Telangana High Court
Mr.B.Parasuramulu vs National Remote Sensing Center on 14 October, 2024
THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI
WRIT PETITION NO.3655 OF 2021
ORDER
In this Writ Petition, the petitioner is seeking a direction to the respondent, particularly a Writ of Mandamus, declaring the action of the respondent in not correcting the date of appointment of the petitioner in DOS/ISRO from 30.07.1997 to 30.09.1992 and in not recording the service of the petitioner till the date of retirement in Annual Performance Assessment Report dt.11.02.2020, as illegal, arbitrary and in violation of principles of natural justice and to consequently direct the respondent to pass appropriate orders of correcting the date of appointment and to pass such other order or orders.
2. Brief facts leading to the filing of the present Writ Petition are that the petitioner was appointed as an Attendant-A on temporary basis after selection by the Selection Committee in the interview held on 10.08.1990. Thereafter, another selection process was held by the respondent and the petitioner attended the interview for the post of Helper-A amongst the internal candidates, in which the petitioner was W.P.No.3655 of 2021 2 empanelled and was found eligible and suitable for the same. However, as there was a complaint against the first person in the empanelled list, the petitioner who was placed at Sl.No.2 was appointed but the appointment was shown as temporary. The petitioner was appointed initially for a period of 3 months and the said appointment was extended from time to time till 1996 and continued thereafter without any break. However, his services were terminated without following principles of natural justice and therefore, the petitioner had challenged the said termination order in W.P.No.5350 of 1996 before this Court, which was allowed vide orders dt.29.12.2003. However, aggrieved by the observation in the Writ Petition about the rule of 'last come first go' which was applied in the case of Gaziabad Development Authority Vs. Sri Vikram Choudhary1, the petitioner filed W.A.No.485 of 1996, which was allowed and the case was remanded for consideration of the contentions of the petitioner and this Court passed the order dt.26.06.1996 in favour of the petitioner herein.
3. The learned counsel for the petitioner submitted that the respondent organization has complied with the directions of the Court in W.P.No.5350 of 1996, but the pay scale of the petitioner was not revised 1 AIR 1955 SC 2325 W.P.No.3655 of 2021 3 from Canteen Attendant-A to Rs.2610-60-3150-65-3540 from time to time with corresponding allowance. Thereafter, another Writ Petition in W.P.No.32643 of 1998 was filed and the High Court disposed of the same by directing the respondent to take a decision on the representation of the petitioner and also to pay arrears of difference in the eligible pay scale anterior to 28.10.1997 consequent on the revised pay scales subject to the outcome of W.P.No.5350 of 1996. It is submitted that after completing the service of more than 25 years, the petitioner is going to retire from service on 30.06.2026 and since the respondent organization did not reckon his date of appointment from 30.09.1992 and as recorded in the Annual Performance Assessment Report issued to the petitioner, the petitioner submitted representations to the respondent authorities. However, since no orders have been passed and the respondent organization is depriving the petitioner of his pensionary benefits by not calculating the period of service from 29.09.1992, the present Writ Petition has been filed.
4. Learned counsel for the petitioner submitted that the petitioner has been appointed on contract basis vide orders dt.28.09.1992 after undergoing the selection process and has continued to work thereafter without any break. Therefore, according to him, the service rendered by W.P.No.3655 of 2021 4 the petitioner from 1992 should be reckoned for calculation of his pensionary benefits.
5. The respondent, however, has filed a counter affidavit denying the contentions of the petitioner and submitted that the services of the petitioner have been regularized in the year 1997 and the petitioner has been enjoying all benefits since 1997 and therefore, the contentions of the petitioner are not acceptable. It is submitted that as per the judgment of the Hon'ble High Court in W.P.No.5350 of 1996, the appointment of the petitioner has to be treated as regular from the date when a vacancy of Attendant-A was available after 1992 and a vacancy of Attendant-A arose in 1997 and accordingly, the petitioner joined in the regular post in 1997. It is submitted that the petitioner had been informed through a Memorandum dt.23.02.2004 that his service will be regularized in the post of Attendant with effect from 30.07.1997 and on regularization in the said post, he shall be entitled for all the consequential benefits and the petitioner was advised to communicate in writing, acceptance of the appointment on or before 23.02.2004. It is submitted that the petitioner through his letter dt.23.02.2004 has expressed his unconditional willingness for the above regularization and subsequently the petitioner's probation was declared and the post was confirmed with W.P.No.3655 of 2021 5 effect from 29.07.1998 in the erstwhile NRSA and thereafter, he was promoted to the higher grade from 30.07.2000 considering his service from 30.07.1997. Therefore, the petitioner cannot now turn around and submit that his services prior to regularization of service should also be taken into consideration for computing the pensionary benefits. It is submitted that after Governmentalisation of NRSA, NRSC had to implement computerized working in Admin Areas (COWAA) wherein the personnel data had to be entered manually to COWAA by constituting a Committee and that while doing so, inadvertently, a mistake occurred in recording the date of joining of the petitioner as 30.09.1992 instead of 30.07.1997. It is submitted that the Annual Confidential Reports issued to the petitioner prior to 2009 carried the date of joining as 30.07.1997 only and therefore, the petitioner is eligible for all benefits after the said date. It is submitted that the date of joining of the petitioner in a regular service has already been settled in W.P.No.5350 of 1996 and therefore, the petitioner cannot raise the same issue again in this Writ Petition. It is therefore prayed that the Writ Petition be dismissed.
6. The learned counsel for the petitioner, however, relied upon the judgment of the Hon'ble Supreme Court in the case of Rajkaran Singh W.P.No.3655 of 2021 6 and others Vs. Union of India and others 2 for the proposition that the service rendered by the petitioner from 1992 also has to be reckoned for the purpose of computing his pensionary benefits.
7. Having regard to the rival contentions and the material on record, this Court finds that there is no denial of fact that the petitioner was initially appointed in the year 1992 after going through the selection process. For some reasons, the services of the petitioner were terminated, but he has been reinstated into service by virtue of the directions of the Court and his services have also been regularized but with effect from 30.07.1997. However, for the purpose of computing the pension and pensionary benefits, it is contended by the petitioner that the service rendered by him from the initial date of appointment should be considered. The Hon'ble Supreme Court in the case of Rajkaran Singh and others Vs. Union of India and others (2 supra) was considering the case of the petitioners therein who are not extended the revised pay scales of 2006 with effect from 01.01.2006 on the ground that they were not Government employees and had not been appointed by following any recruitment rules and therefore, the Central Civil Services (Pension) Rules would not apply to them. The claim of the 2 Civil Appeal No(s). of 2024 arising out of SLP(Civil) No(s).30976 of 2017 dt.22.08.2024 W.P.No.3655 of 2021 7 petitioners therein was rejected by the Central Administrative Tribunal and also by the Delhi High Court. In the SLP filed by the petitioners therein, the Hon'ble Supreme Court has considered as to whether the appellants therein, despite being classified as temporary employees of a scheme managed by contributory pooling of funds, can claim entitlement to pensionary benefits in accordance with the 6th CPC. At paras 27 and 28, the Hon'ble Supreme Court has held as under:
"27. Applying these principles to the case at hand, we find compelling evidence on record which establishes that the appellants meet the characteristics of regular government servants. Admittedly, the appellants were appointed on a regular pay scale. This factor strongly indicates a formalised employee-employer relationship akin to permanent government employees. In Ajay Hasia(supra), this Court observed that the nature of financial arrangements can indicate governmental character. The use of government pay scales for the appellants suggests a level of integration into the government's financial structure that goes beyond typical temporary employment. During the course of their service, the appellants received increments and promotions comparable to those of other government employees. This pattern of career progression mirrors that of regular government servants and suggests a deep and pervasive governmental control over their employment terms. In Ajay Hasia (supra), the degree of state control was highlighted as a key factor for identifying State instrumentalities. The chart(supra) provides positive evidence to show that the appellants' career paths were managed like permanent employees indicating a level of governmental oversight and control consistent with regular government service. Furthermore, the office W.P.No.3655 of 2021 8 order dated 12th March 2003, issued by the Deputy Director (AG), which transferred the SSD Funds Accounts to HQ SFF under the overall control of the Inspector General of SFF, along with the associated documents and clerical staff, demonstrates that administrative recognition of the appellants' services was made which is integral to the governmental structure. This transfer of the entire cadre of SSD Fund to the HQ SFF aimed at ensuring better utilization and monitoring of the fund, fortifies the concept that the appellants possessed the characteristics of regular government servants.
28. The provisions of leave and other benefits, including grant of Assured Career Progression (ACP), further reinforces the similarity between the appellants' employment conditions and those of regular government employees. These benefits are typically associated with formalized, long-term employment relationships within the government sector. The proceedings of the Board of Officers dated 23rd June, 2006 unequivocally acknowledged that the terms and conditions, including the pay and allowances payable to SSD Fund staff, were fixed in March 1978 in accordance with those applicable to the ministerial staff employed in the Accounts Section of SSF HQ Estt. No. 22. The extension of Assured Career Progression (ACP) and alignment of terms and conditions with regular government employees, in particular, is an affirmative action indicating that the government viewed and treated these employees as long-term assets, despite their ostensibly temporary status. Substantially, the appellants' charter of duties involving the maintenance of accounts for the SSD Fund, can be considered as an assignment of public importance closely related to governmental functions. This aligns with another test laid down in Ajay Hasia(supra), which considers the public importance and governmental nature of the functions performed. The management of funds generated from the personal provident fund contributions of the entire SFF cadre is a critical W.P.No.3655 of 2021 9 function that has a direct bearing on the public interest and the effective operation of government services."
Further, at paras 31 and 32, the following finding has been given.
"31. As held in Vinod Kumar(supra), the essence of employment and the rights thereof cannot be merely determined by the initial terms of appointment when the actual course of employment has evolved significantly over time.
32. This Court fully associates with this principle and finds it wholly applicable in the present case, especially in the light of the administrative orders and Board proceedings referred to supra that have consistently treated the appellants as equivalent to regular government employees. The mere classification of employees as 'temporary' or 'permanent' is not merely a matter of nomenclature but carries significant legal implications, particularly in terms of service benefits and protections."
Thus, it can be seen that even temporary service has to be considered for computing the pension and pensionary benefits.
8. Learned Standing Counsel for the Central Government has not been able to furnish any judgment to the contrary.
9. This being the latest judgment of the Hon'ble Supreme Court and particularly on the issue of eligibility of a Government servant to treat his temporary service for the purpose of pensionary benefits is a W.P.No.3655 of 2021 10 precedent on the issue, the case of the petitioner herein is also covered by the rationale of the said judgment.
10. In view of the same, the respondent is directed to consider and pass appropriate orders on the representation of the petitioner for treating his service from the date of his initial appointment, i.e., from 30.09.1992 notionally for the purpose of pension and pensionary benefits alone.
11. With the above direction, the Writ Petition is allowed. No order as to costs.
12. Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.
___________________________ JUSTICE T. MADHAVI DEVI Date: 14.10.2024 Svv