Central Administrative Tribunal - Jaipur
Rajendra Kumar Tailor vs M/O Labour on 10 May, 2022
Original Application No. 427/2013 &
Original Application No. 618/2017
(1)
Central Administrative Tribunal
Jaipur Bench, Jaipur
Original Application No.427/2013
with MA No.180/2013
and
Original Application No. 618/2017
with MA No.622/2017
Order reserved on : 29.04.2022
Date of order:10.05.2022
Hon'ble Mr. Dinesh Sharma, Member (A)
Hon'ble Mrs. Hina P. Shah, Member (J)
O.A. No. 427/2013
Rajendra Kumar Tailor S/o Shri Chand Mal Ji, aged about 55
years, presently working as U.D.C. in the office of Deputy
Chief Labour Commissioner (Central), Ajmer, R/o Suresh
Sadan, Shiva ji Nagar main Chauraha, Madan Ganj,
Kishangarh, Ajmer
......Applicant.
(By Adv: Shri Anupam Agarwal)
Versus
1. Union of India through the Secretary, Ministry of Labour&
Employment, Shram Shakti Bhawan, Rafi Marg, New
Delhi - 110001.
2. The Chief Labour Commissioner, Central Labour
Commissioner (Central), Shram Shakti Bhawan, Rafi
Marg, New Delhi-110001.
3. Deputy Chief Labour Commissioner (Central) Kendriya
Shram Sadan, Haribhau Upadhayay Nagar
Extension, Pushkar Road, Ajmer - 305004, Rajasthan.
...Respondents
(By Adv: Shri M.K. Meena)
O.A. No. 618/2017
Giriraj Verma son of Shri Jagdish Prasad Tailor aged about 54
years, r/o AB-475, Nirman Nagar, Jaipur presently posted as
Original Application No. 427/2013 &
Original Application No. 618/2017
(2)
Assistant Labour Welfare Commissioner, Ordinance Factory,
Kanpur (UP).
......Applicant.
(By Adv: Shri Anupam Agarwal)
Versus
1. Union of India through the Secretary, Ministry of Labour&
Employment, Shram Shakti Bhawan, Rafi Marg, New
Delhi - 110001.
2. The Chief Labour Commissioner, Central Labour
Commissioner (Central), Shram Shakti Bhawan, Rafi
Marg, New Delhi - 110001.
...Respondents
(By Adv: Shri Rajendra Vaish)
ORDER
Per : Shri Dinesh Sharma, Member (A)
These two OAs, though filed in different years, relating to different posts and having a totally different chronology of events, have a common prayer based on a common legal issue. It is for considering the applicants' period of temporary/ad hoc service, following which they got regularly appointed on passing an examination held to regularize such adhoc appointees, for grant of benefits under the Scheme of ACP/MACP.
2. The respondents, in both these OAs, have denied this consideration stating the express provisions of the ACP/MACP Scheme according to which only the period of regular appointment is to be counted for eligibility for grant of these benefits. The applicants, in both the OAs, have cited various decisions in which courts and the Tribunal have held in favour of counting similar periods spent of adhoc temporary Original Application No. 427/2013 & Original Application No. 618/2017 (3) appointments for grant of ACP/MACP benefits. They have claimed similarity of treatment following Article 14 of the Constitution of India and also decisions of the High Courts in support of according such similarity of treatment.
3. Upon request of counsels of parties in both these cases, these cases were heard together and are being disposed of with this common order. A brief chronology of facts in these cases, however, is given here as a background for the common issue mentioned in the previous paragraph. The applicant in OA No.427/2013 was appointed as LDC, vide order dated 18.11.1981 (Annexure-A/4), purely on adhoc and temporary basis. He was given a regular appointment, by order dated 05.06.1986, on his passing the examination held by Staff Selection Commission. He was given benefit of first ACP from 09.08.1999. However, though he has been allegedly representing for grant of second ACP since 10.04.2006,it has been denied to him by letter dated 31.05.2010 (Annexure-A/2) which the applicant has prayed for quashing in OA No. 427/2013. The relief prayed by the applicant in said OA is reproduced below:
"It is therefore prayed that the original application may kindly be allowed. The impugned order dt. 19.1.2011 and 31.5.2010 may kindly be quashed and set aside. Respondents should be directed to count adhoc services of the applicant since 16.10.1981 to 13.1.1986. They should further be directed to grant second ACP beside third MACP accordingly by revising the orders dt. 01.7.2010 with all consequential benefits including arrears Original Application No. 427/2013 & Original Application No. 618/2017 (4) thereof. Any other relief which this learned tribunal deems fit in the facts and circumstances may kindly be passed in favour of the applicant."
4. The applicant in OA No. 618/2017 was appointed as Stenographer, by order dated 16.04.1984, on a purely adhoc and temporary basis. He was given a regular appointment, by order dated 20.01.1989, on his passing the examination held by Staff Selection Commission. Thereafter, the applicant qualified the Limited Departmental Examination for promotion to the post of Labour Enforcement Officer (Central). Thereafter, he was promoted as Assistant Labour Welfare Commissioner (C) in Junior Time Scale in PB-III against the vacancy year 2012-13. The applicant was granted second MACP w.e.f. 12.12.2008 vide order dated 20.10.2016. The applicant had represented the respondents for grant of MACP vide representation dated 09.11.2016. It has been denied to him by letter dated 20.12.2016 (Annexure-A/13). Thereafter, the applicant again represented against the said order and the said request was also rejected vide letter dated 02.08.2017 (Annexure A/1). The applicant has prayed for quashing aforesaid letters dated 20.12.2016 (Annexure-A/13) and 02.08.2017 (Annexure-A/1) in OA No.618/2017. The reliefs prayed by the applicant are reproduced here:
"It is therefore prayed that the original application may kindly be allowed. The impugned order dt. 20.12.2016 and 02.08.2017 may kindly be quashed and set aside. Respondents should be directed to count adhoc services of the applicant Original Application No. 427/2013 & Original Application No. 618/2017 (5) since 09.05.1984 to 12.12.1988 towards all service benefits. They should further be directed to revise the order dated 20.10.2016 and grant the benefit of ACP on completion of 12 years of service with all consequential benefits including arrears thereof. Any other relief which this learned tribunal deems fit in the facts and circumstances may kindly be passed in favour of the applicant."
5. Both the applicants have filed applications for condoning the delay in filing the OA, on different grounds. The respondents have opposed these requests stating that these grounds are baseless and not sufficient to condone the delay. One of the applicants (O.A. No 618/2017) have also mentioned continuous loss as a reason for condoning delay.
6. These cases were heard together on 29.04.2022.Learned counsel for the applicants based his arguments on the cases decided by various Courts/Tribunal, that are listed below. Learned counsel for the respondents stated that the respondents could not go against the express provisions of these schemes which prohibit consideration of the period spent on ad hoc appointment while counting the period required for eligibility of grant of ACP/MACP benefits. The parties were well aware of the adhoc nature of their appointment. They have not challenged the provisions of the ACP/MACP schemes under which there is clear mention about only the regular service being relevant for counting eligibility towards grant of ACP/MACP benefits. The applicants cannot be granted consideration of period of their ad-hoc appointment only on Original Application No. 427/2013 & Original Application No. 618/2017 (6) ground that some others, allegedly placed under similar circumstances, have been given similar benefits following judicial intervention. The cases cited by the learned counsel for the applicants in support of his arguments (copies of some of which were produced by him after the arguments), are listed below:
a. Judgment dated 27.01.2012 passed by the Principal Bench of this Triubnal in O.A. No. 3184/2010 in Satish Kumar Vs. Secretary Ministry of Health & Others.
b. Judgment dated 10.12.2011 passed by the Hon'ble High Court of Madhya Pradesh in W.P. No. 17651/2011 in Union of India & Ors Vs. Mrs. Lakshmi Haridas.
c. State of Karnataka and Ors Vs. C. Lalitha, (2006) 2 SCC 747.
d. Paramjit Kaur vs. Union of India & Others decided by the Chandigarh Bench of this Tribunal on 05.02.2014 in OA No.1171-CH-2012.
7. We have gone through the pleadings and have also perused the cases listed above. The decisions, no doubt, favour consideration of the period spent on adhoc appointment (which is not an arbitrary pick popularly termed as a backdoor entry), which is followed by regularization consequent on a legitimate selection process, as period eligible for counting for consideration of benefits of ACP/MACP. The Constitution of India and the principle of stare decisis bind us to follow the decisions of the Higher Courts and also the decisions of the Tribunal, when a matter, that comes before us, has already Original Application No. 427/2013 & Original Application No. 618/2017 (7) been decided upon, in no uncertain terms, in almost identical situations by Higher Courts or by this or other Benches of this Tribunal. Though the respondents, in their reply, have stated that the decisions cited by the applicants do not apply on the facts of the cases before us, we are unable to see any material difference. No difference has been specifically pointed out either in the pleadings or at the time of arguments. Despite our giving ample opportunity to produce any decision of any Higher Courts/Tribunal, that may be contrary/overriding/overruling the decisions cited by the learned counsel for the applicants, none was produced by the respondents despite having waited for full 7 days after hearing the case and reserving it for judgment. Since we find the decisions [especially the one in Paramjit Kaur vs. Union of India & Others (supra)] squarely applicable on the facts of these two cases, we have no option but to partly grant the prayers made in these OAs.
8. We, however, do not agree with the contention of the applicants, in both these cases, that their filing representations is a sufficient reason for condonation of delay. The only reason for which the delay can be condoned is the recurring nature of the loss, which the denial of the grant of benefits of ACP/MACP entails. We are inclined to condone the delay on that account and direct the respondents to consider the requests of the applicants, for the grant of ACP/MACP, if they are otherwise Original Application No. 427/2013 & Original Application No. 618/2017 (8) found eligible for such grant, including the period of their ad hoc service while considering eligibility for such grant. The benefits found due to the applicants would be notionally calculated from the date they became eligible but the actual benefits, in terms of payment in cash, would be liable to be paid starting from one year before the filing of these respective OAs. Orders, following this decision, for all consequential benefits (prospective revision of salaries/pension etc, if any) and the payment of arrears (for the period the applicants are found eligible for payment in cash) would be made within six months from the receipt ofa certified copy of this order. Failing this, interest, at the applicable GPF rates, would be payable, from the dates these actual payments become due as per this decision, till the date these are paid. The two OAs are disposed of accordingly. No costs.
9. MA No.180/2013 filed in OA No.427/2013 and MA No.622/2017 filed in OA No.618/2017 seeking condonation of delay in filing the OAs are disposed of accordingly.
(Hina P. Shah) (Dinesh Sharma) Member (J) Member (A) !Vv~