Madras High Court
Union Of India Rep By vs K.N.Sivadas & on 4 November, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
WP.No.1373 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.11.2024
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HON'BLE MR.JUSTICE M.JOTHIRAMAN
WP.No.1373 of 2021
and WMP.No.1545 of 2021
1.Union of India rep by
The Chief Postmaster General
Tamil Nadu Circle,
Anna Salai, Chennai – 2.
2.Deputy Director
Foreign Post,
Chennai – 600 001. .. Petitioners
v.
1.The Registrar
Central Administrative Tribunal
High Court Campus,
Chennai – 600 104.
2.G.Rajarathinam … respondents
Prayer : Petition filed under Article 226 of the Constitution of India
seeking to issue writ of certiorari to call for the records of 1 st respondent
in OA.No.32 of 2016 dated 30.08.2019 in disposing the OA filed by the
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1/26
WP.No.1373 of 2021
2nd respondent and quash the same.
For Petitioners : Mr.AR.L.Sunderesan, ASG
assisted by
Mr.R.Subramanian, CGSC.
For Respondents : R1 – Tribunal
Mr.R.Malaichamy for R2.
ORDER
(Made by the Hon'ble Mr.Justice S.M.SUBRAMANIAM)
Under assail is the order dated 30.08.2019 passed in OA.No.32 of
2016 on the file of the Central Administrative Tribunal, Madras bench.
2. Union of India is the petitioner before us. The second
respondent instituted Original Application in OA.No.32 of 2016,
challenging the order of rejection issued by the second petitioner herein in
proceedings dated 12.11.2015 and to direct the petitioners herein to
extend the benefits of judgment made in OA.No.79 of 2011 and batch
cases of Ernakulam bench of Central Administrative Tribunal dated
01.10.2013.
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3. The learned Additional Solicitor General of India
Mr.AR.L.Sunderasan appearing on behalf of the petitioner would submit
that the issues are no more res-integra and already decided by this Court
elaborately considering the issues in a batch of writ petition filed in
WP.Nos.13633 of 2020, 1540, 289 & 188 of 2021 dated 24.01.2023.
The judgment relied on by the 2nd respondent before the Central
Administrative Tribunal itself was set aside by the Division Bench of this
Court in the judgment cited supra on 24.01.2023. Therefore, the present
writ petition is to be considered.
4. Mr.Malaichamy, the learned counsel for the second respondent
would oppose preliminarily by stating that the judgment of the Delhi
Central Administrative Tribunal is taken by way of an appeal before the
Hon'ble Supreme Court of India which is subjudice. The Delhi High
Court held in favour of the employees. In the event of rejecting the
appeal instituted by Union of India by the Hon'ble Supreme Court, the
second respondent would be deprived of the benefits.
5. The learned Additional Solicitor General would contend that the
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original application is hit by principles of latches as the employees
approached the Central Administrative Tribunal during their fag end of
services. Monetary benefit under time bound one time promotion
(TBOP) cannot be granted with retrospective effect. Since, the second
respondent had not approached the Tribunal within the reasonable period
of time, the claim if considered would unsettle the seniority and would
cause greater financial implications to the Union of India.
6. The issue in nutshell to be considered is that the second
respondent was initially recruited to the cadre of postal assistant in the
year 1983. Admittedly, there was a ban on recruitment and therefore to
mitigate the circumstances arose in the postal department, candidates
were recruited and kept in reserved training pool. However, they were
not appointed on regular basis nor their services were regularised from
the date of initial recruitment. These employees were allowed to continue
as reserved training pool employees on temporary basis and hourly basis
salary was paid to them.
7. Admittedly, these employees were not appointed on regular time
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scale of pay in the sanctioned post. Therefore, they were not became
regular employees of the postal department. However, after lifting the
ban by the Union of India, these reserved training pool employees were
observed in the regular sanctioned vacancies in the time scale of pay and
their services were regularised during the year 1988. The service of the
second respondent was regularised with effect from 25.04.1988. The
second respondent continued in service and reached the age of
superannuation on 31.05.2015.
8. The date of regularisation of service in the regular post with
effect from 25.04.1988 was taken into consideration for the purpose of
reckoning seniority grant of TBOP and other monetary benefits including
upgradation of monetary benefits. The TBOP was granted to the second
respondent with effect from 15.05.2004 and MACP-II was granted with
effect from 01.09.2008. Even after receiving the monetary benefits from
and out of TBOP and thereafter under MACP-II, the second respondent
has not claimed any further benefit and accepted those benefits. That
being the factum now belatedly he cannot claim the benefit based on the
judgment of the Kerala Bench of the Central Administrative Tribunal as
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affirmed by the Division Bench of the Kerala High Court.
9. Since, the issues are already covered and the coordinate division
Bench of this Court elaborately considered the inordinate delay in
approaching the Central Administrative Tribunal as well as the eligibility
for claiming the monetary benefit with retrospective effect from the date
of recruitment, it become unnecessary for us to reconsider those issues.
However, the legal principles settled is that the regular monetary benefits
granted under TBOP and MACP-II are to the granted with effect from the
date of regular appointment of an employee. In other words, an employee
after becoming a member of regular service is eligible for all service
benefits, under the Rules.
10. In the present case, admittedly the second respondent was
initially engaged as reserved training pool employee on temporary basis
and was receiving hourly basis salary. Further, his engagement was on
need basis. Subsequently, his services were regularised with effect from
25.04.1988 and it is not in dispute that all service benefits to the second
respondent are granted with effect from the date of his regular
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appointment in the sanctioned post with effect from 25.04.1988.
11. The Original Application itself was filed in the year 2016 after
attaining the age of superannuation in the year 2015. Thus the claim of
the second respondent is belated and the Original Application was filed
after retirement claiming monetary benefit from the date of initial
recruitment as reserved training pool employee. Thus the claim of the
respondent deserves no merit consideration.
12. The consideration of the issues regarding delay and on merits
in the batch of writ petitions by coordinate bench of this court are
extracted hereunder :-
“7. Having gone through all the related papers
including the judgment and rulings adduced on both
sides it is essential to go into the genesis of
constitution of a standing pool trained reserved
candidates for Post and RMS offices. It is a well
known fact that our Post and RMS offices have a huge
network and infrastructure covering nook and corner
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of our country and play a very important role. It was
in this context that the Director General, Post &
Telegraphs Department, New Delhi had circulated on
30.10.1980 the details of the scheme of RTP. The
major objective as could be deciphered from the copy
of the letter dated 30.10.1980 circulated by the
Director General, Post & Telegraphs Department is
to bridge the gap between the occurence of vacancy
and placement of approved and trained candidates to
fill the vacancies and also to cut down on the
overtime arrangements which were fraught with
inherent limitations. It was decided that at the time of
each recruitment an additional list of candidates
equal in number to 50% of candidates in the main list
would be drawn up and imparted training similar to
the candidates in the main list. It was also decided
that they will be used against vacancy due to
absenteeism or to handle peak hour traffic. It was
also decided that they would be absorbed in the
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regular vacancies in turns after the main list
candidates are absorbed. They were paid wages on
hourly basis and the mandatory reservation policy
was also applied on them at the time of selection itself
and it was initially on an experimental basis for a
period of one year. With this back drop the entire
facts of these petitions have to be considered.
8. The ban on recruitment was Pan India and
was not something on which the petitioners have any
role to play. It was the policy of the Government for
Administrative reasons. It is also pertinent to refer at
this juncture to the relevant portions of the judgment
in Union of India & Another Vs. K.N.Sivadas &
Others in Civil Appeal No. 5268/97 @ SLP[C] No.
17422/95}, Civil Appeal Nos. 126/96, 124-125/96,
127-130/96 & 131/96
"The position of RTPs is quite different. In
the first place, the very scheme which
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constituted RTPs provided for their
absorption as regular employees. With this in
mind, they were also given the same training
as regular employees. They were required in
the meantime, to carry out short-term duties
or to handle peak hour traffic on an hourly
wage basis. However, there was clear
assurance in the scheme that they would be
accommodated in future vacancies as regular
employees in the manner set out in the
scheme. We are informed that there was
backlog in absorption because of a ban on
recruitment during certain years. All the RTP
employees have been absorbed as regular
employees by 1990. Some of the respondents
who are before us have been absorbed much
earlier, in the year 1988. Therefore, they are
in a much better position than casual
labourers and are now enjoying all the
benefits of regular employment. Their claim
relates to the period prior to their
absorption. The entire period in effect, is
either prior to 1988, or in the case of some of
the respondents, prior to January 1990. The
benefits which they claim are the benefits
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which have been conferred on casual
labourers only after 29.11.1989. The
respondents, however, are claiming these
benefits for earlier periods (In respect of
those respondents who were absorbed in
January 1990, their continuation as RTPs
after 29.11.1989 is only of two months
duration). In other words, RTPs are claiming
benefits for a period for which a similar
benefit has not been conferred on casual
labourers under the Casual Labourers
(Grant of Temporary Status and
Regularisation) Scheme.
The Tribunal, in our view, has erred in
equating RTPs with casual labourers. The
position of these two categories of employees
is very different as we have already set out.
The Tribunal has also erred in assuming that
casual labourers are getting these benefits
during the period for which the RTPs are
claiming these benefits. RTPs have already
obtained the benefit of absorption in regular
service because of their own scheme. They,
therefore, cannot, on the one hand, avail of
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their own special scheme and at the same
time, claim additional benefits on the basis of
what has been given to the casual labourers.
This is unwarranted, especially as the period
for which they claim these benefits is the
period during which such benefits were not
available to casual labourers.
In C.A. Nos. 124-125 of 1996 the
respondents originally worked as Telegraph
Assistants in various Central Telegraph
Offices in their reserved trained pool and
were absorbed in regular service in 1992. In
their department, the scheme of temporary
status and regularisation for casual labours
has come into effect form 1.10.1989. Their
case in no different from the case of other
RTPs although undoubtedly, they have been
regularised a little later. As stated above, the
position of RTPs is very different from the
position of casual labourer and the Tribunal
could not have equated the two.
In C.A. Nos. 127-130 of 1996 the RTPs who
have been regularly absorbed in the year
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1988 have been given the benefit of counting
their service as RTPs for the purpose of think
eligibility to appear for the departmental
examination. The relevant rule provides that
the candidates "must have put in at least 5
years continuous satisfactory service in one
or more eligible cadres" before they can
appear for the examination. The eligibility is
related to five years service in the cadre. Any
service which was rendered prior to regular
appointment in the cadre, cannot count for
the purpose of this rule because it cannot be
considered as service in any eligible cadre.
The Tribunal was, therefore, wrong in
granting to RTPs the benefit of service
rendered by them prior to their regular
appointment, for the purpose of their
eligibility to appear for the departmental
promotion examination."
Though this case pertains to one K.N.Sivadas and few
other Postal Assistants, who were in the RTP of Post
and Telegraph offices and were the first to seek the
legal remedy for getting all the benefits by pre-dating
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their regularisation from the date of their respective
appointments, the comparison they made was with the
casual labourers who were bestowed with certain
benefits under Casual Labourers (grant of temporary
status and regularisation) Scheme, 1989. There were
also other rulings such as Union of India vs. Gandiba
Behera in Civil Appeal No.8497/2009 which had
clearly spelt out that predating regularisation is not
acceptable. This was also highlighted by the learned
counsel for the petitioner during the course of
arguments.
9. Another issue which was raised by the
learned counsel for the petitioners was regarding the
inordinate delay on the part of the respondents who
have approached the Tribunal only because some
other employees of their own cadre in Kerala had
raised the issue and got a favourable order from the
Central Administrative Tribunal, Ernakulam Bench.
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In this regard, the learned counsel for the petitioner
relied on 2006 (11) SCC 464 in the case of U.P.Jal
Nigam and Another vs. Jaswant Singh and Another
wherein it was held that
"16. Therefore, in case at this belated stage if
similar relief is to be given to the persons
who have not approached the court that will
unnecessarily overburden the Nigam and the
Nigam will completely collapse with the
liability of payment to these persons in terms
of two years' salary and increased benefit of
pension and other consequential benefits."
10. As rightly pointed out by the learned
counsel for the petitioners, the financial burden of
implementing such a decision which has no element of
legal justification. The Tribunal entirely relied on the
decision Union of India Vs. M.Mathivanan case
interpreting that the said Mathivanan was also a RTP
candidate and just because he was absorbed in Army
Postal Service he was considered favourably for
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grant of TBOP. The Tribunal had concluded RTPs
whether in APS are regular postal services are equal
and should be considered at par. It can be easily
comprehended that this was one rare such case and
can be only an exception and cannot be a rule. In fact
in the said judgment the Apex Court took cognizance
of the regularisation made consequent upon the
appointment of the said Mathivanan in the Army
Postal Service on regular basis which according to
the Apex Court was clearly the date of regularisation.
If the arguments of the respondents is to be taken into
consideration the 16 year period (for TBOP) in the
case of Mathivanan should have been 1997 and not
1999 as approved by the Apex Court. Thus, it is clear
that 16 year period for TBOP was calculated only
from the date of regularisation and not from the date
of initial appointment in RTP. The decision of Central
Administrative Tribunal, Ernakulam Bench, was
definitely based on a wrong interpretaions of the two
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Apex Court decisions in the cases of K.N.Sivadas and
Mathivanan.
11. Now coming to the aspect of delay in
claiming the benefit with retrospective effect, it is to
be noted that though there is no specified time limit
stipulated under any Act, the delay cannot be
unexplained and unreasonable. In the present cases,
it is seen that the respondents have neither
challenged the ban on recruitment which according to
them was the main cause of their belated
regularisation nor given any representation to the
petitioners seeking such relief immediately after their
regularisation. It was only in the year 1996 that one
of their colleagues had approached the appropriate
legal forum to settle his issue of seeking similar
benefits as provided for the casual labourers. The
present respondents did not approach the employers
with any representation even till 2013. It was only
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thereafter, they followed it up with OAs in Central
Administrative Tribunal, Chennai Bench in 2014. This
aspect of delay and laches is very important. In fact
the Apex Court in the case of Union of India & Others
vs. C.Girija & Others, Meena Baskar vs. C.Girija &
Others, C.Girija vs.Union of India & Others in Civil
Appeal Nos.1577, 1578 of 2019 and Writ Petition
(Civil) No.653 of 2015, observed that
"13. This Court again in the case of Union of
India and Others Vs. M.K. Sarkar, (2010) 2 SCC 59
on belated representation laid down following, which
is extracted below:-
“15. When a belated representation in
regard to a “stale” or “dead” issue/dispute is
considered and decided, in compliance with a
direction by the court/Tribunal to do so, the date
of such decision cannot be considered as
furnishing a fresh cause of action for reviving the
“dead” issue or time-barred dispute. The issue of
limitation or delay and laches should be
considered with reference to the original cause of
action and not with reference to the date on which
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an order is passed in compliance with a court’s
direction. Neither a court’s direction to consider a
representation issued without examining the
merits, nor a decision given in compliance with
such direction, will extend the limitation, or erase
the delay and laches.”
14. Again, this Court in State of Uttaranchal and
Another Vs. Shiv Charan Singh Bhandari and Others,
(2013) 12 SCC 179 had occasion to consider question
of delay in challenging the promotion. The Court
further held that representations relating to a stale
claim or dead grievance does not give rise to a fresh
following was laid down:-
“19. From the aforesaid authorities it is clear as
crystal that even if the court or Tribunal directs for
consideration of representations relating to a stale
claim or dead grievance it does not give rise to a
fresh cause of action. The dead cause of action
cannot rise like a phoenix.
Similarly, a mere submission of representation to the
competent authority does not arrest time."
This phrase that a dead cause of action cannot "rise
like a phoenix " is very much applicable to the
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present facts of the case. In fact, as pointed out by the
counsel for the petitioners such decisions without
giving thought to the financial implications and
practicality would only put the entire machinery of
the petitioners under huge stress. There is also a
possibility of such decisions being taken up by other
departments and even by casual labourers and it
would just be an endless stream of representations
and litigations. The financial implications could be
very stressful for an organisation like the petitioners'
and merely because it is wholly owned by the
Government of India does not entail implementations
of such huge avoidable expenditure merely to comply
with the directions of the Tribunal. The direction of
the Tribunal to work out backwards from 1984 and
implement such an exercise that when number of RTP
was practically only a reserved list consisting of 50%
of the main vacancies defies any logic. The primary
object of the RTP was intended only to reduce the
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expenditure on overtime and also ensure smooth flow
of work even in the exigency of absenteeism. But the
impugned decisions of Central Administrative
Tribunal, Chennai Bench would defeat the very
purpose and concept of RTP. The respondents were
not recruited as regular Postal Assistants and their
appointment dates cannot be taken for calculating
their service for any benefit. The only difference
between the candidates under RTP and casual
labourers was the assurance of regularisation.
Having got an advantageous start in the beginning of
their career, it appears that their demand for
considering their service for all purposes including
TBOP from the date of their initial appointment shows
only the greed in them. As already elaborated the ban
on recruitment was not the decision of the petitioners
and the demands of the respondents smacks of
unreasonableness. Again as rightly pointed out by the
learned Additional Solicitor General, the Government
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of India's exchequer cannot be allowed to bleed to
meet out such illogical demands and therefore, the
orders of the Central Administrative Tribunal,
Chennai Bench, are unacceptable and without any
rationale. In this context, it is also pertinent to point
out that the orders of the Central Administrative
Tribunal, Ernakulam Bench in O.A.No.1410/1995 was
set aside by Hon'ble Supreme Court in C.A.No.80-
123/1996 wherein it was held that
"Any service which was rendered prior to
regular appointment in the cadre, cannot
count for the purpose of this rule because it
cannot be considered as service in any
eligible cadre. The Tribunal was, therefore,
wrong in granting to RTPs the benefit of
service rendered by them prior to their
regular appointment, for the purpose of their
eligibility to appear for the departmental
promotion examination."
12. In view of the forgoing decision, it could be
easily concluded that the decisions in all the OAs
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have been arrived at by the decision of Central
Administrative Tribunal, Ernakulam Bench which was
confirmed later by Kerala High Court. All the orders
of Central Administrative Tribunal, Chennai, suffer
from lack of application of mind on their part as they
have not gone into merits and demerits of such an
unprecedented decision. The delay of more than 3
decades would have resulted in many retirements on
superannuation amongst the respondents and such a
massive exercise of searching the records and
arriving at even the minute details like break in
service etc. is just next to impossible that too when
the demands of the respondents are totally unethical
and unreasonable.
13. In the result, all the Writ Petitions are
allowed. No costs. Consequently, connected
miscellaneous petitions are closed. The orders of the
Central Administrative Tribunal, Chennai Bench,
passed in O.A.No.1149 of 2014 dated 27.06.2019,
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O.A.No.1691 of 2016 dated 20.08.2019, O.A.No.1240
of 2014 dated 27.06.2019 and O.A.No.1148 of 2014
dated 12.07.2019, are set aside.”
13. Since the facts of the present case is similar and the legal issues
were elaborately considered by the coordinate bench of this Court, we
have no other reason to take a different view. Consequently the
impugned order passed by the Central Administrative Tribunal in
OA.No.32 of 2016 dated 30.08.2018 is set aside.
14. In the result, the writ petition is allowed. No costs.
Consequently, connected miscellaneous petition is closed.
(S.M.S., J) (M.J.R., J)
04.11.2024
Index : Yes/No
Internet : Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation : Yes/No
tsh
To
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The Registrar
Central Administrative Tribunal
High Court Campus,
Chennai – 600 104.
S.M. SUBRAMANIAN, J.
and
M. JOTHIRAMAN, J.
tsh
https://www.mhc.tn.gov.in/judis
04.11.2024
https://www.mhc.tn.gov.in/judis
