Central Administrative Tribunal - Patna
Rita Devi vs Posts on 5 July, 2023
-1- OA/050/00263/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
OA/050/00263/2021
Reserved on: 04.05.2023
Pronounced on: 05.07.2023
CORAM
HON'BLE MR. SUNIL KUMAR SINHA, ADMINISTRATIVE MEMBER
Rita Devi, W/o Late Lal Babu Sharma, resident of Mohalla - Chunabhatti,
Laxmisagar, near Railway Gumt
Gumti No.-28,
28, District-
District Darbhanga.
.... Applicant.
By Advocate: - Mr. J.K. Karn
-Versus
Versus-
1. The Union of India through Secretary cum D.G., Department of Posts, Dak
Bhawan, New Delhi-110001.
2. The Chief Postmaster General, Bihar Circle, Patna-
Patna 800001.
3. The Director Accounts (Postal), Exhibition Road, Patna-
Patna 800001.
4. The Postmaster General, Northern Region, Muzaffarpur-
Muzaffarpur 842002.
5. The Director, Postal Training Centre, Darbhanga-
Darbhanga 846005.
6. The Administrative Officer,
er, Postal Training Centre, Darbhanga-846005.
Darbhanga
.... Respondents.
By Advocate: - Mr. H.P. Singh
ORDER
S.K. Sinha, A.M:- Instant OA has been preferred by applicant assailing the order dated 5th March, 2021 of Director, Postal Training Centre, Darbhanga (Annexure A/1) denying her claim for family pension and other terminal benefits after the death of her husband in harness harness. Prayers in the OA include quashing the impugned order dated 05.03.2021, directing the respondents to settle the family
-2- OA/050/00263/2021 pension sion and other terminal benefits due to the applicant and to pay the arrears with interest.
2. Short facts leading to the OA are that applicant's husband was engaged as daily rated casual worker at Postal Training Centre, Darbhanga in 1987 ; that he was conferred 'Temporary' status w.e.f. 29.09.1999 and that after three years of continuous service as TS he was granted the 'Temporary Status' at par with Group 'D' w.e.f. 30.09.2002 2002.. That the applicant's husband worked continuously for 17 years as TS at par with Group 'D' at Postal Training Centre, Darbhanga till he died in harness on 01.10.2019. After her husband's death , applicant approached this Tribunal in OA No. 16/2021 raising the issue of family pension and other terminal benefits . The Tribunal al disposed of the OA on 08.01.2021 directing the respondents to decide the representation of applicant within three months. Respondent department passed a speaking order rejecting the claim of applicant on the ground that her husband had not been regularized ularized as Group 'D' employee and that there was no vacancy of Group 'D'/MTS available in 2019.
3. Applicant has pleaded that her husband served for more than 30 years in the department including 17 years as TS at par with Group 'D' and after his death she has to support one unemployed son and one unmarried daughter. That Th the impugned order rejecting her claim for family pension and other terminal benefits
-3- OA/050/00263/2021 was in violation of the statutory provisions and settled principles of law on tthe subject. That identical dentical cases in past have ha been decided by Hon'ble Supreme Court , Hon'ble High Courts and Tribunal benches granting pensionary benefits and death/retirement gratuity to similarly placed employees . The applicant has cited the case of Shail Devi Vs. UOI decided by this Tribunal in OA No. 113/2006 and the order of Hon'ble Patna High Court in CWJC No. 4475 of 2007 filed by the respondents and the decision of Hon'ble Supreme Court in Civil Appeal No. 18958 of 2009. Applicant has pleaded that as per CCS(TS) Rules, 1965, and CCS(Pension) Rules, 1972 applicant was entitled for family pension. Under CCS (Pension) Rules, 1972 the qualifying service for pension is 10 years whereas applicant's husband had put in 17 years of service as TS employee mployee and 12 years as casual worker.
4. Contesting the OA, respondents filed written statement maintaining that applicant's husband had died as Temporary Status casual worker at par with Group 'D' and that he had not been absorbed against any regular Group 'D' (MTS) (MTS post till death. Hence, benefit of family pension and gratuity were not admissible in terms of the guidelines of Department of Posts issued on 12.04.1991 (Annexure R/5) R/5). That, after the death of her husband, applicant was granted the eentitlements due to a deceased casual worker with TS at par with Group 'D' including Rs. 1,05,959/-
1,05,959/ towards GPF, Rs.
60,000/ 60,000/- towards DLI GPF and Rs. 21,280/-
21,280/ towards CGEGIS. In
-4- OA/050/00263/2021 compliance with the Tribunal's directions in OA No. 16/2021 the respondents had considered the applicant's fresh representation submitted on 20.01.2021 and passed a speaking order thereon. Respondents have pleaded that tthe order dated 04.10.2002 (Annexure (Annexure- R/2) granting TS at par with Group 'D' to her husband explicitly mentions that the order does not confer any right for absorption against regular Group 'D D' post unless and until vacant posts are available and no vacancy was available in 2019.
2019 The respondents have pleaded that CCS(TS) Rules, 1965 for temporary employees and CCS( CCS(Pension) Pension) Rules, 1972 for pension were not applicable in the case of applicant. His case was covered by the guidelines of Postal Department dated 12.04.1991 and 04.01.2000 (Annexure R/5 and R/1 respectively). The respondents have pleaded that the OA being devoid of merits deserves dismissal.
5. After admission, I heard the rival counsel and considered their submissions and materials on record.
6. During hearing , Shri J.K. Karn, Counsel for applicant, applicant reiterated the pleadings in OA and submitted that applicant's appli case was squarely covered by this Tribunal's order in OA 164/2008 (Meena Devi Vs. UOI & Ors.) in which the Tribunal held on 20.03.2013 that the applicant was entitled for pensionary benefits. Respondents had challenged the Tribunal's order on fil filee of Hon'ble Patna High Court in CWJC No. 7760 of 2015 which was decided on 08.12.2022 affirming the order
-5- OA/050/00263/2021 of Tribunal Tribunal. Ld. Counsel further put reliance on the order of this Tribunal in OA No. 145 of 2019.. Ld. Counsel submitted that the instant OA may al also so be decided in terms of the earlier decision of the Tribunal and Hon'ble High Court.
7. Sr. Standing Counsel Shri H.P. Singh representing respondents submitted that Hon'ble Patna High Court in Union of India Vs. Bhikhani Devi (CWJC No. 15420 of 2019 2019) held eld that unless an employee is in regular service pensionary benefits would not be admissible to him. The Hon'ble High Court in that case had set aside the Tribunal's order and held that the Tribunal had proceeded on the basis of earlier judgments without examining the validity or applicability of rules. Ld. Counsel further submitted that Bhikhani Devi's case was passed on 14.10.2019 and the order passed by Hon'ble Patna High Court in CWJC No. 7760 of 2015 was of December 8, 2022. He submitted that Hon'ble High Court did not consider th thee order passed in Bhikhni Devi case in deciding the Meena Devi case. L/c further mentioned that Department of Post had issued the Casual asual Labourers abourers (Grant of Temporary Status and Regularisation) Scheme on 12.04.1991 in compliance with the directions directions of the Hon'ble Supreme Court to regulate the engagement of casual workers and in terms of that scheme applicant was not entitled for family pension or gratuity in terms of the existing rules/law.
-6- OA/050/00263/2021
8. Admitted facts in this case se are that applicant's husband was engaged as daily rated casual worker at Postal Training Centre, Darbhanga in 1987; he was conferred Temporary Status w.e.f. 29.09.1999; after three years of continuous service as TS he was granted TS at par with Group 'D 'D'' w.e.f. 04.10.2002. The applicant continuously worked as TS at par with Group 'D' at Postal Training Centre, Darbhanga till he died on 01.10.2019. Applicant's pplicant's husband had thus remained engaged with the Postal Department for about 32 years of which about 17 years was as Temporary Status at par with Group Group-'D' . Respondent department has denied family pension and other terminal benefits to applicant on the ground that her husband was had not been regularized as a Group 'D' employee.
employee
9. The issue for consideration here is whether the applicant, whose husband had d worked for the Postal department continuously for 32 years of service including 17 years as 'Temporary Status Status' at par with Group D' without regularization was entitled for family pension and other retirement benefits or not.
10. Applicant has staked claim for family pension and retirement gratuity on the basis of earlier decisions of this Tribunal in similar cases which were upheld by Hon'ble Patna High Court and the provisions of CCS(TS) Rules, 1965, and CCS(Pension) Rules, 1972 . Respondents have argued that applicant's case was governed by the guidelines of Postal Department dated 12.04.1991 and 04.01.2000
-7- OA/050/00263/2021 (Annexure R/5 and R/1 respectively) and not by CCS (TS) Rules, 1965, and CCS (Pension) Rules, 1972.. They have relied upon the judgment of Hon'ble Patna High Court in Bhikhani Devi case (supra).
(supra)
11. Before adverting to the applicant's claim for family pension and terminal benefits it deems proper to first resolve whether the service conditions of applicant's husband was governed by the Central entral Civil Services (Temporary emporary Service) Service) Rules, 1965 or the guidelines issued by Department of Posts. It is admitted fact that applicant's husband was engaged as daily rated casual worker in 1987; that he was conferred Temporary Status w.e.f. 29.09.1999 ; and that after three years of continuous service as TS he was granted TS at par with Group 'D' w.e.f. 04.10.2002. Conferment of 'Temporary status' at par with Group 'D' does not change the casual worker status of an employee ; it only allows him certain benefits like enro enrolment ment under GPF scheme , grant of Festival Advance etc. The CCS(TS) Rules, 1965 etc. was framed to regulate the conditions of service of te temporary mporary Govt. servants. The Rules has no provision at all for casual workers, much less relating grant of 'Temporary Status' or 'Temporary Status' at par with Group 'D' etc.. to casual workers workers. Hence, CCS(TS) Rules, 1965 has no application in regulating the service conditions of applicant's husband as a casual worker.
-8- OA/050/00263/2021
13. On the other hand, the guidelines dated 12.04.1991 (Annexure R/5) issued by Department of Post on " Casual Labourers (Grant of Temporary Status and Regularisation) Scheme Scheme" deals with the casual workers and regulation of their service matters. The department issued these guidelines in compliance with the direction of Hon'ble Supreme Court on 29.11.1989 in the case of Jagrit Mazdoor Union (Regd.) & Others vs Mahanagar Telephone Te Nigam Ltd. &Others Others [1990 1990 SCC Supl. 113] observing as under :
" As regard House Rent Allowance, City Compensatory and Maternity Leave, we see no justification for treating the employees of the Postal Department differently from those covered under the Regularisation Rules in the Telecommunications Department. Temporary status would be available to the casual labourers in the Postal Department on completion of one year of continuous service with at least 240 days of work (206 days in the case of officers icers observing five days' week) and on conferment of temporary status. House Rent Allowance and City Compensatory Allowance shall be admissible. There would be no justification to withhold maternity leave as that is an obligation of the employer under the law and the State as an ideal employer fulfilling the Directive Principles of State Policy envisaged in Part-IV Part IV of the Constitution should provide the same. After rendering three years of continuous service with temporary status, the casual labourers shall be treated at par with temporary Grade 'D' employees of the Department of Posts and would thereby be entitled to such benefits as are admissible of Group 'D' employees on regular basis."
The scheme issued by Department of Post in compliance with the above direction of Hon'ble Supreme Court provides for conferment of 'Temporary Status', grant of 'Temporary Status' at par with Group 'D' and re regularization gularization of casual labourers within the recruiting unit or any other unit subject to the availability of vacancies. Hence, the he service condition of applicant's husband was
-9- OA/050/00263/2021 governed under the Department of Post guidelines issued on 12.04.1991.
14. Para 12 of the Postal Directorate guidelines dated 12.04.1991 (Annexure Annexure-R/5) provides that "casual labourers may be regularized in units other than recruiting units also, subject to availability of vacancies". Applicant's husband worked as casual worker continuously ontinuously in the Department of Posts since 1987 and as 'Temporary Status' at par with Group 'D' since 2002 , but he was not regularized. Respondents have maintained in pleadings that there was no vacancy in 2019, hence he was not regularized. Respondents nts have,, however, maintained silence on whether any Group 'D' vacancy had arisen between the date of conferment of Temporary Status at par with Group 'D' to applicant's husband i.e. 04.10.2002 and 01.10.2019, the date on which applicant's husband die diedd in harness. Respondents have also disclosed nothing about recruitment to Group 'D' posts made, if any,, in the respondent department between 2002 and 2019 .
15. Hon'ble ble Supreme Court in their order on 27 October, 1987 in the case of Daily Rated Casual Labour Vs. Union off India & Others observed as under.
"It is against this background that we say that non-regularisation regularisation of temporary employees or casual labour for a long period is not a wise policy. We, therefore, direct the respondents to prepare a scheme on a rational basis for absorbing as far as possible the casual labourers who have been continuously working for more than one year in the Posts and Telegraphs Department."
-10- OA/050/00263/2021 16. the order on 2nd
Full Bench of Hon'ble Supreme Court in their September, 2019 in Prem Singh Vs. The State Of Uttar Pradesh [Civil Appeal No. 6798 of 2019 2019], relying on the decision of Hon'ble Apex Court in the case of Secretary, State of Karnataka & Ors. v. Uma Devi [2006 (4) SCC 1] 1], held that employees who have not been regularized despite having worked for ten years or more should have been regularized and directed to treat their services aass regular one.
Relevant para of the order is reproduced as under
under:-
"35. There are some of the employees who have not been regularized in spite of having rendered the services for 30-40 30 40 or more years whereas they have been superannuated. As they have worked worke in the work--
charged establishment, not against any particular project, their services ought to have been regularized under the Government instructions and even as per the decision of this Court in Secretary, State of Karnataka &Ors. v. Uma Devi 2006 (4) SCC 1. This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one time measure, the services be regularized of such employees. In the facts of the case, those e employees who have worked for ten years or more should have been regularized. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired tired from the regular establishment and the services rendered by them right from the day they entered the work-charged work charged establishment shall be counted as qualifying service for purpose of pension."
pension
17. In terms of the ratio decidendi of above judgments judgments of Hon'ble Supreme Court Court, casual labourers working in Postal Department as 'Temporary Status' casual worker at par with Group 'D' should have been regualrised / absorbed as regular employee employees..
The rules require that pension cannot be granted to a casual worker
-11- OA/050/00263/2021 without regularization. The Postal department department guidelines dated 12.04.1991 provide for regularization of casual labourers subject to availability of vacancy vacancy. In the instant case, applicant worked in postal department continuously for 32 years which included 17 years of service after conferment of Temporary Status at par with Group 'D'. Respondents have not come clean on the point of vacancy of Group 'D' between 2002 and 2018; they have only stated that there was no vacancy in 2019 2019. Non-regularisation regularisation of applicant's husband, despite 32 years of service in Postal department is a reflection of indifferent attitude of department's authorities towards the welfare of casual workers and implementation of department's guidelines. The appli applicant cant cannot be made to suffer for laches and arbitrariness on part of respondents.
18. This Tribunal in OA No. 143 of 2018 held that availability of post / vacancy for regularization was no impediment/ bar for grant of pension and respondent may grant pension and retiral benefits after doing necessary formalities. Relevant observation of the decision reads as under.
"18. It is thus manifest that for grant of pension and retiral benefits its to casual labors of postal department conferred with temporary status who have rendered service not less than ten years in the newly acquired temporary status, no impediment/bar of availability of post for absorption or regularization of appointment, for f the purpose of pension is there and the applicant may be granted pension and retiral benefits after doing necessary formalities. Applicant in case in hand fulfils the criteria and thus legally he should not be denied pension and retiral benefits, the denial nial would render injustice to the applicant
-12- OA/050/00263/2021 and to the policy promulgated vide G.I., Dept. of Posts, SPB.I dated 30th November, 1992 also, letter No. 66-9/91-SPB.I which otherwise can be labelled as totally ineffective and a brutum fulmen without percolating even ev a drop of benefit to the applicant, for whom like persons it has been formulated."
19. Further in OA No. 205 of 2020 (Loha Choudhary) with OA 554 of 2022 2022, this Tribunal in its decision dated 11.05.2023 observed that denial of pension and all pensionary benefits to the applicants only for the reason of non non-regularization was not justifiable and in view of factual and legal scenario, discussed above, it needs to dispose of these OAs with direction to the respondent authorities to allow the appli applicants cants of both OAs their pension and all pensionary benefits.
20. In the instant case, applicant's husband had died on 01.10.2019 while working in the department as Temporary Status Casual worker at par with Group 'D'. Respondents espondents have denied family pension on the ground that applicant's husband was not regularized as Group 'D' (MTS) posts before death death.. Respondents have mentioned in the impugned order that he was not absorbed against regular Group 'D' (MTS) posts as no vacancy of Group 'D' (MTS) S) was available in the year 2019. Impugned order dated 05.03.2021 (Annexure A/1) is reproduced below for ready reference reference:--
" With reference to your representation referred under reference, it is being intimated that late Lal Babu Sharma worked as Casual Labourer and conferred temporary status w.e.f. 29.09.1999 and further he had been accorded status at par Group D w.e.f. 30.09.2002 30.09.20 2 vide this office memo no. A-1/Rectt/Class IV/73/Ch.
/73/Ch. III dated 04.10.2002. In the said
-13- OA/050/00263/2021 memo it has beenen clearly mentioned that this order will not confer any right for absorption against regular Group 'D' posts unless and until vacant posts are available.
Late Lal Babu Sharma died on 01.10.2019 while working as Casual Labourer Temporary Status at per Group Gro D. He was not absorbed against regular Group 'D' (MTS) posts as no vacancy of Group 'D'(MTS) was available in the year 2019.
Since he was not regularized as Group 'D' (MTS) posts before death therefore, no pensionary benefits viz. Family pension, Death & Retiral benefits including compassionate appointment to family members is admissible to the employee as per Department of Posts, Memo No. 45- 45- 95/87-SPB-II dated 12.04.1991 and this office memo no. A-1/Rectt/Class A 1/Rectt/Class IV/73/Ch. III dated 04.10.2002 and accordingly accordingly the representation dated 21.10.2019 and 20.01.20921 of Smt. Rita Devi W/o Late Lal Babu Sharma is disposed of."
21. It is evident that the impugned order does not mention anything of Group 'D' (MTS) vacancies that existed between years 2002 and 2018; of any recruitment to Group 'D' (MTS) taking place during this period ; of whether the case of applicant's husband was considered if any recruitment was held during this period; and of the outcome of any such consideration. The applicant's husband had become eligible for regularization/absorption as Group 'D' (MTS) since 30.09.2002 the date from which he was granted the Temporary status at par with Group 'D'. Impugned order has thus been issued without taking into consideration the relevant facts.
22. Taking the entirety of facts and legal aspects discussed above, it is clear that respondents passed the impugned order dated 05.03.2021 (Annexure A/1) without taking into consideration several relevant facts as mentioned in the t above para. It deems in n the interest of justice that impugned order dated 05.03.2021 be
-14- OA/050/00263/2021 quashed and set aside and applicant be allowed Family pension and other terminal benefits treating applicant's husband as regularized from the date of con conferment ent of Temporary Status at par par with Group 'D'.
23. Accordingly, the impugned order dated 05.03.2021 is quashed and set aside. R Respondents espondents are directed to treat the applicant's husband as regular Group 'D' (MTS MTS) notionally from the date of grant of 'Temporary status' at par with Group 'D' i.e. 04.10.2002 and to issue the orders for FFamily amily pension and other terminal benefits to the applicant applicant,, accordingly and pay the arrears of family pension within four months of receipt of this order order. It is clarified arified that applicant will not be entitled for back wages or interest on arrears of pay of her husband husband.
24. OA stands allowed to the extent of observations and directions as above. No cost.
[ Sunil Kumar Sinha] Administrative Member srk