Central Administrative Tribunal - Chandigarh
Mohammad Safdar Mir vs M/O Textiles on 27 July, 2018
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
...
O.A. No.62/1133/2017 Date of decision: 27.07.2018
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CORAM: HON'BLE MR. SANJEEV KAUSHIK, MEMBER (J).
HON'BLE MRS. P. GOPINATH, MEMBER (A).
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1. Mohammad Safdar Mir S/o Mohammad Jaffar Mir, R/o Wakharwan,
District Pulwama, aged 58 years, Group-C, Srinagar (J&K).
2. Mohammad Yaqoob Bhat S/o Late Mohammad Khalil Bhat, R/o
Pinglena, District Pulwama, aged 57 years, Group-C, Srinagar (J&K).
3. King Pal Singh S/o Mitha Singh, R/o Arina, District Budgam, aged 56
years, Group-C, Srinagar (J&K).
4. Abdul Khaliq Reshi S/o Late Khazir Mohammad Reshi, R/o Kanloo
Pattan, District Baramulla, aged 58 years, Group-C, Srinagar (J&K).
5. Syed Mehdi Shah S/o Syed Sadiq Shah, R/o Iskander Pora, Khag,
District Baramulla, aged 57 years, Group-C, Srinagar (J&K).
6. Ab. Aziz Ganai S/o Khazir Mohammad Ganai, R/o Khayar, Bandipora,
District Bandipora, aged 57 years, Group-C, Srinagar (J&K).
7. Syed Mohammad Farooq S/o Syed Gh. Nabi, R/o Sagam, Tehsil
Kokernag, District Anantnag, aged 57 years, Group-C, Srinagar
(J&K).
8. Smt. Anjum Nabi D/o Gh. Nabi Shah, R/o Janglat Mandi, District
Anantnag, aged 57 years, Group-C, Srinagar (J&K).
9. Smt. Yasmeen Lumba W/o Dr. Gulam Rahim, R/o Shalimar, District
Srinagar, aged 59 years, Group C.
.... APPLICANTS
VERSUS
1. Union of India through Secretary, Ministry of Textile, Udyog
Bhawan, New Delhi.
2. Development Commissioner, Handicrafts, West Block No.7, R.K.
Puram, New Delhi.
3. Regional Director, Handicrafts, West Block No.8, R.K. Puram, New
Delhi.
4. Dy. Director, Handicrafts, Field Administration Cell, Shahdad House
Bagat Barzulla, Srinagar.
5. Assistant Director (Handicrafts), Field Administration Cell, Shahdad
House Bagat Barzulla, Srinagar.
6. Assistant Director, Office of the Development Commissioner
(Handicrafts), Service Centre, Anantrag.
7. Assistant Director, Office of the Development Commissioner
(Handicrafts), Service Centrel, Baramulla.
8. Assistant Director, Office of the Development Commissioner
(Handicrafts), Service Centre, Pulwam.
.... RESPONDENTS
PRESENT: Sh. Rohit Sharma, counsel for the applicants.
Sh. Ram Lal Gupta, counsel for the respondents.
2
ORDER (Oral)
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SANJEEV KAUSHIK, MEMBER (J):-
1. The applicants are aggrieved against order dated 08.01.2016, whereby the respondents have rejected their claim for grant of financial upgradation under ACP by excluding their adhoc service, as eligible service.
2. After exchange of pleadings, matter came up for hearing today.
3. The learned counsel for the respective parties cited various judgments having different views. One cited by learned counsel for the applicants is that adhoc service is to be counted for grant of financial upgradation under ACP, in CWP No.21485-2014 decided on 30.01.2017 and another in CWP No.22139 of 2015 (O&M) decided on 23.05.2016, wherein Hon‟ble jurisdictional High Court has dismissed the writ petition at the hands of Union of India by relying upon judgment passed by the Bombay High Court.
4. On the other hand, learned counsel for the respondents placed reliance on judgment of the jurisdictional High Court in the case of State of Punjab and ors. vs. Surjit Kaur LPA No.1400 of 2010 (O&M) decided on 08.02.2011 (reported as 2011 (3) SCT 328) wherein it has categorically been held that adhoc service cannot be counted for grant of benefit under ACP and it can only be counted only towards grant of pensionary benefit. He also cited judgment of Hon‟ble Apex Court, reported as 2013 (6) ACC 371 titled State of Haryana & Others vs. Sita Ram and Ors., wherein a categorical finding has been recorded that work-charge or adhoc service cannot be counted for grant of benefit under ACP Scheme. He further cited 3 order dated 06.07.2015 passed by this Tribunal in O.A. No.61/57/2014 in the case of Narinder Singh vs. UOI & Ors. by Co-ordinate Bench in which one of us (Mr. Sanjeev Kaushik, Member Judicial), was party, where a similar plea as raised in this O.A. has been negated by this Court. He submitted that once a view has already been taken by a Court of law, time and again that adhoc service cannot be counted for grant of financial upgradation under ACP, therefore, this O.A. be dismissed.
5. Learned counsel for the applicants fails to point out any law contrary to cited above by counsel for the respondents.
6. In the light of above, we have no option but to dismiss this petition in terms of decision rendered by this Court in the case of Narinder Singh. Relevant paras of that order read as under:-
"5. The issue raised herein has been clinched by a co-ordinate Bench of this Tribunal in O.A.No. 060/001110/2014 - Arvind Rai & Others Vs. Union of India & Others, decided on 9.3.2015, against the applicant. It has been held that industrial workers cannot claim parity with LDCs. The Scheme of ACP provides for counting of only regular service towards eligibility. The work charge service cannot be counted as eligibility service for promotional scales/increments. For this reliance has been placed upon decision of Hon‟ble Jurisdictional High Court in CWP No. 5781/CAT/2011 on 18.7.2011 as upheld upto Apex Court. We do not find any difference in facts and circumstances of the present case than the one prevalent in the case of Arvind Rai (supra) and, therefore, are bound by the same.
6. For the parity of reasons given in the case of Arvind Rai (supra), this Original Application would also meet the same fate and as such is dismissed. The relevant observations are reproduced below for ready reference:
"The applicant in OA No. 193/2011 was initially appointed as LDC on daily rated basis w.e.f. 6.1.1983 after being sponsored by the Employment Exchange. His services were regularized w.e.f. 1.3.1989 and it appears that before regularizing around 400 daily rated casual LDCs, the respondents sought the concurrence of the appropriate authority to seek exemption as regards the selection of applicants 4 through Staff Selection Commission. The applicants were subject to examination/tests before they were formally regularized in continuation of their earlier casual service on daily rated basis. It has also been mentioned in para 9.4 of the order that „there is no dispute that the service, which the applicants pray for counting for the purpose of grant of benefits under the ACP Scheme, is rendered by each of the applicants in the same grade, although on ad hoc basis before their formal regularization‟. The other case cited is OA No. 448/JK/2013 decided on 17.9.2013 which also relates to LDCs in the CSD.
9. In the present case, the applicants were appointed on muster roll during 1985/86, they were appointed on regular basis during May, 1987-88 and they got the regular pay scale only after they were appointed as such in May, 1987/88. Moreover, the applicants are not LDCs, but they are industrial workers of MES. Hence, the facts and circumstances in OA No. 193 of 2011 decided by the CAT Bombay Bench on 12.9.2011 are materially different from the case of the applicants and hence distinguishable on facts.
10. It is also seen that para 4 of the Annexure II titled "Conditions for grant of benefits under the ACP Scheme" circulated vide OM No. 35034/1/97-Estt(D) dated 9.8.1999 (Annexure A-7) reads as follows:-
"4. The first financial up gradation under the ACP Scheme shall be allowed after 12 years of regular service and the second up gradation after 12 years of regular service from the date of the first financial up gradation subject to fulfillment of prescribed conditions. In other words, if the first up gradation gets postponed on account of the employee not found fit or due to departmental proceedings, etc. this would have consequential effect on the second up gradation which would also get deferred accordingly."
Para 9 of Annexure-I of the MACPS (Annexure A/8) reads as follows:-
"9. „Regular service‟ for the purposes of the MACPS shall commence from the date of joining of a post in direct entry grade on a regular basis either on direct recruitment basis or on absorption/re- employment basis. Service rendered on ad hoc/contract basis from regular appointment on pre-appointment training shall not be taken into reckoning....."
These instructions have not been impugned in the present OA.
11. The Jurisdictional High Court has considered the cases of casual industrial workers of the MES while deciding CWP No. 5781/CAT/2011 on 18.7.2011 wherein it has been held as follows:-
"3. Having heard learned counsel for the parties at length and perusing the paper book we are of the considered view that the Tribunal has gravely erred in coming to the conclusion that the 5 applicant-respondent Nos. 2 to 14 are entitled to the benefit of counting the period of service rendered by them as a Casual Industrial Workers from 1985 to 1988. The issue as noticed in the opening para of this judgment is no longer res integra. A similar issue came up for consideration of Hon'ble the Supreme Court in the case of Punjab State Electricity Board and others v. Jagjiwan Ram and others, others, (2009)3 SCC 661, wherein their Lordships' in para 21 has held as under:
"21. For the reasons mentioned above, we hold that the respondents were not entitled to the benefit of time bound promotional scales/ promotional increments on a date prior to completion of 9/16/23 years' regular service and the High Court committed serious error by directing the appellants to give them benefit of the scheme by counting their work charged service."
4. It is obvious that for the purposes of seniority, promotion or some other benefits, the service rendered on work-charge basis, ad hoc basis or daily rate basis could not be counted. However, this principle would not be attracted in a case where the consideration proceeds on different plane i.e. when the question of pension comes. Therefore, the impugned order dated 15.3.2010 (P-4) passed by the Tribunal is unsustainable in the eyes of law and liable to be set aside.‟ This judgment was upheld by the Apex Court in SLP (C) No. 29609 of 2011 titled Arjan Singh & Ors. Vs. UOI decided on 3.1.2012.
12. In view of the above discussion, the claim of the applicants for counting the period spent by them on daily wage basis for ACP and MACP benefits is not maintainable and the OA is rejected."
7. The parties are however, left to bear their own costs.
(P. GOPINATH) (SANJEEV KAUSHIK) MEMBER (A) MEMBER (J) Date: 27.07.2018. Place: Chandigarh. `KR‟