Central Administrative Tribunal - Patna
Bipin Bihari Dutta vs Postal on 17 November, 2021
1 OA No. 050/00800/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
OA No. 050/00800/2015
Date of order 17.11.2021
CORAM
HON'BLE SHRI M.C. VERMA,
VERMA, MEMBER [ J ]
HON'BLE SHRI SUNIL KUMAR
KUMAR SINHA, MEMBER [ A ]
Bipin Bihari Duttta, son of Late GrilarDhariDutta, resident of Village
Village-
Kewatpur, P.O. Basopatti, District-Madhubani.
District Madhubani.
...............Applicant
By Advocate : Sri S.K. Tiwari
Versus
1. The Union of India Secretary, Ministry of Communication,
Department of Post, New Delhi.
2. The Director General, Department of Post, DAk Bhawan, Sansad
Marg, New Delhi.
3. The Chief Post Master General, Bihar Circle, G.P.O. Complex,
Patna.
4. The Postmaster General Northern Region, Muzaffarpur.
5. The Director
Director of Accounts (Posta;) Patna.
6. The Superintendent of Post Offices, Madhubani.
...............Respondents
By Advocate : Mr.H.P. Singh
O R D E R (ORAL)
M.C. Verma,, M [ J ]
1. Raising grievances of non grant of 3rd MACP, instant OA has been preferred by a retired employee of Respondent's department; and according to the applicant his period of service rendered as RTP (Reserved Train Pool) had to be counted for computation of qualifying service and adding this period of service as RTP to his service rendered after rregularisation, the total qualifying service would be more than 30 years. The Prayer made in the O.A mutates mutandis is for a direction to the respondents to count his service period from August 1983 2 OA No. 050/00800/2015 for the purpose of grant of 3rd MACP and to grant arrear of financial up gradation with interest. After issuance of notice, respondents has filed written statement. The OA is at stage of final hearing.
2. Heard. The facts of applicant's case that previously applicant was holding the post of GDS, was selected for RTP (Reserved Train Pool),was sent for training on 25th August 1983, after completion of training joined as RTP on 25.11.1983, was regularised against the post of Postal Assistant on 27.07.1987, was granted TBOP in year 1999 &BC &BCRTin year 2010 and he superannuated on 31st January 2016 are undisputable and are rather are admitted by the respondents.
3. The contention of the applicant averred in OA is that the period of service rendered as RTP, from 25.08.1983 to 26.07.1987, shall also have to be counted and that after counting of said period total service rendered by him become 33 years and he thus wasentitled for 3rd MACP; whereas Respondents in their written statement disputing the claim of the applicant of 3rd MACPhas taken the plea that the service of past, rendered as RTP was against leave, on daily payment basis and that servicecannot be counted for and therefore rightly his servicew.e.f. 27.07.1987,the date he was regularised as Postal Assistant, to the date of his superannua superannuation has been counted for and this service period remains less than 30 years hence he was not entitled for 3rd MACP.
3 OA No. 050/00800/2015
4. In addition to aforesaid plea, respondents have also taken the stand, in WS that the O.A is barred by limitation and that previously claiming claiming regularisation of his service w.e.f. 25.08.1983 applicant has filed OA and that said submission of him was rejected by the Tribunal and the Writ Petition preferred against the order passed by the Tribunal was also dismissed by the High Court and therefore therefore also the O.A is not maintainable.
5. Heard. Shri S.K. Tiwari, Advocate for applicant while pressing the O.A urged that in previous O.A the issue of MACP was not there and therefore no findings on the issue of MACP,either by the Tribunal or by the High Cour Court has been given. That it is undisputed that applicant either as RTP or as Postal Assistant wasin continuous service from on 25.11.1983 to 31st January 2016.He also submitted that there are several judgements of co co-
ordinate bench of Tribunal wherein the se service rendered as RTP has been directed to be counted for MACP. Regarding limitation he submits that present one is recurring cause of action and therefore the OA is not barred limitation.
6. Shri H.P.Singh Advocate, appearing for respondents has opposed the maintainability of the O.A and he vehemently did contend that relating to period of service rendered as RTP applicant previously has filed three OA and it has been held therein that service of applicant as RTP cannot be counted as regular service against a substantive post and he cannot claim the benefit of this post of RTP. Mr. Singh explained that one of 4 OA No. 050/00800/2015 said OA, which were filed by the applicant, was OA No. 653/2004. He referred decision dated 4th March 2010 passed by this Tribunal in said OA No. 653/2004, 653/2004, particularly thefinding of the Tribunal contained in Para 12 of the decision. He also urged that not being satisfied applicant did prefer CWJC No. 5265 of 2011 on the file of Hon'ble High Court but passing elaborate and speaking orderHon'ble High Cour Court also arrived on conclusion that no right will accrue for counting such service as regular service in a substantive post. Referring aforesaid two judgements learned counsel vehemently argues that otherwise also applicant has not approached the Tribunal wi with clean hands, applicant did not disclose about rejection of his previous petition, Mr. Singh referred Para 7 of the O.A wherein declaration of applicant is there.
7. Mr. Tiwari, advocate for applicant urged at this stage that it is true that the applicant has filed afore referred OA and it was held in said OA that the period of service of RTP cannot be counted as period of regular service and for financial up gradation. He explained that due to inadvertence this fact remains to be mentioned in Para 7 of the O.A but several judgements have come covering the issue of RTP. He requests that applicant is an old aged person and is suffering from financial crunch and that dismissal of this O.A may cause irreparable loss to the applicant and he would remain deprived to exhaust relief at departmental level also. He urged that 5 OA No. 050/00800/2015 applicant may be granted liberty to approach the department authority for redressing of his genuine grievance.
8. Considered the submissions advanced advanced. In Para 7 of instant O.A declaration of the applicant a is :- " that he has not previously filed any application, Writ Petition or suit regarding the matter in respect has made, before any court of any court or any other bench of the Tribunal nor any such application, writ petition or suit pending before befo any of them."
9. It can be said without hesitation that previously regardingthe issue of period rendered as RTP applicant at at-least has filed O.A. 653/2004 and while rejecting the said OA , the Tribunal in its Order dated 4rth March 2010 held:
held:- " In the light of the above examination of the case and the clear cut observation of the Hon'ble Supreme Court and a concurrent Bench of this Tribunal as cited above the applicant cannot in any manner count the period of his RTP Pool services towards regular ser service in a substantive post, and cannot claim the benefit of it being counted for the purpose of Time Bound Advancement also. In the result, this O.A does not survive and is liable to be rejected."
10.CWJC No. 5265 of 2011, preferred by applicant challenging the order passed by the Tribunal in O.A. 653/2004 has been dismissed by the Hon'ble High Court and while passing an elaborate order Hon'ble High Court also arrived on conclusion that no right will accrue ccrue for counting such service as regular 6 OA No. 050/00800/2015 service in a substantive post. Relevant portion of judgement dated 28th February 2012 passed in CWJC No. 5265 of 2011 is reproduced herein below:-
below:
" In our considered view the issue as to whether the period for which ich petitioner worked in the Reserved Trained Pool Scheme cannot be counted towards regular service in a substantive post for the purpose of claiming benefit of Time Bound Promotion. The Judgment of the Supreme Court has been extracted by the learned Tribu Tribunal and paragraph 10 of that Judgment clearly settles the issue that those employees who have obtained the benefit of absorption into regular service because of R.T.P.Scheme cannot at the same time claim additional benefits on the basis of what has been given ven to the casual labourers. It was explained that such benefit is unwarranted because the period for which they claim their benefits is the period during which such benefits were not available to casual labourers.
Learned counsel for the petitioner has sought to distinguish petitioner's case on facts by trying to emphasize that under the R.T.P. Scheme the petitioner was engaged for a considerable period without break and it is not that he worked only intermittently. In our considered view, the issue iis not dependent upon the number of days a casual labourer worked in the 7 OA No. 050/00800/2015 R.T.P. Scheme but upon the right flowing from such a scheme. As explained by the Supreme Court, no right will accrue for counting such service as regular service in a substantive post.
t. Hence, we find no merit in this writ petition. It is, accordingly, dismissed."
11.The applicant thus can be said to have suppressed the material facts No relief in present scenario of facts can be granted by the Tribunal in this OA, the OA deserves dismis dismissal and hence is dismissed.
12.However, before parting we wants to reiteratethat applicant's counsel has urgedthat due to inadvertence some facts remains to be mentioned in OA,several judgements have come covering the issue of RTP and still department author authority can redressihis genuine grievance but dismissal of this O.A may impede the applicant, who is suffering from financial crunch to exhaust relief at departmental level also. Hehas urged that applicant may be granted liberty to approach the department auth authority for redressing of his genuine grievance. Taking note of his this submission, we wants to say that if the applicant is of the view that in prevailing legal and factual position he can approach the departmental authority for redressing of his grievance grievance, this dismissal of this O.A will not to be an impediment for him approach the departmental authority.
(Sunil Kumar Sinha) M ( A ) (M.C. Verma ) M [ J ] mks 8 OA No. 050/00800/2015