Calcutta High Court (Appellete Side)
Sunity Chakraborty vs Union Of India & Others on 11 March, 2014
Author: Nishita Mhatre
Bench: Nishita Mhatre
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Justice Nishita Mhatre
And
The Hon'ble Justice Tapash Mookherjee
WPCT 497 of 2013
Sunity Chakraborty
-vs.-
Union of India & Others
WITH
WPCT 498 of 2013
Pratima Giri
-vs.-
Union of India & Others
For the Petitioners : Mr. Gokul Chandra Chakraborty
For the Respondents : Mr. P. S. Bose
Mr. Dilip Kr. Maity
Heard on : 31.01.2014, 10.02.2014, 12.02.2014, 25.02.2014
Judgment on : 11.03.2014
Nishita Mhatre, J.:
1. Both these petitioners have challenged the common order passed by the Central Administrative Tribunal, Calcutta Bench in OA no. 448 of 2012 and OA no. 449 of 2012 on 21st June, 2013.
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2. The petitioner in WPCT no. 497 of 2013 Sunity Chakaraborty was appointed as a trained nurse on 20th August, 1975. The petitioner in WPCT no. 498 of 2013 Pratima Giri was appointed to the same post on 22nd November, 1975. Both the petitioners being trained nurses were initially appointed on an ad hoc basis against a substantive post which was sanctioned. They had fulfilled all the eligibility criteria and were recruited after completion of all the formalities, including an interview.
3. While working on an ad hoc basis they were granted the same facilities and were governed by the service conditions, which were applicable to the regular staff. They even subscribed for the General Provident Fund (hereinafter referred to as 'GPF'). The petitioners were regularised in service after six years on the approval of the railway authorities. The conditions of service and scale of pay along with the yearly increment were reckoned from their dates of initial absorption in service on an ad hoc basis. The petitioners were promoted twice during their tenure of service of more than 30 years. Sunity Chakraborty retired on superannuation on 31st March, 2009 on completion of more than 33 years of service whereas the other petitioner Pratima Giri retired on superannuation on 31st May, 2011 after completion of more than 35 years of service.
4. The entire period of service including the service rendered by the petitioners as ad hoc employees was reckoned for the purpose of computing qualifying service for payment of pension and other retiral 3 benefits. According to the petitioners after completion of 30 years of service they became entitled to Modified Assured Career Progression Scheme (hereinafter referred to as 'MACP Scheme'). However, the benefits of this Scheme were denied to them. The respondents thought it fit not to include the period which they had rendered as ad hoc employees for deciding whether the Scheme was applicable to them. Had the Scheme been made applicable to the petitioners they would have been entitled to financial upgradation as a result of which their pensionary benefits and other retiral dues would have increased.
5. Sunity Chakraborty filed Original Application before the Central Administrative Tribunal, Calcutta Bench being OA no. 449 of 2012, whereas Pratima Giri filed OA no. 448 of 2012 as they were aggrieved by the denial of the financial upgradation payable to them under the MACP Scheme.
6. The Tribunal dismissed the Original Applications on 21st June, 2013 by concluding that under the MACP Scheme only regular service of an employee was to be reckoned for the purposes of granting benefits under the Scheme. The Tribunal was of the view that since the petitioners had not rendered 30 years of service as regular employees, they were not entitled to the benefits of the MACP Scheme. The Tribunal concluded that the petitioners were not entitled to the 3rd financial upgradation under the aforesaid Scheme.
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7. Aggrieved by the decision of the Tribunal the petitioners preferred review petitions before the Tribunal. The Tribunal dismissed those review petitions by common order on 29th August, 2013.
8. Being aggrieved by the impugned orders dated 21st June, 2013 and 29th August, 2013 the petitioners have approached this Court in the present writ petitions.
9. Mr. Gokul Chandra Chakraborty, learned Counsel appearing for the petitioners has submitted that the petitioners are entitled to the benefits of the MACP Scheme and the 3rd financial upgradation because their ad hoc period of uninterrupted service was followed immediately by regularisation. He pointed out that the petitioners were regularised in service pursuant to the approval of the Railway Service Commission. He then submitted that the respondents had denied the petitioners the benefits of the Scheme by excluding the ad hoc period of service unjustifiably, when they had included this period for the purposes of payment of leave encashment, yearly increment, pension and other dues. He also pointed out that the GPF subscription was recovered from the petitioners even during their ad hoc period of service. He submitted that under Clause 9 of the MACP Scheme which defines "Regular service" for the purposes of the Scheme, ad hoc service rendered by the petitioners who were appointed as duly trained nurses cannot be excluded. The learned Counsel then pointed out the clarificatory note issued by Government of India, Ministry of Personnel, Public Grievances and 5 Pensions (Department of Personnel and Training) dated 9th September, 2010 under which, according to the learned Counsel, the Government has clarified that benefits of the MACP Scheme would be available from the date of actual joining of the post in the entry grade, and not from the date of regular service / approved service. He urged, therefore, that their can be no doubt now that as per the clarificatory note the petitioners would be entitled to the 3rd financial upgradation as they have completed 30 years of service including the period spent as ad hoc employees. The learned Counsel has placed reliance on the judgments of the Supreme Court in Thiru A Balakrishnan and Another -vs.- Government of T. N. and Others reported in 1995 Supp (4) SCC 108 and of the Bombay High Court in the case of Union of India and Anr. -vs.- Karan Anant Purao reported in 2013 Labour Industrial Cases 4539. Mr. Chakraborty has also relied on the judgment in the case of State of Karnataka and Others -vs.- C. Lalitha reported in (2006) 2 SCC 747 to fortify his submission that all persons similarly situated should be treated equally, irrespective of the fact that only one person has approached the Court. His submission was that since the Central Government had extended the MACP Scheme by including ad hoc period in respect of employees in the Canteen Stores Department, Union of India, the same benefit should be extended to the petitioners.
10. Mr. P. S. Bose, learned Counsel for the respondents, has argued that the judgments cited, have no application to the facts of the present case as the petitioners are railway employees. According to him, the 6 clarificatory note issued by the Government of India on 9th September, 2010 has no application to railway employees as they are governed by the service conditions which are exclusively meant for railway employees. He then submitted that the petitioners are not entitled to any relief because on a proper interpretation of the MACP Scheme it would be apparent that the service rendered by an employee on an ad hoc basis cannot be included for extending the benefits of the MACP Scheme.
11. There is no dispute that the petitioners were appointed in the railway hospital as they were trained nurses, even before their employment on an ad hoc basis. They have rendered 6 years of service on an ad hoc basis and without interruption. Immediately on completion of this period of ad hoc service the petitioners were regularised after due approval by the railway authorities. The service conditions and the pay scales extended to the petitioners while employed on an ad hoc basis were the same as that of regular employees.
12. Clause 9 of the MACP Scheme which was brought into effect on the recommendation of the Sixth Pay Commission for railway employees reads as follows :
"9. 'Regular service' for the purposes of the MACPS shall commence from the date of joining of post in direct entry grade on a regular basis either on direct recruitment basis or on absorption/re-employment basis. Service rendered on adhoc/contract basis before regular appointment 7 on pre-appointment training shall not be taken into reckoning. However, past continuous regular service in another Government Department in a post carrying same grade pay prior to regular appointment in a new Department, without a break, shall also be counted towards qualifying regular service for the purposes of MACPS only (and not for the regular promotions). However, benefit under the MACPS in such cases shall not be considered till the satisfactory completion of the probation period in the new post."
13. A bare perusal of this Clause indicates that only such service which is rendered on an ad hoc or contractual basis on pre-appointment training, before regular appointment shall not be taken into reckoning for extending the benefits of the scheme. Thus, if an employee is recruited on an ad hoc basis and undergoes training before he is absorbed as a regular employee, the period of service rendered by him as an ad hoc employee cannot be included for the purposes of extending the benefits under the Scheme. However, if an employee has acquired the training requisite for the job that he is recruited for, albeit on an ad hoc basis, prior to his appointment, that period of ad hoc service must be included for payment of the benefits of the Scheme. The Scheme which is envisaged by the Railway Board is para materia with the MACP Scheme for the Central Government Civilian Employees which has been issued on 9th September, 2010 by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training). In fact Clause 9 in the Scheme applicable to the Central Government Civilian Employees is 8 identical to Clause 9 of the MACP Scheme which is applicable to the railway employees.
14. The Bombay High Court in Union of India -vs.- Karan Anant Purao (supra) considered a case where the Central Administrative Tribunal had allowed the applications filed by the employees for benefit under the Assured Career Progression Scheme, (hereinafter referred to 'ACP Scheme') which was a precursor of the MACP Scheme, by including the service rendered by them on casual basis prior to the order of regularisation. All other employees in the same batch as the respondent in that case had been extended the benefit in various proceedings pursuant to the order passed by the benches of the Central Administrative Tribunal, at Ernakulam and Mumbai. The Central Administrative Tribunal, Ernakulam Bench had held that the employees were entitled for regularisation in service as lower division clerks from the initial date of their appointment. Being dissatisfied with the order, the Union of India challenged it by filing O.P. no. 32410 of 1999 before the Kerala High Court. The petition was dismissed by the High Court. The order of the High Court was impugned by the Union of India before the Supreme Court which dismissed the Civil Appeal on 31st March, 2010. However, the Supreme Court observed that the impugned judgment would not operate as a precedent in future.
15. The Mumbai Bench of the Central Administrative Tribunal extended the benefits of the ACP Scheme to other employees by 9 reckoning the service from the date of their initial appointment. The Division Bench of the Bombay High Court was not impressed with the argument on behalf of the Union of India that the order passed by the Central Administrative Tribunal, Ernakulam Bench and the Kerala High Court should not be treated as a precedent as directed by the Supreme Court. The Court found that the Union of India had accepted and implemented which were identical to the impugned judgment and, therefore, the Court was of the opinion that there was no need to exercise its extraordinary writ jurisdiction in that case. The Court found that the Mumbai Bench of the Central Administrative Tribunal had arrived at the same conclusion as the Ernakulam Bench, independently, and had not treated the order of the Ernakulam Bench as a precedent.
16. Mr. Bose has harped on the fact that while dismissing the petition filed by the Union of India, the Bombay High Court had observed that the order had been passed in the peculiar facts and circumstances of that case and, therefore, the judgment in Karan Anant Purao's case (supra) has no bearing on the facts of the present case. He also submitted that while dismissing the Civil Appeals, the Supreme Court had observed that the judgment would not be treated as a precedent.
17. It is true that the Supreme Court while disposing of the civil appeals against the decisions of the Kerala High Court has observed that the judgment of the Kerala High Court would not operate as a precedent in future and that the Bombay High Court has dismissed the writ petition 10 filed by the Union of India before it in the peculiar facts and circumstances of the case. We are convinced, however, that a true interpretation of Clause 9 of the MACP Scheme as applicable to the railway employees does not lend credence to the construction placed on it by the Railways or by the Tribunal. As mentioned earlier, the phrase 'regular on pre appointment training' cannot mean ad hoc service rendered after obtaining the requisite training.
18. In the case of Thiru A Balakrishnan (supra), the Supreme Court has opined that in the absence of any specific order denying seniority to an employee from the date of his initial appointment he is entitled to count the whole period of service for the purpose of seniority including the period prior to the date of regularisation in service.
19. The submission of the learned Counsel for the petitioner that when Government of India has accepted the judgment in the case of one set of employees it should be followed for all employees irrespective of whether those employees have approached the Court of law must be accepted. In State of Karnataka and Others -vs.- C. Lalitha (supra) the Supreme Court has held thus :
"29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the Court that would not mean that persons similarly situated should be treated differently. It is furthermore 11 will settled that the question of seniority should be governed by the rules. It may be true that this Court took notice of the subsequent events, namely, that in the meantime she had also been promoted as Assistant Commissioner which was a Category I Post but the direction to create a supernumerary post to adjust her must be held to have been issued only with a view to accommodate her therein as otherwise she might have been reverted and not for the purpose of conferring a benefit to which she was not otherwise entitled to."
The argument of Mr. Bose that the petitioners cannot take advantage of the judgment of the Kerala High Court which has been upheld by the Supreme Court or of the Bombay High Court because these judgments were rendered in respect of Central Government employees and not railway employees, is unsustainable. We have compared Rule 9 of the MACP Scheme applicable to the Central Government employees and the Scheme applicable to railway employees and we have found that Clause 9 is identical in both Schemes. Moreover, the clarificatory note issued by the Department of Personnel and Training leaves no manner of doubt that service rendered prior to regularisation must also be reckoned for extending the benefits of MACP Scheme.
20. In our opinion, therefore, the Tribunal has erred in rejecting the applications of the petitioners. A correct interpretation of Clause 9 of the Scheme would entitle the petitioners to the benefits of the MACP Scheme as both of them have completed more than 30 years of service in 12 employment from the date they had been appointed as trained staff nurses but on an ad hoc basis. They would thus be entitled to the 3rd financial upgradation. The petitioners would also be entitled to all arrears of pay and allowances and other pensionary benefits consequent to the extension of the benefits of the MACP Scheme.
21. The petitions are allowed accordingly. The respondents shall pay all arrears to the petitioners and refix the pension payable to them within 4 months from today.
22. Urgent certified photocopies of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Tapash Mookherjee, J.) (Nishita Mhatre, J.)