Hon'ble Jayant Banerji,J.
Heard Sri Jitendra Prasad, learned Central Government Standing Counsel holding brief of Sri Ashutosh Shukla, for the petitioners and Sri Santosh Kumar Kushwaha, learned counsel for the respondent no.1.
The petitioners in the writ petition are seeking quashing of the order of the Central Administrative Tribunal, Allahabad dated 19.12.2017 whereby the Tribunal has allowed the Original Application filed by the respondent no.1 and has directed the respondents to ensure payment of pension and other post retiral benefits with 7% interest per annum till date of actual payment.
The brief facts of the case are that the respondent no.1 was appointed as contingent paid Chaukidar on 14.12.1990 and was granted temporary status w.e.f. 18.01.1992 and thereafter he was accorded the benefits of Group-D employee. It is stated that the respondent no.1 retired from service on 31.12.2016 after completing 26 years of service but he has been denied pensionary benefits.
Aggrieved by the denial of the pensionary benefits the respondent no.1 filed Original Application No.330/00066/2017 (Raj Narain Tiwari Vs. Union of India and Others) before the Central Administrative Tribunal, Allahabad which was allowed by the Tribunal by the order impugned herein.
We find that the Tribunal while allowing the Original Application of the respondent no.1 has placed reliance on the Rule 154 (a) of the Manual of Appointment and Allowances of Officers of the Indian Posts and Telegraphs Department (hereinafter referred to as the Manual), which provides that selected categories of whole time contingency paid staff, such as Sweepers, Bhisties, Chowkidars, Chobdars, Malis or Gardeners, Khalassis and such other categories as are expected to work side by side with regular employees or with employees in work charged establishment, should, for the present, be brought on to regular establishments of which they form adjuncts and should be treated as "regular"employees. Rule 154 (a) of the Manual reads as under:
"154. (a) Selected categories of whole time contingency paid staff, such as Sweepers, Bhisties, Chowkidars, Chobdars, Malis or Gardeners, Khalassis and such other categories as are expected to work side by side with regular employees or with employees in work charged establishment, should, for the present, be brought on to regular establishments of which they form adjuncts and should be treated as "regular"employees."
It is not disputed between the parties that the controversy involved in the present writ petition is covered by the judgment of this Court passed in Writ Petition (A) No.14760 of 2018 (Union of India and 3 Others Vs. Naresh Chandra Prajapati) which itself had followed the other Division Bench judgments of this Court. The relevant part of the said judgment reads as under:
"Sri Saurabh Srivastava, learned counsel for the petitioners submitted that the services of the respondent were never regularised and therefore, he was not entitled to the benefits of the circular dated 30.11.1992 or the benefit of Rule 154(a).
Learned counsel for the respondent on the other hand has placed reliance on several Division Bench decisions of this court which shows that this controversy is no longer res integra. In Shyam Lal Shukla (supra), the Division Bench of the court referred to para 17 of the scheme for casual labour framed under the orders of the Supreme Court known as Casual Labours (Grant of Temporary Status in Regularisation) Scheme. Para 17 of the Scheme reads as under:-
"17. No recruitment from open market for group 'D' posts except compassionate appointments will be done till casual labourers with the requisite qualification are available to fill up the posts in question."
The Division Bench also considered the provisions of Rule 154(a) of the Manual and thereafter, held that the Rule clearly spells out its essential purpose to give pensionary benefits to certain class of employees as 'regular employee' notwithstanding the fact that no formal order of regularisation was passed. Relevant extract of the judgement reads as under:-
"As noticed earlier the Supreme Court had approved a Scheme for casual labours namely (Grant of Temporary Status in Regularization) Scheme. The said Scheme was drawn up by the Postal Department in consultation with the Ministries of Law, Finance & Personnel. The Scheme provides inter alia 'temporary status' should be conferred on casual labours in employment as on 29.11.1989 and continued to be employed on the said date and have rendered continuous service of at least one year. If an employee get the temporary status he should be entitled for minimum of the pay scale for a regular Group D including DA/HRA and CCA. One of the important feature of the Scheme which has relevance for the present controversy is that no recruitment from open market will be done till the casual labours were available to fill up the posts. The paragraph 17 of the Scheme is extracted hereunder below :-
"17. No recruitment from open market for group 'D' posts except compassionate appointments will be done till casual labourers with the requisite qualification are available to fill up the posts in question."
It is admitted fact that the Senior Superintendent of Post Office, Allahabad had issued a communication dated 2.1.92 and granted 'temporary status' to the respondent no.1 w.e.f. 29.11.1989 and his name was placed at Serial No. 11 in the list. It is neither the case of the petitioner nor is it believable that from the year 1992 till the date of superannuation of respondent no.1 no post was available for his regularization. The action of the Department/Petitioner was in the teeth of paragraph 17 of the Scheme approved by the Apex Court mentioned herein above.
Apart from the aforesaid fact the respondent no.1 was entitled for the pension in term of the Post & Telegraphs Ministerial Manual Establishment Rule 154 (a) which is quoted herein below : -
"154.(a) Selected categories of whole time contingency paid staff, such as Sweepers, Bhisties, Chowkidars, Chobdars, Malis or Gardeners, Khalassis and such other categories as are expected to work side by side with regular employees or with employees in work charged establishment, should, for the present, be brought on to regular establishments of which they form adjuncts and should be treated as "regular"employees."
From the perusal of Rule 154 A of Manual it is manifestly clear that the Chowkidar, Sweeper, Malis, Khalassis who worked side by side with regular or with employees in Work Charge Establishment should be brought on regular Establishment and should be treated 'regular employees'. The Rule itself has used the word 'regular employee' without any reference to formal order of regularization. The Tribunal has relied on Rule 154 A of the Manual of appointment and allowances of the Officers of the Indian Post & Telegraphs Department. It is, undisputed fact that the respondent no.1 has worked and has received the payment from contingent fund w.e.f. 10.4.1982 to 26.11.1989 i.e. Seven Years Six Months and Nineteen days, thereafter from the consolidated fund of Central Government from 26.11.1989 to 29.11.1992 three years and then from 30.11.1992 till the date of retirement i.e. 30.6.2003 as temporary Government Employee of Group D, for ten years Seven months and One day. The total qualifying service for pension comes to 17 years, four months and 10 days.
It is admitted case that the respondent no.1 from his initial engagement i.e. 10.4.1982 till his date of superannuation i.e. 30.6.2003 has worked uninterruptedly and to the entire satisfaction of the Department as has been stated in the Counter Affidavit, Supplementary Counter Affidavit before the Tribunal and in the Writ Petition before this Court and there is no mention that the work of the respondent no.1 was unsatisfactory.
The Tribunal has also relied on the order of the Supreme Court in Special Leave to Appeal dated 13.1.1997 arising out of the Original Application No. 159/93 of Tribunal, in the case of (Ram Lakhan v. Union of India and others) as well as order dated 2nd September, 2005 in Original Application No. 917 of 2004, (Chandi Lal versus. Union of India and others). The aforesaid orders were on the record of the Tribunal as Annexure-AR-2 and AR-3 with affidavit filed on 26.8.2008 in similar facts.
In our view the said Rule clearly spells out its essential purpose, to give pensionary benefit to certain class of employees as 'regular employee', notwithstanding the fact that no formal order of regularization was passed."
This judgment was followed by another Division Bench of this court (Lucknow Bench) in the case of Parshuram Yadav Vs. Union of India and others reported in 2016 (34) LCD 536.
Another Division Bench of this court while deciding Writ petition no. 68773 of 2014 (Union of India and others Vs. Haider Husain and another) has held as under:-
"Learned counsel for the petitioner has raised the same submissions as were raised before the Tribunal and it has been contended that the respondent was given a temporary status with effect from 29 November 1989 in terms of the letter dated 12 April 1991 and certain facilities were provided, but this would not mean that the appellant was regularized on a group 'D' post against a permanent establishment on a group 'D' post.
It is not possible to accept the contention of learned counsel for the petitioner. As noticed above, this was the precise submission that was raised before the High Court in the earlier Writ Petition No.60272 of 2009 that had been filed by the appellant against the order dated 28 July 2009 of the Tribunal and the High Court did not accept this contention. The High Court clearly observed that in view of the provisions of Rule 154-A of the Manual, the Group 'D' employees, who worked side by side with the regular employees or employees of the work-charged cadre should be treated as regular employees and, therefore, would be entitled to payment of retiral benefits. There is no distinction in the case of the present respondent with that of the applicant of Original Application No.1626 of 2005. The Special Leave Petition filed by the appellant to assail the judgment of the High Court was also dismissed by the Supreme Court.
We, therefore, see no good reason to interfere with the judgment of the Tribunal.
The Writ Petition is, accordingly, dismissed."
In the present case what we find is that the respondent was engaged as Contingency Paid Choukidar on 29.11.1970 and was granted temporary status on 1.1.1992 on completion of three years of service and thereafter he worked continuously till he attained the age of superannuation of 60 years on 30.06.2011. Thus, he has completed almost 41 years of service. It is not the case of the petitioners that the services of the respondent were at any point of time unsatisfactory.
For reasons aforesaid, in our opinion the case of the respondent is squarely covered by the Division Bench decisions of this court in the case of Shyam Lal Shukla (supra), Parshuram Yadav (supra) and Haider Husain (supra).
The writ petition lacks merit and is accordingly, dismissed."
Learned counsel for the petitioners, on the other hand has placed reliance on a judgment of the Division Bench of this Court passed in Service Bench No.509 of 2008 (Ranjit Misra Vs. Union of India Through Secretary Post & 4 Others) in which the Court had taken a view that the petitioner therein had not been regularized and therefore he would not be entitled to pension.
We have gone through the said judgment, copy of which has been filed at page 158 of the writ petition and we find that the said judgment does not take into consideration the provisions of Rule 154 (a) of the Manual nor does it take into consideration the other judgments of the various Division Benches of the Court. Besides this judgment was in fact considered by another Division Bench of this Court in Writ (A) No.75830 of 201 (Union of India Through Secretary, Ministry of Communication and Other Vs. Krishna Pal Singh) alongwith bunch of connected writ petitions and the Division Bench has held that the judgment of Ranjit Misra (supra) did not take into consideration the various Division Bench of this Court one of which is Civil Misc. Writ Petition No.11297 of 2006 (Union of India Through Secretary, Ministry of Communication, Department of Posts, Government of India Vs. Chandi Lal). The judgment of the Division Bench passed in Chandi Lal (supra) reads as under:
"This is a writ petition against the order dated 2.9.2005 passed by Central Administrative Tribunal directing the petitioners to pay the post retiral benefits to the respondent no.1.
We have heard learned counsel for the petitioners and Sri L.M. Singh, counsel for respondent no.1.
Learned counsel for the petitioners submitted that the respondent no.1 is not a regular employee. As such he is not entitled for post retiral benefits. There seems to be substance in the submissions made by learned counsel for the petitioner. However, in view of the fact that the respondent no.1 has worked in the office of petitioner for a long period (22 years) we find no ground to interfere in the matter under Article 226 of the Constitution.
The writ petition is dismissed."
The judgment of the Division Bench in the case of Chandi Lal (supra) has been affirmed up to the stage of the Supreme Court wherein also the plea taken by the Union of India was that the Postal Employee, namely the respondent no.1 therein, was not the regular employee and therefore he would not be entitled to post retiral benefits. The judgment of the Supreme Court passed in Special Leave to Appeal (Civil) (CC3248/2008), Union of India and Others Vs. Chandi Lal reads as under:
"There is an inordinate delay of 223 days in filing the present petition.
The explanation offered in the application for condonation of delay is neither satisfactory nor reasonable. The application for condonation of delay is, therefore, dismissed. Even on merit, we do not find any ground to interfere with the impugned judgment and order. Consequently, the special leave petition is dismissed both on the ground of delay and merits."
Another Writ Petition No.60272 of 2009 (Union of India and Others Vs. Shyam Lal Shukla) involving identical questions of law and fact also took the same view and directed the Union of India to pay pension and retiral benefits to Shyam Lal Shukla the respondent therein. The Judgment of Shyam Lal Shukla (supra) was dismissed by the Supreme Court while deciding Special Leave to Appeal (Civil) (CC 12664/2012) dated 06.08.2012, copy of which has been filed at page 105 of the writ petition.
Therefore, on a conspectus of facts and the law laid down in the cases of Naresh Chandra Prajapati (supra), Chandi Lal, Shyam Lal Shukla, Parshuram Yadav, Haider Husain and Krishna Pal Singh (supra), we find no illegality or infirmity in the order of the Tribunal. The writ petition lacks merit and is accordingly dismissed.
Order Date :- 11.9.2018 N Tiwari