Central Administrative Tribunal - Allahabad
Shiv Bhawan Mishra vs D/O Post on 12 March, 2024
(RESERVED ON 08.03.2024)
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH, ALLAHABAD
This the 12th day of March, 2024
ORIGINAL APPLICATION NO. 289 OF 2021
HON'BLE MR. JUSTICE OM PRAKASH VII, MEMBER (J).
1. Shiv Bhawan Mishra, aged about 61 years, S/o Late
Ram Milan Mishra, R/o H.No. S 10/32-1A, Maqbul
Alam Road, Chaukaghat, Varanasi.
2. Radhey Shyam Singh, aged about 61 years, S/o Ram
Kishun Singh, R/o H.No. 91 Paramhans Nagar Colony,
Chilaipur Kandawa, Varanasi.
3. Prema Singh, aged about 57 years, W/o Sri Gauri
Shanker Singh, R/o S 26/42-R Ashok Puram Colony,
Plot no.9, Meerapur Basan, Varanasi.
4. Arvind Kumar Singh, aged about 67 years, S/o Sri
Kailash Nath Singh, R/o Shiv 3/A-191-P-1-A,
Vishwanathpuri Colony, Navalpur Basahi, Varanasi.
5. Doodth Nath, aged about 59 years, S/o Sri Kalpu Ram
R/o Anantpur, Varanasi.
......... Applicants
By Advocate: Sri B.N. Singh
Versus
1. Union of India through its Secretary, Ministry of
Communication (I&T) Sansad Marg, Dak Bhawan, New
Delhi.
2. The Sr. Supdt. Of Post Offices East Division, Varanasi.
3. Chief Postmaster General, U.P. Circle, Lucknow.
............ Respondents
By Advocate : Sri Dharam Raj Pal
ORDER
The applicant, five in number, have filed this Original Application (OA) under Section 19 of Administrative Tribunals Act, 1985 seeking the following relief(s):-
"(i) to issue a suitable order or direction to call for record and direct the respondents to count the past service since initial appointment w.e.f. March 1983 for purpose of pension and other consequential benefits (DCRG, leave encashment pay fixation, seniority, revised pension) and same shall be paid 12% interest on the entire sum from the due date.
(ii) to pass such other and further order as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.
(iii) to award cost of the petition in favour of the applicant. "Page 1 of 10
2. Briefly stated the facts of the case are that all the applicants were initially selected for the post of Reserve Trained Pool Postal Assistant w.e.f. 18.3.1983 at Varanasi Division. The applicants completed all the required conditions meant for the post, in question, and on completion of necessary formalities, they joined on the said post. On completion of prescribed training, the applicants were posted as Postal Assistant. According to the O.A., the applicant nos. 1 have retired from service on attaining the age of superannuation w.e.f. 31.12.2020 and 30.6.2020 respectively, while remaining applicants are still working and they are going to retire shortly.
2.1 It is the case of the applicants that after retirement, the respondents-authority given the service benefits and pension fixed from the date of regularization i.e. 30.6.1988 and the services of applicant nos. 1 & 2 were not considered for providing DCRG, Leave encashment revised pension and seniority, whereas as per settled law the past service should be counted for the purposes of aforesaid benefits.
2.2 Similar controversy came up for adjuration before Chennai Bench of this Tribunal in O.A. No. 308 of 2014 and other connected O.As, which came to be allowed vide judgment and order dated 4.8.2015. The decision of Chennai Bench of the Tribunal has been affirmed by Hon'ble High Court in Writ Petition No. 34944 and 33928 of 2016 and other connected Writ petition in re. Union of India & Others Vs. Registrar, Central Administrative Tribunal, Chennai & others. Being aggrieved, the applicants preferred a representation before the authorities concerned, but the same did not fruitful any result. Hence, this O.A.
3. On notice, the respondents have contested the claim of the applicant by filing a detailed Counter Affidavit wherein they have stated that the applicants were initially selected as Reserve Trained Pool (RTP) as Postal Assistant vide order dated 18.3.1983. They were allotted Varanasi Division. The services of Page 2 of 10 the applicants came to be regularized w.e.f. 30.6.1988. The applicant nos. 1 & 2 have retired from service on attaining the age of superannuation. The applicant nos. 3 to 5 are still working and going to retire shortly.
3.1 The respondents have further averred that RTP scheme came into introduced in the year 1980 and according to the scheme, a panel of such persons was retained who could not be covered under the number of vacancies declared for regular appointment at PA/SA. The said RTP personnel were given priority for absorption against vacancies which occurred subsequently and as such the services rendered under RTP scheme by the personnel prior to their regular appointment as PA/SA cannot be counted for promotion seniority and grant of MACP. The respondents have also pleaded that the appointment of the applicant was not on permanent establishment, but purely conditional as RTP candidates will be absorbed as and when regular vacancy in permanent establishment arise in future. Lastly, the respondents have stated that the applicants are not entitled to get any relief(s) and as such O.A. is liable to be dismissed.
4. In rebuttal, the applicant has filed Rejoinder Affidavit to the Counter Affidavit filed by the respondents denying the contentions made in the Counter Affidavit while reiterating the averments made in the Original Application. Alongwith the Rejoinder Affidavit, the applicants have also annexed the judgment of Bangalore Bench of the Tribunal in O.A. No. 413 of 2019 in re. Smt. Girija Vs. Union of India & Others decided on 07th January, 2020 and prayed that the O.A., in hand, be decided on the same lines.
5. Learned counsel for the applicants has placed reliance the following case laws in support of their arguments.
(i) Habib Khan Vs. State of Uttrakhand decided by Hon'ble Supreme Court in Civil Appeal No. 10806 of 2017 decided on 23.8.2017.
(ii) Prem Singh Vs. State of U.P. & Others reported in 2019 0 Supreme (SC) 1044.Page 3 of 10
5. I have heard the learned counsel for the parties and perused the pleadings available on record.
6. At the outset, it may be stated that the issue involved in this O.A. is no longer res-integra as the issue has already settled upto the Hon'ble Supreme Court. In the case of Habib Khan (supra), the Hon'ble Supreme Court has held as under:-
"7. As already observed, the provisions of Rule 370 of the Civil Service Regulations applicable to the State of Uttarakhand are pari materia with the provisions of Rule 3.17(ii) of the Punjab Civil Services Rules, discussed above. If that is so, we do not see as to why the period of service rendered on work-charged basis by the appellants should not be counted for purposes of computation of 'qualifying service' for grant of pension. The pari materia provisions of Rule 3.17(ii) of the Punjab Civil Services Rules having been interpreted and understood in the above manner by this Court in Narata Singh (supra) we do not find any room for taking any other view except to hold that the appellants are entitled to reckon the period of work-charged service for purposes of computation of 'qualifying service' for grant of pension. We order accordingly; allow these appeals and set aside the impugned orders passed by the High Court."
7. Hon'ble Supreme Court in the case of Prem Singh (supra) has held as under:-
"31. In view of the note appended to Rule 3(8) of the 1961 Rules, there is a provision to count service spent on work charged, contingencies or non pensionable service, in case, a person has rendered such service in a given between period of two temporary appointments in the pensionable establishment or has rendered such service in the interregnum two periods of temporary and permanent employment. The work-charged service can be counted as qualifying service for pension in the aforesaid exigencies.
32. The question arises whether the imposition of rider that such service to be counted has to be rendered in-between two spells of temporary or temporary and permanent service is legal and proper. We find that once regularization had been made on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and irrational because of the rider contained in Note to Rule 3(8) of 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. There is no rhyme or reason not to count the service of work-charged period in case it has been rendered before regularisation. In our opinion, an impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The classification cannot be done on the irrational basis and when Page 4 of 10 respondents are themselves counting period spent in such service, it would be highly discriminatory not to count the service on the basis of flimsy classification. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification.
33. As it would be unjust, illegal and impermissible to make aforesaid classification to make the Rule 3(8) valid and non discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or non- pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.
34. In view of the note appended to Rule 3(8), which we have read down, the provision contained in Regulation 370 of the Civil Services Regulations has to be struck down as also the instructions contained in Para 669 of the Financial Handbook.
35. There are some of the employees who have not been regularized in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked 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 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 from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension.
36. In view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work- charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension. The arrears of pension shall be confined to three years only before the date of the order. Let the admissible benefits be paid accordingly within three months. Resultantly, the appeals filed by the employees are allowed and filed by the State are dismissed.
8. Hon'ble Madras High Court in Writ Petition No. 34944 and 33298 of 2016 and other connected Writ petitions while affirming the judgment and order passed by Chennai Bench of the Tribunal in the case of Union of India & Others Vs. Registrar, Central Administrative Tribunal, Chennai & Others has held as under:-
Page 5 of 10"We are informed by the learned counsel for the parties across the Bar that all these orders have been implemented by the Postal Department. Taking into account, the similar orders passed by the Jabalpur Bench and the compliance of the same by the Postal Department, the Central Administrative Tribunal was pleased to issue a direction to regularize the services of the petitioners. We, therefore, do not find any reason to interfere with the order passed by the Tribunal."
9. Similar controversy came up before Bangalore Bench of the Tribunal in the case of Smt. Girija Vs. Union of India & Others in O.A. No. 143 of 2019 decided on 7.1.2020, the relevant portion of which runs as thus:-
6. First point for our consideration is whether the RTP personnel are doing the same work as Postal Assistants in regular employment of the Respondents. In para 12 of the petition, petitioners plead in the following terms.
"Both Reserve Trained pool hereafter called as R.T.P. and Regular Employees are doing one and the same job, that is similar job. The only difference is that the Reserve Trained Pool hereafter called as R.T.P. are made to do more work than Regular Employees under threat and pressure."
As against the above averment of the petitioner, reply of answering Respondents in para 4 of their return dated 24.6.85, filed on 25.6.1985 in the High Court, is as under:-
"In reply to allegation made in paragraphs 9 to 13 of the petition, the factual position mentioned therein is not disputed."
Thus, it is an admitted fact that R.T.P personnel and regular Postal Assistants are doing one and the same job. This is also clear from the scheme of the R.T.P pool which is at Annexure R1, R.T.P. personnel are trained as a reserve and then required to work as assistants in Post and R.M.S. Offices, initially against short term vacancies due to absenteeism or any other reason, eventually to be absorbed against regular posts.
7. In the course of argument, learned Shri A.P. Tare, standing counsel for the Respondents drew our attention to para 6 of the return, wherein it has been stated; "The petitioners are required to work on substitute basis and the work of the petitioners category is not the same as a regular worker, of the petitioners category those who have been employed by the answering Respondents on regular basis" He argued that work of, the two differ. No duty list of the two posts has been produced by the Respondents. We are unable to agree with this argument because the two are required to do the same work for all practical purposes. R.T.P. personnel admittedly perform the same work in absence of regular postal assistants, as per scheme Annexure R1.
It is also not in dispute that R.T.P. employees are paid wages on hourly basis. Earlier it was Rs. 2 per hour as stated in the scheme at Annexure R1 on the ground that they are not regular employees. For the same reason they do not get facilities listed in para 10 of the position. In para 8 of the return answering Respondents state that the posts of R.T.Ps are not gazette for leave, transfer, OA.170/00143/2019/CAT/Bangalore 5 promotion etc., and they have no right to claim the same as regular employees.
Page 6 of 108. It is to be seen how far the plea of the Respondents is justified in view of the fact that the R.T.P. employees perform the same work as regular Postal Assistants and how far the Governments Scheme contained in the circular dated 30.10.1980 (Annexure R1) is itself discriminatory and violative of Article 14 of the Constitution. Equal protection under Article 14 of the Constitution means the right to equal treatment in similar circumstances both in the privileges conferred and in the liabilities imposed. It embraces the entire realm of "State action". It extends not only when an individual is discriminated against in the matter of exercise of his rights but also in the matter of imposing liabilities upon him, and also in the matter of employment as specifically laid down in Article 16 of the Constitution viz, salary, periodical increments, promotions, terms of leave, gratuity pension, superannuation etc. It has been argued by learned Sri Tare, standing counsel of the Respondents that, a classification can be there if such classification is conducive to administrative efficiency in the service concerned. This is reasonable and justifiable. If the differences between the two groups are sufficient to give any preferential treatment to one group or there is no reasonable nexus between such difference and the recruitment, the court may strike it down as violative of the fundamental rights contained in Article 14 and 16 of the Constitution. The Court would not interfere unless the classification results in pronounced inequality. On the other hand, it would not uphold a mini-classification, where the differences between the classes or categories are inconsequential.
9. For recruitment of Postal Assistants two advertisements, one of 6.3.82 and other of 20.8.82 were issued. On basis of those advertisements which were for the posts of regular Postal Assistants petitioner 2 and other like him have been taken in the R.T.P. as they did not qualify for the regular posts on the merit list. The third advertisement was for taking persons in R.T.P itself. It seems the argument of classification has been advanced only to show that no fresh recruitment to the posts of Postal Assistants is being done in accordance with the policy of the Central Government as disclosed in para 8 of the return. The question is that the entire premise of the circular dated 30.10.1980 (Annexure R1) is that the reserve pool although comprising of a reserve is recruited through the same system but comprise of persons on a lower order of merit, but the clear instruction is that this reserve pool as far as the persons recruited to it are concerned is a OA.170/00143/2019/CAT/Bangalore 6 temporary and transitory feature, and that they have to be eventually absorbed against regular posts of Postal Assistants. If as the result of any other Governments policy no fresh recruitment to the posts of regular Postal Assistant is to be done, then the entire scheme of this circular (Annexure R1) as laid down in paras 2 (x), 2 (vi), 3 breaks down. Although there may be reasonable classification introduced in the original circular, but as the result of the ban on recruitment to regular posts of Postal Assistants, a result of another policy, the process of absorption of the personnel of the R.T.P against regular posts is halted, and an element of unreasonable discrimination is introduced, which is violative of Article 14 of the Constitution, and has to be struck down. The Respondents had their two choices; (a) either to scrap the scheme laid down in their circular of 30.10.1980 or (b) to review their fresh policy of not having recruitment to posts of Postal Assistants which indirectly adversely affects the petitioners as well. Para 3 of the aforesaid circular itself envisaged originally the operation of the scheme as an experimental measure for the period of one year and can be Page 7 of 10 discontinued, but it has to be observed that the cause of action arose in respect of the persons recruited under the scheme which include, at the time of that recruitment to R.T.P the reasonable prospects of their eventual adoption as Postal Assistants.
10. Under the circumstances to end the unreasonable and unjust classification that has been introduced as the result of a dual policy of the Government as reflected in the issue of the circular (Annexure P1) and the stopping of further recruitment and absorption to the cadre of posts of Postal Assistants, as affirmed in para 8 of the Respondent's return dated 24.6.1985, we direct that:-
(a) Government shall review their policy to stop recruitment/absorption of persons against regular Postal Assistants.
(b) No person shall be inducted from other Departments like Railway Mail Service and Telecommunication Department to man posts of Postal Assistants until the petitioners are absorbed against regular posts.
(c) No fresh persons be taken and recruited against the R.T.P (Reserved Trained Pool). Until the Government reviews their policy as under (a) above the operation of the circular dated 31.10.1980 (Annexure R1) in regard to recruitment of fresh persons to R.T.P other than petitioners is struck down in exercise of this Tribunal's writ jurisdiction.
(d) The absorption of the petitioners against regular posts will be so phased on the basis of para 2 of circular of 30.10.1980, as if no restriction had been imposed on their regular recruitment/absorption earlier and shall be completed within a reasonable period from the date of this order, if necessary by creating supernumerary posts, and subject to screening of the unfit by a specially constituted Screening Committee to examine their record and performance. The Screening Committee shall also keep in view their seniority in the R.T.P.
11. As regards the question of equal pay for equal work claimed by the petitioners, we have also to keep in mind Article 39 relating to Directive Principles of State Policy in Part IV of the Constitution, while reading Article 14 and 16 in the present case. This provision together with other provisions of the Constitution contain one main objective, namely, the building of a welfare state and egalitarian, social order, as pointed out by Hon'ble the Supreme Court in KeshavandaVs State of Kerala (1973) 4 SCC 225. If the state itself violates the directive principles and introduces inequality in the matter of equal pay for equal work it would be most unfortunate and cannot be justified. It is a peculiar attitude to take on the part of respondents to say that they would pay only hourly wages to R.T.P employees and not the same wages as other similarly employed Postal Assistants when they are performing the same work as held by us in paras 6 and 7 of this order. It cannot be justified also in the light of the following observations of Hon'ble the Supreme Court, cited in the case of Surendra Singh Vs the Engineers in Chief C.P.W.D A.T.R 1986 SC 76.
"The argument lies ill in the mouth of Central Government, for it is all too familiar argument with the exploiting class and a welfare sate committed to a Page 8 of 10 socialistic pattern of society cannot be permitted to advance such an argument. It must be remembered that in this country where there is so much unemployment, the choice for the majority of people is to starve or take employment on whatever exploitative terms are offered by the employer. This fact that these employees accepted employment with full knowledge that they will be paid only daily wages and they will not get the same salary and conditions of service as other Class IV employees cannot provide an escape to the Central Government to avoid the mandate of equality enshrined in Article 14 of the Constitution. This Article declares that there should be equality before law and equal protection of the law and implicit in it is the further principle that there must be equal pay for work for equal value".
In the matter of Dearness and other allowances and the need for maintaining equality between wages of casual workers and salary etc of regularly appointed Telephone operators the order of Supreme Court dated 28.7.85 in the case of All India Telegraph Engineering Employees Union Vs Union of India and Another has also been cited by the petitioner's besides some other rulings.
12. Under the circumstances, for reasons stated in the preceding paragraph we find the provisions of circular dated 30.10.1980 (Annexure R1) in so far they relate to payment of hourly rates of wages to employees in the R.T.P discriminatory and violative of Articles 14 and 16 of the Constitution and are struck down. We direct respondents that the R.T.P employees performing the same duties as Postal Assistants, shall be paid the same salary and emoluments per mensem as are being received by Postal Assistants with effect from the date of their appointment. As regards other conditions of service and facilities requested by the petitioners, this is subject to their regular absorption as directed in para 10."
9. The issue, in hand, is squarely covered by the decision rendered by Bangalore Bench of the Tribunal in the case, referred to above, which has attained finality upto the Hon'ble Supreme Court. The applicants of this O.A. are now in the same boat and as such they are also liable to be treated equally.
10. In view of the above discussions and also the case laws as referred to above, O.A. deserves to be allowed and is accordingly allowed. Respondents are directed to count the past services of the applicants towards RTP w.e.f. March, 1983 for the purposes of pensionary benefits including pension. The aforesaid drill shall be completed within a period of four months from the date of receipt of certified copy of this order. There shall be no order as to costs.
Page 9 of 1011. All the associated M.As also stand disposed of.
(Justice Om Prakash VII) Member-J Girish/-
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