut down on the overtime arrangements which were fraught with inherent limitations. It was decided that at the time of each recruitment an additional list of candidates equal in number to 50% of candidates in the main list would be drawn up and imparted training similar to the candidates in the main list. It was also decided that they will be used against vacancy due to absenteeism or to handle peak hour traffic. It was also decided that they would be absorbed in the https://www.mhc.tn.gov.in/judis 8/26 WP.No.1373 of 2021 regular vacancies in turns after the main list candidates are absorbed. They were paid wages on hourly basis and the mandatory reservation policy was also applied on them at the time of selection itself and it was initially on an experimental basis for a period of one year. With this back drop the entire facts of these petitions have to be considered.
8. The ban on recruitment was Pan India and was not something on which the petitioners have any role to play. It was the policy of the Government for Administrative reasons. It is also pertinent to refer at this juncture to the relevant portions of the judgment in Union of India & Another Vs. K.N.Sivadas & Others in Civil Appeal No. 5268/97 @ SLP[C] No. 17422/95}, Civil Appeal Nos. 126/96, 124-125/96, 127-130/96 & 131/96 "The position of RTPs is quite different. In the first place, the very scheme which https://www.mhc.tn.gov.in/judis 9/26 WP.No.1373 of 2021 constituted RTPs provided for their absorption as regular employees. With this in mind, they were also given the same training as regular employees. They were required in the meantime, to carry out short-term duties or to handle peak hour traffic on an hourly wage basis. However, there was clear assurance in the scheme that they would be accommodated in future vacancies as regular employees in the manner set out in the scheme. We are informed that there was backlog in absorption because of a ban on recruitment during certain years. All the RTP employees have been absorbed as regular employees by 1990. Some of the respondents who are before us have been absorbed much earlier, in the year 1988. Therefore, they are in a much better position than casual labourers and are now enjoying all the benefits of regular employment. Their claim relates to the period prior to their absorption. The entire period in effect, is either prior to 1988, or in the case of some of the respondents, prior to January 1990. The benefits which they claim are the benefits https://www.mhc.tn.gov.in/judis 10/26 WP.No.1373 of 2021 which have been conferred on casual labourers only after 29.11.1989. The respondents, however, are claiming these benefits for earlier periods (In respect of those respondents who were absorbed in January 1990, their continuation as RTPs after 29.11.1989 is only of two months duration). In other words, RTPs are claiming benefits for a period for which a similar benefit has not been conferred on casual labourers under the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme.
The Tribunal, in our view, has erred in equating RTPs with casual labourers. The position of these two categories of employees is very different as we have already set out. The Tribunal has also erred in assuming that casual labourers are getting these benefits during the period for which the RTPs are claiming these benefits. RTPs have already obtained the benefit of absorption in regular service because of their own scheme. They, therefore, cannot, on the one hand, avail of https://www.mhc.tn.gov.in/judis 11/26 WP.No.1373 of 2021 their own special scheme and at the same time, claim additional benefits on the basis of what has been given to the casual labourers. This is unwarranted, especially as the period for which they claim these benefits is the period during which such benefits were not available to casual labourers.
In C.A. Nos. 124-125 of 1996 the respondents originally worked as Telegraph Assistants in various Central Telegraph Offices in their reserved trained pool and were absorbed in regular service in 1992. In their department, the scheme of temporary status and regularisation for casual labours has come into effect form 1.10.1989. Their case in no different from the case of other RTPs although undoubtedly, they have been regularised a little later. As stated above, the position of RTPs is very different from the position of casual labourer and the Tribunal could not have equated the two.
In C.A. Nos. 127-130 of 1996 the RTPs who have been regularly absorbed in the year https://www.mhc.tn.gov.in/judis 12/26 WP.No.1373 of 2021 1988 have been given the benefit of counting their service as RTPs for the purpose of think eligibility to appear for the departmental examination. The relevant rule provides that the candidates "must have put in at least 5 years continuous satisfactory service in one or more eligible cadres" before they can appear for the examination. The eligibility is related to five years service in the cadre. Any service which was rendered prior to regular appointment in the cadre, cannot count for the purpose of this 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, for the purpose of their eligibility to appear for the departmental promotion examination."
Though this case pertains to one K.N.Sivadas and few other Postal Assistants, who were in the RTP of Post and Telegraph offices and were the first to seek the legal remedy for getting all the benefits by pre-dating https://www.mhc.tn.gov.in/judis 13/26 WP.No.1373 of 2021 their regularisation from the date of their respective appointments, the comparison they made was with the casual labourers who were bestowed with certain benefits under Casual Labourers (grant of temporary status and regularisation) Scheme, 1989. There were also other rulings such as Union of India vs. Gandiba Behera in Civil Appeal No.8497/2009 which had clearly spelt out that predating regularisation is not acceptable. This was also highlighted by the learned counsel for the petitioner during the course of arguments.
9. Another issue which was raised by the learned counsel for the petitioners was regarding the inordinate delay on the part of the respondents who have approached the Tribunal only because some other employees of their own cadre in Kerala had raised the issue and got a favourable order from the Central Administrative Tribunal, Ernakulam Bench. https://www.mhc.tn.gov.in/judis 14/26 WP.No.1373 of 2021 In this regard, the learned counsel for the petitioner relied on 2006 (11) SCC 464 in the case of U.P.Jal Nigam and Another vs. Jaswant Singh and Another wherein it was held that "16. Therefore, in case at this belated stage if similar relief is to be given to the persons who have not approached the court that will unnecessarily overburden the Nigam and the Nigam will completely collapse with the liability of payment to these persons in terms of two years' salary and increased benefit of pension and other consequential benefits."
10. As rightly pointed out by the learned counsel for the petitioners, the financial burden of implementing such a decision which has no element of legal justification. The Tribunal entirely relied on the decision Union of India Vs. M.Mathivanan case interpreting that the said Mathivanan was also a RTP candidate and just because he was absorbed in Army Postal Service he was considered favourably for https://www.mhc.tn.gov.in/judis 15/26 WP.No.1373 of 2021 grant of TBOP. The Tribunal had concluded RTPs whether in APS are regular postal services are equal and should be considered at par. It can be easily comprehended that this was one rare such case and can be only an exception and cannot be a rule. In fact in the said judgment the Apex Court took cognizance of the regularisation made consequent upon the appointment of the said Mathivanan in the Army Postal Service on regular basis which according to the Apex Court was clearly the date of regularisation. If the arguments of the respondents is to be taken into consideration the 16 year period (for TBOP) in the case of Mathivanan should have been 1997 and not 1999 as approved by the Apex Court. Thus, it is clear that 16 year period for TBOP was calculated only from the date of regularisation and not from the date of initial appointment in RTP. The decision of Central Administrative Tribunal, Ernakulam Bench, was definitely based on a wrong interpretaions of the two https://www.mhc.tn.gov.in/judis 16/26 WP.No.1373 of 2021 Apex Court decisions in the cases of K.N.Sivadas and Mathivanan.
11. Now coming to the aspect of delay in claiming the benefit with retrospective effect, it is to be noted that though there is no specified time limit stipulated under any Act, the delay cannot be unexplained and unreasonable. In the present cases, it is seen that the respondents have neither challenged the ban on recruitment which according to them was the main cause of their belated regularisation nor given any representation to the petitioners seeking such relief immediately after their regularisation. It was only in the year 1996 that one of their colleagues had approached the appropriate legal forum to settle his issue of seeking similar benefits as provided for the casual labourers. The present respondents did not approach the employers with any representation even till 2013. It was only https://www.mhc.tn.gov.in/judis 17/26 WP.No.1373 of 2021 thereafter, they followed it up with OAs in Central Administrative Tribunal, Chennai Bench in 2014. This aspect of delay and laches is very important. In fact the Apex Court in the case of Union of India & Others vs. C.Girija & Others, Meena Baskar vs. C.Girija & Others, C.Girija vs.Union of India & Others in Civil Appeal Nos.1577, 1578 of 2019 and Writ Petition (Civil) No.653 of 2015, observed that "13. This Court again in the case of Union of India and Others Vs. M.K. Sarkar, (2010) 2 SCC 59 on belated representation laid down following, which is extracted below:-
“15. When a belated representation in regard to a “stale” or “dead” issue/dispute is considered and decided, in compliance with a direction by the court/Tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the “dead” issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which https://www.mhc.tn.gov.in/judis 18/26 WP.No.1373 of 2021 an order is passed in compliance with a court’s direction. Neither a court’s direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.”
14. Again, this Court in State of Uttaranchal and Another Vs. Shiv Charan Singh Bhandari and Others, (2013) 12 SCC 179 had occasion to consider question of delay in challenging the promotion. The Court further held that representations relating to a stale claim or dead grievance does not give rise to a fresh following was laid down:-
“19. From the aforesaid authorities it is clear as crystal that even if the court or Tribunal directs for consideration of representations relating to a stale claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix.
Similarly, a mere submission of representation to the competent authority does not arrest time." This phrase that a dead cause of action cannot "rise like a phoenix " is very much applicable to the https://www.mhc.tn.gov.in/judis 19/26 WP.No.1373 of 2021 present facts of the case. In fact, as pointed out by the counsel for the petitioners such decisions without giving thought to the financial implications and practicality would only put the entire machinery of the petitioners under huge stress. There is also a possibility of such decisions being taken up by other departments and even by casual labourers and it would just be an endless stream of representations and litigations. The financial implications could be very stressful for an organisation like the petitioners' and merely because it is wholly owned by the Government of India does not entail implementations of such huge avoidable expenditure merely to comply with the directions of the Tribunal. The direction of the Tribunal to work out backwards from 1984 and implement such an exercise that when number of RTP was practically only a reserved list consisting of 50% of the main vacancies defies any logic. The primary object of the RTP was intended only to reduce the https://www.mhc.tn.gov.in/judis 20/26 WP.No.1373 of 2021 expenditure on overtime and also ensure smooth flow of work even in the exigency of absenteeism. But the impugned decisions of Central Administrative Tribunal, Chennai Bench would defeat the very purpose and concept of RTP. The respondents were not recruited as regular Postal Assistants and their appointment dates cannot be taken for calculating their service for any benefit. The only difference between the candidates under RTP and casual labourers was the assurance of regularisation. Having got an advantageous start in the beginning of their career, it appears that their demand for considering their service for all purposes including TBOP from the date of their initial appointment shows only the greed in them. As already elaborated the ban on recruitment was not the decision of the petitioners and the demands of the respondents smacks of unreasonableness. Again as rightly pointed out by the learned Additional Solicitor General, the Government https://www.mhc.tn.gov.in/judis 21/26 WP.No.1373 of 2021 of India's exchequer cannot be allowed to bleed to meet out such illogical demands and therefore, the orders of the Central Administrative Tribunal, Chennai Bench, are unacceptable and without any rationale. In this context, it is also pertinent to point out that the orders of the Central Administrative Tribunal, Ernakulam Bench in O.A.No.1410/1995 was set aside by Hon'ble Supreme Court in C.A.No.80- 123/1996 wherein it was held that "Any service which was rendered prior to regular appointment in the cadre, cannot count for the purpose of this 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, for the purpose of their eligibility to appear for the departmental promotion examination."
12. In view of the forgoing decision, it could be easily concluded that the decisions in all the OAs https://www.mhc.tn.gov.in/judis 22/26 WP.No.1373 of 2021 have been arrived at by the decision of Central Administrative Tribunal, Ernakulam Bench which was confirmed later by Kerala High Court. All the orders of Central Administrative Tribunal, Chennai, suffer from lack of application of mind on their part as they have not gone into merits and demerits of such an unprecedented decision. The delay of more than 3 decades would have resulted in many retirements on superannuation amongst the respondents and such a massive exercise of searching the records and arriving at even the minute details like break in service etc. is just next to impossible that too when the demands of the respondents are totally unethical and unreasonable.
13. In the result, all the Writ Petitions are allowed. No costs. Consequently, connected miscellaneous petitions are closed. The orders of the Central Administrative Tribunal, Chennai Bench, passed in O.A.No.1149 of 2014 dated 27.06.2019, https://www.mhc.tn.gov.in/judis 23/26 WP.No.1373 of 2021 O.A.No.1691 of 2016 dated 20.08.2019, O.A.No.1240 of 2014 dated 27.06.2019 and O.A.No.1148 of 2014 dated 12.07.2019, are set aside.”
13. Since the facts of the present case is similar and the legal issues were elaborately considered by the coordinate bench of this Court, we have no other reason to take a different view. Consequently the impugned order passed by the Central Administrative Tribunal in OA.No.32 of 2016 dated 30.08.2018 is set aside.
14. In the result, the writ petition is allowed. No costs.
Consequently, connected miscellaneous petition is closed.
(S.M.S., J) (M.J.R., J)
04.11.2024
Index : Yes/No
Internet : Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation : Yes/No
tsh
To
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The Registrar
Central Administrative Tribunal
High Court Campus,
Chennai – 600 104.
S.M. SUBRAMANIAN, J.
and
M. JOTHIRAMAN, J.
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