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    O.P.(CAT) Nos. 89, 95, 101, 102, 112, 114 & 117 of 2014 In OP. No. 79 of 2011

    Decided On, 17 March 2017

    At, High Court of Kerala


    For the Petitioners: P. Parameswaran Nair, ASG of India, N. Nagaresh, Assistant Solicitor General. For the Respondent: Rekha Vasudevan, Advocate.

Judgment Text

Surendra Mohan, J.

1. These Original Petitions are all filed by the Union of India and others challenging the common order of the Central Administrative Tribunal, Ernakulam Bench dated 1.10.2013, finally disposing of O.A. No. 79 of 2011, O.A. No. 119 of 2011, O.A. No. 988 of 2011, O.A. No. 31 of 2012, O.A. No. 1150 of 2012, O.A. No. 1151 of 2012 and O.A. No. 1014 of 2010. Since the issue raised as well as the contentions urged are common, the Central Administrative Tribunal, has disposed of the cases by a common order. Therefore, we are also proceeding to dispose of all the cases, together.

2. The common issue that arises for consideration in these cases is whether the service rendered by the respondents under the Reserve Trained Pool ('RTP' for short) System should be counted for the purpose of seniority, benefits relating to financial upgradation and other consequential benefits.

3. The RTP System was introduced as per Annexure AI order dated 30.10.1980. As per the System, while filling up posts of Postal Assistants and Sorting Assistants in each Recruitment Unit, apart from drawing up a list of selected candidates equivalent to the number of vacancies ready to be filled up, an additional list of up to 50% of the candidates used to be prepared. The persons in the said additional list also used to be imparted training and were retained categorized as Trained Reserve Candidates. They were retained in reserve to meet future regular and current emergent needs of manpower in the Postal and RMS Services. Their services were utilized regularly as and when additional staff was required. However, they were paid for their services only on hourly basis. In other words, they were not paid any regular salary as other employees.

4. All the respondents in these Original Petitions are persons who were either recruited in 1983 or between 1983 and 1986. They continued in the RTP and were absorbed into regular service during 1988 - 1991. However, the service put in by them as RTP was not counted for the purpose of any of the service benefits. It is not in dispute that there was a ban against direct recruitment during the period 1984 - 1990. According to the respondents, had it not been for the ban, they would have been absorbed into regular service much earlier.

5. The employees were aggrieved by the above position and therefore, the Original Applications were filed by them during 1990 and 1991 claiming that they were entitled to get the benefits of their service commencing from the date of their initial engagement as RTP for the purpose of all the service benefits that were available to other regular employees. The Original Applications were considered by the Ernakulam Bench of the CAT treating O.A. No. 814 of 1990 as the leading case and by order dated 21.4.1992 it was held that RTP candidates who have rendered a continuous service for over one year at eight hours a day, would be entitled to temporary status. It was also directed that half such service be counted as qualifying service for pension and all benefits available to casual Mazdoors. The order was granted relying upon the fact that the casual Mazdoors had been granted such temporary status. The said order was followed in other cases as well. However, the order was the subject matter of challenge before the Apex Court at the instance of the appellants herein, that culminated in the decision in Union of India v. K.N. Sivadas ((1997) 7 SCC 30). The Apex Court in the said decision held that, the order of the CAT as confirmed by the High Court was unsustainable and that the casual employees and RTP candidates do not stand on the same footing. As per the decision, the RTP candidates are in a much better position and are to be governed only by the terms of the order appointing them. The RTP candidates have been absorbed into regular service as per the terms of their scheme. They shall therefore be governed by such terms for all purposes. It is not open to them to seek the benefits available to the casual labourers who have not been extended any of the benefits enjoyed by the RTP candidates.

6. In the above circumstances, another O.A. filed by one of the RTP candidates claiming the benefit of regularization with retrospective effect, O.A. No. 1178 of 1996 was dismissed by the CAT, Ernakulam Bench. The matter was taken up before this Court in O.P. No. 21249 of 2000. A Division Bench of this Court, after a detailed discussion, rejected the claim following the dictum in Union of India v. K.N. Sivadas (supra). It has been held that, the RTP candidates would get the benefits of regular service only from the respective dates of their entry into regular service. The judgment of the Division Bench was on 16.9.2003 and is evidenced in the O.A. by Annexure A12.

7. Long before the judgment of this Court, the Jabalpur Bench of the CAT had considered an identical claim. After considering the respective contentions, the Tribunal issued the following directions as per Annexure A7 order in the O.A. dated 16.12.1986:

'10. Under the circumstances, to end the unreasonable and unjust classification that had been introduced as the result of dual policy of the Government as reflected in the issue of the circular (Annexure R1) and the stopping of further recruitment and absorption to the cadre of posts of Postal Assistants, as affirmed in para 8 of the Respondent's return dated 24.6.1985, we direct that:-

a. Government shall review their policy to stop recruitment/absorption of persons against regular Postal Assistants.

b. No persons shall be inducted from other Departments like Railway Mail Service and Telecommunication Department to man posts of Postal Assistants until the petitioners are absorbed against regular posts.

c. No fresh persons be taken and recruited against the RTP (Reserve Trained Pool) until the Government reviews their policy as under (a) above. The operation of the circular dated 31.10.1980 (Annexure R1) in regard to recruitment of fresh persons to RTP other than petitioners is struck down in exercise of this Tribunal's writ jurisdiction.

d. The absorption of the petitioners against regular posts will be so phased on the basis of para 2 of Circular dated 30.10.1980, as if no restriction had been imposed on their regular recruitment/absorption earlier and shall be completed within a reasonable period from the date of this order, if necessary by creating supernumerary posts, and subject to screening of the unfit by a specially constituted screening committee to examine their record and performance. The Screening Committee shall also keep in view their seniority in the RTP.

11. x x x x

12. Under the circumstances, for reasons stated in the preceding paragraph, we find the provisions of the circular dated 30.10.1980 (Annexure R1) in so far they relate to payment of hourly rates of wages to employees in the R.T.P. discriminatory and violative of Article 14 and 16 of the Constitution and are struck down. We direct respondents that the RTP Employees performing the same duties as Postal Assistants shall be paid the same salary and emoluments per mensem as are being received by Postal Assistants with effect from the date of their appointment. As regards other conditions of service and facilities demanded by the petitioners this is subject to their regular absorption as directed in para 10.'

Though the order of the Jabalpur Bench was challenged before the Apex Court in SLP (C) No. 11313 of 1997, the same was dismissed. The order of the Jabalpur Bench was followed in a subsequent decision of the Bombay Bench of the CAT in O.A. No. 719 of 1996 and other connected cases, as per order dated 31.8.2010, which is produced before the Tribunal as Annexure A30. Similarly, the Madras Bench of the Tribunal had also dealt with similar claims and an order was issued on 25.2.1988 directing absorption from RTP candidates against regular vacancies in the order of merit in the RTP from the date on which such vacancies arose.

8. While so, a Scheme called Time Bound One Promotion (TBOP for short) was introduced in 1983. The Scheme provided for automatic promotion of persons who had put in 16 years of service as a Postal Assistant or Sorting Assistant. The 16 years service that was stipulated as the eligibility for promotion was interpreted by the appellants as 'regular service'. One Mathivanan, who was an RTP candidate, and who had been selected to the Army Postal Service (APS), challenged the action. The matter went up to the Apex Court in Union of India v. M. Mathivanan ((2006) 6 SCC 57). The Apex Court held that since the term 'regular' was not figuring along with the expression '16 years of service', insisting that the service should be regular was unjustified. Therefore, Mathivanan was granted the benefit of TBOP Scheme. The decision of the Apex Court was uniformly applied to all similarly placed persons. The TBOP Scheme was thereafter replaced by the Modified Assured Career Progression (MACP) Scheme evidenced by Annexure 15 before the CAT. Some of the RTP candidates preferred representations seeking the benefits of MACP Scheme. However, the claim was rejected by Annexure A29 dated 12.4.2012. According to the Government, while the TBOP Scheme did not specifically refer to regular service, since the MACP Scheme has specifically referred to 'regular service', the service rendered prior to regularization of the RTP candidates could not be counted while considering their eligibility for the benefits of MACP Scheme. It was challenging the said proceedings that, the respondents had filed O.As before the CAT.

9. The O.As were contested by the appellants contending that the claim was barred by limitation. According to them, the decision in Union of India v. K.N. Sivadas (supra) completely governs the situation. This Court having followed the said decision in Annexure A12 judgment, it was not open to the respondents to raise the said contention again. The Tribunal considered the respective contentions and held that the respondents were entitled to succeed. Accordingly, the appellants have been directed to work out the vacancies from 1984 onwards, which could not be filled up due to the ban on recruitment. After working out the vacancies, the RTP candidates are directed to be notionally accommodated against such vacancies, on the basis of their recruitment. Thereafter, the 16 years service for the grant of TBOP benefits shall be worked out on the basis of such list. On completion of 16 years of such service, it has been held that they would be entitled to be granted the TBOP benefits. Arrears are directed to be worked out and paid to the respondents on the said basis. With respect to the MACP, the direction of the CAT is that, the period of 20 years for the second MACP shall be reckoned only from the date of regular appointment. All these Original Petitions are directed against the said common order.

10. According to the Assistant Solicitor General of India (ASGI), the respondents had approached the CAT claiming service benefits that were allegedly due to them, years back. The claims not having been agitated at the appropriate time, they had become barred by time. According to the learned ASGI, the direction of the CAT to work out the vacancies that arose from 1984 onwards would create a lot of complications and needless hardships. Settled seniority positions would become unsettled. Therefore, it is contended that, the order of the Tribunal requires to be interfered with and set aside. According to the learned ASGI, this Court had in Union of India v. K.N. Sivadas (supra) settled the entire issue. This Court had followed the said decision also in Annexure A12 judgment. The decision in Union of India v. M. Mathivanan (Annexure A14) has not held anything to the contra. The fact situation in the said case was different since Mathivanan had been appointed to the Army Postal Service (APS) which made all the difference. The Tribunal has proceeded on the basis that there was no difference between RTP candidates deputed to the APS and the RTP candidates who continued on the civil side, which is wrong. The effect of the order of the Tribunal would be to treat the period of 6 years from 1984 to 1990 as service on promotion, after the lapse of such a long time. The said service would even make changes in the implementation of MACP, in the case of the respondents. It is therefore contended that, the order of the CAT requires to be interfered with.

11. Per contra, the counsel appearing for the respective respondents contend that the order of the CAT is correct and does not call for any interference at all. It is pointed out that, the RTP Scheme is no longer in force, having been abolished, subsequently. The only aspect that requires to be worked out is the number of vacancies that had arisen after 1984, to which the respondents could have been absorbed had it not been for the ban order. According to the counsel for the respondents, the respondents had admittedly worked during the period and therefore, there is no justification for denying to them the benefit of the said service. What requires to be worked out is only the period of additional service that was entitled to be taken into account, for the period from 1984 to 1990. Since the respondents have not been given the benefit of the MACP Scheme, it is contended that the petitioners have no cause for being aggrieved by the said direction. On the above basis, they seek dismissal of the Original Petitions.

12. We have heard the respective counsel, at length. We have also considered the contentions advanced before us, anxiously. We notice that the RTP Scheme that was introduced as per a Circular dated 30.10.1980 was in force only till 4.3.1986, on which date it was abolished. Initially, when the Reserve Trained Pool was created, an additional list of 50% of the notified vacancies used to be created. In 1982, the percentage of RTP was reduced to 15% of the notified vacancies. The Scheme itself has been abolished thereafter, as noticed above. The respondents are persons who were recruited as RTPs. They have been absorbed as regular employees in 1990. The dispute in these cases therefore is limited to the manner in which the service put in by them from the date of their recruitment as RTPs to the date of their absorption should be treated. According to them, the period of their service as RTPs has to be reckoned for the purpose of extending the benefit of the TBOP Scheme as well as the MACP Scheme. Though the Tribunal has found that the respondents were not entitled to the benefits of the MACP Scheme, they have not questioned the said order. In view of the above, the said question does not arise for consideration in these cases.

13. It is not in dispute that, the respondents were all working regularly as Postal Assistants or Sorting Assistants from the time they were recruited till the date of their absorption as regular employees. They were being paid for their service only on hourly basis. Later on, they were paid the salary of regular employees following the decision of the Jabalpur Bench of the CAT in T.A. No. 82 of 1986 dated 16.12.1986. However, the claim of similar employees for regularization and seniority from the date of initial appointment as RTP was rejected by the Ernakulam Bench of the CAT in O.A. No. 1178 of 1996. O.P. No. 21249 of 2000 filed against the said order before this Court was also dismissed as per Annexure A12 judgment dated 16.9.2003 following the decision of the Apex Court in Union of India v. K.N. Sivadas (Supra). Therefore, the claim of the respondents for regularization and grant of seniority from the date of their initial recruitment as RTP has become concluded. However, the fact remains that they were absorbed into regular service during 1990. Their regularization would have taken place much earlier, had there not been a ban on appointments, is the contention. It is not in dispute that, such a ban on appointments was in force during the relevant period. At the same time, the fact remains that, the respondents were also working as RTPs for the only reason that the vacancies that had arisen could not be filled up by absorbing them. The said situation has no doubt, worked prejudice to them. Their only claim is that their regular service should relate back to the date on which they would normally have been regularized had there not been a ban on appointments, for the purpose of grant of TBOP benefits.

14. While considering the

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entitlement of Mathivanan to the benefits of the TBOP Scheme, the Apex Court has in Union of India v. Mathivanan (Supra) (Annexure A14) held that, the period of 16 years service stipulated by the said Scheme was not qualified by the word 'regular'. Therefore, the entire 16 years period of service need not be regular service. The said reasoning applies to the claim for the benefits of the TBOP Scheme made by the respondents in these cases also. The CAT has therefore rightly found that such portion of the RTP Service of the respondents computed from dates on which their entitlement for regularization had arisen would have to be taken into account for computing the benefits of the TBOP Scheme. We find no infirmity in the said reasoning. The difficulty of the appellants in working out the eligible periods of service of the respondents cannot be a ground for denying to them the legitimate service benefits to which they are entitled. They ought to have been given the benefits of such service considering the fact that their regularization had been delayed only because of the ban order that was in force. The petitioners had extracted their labour, keeping them outside the regular stream of service, for a substantial period of time. They had waited in the hope that they would be regularized and had worked on as RTPs, all along. Therefore, there is no justification for denying to them the said benefits. 15. We find from an examination of the order of the CAT that, the Tribunal has been very careful and circumspect in formulating the reliefs that are granted. The CAT has addressed the issues in the proper perspective and has considered all the relevant aspects of the case. Therefore, we find no grounds to interfere with the said order. All the Original Petitions are accordingly dismissed. No costs.