Central Administrative Tribunal - Delhi
Vijay Pal S/O Shri Chhajan Singh And Ors. vs The Union Of India (Uoi) (Through ... on 12 October, 2006
ORDER
M.A. Khan, Vice Chairman (J)
1. It is stated in the OA that these 10 applicants were engaged as causal labourers in the establishment of 40 Coy ASC (Supply) Meerut Cantt. of the Ministry of Defence on different dates between 1.3.1983 to 8.4.1991. Pursuance to the Scheme formulated by the DOP&T of the Government of India for grant of temporary status and regularization of casual labourers in 1993, the applicants were granted temporary status with effect from 10.9.1993. In March, 2005, the applicants made a representation for fixation of their pay in the pay scale of Rs. 2610-3540 instead of Rs. 2550-3200 and for grant of full benefits consequential to that, but to no effect. The applicants have filed the present OA for a direction to the respondents to fix their pay in the pay scale of Rs. 2610-3540 by granting benefit of increments accrued during the service period as temporary status causal labour with effect from 1993 till they were regularized in the year 2001 and 2003 as applicable. They also seek a direction to release consequential monetary benefits to the applicants on conferment of temporary status on them.
2. The respondents in the counter have stated that the applicants were employed as casual labourers and were conferred temporary status with effect from 15.9.1994 in terms of DOP&T OM dated 10.9.1993. They have been paid wages with effect from 15.9.1994 at daily rates with reference to the minimum pay scale for the regular Group 'D' employees including DA, HRA and CCA as per para 5 (1) of DOP&Ts Scheme. The applicants were regularized as Chowkidar Group D on different dates. Army Headquarters (AG's Branch) had released two vacancies of Chowkidars vide letter dated 30.4.2001 and the services of S/Shri Vijay Pal and Kali Charan (not Shri Kamal Singh) applicant Nos. 1 and 8 were respectively regularized on 29.10.2001. As per the extant Recruitment Rules and the DOP&T's instructions on the subject, the services of the remaining 8 applicants were regularised on 3.7.2003 while implementing the order dated 17.1.2002 passed by the Delhi High Court in Writ Petition No. 3649 of 2001 and the order of this Tribunal dated 13.12.2000 passed in OA No. 752/2000. As regards the claim of these applicants about other service benefits, the same had been submitted to the Headquarter UB Area (A)/(ST) on 15.3.2005 for necessary direction. The respondents in para 4 have also given details of the dates on which each of these applicants was engaged as casual labour, the date on which temporary status was conferred and the date on which their services were regularised. It is submitted that on regularization of these applicants their pay was fixed in the pay scale of Rs. 2550-3200 and the wages at daily rate with reference to the minimum of the pay scale (at present Rs. 2550) with a corresponding regular Group 'D' employee including DA, HRA and CCA was granted to these applicants from the date of grant of temporary status, i.e., 15.9.1994 prior to their regularization. The applicants were not performing duties for 240 days in the year from the date of conferment of temporary status so benefit of annual increment is not admissible to them as per the condition laid down in para 5 (II) of the DOP&T's OM dated 10.9.1993. As regards leave, the applicants were not engaged continuously for 10 days of work so as per para 5 (III) of DOP&T OM dated 10.9.1993, they were not entitled for casual or any other kind of leave. In accordance with para 5 (V) of DOP&T's OM dated 10.9.1993 necessary casualty, i.e., Part-II order for 50% of service rendered under temporary status is being counted for the purpose of retirement benefits subject to the applicants having already been regularized. In accordance with para 5 (VII) of the DOP&T's OM dated 10.9.1993 necessary documents for granting productivity linked bonus/ad hoc bonus as applicable to causal labour is being processed for payment to the applicants. The pay scale of these applicants has been correctly fixed. Their correct pay scale is Rs. 2550-3200 and not Rs. 2610-3540. Other contentions of the applicants have been disputed.
3. The applicants have reiterated their allegations in their rejoinder.
4. We have heard the learned Counsel for the parties and have also perused the relevant documents placed on the file.
5. The applicants, who were initially engaged as causal labourers, were conferred temporary status in 1994 and have since been regularized in service of the respondents as Chowkidar from different dates in 2001/2003. The material facts are not in dispute. The claim of the applicants pertain to the pay scale which has been granted to them on regular basis, the increment for the period of service rendered as temporary status and counting of the service as casual labour and temporary status towards pension, the leave and bonus. We take up the claim one by one.
6. The first claim is that the pay of the applicants should be fixed in the pay scale of Rs. 2610-3540 and Rs. 2550-3200. The respondents with their counter-reply have filed the Recruitment Rules called The Army Group D (Non-Industrial) Recruitment Rules, 2001, which with regard to the post of Chowkidar, have prescribed the pay scale as Rs. 2550-5502660-3200 as the pay scale attached to the said post. The applicants have been granted this pay scale. In the rejoinder the applicants have, however, stated that since they are discharging duties of more arduous nature than Chowkidars, so they should be equated with Khansama Chowkidar in MES who have been granted upgraded pay scale with effect from 1.1.1996. The argument is not tenable. Firstly, as the averment in the rejoinder would show the pay sale of the Khansama Chowkidar has been upgraded, which post cannot be equated with the post of simple Chowkidar. Khansama Chowkidar performs dual duties, i.e., the duty of a cook and of a Chowkidar. Moreover, the applicants have been granted the pay scale as prescribed in the Recruitment Rules. If the applicants want that they should be granted the higher pay scale because of the nature of the duties performed by them, proper course for them would be to approach their departmental and controlling authority to redress their grievances. The Tribunal cannot grant them the pay scale of Khansama Chowkidar as it is not a case of hostile discrimination. The applicants in the matter of pay scale has referred to (See State of West Bengal v. H.N. Bhowal and Ors. (1994) 27 ATC 524, Union of India and Anr. v. P.V. Hariharan (CA 7127/1993) 1997 SCC (L&S) 38, Secretary, Finance Department and Ors. v. West Bengal Registration Service Association and Ors. . We, therefore, do not find that the pay scale of the applicants called for interference by the Tribunal in the present proceeding.
7. The Office Memorandum dated 10.9.1993 issued by the Ministry of Personnel, PG and Pension of the Government of India regarding grant of temporary status and regularisation of Casual Workers under the Scheme formulated vide order of this Tribunal dated 16.2.1990 which, as regards to conferment of temporary status and the benefits accruing there from, has averred as under:
Temporary Status
(i) Temporary status would be conferred on all casual labourers who are in employment on the date of issue of this OM and who have rendered a continuous service of at least one year, which mans that they must have been engaged for a period of at least 240 days (206 days in the case of officers observing 5 days week).
(ii) Such conferment of temporary status would be without reference to the creation/availability of regular Group 'D' Posts.
(iii) Conferment of temporary status on a casual labourer would not involve any change in his duties and responsibilities. The engagement will be on daily rates of pay on need basis. He may be deployed anywhere within the recruitment unit/territorial circle on the basis of availability of work.
(iv) Such casual labourers who acquire temporary status will not, however, be brought on the permanent establishment unless they are selected through regular selection process for Group 'D' posts.
5. Temporary status would entitle the casual labourers to the following benefits:
(I) Wages at daily rates with reference to the minimum of the pay scale for a corresponding regular Group 'D' official including DA, HRA and CCA.
(II) Benefits of increments at the same rate as applicable to a Group 'D' employee would be taken into account for calculating pro-rata wages for every one year of service subject to performance of duty for at least 240 days (206 days in administrative offices observing 5 days week) in the year from the date of conferment of temporary status.
(III) Leave entitlement will be on a pro-rata basis at the rate of one day for every 10 days of works causal or any other kind of leave except maternity leave will not be admissible. They will also be allowed to carry forward the leave at their credit on their regularization. They will not be entitled to the benefits of encashment of leave on termination of service for any reason or on their quitting service.
(IV) Maternity leave to lady casual labourers as admissible to regular Group 'D' employees will be allowed.
(V) 50% of the service rendered under Temporary status would be counted for the purpose of retirement benefits after their regularization.
(VI) After rendering three years continuous service after conferment of temporary status, the casual labourers would be treated on PAR with temporary Group 'D'employees for the purpose of contribution to the General Provident Fund and would also further be eligible for the grant of festival Advance/Flood Advance on the same conditions as are applicable to temporary Group 'D' employees, provided they furnish two sureties from permanent Government servants of their Department.
(VII) Until they are regularized, they would be entitled to Productivity, linked Bonus/Ad hoc bonus only at the rates as applicable to casual labourers
6. No benefits other than those specified above will be admissible to casual labourers with temporary status. However, if any additional benefits are admissible to casual workers working in industrial establishments in view of provisions of Industrial Dispute Act, they shall continue to be admissible to such casual labourers.
7. Despite conferment of temporary status, the services of a casual labourers may be dispensed with by giving a notice of one month in writing. A causal labourer with temporary status can also quit service by giving a written notice of one month The wages for the notice period will be payable only for the days on which such casual worker is engaged on work.
8. As regards the counting of service towards qualifying service for payment of pension, the respondents in their counter-reply have fairly stated that 50% of the service rendered under Temporary status in this regard has already been counted for the purpose of pension in accordance with para 5 (V) of OM dated 10.9.1993 wherein it has been provided as under:
(V) 50% of the service rendered in temporary capacity would be counted for the purpose of retirement benefits after their regularization.
9. The applicants in para 7 of the rejoinder have referred to the judgment delivered by the Hyderabad Bench of the Central Administrative Tribunal decided under Railway Service (Pension) Rules, 1993 which allowed counting of full service till regularisation for the purpose of pension and half of the service before the period of temporary status under the aforesaid rules. No rules or Government instructions has been brought to our notice which apply to the civil servants under the respondents where similar benefit has been granted, therefore, it is not possible for us to agree with the contention of the applicants that in addition to the period of temporary status, half of the service rendered as casual labourer prior to grant of temporary status is counted toward qualifying service for the purpose of pension. The applicants are free to make representations to the respondents in this regard to the competent authority in the department, which the respondents may consider and decide it in accordance with the extant rules applicable.
10. Similarly the respondents in the counter-reply have stated that the case of the applicants for grant of Productivity Linked Bonus/Ad hoc Bonus was being processed as per OM dated 10.9.1993. The OM in regard to payment of bonus in para 5 (VII) of the OM has stated that, until the casual labourers are regularized, they would be entitled to Productivity Linked Bonus/Ad hoc Bonus only at the rates as applicable to casual labourers. The respondents, as such, have already agreed to grant this benefit as per Government instructions contained in the OM.
11. Two grievances of the applicants are now surviving. First is with regard to grant of increment for the period of temporary status and second is the grant of leave for the aforesaid period. The respondents have refused to grant the increments to the applicants as they did not fulfil the condition laid down in para 5 (II) of the OM dated 10.9.1993. The aforesaid para of the OM has stated as under:
(II) Benefits of increments at the same rate as applicable to a Group 'D' employee would be taken into account for calculating pro-rata wages for every one year of service subject to performance of duty for at least 240 days (206 days in administrative offices observing 5 days week) in the year from the date of conferment of temporary status.
12. The respondents in their counter-reply have stated that the applicants were, however, not performing duties for 240 days from the date of conferment of temporary status so they were not entitled to the increment. The applicants in the rejoinder have not rebutted this allegation. However, they have alleged that they were not at fault if they were engaged for lesser number of days in a year, but they became entitled for grant of the benefit of annual increment on their having completed requisite number of days in two years consecutively working period and that benefit of one increment for every spell of working requisite number of days as per DOP&T OM Scheme makes them entitled for the same, otherwise they would be discriminated. They have disputed that they have not worked for 240 days in a year so as to become entitled for grant of increment. But in their representations they have not stated the grounds, which have been stated in the rejoinder. For this, we allow them to make a representation for redressal of their grievances in this regard to the respondents, who after hearing the applicants, may take a decision and convey it to the applicants.
13. With regard to the claim of leave, the respondents in their counter reply have stated that the applicants were not engaged continuously for 10 days of work, therefore, as per para 5 (III) they were not entitled to casual or any other kind of leave. Para 5 (III) of OM dated 10.9.1993 with regard to leave has stated as under:
5 (III) Leave entitlement will be on a pro-rata basis at the rate of one day for every 10 days of works causal or any other kind of leave except maternity leave will not be admissible. They will also be allowed to carry forward the leave at their credit on their regularization. They will not be entitled to the benefits of encashment of leave on termination of service for any reason or on their quitting service.
14. The leave is to be admissible to the applicants as per the provisions of the Scheme. The applicants, if still aggrieved, may make a representation to the respondents for redressal of their grievances regarding their leave, which the authority of the respondents may decide after providing an opportunity of hearing.
15. For the reasons stated above, we dispose of the present OA with the following directions:
The applicants are not entitled to the fixation of their pay in the pay scale of Rs. 2610-3540. But they are allowed to make a representation to the respondents for granting them higher pay scale and if such a representation is made, the competent authorities of the department after providing hearing to the applicants shall take a decision and communicate it to the applicants, who may seek redressal of their grievances against it in accordance with law.
The applicants are entitled to the counting of their service rendered under temporary status as per para 5 (V) of the OM dated 10.9.1993 (Annexure II) of the counter reply which the respondents department has already implemented but in case the applicants are still aggrieved and want the counting of full or half period served as casual labourer prior to period of temporary status followed by regularisation of the service, for the purpose of pension, they may make a representation to the respondents and the competent authority after providing an opportunity of hearing to the applicants shall take a decision and will intimate it to the applicants, who may seek redressal of grievances in accordance with law.
The respondents have already processed the case for release of Productivity Linked Bonus/Ad hoc Bonus payable to the applicants and have stated in the counter-reply that the payment would be made at an early date. We direct the respondents to make the payment within 3 months from the date the certified copy of the order is received by them.
The applicants shall be entitled to leave in terms of para 5 (III) of the OM dated 10.9.1993 aforesaid. However, for counting the working days, they may make representation to the respondents, i.e., the competent authority, who may provide an opportunity of hearing to the applicants and then take a decision and communicate to the applicants and if they are not satisfied, they may seek redressal of the grievances against that order also in accordance with law.
16. The OA stands disposed of in the above terms leaving the parties to bear their own costs.