Central Administrative Tribunal - Delhi
Smt. Sharda Devi vs Director General Of Post on 19 April, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.3463 of 2010 New Delhi this the 19th of April, 2011 Honble Dr. Dharam Paul Sharma, Member (J) Smt. Sharda Devi, 52 years, W/o Late Ram Rich Pal Sharma Ex-C.P. Chawkidar, BSR H.O., Village Neemkhera P.O., Bulandshahr H.O. .... Applicant ( By Advocate Shri K.K. Sharma ) VERSUS 1. Director General of Post, Department of Post, Government of India, Dak Bhawan, Parliament Street, New Delhi-110001. 2. The Postmaster General, Agra Region, AGRA 282001. 3. Superintendent of Post Offices, Bulandshahr Division, Bulandshahr 203001. .. Respondents ( By Advocate Shri R.C. Gautam) O R D E R
The applicant is the widow of Late Shri Ram Rich Pal Sharma, ex-C.P. Chowkidar, BSR, H.O., Bulandshahr Division, who dies in harness on 25.12.2006. The applicant thereupon made representations to the respondents for compassionate appointment of her son and also for grant of pension and retiral benefits. The request of the applicant was turned down by the respondents on the ground that late Shri Ram Rich Pal Sharma, ex. C.P., Chowkidar was not regularised and, therefore, as per the applicable rules pension and gratuity are not applicable to C.P. Employees with temporary status. Her request for compassionate appointment of her son is also cannot be acceded to as the deceased employee was having a temporary status and, therefore, his dependents are not eligible for appointment on compassionate grounds under the provisions of the rules.
2. Feeling aggrieved, the applicant has filed the present Application seeking quashing and setting aside of impugned order dated 17.3.2009 whereby the respondents rejected the applicants claim for grant of pension and pensionary benefits and direction to the respondents to release pension and pensionary benefits w.e.f. 25.12.2006 with 18% interest. In support of her claim, the applicant has relied upon the case of Badri and ors. vs. Union Territory, Chandigarh and ors., 2004(1) AISLJ (CAT) 204, and Sri Jayant Govind Joshi vs. Chief Postmaster-General, Maharashtra Circle and others, 6/2009 decided on 22.1.2008, as reported in Swamysnews June, 2009 edition, copy of which is annexed at Annexure A/3. It has further been submitted that the applicants case is covered by the case of similarly situated employee Shri Bakshi, Jeep Driver, a C.P. employee under temporary status of Group D, whose widow was granted not only pension and pensionary benefits but also her son was recruited to the post of C.P. Car Driver whereas the applicant has been denied the same benefits for no reason that is per se discriminatory and violative of Articles 14 and 16 of the Constitution of India.
3. The applicants claim has been controverted by the respondents in their counter reply. It has accordingly been submitted that the applicants husband had been engaged as casual labour against the post of C.P. Chowkidar in BSR HO w.e.f. 01.02.1978 on daily wages basis. Later on he was given temporary status w.e.f. 29.11.1989 but he was not regularised in Group D cadre till his death i.e. 25.12.2006 due to non-availability of vacancy in Group D cadre. As a matter of fact, there was no vacancy in Group D cadre since 1991 till the death of the applicants husband. The counting of temporary service is permissible only if one is regularised and not otherwise. Insofar as parity with Shri Bakshi is concerned, he was working on the post of Driver and he was not a casual labour, hence the plea of the applicant is not correct.
4. The applicant has filed his rejoinder wherein he has reiterated the averments made in the OA.
5. At the hearing, learned counsel for the applicant submitted that the respondents vide their own communication dated 30.11.1992 addressed to the Heads of Postal Circles advising to treat the casual labourers after rendering three years of continuous service with temporary status would be at par with temporary Group D employees and as such would be entitled to such benefits as are admissible to Group D employees on regular basis. The applicant herein rendered more than 3 years service with temporary status. Furthermore, all the officials were advised even to process regularization of all eligible employees with three years continuous service with temporary status. Much emphasis was led by the applicants counsel on the case of Badri and others vs. Union Territory, Chandigarh and ors., 2004(1) AISLJ (CAT) 204, wherein it has been inter alia held that plea of no vacancies hence no regularization is only a camouflage to deny regularization. Persons are working for years so work exists and they are getting the pay and allowances as regular staff, as such creation of posts will entail no extra financial burden. The directions were issued in that case to regularise such employees. The important points involved in that case are as follows. Merely because Scheme envisages existence of vacancies for regularization, one cannot be denied regularization. The Government must create posts to regularise eligible persons. Existence of long continuous service leads to presumption of existence of vacancies. Financial Constraints of Government is no ground to refuse regularization. State should take up only that much work as is within its financial capacity. Non-existence of vacancies is no ground to deny regularization. Denying retiral benefits to casual labour is anti socialistic and also an unfair labour practice. The learned counsel for the applicant has taken us through the order in details contending that the deceased employee having served for 28 years ought to have been regularised even without there being any vacancy for it was incumbent upon the respondents to create vacancy for such purpose. This case of Badri (supra) has been followed in the case of Sri Jayant Govind Joshi vs. Chief Postmaster-General, Maharashtra Circle and others, 6/2009 decided on 22.1.2008, as reported in Swamysnews, holding that the applicant therein was entitled to count his temporary status for pension and other pensionary benefits.
6. The learned counsel for the respondents submitted that no parity can be claimed by the applicant with the case of Bakshi who was indeed regularised on 14.3.1996 w.e.f. 3.8.1989. As he was regularised before the time of his death, his legal heirs were given benefits as per the relevant rules. It is not the case in hand. The applicant was not regularised at all. Furthermore, the Recruitment Rules were amended in 2002 as at Annexure R/2, insofar as regularization is concerned. Since there was no vacancy, as has been pointed out, regularization could not have been done in the present case. The case of Badri was confined to the facts of that case. There is no camouflage as has been found in the present case. As such the case is thus distinguishable on facts. There is no law that enjoys upon the respondents to create vacancies where there exist none in order to accommodate casual labourers, who are engaged in the exigency of work without following the due process of Recruitment Rules.
7. I have given my careful consideration to the respective submissions of both the parties. I have also carefully perused the records of the case.
8. The case of Bakshi on which much reliance has been placed by the applicants counsel stands on different footing. There is no parity between the two. Bakshi was not a casual labour. He has already been regularised during his lifetime. This was not so in the case of the applicants husband herein.
9. The case of Sri Jayant Govind Joshi (supra) is also not relevant as the present case is not for counting of temporary service in case of casual labour who had been regularised. The administrative instructions provide for counting of temporary service in case of casual labours who have been regualrised for the purpose of pensionary benefits from the date of grant of temporary status, if they served for three years in that status as per the amended circular dated 30.11.1992 of the Postal Department. A copy of the same is at Annexure A/3 testifying this fact. Accordingly, this will not be applicable in the case of the casual labourers who have not been regularised. Therefore, they are not eligible to counting their temporary service for the purpose of pensionary benefits.
10. Insofar as the case of Badri (supra) is concerned, the applicants therein claimed regularization of their services and parity in pay and allowances with their counterparts who were appointed on regular basis. Regularisation was denied to the applicants therein by the respondents on the ground of non-availability of the vacancy or post. Since the respondents department had already issued orders for grant of wages or salary to the applicants therein or other similarly situated employees as is admissible to the counterparts appointed on regular basis. The only issue that survived for consideration in that case was regularization of the services of the applicants therein. The claim of the applicants therein were opposed by the respondents by relying upon the decision of earlier case of Chandigarh Bench of this Tribunal in the case of Kelongi and others vs. Union Territory and others in OA-1296-CH, wherein it was observed that those applicants would be regularised as and when vacancies arise. The said case was distinguished in the Badris case as various decision of the Apex Court were not brought to the notice of the Bench and, therefore, escaped consideration. While noting that Apex Court in the case of Union of India and others vs. Dharam Pal and others, (1996) 4 SCC 195, had observed that those employees who had not been regularised were to be regularised in order of their seniority as and when vacancies arise. These observations were considered in the historical retrospect of the various OAs filed by the applicants in the Badri case. In the historical retrospect in that case the Tribunal concluded on facts that the services of the applicants therein be regularised in terms of the Scheme approved by the Apex Court as and when vacancies arise or in the circumstances, nothing but subterfuge for the obvious reason that most of the applicants would end up their career without being regularised in service and consequently be deprived of retiral and pensionary benefits. The order in Badri case is thus confined to the facts of the case.
11. The legal position on the issue involved in the case has finally been settled by the Honble Supreme Court in the case of Secretary, State of Karnataka vs. Umadevi, 2006(4) SCALE 197. The question in this case where merely because the temporary employee or casual wage worker is continuing for a time beyond the term of his appointment, he would be entitled to be absorbed in regular service or made a permanent merely on the strength of that continued in service if recruitment was no made by following the due process of selection. The question was answered in negative. It has further been held in that case that the doctrine of legitimate expectation cannot be invoked in such cases. It has further been held that the rights of the employees thus appointed under Articles 14 and 16 of the Constitution of India would not be violated. It cannot be said that such action in not regularizing the employee is not appeared to be within the framework of the rule of law. Even the employment on daily wages was held to be not forced labour. No mandamus can be issued in favour of such persons. While holding as aforesaid, the Honble Supreme Court clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held in this judgment, would stand denuded of their status as precedents.
12. In view of the aforesaid, the case of Badri (supra) is not help to the applicant. The Application is accordingly dismissed being devoid of substance. No costs.
(Dr. Dharam Paul Sharma) Member (J) /ravi/