Document Fragment View

Matching Fragments

2 OA.170/00136/2020/CAT/Bangalore Bench (PER HON'BLE SHRI C.V.SANKAR, MEMBER (ADMN) Being aggrieved by the action of the respondents in not considering his service as 'Reserve Trained Pool'(RTP) employee for service benefits, the applicant has filed the present OA seeking the following relief:

i. To quash the Speaking Order No.LC1/CAT/OA 73/2019/13 dtd @ the 13.01.2020, issued by the respondent NO.3, Annexure-A6. ii. To direct the respondents to consider the service of the applicant as 'Reserve Trained Pool' employee from 17.02.1983 till 01.01.1988 as regular service for grant of service benefits including TBOP benefit, in pursuance of his representation dated 23.12.2017, Annexure-A4 and extend consequential benefits accordingly.'

2. The applicant submits that he was appointed as Telegraphist against one of the vacancies in 'Reserved Trained Pool' in the office of Senior Superintendent, Telegraph Traffic Division, Belgaum by order dtd.17.2.1983(Annexure-A1). Thereafter he was posted to different establishments in the Dept. of Telecom, Belgaum, Raichur etc., as and when there was work to be discharged by a Telegraphist in terms of orders issued from time to time. He was permanently appointed as Telecom Office Assistant and posted to Telecom District Engineer Office, Bijapur by order dtd.1.1.1988(Annexure-A2). His service from 17.02.1983 to 01.01.1988 has not been considered for 'One Time Bound Promotion(OTBP) Scheme on completion of 16 years of regular service. The Ernakulam Bench of this Tribunal in OA.No133/2009 held that 'the service rendered as RTP employee should be considered for grant of OTBP from the date of appointment, if there existed a vacancy'. The said order was confirmed by the Kerala High Court. When the respondents took the matter to the Hon'ble Apex Court, the Apex Court directed 3 OA.170/00136/2020/CAT/Bangalore Bench to file review petition before the Kerala High Court and the Kerala High Court had dismissed the review petition(Annexure-A3). As such the matter attained finality. Subsequent to that order, the applicant made representation dtd.23.12.2017(Annexure-A4) but there is no reply on the same. In the circumstances, he filed OA.73/2019 seeking direction to consider his service from 17.2.1983 to 1.1.1988 as regular service for the purpose of service benefits and the Tribunal vide order dtd.24.10.2019(Annexure-A5) directed the respondents to comply with the orders of the Hon'ble Apex Court & Hon'ble Kerala High Court. Without complying with said order of the Tribunal, 4 th respondent passed a speaking order dtd.13.1.2020(Annexure-A6) declining to consider the service of the applicant as 'reserved trained pool' candidate from 17.2.1983 to 1.1.1988 holding that there were no regular vacancies and none of the juniors of the applicant were regularised till 1.1.1988. Applicant submits that the statement of the 4th respondent is incorrect as the order dtd.22.9.1983 issued by the 3rd respondent indicates the number of posts of Telegraphists existing in various Divisions(Annexure-A7). The order dtd.3.10.1985 issued by the 3 rd respondent indicates the vacancies in the post of Telegraphists in Belgaum Division(Annexure-A8). Relying on the order of the Kerala High Court, the Tribunal in OA.No.73/2019 held that the employees are entitled to all service benefits from the date they were appointed as RTP and if there were vacancies. The applicant is also entitled to the same relief.

3. We have heard the Learned Counsel for the parties and have gone through the OA pleadings in detail. The issue relating to the service benefits flowing from the date of joining as 'Reserved Trained Pool' employee has been the subject matter of a number of litigations before various Tribunals, High Courts 4 OA.170/00136/2020/CAT/Bangalore Bench and the Hon'ble Apex Court. In Civil Appeal Nos.126/96, 124-125/96, 127-130/96 & 131/96 with Civil Appeal No.5268/1997 vide order dtd.1.8.1997, the Honble Apex Court drew a distinction between RTPs and Casual Labourers and quashed the decision of the Ernakulam Bench of this Tribunal wherein the Tribunal had directed that the RTP appointees on completion of one year of service should be deemed to have been attained temporary status and half the period of 8 hours per day should be counted for the qualifying service for pension. The Tribunal in that case had also directed that all other benefits made available to the casual labourers after attaining temporary status should be extended to the applicants and that the applicants should be paid productivity linked bonus if they completed 240 days service each year for three years after their recruitment as RTP candidates. Similarly, the same order was also rendered by the Hyderabad Bench of this Tribunal. The Hon'ble Apex Court in the decisions (cited supra) dismissed the original application and set aside the impugned judgments of the Tribunal by stating very specifically that equating RTP appointees with the casual labourers was wrong since RTPs had come in employment under a different scheme and the scheme provided for their absorption as regular employees unlike casual labourers. There was a clear assurance in the scheme that they would be accommodated in future vacancies as regular employees in the manner set out in the scheme. The Hon'ble Apex Court held that the benefits which they claimed are the benefits which have been conferred on casual labourers only after 29.11.1989 and therefore the RTP appointees claiming the benefits for earlier periods cannot be accepted. In fact the decision relating to their eligible service for the purpose of appearing before the departmental examination itself was questioned since any service which was 5 OA.170/00136/2020/CAT/Bangalore Bench rendered prior to regular employment was held to be not eligible to be considered. The Hon'ble Apex Court held that the Tribunal was wrong in granting RTP appointees the benefits of service rendered before their regular employment for the purpose of their eligibility to appear for the departmental examination. A detailed review of all the judgments relating to the subject was considered by the Ernakulam Bench of this Tribunal in OA.No.79, 119 & 988/2011, 31, 1150 & 1151/2012 and 1014/2010 in its order dtd.01.10.2013 wherein the Tribunal held that so far as grant of TBOP was considered, the service rendered by the RTP appointees from the date of their appointment should also be considered since that particular scheme envisaged total number of years of service and not restricted it to only regular service. The Tribunal also held that in so far as MACP is concerned, the period of service shall be reckoned only from the date of regular appointment. The Tribunal also held that there is no question of regularisation from the date of initial appointment or from the date vacancy arose much less the seniority on the basis of such regularisation as the same had been rejected by the Hon'ble High Court in WP.No.21239/2000. A similar issue was agitated before the Hon'ble High Court of Kerala at Ernakulam in RP No.880/2013(Z) in OP(CAT).158/2010 against the judgment in OP(CAT).158/2010 of High Court of Kerala dtd.1.10.2010. This RP order is dated 10.8.2017 and in para-8, the High Court held as follows:

4. The net effect is that the regularisation can be effected only from the date of availability of vacancy. Therefore, the sum and substance of all the decisions so far is that for considering the service rendered by the RTP appointees from the date of their appointment can only be accepted if they could have been appointed as such RTP appointees against a regular vacancy at that point of time. The respondents would rightly claim that the applicant is claiming for the service benefits right from the date of appointment as RTP employee from 17.02.1983 to 01.01.1988. As can be seen from Annexure-A1, the applicant is appointed in a temporary capacity as a Short Duty Telegraphist and vide Annexure-A2, he completed theoretical training for 2 months and was 7 OA.170/00136/2020/CAT/Bangalore Bench instructed to report to the concerned Divisional Office for one month practical training. The applicant states that the regular vacancies were in existence but the regularisation was not done against the vacancies. Apart from producing some communication relating to the number of posts sanctioned, the applicant is not able to state as to how he came to the conclusion that there was a vacancy at that point of time when he was appointed as RTP and therefore, it is not the applicant's fault that he could not be regularised from the date the vacancy arose.