Central Administrative Tribunal - Delhi
Sanjeev Kumar vs Employees State Insurance Corporation on 11 October, 2018
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2839/2016
MA-2547/2016
Reserved on : 07.09.2018.
Pronounced on :11.10.2018.
Hon'ble Ms. Praveen Mahajan, Member (A)
1. Sh. Sanjeev Kumar, MTS, (Group „C‟)
Aged about 42 years,
S/o Sh. Hari Ram,
R/o D-4-118, Sec-20,
Rohini, Delhi-110086.
2. Sh. Rajender Kumar, MTS, (Group „C‟)
Aged about 40 years,
S/o Late Sh. Gariba,
R/o Z-145, Gali No. 10,
Prem Nagar-II, Kirari Suleman Nagar,
Delhi-110086.
3. Sh. Rajesh, MTS, (Group „C‟)
Aged about 42 years,
S/o Sh. Sohan Lal,
R/o H-63C, Shivajit Enclave,
Near Mother Dairy,
Delhi-110027. .... Applicants
(through Sh. M.K. Bhardwaj, Advocate)
Versus
1. The Director General,
ESIC, Panchdeep Bhawan,
CIG Road, New Delhi.
2. The Regional Director,
Regional Office,
ESIC, Rajendra Bhawan,
Rajendra Place, New Delhi.
2 OA-2839/2016, MA-2547/2016
3. The Dy. Director (Admn.)
Directorate (Medical) Delhi,
ESI Scheme : Dispensary Complex,
Tilak Vihar, New Delhi-110018.
4. The Medical Superintendent,
ESI Hospital,
Basaidarapur, Ring Road,
New Delhi-110015. ..... Respondents
(through Sh. Murari Kumar with Sh. Shiv Shankar and Sh. Aman Jha,
Advocate)
ORDER
MA-2547/2016 in OA-2839/2016 filed for joining together in one application is allowed.
2. The applicants submit that they were working as casual labourers with the respondents and were entitled for grant of temporary status as per OM dated 10.09.1993 issued by Department of Personnel & Training (DoP&T). Since the applicants were not granted the temporary status, some of the applicants as well as other similarly placed persons approached this Tribunal by filing OA Nos. 1376/1999, 1812/1999 and 511/2000, which were disposed of with the directions to the respondents to consider their claim for grant of temporary status. Accordingly, the respondents granted temporary status to the applicants from the date of their completion of 206/240 days of service.
3 OA-2839/2016, MA-2547/2016
3. The applicants were granted regular pay scale attached to Group-D post and deduction of GPF was also started as per provisions of OM dated 10.09.1993. The applicants were given bonus and other benefits as given to regularly appointed Group-D staff. After grant of temporary status, the applicants were entitled to be considered for regularization against the available vacancies but the respondents delayed the regularization of the applicants without any justification. In the meantime, the respondents implemented the recommendations of the 6th Central Pay Commission from 01.01.2006. As per the recommendations of the 6th Central Pay Commission, CCS (Revised Pay) Rules were notified and the applicants pay scale was also revised vide order dated 18.12.2008. Since the applicants were getting the pay scale as well as all other facilities as given to MTS (after 01.01.2006 Group-D post was re- designated as MTS), they again requested the respondents to consider their claim for regularization. Finally, the respondents regularized the applicants as MTS vide order dated 08.04.2011 and 25.04.2011. After regularization as MTS, the respondents did not fix the pay of the applicants correctly and placed them in the initial pay scale of MTS, which caused grave financial loss to the applicants. Being aggrieved, the applicants requested the respondents to re-fix their pay by taking into account the pay drawn by them at the time of regularization.
4 OA-2839/2016, MA-2547/2016
4. It is averred in the OA that the respondents did not cover the applicants under the GPF Pension Scheme on the basis of O.M. dated 26.04.2014, which has been set aside by Jaipur Bench of Central Administrative Tribunal in OA-60/2002. By following the said order, the Principal Bench also allowed OA-2131/2004 with directions to the respondents to continue the GPF deduction under the CCS (Pension) Rules in respect of casual labourers with temporary status after their regularization. Being aggrieved, UOI approached the Hon‟ble High Court of Delhi as well as Hon‟ble Supreme Court of India. SLP filed by UOI was dismissed, after which the Ministry of Personnel, Public Grievances & Pension issued OM dated 26.02.2016 and clarified that the casual labourers with temporary status regularized after 2004 shall also be entitled for the pension under GPF Pension Scheme.
5. Being aggrieved by the action of the respondents, the applicants have filed the current O.A. seeking the following reliefs:-
"(i) To declare the action of respondents in not granting benefit of GPF Pension Scheme to the applicants as per CCS (Pension) Rules, 1972 as illegal and unjustified and direct the respondents to continue the GPF contribution to the GPF and count the service rendered by the applicants under temporary status for the purpose of fixation of pension and retirement benefits by quashing adverse orders.
(ii) To direct the respondents to treat the appointment of the applicants as regular from the date of initial appointment and grant them 1st Financial Upgradation under MACP Scheme from the date of completion of 10 years of regular service.
(iii) To allow the OA with exemplary cost."
5 OA-2839/2016, MA-2547/2016
6. The applicants have relied upon the following judgments of Hon‟ble Supreme Court/Hon‟ble High Court:-
(i) U.P. State Electricity Board Vs. Chandra Pandey & Ors., 2007(12)SCALE 304.
(ii) WP(C)-17582-30/2006.
(iii) Inderpal Yadav Vs. UOI, (1985)2 SLR 248.
(iv) Ketty Veerappa & Ors. Vs. State of Karnataka & Ors., (2006) 9 SCC 406.
(v) P.K. & Ors. Vs. V.K. Kapoor & Anr., JT 2007(12) 439.
(vi) Gulam Rasul Lone Vs. State of J&K, (2009) 15 SCC 321.
7. In reply, the respondents have stated that the applicants have not approached this Tribunal with clean hands and concealed the material facts regarding their employment. It is admitted that the applicants were appointed as casual workers for different durations on purely ad hoc basis for work of intermittent nature related to the then Group-D staff, and allowed to continue on ad hoc basis till they were regularized. The applicants were engaged without following prescribed procedures like calling for names from employment exchange and conducting written tests or interviews etc. Taking a sympathetic view, a meeting was held on 10.12.2010 wherein it was decided by the respondents to absorb such casual workers on regular basis who had continued to be engaged for two years or more as on 01.10.2008 by relaxing the conditions of relevant Recruitment Rules for the post of MTS as special/one time case. All 6 OA-2839/2016, MA-2547/2016 casual workers, who were considered for regularization of service submitted an unconditional undertaking to the effect that they submit their consent for regularization of service against Group-D posts as per conditions stipulated in ESIC Hqrs. Letter dated 12.01.2011 to the effect that they do not have any claim of benefit of past service on casual/ad hoc/daily wager/temporary basis and their placement as junior most in the seniority list. 7.1 The respondents have denied that the applicants became eligible for 1st financial upgradation under MACP Scheme in the year 2010. They submit that the applicants are not eligible for any financial upgradation since they were not in regular service and had been engaged purely on ad hoc basis till their appointment as regular employees. The respondents further contend that the applicants did not qualify the examination even after relaxing the Recruitment Rules for appointment as regular Group-D employees. All the three applicants in OA had crossed the upper age limit at the time of their regular appointment and cannot take benefit under the CCS (Pension) Rules, 1972. Hence, the applicants have no case and the current O.A. be dismissed.
8. I have gone through the facts of the case and carefully perused the citation relied upon by the learned counsel for the applicants.
7 OA-2839/2016, MA-2547/2016 8.1 The Minutes of the meeting of ESI Corporation held on 10.12.2010 (Annexure-R-1) show that regularization of casual/ad hoc/temporary workers in Group-D posts in the Corporation was taken up as Item No. ESIC-14. The regularization of casual/ad hoc workers, who had continued to be engaged for two years or more as on 01.01.2008 was considered for regularization by way of relaxation of the existing Recruitment Rules for peons by seeking one time relaxation to educational qualification, age and method of recruitment etc. It was proposed that the services for 41 workers (of which the applicants in OA also figured) be regularized in the following manner:-
"By relaxing the age, educational qualification etc. as per the RRs for the post against Gr.‟D‟ posts available in the respective regions, commensurate with their educational qualification."
This was followed by a letter dated 12.01.2011 confirming the approval for the aforesaid proposal, as a one-time measure, with specific directions that it cannot be used as a precedent in future. 8.2 The letter dated 12.01.2011 reads as under:-
"Sub:- Regularisation of casual/ad hoc/temporary workers in Group 'D' posts in the ESI Corporation-reg.
Sir,
(a) On being regularized they will be treated as fresh appointees and no benefit of past period of service will be given and will be placed at the bottom of the seniority starting at the minimum scale of pay. Their pay would be regulated as per the recommendations of the 6th pay commission. Further who do not possess the revised minimum qualification for entry into PB-1 will be fixed in the -1s pay Band & further action may be taken in view of 8 OA-2839/2016, MA-2547/2016 the recommendations of 6th CPC and those who possess the requisite qualification will be placed in PB-1.
(b) Their services have been regularized by relaxing the age, educational qualification etc. as per the RRs for the post against Group „D‟ posts/now designated as Multi Tasking Staff available in the respective regions, commensurate with their educational qualification.
(c) A written consent may be obtained from these officials in the proforma enclosed within a period of 30 days stating that they have no objection for being regularized as fresh appointee and no benefit of past period of service may be given and will be placed at the bottom of the seniority and shall start at minimum scale of pay.
(d) xxxx
(e) xxxx
(f) xxxx
(g) xxxx
(f) xxxx
(g) xxxx
(h) xxxx
(i) xxxx
(j) He/she will be governed under new pension scheme.
(k) In case he/she accepts the post on the above terms & conditions mentioned above, he/she should convey his/her acceptance in writing in any case not later than 30 days from the receipt of the offer of appointment failing which it will be presumed that he/she is not interested in the post and offer will be stand automatically cancelled without any further notice to him/her.
(l) They will be adjusted against Group „D‟ posts/now to be designated as Multi Tasking Staff available in the region as per recommendation of 6th pay commission.
In view of the above, it is requested to obtain the consent in the enclosed proforma first & thereafter issue offer of appointment in the prescribed proforma to the above candidates.
Action taken in this regard should be reported to this office. Please acknowledge the receipt."
9. It is stated by the respondents that all the casual workers, who were absorbed in the services submitted an unconditional undertaking to the effect that they submit their consent for 9 OA-2839/2016, MA-2547/2016 regularization of service against Group-D posts as per the afore- mentioned conditions and that they do not have any claim of benefit of past service on casual/ad hoc/daily wager/temporary basis and placement as junior most in the concerned seniority list in the above cadre.
9. The applicants in the OA have suppressed the fact that they acquiesced to the pre conditions laid down in the afore-mentioned letter dated 12.01.2011. Having accepted that no benefit of past period of service will be available to them, their various claims through the medium of this O.A. become untenable. Further, clause-j of the letter dated 12.01.2011 clearly envisages that they will be governed under the New Pension Scheme after 01.01.2006.
10. In view of the foregoing, the reliance placed by the applicants on the decision of the Hon‟ble High Court of Delhi in WP(C)- 7808/2012 & C.M. No. 19651/2012 (Ritu Kushwaha and Ors. Vs. UOI & Ors.) dated 11.11.2014 would not be applicable to them.
11. In view of the factual matrix of the case, I find that this O.A. is devoid of merit and accordingly dismiss the same. No costs.
(Praveen Mahajan) Member (A) /vinita/