Santosh Napit v. ……
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 2873 of 2013 Santosh Napit Versus ……… Petitioner 1. 2. 3. 4. 5. 6. 7. The Union of India, through the Secretary, Ministry of Posts, New Delhi The Director of Accounts (P), Department of Posts, Patna (Bihar) The Chief Postmaster General, Bihar Circle, Patna The Postmaster General, Ranchi The Senior Superintendent of Post Offices, Dhanbad Division, Dhanbad The Senior Postmaster, Department of Posts, Dhanbad The Postmaster Head Post Office, Bokaro Steel City, District Bokaro ……… Respondents CORAM: Hon’ble The Acting Chief Justice Hon’ble Mr. Justice Deepak Roshan -------- -------- For the Petitioner For the Respondents : Mr. S.K. Sharma, Advocate : Ms.Vibha Buxi, Advocate. 14/ 05.01.2023
Facts
Heard learned counsel for the parties. -------- 2. The instant writ application has been preferred by the petitioner praying therein for quashing the order dated 31st January, 2013 passed by the Central Administrative Tribunal, Patna Bench, Patna, Circuit Court at Ranchi in O.A. No. 225/2012 (R) whereby the learned tribunal has dismissed the application of the petitioner and refused to grant retiral benefits to the petitioner on the ground that he is not entitled to pension as he was not regularized before his superannuation. 3. The brief facts of the case as indicated in the writ application is that the petitioner was appointed as water-man on 11.05.1965 on daily wages and since his appointment as part-time Waterman worked sincerely and to the best of his ability. The petitioner made several representations to the concerned authorities for regularization of his services. The Postmaster General, Ranchi (Respondent No.4) on 31.01.1995, in course of his visit to Jharia S.O., directed Senior Superintendent of Post Offices, Dhanbad Division, Dhanbad (Respondent NO. 5) to do the needful with respect to regularization of services of the petitioner. Accordingly, the case of the petitioner was examined in the light of Directorate Letter No. 45- 14/1L/SPB-I dated 16.09.1992, circulated vide C.O. Patna Letter No. Est/E-34/RS (VII)/Rlg/Ch II dated 06.11.1992 and it was ordered to make the petitioner fulltime casual labourer. The S.P.M., Jharia assigned the petitioner the duty of Packer attached in the night of P.O. at Jharia and fixed his duty hours for six -2- hours as waterman and for two hours as Packer w.e.f. 26.04.1996. Thereafter, the Senior Superintendent of Post Offices, Dhanbad Division, Dhanbad (Respondent No. 5) vide Memo No. A-1/C-L/Dig dated 21.06.1996 (Annexure-1) in supersession of all previous orders directed that petitioner would be paid wages for eight hours duty on pro rata basis equal to minimum of the scales of Gr. “D” official of the corresponding cadre w.e.f. 26.04.1996. The Respondent No.5 vide Memo No. A-1/Casual Labourer/Dlg dated 04.06.1998 (Annexure-2) in pursuance of Letter No. 45-05/97/S.P.O. I dated 12.04.1991 conveyed under Chief P.M.G. Patna Letter No. Est/E34/MS/6/Rlg dated 26.4.1991, conferred temporary status on the petitioner w.e.f. 26.4.1997. The petitioner worked regularly after being conferred temporary status and on 30.04.2009 he retired from service on attaining the age of superannuation which he was informed vide Memo No. C1-14/4/2009 dated 15.04.2009 (Annexure-3). 4.
Legal Reasoning
by a coordinate Bench of this court in W.P.(S) No. 2550 of 2017 (Union of India through the Chief Postmaster General and Others Versus Kamla Devi reported in 2020 SCC OnLine Jhar 1195), in which one of us (Aparesh Kumar Singh, A.C.J.) was a member. The order has dealt a similar issue after dealing with various Apex Court judgments and held at Paragraph 12 as under: to “12. We have conferred anxious consideration the rival submissions of the learned counsel for the parties in the factual conspectus of the case made out from the pleadings on record and the legal position rendered by decisions of the Apex Court on the very issue concerning grant of pensionary benefits to employees in confirmed capacity in Group „D‟ post under the Post and Telegraph Department. The undisputed facts of the case reveal that the applicant‟s husband, engaged as a casual labourer at Tatanagar RMS since 13th February 1980 was conferred with the status of temporary status casual labourer on 29th November 1989 and remained as such at the time of his death, except for a brief period from 1st February, 2002 till 27th February 2004 as a Group „D‟ (Mailman). He had neither completed 10 years of qualifying service under Group „D‟ post till the time of death nor the decision to revert him to temporary status had ever been challenged. The decisions rendered in the case of Bhim Ram by this Court stands affirmed by the Apex Court since the Special Leave Petition stood dismissed by order dated 16th April 2019. Moreover, the legal issue stands affirmed by the Apex Court in the decisions rendered in Civil Appeal Nos. 13675-13676/2015 (Union of India v. The Registrar) and Civil Appeal No. 8497 of 2019 (Union of India v. Gandiba Behera). All -6- these cases relate to claim of pensionary benefits of the corfirmed Group „D‟ employees in the Postal Department who had not completed 10 years of qualifying service in terms of the CCS Pension Rules 1972. Their claim for counting their services as Extra Departmental Agents or in temporary capacity to fill up the shortfall of 10 years was also not accepted by the Apex Court as there was no power or jurisdiction to relax the statutory qualifying condition. The circular dated 12th April, 1991 in particular has been taken note of in the case of Union of India v. The Registrar.” 9. We are of the considered view that the learned tribunal has given cogent reasons in refusing the prayer of the petitioner and this court does not find any infirmity with the same, hence the instant application is dismissed. (Aparesh Kumar Singh, A.C.J.) (Deepak Roshan, J.) s.m.
Arguments
Mr. S.K. Sharma, learned counsel for the petitioner submits that clause 8 of the circular contained in GI, Department of Post, LR No.45-05/97/S.P.O.I. dated 12.04.1991 (Annexure A to the counter affidavit) shows that after rendering three years of continuous service after conferment of temporary status casual laborers would be considered at par with temporary Group D for the purpose of contribution of GPF. Department of post has issued circular contained in GI department of Post LR No. 66-9/99-SPBI dated 30/11/1992, pursuant to directions of Hon’ble Apex Court dated 29.11.1989 reported in 1990 (Supp) SCC 113 (Jagriti Mazdoor Union Registered & Ors vs Mahanagar Telephone Nigam Ltd), wherein Hon’ble Apex Court has held that after rendering three years of continuous service with temporary status casual labours should be treated at par with Temporary Group D employees of department of post and thereby entitled to such benefits as are admissible to Group D employees on regular basis. From the circular contained in GI Department of Personnel & Training O.M. No. 49014/1/2004-Estt. (C) dated 26th April, 2004, it would appear that department of posts has stopped deduction of GPF and returned the same only after introduction of new pension scheme Modification of Casual Labour (Grant of Temporary status and Regularization) Scheme which has came into existence in the year 2004. The scheme is for new recruits for their pensions. -3- Learned counsel further submits that from perusal of the Government Circulars it would be pertinent that after rendering three years of service after conferment of temporary status, casual labours became at par with temporary Group D employee and their service books were opened and like any other Group D employee, they were also allotted accommodation from the general pool. He further contended that the petitioner vide memo no. CI 14/4/2009 dated 15.4.2009 (Annexure -3 to the writ application) was informed wherein his status has been shown as Group D Jharia S.O. Learned counsel reiterated that after rendering three years of continuous service after conferment of temporary status w.e.f. 26.4.1997, petitioner did not remain a casual hand as held by the Tribunal and became at par with temporary Group D employees. The findings of the learned Tribunal that C.C.S. (Pension) Rules, 1972 and CCS (T.S.) Rules, 1965 will not apply to the case of the petitioner as he being a casual hand is nothing but perverse. Learned counsel heavily contended that in view of facts and circumstances of the present case Central Civil Services (Temporary Service) Rules, 1965 will apply to the case of the petitioner as after rendering three years of continuous service with temporary status he no more remained casual hand; rather became Temporary Group D employee. He lastly submits that the petitioner superannuated on 30.4.2009 after rendering 12 years of continuous service with temporary status without being regularized as Regular Group D and he has rendered more than 10 years of service after conferment of temporary status w.e.f. 26.04.1997 and is entitled to terminal benefits as contained in Section 10 (1-B) of CCS (T.S.) Rule, 1965 vis a vis CCS(Pension) Rule, 1972. 5. Learned counsel for the respondents relied upon its counter affidavit and submits that the service of the petitioner was conferred temporary status vide letter dated 12.04.1991 but was never regularized as Group D till his retirement, hence no retirement benefit has been extended to him, inasmuch as, temporary status official is not entitled to get retirement benefit. She further submits that in supersession of DG Letter dated 12.4.1991 the benefit of G.P.F. and G.I.S. to the temporary status official was withdrawn by the Department and the amount deposited in G.P.F. -4- and G.I.S. was refunded to all temporary status officials and as per the aforesaid letter only the pay and salary is drawn at par with Group D official to the temporary status casual labourer and by no stretch of imagination the petitioner is entitled for retiral benefit. In crux, the main stand of the respondents is that the petitioner though was given temporary status with effect from 26.04.1997 but since was not regularized before superannuation and hence not entitled to pensionary benefits as per the CCS (Pension) Rules, 1972 and the petitioner retired as a temporary status casual labour and thus, not entitled to terminal benefits. 6. Having heard learned counsel for the parties and after going through the documents available on record and the provisions of the relevant Central Services Rules, it appears that the S.P.M., Jharia assigned the petitioner the duty of a Packer in the night post office at Jharia and fixed his duty hours as six hours as Water Man and 2 hours as Packer with effect from 26.04.1996. Accordingly, the petitioner was ordered to be paid wages for eight hours duty on pro rata basis equal to minimum of the scale of Group D official of the corresponding cadre with effect from 26.4.1996 vide order dated 21.6.1996. Since the petitioner was performing as full-time casual worker with effect from 21.6.1996, he represented for granting of temporary status. The respondent department after consideration and in pursuance of Secretary Post, New Delhi letter no. 45-05/87/SPB I dated 12.4.1991, conferred the temporary status with effect from 26.4.1997 and the relevant memo was showing the terms and conditions as instructed in Secretary Post New Delhi letter dated 12.04.1991. In supersession of D.G. Letter dated 12.4.1991, the benefit of G.P.F. and G.I.S. to the temporary status official was withdrawn by the department and the amount deposited in G.P.F. and G.I.S. was refunded to all the temporary status officials and as per the said instruction only the pay and salary is drawn at par with Group D officials. 7. From the aforesaid factual finding as emerges from relevant documents it clearly transpires that the applicant was a full-time casual worker on regular scale of pay as Group D; however, he was never regularized. It further transpires that he had neither been screened or medically examined for the purpose of being be regularized so as to grant him some concession. As he was a casual worker, CCS Pension -5- rules do not apply to him. Even CCS (TS) Rules also did not apply to him. In this regard, instruction of 1991 entitles him for the benefit of counting service for the purpose of pension and terminal benefits as in the case of temporary employees appointed on regular basis for those temporary employees who has been given temporary status and who completed three years of service in that status while granting them pension and retiral benefits after their regularization. At the cost of repetition, the petitioner was performing duty as temporary status and was not regularized as Group D post till his retirement/superannuation on 30.04.2009. As aforesaid, as per the government’s letter quoted hereinabove the pay and salary is given at par with Group D officials to the temporary status casual workers but those type of workers were not entitled to retiral benefits and since the petitioner retired from service without regularization the learned tribunal has rightly rejected his claim with regard to pension and other benefits to which the regular employees are entitled. 8. In this regard, reference can be made to the order passed