Central Administrative Tribunal - Madras
K Jeyachandran vs M/O Communications on 20 December, 2024
1 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA No. 37/2019, OA Nos.1240, 1338, 1339 & 1340/2018
& MAs 217, 218, 219, 220 & 221/2024
Dated the 20th day of December, Two Thousand Twenty-Four
CORAM:
HON'BLE SHRI. M. SWAMINATHAN, Member (J)
&
HON'BLE SHRI. SANGAM NARAIN SRIVASTAVA, Member(A)
1) K. Jeyachandran
2) G. Dhiravialakshmi (Rtd)
3) K. Munavar Basha
4) M. Rajeswari (Rtd)(VRS)
5) S. Balakrishnan (Rtd)
6) P.Sukumar (Rtd)
7) R. Vasanthamani
8) S. Ponnarasi(Rtd)
9) K. Amsaveni
10) R. Bharathimohan
11) A. Kanakaraju
12) P. Gnanambal (Rtd)
13) J. Ritarathnam
14) Uma Srinivasan
15) K. Rukma
16) N. Sahadevan
17) R. Maheswari (Rtd)
18) G. Krishnaveni
19) A. Elamparithi
20) S. Anuradha(Rtd) (VRS)
21) S. Thilagam
22) T. Parimalam
23) R. Dhanalakshmi (Rtd)
24) P. Nagakumari (Rtd)
25) K. Bharathamadha (Rtd)
26) V. Vasandhara (Rtd)
27) R. Bhuvaneswari (Rtd) (VRS)
2 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018
28) K.N. Rajeswari (Rtd)(VRS)
29) Kum.S. Girija
30) R. Rajeswari (Rtd.)
31) SuriyakalaSoundaraRajan (Rtd.)
32)Devaki Marudai (Rtd.) ... Applicants in 37/2019
1) D.S. Ramaprabu
2) B.S. Ragaventhran
3) A. Edward Singh
4) K.R. Gayathri
5) Valarmathi Thirunavukkarasu,
6) K. Rajeswari
7) C.G. Sasikala
8) Poornima N. Rajan
9) S. Rajeswari
10) G. Bhuvaneswari
11) S. Vijayalakshmi
12) R. Saradha
13) V. Arunmozhi
14) Sivaraman
15)C. Olly (Rtd)
16)S. Veera Raghavan
17)A. Sridharan
18)M. Selvi
19)C.V. Kalidas
20)P. Sampath
21)R. Meerabai
22)K. Indra Kumari
23) Vijayalakshmi Chandrasekaran
24) Girija Ravichandran
25) Hemalatha Rajkumar
26)S. Aruna
27)M. Chandra
28)A. Kala
29) K. Sujarani
30)P.K. Geetha (Rtd) ... Applicants in 1240/2018
1)R.Balaji Krishnan
2) K. Uma
3) S. Chitra Sekar
4) G. Renuka
5) P. Sandhya Rajan
3 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018
6) S. Suresh
7) M. Loganathan
8) K. Vasu
9) S. Umarani
10) Jayanthi Ravindran
11) A.Devaki
12) S. Padma
13) Mallika Vittal
14) C. Renuka Devi
15) R. Chitra
16) V. Gandhimathi
17) G. Chamabagalakshmi
18) Vijayalakshmi Ezhilmaran
19) B. Varalakshmi
20) C.S. Vasanthi
21) V. Radha
22) G.Muthukkannu
23) T.G. Rajeswari
24) S. Sarala
25) A. Fathima
26) V. Nagammai
27) M. Nirmala
28) N. Nagalakshmi
29) C. Manvizhi
30) B. Chitra
31) S. Rajalakshmi
32) K. Sasikala ... Applicants in 1338/2018
1) J. Prasad
2) M. Kusala Kumar(Rtd.)
3) S. Mukkanan
4) V. Anbuchelvan
5) K. Sargunam
6) P.E. Mohan
7) Kalasubramanian
8) P.K. Usha
9) V. Rajeswari
10) M. Shankar
11) Sailappan
4 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018
12)T. Narmadha
13) S. Srinivasan
14) M. Kalaivani
15) S. Shankaren
16) K. Thayalan (Rtd.)
17) V. Dakshinamoorthy
18) R. Rajendran
19) V. Sundar
20) Usha Swaminathan
21) M. Dayalan (Rtd)
22) K.S. Ramalingam
23) G. Devika Rani
24) S. Elangovan
25) M. Geetha
26) R. Elango
27) Kohilavani Rajasekaran
28) M. Anandavalli
29) M. Paneerselvam (Rtd)
30) V.R. Kumaraswamy
31) S. Vedantham
32) K. Pandian
33) M. Malayadri
34) B.M. Vijaya Kumari
35) G. Logeswari(Rtd)
36) J. Gajalakshmi
37) P. Mala
38) S. Muthusami
39) S. Visalam
40) J. Joseph Dhayalan
41) G. Rama
42) S.B. Santhi
43) M. Gunasekari ... Applicants in 1339/2018
1) K. Prema
2) K. Vijaya
3) D. Swarnalatha
4) Vijayalakshmi Sundaramurthy
5) Thiruvillai Sundararajan
6) Radha Suresh
7) Raja Rajeswari Ganesan
8) K. Seeralan(Rtd)
9) Usha Ranganathan
5 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018
10) L. Vasugi
11) S. Savithri
12) R. Lakshmi
13) Sarala Gopu
14) Vasanthi P
15) Lakshmi Krishnaswamy
16) Padmaja Suresh
17) Ananthavalli Balakrishnan
18) V. Jayanthi Kumari
19) J. Nimmie
20) S. Latha
21) L. Renuka
22) V. Parameswari @ Rebecca Raphael
23) V. Vasanthi
24) Visalakshi Bhaskaran
25) Devika Anandakumar
26) Padmavathy Ramesh
27) D. Meenakshi
28) M.B. Revathi Sankaran
29) Nirmala Seeralan
30) S. Sheela Phancy
31) Vasanthakumari Viswanathan
32) S. Seethalakshmi
33) Rohini Kadirvelu
34) Sethulakshmi Murali
35) Mythili K.K. R
36) R. Rama
37) T. Jayajyothi
38) Premkumari Daniel
39) D. Sarguna
40) E. KalaiChelvi
41) R. KalaiChelvi
42) Manjula Janarthanan
43) Gandhi Chandra Sekharan
44) M.J. Jothi
45) V. Sobhana
46) K. Subadra Devi
47) S. Indira
48) Usha Sundarrajan
49) Kumari Vasantharaj
50) Bhuvaneswari Senthilkumar
6 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018
51) Muthulakshmy Ramamoorthy
52)M. Latha
53) Ebenezer Issac
54) R. Bhuvana
55) R. Chithra
56) P. Rajeswari
57) G. Jayathi
58) B.Sulochana
59) G.Manonmani
60) Thara Rajagopal
61) S.G. Murthy
62) S.Somasundary
63) R. Radha
64) B. Raghavan
65) R.O.M. Padmanaban
66) Sivagamy Parthiban
67) Devaki Udayakumar
68) Margaret Mary Sheela
69) C. Umadevi
70) D.M. Banumathy
71) S.C. Meenakumari
72) S. Bhanumathi
73) P. Anasuya
74) N. Usha
75) B. Neela
76) D. Sugandha
77) C.Muthulakshmi
78) S.Lakshmi
79) Kiruthika Balaji
80) M.Revathi (Rtd)
81) C.Malarvizhi
82) M.Tamilselvi
83) Mohana Moorthy
84) K.Vijaya
85) R.Sugadev
86) Ravichnader S.M. ... Applicants in 1340/2018
By Advocate M/s.P.Santhoshkumar, P.Ulaganathan
-Vs-
7 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018
1. Chairman and Managing Director,
BSNL, Sanchar Bhawan, Janpath,
New Delhi-110 001
2. The Chief General Manager,
BSNL Chennai Telephones, No.78,
Purasaiwakkam, High Road, Kellys,
Kilpauk, Chennai - 600 010
3. The Chief General Manager, BSNL,
Tamilnadu Circle,No. 16,
New Administrative Building,
Greems Road, Chennai - 600 006 ...Respondents in all OAs
By Advocate Mr. M.Kishore Kumar SPC
8 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018
ORDER
(Pronounced by Hon'ble Mr. Sangam Narain Srivastava, Member(A)) The applicants have filed these OAs under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
"(i)To call for the records of the 2nd Respondent in connection with the letter No. BSNL/39-3/SR/2017 dated 24.07.2018 by AGM (SR) BSNL and set aside the decision conveyed under ltem 2 of the Minutes of 36th meeting of the National Council held on 12th June, 2018, rejecting the request of the applicants for extending the benefit of regularization of their casual service, granted in Annexure A7 order of the Ernakulam Bench of Central Administrative Tribunal;
ii) To declare that all the applicants are entitled for regularisation of their casual service till the date of their regular appointment with all service benefits as has been granted in Annexure A7 order followed by all consequential benefits.
(iii)to direct the respondents to regularise the service of all the Applicants for the periods shown against their names in Annexure A10 list.
iv) to grant such other further relief's as this Hon'ble Tribunal may deem just, fit and proper in the facts and circumstances of the case."
2. Since the issue involved in all the OAs is similar which is founded on similar facts and circumstances and the relief prayed is same, these OAs are heard together and are being disposed of by this common order.
9 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018
3. Brief facts of the case, as submitted by the applicants, are as follows:
3.1 The Applicants were initially appointed as Short Duty Telegraphists, Telephone Operators and Telegraph Assistants and then Reserved Trained Pool Telegraphists, Telephone Operators and Telegraph Assistants (RTP-
TLS, TOs and TAs in short) during the years 1980-1988 on various dates. While continuing as such, they were regularly appointed in the post of RTP TLS, TOs and TAs from later dates respectively. Some of the Telegraphist, Telephone Operators and Telegraph Assistant, who had been initially appointed from the Short Duty and then Reserved Trained Pool before being regularly appointed, approached the Hon'ble CAT Ernakulam Bench in OA No 133 of 2009 and they were granted the benefit of regularization of service as Short Duty and then RTP TO from the date of initial appointment by order of the Tribunal. The same benefits have been denied to the applicants who are similarly placed as the applicants in OA 133 of 2009 before the Ernakulam Judgment.
3.2 The applicants are aggrieved by the decision of second respondent not to extend the same benefit, as conveyed in the minutes of Item 2 of the 36th Meeting of the 143 National Council held on 12th June 2018 circulated vide the letter of the 2 nd Respondent dated 24.07.2018 . The respondents have relied on the judgment of the Supreme Court in Union 10 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018 of India and another Vs K.N. Sivadas and others (1997) 7 SCC 30. This contention already raised by the respondents before the Ernakulam Bench was resisted by the applicants as having no application in the case of the applicants in OA 133 of 2009. The order of the Tribunal in OA 133 of 2009 was challenged before the High Court of Kerala by filing O.P (CAT) of 2010 (S) and the Hon'ble High Court of Kerala by an order dated 1.10.2010 dismissed the appeal. The SLP filed by the respondents was also dismissed as withdrawn by an order dated 23.8.2013 with liberty for the appellants therein, i.e., the respondent department to file a review petition before the High Court. The Hon'ble High Court came to pass a detailed order in the Review Petition No. 880/2013 dated 10.08.2017, wherein the contention of the respondents with regard to the application of the ratio of K.N. Sivadas case was discussed at length by the Hon'ble High court. The High Court distinguished the case stating that the effect of the previous order passed by the Tribunal was to give appointment from the date of vacancy and not from the date of initial appointment. The case of the applicants in the present Original Applications is on all fours with the case in the Original Application in OA 133 of 2009 before the Ernakulam CAT and therefore, the respondents cannot be heard to say that the applicants cannot be given the benefit of order of the Ernakulam CAT in OA 133/2009, by citing the Supreme Court judgment in 11 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018 K.N Sivadas Case. Being aggrieved, the applicants have filed the present OAs challenging the impugned orders.
4. After notice, the respondents have entered appearance through their counsel and filed their reply statement refuting all the averments made in the OA except those which are admitted on facts. 4.1 The Respondents submit that the declaration given by the applicants under para 3 of the OA that the application is within the time limit pursuant to section 21 of the Administrative Tribunals Act 1985 is absolutely incorrect. The OA is hopelessly barred by law of limitations and hit by gross delay and laches and cannot sustain before any legal forum on the ground of being time barred. The O.A is also liable to be dismissed based on merits. The applicants are trying to derive the benefits of the order of the Hon'ble CAT Ernakulam Bench claiming to be similarly placed but it is misleading. The applicants are trying to reopen an issue which has attained finality about 35 years back, which was never represented and challenged during this period and filing this OA claiming to be similarly placed without any material evidence and facts to claim parity. 4.2 The Respondents submit that the candidates in the Reserve Pool constituted as per the terms and conditions laid down in DGP&T, New Delhi Memo No. 207/66/80-STN dated 29.11.1980 were offered to work 12 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018 as short duty Telegraphists/Telephone Operators/Telegraph Assistants. The DG P&T letter dated 29.11.1980 was issued with reference to letter No. 60/36/80-SPB-I dated 30.10.1980 on the subject of Constitution of a Standing Pool of Trained Reserve Candidates for Posts and RMS Offices to be applied "Mutatis Mutandis" to the cadres of Telephone Operators, Telegraphists and Office assistants in Telegraph Offices. 4.3 The Respondents submit that only the applicants 1 to 3 in the OA 37/2019 have produced the communication relating to their engagement as Short Duty staff and orders of their regular appointment. The applicants are claiming regularization of service rendered as short duty staff before regular appointment. In this regard, it is submitted that such short duty cannot be treated as continuous duty and cannot be considered for regularization in the absence of sanctioned posts and non availability of regular work. It has also been made clear in the letter dated 30.10.1980 that the reserve candidates are recruited as a stand-by over and above the vacancies announced at the time of recruitment. Except those who are brought on to the main list against drop-outs, the remaining will be surplus recruits whose services will be utilized as short duty staff. The surplus recruited candidates will be given priority of absorption against vacancies for subsequent recruitment. Thus, it is clear that they were recruited as a stand-by over and above the vacancies 13 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018 announced at the time of their recruitment and their services as short duty staff cannot be regularized before their actual absorption as Telegraphists / Telephone operators/Telegraph Assistants against regular vacancies of subsequent recruitment. This is evident from the communication regarding the employment of Short duty Telegraphists in Coimbatore Telegraph division in respect of the 1 st applicant in OA 37/2019Shri K. Jeyachandran wherein it is stated "your name has been placed in the waiting list of candidates to be employed as Short duty Telegraphists in this Coimbatore Telegraph Division after 3 weeks Training in Teleprinter". The scheme provided that the duration of duty of short duty staff will be on hourly basis and payment will be based on rates per hour. The short duty employment does not confer any right to claim regular or continuous employment in the Department. These facts are evident from the communications by which the 2nd and 3rd applicants in OA 37/2019 were posted as short duty Telephone Operator/ Telegraphist. It is submitted that excepting the applicants 1 to 3 in OA 37/2019, the other applicants in the said OA have not produced any documentary proof for their employment as Short duty Telegraphists/ Telephone Operators/Telegraph Assistants and the orders relating to appointment against regular vacancies. Hence, in respect of those applicants, the OA is not maintainable on the ground of non furnishing of necessary documents 14 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018 also.
4.4 The Respondents further submit that the applicants in the present OAs are not similarly placed as those in OA 133/2009 before CAT, Ernakulam in whose case their services were ordered to be regularised by CAT, Ernakulam due to the existence of vacancies at that point of time. While pronouncing the order dt 10/08/2017 in RP No. 880 of 2013 in OP (CAT) 158/2010, the Hon'ble High Court of Kerala at Ernakulam has recorded that "The admitted facts reveal that the vacancy was created as early as in the year 1983 [as borne by Annexures A1 to A4] and as per Annexure A8 dt 18/06/1992, recommendation was forwarded to have service of the applicant regularized w.e.f 1983 though the same was not acceded to by the 'higher ups'. Existence of vacancies in the year 1983 is not disputed, which was taken note of by the Tribunal while moulding the relief". In the case of the applicants in the present OA there were no vacancies at the time of their recruitment and they were absorbed against regular vacancies on subsequent dates as per their turn as per the policy of RTP.
4.5 The Respondents submit that in respect of the demand of regularization of short duty service rendered prior to the appointment as granted to the applicants of OA No. 133 of 2009 raised from the staff side 15 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018 in 36th meeting of National Council held on 12th June 2018, the reason attributed from the management side for not generalizing it as a policy which has been recorded under Item 2 of the Minutes of the meeting is reproduced below :
"It cannot be generalized as policy in view of DoT letter above (DOT Lr dt 17.03.1998 in wake of judgment of Hon'ble Supreme court Of India dt 1.8.97 in C.A. Nos. 80-123/96) and also for the reason that the matters litigated are decided by the Courts on the merits specific to the facts and circumstances brought before them and the implications of judgments in general are applicable only to the applicants and hence cannot be made applicable across the board."
4.6 The Respondents submit that in the Review Petition No.880 in O.P (CAT) No. 158 of 2010, the Hon'ble High Court of Kerala has distinguished the judgment cited by the applicants in Union of India and others Vs K. Sivadas and others (1997) 7 SCC 30, only in the context of existence of vacancies in the case of the Respondents in the said Review Petition which is evident from para 8 of their order dated 10/08/2017. But in the present case, the applicants have not submitted any material evidence to prove that there were vacancies to accommodate them as regular appointees. Hence they prayed for dismissal of the OA.
5. Per contra, learned counsel for the applicants has filed MAs 217, 218, 219, 220 & 221/2024 praying to take on record the rejoinders filed by the applicants. In the rejoinders, the applicants in support of their 16 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018 contentions have relied upon the following judgments:-
(i)Judgment of the Hon'ble Supreme Court in Mohinder Singh Gill & Anr Vs. Chief Election Commissioner, New Delhi & Ors. 1978 (1) SCC 405 dated 02.12.1977
(ii)Judgment of the Hon'ble Supreme Court in State of UP & Ors. Vs. Arvind Kumar Srivastava & Ors. Dated 17.10.2014
(iii) Judgment of the Hon'ble Supreme Court in Sub Inspector Roop Lal & Anr Vs. Lt. Governor through Chief Secretary, Delhi & Ors. (2000) 1 SCC 644
(iv)Judgment of the Hon'ble High Court of Madras in WP Nos.34944 and 33298 of 2016 dated 24.07.2019
(v)Judgment of the Hon.High Court of Jharkhand in Purushottam Singh Vs. UOI dated 02.02.2005.
(vi)Judgment of the Hon'ble High Court of Telangana in WP Nos.17400 and 17425 of 2016 dated 27.02.2023.
(vii)Judgments of the CAT, Principal Bench in OA 3466/2019 dated ..09.2023
(viii)Judgment of the CAT, Jabalpur Bench dated 16.12.1986 in TA 82/1986 which attained finality in SLP No.11313/1987 dated 11.01.1998
17 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018
(ix)Judgments of the CAT, Madras Bench in OA 1734/2018 dated 28.03.2019 & in OA 1240/2014
(x)Judgments of the CAT, Hyderabad Bench in OA 132/2020 dated 06.02.2020 & order dated 11.09.2020 in the case of G Vijayalakshmi Vs. Dept. of Posts 5.1 The applicants further contended that based on the judgment of the Hon'ble Supreme Court in State of UP & Ors. Vs. Arvind Kumar Srivastava & Ors. Dated 17.10.2014, there is no delay or latches on the part of the applicants. The attempt of the respondents to draw a distinction between the present cases and OA 133/2009 before the Ernakulam CAT merely on the basis of an averment that there were vacancies in the Division is wholly missing the grain from the chaff. The applicants like many other similarly situated persons suffered belated absorption due to the policy of ban of recruitment and absorption. This issue was squarely addressed by the Jabalpur Bench of CAT in TA No.82/1986 dated 16.12.1986 which attained finality with the dismissal of the SLP No.11313/1987 dated 11.01.1998. Further, the Department of Pension has issued an OM dated 02.10.2022 directing the departments to count the period of interruption between training and regular appointment as qualifying service for pension and gratuity.
18 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018 5.2 The applicants, in addition to the above referred judgments have also filed a compilation of the following case laws in support of their claim:
Sl.No. Date Case Details 1 08/01/97 Apex Court: Union of India & Anr Vs. K.N.Sivadas & Ors. 2 06/09/06 Apex Court: Union of India & Others Vs R Mathivanan 3 10/01/13 CAT Ernakulam Bench: KS Beena Vs Union of India. 4 11/26/15 Apex Court: State of UP & Ors Vs Ajay Kumar Sharma & Anr 5 03/17/17 High Court of Kerala: Union of India Vs KS Beena 6 03/28/17 Madras High Court (Madurai Bench): WA (MD) Nos 1133 & 1143 of 2016 etc The Government of TN Vs Saravana Pandian & Others. 7 10/31/17 Apex Court: National Insurance Company Ltd Vs Pranay Seth & Others 8 05/02/19 CAT Jabalpur Bench: Vijayakumar Upathyav & Others Vs Union of India & Others. 9 01/07/20 CAT Bangalore Bench: Smt Girija Vs Union of India & Other 10 10/02/22 DOP & PW: OM No 28/90/2022- P&PW(B)/8297 11 01/24/23 Madras High Court: Union of India Vs The Chief PMG, Chennai & Ors Vs The Registrar, Chennai & Another 12 07/03/23 Apex Court: SLP No. 7898/2020 Raman Kumar & Others Vs Union of India & Ors 13 08/03/23 CAT Chennai Bench: P Stanley & Others Vs The General General of Posts, New Delhi & Others. 19 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018 14 05/27/24 High of Delhi: Union of India Vs Rakesh Pal Singh Hence they prayed for allowing the OA.
6. The learned counsel for the respondents in support of their contentions have relied upon the following judgments:
(i)Judgment of the Hon'ble Supreme Court in UOI & Ors. Vs. A.Durairaj (Dead) in C.A.No.1783/2005 dated 01.12.2020
(ii)Judgment of the Hon'ble Supreme Court in UOI & Ors. Vs. Subrata Nath in C.A.Nos.7939-7940/2022 & batch dated 23.11.2022
(iii)Judgment of the Hon'ble High Court of Madras in W.P.Nos.13633/2020 & batch dated 24.01.2023
(iv)Judgment of the Hon'ble High Court of Delhi in W.P.(C) No.9580/2015 dated 03.06.2016
(v)Judgment of the CAT, Bangalore Bench in OA 918/2019 dated 04.03.2020
7. Heard learned counsels, Mr.P.Ulaganathan for the applicants and Mr.M.Kishore Kumar for the respondents.
8. The questions arising from the original application and required to be answered by us are:
20 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018 (1) Whether there was inordinate delay in filing the current OA so as to be hit by delay and latches and whether it can be saved by the decision of the Hon'ble Apex Court in the case of Ajay Kumar Sharma & Anr. as argued by applicants.
(2) Can a decision in the meeting of the National Council, in this case on 12.06.2018 be considered as an impugned order as claimed by the applicant.
(3) Whether the decision taken in the National Council meeting on 12.06.2018 can be considered as detrimental to the applicant and lead to an Original Application before the Tribunal. (4) Whether the applicants in the current OA are identical to the applicants in OA 133/2009 before the Ernakulam Bench of CAT as benefit is claimed on the basis of the parity with those applicants.
9. The facts are that the decision in OA 133/2009 was delivered by the Ernakulam Bench of CAT on 09.07.2010. The Hon'ble High Court of Kerala had upheld the judgment by its order dated 01.10.2010. The SLP filed was dismissed on 23.08.2013. The current OA has been instituted in January 2019. The applicants have all been regularised as and when the vacancy arose. No representations have been made seeking regularisation on the basis of the decision of the Ernakulam 21 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018 Bench at any time. No reason has been forwarded for not agitating their rights all through this period. Further, what is now being challenged is a decision made in the National Council Meeting of 12.06.2018. It is claimed that the decision was conveyed through the meeting which lead to a grievance and therefore cause of action arose on that date, i.e., 12.06.2018. It is further argued that even otherwise the decision in the case of Arvind Kumar Srivastava will save them from being hit from delay and latches raised by the respondents. Minutes of the meeting of the National Council of 2018 are reproduced below:-
Item No.2 Regularisation of RTP Service Staff side demanded regularisation of the RTP (Reserve Trained Pool)/short duty service, done before regular appointment in the TOA cadres. They mentioned three court cases in support of their demand.
Management side replied that DoT vide their letter dated 17.03.98 addressed to the Circles have taken a firm view in wake of judgment of Hon'ble Supreme Court of India dated 1.8.97 in C.As No.80-123/96 dismissed the petitions for treating the service rendered in RTP as regular for appearing in the Departmental Examinations. The Apex Court had ruled any service which was rendered prior to regular appointment in the cadre, cannot count for the purpose of this rule because it cannot be considered as service in any eligible cadre. Further, it was informed that out of 3 CAT cases cited by the staff side only one OA No.133 of 2009 pertains to BSNL in which benefit of regularisation of service rendered as RTP was granted to the only applicants as the SLP filed by BSNL was dismissed. However, it cannot be generalized as policy in view of DOT letter cited above and also for the reason that the matters litigated are decided by the Courts on the merits specific to the facts and circumstances brought before them and the implications of judgments in general are applicable only 22 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018 to the applicants and hence cannot be made applicable across the board.
After detailed discussion on the issue it was agreed to refer the specific representations to DoT."
10. We observe from the minutes of the National Council meeting sought to be set aside that the management decision was taken on 17.03.1998. The applicants have not challenged the letter dated 17.03.1998; they have not made any representation when the CAT, Ernakulam Bench decided the OA 133/2009 on 09.07.2010. After 21 years, the applicants have come before us with this OA trying to claim that the cause of action arises on account of a decision taken in the National Council meeting on 12.06.2018 which is not the case. In view of the above facts, we are inclined to hold that the OA is stale as the cause of action arose in 1998 and not on account of any decision taken in the meeting of the National Council on 12.06.2018. The decision of the Hon'ble Supreme Court in Arvind Kumar Srivastava does not come to the rescue of the applicant as in our view he is covered by Para 22.2 of the said decision and not Para 22.3 (exceptions) of the said decision. We, therefore, hold that the OA is hit by unexplained delay and latches and therefore not in order.
11. During the course of the proceedings, the Bench raised a question 23 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018 as to whether the decision of the National Council on 12.06.2018 can be considered as an order and appealed against with a prayer to set it aside. The counsel for the applicants referring to Section 19 of the Administrative Tribunals Act, 1985 argued that in view of Explanation clause (b) below Section 19(1), any order by an officer, Committee or agency of the Government, Local Body or Corporation referred in Explanation clause (a) can be appealed and since the National Council was constituted by the BSNL and the scope covered all matters relating to conditions of service and work, welfare of employees and improvement of efficiency and standard of work, etc, its decisions are appealable before CAT. We, however, observe that the scope with respect to service matter is limited only to consultation when it is in regard to matters of recruitment, promotion and discipline. The National Council in such matters cannot consider individual cases but is limited to general principles. Since the scope is limited to consultation on general principles only in matters of recruitment and promotion, we are of the view that it cannot be considered as an order under Section 19(1) explanation (b) of the Administrative Tribunals Act, 1985 in cases where matter relating to recruitment is agitated, as is the case in the present OA.
12. Be that as it may, the minutes of the National Council meeting on 12.06.2018 appealed against by the applicant in the present OA is 24 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018 reproduced again (at the cost of repetition):-
Item No.2 Regularisation of RTP Service Staff side demanded regularisation of the RTP (Reserve Trained Pool)/short duty service, done before regular appointment in the TOA cadres. They mentioned three court cases in support of their demand.
Management side replied that DoT vide their letter dated 17.03.98 addressed to the Circles have taken a firm view in wake of judgment of Hon'ble Supreme Court of India dated 1.8.97 in C.As No.80-123/96 dismissed the petitions for treating the service rendered in RTP as regular for appearing in the Departmental Examinations. The Apex Court had ruled any service which was rendered prior to regular appointment in the cadre, cannot count for the purpose of this rule because it cannot be considered as service in any eligible cadre. Further, it was informed that out of 3 CAT cases cited by the staff side only one OA No.133 of 2009 pertains to BSNL in which benefit of regularisation of service rendered as RTP was granted to the only applicants as the SLP filed by BSNL was dismissed. However, it cannot be generalized as policy in view of DOT letter cited above and also for the reason that the matters litigated are decided by the Courts on the merits specific to the facts and circumstances brought before them and the implications of judgments in general are applicable only to the applicants and hence cannot be made applicable across the board.
After detailed discussion on the issue it was agreed to refer the specific representations to DoT."
13. It is observed that the decision taken in the meeting, after discussion, is to refer representations to the Department of Telecommunications (DoT). The applicants have sought setting aside of the decision taken in the National Council meeting which is to refer the matter pertaining to RTPs once again to DoT. We fail to understand how 25 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018 such a decision of the National Council is detrimental to the applicants.
14. Coming to question No.4, it is observed that the applicants have sought parity with applicants in OA 133/2009 before the Ernakulam Bench. The decision in OA 133/2009 had relied on its decision in OA 661/1991 which had come to the conclusion (as also in OA 133/2009) that vacancies were in existence but the applicants therein had not been regularised and in that context it was directed by the Ernakulam Bench of CAT that appointment be given from the date of the vacancy and not from the date of absorption/appointment. This would be because the scheme of RTP itself envisages that RTPs would be given preference in absorption as and when vacancy arose. Before the CAT, Ernakulam Bench proceeded to state that there was parity between the applicants of OA 133/2009 and OA 661/1991, it established that vacancies existed but were not filled and only then proceeded to grant similar benefit to the applicants in OA 133/2009. The Hon'ble High Court of Kerala upheld the order of the CAT, Ernakulam Bench. The department filed SLP which was withdrawn and liberty was granted to file RA before the Hon'ble High Court. The point in the Review Application was whether the decision of the Hon'ble Supreme Court in the case of K.N.Sivadas & Ors. (1997) 7 SCC 30 if considered would still allow benefit to the applicants. Para 8 of the Hon'ble High Court of Kerala decision in the said RA is reproduced below:-
26 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018
8. The learned standing counsel appearing for the review petitioners points out that the grounds are mainly based on the verdict passed by the Apex Court as reported in (1997) 7 SCC 30 [cited supra]. We have gone through the said decision as well. The review petitioners have pointed out in 'Ground No.3' that the effect of the previous order passed by the Tribunal was to give appointment from the 'date of vacancy' and not from the date of initial appointment, which aspect was omitted to be considered in the judgment passed by this Court as well; at the earlier instance. On going through the observations and directions in O.A. No. 661 of 1991 [as extracted in paragraph 8 of the verdict of the Tribunal] and the consequential direction given in the present O.A., this Court does not have any doubt with regard to the course of action ordered to be pursued. The admitted facts reveal that the vacancy was created as early as in the year 1983 [as borne by Annexures A1 to A4] and as per Annexure A8 dated 18.06.1992 recommendation was forwarded to have service of the applicant regularised w.e.f. 1983 [though the same was not acceded to by the 'higher ups']. Existence of vacancies in the year 1983 is not disputed, which was taken note of by the Tribunal while moulding the relief.
The gist of the direction in O.P (CAT) No. 661 of 1991 is to have regularization effected from the date of availability of the vacancy. At the same time, this has to be read in the light of date of initial placement given by the petitioners as 'RTP operators' and the date of initial appointment as above. If vacancies were available, whether the benefit of regularization has to be given w.e.f that date or from the date of initial appointment; is the question. This alone requires to be clarified in the present proceedings and never beyond. This is more so, since the scope of the decision of the Supreme Court [which is now pressed before this Court] i.e. (1997) 7 SCC 30 [cited supra] has already been considered by the Tribunal and held as not applicable. This Court finds that there is no error apparent on the face of the record to invoke the power of review. The power of review can never be misunderstand or misconstrued as a substitute for appeal, in view of the law laid down by the Apex Court in Meera Bhanja Vs. Nirmala Kumari Choudhary (AIR 1995 SC 455). We also find support from the rulings of the Apex Court in M/s. Thungabhadra Industries Ltd. Vs. Government of Andra Pradesh rep. by Deputy Commissioner Commercial Taxes, Anantapur [AIR 1964 SC 1372], Parison Devi Vs. Sumitri Devi [(1997) 8 SCC 715] and N. Anantha Reddy Vs. Anshu Kathuria [(2013) 15 SCC 534]. Interference is declined and 27 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018 the review petition stands dismissed."
15. It is abundantly clear from the above that availability of vacancy was the crucial issue and since vacancy was available but RTPs not appointed it was ordered that the regularisation is to be effected from the date of availability of vacancy. In the case of the applicants in OA 133/2009, there existed vacancies in the year 1983 and recommendations were forwarded to have their services regularised w.e.f 1983. In the present case, the applicant have not established that there existed vacancies on the date of their being made RTPs.
16. In a similar case of RTPs, the Bangalore Bench of CAT in OA 918/2019 after considering the decision of the Ernakulam bench of CAT in OA 133/2009 and the order of the Hon'ble High Court of Kerala in the Review Application as also the decision in the case of K.N.Sivadas, held as under:-
5. The net effect is that the regularisation can be effected only from the date of availability of vacancy. Therefore, the sum and substance of all the decisions so far is that for considering the service rendered by the RTP appointees from the date of their appointment can only be accepted if they could have been appointed on such RTP appointees against a regular vacancy at that point of time. The respondents would rightly claim that the applicant is claiming for the service benefits right from the date of appointment as RTP employee from 28.5.1984 till 20.7.1987. As can be seen from Annexure-A1, the applicant is appointed in a temporary capacity as a Short Duty Telegraphist and vide Annexure-A2, he completed 28 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018 theoretical training for 8 months followed by a month's practical training.
On successful completion of practical training, the trainees are reported to the stations shown against their names. And finally vide Annexure-A3, the applicant is appointed on regular basis. The applicant states that the regular vacancies were in existence but the regularisation was not done against the vacancies. Apart from producing some communication relating to the number of posts sanctioned, the applicant is not able to state as to how he came to the conclusion that there was a vacancy at that point of time when he was appointed as RTP and therefore, it is not the applicant's fault that he could not be regularised from the date the vacancy arose.
6. As stated by the respondents, the applicant has not indicated or claimed with records that the regular vacancies were available on the date of appointment as Short Duty Telegraphist till the date of his regularisation. He has also not stated that any of his juniors have been regularised prior to him. The respondents would also state that the Hon'ble High Court in RP.No.8880/2013(Z) in OP(CAT) 158/2010 vide order dtd.10.8.2017 cited by the applicant would also clearly direct that the regularisation can be only from the date on which the vacancy arose and not earlier. The respondents would state that there was no regular vacancy. The respondents also cited the Hon'ble Apex Court judgment in CA.No.1783/2005 in the case of UOI & Ors vs. A.Durairaj dtd.1.12.2010 wherein the Hon'ble Apex Court held as follows:
"..... Further, where a claim is raised beyond a decade or two from the date of course of action, the employer will be at a great disadvantage to effectively contest or counter the claim, as the officer who dealt with the matter and /or the relevant records relating to the matter may no longer will be available. Therefore, even if no period of limitation is prescribed, any belated challenge would be liable to be dismissed on the ground of delay and laches."
7. It is clear that the applicant is claiming for a benefit relating to his service as RTP appointee after the efflux of more than three decades from his regularisation in appointment. We therefore, deem it appropriate to consider that the service rendered by the applicant prior to his regular date of appointment can be considered only if there is adequate proof to state that the vacancies were existing at that point of time and that for one reason or the other, the respondents did not fill up such vacancies for no fault of the applicant. Unless this is proved, the services rendered by the applicant prior to his regular date of appointment cannot be considered for 29 OA 37/2019 &OA Nos.1240, 1338, 1339 & 1340/2018 any benefit where such regular service is required to be considered for being eligible to such benefits.
17. We are, therefore, of the considered view that in these circumstances, no benefit can be allowed to the applicants in the present OAs as existence of vacancies have not been established and hence they are not similarly placed as applicants in OA 133/2009 or OA 661/1991 before the CAT, Ernakulam Bench. The applicants have failed to make out a case for themselves on merits also. All the OAs are dismissed. Consequently all the pending MAs are also closed. No order as to costs.
(Sangam Narain Srivastava) (M.Swaminathan)
Member(A) Member(J)
20.12.2024
MT