Union Of India (Uoi) And Ors. vs All India Rms And Mms Employees
2004 Latest Caselaw 1060 Del

JUDGMENT

B.A. Khan, J.

1. This petition challenges Tribunal order dated 23.4.2003 allowing respondents' OA and directing petitioners to reconsider the issue of accord of grant of regularisation to these respondents and their entitlement to pensionary benefits in the light of the decision taken by the Department of Telecommunications vide letter dated 3.1.1992.

2. Respondents have been working in Railway Mail Service (RMS) and Motor Mail Service (MMS) of the Department of Posts on casual basis for more than 20 years or so and were also accorded temporary status in 1988-89. They are clamouring for regularisation of their services against Group D posts and for this they filed OA No. 514/2002 before Tribunal complaining that even though they were working for several years, yet their services were not regularised against Group D posts and as a result some of them had superannuated without getting any pensionary benefits. They base their case on the treatment meted out to casual labourers working in the Post & Telegraph Department in whose case Supreme court in Daily Rated Casual Labour Employed under P & T Department v. Union & Others had directed for preparing a scheme on rationale basis for absorbing those casual labourers who had been continuously working for more than one year in that Department and pursuant whereto the Department of Personnel & Training had issued letter dated 7.6.1988 taking a policy decision to regularise those casual labourers. They had also pressed in service of the other Supreme Court in Jagrit Mazdoor Union (Regd) v. Mahanagar Telephone Nigam Limited 1990 (Supp) SCC 113 in which it was directed by the Supreme Court that casual labour of Mahanagar Telephone Nigam Limited with three years continuous service and with temporary status be treated at par with temporary Grade D employees of the Department of Posts and would be entitled to such benefits as are admissible to regular Group D employees and pursuant whereto Department of Posts had issued a scheme by letter dated 11.5.1989. It was also their case that Ministry of Communications (Department of Telecommunications) vide letter dated 3.1.1992 had implemented the decision of the Supreme Court and regularised the casual labourers who had put in 10 years service and as a result of which all casual labourers with temporary status were made entitled to pensionary benefits.

3. This OA was opposed by petitioners on the ground that Department of Telecommunications was a different department and having a different requirement and that the judgments relied upon by respondents did not direct regularisation of casual labour against any Group D posts but only provided for their absorption through schemes which were later prepared and sanctioned by the Government as one time measure. It was also pleaded that these respondents were basically part time casual labourers who had attained full time casual labour status after 12.4.1991 and the scheme prepared by the Department of Posts & Telegraphs pursuant to Supreme court judgment being a one time measure would not apply to them. It was also submitted that Group D posts in the department were to be filled up in accordance with the recruitment rules under which preference was to be given to the extra departmental agents and 20% of the vacancies remaining unfilled after recruitment of non-test category employees were to be filled up on the basis of selection-cum-seniority.

4. On this, Tribunal surveyed the whole scene taking into regard several judgments of Supreme Court pursuant whereto schemes were formulated to absorb casual labour and took the view that respondents were being denied equal treatment though they were similarly situated with casual labourers in the Telecommunication Department. It accordingly held:-

"I dispose of this OA within a direction to the respondents to reconsider the issue of accord of grant of regularisation to the applicants who are casual employees with temporary status after completion of three years service and their entitlement to pensionary benefits on completion of this period, in the light of the decision taken by the Department of Telecommunication through letter dated 3.1.1992, within a period of three months from the date of receipt of a copy of this order. In the event, the respondents decide to extend the same treatment to the applicants, as meted out to their counter parts in Department of Telecommunications, necessary steps and follow up action may be taken by the respondents expeditiously."

5. Petitioners assail the Tribunal order on several grounds. Their grievance is that Tribunal had misinterpreted the judgments of Hon'ble Supreme Court in Daily Rated Casual Labour and National Federation of P & T Employees v. Union of India in which the Apex Court had only directed the official respondents to prepare a scheme on rationale basis for absorbing as far as possible the casual labour who had been continuously working for more than one year in Post & Telegraph Department. It had also fallen in error in not making a distinction that Department of Posts and Department of Telecommunications were two different departments and that the Department of Posts was governed by its own recruitment rules for filling up Group D posts and, therefore, it could not be bound down on the analogy of what was done or agreed to by the Telecommunication Department. The Tribunal had also overlooked that in Department of Posts another category of workers (extra departmental agents) - Gramin Dak Sewaks numbering more than 3 lacs manning the postal network in rural areas were to be given preference for recruitment to Group D posts and, therefore, no direction could be passed asking the Department to regularise the services of casual labour against these Group D posts. Moreover, respondents claim for pensionary benefits related to matter of policy pertaining to Nodal Ministries like Department of Personnel & Training and Department of Pension & Pensionary Welfare which were not made parties by them in their OA.

6. It is noticed at this stage that Tribunal, in its impugned order, had only directed petitioners to reconsider the issue of regularisation of services of respondents with three years service and enjoying temporary status and their entitlement to pensionary benefits on completion of this period in the light of decision taken by the Department of Telecommunications through their letter dated 3.1.1992. This direction, in our view, was innocuous insofar as it had only required petitioners to take the decision of Telecommunication Department contain in letter dated 3.1.1992 in regard while according consideration to the respondents' claim which did not necessarily imply that this decision was to be blindly followed.

7. It can't be gain-said that respondents had a right to set up their claim, whatever its worth and had also a right of seeking consideration of their claim in the light of treatment which was meted out to casual labour in the Department of Posts or for that matter in the Department of Telecommunications pursuant to a series of judgments of the Hon'ble Supreme court requiring formulation of schemes for their absorption.

8. Even the Department of Posts had also done so at one stage, may be as one time measure, but that does not absolve this department of according a consideration to the respondents' case on the analogy of the decision of the sister Telecommunication Department. The fact remains that respondents have been working in the Department of Posts for two decades or more and were also enjoying temporary status, therefore, they deserved a consideration for their absorption, by whatever mode in the light of the long service rendered and also the treatment meted out to the similarly situated casual labour in their department or in the other department i.e. Telecommunication. This does not necessarily involve any flouting of recruitment rules because it was always within the discretion of the Department of Posts to find a way out and accommodate these respondents who had worked for so long and who were otherwise bound to make an exit without any pensionary benefits.

9. It is true that recruitment to Grade D posts in the Postal Department is governed by the recruitment rules. But invoking such rules would not and should not deprive respondents of due consideration to their claim for absorption/regularisation, as the case may be by a policy decision wherever recruitment rules may come in their way.

10. In this view of the matter, we find nothing wrong in the Tribunal direction because while according consideration to the case of respondents, it was open to the petitioners to take into consideration the judgments of the Supreme court, the recruitment rules, the decision taken by the petitioner department in the past or any decision taken by the Department of Telecommunication, be that vide letter dated 3.1.1992 or otherwise. Because there is no harm in taking all relevant factors into consideration for examining respondents' case and determining its merit.

11. It is fallacious to contend that Tribunal direction was imposing the decision taken by the Telecommunication Department on the Department of Posts. On the contrary, all it provided was that case of respondents be reconsidered in the light of the decision taken by the Telecommunication Department dated 3.1.1992.

12. We accordingly find no scope to turn down the Tribunal order in its entirety. It can be, however, slightly modified and this petition disposed of by providing that petitioners shall reconsider the issue of regularisation of respondents' service or their absorption by taking in regard the relevant recruitment rules, the judgments of the Supreme Court in Jagrit Mazdoor Union's case or any other case which is relevant on the point and also any analogous orders passed by the Department of Telecommunications besides any other relevant factor which they may deem fit or which may have any bearing on this issue. They are required to pass appropriate orders in the matter within three months from receipt of this order after undertaking this exercise.

13. The petition is accordingly disposed of.