Central Administrative Tribunal - Bangalore
H R Mahadevaiah vs D/O Post on 17 July, 2023
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OA.No.170/597/2020/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00597/2020
DATED THIS THE 17TH DAY OF JULY, 2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
H. R. Mahadevaiah,
S/o Revannaiah,
Aged about 55 years,
Occ: MTS,
O/o SRO, RMS 'Q' Division,
Davangere-577002.
R/o Eatra, Devaraju Urs,
Banavani, H.No.9,
Davangere-577006. ..Applicant.
(By Advocate Shri Ramachandra. B)
Vs.
1.Union of India,
Rep. by the Secretary,
Department of Posts,
Dak Bhavan,
New Delhi-110001
2. The Chief Postmaster General,
Karnataka Circle,
Bangalore-560001.
3. The Superintendent RMS 'Q' Division,
Mangaluru-575001. ....Respondents
(By Shri Sayed S. Kazi, Addl. Central Govt. Standing Counsel for Respondents)
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OA.No.170/597/2020/CAT/Bangalore Bench
O R D E R (ORAL)
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The present application was filed by the applicant through the learned counsel Shri M. V. Krishna Mohan. However, subsequently, this Tribunal was informed on 6.4.2022 that Shri M V Krishna Mohan had unfortunately expired and was no more. Accordingly, a fresh notice was issued on 06.4.2022 to the applicant to engage a counsel or appear in person.
2. Ms. G. Manjula, Advocate filed Vakalath on behalf of the applicant on 25.04.2022. However, subsequently Ms. Manjula circulated a Whatsapp message stating therein that the applicant has taken away his brief. Accordingly, the OA was dismissed in default for non-prosecution on 28.7.2022, as follows:
"After the demise of Shri M.V. Krishna Mohan, learned counsel who represented the applicant in this case, pursuant to notice issued by this Tribunal, Ms. Manjula, Advocate, had filed her vakalath in order to represent the applicant herein.
2. However, today Ms. Manjula has circulated a whatsapp message stating therein that the applicant has taken away his brief.
3. Nobody has put in appearance on behalf of the applicant.
4. It appears that the applicant has lost his interest in pursuing the Original Application.
5. The Original Application is, therefore, dismissed in default for non- prosecution."3
OA.No.170/597/2020/CAT/Bangalore Bench
3. Subsequent to passing of the order, MA. No. 375/2022 was filed by the applicant through Shri Mahesh S. Kammar, Advocate, praying for restoration of the OA and disposal of the same on merits, in the interest of justice and equity.
4. MA No. 375/2022 was allowed by this Tribunal on 02.1.2023 and the order dated 28.7.2022 passed in OA.No.597/2020 was recalled and the matter restored to file assigning the same number.
5. Shri Vishwanatha Bhat, Advocate filed Vakalath for the applicant after obtaining NOC from Shri Mahesh S. Kammar, Advocate. The OA was finally heard on 17.7.2023.
6. The applicant filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
a) To quash the order No.B-II/Misc/Dlgs dated 22.6.2020, vide which the request of the applicant for considering him under old pension scheme, has been rejected.
b) To direct the respondents to consider the case of the applicant under old CCS pension scheme thereby counting his 50% of casual service from 28.12.1988 to the date of regularisation on 11.10.2013 as qualifying service for the purpose of pension and other consequential benefits.
c) Pass such other order as this Tribunal may deem fit and proper in the interest of justice.4
OA.No.170/597/2020/CAT/Bangalore Bench
7. The facts of the case as averred by the applicant in his pleadings, are as follows:
a) The applicant was appointed as casual labour under Respondent No.3 on 28.12.1988. He been working in Respondents organization continuously without any break.
b) Respondent No.3, issued memo no. 11/SRO/DVG/RECTT/2013 dated 11.10.2013, selecting the applicant under "selection-cum-seniority quota" for appointment to the cadre of Multitasking staff in the scale of PB-1, 5200-20200 with grade pay 1800. While appointing the applicant on regular basis, he was placed under the New Pension Scheme (NPS).
c) The applicant aggrieved by the same, made several representations to the Respondent to place him under the Old Pension Scheme (OPS) instead of NPS as he was engaged in the department w.e.f 28.12.1988. Finally the applicant made a representation on 17.02.2020 requesting the department to consider and treat him an employee w.e.f 28.12.1988 for the purpose of pension and other benefits under OPS.
d) The Respondent vide impugned letter No. B-II/Misc/Dlgs dated 22.06.2020, rejected the case of the applicant stating that:
"With reference to the above cited subject, RO vide letter No. SK/AP/16-7/RMS Q/11 dated 16.06.2020, has intimated that as per NPS G.I.M.F No. 5/7/2003-ECB & PR part- 1(1) the system would be mandatory for all new recruit to central government from 5 OA.No.170/597/2020/CAT/Bangalore Bench 0l.01.2004. Hence, the official recruited after 2004 come under NPS scheme. As such request cannot be considered."
e) The applicant has submitted that similarly situated persons who are appointed as Gramin Dak Sevaks in the Respondent department engaged from 1979 to 2002 who were regularized in Group D, subsequently, were also governed by the new pension scheme. They had challenged this before the Hon'ble Tribunal, Principle Bench, New Delhi seeking to treat them as regular employees under CCS pension rules in O.A. 749 of 2015 between Shri Vinod Kumar Saxena Vs Union of India and other. The Hon'ble Tribunal Principle Bench by order dated 17.11.2016 passed the following order.
"To summarise, we dispose of the O.As. with the following directions to the respondents:
a. For all Gramin Dak Sevaks, who have been absorbed as regular Group 'D' staff the period spent as Gramin Dak Sevak will be counted in toto for the purpose of pensionary benefits. b. Pension will be granted under the provisions of CCS (Pension) Rules, 1972 to all Gramin Dak Sevaks, who retired as Gramin Dak Sevak without absorption as regular Group 'D' staff, but the period to be counted for the purpose of pension will be 5/8th of the period spent as Gramin Dak Sevak. Rule 6 will accordingly be amended. c. The Gramin Dak Sevaks (Conduct and Engagement) Rules, 2011 are held to be valid except Rule 6, as stated above. 6
OA.No.170/597/2020/CAT/Bangalore Bench d. The claim of Gramin Dak Sevaks for parity with regular employees regarding pay and allowances and other benefits available to regular employees, stands rejected.
21. With the above directions, all the three O.As. stand disposed of However, the parties are directed to bear their own costs"
f) The applicant is working in the department from 1988 onwards on regular basis without any break from the date of his initial engagement and regularized subsequently. As such his casual service should also to be counted for the purpose of pension and other benefits under old CCS pension rules.
g) As per the CCS pension rules 1972, an employee is entitled for counting of 50% of his casual service, when casual service is followed by regularization. In the present case, as the applicant is working from 1988, even if 50% of the casual service is taken into consideration as qualifying service for the purpose of pension, the date of initial engagement would be prior to the introduction of new pension scheme i.e. 01.01.2004.
8. The respondents have filed their written statement wherein they averred as follows:
a) The applicant was engaged as part time casual labour at SRO, Davanagere w.e.f 28.12.1988. He was recruited as MTS on 11.10.2013 on the basis of "Selection-cum-seniority" quota. In the appointment order, it was conveyed to him that he was governed by New Pension Scheme 2004. He sent a representation without date to Respondent 7 OA.No.170/597/2020/CAT/Bangalore Bench No.3 requesting to place him under CCS Pension Rules 1972.
Respondent No.3 replied in negative of the same and copy is produced as Annexure A-4 of OA.
b) Applicant was selected as MTS w.e.f 11.10.2013. He was duly informed that he was governed by New Pension Scheme 2004. He has filed OA after a lapse of seven years. The present OA is, therefore, not filed within the period of limitation.
c) The applicant was appointed as casual labour on 28.12.1988, but was not granted temporary status till his recruitment as MTS on 11.10.2013. Competent authority has confirmed that applicant was not granted temporary status under the scheme of 1993 (Grant of Temporary status and regularisation of casual labourer). Copy of the same is produced and marked as Annexure R-1.
d) Applicant claims that he has to be placed under old pension scheme as he was engaged in the department w.e.f. 28.12.1988. Contention of the applicant is not correct. He was engaged as a part time casual labour w.e.f 28.12.1988. Till the date of recruitment as MTS, he was working as Part Time Casual Labour as is evident from his selection order which is produced and marked as Annexure R-2. It is reiterated in OM No.2- 1/2002-PE-I /13.05.2020 that "As per instructions of the nodal department, casual labourers cannot be deployed for work of regular nature, casual labourer cannot be engaged for the regular duties which stand assigned to MTS vide OM dated 24.09.2010 ibid". Hence casual 8 OA.No.170/597/2020/CAT/Bangalore Bench labourers cannot claim provisions of department on par with MTS employees.
e) OM 49014/5/2019 which contains consolidated instruction on casual labour, clarifies under the Casual Labour Scheme of 1993, that temporary status cannot be granted to Part Time casual labour. Hence, applicant being only a Part Time casual labourer, cannot be granted temporary status and cannot be treated on par with MTS Of the department. His contention that he should be placed under old pension scheme as he was engaged in the department w.e.f. 28.12.1988 is not at all correct.
f) Applicant claims that as per OA 749 of 2015 dated 17.11.2016 Hon'ble Tribunal, Principal Bench, New Delhi ordered to grant pension under CCS pension scheme 1972 to all Grameen Dak Sevak Employees. GDS employees and Part Time Casual Labourers (PTCL) are of different denominations. Applicant was part time casual worker engaged by Department as daily wagers. PTCL is not covered under CCS pension or any other related order. PTCL is purely outsider. GDS employees are engaged with work of regular nature. They are governed by GDS conduct and engagement rules. GDS employees are vested with powers to perform monetary transactions independently. Whereas, part time casual labourers (PTCL) are not vested with any such power. Hence, they cannot be treated on par with GDS employees.
g) Hon'ble Supreme Court in its judgement on Civil appeal No. 8497/2019 (Union of India vs. Gandiba Behra) on 8.11.2019, has clearly 9 OA.No.170/597/2020/CAT/Bangalore Bench pronounced that " Having regard to the provisions of the aforesaid Rules relating to qualifying service requirement, in our opinion the services rendered by the respondents as GDS or other Extra-Departmental Agents cannot be factored in for computing their qualifying services in regular posts under the postal department on the question of grant of pension.". Hence GDS service also will not be counted towards pension and service.
h) Contention of the applicant is that he is working in the department since 1988 and was regularised subsequently. His service was never regularised till his recruitment as MTS on 11.10.2013. He was recruited to MTS cadre as an outsider, not as regular employee of the department. Applicant claims that his casual service also should be counted for the purpose of pension and other benefits under CCS pension rules. Applicant was a part time worker engaged by department as daily wagers.
i) Rulings are clear in Annexure R-4 under caption GPF and pensionary benefits and reproduced as follows "The casual labourers who had been granted temporary status under the scheme and had completed 3 years of continuous service after that were entitled to contribute to the General Provident Fund. It was decided that 50/% of the service rendered under temporary status would be counted for the purpose of retirement benefits in respect of those casual labourers who have been regularised in terms of para 8 of the OM dated 10.09.1993. This was applicable to all casual labourers covered under the scheme of 1993 whether they are regularised before or after 31.12.2003". It is also clearly mentioned that 10 OA.No.170/597/2020/CAT/Bangalore Bench temporary status cannot be granted to part time casual labourers. Hence, 50% of service rendered by applicant as part time casual labour cannot be counted for the purpose of retirement benefits.
j) Applicant claims that he is going to lose major part of his service rendered as casual labour and since he was working under the department, he should have been covered under CCS Pension rules 1972. The applicant has not raised any objection during his appointment as MTS, wherein his designation was mentioned as part time casual labour in his appointment order. It is implied that he was ready to abide by the conditions applicable to his job with full satisfaction. Hence, claim of the applicant at this stage for benefit under CCS Pension Rules 1972 is nothing but an afterthought, not warranted by any law in force.
9. Heard learned counsels for the parties and perused the pleadings made by them.
10. In the present case, the applicant is praying for grant of benefits under the old pension scheme to him, instead of the new pensions scheme. His main ground is that he had worked as a casual labour from 1988 onwards and hence, the period of his service rendered from 28.12.1988 to the date of his regularisation on 11.10.2013 should be counted as 50% of the services rendered as qualifying service for the purpose of pension and consequential benefits.
11. A perusal of the pleadings clearly indicate that the applicant had been working as Part Time Casual Labour from 28.12.1988 till 11.10.2013. There is no document produced by the applicant anywhere to establish that he had 11 OA.No.170/597/2020/CAT/Bangalore Bench been engaged on temporary basis at any point of time, prior to his regularisation.
12. The respondents have categorically stated that the applicant was only a Part Time Casual Labour (PTCL) as is evident from the Memo No.B- II/MTS/Rectt/2013 dated 19.9.2013, vide which he had been granted regularisation. He was earlier appointed as Part Time Casual Labour (Mazdoor). Since he was working only as a PTCL, hence, his service as a PTCL cannot be counted under the "Grant of temporary status and Regularisation of Casual Labourer scheme" of 1993. It has been categorically clarified in this scheme that temporary status cannot be granted to a Part Time Casual Labour.
13. The applicant has relied on the orders passed by the Principal Bench of this Tribunal, in O.A. 749 of 2015 between Shri Vinod Kumar Saxena Vs Union of India and others dated 17.11.2016 in the case of counting the service rendered by GDS employees towards pensionary benefits. However, subsequently, the Honourable Apex Court in Civil appeal No. 8497/2019 titled Union of India vs. Gandiba Behra, vide its orders dated 8.11.2019, has clearly pronounced that " Having regard to the provisions of the aforesaid Rules relating to qualifying service requirement, in our opinion the services rendered by the respondents as GDS or other Extra-Departmental Agents cannot be factored in for computing their qualifying services in regular posts under the postal department on the question of grant of pension.".
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OA.No.170/597/2020/CAT/Bangalore Bench
14. Keeping the above facts in view, 50 percent of the service rendered by the applicant from 28.12.1988 to the date of his regularisation i.e. 11.10.2013 cannot be counted as qualifying service for the purpose of grant of pension. He is entitled to count his regular service w.e.f. 11.10.2013 only, which is the date of his regularisation. This regularisation is subsequent to 2004. Hence, he shall not be eligible for grant of pension under the old pension scheme and will be eligible only under new pension scheme. This benefit of New Pension Scheme stands already granted to him in the order dated 11.10.2013.
15. The present OA, therefore, lacks merit and deserves to be dismissed.
16. Accordingly, the OA is dismissed. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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