Union Of India ... vs Asharfi Lal & Anr.

Hon'ble Saurabh Lavania,J.

(As per Saurabh Lavania,J.) Heard Sri Girish Chandra Sinha, learned counsel for the petitioners and Sri Girish Kumar "Kannojia", learned counsel for the respondents.

By this writ petition, a challenge has been made to the judgment and order dated 04.05.2018, passed by the Central Administrative Tribunal, Lucknow Bench, Lucknow (hereinafter referred to as, 'the Tribunal') in Original Application (OA) No. 208 of 2017 (Asharfi Lal v. Union Of India and others).

The question involved in the present case is that "whether the respondent-Asharfi Lal, applicant before the Tribunal, who worked in the Postal Department w.e.f. 01.03.1983 (date of engagement as contingent paid employee/casual labour) till 03.04.2017 (date of retirement) and to whom temporary status was granted vide order dated 06.02.1992 w.e.f. 29.11.1989, is entitled to pensionary benefits though not regularized till his retirement."

Facts, in brief, of the present case are to the effect that on 01.03.1983, the claimant-respondent No. 1 was engaged as contingent paid employee/casual labour in the Postal Department for the work of Chowkidar on a lump-sum remuneration.

The Apex Court in the case of Daily Rated Casual Labour v. Union of India and others [1988 SCC (L&S) 138] directed the Government of India to prepare a Scheme for absorption of casual labourers and the employees who have rendered continuous service of 240 days should be treated as temporary employee.

Pursuant to the aforesaid, the Government of India drafted a Scheme on 12.04.1991 known as Casual Labourers (Grant of Temporary Status and Regularization) Scheme, whereby it was provided that all such casual labourers, who are in employment on or before 29.11.1989 will be treated at par with temporary employees.

On 06.02.1992, the claimant-respondent No. 1 was given the status of temporary employee w.e.f. 29.11.1989. Thereafter, the Postal Department issued the order, by which such casual labourers brought at par with the temporary employees to get all service benefits, as being given to the temporary employees. The claimant-respondent No. 1 was treated at par with temporary Group 'D' employee w.e.f. 29.11.1992.

After attaining the age of superannuation, the claimant-respondent No. 1 was retired on 31.05.2017. Before retirement, the claimant-respondent No. 1 submitted a representation stating that he may be regularized and his retiral dues may be prepared accordingly. The same was rejected by the petitioner No. 3 on 07.06.2017.

Aggrieved by the order dated 07.06.2017, the claimant-respondent preferred an OA No. 208 of 2017 (Asharfi Lal v. Union Of India and others) before the Tribunal, which was allowed vide order dated 04.05.2018 with a direction to the respondents (petitioners herein) to pay pension and remaining retiral dues, if any, admissible to the claimant-respondent No. 1 in accordance with rules within a period of two months from the date of production of certified copy of the order.

Identical to the issue involved in the present writ petition was considered by this Court in the case of Union of India and others v. Shyam Lal Shukla, reported in (2012) 1 UPLBEC 225.

Against the judgment passed in the case of Shyam Lal Shukla (supra), the Union of India filed the SLP before the Hon'ble Apex Court, which was dismissed on 06.08.2012.

Relying upon the judgment passed in the case of Shyam Lal Shukla (supra), the several writ petitions filed by the Department/Union of India were dismissed by this Court.

Recently, the issue involved in this writ petition has been considered and decided by a Coordinate Bench of this Court by its judgment and order dated 08.07.2019 passed in Writ Petition No. 18482 (S/B) of 2019. The aforesaid order dated 08.07.2019 is reproduced as under:-

"1. Union of India through Secretary, Ministry of Communication, Department of Posts, Government of India, Daak Bhawan, New Delhi and other Government of India functionaries have preferred this writ against an employee who served the petitioners since 23.01.1980 till 13.08.2013 on a Group - D post as a Chaukidar challenging order dated 18.09.2018 rendered in O.A. No.332/00094/2017 titled 'Ramesh Kumar Mishra Vs. Union of India and Ors. by Central Administrative Tribunal, Lucknow Bench, Lucknow.

Vide the impugned order, the original application has been allowed.

2. We have heard learned counsel for the petitioners and Shri Praveen Kumar, learned counsel for Caveator.

We have gone through the pleadings and contents of the impugned order.

3. It appears that vide order dated 18.09.2018 (supra) a number of original applications were dealt with and allowed, in terms of earlier decisions rendered by various forums mentioned in the order. The relevant content of the impugned order, for reference, is extracted herebelow :-

"............

3.The applicants, by these O.As seek a direction from this Tribunal to direct the respondents to release the pension and other pensionary benefits to the applicant with all consequential benefits along with interest @ 12% per annum from the date of due till the actual date of payment.

4. Facts as narrated by the applicant are not in dispute.

4. The applicant, Ramesh Kumar Misra, initially appointed as CP Chowkider at Somaiya Nagar Post Office, Barabanki on 23.01.1980. He was granted temporary status vide order dated 07.01.1993. The applicant retired on attaining the age of superannuation on 13.08.2013. It is the case of the applicant that while, the applicant was in service, he was also allotted a GPF Account No. in January. 1993. When the applicant was not granted the pensionary benefits. then he submitted a representation on 20.07.2016 in view of the decision rendered by this Court in O.A. No 224 of 2013 which was decided on 23.05.2014. He also submitted various representations by which he requested for grant of pensionary benefits, but did not grant the pesionary benefits then he filed the instant O.A.

5. Learned counsel for the applicant has submitted that this issue has already been settled by this Court which has been affirmed by the Hon'ble High Court and Hon'ble Supreme Court. Therefore, the applicant has prayed that O.A.may be allowed and respondents be directed to grant all retiral benefits in the light of those judgments. He also produced a copy of judgments passed by the Hon'ble High Court in Writ Petition No. 1578 (SB) of 2017 in the case of Union of India Thru Secretary, Ministry of Communication and Others vs. Jagjivan Singh & Anr decided on 01.08.2018 where similar plea has been decided in favour of respondents therein. Therefore. he prayed that these petitions be allowed in the light of same terms.

6. Learned counsel for respondents is not in a position to cite any law contrary to what has been stated by the learned counsel for the applicant.

7. In the light of the above that there are various judicial pronouncements by this Court deciding the issue in favour of employee, therefore, these O.As are disposed of in terms of decision in case of Amanullah Versus Union of India and Others (O.A. No. 155 of 2012) decided on 4th of April, 2013, a copy of which is annexed as Annexure-A-11 and the order passed by the Hon'ble High Court in Writ Petition No. 1413 (S/B) 2013 by dismissing the Writ Petition in case of Senior Superintendent of Post. Lko. Thru Chhedi Lal Verma vs Amanullah decided on 01.02.2016. The relevant portion of the order passed by this Court and the order passed by the Hon'ble High Court in Writ Petition are extracted hereinbelow:

"O.A. No. 155 of 2012

9. There appears no serious quarrel on the point that the aforesaid matters were similar to the present one. Therefore. this Tribunal has no justifiable reason to take a different view. Similarly situated persons cannot be treated differently. This O.A. therefore, deserves to be and is accordingly allowed with an observation that the applicant is entitled to such retiral benefits as are admissible to Group-D employees on regular basis. Therefore. the respondents are directed that the pension and remaining retiral benefits pending, if an. including arrears, if an, admissible to the applicant may be considered and paid in accordance with the relevant rules and established practice along with an interest @ 8% per annum till the date of actual payment. No order as to costs.

Writ Petition No.1413 of 2013 The issue in question is notres- integra. The law on this point has been settled and therefore, we do not find an illegality in the order passed by the Central Administrative Tribunal.

The writ petition is dismissed."

8. Accordingly, in view of the above, the O.As are allowed. There shall be not order as to costs. Copy of this order be placed in all the connected O.As.".

4. From Para - 6 of the impugned order it becomes evident that even the counsel for the petitioners was aware that there is no judgment contrary to the ones mentioned in the impugned order passed by Central Administrative Tribunal.

5. Perusal of the petition indicates that decision rendered by a Division Bench of this Court in Writ Petition No.1632 (SB) of 2014 titled 'Union of India & Ors. Vs. Molhe Ram & Anr. dated 24.11.2015 was in the express knowledge of the petitioners and the counsel who recommended filing of the writ petition.

Perusal of the decision rendered in Molhe Ram's case (supra) indicates that the issue raised by virtue of this petition had been carried up to the Hon'ble Supreme Court of India. Hon'ble Supreme Court of India dismissed the SLP vide judgment dated 06.08.2012, as has been mentioned in judgment dated 24.11.2015 (supra). Decision dated 24.11.2015 (supra) has been filed with the petition at Pages 74 to 76.

6. We have taken notice of the fact that all the decisions rendered on the issue have ruled to give pensionary benefit to certain class of employees as regular employees, notwithstanding the fact that no formal order of regularisation was passed.

7. As noticed from above extracted portion of impugned order, respondent Ramesh Kumar Mishra served from 23.01.1980 till 13.08.2013 i.e. about 33 years on Group - D post. It appears that formal letter of regularisation was not issued. The petitioner/employer, however kept the respondent in service, however on attaining age of superannuation denied pensionary benefit. This is despite the fact that the respondent/original applicant was also allotted G.P.F. number in January, 1993. It is under these circumstances that O.A. was filed, and allowed vide the impugned order.

8. We would like to refer to the judgment rendered by Division Bench of this Court in Molhe Ram's case (supra) which reads as under :-

"Heard learned counsel for the Union of India and the learned counsel for the opposite party no.1.

This writ petition has been filed challenging the order dated 08.08.2014 passed by the Central Administrative Tribunal, Lucknow in O.A. No.134 of 2013 (Molhe Ram vs. Union of India and others) whereby the claim of the opposite party no.1 has been allowed.

The Tribunal while allowing the original application of the opposite party no.1, in paragraph 10 of the judgment has observed as under:

"There appears no serious quarrel on the point that the aforesaid matters were similar to the present one. Therefore, this Tribunal has no justifiable reason to take a different way. Similarly situated persons cannot be treated differently. This O.A. therefore, deserves to be and is accordingly allowed with an observation that the applicant is entitled to such retiral benefits as are admissible to Group 'D' employees on regular basis. Therefore, the respondents are directed that the pension and remaining retiral benefits pending, if any, including arrears, if any, admissible to the applicant may be considered and paid in accordance with the relevant rules and established practice within six months from today without any interest. No order as to costs."

Learned counsel for the opposite party no.1 has submitted that controversy involved has been adjudicated by a Division Bench of this Court vide order dated 23.12.2011 passed in Civil Misc. Writ Petition No.60275 of 2009 reported at 2012 (3) ALJ 190; Union of India and others vs. Shyam Lal Shukla and another. The operative portion of the judgment 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.

Sri Singhal has relied on the judgment of Central Administrative Tribunal, Lucknow Bench, Lucknow passed in Original Application No. 509 of 2004. We have perused the said judgment. In the said case, the learned Tribunal has not taken note of the Scheme framed by the Department dated 12.4.2001 and paragraph 17 of the Scheme wherein it is clearly provided that no recruitment will made from open market for Group D posts (except on compassionate appointment) till casual labours with requisite qualifications are available to fill up the posts in question. Moreover, the Tribunal has also mis-construed Rule 154 (a) as it has not appreciated the said Rule in correct prospective. It appears, the relevant part of the said Rule wherein it is provided that the Chowkidars etc. should be treated as "regular employee" subject to completion of conditions mentioned therein, has escaped the notice of the learned Tribunal.

Sri Singhal has also relied on the judgment of the Supreme Court passed in the case of Secretary, State of Karnataka v. Umadevi reported in 2006 (2) UPLBEC 1880. The said judgement has no application in the present case as in the present matter the Scheme has been framed by the Postal Department in compliance of the order of the Supreme Court and the said Scheme has been approved by the Supreme Court. Thus the Postal Department/Petitioner herein cannot resile from its obligation to implement the said Scheme in letter and spirit.

In the background of the aforesaid facts we are satisfied that there is no error in the impugned judgment of the Tribunal and it does not call for interference under Article 226 of the Constitution.

Hence, the writ petition is dismissed. However, no order is passed as to costs."

The Union of India has gone to the Supreme Court against the aforesaid judgment and the Supreme Court has dismissed the SLP vide judgment and order dated 06.08.2012.

The issue in question is not res-integra. The law on this point has been settled and therefore, we do not find any illegality in the order passed by the Central Administrative Tribunal.

The writ petition is dismissed."

(Emphasised by us)

9. It is strange that the petitioner/Union of India has not taken into account the nature of controversy before filing the writ petition under consideration. From the judgment rendered in Molhe Ram's case (supra), relevant portion whereof has been emphasised by us, it becomes evident that it was on the direction of the Hon'ble Supreme Court of India that a scheme was formulated for casual labour namely (Grant of Temporary Status in Regularization) Scheme. The scheme was drawn by Postal Department in consultation with the Ministries of Law, Finance & Personnel. The scheme provided for temporary status to be conferred on casual labour 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. The scheme further provided that if an employee gets temporary status, he should be entitled for minimum pay scale admissible to a regular Group D employee, including DA/HRA and CCA.

The scheme also provided that no recruitment from open market will be done till the casual labour were available to fill up the posts, except on compassionate grounds, till casual labour with requisite qualification are available to fill up the posts in question.

10. Facts of this case are clear to the effect that the respondent/original applicant started serving the petitioner department on Group D posts since 23.01.1980. So much so, temporary status was provided to the respondent/original applicant in terms of scheme vide order dated 07.01.1993. Despite such facts, the benefits were denied to the respondent, constraining him to approach the Central Administrative Tribunal.

The benefit having been given to the respondent/original applicant by the Central Administrative Tribunal under a scheme framed under directions of the Hon'ble Supreme Court of India, ought not to have been challenged by the Union of India by virtue of this writ petition. All these facts have been noticed in earlier judgment rendered in Molhe Ram's case (supra) which was in the knowledge of the petitioners yet has been ignored.

11. Emphasised portion of the order rendered in Molhe Ram's case (supra) indicates that it was brought to the notice of all concerned that Union of India had approached the Hon'ble Supreme Court of India against judgment on the issue and the Hon'ble Supreme Court of India dismissed the SLP vide judgment dated 06.08.2012. All these facts being in the express knowledge of the petitioners, it was reasonably expected that the said settled principle of law would be accepted and writ petitions of similar nature would not be filed in other cases of similar nature. It, however appears that the relevant facts were not taken into account and the present petition has been filed in which the employee has been burdened with the cost of appearance of Shri Praveen Kumar, Advocate to face this lis.

12. A lame ground has been taken by learned counsel for the Union of India/petitioner to the effect that in one of the cases of similar nature titled Ranjit Misra Vs. Union of India and Ors. - Writ Petition No.509 (SB) of 2008, this Court had dismissed the writ petition of an employee vide order dated 29.03.2017. It has been pleaded that in view of the said verdict, the writ petition in hand be also allowed.

13. We have gone through the order rendered in Ranjit Misra's case (supra).

14. Other than the fact that it is a brief order and not a detailed judgment, the judgment rendered by this Court in Molhe Ram's case (supra) and the decision rendered by the Hon'ble Supreme Court of India dated 06.08.2012 were not brought to the notice of the Writ Court. It, therefore, becomes evident that filing of the writ petition dehors the fact that Hon'ble Supreme Court of India had refused to interfere in the claim of the Union of India on similar issue is an irresponsible act. It has resulted in multiplicity of litigation. A poor employee has been called upon to face the lis.

15. We have specifically asked learned counsel for the petitioner/Union of India whether earlier claims of Union of India on the issue have been rejected up to Hon'ble Supreme Court of India. Learned counsel admits that indeed the cases filed by Union of India on the issue have been dismissed. Rights of the employee to retiral benefits have been upheld.

16. We asked learned counsel for Union of India to cite any judgment rendered by Hon'ble Supreme Court of India which denies similar claim of employees on similar footing. Learned counsel has not been able to cite any such judgment.

It is evident that the Union of India, Department of Posts has not acted responsibly in filing this petition despite all other cases on similar issue having been decided against the Union of India.

This Court has been informed that in all other earlier cases in which original applications had been allowed, pensionary benefits have already been granted. The judicial verdicts rendered have already been accepted.

17. For all the reasons given above, we hereby dismiss this petition, however subject to payment of Rs.5,000/- as cost, payable to the respondent/employee.

18. Let a copy of this order be conveyed to Secretary, Ministry of Communication, Department of Posts, Government of India, Daak Bhawan, New Delhi so that repeated petitions are not filed where the principles of law have already been settled."

This Court in the case of Parshuram Yadav v. Union Of India and others (Writ Petition No. 1660 (S/B) of 2014) decided on 06.01.2016, considered the issue "that as to whether grant of temporary status is sine qua non for grant of retiral benefits or the regularization on the post in question is necessary."

This Court in the case of Parshuram Yadav (supra) after considering the judgment passed in the Writ Petition No.225 (SB) of 2008; Ram Das Vs. Central Administrative Tribunal, Lucknow & others and Shyam Lal Shukla (supra) as well as documents available on record held that the requirement under the law for being awarded retiral dues is conferment of "temporary status". The relevant parts of the judgment dated 06.01.2016 passed in the case of Parshuram Yadav (supra) on reproduction reads as under:-

"Learned counsel for Union of India, on the other hand, submits that irrespective of the fact whether temporary status was granted to the petitioner or not but he was never regularized on the post in question and, therefore, the claim raised by the petitioner is not sustainable under the law and neither he is entitled for the retiral dues as claimed by him and the Tribunal has committed no illegality in rejecting the claim of petitioner.

We have heard the arguments raised by learned counsel for the petitioner and learned counsel for Union of India.

The arguments of learned counsel for the petitioner as well as learned counsel for Union of India has to be considered in the light of the fact that as to whether grant of temporary status is sine qua non for grant of retiral benefits or the regularization on the post in question is necessary.

We find that the Tribunal while considering the case of the petitioner came to the conclusion that no such document was placed on record to indicate that he was conferred with temporary status at any point of time. The aforesaid finding recorded by the Tribunal itself belies from the document which has been filed before this Court and it has been admitted by the opposite parties/Union of India that the petitioner was granted temporary status and once the petitioner was granted temporary status, we find that the case of the petitioner is squarely covered by the judgment rendered in Ram Das (supra). In Ram Das (supra) also the same question was involved and the petitioner therein was conferred with temporary status. The Division Bench in the case of Ram Das (supra) has relied upon a Division Bench Judgement passed in Civil Misc. W.P. No.60272 of 2009, Union of India and others Vs. Shyam Lal Shukla reported in (2012) 1 UPLBEC 225 and laid down the law being approved in identical terms wherein the conferment of temporary status was considered as a ground to award all retiral dues. The Division Bench in Ram Das (supra) relied upon the findings recorded in Union of India and others (supra) which on reproduction read as under:-