Union
of India & ANR Vs. K.N. Sivadas
& Ors [1997] Insc 638 (1
August 1997)
SUJATA
V. MANOHAR, M. JAGANNADHA RAO
ACT:
HEADNOTE:
[With
Civil Appeal No. 5268/97 {@ SLP[C] No. 17422/95}, Civil Appeal Nos. 126/96,
124-125/96, 127-130/96 & 131/96]
Mrs. Sujata V. Manohar. J.
Leave
granted in S.L.P.(C) No. 17422 of 1995.
Application for impleadment in
C.A. Nos. 124-125/96 are allowed.
The
respondent in these appeals were, at the material time, in the Reserved Trained
Pool of Post and Telegraphs Department, Government of India. After the
bifurcation of the two departments in the year 1988 the respondents continued
in the Reserved Trained Pool of their respective departments.
The
Reserved Trained Pool was set up in October 1980.
Under
a circular bearing 60/36/80-SPB I dated 30th of October, 1980 issued by the
office of the Director General, Indian Posts & Telegraphs Department, a
scheme was framed for constitution of a standing pool of trained reserved
candidates for Post and RMS offices. The circular set out that in may operative
offices the smooth flow of work was hampered by shortage of staff due to
absenteeism and other cause. Meeting this shortage with overtime arrangements
was not always a satisfactory solution. Hence it was decided that a standing
pool of trained reserve candidates (hereinafter referred to as RTPs) should be formed in each recruiting unit to meet
these short-time needs and recurrent needs. The scheme was made applicable the
cadres of Postal Assistants and Sorting Assistants. As per existing practice,
at the time of each recruitment, after the select list
was drawn up. an additional list of candidates known
as Part `B' or part II list was being prepared by each recruiting unit.
The
candidate in part `B' list were called up against drop- outs from the main
list. They were imparted training only after they were brought to the main
list. It was now proposed under the new scheme that after the main list is
drawn up, a specific additional reserve list of
candidates equal in number to 50% of the number of candidates in the main
select list will be drawn up. The candidates in the reserve list will also be
imparted training like the candidates in the main list. The candidates in the
reserve list will constitute a standing pool of trained reserve.
They
will be absorbed in regular vacancies in their turn after the candidates in the
main list are absorbed. Till then they will be used as short duty staff against
vacancies due to absenteeism or any other reason. Besides, they will be used
for handling peak hour work. Since the purpose of having them as short duty
staff is to minimise staff shortages, they may be
called for engagement depending upon their ready and easy availability on
demand and not necessarily in the order of their position in the reserved list.
Their eventual absorption, however, will be in the order of their merit. They
may be employed accordingly to needs but subject to a maximum of eight hours a
day. They will be paid on hourly rates of wages. Clause 5 of the circular
provides for the manner of absorption. It say that
reserved candidate are recruited as a stand-by over and above the vacancies
announced at the time of recruitment.
The
surplus recruited candidates will be given priority of absorption against
vacancies for subsequent recruitment in the manner which is set out in that
clause.
This
scheme was in operation from the date of the circular till 4.3.1986 when the
scheme was abolished. The initial creation of reserved pool was on the basis of
50% of the notified vacancies. In 1982, the percentage of reserved pool was
reduced to 15% of the notified vacancies. The entire scheme was abolished with
effect from 4.3.1986. The respondents in the appeals were recruited as RTPs. They have been since absorbed as regular employees on
various dates from 1988 to January 1990 (with a few exception as hereinafter
set out) The respondents filed applications before different Benches of Central
Administrative Tribunal claiming reliefs similar to
those which were granted to casual labours in their
department in view of a scheme framed for casual labourers
in the year 1989 as per the directions given by this Court in Jagrit Mazdoor Union (Regd.) and Ors. v. Mahanagar
Telephone Nigam Ltd. and Anr.
(1990 Supp SCC 113).
The
respondents prayed that the benefits which were given to the casual labourers under the scheme which came into effect in the
year 1989 should be given to them with effect from the date they were recruited
as RTPs till the date of their absorption as regular
employees. The first of such application came up before the Central
Administrative Tribunal, Ernakulam Bench which is the
before the Central Administrative Tribunal, Ernakulam
Bench which is the subject-matter of CA Nos. 80-123 of 1996. The Tribunal
directed that the applicants before them who had been rendering service for
eight hours a day continuously, on completion of one year of such service
should be deemed to have attained temporary status and half the period of eight
hours a day should be counted for qualifying service for pension. It also
directed that all other benefits made available to casual mazdoors
after attaining temporary status should be extended to the applicants as set
out therein and that the applicants should be paid productivity linked bonus
during the period when they were RTPs if they had
completed 240 days of service each year for three years after their recruitment
as RTP candidates. Similar reliefs have been given by
the Hyderabad Bench of the Tribunal also.
Hence
the department had filed the present appeals from these judgments of different
benches of the Tribunal.
The
directions given by the Central Administrative Tribunal are based upon a
decision of this Court in Jagrit Mazdoor
Union (Regd.) and Ors. v. Mahanagar Telephone Nigam Ltd.
& Anr., (1990 Supp SCC 113) (Supra). This
judgment was in respect of writ petitions which were filed either by casual labourers, or by reserved trained pool employees.
This
Court after referring to certain interim orders passed in various petitions
before it, referred in paragraph 5 to the scheme known as Casual Labourers (Grant of Temporary Status and Regularisation) Scheme which had been formulated and put
into operation from 1st of October, 1989. It said, "we find that the
scheme is comprehensive and apart from provision for conferment of temporary
status, it also specifies the benefits available on conferment of such
status......In these circumstance, no further specific direction is necessary
in the two application relating to the two Nigams of
Bombay and Delhi except calling upon the respondent to implement every term of
the scheme at an early date." In paragraph 6, this Court dealt with the
two remaining writ petitions by the RTP employees in the Department of Posts.
It has recorded that after April 1986, about 7,000 RTPs have been absorbed. It said "Since the RTP
category is no more expanding, only about 2900 of them
remain to be absorbed. We have been told by learned counsel for the department
that equal number of justified and supernumerary posts are
being created by the ministry. The ministry's proposal is in the hands of the
Ministry of Finance for approval and is excepted to be
finalised soon.
This
has to be done within a time frame and we direct the posts of both the
categories to be created by the end of January 1990, and the process of
absorption to be completed by March 31, 1990. With such absorption made, the RTPs will become regular employees. All their claims would,
thereafter, be regulated on the basis of entitlement in accordance with extant
rules." The judgment was delivered in November 1989. The expected sanction
was obtained and all RTPs have been absorbed as
regular employees in January 1990.
Are
reserved trained pool employees prior to their absorption as regular employees,
entitled to the benefits which have been given to casual labourers
under the Casual Labourers (Grant of Temporary Status
and Regularisation) Scheme framed under the circular
No.45-95/87-SPB I, dated 12.4.1991 issued by the Ministry of Communication,
Government of India, Department of Posts and brought into effect from
29.11.1989? The Casual Labourers (Grant of Temporary
Status and Regularisation) Scheme sets out that in
compliance with the directions of the Hon'ble Supreme
Court, a scheme was drawn up by this department in consultation with the Ministries
of Law, Finance and Personnel and President had been pleased to approve the
scheme. The scheme provided that temporary status would be conferred on casual labourers in employment as on 29.11.1989 and who continue
to be currently employed and have rendered continuous service for at least on
year. During the year they must have been engaged for a period of 240 days. The
scheme gives various benefits to casual labourers
which are conferred with effect from 29.11.1989. A casual labourer,
therefore, is not given under the scheme any benefits prior to 29.11.1989.
Under the scheme temporary status is conferred on casual labourers
if thy fulfil the various
conditions and requirements laid down in the scheme. Clause 7 provides that
conferment of temporary status does not automatically imply that the casual labourers would be appointed as regular Group `D' employees
with any fixed time frame. Appointment to Group `D' vacancies will continue to
be done as per the extant recruitment rules, which stipulate preference to
eligible ED employees. Therefore, various benefits which go with the conferment
of temporary status were given to these casual labourers
in view of the fact that their eventual absorption as regular employees was not
to be within any fixed time and they were not automatically entitled to become
regular employees.
The
position of RTPs is quite different. In the first
place, the very scheme which 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 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 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.
Among
the various benefits the Tribunal gave to the respondents (RTPs)
productivity linked bonus if they had put in, like casual labourer,
240 days of service each year for three years or more on the basis of its
judgment in O.A. 612/89 and O.A. 171/89. The appellants have submitted that
although the order in these two O.As. was not challenged in appeal, it should not be automatically
made applicable to all RTPs. The appellants have
relied upon the observation of this Court in State of Maharashtra
v. Digambar (1995 4 SCC 683) to the effect, inter alia, that non-filing of an appeal before this Court by the
State in similar matter, by itself cannot operate as a fetter for this Court in
entertaining special leave petitions subsequently filed even if they are
considered as relating to similar matter when this Court finds that the relief
which was granted was wrong; specially when there is every possibility that
such relief may continue to be granted to other complainants who may go before
that forum, which may ultimately result in a big financial loss to the State.
There is substance in this submission because we find that the reliefs which were granted by the Tribunal are wholly
unwarranted, looking to the service conditions of RTPs
as compared to the service conditions of 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 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.
In the
premises, all these appeals are allowed, the impugned judgments of the Tribunal
are set aside and the original application filed before the Tribunal are
dismissed. There will, however, be no order as to costs.
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