Central Administrative Tribunal - Hyderabad
G.V. Nageswara Rao vs Dharani And Others 1997 Scc (L&S) 1484 ... on 21 August, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH HYDERABAD O.A. 277/05 Date of order : 21-08-2008 Between: G.V. Nageswara Rao, Occ: Store Keeper, Material Organisation, Eastern Naval Command, Flag Officer Commanding-in-Chief, Visakhapatnam. ... Applicant A N D 1. The Secretary, Ministry of Defence, Naval Head Quarters, New Delhi - 110 011. 2. The Chief of the Naval Staff, (Director of Logistics Support), I.H.Q. MOD (Navy), 'C' wing, Sena Bhavan, New Delhi - 110 011. 3. The Flag Officer Commanding-in-Chief, (For CCPO), Head Quarters, Eastern Naval Command, Naval Base, Visakhapatnam. ... Respondents Counsel for the applicant : Ms. Anuradha for Mr. G.V. Subba Rao Counsel for the respondents: Mr. P. Lakshmana Rao, Addl. CGSC C O R A M : THE HON'BLE MRS. BHARATI RAY, MEMBER (J) THE HON'BLE MR. R. SANTHANAM, MEMBER(A) O R D E R
(Per Hon'ble Mrs. Bharati Ray, Member (J) This application has been filed by the applicant seeking for the following relief :
To direct the respondents to extend the benefit of the judgment in OA 605/95 as the applicant herein is appointed along the applicants in OA 605/95 and consequently quash the order dated 28.01.05 rejecting the claim of the applicant on the ground that he is not the applicant in the OA 605/95 by declaring the action of the respondents in rejecting the claim on such ground is arbitrary, illegal, unconstitutional and violative of Article 14 and 16 of the Constitution and consequently direct the respondents to regularise the applicant on par with the applicants in OA 605/95 with all consequential benefits such as arrears of salary, allowances, promotion etc. in the interest of justice.
2. It is the case of the applicant that he was originally appointed as Assistant Store Keeper in the Naval establishment at Visakhapatnam on 19.02.1977. At present he is working as Store Keeper. The services of the Assistant Store Keepers have not been regularised from the date of appointment in the Naval establishment since for a long time. It is contended by the applicant that some of the Assistant Store Keepers who were regularised were also appointed on the same date along with the applicant to the post of Asstt. Store Keeper but the applicant has not been regularised. It is further contended by the applicant that some of his seniors filed OA as the seniors were drawing less pay than the juniors and on account of this disparity the Assistant Store Keepers of the Naval establishment had to approach the Tribunal for their regularisation. Number of OAs were filed seeking the extension of the benefit of the judgment by the seniors, who were not regularised while their juniors were regularised. This Tribunal allowed all the OAs filed by the applicants who were seniors and not regularised while their juniors were regularised earlier and directed the respondents to regularise the services of the applicants therein with reference to the date of their initial regularisation. Accordingly, respondents have fixed the seniority of the applicants therein with reference to their juniors and consequential benefits were given to them with retrospective effect.
3. It is the contention of the applicant that he was appointed on the same day along with the applicants in OA 605/95 as he was appointed in 1977. It is the contention of the applicant that the Director of Logistic Support, New Delhi vide impugned order has furnished the date of appointment of the applicants in OA 605/95 and consequent on the implementation of the judgment in the applicants case, the date of notional seniority that was given to them has been furnished as under :
Sl.No. Name Appointment as ASK Notional seniority in the grade of S 1 KVSR Murthy 19.02.1977 18.07.1986 2 N. Rama Rao 19.02.1977 18.07.1986 3 MDA Khader 19.02.1977 18.07.1986
4. Although, it is evident from the above table that the applicants in OA 605/95 were appointed on the same date along with the applicant herein, the applicant has not been regularised by the respondents although he is similarly situated to that of applicants in the said OA. It is further submitted that though the above judgments of the Tribunal are judgments in rem, the department has not given the seniority to the Assistant Store Keepers as per their date of appointment. The said judgment was passed by the Tribunal based on earlier decision in OA 1453/93 as can be seen from the order of OA 605/95. It is, therefore the contention of the applicant that since he is similarly situated with that of applicants in OA 605/95 he is entitled to have the benefits as has been granted to them. Accordingly, applicant made a representation to the Flag Officer Commanding-in-Chief, Visakhapatnam and Director of Logistics support, New Delhi. But the Director Logistics support, New Delhi vide his letter No. SE/2076 dated 28.01.05 to the Flag Officer Commanding in Chief Visakhapatnam advised the applicant herein that the applicants in OA 605/95 were given the benefit claimed by them as per the orders of the Tribunal but the applicant in the present OA is not covered by the said OA. Questioning the said letter of Director Logistics Support dated 28.01.05 addressed to Flag Officer Commanding-in-Chief, which is enclosed as Annexure A-1 at page 8 of the OA, the applicant has approached this Tribunal seeking for the aforesaid relief. It is seen from the impugned letter dated 28.01.2005 that the services of B. Nageswara Rao, SK, petitioner in OA 788/91were regularised from the date of regularisation as ASK on the basis of judgment dated 08.04.99 given by the Tribunal in OA 938/97 whereas the applicants in OA 605/95 was granted benefits vide order of the Tribunal dated 23.06.1997.
5. Respondents have contested the application by filing a counter reply. It is the case of the respondents that applicant was initially appointed on casual basis for a specific period to meet immediate requirements. On completion of specific period he ceased to be in employment. The applicant was regularized against the government sanctioned post on 10.09.1982. The applicant's services towards seniority was counted w.e.f. 10-09-1982 as per catena of judgments of Hon'ble Supreme Court and the same was reflected in the seniority list of 10-09-1982. It is, therefore, contended by the respondents that applicant never made a representation except on 20-10-04 claiming that he is similarly placed to the applicants in OA 317/88. The respondents therefore stated that once the applicant accepted the seniority as published in the seniority list on various occasions since,1982 he cannot seek counting of the seniority from the date of initial appointment at this belated stage. They, therefore, have taken the point of limitation in regard to maintainability of the OA. It is submitted that seeking extension of benefits as given in OAs does not extend the period of limitation. Respondents have placed reliance on the judgment of the Apex Court in the case of KC Joshi reported in AIR 1991 SC 284 wherein it has been held that grant of seniority counting the casual service will be against the provision of equality enshrined in Article 14 read with Article 16(1) of the Constitution. They have also placed reliance in the case of Union of India and ors vs. Dharani and others 1997 SCC (L&S) 1484 wherein it has been held that casual service cannot be counted towards seniority and set aside the order of the Ernakulam Bench. They have also made a reference to the decision of the Hon'ble High Court of Andhra Pradesh in WP 26465/98 in Union of India vs. M. Ganesh Babu and ors. wherein the Hon'ble High Court has held that casual services could not be counted for seniority. They have also mentioned order of this Tribunal in OA 1304/94 wherein it has been held that seniority counts from the date of regularisation against the government sanctioned post. The respondents have also submitted that Shri G. Thomas and 39 others have filed OA 938/97 before this Tribunal seeking similar benefits of counting of casual service towards seniority as extended to similarly situated persons in OA 788/91. The Tribunal in its order dated 08.4.99 held that the casual service cannot be counted towards seniority as per law laid down by the Hon'ble Supreme Court in Dharani's case. It is further mentioned by the respondents that this bench of the Tribunal in its order dated 08.04.99 in OA 938/97 relied on Full Bench judgment of KG George and others ATJ 1995(2) 289 wherein the Tribunal has held that casual service will not be counted towards seniority. The seniority will be accrued from the date of appointment against Govt. sanctioned post only. The seniority of Store Keepers/Assistant Store Keepers was published in compliance with the direction of this Tribunal in OA 938/97. In accordance with the above judgments, counting of the casual services of the applicant towards seniority will be against the law laid down by the Hon'ble Supreme Court. It is, therefore, the contention of the respondents that in view of the above backgrounds the applicant cannot seek relief against the law set by the Apex Court.
6. We have heard Ms. Anuradha, for Mr. G.V. Subba Rao, learned counsel for the applicant and Mr. P. Lakshmana Rao, Addl. CGSC for the respondents. We have gone through the facts of the case and material papers placed before us. We have also gone through the judgments relied upon by the parties. The question that falls for our consideration is whether the respondents are justified in not extending the benefit of the judgment in fixing the seniority of the applicant and fixing the seniority by taking into account the regular service rendered by him.
7. It is not in dispute that applicant was initially appointed on casual basis in the year 1977 and was subsequently regularised in service. The applicant has sought for extension of benefit of the judgment of the Tribunal granted in OA 605/95 dated 23.06.1997. From Annexure A-2 at page 9 of the OA we find that applicant submitted his representation on 20-10-2004 seeking extension of benefit of the judgment rendered by the Tribunal way back in 1997. From the impugned letter dated 28.01.05 we find that the applicant's request has been rejected on the basis of the subsequent judgment of the Tribunal dated 08.04.1999 in OA 938/97. The Tribunal in the said OA has followed the judgment of Full Bench in the case of KG George and others ATJ 1995(2)(289). wherein the Full Bench has held that casual services will not be counted towards seniority. We have also noticed that in the case of G. Thomas and 39 others (OA938/97) where the applicants approached the Tribunal seeking similar benefit of counting of casual service towards seniority as extended to similarly situated persons in OA 788/91, the Tribunal by its order dated 08.04.99 has directed that the casual service cannot be counted towards seniority as per law laid down in the Hon'ble Supreme Court in Dharani's case.
8. In view of the above facts and circumstances and in view of the above legal position we are of the view that the applicant who has been admittedly appointed on casual basis and was regularised subsequently, is not entitled to count casual service towards seniority. We, therefore, find nothing wrong in the action of the respondents in not counting the casual service rendered by the applicant towards seniority.
9. We, therefore, find no merit in this OA and the same is dismissed accordingly with no order as to costs.
(R.SANTHANAM) (BHARATI RAY)
MEMBER (A) MEMBER (J)