Central Administrative Tribunal - Hyderabad
G. Bhasker Lal vs Union Of India (Uoi), Rep. By Its ... on 4 May, 2007
ORDER Bharati Ray, Member (J)
1. This application has been filed by the applicant seeking for the following reliefs:
Declare the respondents action in not adding the past service of Task Force of the applicant to the regular service is clearly in violation of the judgment of this Hon'ble Tribunal in O.A. 1501/2003 dt. 7.2.2005, and it is clear discrimination among similarly situated employees and it is In reply to : violation of applicant's fundamental rights guaranteed under article 14 of the Constitution of India, and consequently direct the respondents herein to count the past service rendered by the applicant in Task Force Service w.e.f. 1.10.1972 for the purpose of financial and pensionary benefits.
2. It is the case of the applicant that he initially joined as skilled personnel on contract basis as Task Force personnel on work charged basis for the construction of Naval Dry Dock Project, Vizag by the Garrison Engineer (P)(E/M)(DD)(V). Applicant was appointed by order dated 1.10.1972. The services of the applicant were absorbed into regular establishment of military engineering service w.e.f. 28.10.1983 and since then he continued in service and presently he is working in the office of 4th respondent. The applicant is due to retire in the year 2007.
3. The applicant along with others approached the Hon'ble High Court of A.P. by filing Writ Petition No. 3850/78 which was disposed of on 3.3.1980 by directing the respondents therein to treat the petitioners as surplus and absorb them in regular vacancies in Defence Establishments with all benefits. In compliance with the judgment of the Hon'ble High Court of A.P. in the above writ petition and Govt. of India, Ministry of Defence, New Delhi letter No. 79962/CE/DD (V)/EIC/2332-S/D Appts) dated 29 august, 1983 the applicant was absorbed in regular temporary establishment with effect from 29 October, 1983. Accordingly, his service was regularised with effect from 29 October, 1983. The respondents issued office order dated 8.7.1977 and clarified that the Task Force Personnel rendered surplus and who cannot be absorbed in the Naval Dock Yard for lack of vacancies may be adjusted against the deficiencies in other defence establishments under the provision of SA-O 8/S/76 and after such adjustment in Naval Dockyard or other Defence Establishments these personnel are entitled to the benefit of past continuous service rendered by them in the task force for the purpose of pay etc. The said order dated 8.7.1977 is enclosed at page 9 as Annexutre A-1 of the OA. In the order dated 29.8.1983 enclosed as Annexure A-2 to the OA, in paragraph 2, i.e. below the list of 62 candidates it is mentioned that "the period of service rendered prior in issue of this letter shall not be counted for purposes of seniority, confirmation and promotion." Para 1 of the said letter stipulated that the regular service of the applicant would count only from the date of issue of letter. It is undisputed that the applicant was absorbed in regular temporary establishment with effect from 29 October, 1983 on the basis of age relaxation issued vide 79962/CE/DDV/EiC/2332-S/D Appts) dated 29 August 1983. The respondent No. 3 published official Part Two Order (PTO) No. 19/34/2006 dated 08 May 2006 regarding verification of qualifying service as on 31 March 2006 in respect of MES-183385 Shri G. Bhaskar Lal, Vehicle Mechanic, the applicant herein, as per the Audit report of the Regional Audit officer (MES) Visakhapatnam received from the higher authorities who maintain Service Books of the applicant. The said PTO order dated 08 May,2006 is enclosed at page 14 of the OA. The applicant is at sr. No. 34 of the said list and it can be seen from the said order that applicant's qualifying service has been taken for the period from 29 October,1983 to 31 March,2005 and it was calculated as 21 years 05 months and 03 days. Questioning the said order the applicant has filed this OA seeking for the aforesaid relief.
4. The learned Counsel for the applicant has drawn my attention to Annexure A-III, page 12 of the OA to show that the applicant's date of initial appointment is noted there as 01.10.1972. He continued as such till 28.10.1983. His service was regularised by order dated 29 August,1983 with effect from the date of order (29-08-1983) which can be evident from Annexure A-II at page 10 of the OA where the applicant's name is shown at Sr. No. 7 of the list. It is, therefore, the contention of the learned Counsel for the applicant that respondents while calculating the qualifying service rendered by the applicant has not taken into account the period of service rendered from 01.10.1972 to 28.10.1983. In this context he has drawn my attention to page 13 of the OA to show that one Shri V.V. Krishna Rao, Wireman, who is at sr.no. 29 in the list joined initially on 26.08.1975 and like the applicant continued as such till 28.10.1983 and was regularised along with applicant vide order dated 29th August, 1983. The name of Shri V.V. Krishna Rao is at sr. No. 9 in the list at page 10. The applicant submits that although he is similarly situated like Shri V.V. Krishna Rao, respondents in his case has calculated his qualifying service by taking into account the date of initial appointment as 26.08.1975 which can be evident from page 21 of the OA. It is also submitted by the applicant that similarly situated person like the applicant filed OA No. 1501/2003 for a direction to the respondents to count the past continuous service rendered as Task Force Personnel and the said OA was allowed with the following order:
8. That being the position I am of the view that since it has been certified by the concerned authority that the applicant has already been in service since May, 1968 which has not been denied by the respondents, the applicant is entitled to count the service rendered in Task Force in Port Blair for the purpose of financial and pensionary benefits etc. as per rules. Respondents are directed to count the service rendered by the applicant in Task Force Service in Port Blair between May, 1968 and 4.11.1972 for the purpose of financial and pensionary benefits as per rule/instruction and the applicant shall be paid the benefit within two months from the date of communication of the order.
5. It is, therefore, the contention of the applicant that as per the said judgment of this Tribunal the past service in Task Force is to be added into regular service of the applicant. Therefore, the respondents' action in not adding the said service is clear violation of the judgment of this Tribunal in OA 1501/03 dated 07.02.2005.
6. Respondents have contested the application by filing a counter reply. Respondents have not disputed in regard to the initial appointment of the applicant with effect from 01.10.1972 as task force personnel and his regularisation of service by order dated 29-10-1983. It is the contention of the respondents that 3rd respondent published official Part Two Order (PTO) dated 08 May, 006 regarding verification of qualifying service as on 31 March 2006 in respect of the applicant as per the Audit report of the Regional Audit Officer (MES) Visakhaptnam received from the higher authorities. Therefore, there is nothing wrong or bias in publication of PTOs by the 3rd respondent. It is stated by the respondents that as per Govt. of India, Ministry of Defence letter dated 29 August, 983 the applicant was absorbed in regular temporary establishment with effect from 29 October, 1983. In regard to the judgment of this Tribunal in OA 1501/2003 relied upon by the applicant the respondents have stated that the said judgment is applicable in the case of personnel employed in task force at Port Blair(Andamans) and the orders are not applicable for the employees in Task Force under Chief Engineer, Dry Dock, Visakhapatnam. The respondents have referred to the judgment of the Hon'ble High Court of AP dated 14 August 2003 in WP No. 15250/99 filed by the applicant along with another individual viz. Shri DM Subramanyam and the order is as under:
Accordingly, the services of the petitioners have been regularised w.e.f. 29.08.1983. Aggrieved by that portion of the order dated 29.08.1983, the petitioner herein filed OA 1147/86 and the Tribunal by its order dated 07 August 1991 rejected the request of the Petitioners for regularisation of their services from the date of their initial engagement i.e. from 01 October,1972 and 23 August 1975 upholding the letter dated 08 July 1977 issued by the Govt. of India, Ministry of Defence wherein it is stated that on adjustment in Naval Dockyard or other Defence Establishment, these personnel will be entitled to the benefit of past service rendered by them in the Task Force for the purpose of pay which would mean that they are entitled to financial benefit only and not for purpose of seniority, promotion, confirmation etc.
7. It is the contention of the respondents that applicant's pay was refixed after granting annual increments of Task Force Service under Chief Engineer, Dry Dock, Visakhapatnam vide GE (ND) Visakhapatnam Special PTO Sl No. 53/1/2005 dated 15 Sep 2005 and he was paid arrears of Rs. 1,74,153/- vide DV No. 6061 of 11/2005. It is also the case of the respondents that applicant himself has accepted his absorption in regular temporary establishment only with effect from 29 Oct 1983 and Govt. order dated 29 August 1983 are very clear that they are eligible for counting of service only from the date of their absorption in regular service. At para 2 of the said government order it is mentioned that the period of service rendered prior to issue of the letter shall not be counted for purposes of seniority, confirmation and promotion. It is, therefore, the case of the respondents that in view of the contention of the respondents in this counter reply and the order mentioned therein and the condition stipulated therein the OA is devoid of merit and deserves to be dismissed.
8. Heard Mr. K. Sudhakar Reddy, learned Counsel for the applicant and Mr. Bhim Singh for Mr. Y. Ravindra, learned Counsel for the respondents. I have gone through the facts of the case and material papers placed before me. I have also gone through the judgments relied upon by the learned Counsel for the parties. In view of the above facts and circumstances the question that falls for consideration is whether benefit of continuous service rendered by the applicant in the task force prior to his absorption is to be taken into account for the purpose of pension in terms of letter dated 08.07.1977 enclosed at page 9 of the OA. From the judgment of the Hon'ble High Court in writ petition No. 15250/1999 filed by the applicant and one DM Subrahmanyam I find that the applicant earlier approached this Tribunal in OA 1147/86 aggrieved by the portion of the order dated 29.8.1983 wherein, in para 2 it was mentioned that the period of service rendered prior to issue of the letter shall not be counted for the purpose of seniority, confirmation and promotion. The Tribunal in the said OA rejected the request of the applicant for regularization of their services from the date of their initial engagement i.e. from 1.10.1972 and 23.8.1975 upholding the letter dated 8.7.1977 issued by the Government of India wherein it is stated that on adjustment in Naval Dockyard or other Defence establishments these personnel will be entitled to the benefit of past service rendered by them in the task force for the purpose of pay which would mean that they are entitled to the financial benefit only and not for purpose of seniority, promotion, confirmation etc. The Hon'ble High Court has observed that the above decision of the Tribunal has become final and therefore upheld the decision of the Tribunal in OA 345/97 by dismissing the writ petition No. 15250/1999. In this context learned Counsel for the applicant has produced before me the order in T.A. No. 1147/86. From the said judgment I find that para 4 of the said judgment is very much relevant to decide the issue involved in this OA. Therefore, the same is extracted below:
4. We have examined the case and heard the learned Counsel for the applicants and the respondents. On the day of hearing the learned Counsel for the respondents Shri N. Bhaskara Rao pointed out that similar cases had already been adjudicated by this Bench. On a scrutiny, we find that cases of this nature have already been decided upon by this Bench in the judgment dated 10.8.90 in O.As. No. 703/87 and 107/88. In the letter dated 8.7.77 in para 3 it is stated that on adjustment in Naval Dock Yard or other Defence Establishment these personnel will be entitled to the benefit of past continuous service rendered by them in the Task Force for the purpose of pay etc. This would only mean that financial benefits alone are to be given to them taking into account the past continuous service. In O.As No. 703/87 and 107/88 we had held that the applicants therein on being conferred regular status in terms of certain special orders issued by the Defence Ministry were entitled to all the financial benefits on par with regular employees i.e. fixation of pay, grant of annual increments, calculation of leave, pension, gratuity, other terminal benefits and medical reimbursement. We made distinction between according regular status and regularization and held that the seniority can be reckoned only from the date of regular appointment to the cadre. Extending the same principle, the benefit of past continuous service referred to in the letter of 8.7.77 is to be confined only to financial benefits and not for purpose of seniority, confirmation and promotion. Therefore, para 2 of the letter dated 29.8.83 is fully in order. The application is, therefore, dismissed with no order as to costs.
9. This Tribunal has clarified the spirit of letter dated 8.7.1977 by saying that those who have been conferred regular status were entitled to all the financial benefits on par with regular employees i.e. fixation of pay, grant of annual increments, calculation of leave, pension, gratuity, other terminal benefits and medical reimbursement. In this context it will not be out of place to mention that in para 2 of order dated 29.8.1983 it is categorically mentioned that period of service rendered before the issue of service cannot be counted for seniority, promotion and confirmation, and it has not said anything about pension. Therefore, in view of the decision of this Tribunal, in terms of letter dated 8.7.1977 the applicant is entitled to get the benefit of service rendered by him from the date of initial appointment till his absorption in service towards pensionary benefits. It is reiterated that the order of this Tribunal dated 7.8.1991 in TA 1147/86 has already been upheld by the Hon'ble High Court. That being the position the applicant is entitled to count his past service rendered in task force with effect from 1.10.1972 for the purpose of financial and pensionary benefits.
10. The respondents are therefore directed to count the service rendered by the applicant in task force service from the date of his initial appointment i.e. 1.10.1972 for the purpose of financial and pensionary benefits and modify the order dated 08.05.2006 accordingly insofar as the applicant is concerned. Since the applicant was 59 years old when he filed the OA in October,2006, the respondents shall pass appropriate order within a period of two months from the date of receipt of a copy of this order.
11. In result, the OA is allowed to the extent indicated above with no order as to costs.