Central Administrative Tribunal - Lucknow
Ram Sundar Yadav vs Post Up Circle on 29 May, 2024
CAT, Lucknow Bench OA No. 332/00334 of 2022 Ram Sunder Yadav Vs. U.O.I. & Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No.332/00334/2022
Order reserved on: 19.04.2024
Order pronounced on: 29.05.2024
Hon'ble Mr. Pankaj Kumar, Member-Administrative
Ram Sundar Yadav, aged about 64 years, son of Devkali Prasad,
resident of village - Hashapur (Kandhari ka Purva), Post - Dabha
Semar, Tahsil - Bikapur, District Ayodhya UP 224164.
.....Applicant
By Advocate: Shri D N Tripathi
VERSUS
1. Union of India through the Secretary, Ministry of Communication,
Department of Posts, Government of India, Dak Tar Bhavan, New
Delhi.
2. The Chief Post Master General, UP Circle, Lucknow.
3. Senior Superintendent of Post Offices, Faizabad, Head Post Office,
Faizabad, now Ayodhya.
.....Respondents
By Advocate: Smt. Prayagmati Gupta
ORDER
Per Hon'ble Mr. Pankaj Kumar, Member-Administrative In this case, the applicant has sought following reliefs:-
(i) Issue an order/direction in the nature of Mandamus commanding the respondents to pay old pension by issuing Pension Payment Order along with all retiral benefits in favour of the applicant and also make payment of arrears thereof with interest @ 12% per annum from the date of its due till the date of actual payment and other post retiral benefits with all benefits of service.
(ii) Issue an order/direction in the nature of Mandamus commanding the respondent no. 3 to consider and decide the pending representation of the applicant dated by passing a reasoned and speaking order in accordance with law within a time frame to be fixed by this Hon'ble Tribunal.Page 1 of 7
CAT, Lucknow Bench OA No. 332/00334 of 2022 Ram Sunder Yadav Vs. U.O.I. & Ors.
(iii) Issue such other order/direction which may be deemed just and proper in the circumstances of the case.
(iv) Allow the original application with cost against the respondents in view of the facts and circumstances, legal provisions and Grounds raised in the application.
2. The facts of the case are that the applicant was appointed as contingent paid Waterman-cum-Mali with effect from 13.07.1982 at Head Post Office, Faizabad now Ayodhya. He was given temporary status on 29.11.1989 and further treated at par with temporary Group D on 01.07.1994 in terms of the scheme for grant of temporary status and regularization of casual labourers/contingent paid employees formulated by the respondents vide letter dated 12.04.1991. The applicant retired from service on 30.11.2018. He submitted representation dated 05.10.2020 for payment of pension and other post-retirement benefits. Aggrieved at non-payment of pension and terminal benefits, the applicant has preferred this OA.
3. It is the applicant's contention that in similar cases this Tribunal has held the applicants entitled for pension and post- retirement benefits [OA No. 518 of 1996 Chandrika Devi Bhatt vs Union of India & Ors decided on 21.07.2000 by Allahabad Bench of this Tribunal; OA No. 917 of 2004 Chandi Lal vs Union of India & Ors decided on 18.06.2004 by Allahabad Bench of this Tribunal; OA No. 383 of 2003 Ram Narain vs Union of India & Ors decided on 22.09.2011 by this Tribunal; OA No. 155 of 2012 Amanullah vs Union of India & Ors decided on 04.05.2013 by this Tribunal; OA No. 1626 of 2005 Shyam Lal Shukla vs Union of India & Ors decided on 28.07.2009 by Allahabad Bench of this Tribunal; OA No. 278 of 2019 Shiv Balak vs Union of India & Ors decided on 27.05.2022 by this Tribunal; and OA No. 498 of 2018 Smt Ram Kali vs Union of India & Ors decided on 27.05.2022 by this Tribunal]. Further, Hon'ble High Court, in Writ Petition No. 225 of 2008 (S/B) Ram Das vs CAT, Page 2 of 7 CAT, Lucknow Bench OA No. 332/00334 of 2022 Ram Sunder Yadav Vs. U.O.I. & Ors. Lucknow has set aside on 07.03.2013 the order of this Tribunal; and in Writ Petition No. 1660 (S/B) of 2014 Parshuram Tadav vs Union of India & Ors has set aside on 06.01.2016 order of this Tribunal, and directed the respondents to consider the cases of applicants therein.
4. The respondents state that 13 applicants (with the applicant arrayed at S. No. 3) filed OA No. 145 of 2007 Bipin Kumar Srivastava & 12 Ors vs Union of India & Ors before this Tribunal which was dismissed vide order dated 13.02.2009. Out of 13 applicants of OA No. 145 of 2007, 4 petitioners filed Writ Petition No. 1169 (S/B) of 2009 Ram Sunder Yadav & Ors vs Union of India & Ors which was decided on 04.07.2012 in favour of the Department. The applicant, who was also one of the petitioners in the Writ Petition, filed Review Application which was disposed of vide order dated 27.01.2020 in terms of order dated 20.04.2018 passed in another Review Application. Thereafter, the applicant submitted representation dated 10.02.2020 which was rejected vide memo dated 11.06.2021 in the following terms:
"Shri Ram Sunder Yadav has attained the age of superannuation without comes his turn as per the seniority list prepared by the department for regularization in accordance with 25% vacancies falling under the prescribed quota as per recruitment rules."
The respondents assert that the applicant has filed the present OA concealing the above facts.
5. Heard both the parties.
6.1 A perusal of the order dated 13.02.2009 of this Tribunal in OA No. 145 of 2007, in which the applicant was one of the 13 applicants and listed at serial number 3, reveals the following position in its concluding paragraphs:
"10. Admittedly, the applicants 1 to 11 belonging to Faizabad Division and remaining two employees belonging to Kheri Division. It is also the case of the respondents that approval was given by the office of the CPMG, UP Circle in October, 2005 for filling up 6 Group 'D' posts in Faizabad Division and a Temporary Status casual labour, who is senior to the applicants stands regularizaed in Faizabad Division whereas in Kheri Page 3 of 7 CAT, Lucknow Bench OA No. 332/00334 of 2022 Ram Sunder Yadav Vs. U.O.I. & Ors.
Division only two posts in Group 'D' are vacant and as per the Recruitment Rules, none is to be filled in through casual labours and due to such reasons these applicants have not to be regularized as Group 'D' in their respective division for want of vacancies falling under the quota of casual labours and with such reasons the respondents have rejected the claim of the applicants.
11. From the rejection order it clearly says that no such vacancies are available in the division of the applicants i.e. Faizabad and Kheri under the quota of casual labours and in such circumstances, finding fault with the impugned order is not at all sustainable. It is not the case of the applicants that any such vacancies were available in their division under the quota of casual labours in which, casual labours/temporary status employees, who are juniors to the applicants have been regularized, ignoring the seniority of the applicants. Admittedly, casual labours, whom the applicants shown as their juniors, were belonging to other circle i.e. circle office and regularization of such labourers were made in their respective recruitment unit/division, depending upon vacancies under such quota, attributing any discrimination to the respondents is not at all correct. In such circumstances, there is no justification in the claim of the applicants for regularization for their service in Group 'D' cadre on the ground that have been working since long time without availability of vacancies under such quota in their respective divisions.
12. The applicants have mainly relied on the following decision justifying their claim for regularization on the ground that they have been working since more than 20 years by creating posts. State of Haryana and others Vs. Priya Singh and others 1992 (UP) LBEC 1353.
13. But in view of the constitutional bench judgment of Hon'ble Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi reported in 2006 (4) SCC 1, it is not for Tribunals to issue such direction for regularization of the service of casual labourers and as such the claim of the applicants on the ground of working since long time is not at all maintainable and thus OA is liable for dismissal.
In the result, OA is dismissed. No costs."
(emphasis supplied) 6.2 The review application before the Hon'ble High Court filed by the applicant and others [case no. 1169 of 2009 (S/B)] was disposed of in following terms vide order dated 20.04.2018:
"4. Learned Counsel appearing on behalf of Union of India states that seniority list has been prepared and the name of the review applicant Basdeo Tadav appears at serial no. 21, whereas person upto serial no. 7 has been promoted. He further submits that as and when his number comes, he will also be considered in accordance with the 25% vacancies falling under the quota.
5. So far as the claim of the other review applicant Smt. Vijay Laxmi is concerned, she was appointed on compassionate basis on account of Page 4 of 7 CAT, Lucknow Bench OA No. 332/00334 of 2022 Ram Sunder Yadav Vs. U.O.I. & Ors.
death of her husband and she has been working as such, therefore, the claim of the applicant Smt. Vijay Laxmi, ought to have been treated on a different footing rather than treating her to be a temporary employee. The Tribunal has put her case in the same category treating as temporary employee, whereas this Hon'ble Court has upheld the order passed by the Tribunal.
6. In view of the above, we direct the opposite party to consider the claim of review applicant Smt. Vijay Laxmi treating her to be appointed on compassionate ground on the basis of prevailing rules.
7. The review application is allowed to the above extent."
(emphasis supplied) 6.3 Subsequent to order dated 20.04.2018 in case no. 1169 of 2009 (S/B), extracted at paragraph 6.2 above, the following order was passed by Hon'ble High Court on 27.01.2020:
"This review application has been filed by the original petitioner no. 1 along with application for condonation of delay, Earlier similar review application was filed by original petitioner nos. 2 & 4 to the writ petition. The applications for condonation of delay as well as review were allowed with certain directions. The review application preferred by the applicant was not listed before the Court despite its filing before the disposal of the review petition preferred by original petitioner nos. 2 & 4. In view of the above and as the direction given in the review application are said to be innocuous, we cover the application for condonation of delay as well as review application by the order dated 20.04.2018 passed in review petition and the application of petitioner nos. 2 & 4.
Applications are disposed of with the aforesaid."
(emphasis supplied) 6.4 From the above narrative, it emerges that the applicant's case was dismissed by this Tribunal in OA No. 145 of 2007 finding that there was no infirmity in rejection of the applicant's case for regularization by the respondents on the ground that no vacancy was available in the Division concerned (Faizabad, now Ayodhya) under the quota for casual labourers. This Tribunal's order was upheld by Hon'ble High Court. In the review application, vide orders dated 20.04.2018 and 27.01.2020, Hon'ble High Court took note of the stand of the respondents that there was a seniority list and the case of review-applicants therein would be considered as and when their turn comes in accordance with the 25% vacancies falling under the quota. Now, the respondents, vide memo Page 5 of 7 CAT, Lucknow Bench OA No. 332/00334 of 2022 Ram Sunder Yadav Vs. U.O.I. & Ors. dated 11.06.2021, have rejected the claim of the applicant for regularization on the ground that the applicant has retired before his turn could come for regularization as per the seniority list in accordance with 25% vacancies falling under the prescribed quota as per recruitment rules. No case for discrimination or any irregularity has been made out by the applicant. Considering this position, this Tribunal does not find any infirmity in the stand taken by the respondents.
6.5 The applicant has cited several cases adjudicated by this Tribunal in support. The applicant's reliance on these cases at this stage is barred by the principle of constructive res judicata elaborated upon by Hon'ble Supreme Court in State of Uttar Pradesh vs Nawab Hussain 1977 AIR 1680 in the following terms:
"The principle of estoppel per rem judicatam is a rule of evidence. As has been stated in Marginson v. Blackburn Borough council, it may be said to be "the broader rule of evidence which prohibits the reassertion of a cause of action." This doctrine is based on two theories: (i) the finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy, and (ii) the interest of the individual that he should be protected from multi- plication of litigation. It therefore serves not only a public but also a private purpose by obstructing the reopening of matters which have once been adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action, for otherwise the spirit of contentiousness may give rise to conflicting judgments of equal authority, lead to multiplicity of actions and bring the administration of justice into disrepute. It is the cause of action which gives rise to an action, and that is why it is necessary for the courts to recognise that a cause of action which results in a judgment must lose its identity and vitality and merge in the judgment when pronounced. It cannot therefore survive the judgment, or give rise to another cause of action on the same facts. This is what is known as the general principle of res judicata. But it may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation, that would aggravate the burden of litigation. Courts have therefore treated such a course of action as an abuse of its process and Somervell L.J., has answered it as follows in Greenhalgh v. Mallard:
"I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues Page 6 of 7 CAT, Lucknow Bench OA No. 332/00334 of 2022 Ram Sunder Yadav Vs. U.O.I. & Ors.
which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them."
This is therefore another and an equally necessary and efficacious aspect of the same principle, for it helps in raising the bar of res judicata, by suitably construing the general principle of subduing a cantankerous litigant. That is why this other rule has sometimes been referred to as constructive res judicata which, in reality, is an aspect or amplification of the general principle."
(emphasis supplied) 7.1 In view of the foregoing, no relief can be granted to the applicant. Accordingly, the OA is dismissed.
7.2 Pending MAs, if any, also stand disposed of. 7.3 The parties shall bear their own costs.
(Pankaj Kumar) Member (A) Warij Page 7 of 7