Central Administrative Tribunal - Madras
L Krishnamurthy vs Ut Of Pondicherry on 11 August, 2022
1 OA 569/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA NO.569/2017
Dated Thursday the 11th day of August Two Thousand Twenty Two
CORUM: HON'BLE MS. L ATA BASWARAJ PATNE, JUDICIAL MEMBER
L.Krishnamurthy,
S/o.Lakshmanan,
No.16, Vanarapet, Devipet,
Puducherry 605 001. ...Applicant
By Advocate M/s Menon, Karthik, Mukundan & Neelakantan
Vs.
1.Union of India,
Rep., by The Secretary to Government,
Department of Administrative Reforms,
Government of Puducherry,
Puducherry. 605 001 ...Respondent
By Advocate Mr.R.Syed Mustafa
2 OA 569/2017
ORAL ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) The applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
"To direct the respondents to pay the arrears of pay and allowances payable to the applicant in the post of Driver (LMV) Grade III with effect from 17.10.2003 and promote the applicant as Driver (LMV) Grade II on par with his juniors and pay arrears and other attendant benefits that are applicable to the post of Driver Grade II with all consequential benefits including revision in pension."
2. The brief facts of the case as stated by the applicant are as follows:
The applicant entered the service of the respondent department as daily rated Driver on 28.11.1987 and his services were regularised as Helper in Group D cadre w.e.f 01.06.2001. Even though he was regularised as a Helper, he was also engaged as a Driver from the year 2003 on various occasions spanning over a period of ten years with artificial breaks. When similarly placed employees who are juniors to the applicant were absorbed as Driver Grade II, the applicant was kept only as a Helper and aggrieved by the said action, the applicant filed OA No.236 of 2004 before this Tribunal wherein this Tribunal allowed the OA by directing the respondents to absorb the applicant as Driver LMV Grade III w.e.f 17.10.2003 and his seniority to be decided in accordance with rules. The respondents neither complied with the said order nor filed any writ petition challenging the same even after 11 years from the date of the order. Left with no option, the applicant filed CA No.7/2016 and only thereafter the respondents passed GO Ms No.98 dated 20.09.2016 absorbing the applicant as Driver (LMV) Grade III w.e.f 3 OA 569/2017 17.10.2003 and his seniority was assigned at 633 A between Thiru Navarajan Forbin (633) and Thiru D.Govindaswamy (634). However the applicant was not paid the arrears and other pay benefits applicable to the said post from the notional date and the same was given effect only from the actual date of joining as Driver (LMV) Grade III. Subsequently the applicant retired from service on 30.11.2016 on superannuation. The grievance of the applicant is that he was discharging the duties as a Driver through periodic and repeated engagements till the actual date of absorption as Driver without any pay and other emoluments that are applicable to the regular employees.Even his juniors who were earlier absorbed as Drivers got the pay benefits and marched ahead of him and got promoted as Driver Grade II in the year 2013 itself. But the applicant despite having a favourable order from this Tribunal was engaged on short term basis resulting in loss of pay and other allowances. Though he he has made a detailed representation on 20.09.2016, the same has not been considered till date. Hence he has filed the present OA seeking the above mentioned reliefs.
3. After notice, the respondents have entered appearance and filed their counter and opposed the relief claimed by the applicant. The respondents have submitted that on receipt of the order dated 07.04.2005 in OA 236/2004, the department has referred the relevant court case file to Law Department, Puducherry on 22.08.2005 for their advice. In turn, the Law Department said to have sent the relevant file back to Department of Personnel & Administrative Reforms on 29.11.2005 but there is no authenticated record available for having delivered/received the said file in Department of Personnel & Administrative Reforms. In spite of sincere efforts made by the Department of Personnel & Administrative Reforms on 4 OA 569/2017 29.11.2005, there is no authenticated record available for having delivered/received the said file in Department of Personnel & Administrative Reforms. The relevant file was not traceable and hence the above said order of CAT was not complied with. Thereafter, after the applicant filed CA No.7/2016, the file was reconstructed and the order was implemented with the approval of the competent authority. The respondents further submit that this Tribunal, vide order dated 07.04.2005 in OA No.236/2004 directed the respondent to absorb the applicant w.e.f 17.10.2003 and to decide his seniority as per rules. There was no specific direction in the said order about granting of monetary benefits from the date of absorption. The Tribunal also had not given any direction with regard to the arrears of pay. Accordingly, the Recruitment Committee recommended for absorption of the applicant as Driver (LMV) Grade III w.e.f 17.10.2003 and he was allowed to get his pay fixed notionally w.e.f 17.10.2003 and monetary benefit with effect from the actual date of joining the post, vide GO Ms.No.98 dated 20.09.2016. In the absence of specific direction of Hon'ble Tribunal regarding the effective date of monetary benefit, the applicant's request for extending the monetary benefit w.e.f 17.10.2003 could not be considered. The respondents further submit that according to the stipulation of Government of India on the scheme of promotion, promotion to the post of Driver (LMV) Grade II shall be non-selection (seniority-cum-fitness) from Grade III who have put in eight years of regular service in the grade and further subject to passing of Trade Test as prescribed in GO Ms No.3 dated 21.01.1998. As the applicant retired from service on 30.11.2016 upon attaining the age of superannuation, he could not be sponsored to the Trade Test conducted by the Transport Department, Puducherry. Therefore the department was unable to consider the applicant for promotion to the post of Driver (LMV) Grade-II. Hence they 5 OA 569/2017 prayed for dismissal of the OA.
4. Heard both sides and perused the OA as well as the records related to the case.
5. Learned counsel for the applicant in support of his contention has relied upon the judgment of the Hon'ble Supreme Court in Civil Appeal No.2827/2010 dated 10.08.2017, the relevant portion of the said order is extracted hereunder:-
"12. Close to the facts, a situation where the Government had not conducted the tests, had arisen for consideration before the Kerala High Court in Sherafuddin v. State of Kerala2 , where at paragraph-9 , it was held that (paragraph numbers are given as they appear in MANU/KE/0299/1972):
9. The Government having never conducted the examination, it will be unjust and inequitable to deny the service benefits to the incumbents if they are otherwise fit for such benefits. In fact the very purpose of the rule is to tide over such situations. There is no point in requiring the incumbents to perform an impossibility. They are required to pass the examination if only it is held. Admittedly it was never held. Therefore, the invocation of Rule 39 in such circumstances is justifiable in terms of justice and equity. The purpose of the rule is to use the principles of justice to supplement law in a fair and reasonable manner and for a just and equitable cause. The action/ inaction of the Government shall not prejudice an incumbent who is otherwise fit for service benefits and hence the order is perfectly justifiable.
and at paragraph-13, it has been further held:
"13. .... When there is failure of justice resulting in inequity and injustice, Rule 39 of the General Rules is to be invoked in the interests of equity and justice. Such power can be exercised even with retrospective effect for doing complete equity. ....
13. We respectfully endorse the views expressed by the Kerala High Court. " "
6. The point for consideration in this OA is whether the applicant who has already got favourable orders from this Tribunal way back in the year 2005, can be deprived of the benefit of the said order due to the fault/delay on the part of the respondents.
7. It is to be noted that this Tribunal way back in the year 2005 in its order dated 07.04.2005 in OA No.236/2004 while allowing the OA has observed that the technical stand adopted by the respondents in denying 6 OA 569/2017 absorption into a regular vacancy especially when later entrants to the applicants have been given relaxation in age and Employment Exchange procedure was unfair and discriminatory and as there was merit in the prayer of the applicant granted the relief to the applicant by directing the respondents to absorb the applicant as Driver LMV Grade III w.e.f 17.10.2003 and to decide the seniority of the applicant in accordance with law. But the respondent department has lost the case records of the applicant which led to the delay in passing the GO Ms.No.98 dated 20/09/2016, that too after filing of the contempt petition by the applicant. The contention of the respondents that there was no specific direction in the said order about granting of monetary benefits from the date of absorption and the Tribunal also had not given any direction with regard to the arrears of pay is not at all acceptable, because had the order dated 07.04.2005 of this Tribunal been implemented in the year 2005 itself, the above said questions would not have arisen at all. For no fault of him, the applicant has been made to suffer even after succeeding his case before this Tribunal. With regard to the trade test for granting promotion to the post of Driver LMV Grade II, the judgment relied upon by the applicant supra holds good and the applicant is entitled for promotion to the post of Driver LMV Grade II on par with his juniors.
8. In view of the above discussion, I feel that the OA deserves to be allowed and the applicant is entitled for the relief prayed for in the OA. Accordingly, the respondents are directed to pay the arrears of pay and allowances payable to the applicant in the post of Driver (LMV) Grade III with effect from 17.10.2003 and promote the applicant as Driver (LMV) Grade II on par with his juniors and pay arrears and other attendant benefits that are applicable to the post of Driver Grade II with all consequential benefits 7 OA 569/2017 including revision in pension. The above exercise shall be done within a period of three months from the date of receipt of a certified copy of this order.
9. The OA is allowed. No order as to costs.
(Lata Baswaraj Patne) Member (J) 11.08.2022 MT