Central Administrative Tribunal - Ernakulam
S Kuttan Pillai And Another vs Information And Broadcasting on 8 November, 2024
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.180/0047/2023
Friday, this the 8th day of November, 2024
CORAM:
HON'BLE Mr. JUSTICE K.HARIPAL, JUDICIAL MEMBER
HON'BLE Mrs. V.RAMA MATHEW, ADMINISTRATIVE MEMBER
1. S. Kuttan Pillai, S/o Sreedharan Unnithan
Aged 61 years, Retired Floor Assistant, Doordarshan
Kendra, Thiruvananthapuram- 695043. Vadakkevila
Puthen Veedu, Madanthacode, Kuzhimathicadu P.O.
Kottarakkara.
2. K.P. Mohanakumaran Nair, S/o Prabhakaran Nair
Aged 61 years, Retired Floor Assistant, Doordarshan Kendra
Thiruvananthapuram-695043, Kizhakkinkara Puthen Veedu
Kurussumuttam, Kundamon Bhagom, Peyad P.O.
Thiruvananthapuram
-Applicants
[By Advocate: Sri.R.Sreeraj]
Versus
1. Union of India represented by its Secretary to the
Government of India, Ministry of Information & Broadcasting,
New Delhi-110001
2. The Chief Executive Officer, Prasar Bharathi Broadcasting
Corporation of India, Mandi House, New Delhi 110001
3. The Director, Prasar Bharathi Broadcasting Corporation of
India, Doordarshan Kendra, Thiruvananthapuram-695001.
4. The Director(Administration), Prasar Bharati
Directorate General of Doordarshan, Doordarshan Bhavan,
New Delhi - 110001
- Respondents
[By Advocate: Sri.V.A.Shaji, ACGSC]
O.A.No.47/2023 2
The application having been heard on 03.10.2024, the Tribunal on
08.11.2024 delivered the following:
ORDER
Justice K.Haripal Applicants have approached the Tribunal after fighting several rounds of litigations which went upto the Apex Court atleast twice. They had started their career as Floor Assistants in Doordarshan Kendra, Thiruvananthapuram during 1988-1990 on contract basis. They were trying for regularisation ever since the appointment and in the process about 8 to 10 litigations have been fought and ultimately, by Annexure- A15 order dated 28.08.2013 both of them were appointed as Floor Assistants in Thiruvananthapuram on adhoc basis, with effect from 21.08.2013. On attaining the age of 60, both of them have retired from service in 2020. Now, they have approached the Tribunal seeking a declaration that their service should have been reckoned from 1990 or in the alternative from the date of regular appointment of Sri.B.Sreekumar atleast for the purpose of pension and pensionary benefits and a direction on that lines.
O.A.No.47/2023 3
2. The applicants have enumerated and cited details of earlier litigations fought before this Tribunal, High Court and also the Apex Court. All along, they were trying for regularisation, which was ultimately accepted only after the Annexure-A12 order followed by Annexure-A13 order in the Review Application in O.A.940/2010 were rendered. For the present purpose it is necessary to set out the details of the litigations initiated by them in a nut shell. It must be stated that in 1991 when they sought for regularisation through O.A.53/1991, on the basis of the submission made by the learned Standing Counsel for the respondents, this Tribunal directed to extend them relief on the basis of a common order passed by the Principal Bench on 08.02.1991 in O.A.894/1990 etc. But they were denied regularisation on the ground that they were over aged. They approached the Tribunal again with O.A.1123/1992. The Tribunal allowed the application and directed the respondents to consider regularisation in terms of Annexure-II judgment dated 10.02.1992 of this Tribunal. That order was challenged before the Hon'ble Supreme Court in SLP(C) No.14678/1993.
O.A.No.47/2023 4
3. Here, it requires to be stated that O.A.1123/1992 was filed jointly by the applicants and one G.Sreekumar. But when the SLP filed by the respondents was taken up for consideration, the appellants submitted that the appeal against the 3 rd respondent, the said G.Sreekumar was not pressed. Naturally, that paved way for the said Sreekumar to get the benefit of Annexure-A3 order and get regularised. It appears that he was regularised, but he had passed away on 26.10.2005.
4. Hon'ble Supreme Court did not approve the directions of this Tribunal to regularise the applicants giving the benefit of relaxation of age and directed the respondents to consider the regularisation of these applicants in accordance with the provisions contained in the scheme as notified in O.M. dated 09.06.1992 as modified by O.M. dated 17.03.1994 and O.M. dated 05.07.1994. It was also observed that they cannot be granted relaxation in age dehors the provisions of the scheme.
5. During the pendency of the SLP, one B.Sreekumar filed O.A.739/1993 before this Tribunal claiming the benefit of the order in O.A.No.47/2023 5 Annexure-A3. Annexure-A5 order indicates that the O.A. was disposed of directing to regularise his service also, however, subject to the orders of the Hon'ble Supreme Court in the SLP. Even though the Supreme Court had disposed of the SLP modifying Annexure-A3 order holding that the claim of the applicants to get age relaxation should be considered in accordance with the scheme and provisions of three O.M.s, the said Sreekumar was appointed before hand as evident from Annexure-A6. However, the applicants did not get any relief even after the directions of the Hon'ble Supreme Court and they again approached the Tribunal with O.A.1099/1997, which was disposed of with a declaration that the applicants are entitled for regularisation as their case was not considered in terms of the O.M.s referred to above. Directions were issued to the respondents to take a decision, but that attempt also did not succeed. Then by Annexure-A8 order the representations were rejected, which was challenged through O.A.612/2002. After elaborate discussion this Tribunal again held that the applicants are entitled for age relaxation as done in the case of G.Sreekumar and B.Sreekumar.
O.A.No.47/2023 6
6. Through WP(C)25425/2006, that order was challenged. In Annexure-A10 judgment, the Hon'ble High Court vacated the positive directions issued by the Tribunal, but disposed of the Writ Petition with a direction to consider the case of the applicants in accordance with law, considering also the cases of G.Sreekumar and B.Sreekumar. By Annexure-A11 the request was again rejected by the respondents stating that the applicants did not fulfill the criteria in respect of requisite qualification, experience and are not eligible as per the schemes of 1992 and 1994.
7. That was the subject matter of challenge in the next application, O.A.940/2010, which was also allowed by the Tribunal through Annexure-A12 order and Annexure-A13 order in the Review Application. Ultimately, by Annexures-A14 and A15, they were regularised on 21.08.2013.
8. To make a long story short, the long fight for regularisation was ultimately found in favour of the applicants and both were regularised granting relaxation of age to the extent they were over aged, O.A.No.47/2023 7 as a special case.
9. Thereafter, in 2015 they again moved the Tribunal seeking a declaration that they are identically placed like R.Krishnamoorthy, who along with four others was appointed as Floor Assistant on 15.10.1992 and for directing the respondents to grant them all service benefits from the date of appointment and to grant them consequential benefits like MACP etc. By order dated 10.08.2018 the O.A. was dismissed which stands confirmed by the High Court and also by the Hon'ble the Apex Court by order dated 02.08.2021. Thereafter, the instant O.A. has been filed.
10. Respondents have denied the claims made by the applicants. According to them, the applicants are not entitled to seek reliefs at par with B.Sreekumar. The said Sreekumar was granted benefits on mistaken facts. It cannot be taken as a precedent. The said Sreekumar was regularised on the advice of the Ministry granting relaxation in Rules as a special case with a stipulation that such relaxation should not be considered as a precedent for future cases or references. The directions O.A.No.47/2023 8 issued by this Tribunal was duly considered earlier. Orders rejecting regularisation were communicated to them. The claims of the applicants were not allowable following the provisions of the Reuglarisation Scheme of the Doordarshan Kendra dated 09.06.1992, 17.03.1994 and 05.07.1994 and the Recruitment Rules as the applicants remained over aged on the crucial dates even after extending the permissible age relaxation. Regarding Sreekumar it is admitted that he was regularised on wrong facts and departmental action has already been initiated for this. Such a past mistake cannot be taken as a precedent.
11. We heard Sri.R.Sreeraj, learned counsel for the applicants and Sri. V.A.Shaji, learned Additional Central Government Standing Counsel for the respondents, in detail.
12. According to the learned counsel, it is mysterious that when the three applicants including the said G.Sreekumar had jointly obtained Annexure-A3 order in their favour, strangely, in the SLP the respondents had taken a stand supporting him alone, by not pressing the SLP filed against him. It was discriminatory on the part of the respondents in O.A.No.47/2023 9 denying the benefits to the applicants, which is malafide also.
13. Similarly, according to the learned counsel, what was done in 2013 after fighting numerous rounds of litigations could have been done in 1995. Therefore, according to the learned counsel, they are entitled to get reckoned their past services atleast from the date of regularisation of G.Sreekumar for the purpose of pension and other retiral benefits.
14. On the other hand, according to the learned Standing Counsel, contract services for 120 days alone was not the criteria for regularisation. At that time, both the applicants were over aged. After 1989, they did not work in Doordarshan Kendra. According to him, since age relaxation was granted only in 2013 in special circumstances, the applicants are not entitled to get the benefits from 1990 onwards.
15. There is no dispute on the broad facts of the case. Both the applicants were initially engaged by Doordarshan Kendra as Floor Assistants on contract basis. When screening was done for regularisation, they were found not qualified in the examination and also since they were over aged in 1989. This aspect was considered by the O.A.No.47/2023 10 Tribunal as well as the Hon'ble High Court and the Apex Court and directed the respondents to consider grant of age relaxation in accordance with the O.M.s and the scheme issued by the respondents. The representations given by the applicants were rejected on numerous occasions. All were subsequently challenged before this Tribunal. After repeated persuasions, the Tribunal, by Annexure-A14 order, approval was given for relaxation of age to the extent they were over aged for the regularisation as a special case not to be taken as precedent in compliance with the order of the Tribunal. Thus, they were regularised on 21.08.2013.
16. Even thereafter, they moved this Tribunal with O.A.866/2015, which was rejected by the Tribunal, which was confirmed by the Hon'ble Apex Court. Thereafter, the instant O.A. has been filed.
17. After regularisation from 21.08.2013 they wanted similar benefits at par with the direct recruits appointed through Annexure-A2 order dated 15.10.1992. When that prayer was declined, now they have sought benefits from 1990 atleast for the purpose of pension and such O.A.No.47/2023 11 other benefits. We do not know as to how benefits sought from 1992 was rejected concurrently by the Courts could be granted through another mode, reckoning their services from 1990 onwards. In our opinion, such a prayer itself is fallacious.
18. Secondly, the very same relief could have been sought for in O.A.866/2015, which was not admitted. Therefore, the O.A. is barred under the principles of constructive res judicata.
19. When reliefs from 1992 was sought, the claim was rejected by the Tribunal. Initially they did not get regularisation as they had failed in the departmental examination; when their services were sought to be regularised, they were found to be over aged also. It was also noticed that they were not eligible for regularisation until their age criteria was relaxed as per the relevant Recruitment Rules. Confirming the said finding, in Annexure-A17 judgment, the High Court observed thus:
"4. Apparently this is a case in which the petitioners were given age relaxation for the purpose of regularising their service. In the absence of any such age relaxation they could not have been appointed at all. It is true that the Department had rejected their claim on several occasions. It is rather clear that the age relaxation had been granted as a matter of concession. Once such concession had been extended and the petitioners O.A.No.47/2023 12 were regularised in the year 2013, to claim parity with a person who had worked from the year 1992 and another person in the year 1998, is totally illogical and does not deserve consideration."
20. In fact, this observation holds good in full force in the present O.A. also.
21. The learned counsel for the applicant was very much skeptical about the regularisation of B.Sreekumar and according to him, there is no reason why such a benefit was not extended to the applicants as well, because he was taking claim under Annexure-A3 order. We have no doubt that the case of the applicants should have been considered since the said B.Sreekumar was regularised. But it is evident from Annexure-A11 that he was regularised on the face of some contempt proceedings. Annexure-A11 shows that as in the case of the applicants, the said Sreekumar was not eligible 'but as per the directions of the Central Administrative Tribunal, Ernakulam Bench by order in CP(C) 220/1994 in O.A.739/1994 his case had been reconsidered as per regularisation scheme of 1992 and 1994. After giving relaxation to B.Sreekumar in terms of regularisation scheme of 17.03.1994 he was O.A.No.47/2023 13 declared as eligible and was considered for regularisation'. In the scheme of this O.A., we cannot delve deep into the correctness or otherwise of the order passed by the respondents regularising B.Sreekumar. Even assuming that such an order was wrong or incorrect, that cannot embolden the applicants to seek a similar relief quoting it as a good precedent.
22. In this connection, it is appropriate to cite the decision of the Apex Court in Chandigarh Administration vs Jagjit Singh [1995 SCC (1) 745]. In that case, the Hon'ble Apex Court was considering the correctness of an order passed by the Hon'ble Punjab and Haryana High Court granting restoration of lease hold right of the respondent in a plot of land which was cancelled by the Chandigarh Administration owing to violation of conditions. The respondent tried to defend the decision of the High Court citing the case of one Prakash Rani. The Supreme Court took exception in adopting such case as a good precedent. The Apex Court observed as follows:
"8. .................Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case O.A.No.47/2023 14 of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law - indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent- authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and O.A.No.47/2023 15 will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners' case is similar to the other persons' case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course- barring exceptional situations - would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of O.A.No.47/2023 16 the precedents, as understood in the judicial world............"
23. In other words, regularisation of B.Sreekumar cannot be taken as a good precedent. A wrong order, even if went through judicial scrutiny cannot be perpetuated.
24. The very purport of these litigations is to bring the appointment of the applicants under the Old Pension Scheme and reap the benefits of the CCS(Pension) Rules, 1972. But having regard to the scheme of the New Pension Scheme as well as the Old Pension Scheme it is not practicable to take the applicants to the Old Pension Scheme after long lapses of time. The New Pension Scheme had come into effect on 01.01.2004. The applicants were never governed by the CCS(Pension) Rules. They were borne in the New Pension Scheme and were conscious of their rights and liabilities under the scheme. Taking them to the Old Pension Scheme involves positive roles played by agencies like National Securities Depository Ltd. who is the repository of pension contributions.
25. From the date of regularisation on 21.08.2013 contributions must have been made by them towards pension corpus under the New Pension Scheme. Corresponding remittances must have been made by O.A.No.47/2023 17 the employer as well. On retirement in 2020 both the applicants might have withdrawn their share. After long lapse of time, it is not feasible nor expedient to direct the respondents to give them benefits of the Old Pension Scheme.
26. Here, the cause of action has arisen from 21.08.2013. It is not explained why they waited till superannuation to raise the contention. The application is time barred also.
After evaluating the entire facts and circumstances, the applicants are bound to fail. The Original Application is dismissed. No costs.
(Dated, this the 8th November, 2024)
V.RAMA MATHEW JUSTICE K.HARIPAL
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
ds
O.A.No.47/2023 18
List of Annexures
Annexure A-1: True copy of the final order dated 10.2.1992 in OA
53/1991 on the file of this Hon'ble Tribunal
Annexure A-2: True copy of the Order No. 2(6)92- AI/DKT dated
15.10.1992 issued on behalf of the 3rd respondent Annexure A-3: True copy of the final order dated 10.3.1993 in OA 1123/1992 on the file of this Hon'ble Tribunal Annexure A-4: True copy of the judgment dated 14.3.1996 in Civil Appeal No. of 1996 (arising out of SLP (Civil) No. 14678 of 1993) on the file of the Hon'ble Supreme Court Annexure A-5: True copy of the final order dated 28.3.1994 in OA 739/1993 on the file of this Hon'ble Tribunal Annexure A-6: True copy of the Order No. 12(1)95-AI/DKT(BS) dated 27.10.1995 issued by the 3rd respondent Annexure A-7: True copy of the final order dated 16.12.1999 in OA 1099/1997 on the file of this Hon'ble Tribunal Annexure A-8: True copy of the Office Memorandum No. 2/12/97- SI/43 dated 18.2.2000 issued by the 4th respondent Annexure A-9: True copy of the final order dated 23.8.2005 in OA 612/2002 on the file of this Hon'ble Tribunal Annexure A-10: True copy of the judgment dated 1.10.2009 in W.P.(C) 25425/2006 on the file of the Hon'ble High Court O.A.No.47/2023 19 Annexure A-11: True copy of the Order F. No. 2/20/2002-S-I dated 30.1.2010 issued by the Deputy Director (Admn), Prasar Bharati, Directorate General: Doordarshan Annexure A-12: True copy of the final order dated 21.10.2011 in OA 940/2010 on the file of this Hon'ble Tribunal Annexure A-13: True copy of the final order dated 12.4.2012 in RA 62/2011 in OA 940/2010 on the file of this Hon'ble Tribunal Annexure A-14: True copy of the Letter No. LC/Prasar Bharati/Court Case-2/2012 dated 5.8.2013 issued by the Deputy Director (Personnel), Prasar Bharati, Prasar Bharati Secretariat Annexure A-15: True copy of the Order No.12(1)/2013/AI/DKT/(KPM) 8197 dated 28.8.2013 issued on behalf of the Additional Director General (i/c) in respect of the 2nd applicant Annexure A-16: True copy of the final order dated 10.8.2018 in OA 866/2015 on the file of this Hon'ble Tribunal Annexure A-17: True copy of the judgment dated 28.9.2020 in OP(CAT) 250/2019 on the file of the Hon'ble High Court Annexure A-18: True copy of the order dated 2.8.2021 in SLP (C) No. 11509/2021 on the file of the Hon'ble Supreme Court ************