Sunday, October 16, 2011

OA No. 494 OF 2009 on ?????????-10-2010

CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH : BANGALORE

ORIGINAL APPLICATION No. 494 OF 2009

TODAY, THIS THE .........DAY OF OCTOBER, 2010

HON'BLE SMT. LEENA MEHENDALE ... MEMBER (A)

HON'BLE SHRI V. AJAY KUMAR .. MEMBER (J)

Anthony Steven,
S/o (Late) Daniel Crasta,
Aged about 40 years,
working as Group D,
Koramangala VI Block Post Office,
Bangalore – 560 095.
r/o No.19/2, 9th Cross, Maruthinagar,
New Extension, Madiwala,
Bangalore – 560 068. ... Applicant
(By Advocate Shri B. Veerabhadra)
Vs.
1. The Senior Superintendent of Post Offices,
Bangalore South Division,
Bangalore – 560 041.

2. The Principal Chief Post Master General,
Postal, Karnataka Circle, Palace Road,
Bangalore – 560 001.

3. The Director of Postal Services (HQ),
O/o the Principal Chief Post Master General,
Postal, Karnataka Circle, Palace Road,
Bangalore – 560 001.

4. The Union of India,
Rep. By its Secretary,
Department of Posts,
Ministry of Communication and Information Technology,
Dak Bhavan, Parliament Street,
New Delhi – 110 001. ... Respondents
(By Advocate Shri N.Y. Guruprakash,
Addl. Central Govt. Standing Counsel)

O R D E R

Hon'ble Smt. Leena Mehendale, Member (A) :

The cannons of good governance requires that departmental seniors pay timely attention to seemingly minor issues of staff such as posting, regularisation etc., which leads to better employee motivation and reduces number of lititations. We find that the present application necessitates this reminder.
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This application is filed under Section 19 of the Administrative Tribunals Act, 1985 and the applicant seeks to be brought under perview of CCS (Pension) Rules 1972 and not under the perview of new pension scheme which is effective from 1.1.2004 and under which he has to make certain monthly contribution towards his future pension. Further the applicant prays for stoping the recovery from his salary under new pension scheme.

2. The applicant is a Group D employee working as a Casual Labour in the Department of Posts. The convention of the Department is to take casual labours, after fulfilling some conditions including one about number of days of work, are given a temporary Group D status (TS). Thereafter on fulfilment of some further conditions including condition for work in TS for 3 years, they are given a permanent Group D status.

3. The claim of the applicant is that he was given temporary status on 29.11.1989 and completed 3 years in that status on 29.11.1992, after which, he became eligible to be given a permanent status, although the same was actually given to him only on 26.4.2006. In the meantime, he was allowed to draw his monthly increments too. The Department, acting under the instructions of the Department of expenditure contained in OM No.F.No.1(7)(2)/2003/TA/19 dated 14.1.2004, (Annexure R1 - introduction of the new pension scheme) asking the employees who are appointed after 1.1.2004 to pay a monthly instalment towards Pension contribution. The employees appointed before 1.1.2004 were covered under the old CCS (Pension) Rules of 1972 and therefore, not required to make any monthly Pensionary contribution. The claim of the applicant is that the date of eligibility as a permanent status as Group 'D' employee entitles him to the pensionary benefits under the old scheme and therefore, no monthly contribution is due to be deducted from his salary. The claim of the Respondent department is that since the applicant was actually granted permanent status only on 26.4.2006, he is not covered
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by the CCS (pension) scheme of 1972 but, only by the new Pension scheme and therefore, must pay the monthly instalment.

4. This application has a past history which is relevant. The applicant was actually regularised as Group 'D' permanent status on 19.4.2006 but his pay was fixed at the minimum of the scale of Rs.2550-3200 thus ignoring all the increments he had drawn while working as Group 'D' TS. His representation was rejected by stating that his pay in the entry grade was fixed at minimum as the amount drawn as wages prior to appointment as Group'D' permanent status could not be counted for pay fixation . However, this goes contrary to the instructions issued by the Department of Personnel and Training vide their memorandum dated 9.5.2008 which states that the pay of the casual labour with temporary status on their regularisation against Group 'D' post will be fixed after taking into account the increments already earned by them in the Group 'D' payscale. While the department seems to have observed these instructions during the period he was working as a casual labour with (TA), the same benefit was rejected when he was given the permanent stauts. Being aggrieved he filed an OA No.221/2008 which was decided by this Bench on 7.11.2008 directing the respondent department to give him all the benefits of the increments drawn while working as casual labour (TA) and refix his pay and also give him all the arrears in the matter. The said decision also makes a reference to consider his petition dated 14.12.2007 asking formaking his past service as casual labour (TA) eligible for pension and other pensionary benefits. Further, in that OA the applicant had requested as below-
"Orders may also be passed protecting my past services making it eligible for pension and other pensionary benefits".

Dealing with question of pension as prayed for this Tribunal had directed as below:
It is for the applicant to pursue the matter further with the respondents regarding counting of service rendered as Temporary Status Casual Labour (after completion of 3 years as Temporary Status Casual Labour). ........ If the applicant is aggrieved by the decision of the respondents regarding counting of past service, he is free to approach this Tribunal if his grievance is based on sound grounds."


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5. In response to the request of the applicant dated 14.12.2007 for counting of his services as casual labour (TS) towards pensionary benefits or the directions of this Bench in the OA mentioned above, the department has not yet come to any decision. In effect his pensionary benefits stand granted only w.e.f. 19.4.2006 i.e., the date of his regularisation in Group 'D'. The applicant claims that the effect of this order is severe because the new scheme of pension introduced w.e.f. 1.1.2004 necessitates the employee to pay a monthly amount towards contribution to his provident account, this being in great contrast to the older scheme of pension (CCS (Pension) Rules 1972) under which the employee was not required to make any pension contribution. The representations made by the applicant dated 15.12.2008 (Annexure A3), 3.8.2009 (Annexure A4) and 5.10.2009 (Annexure A5) were not considered by the respondent department despite the direction of this Tribunal in OA No.221/2008. Hence the applicant has filed this OA for directing the respondents to hold him eligible under the CCS (Pension) Rules, 1972 and stop his recovery towards pension contribution.

6. The learned Counsel for applicant argued mainly on the ground that the applicant was given casual labour temporary status on 29.11.1989 and after completion of 3 years was entitled to be given regular status in Group 'D' w.e.f. 29.11.1992. It is due to the delay caused by the department that he was given permanent status in Group 'D' only w.e.f. 17.4.2006 and that too without considering the benefits of the annual increments drawn by him while serving as casual labour (TS). Thus he was entitled to a permanent status in Group 'D' w.e.f. 29.11.1992 as well as to pensionary benefits under CCS (Pension) Rules, 1972. In support he has submitted at Annexure A6, the letter dated 30.11.1992 of Department of Posts under Swamy's compilation. This is a clarification as to the pension and terminal benefits, under which at para-5 a Supreme Court judgement dated 29.11.1999 has been quoted that on completion of 3 years of continuous service with TS the casual labour shall be treated on par with the temporary Group 'D' employees of the Department of Post and would thereby they are entitled to such benefits as are
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eligible to Group 'D' employees on regular basis. Further at para-5.2.3 there is a clear mentioned of pensionary benefits to be given on the same lines as in case of temporary employees appointed on regular basis. Further, the learned Counsel for applicant has quoted at Annexure A8 the decision given by the coordinate Bench of this Tribunal at Mumbai in OA No.639/2007 where it was held that the service rendered under temporary status should be counted for the purpose of retirement benefits after regularising as a regular Group 'D' official. The Mumbai Bench further observed that if a certain applicant has completed 3 years of service after being confered temporary status then he is entitled for pension. Thus the Mumbai Bench has held that service rendered even as temporary status is to be counted for pensionary benefits after the said casual labour is regularised. The Mumbai Bench have also relied on the judgement given by the Chandigarh Bench of this Tribunal in the case of Badri and others V. Union Territory, Chandigarh and others (2004 (1) AISLJ (CAT) 204) which also held similarly.

7. The learned Counsel for the respondents although relied on the averments made in the reply statement, also conceded that the sole ground advanced by the respondent department was that the actual order of putting the applicant as regular Group 'D' official was w.e.f. 17.4.2006. He, however, conceded that in view of the decision of the Mumbai Bench of the Tribunal the claim of the applicant appears justified. He pointed out the portion in the reply statement to say that : "However, the matter was taken up with the Director General, Department of Posts, New Delhi (Respondent No.4) to take decision regarding counting of service for the purpose of pension and terminal benefits, extension of benefits under CCS (Pension) Rules, 1972, for which the reply of the Director General is still awaited." However, Respondents-2&3 have failed to mention what efforts they have taken to remind the D.G.

8. In view of the above, we see no reason for allowing the department to wait till the decision of the D.G. We hold that the applicant became entitled to permanent status
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on the date of the completion of 3 years as casual labour (TS) i.e., w.e.f. 29.11.1992 and must be given the pensionary benefits under older Scheme i.e, CCS (CCA) Rules, 1972. As such,
(a) the department must issue orders holding him eligible for pensionary benefits under the Rules, 1972 w.e.f. The date when he was granted casual
labour Temporary status.
(b) discontinue recovery towards contribution under new scheme and
(c) refund the money recovered, so far, if any – towards pension.
In view of the judgement of Mumbai Bench in OA No.639/2007 the responsdent had a responsibility not to allow this application to linger on. Therefore the department is well advised to take a review of all such representations pending with them and proceed to grant relief on the lines as indicated by the Mumbai Bench. We reiterate that there is no substitute to administrative efficiency and the Government Department have a responsibility to ensure efficient redressal of grievances of their employees failing which they only increase the work of the Tribunal and cause undue hardship to genuine employees. The present case being a classic example of the same, we deem it fit to impose a cost of Rs.2000/- on the department.
The application is thus allowed. The relief directed at (a), (b) and (c) above should be given within 2 months. No order as to costs.


(V. AJAY KUMAR) (LEENA MEHENDALE)
MEMBER(J) MEMBER(A)
sd.







CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH : BANGALORE

ORIGINAL APPLICATION No.494 OF 2009

Draft judgement/order in the above said OA is placed below for approval /signature.

(LEENA MEHENDALE)
MEMBER(A)

HON'BLE MEMBER(J), SHRI V. AJAY KUMAR

CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH : BANGALORE

ORIGINAL APPLICATION No. 494 OF 2009

TODAY, THIS THE .........DAY OF OCTOBER, 2010

HON'BLE SMT. LEENA MEHENDALE ... MEMBER (A)

HON'BLE SHRI V. AJAY KUMAR .. MEMBER (J)

Anthony Steven,
S/o (Late) Daniel Crasta,
Aged about 40 years,
working as Group D,
Koramangala VI Block Post Office,
Bangalore – 560 095.
r/o No.19/2, 9th Cross, Maruthinagar,
New Extension, Madiwala,
Bangalore – 560 068. ... Applicant
(By Advocate Shri B. Veerabhadra)
Vs.
1. The Senior Superintendent of Post Offices,
Bangalore South Division,
Bangalore – 560 041.

2. The Principal Chief Post Master General,
Postal, Karnataka Circle, Palace Road,
Bangalore – 560 001.

3. The Director of Postal Services (HQ),
O/o the Principal Chief Post Master General,
Postal, Karnataka Circle, Palace Road,
Bangalore – 560 001.

4. The Union of India,
Rep. By its Secretary,
Department of Posts,
Ministry of Communication and Information Technology,
Dak Bhavan, Parliament Street,
New Delhi – 110 001. ... Respondents
(By Advocate Shri N.Y. Guruprakash,
Addl. Central Govt. Standing Counsel)


O R D E R

Hon'ble Smt. Leena Mehendale, Member (A) :


























The cannons of good governance requires that departmental seniors pay timely attention to seemingly minor issues of staff such as posting, regularisation etc., which leads to better employee motivation and reduces number of lititations.
This application is filed under Section 19 of the Administrative Tribunals Act, 1985 and the applicant seeks to be brought under perview of CCS (Pension) Rules 1972 and not under the perview of new pension scheme which is effective from 1.1.2004 and under which he has to make certain monthly contribution towards his future pension. Further the applicant prays for stoping the recovery from his salary under new pension scheme.

2. The applicant is a Group D employee working as a Casual Labour in the Department of Posts. The convention of the Department is to take casual labours, who, after fulfilling some conditions including one about number of days of work, are given a temporary Group D status. Thereafter on fulfilment of some further conditions including condition for work in TS for 3 years they are given a permanent Group D status.

3. The claim of the applicant is that he was given temporary status on 29.11.1989 and completed 3 years in that status on 29.11.1992, after which, he became eligible to be given a permanent status, although the same was actually given to him only on 26.4.2006. In the meantime, he was allowed to draw his monthly increments too. The Department, acting under the instructions of the Department of expenditure contained in OM No.F.No.1(7)(2)/2003/TA/19 dated 14.1.2004, introduced the new pension scheme (Annexure R1) asking the employees who are appointed after 1.1.2004 to pay a monthly instalment towards Pension contribution. The employees appointed before 1.1.2004 were covered under the old CCS (Pension) Rules of 1972 and therefore, not required to make any monthly Pensionary contribution. The claim of the applicant is that the date of eligibility as a permanent status as Group 'D' employee entitles him to the pensionary benefits under the old scheme and therefore, no monthly contribution is due to be deducted from his salary. The claim of the Respondent department is that since the applicant was actually granted permanent status only on 26.4.2006, he is not covered by the CCS (pension) scheme of 1972 but, only by the new Pension scheme and therefore, must pay the monthly instalment.

4. This application has a past history which is relevant. The applicant was actually regularised as Group 'D' permanent status on 19.4.2006 but his pay was fixed at the minimum of the scale of Rs.2550-3200 thus ignoring all the increments he had drawn while working as Group 'D' Temporary Status. His representation was rejected by stating that his pay in the entry grade was fixed at minimum as the amount drawn as wages prior to appointment as Group'D' permanent status could not be counted for pay fixation . However, this goes contrary to the instructions issued by the Department of Personnel and Training vide their memorandum dated 9.5.2008 which states that the pay of the casual labour with temporary status on their regularisation against Group 'D' post will be fixed after taking into account the increments already earned by them in the Group 'D' payscale. While the department seems to have observed these instructions during the period he was working as a casual labour with temporary status, the same benefit was rejected when he was given the permanent stauts. Being aggrieved he filed an OA No.221/2008 which was decided by this Bench on 7.11.2008 directing the respondent department to give him all the benefits of the increments drawn while working as casual labour (temporary status) and refix his pay and also give him all the arrears in the matter. The said decision also makes a reference to consider his petition dated 14.12.2007 for .................. Annexure . Further, in that OA the applicant had requested as below-
"Orders may also be passed protecting my past services making it eligible for pension and other pensionary benefits".

This prayer mentions "Pensionary service as he has become Temporary Group D from 26.11.92 and accordingly modify the memo in No.B2/2-2/65-I/05-06 dated 17.4.2006 (Annexure A3) as it does not indicate the service benefits as well as the pay protection.

Dealing with question of pension as prayed for this Tribunal had directed as below:
It is for the applicant to pursue the matter further with the respondents regarding counting of service rendered as Temporary Status Casual Labour (after completion of 3 years as Temporary Status Casual Labour). ........ If the applicant is aggrieved by the decision of the respondents regarding counting of past service, he is free to approach this Tribunal if his grievance is based on sound grounds."


5. In response to the request of the applicant for counting of his services as casual labour (TS) towards pensionary benefits, the department has held that this cannot be done and his pensionary benefits can be granted only w.e.f. 19.4.2006 i.e., the date of his regularisation in Group 'D'. The applicant claims that the effect of this order is severe because the new scheme of pension introduced w.e.f. 1.1.2004 necessitates the employee to pay a monthly amount towards contribution to his provident account, this being in great contrast to the older scheme of pension (CCS (Pension) Rules 1972) under which the employee was not required to make any pension contribution. The representation made by the applicant dated 15.12.2008 (Annexure A3), 3.8.2009 (Annexure A4) and 5.10.2009 (Annexure A4) were not considered by the respondent department despite the direction of this Tribunal in OA No.221/2008. Hence the applicant has filed this OA for directing the respondents to hold him eligible under the CCS (Pension) Rules, 1972 and stop his recovery towards pension contribution.

6. The learned Counsel for applicant argued mainly on the ground that the applicant was given casual labour temporary status on 29.11.1989 and after completion of 3 years was entitled to be given regular status in Group 'D' w.e.f. 29.11.1992. It is due to the delay caused by the department that he was given temporary status in Group 'D' only w.e.f. 17.4.2006 and that too without considering the benefits of the annual increments drawn by him while serving as casual labour (TS). Thus he was entitled to a permanent status in Group 'D' w.e.f. 29.11.1992 as well as to pensionary benefits under CCS (Pension) Rules, 1972. In support he has submitted at Annexure A6, the letter dated 30.11.1992 of Department of Posts under Swamy's compilation. This is a clarification as to the pension and terminal benefits, under which ....... Further, the learned Counsel for applicant has quoted at Annexure A8 the decision given by the coordinate Bench of this Tribunal at Mumbai where it was held that the service rendered under temporary status should be counted for the purpose of retirement benefits after regularising as a regular Group 'D' official. The Mumbai Bench further observed that if a certain applicant has completed 3 years of service after being confered temporary status then he is entitled for pension. Thus the Mumbai Bench has held that service rendered even as temporary status is to be counted for pensionary benefits after the said casual labour is regularised. The Mumbai Bench have also relied on the judgement given by the Chandigarh Bench of this Tribunal in the case of Badri and others V. Union Territory, Chandigarh and others (2004 (1) AISLJ (CAT) 204) which also held similarly.

9. The learned Counsel for the respondents although relied on the averments made in the reply statement, also conceded that the sole ground advanced by the respondent department was that the actual order of putting the applicant as regular Group 'D' official was w.e.f. 17.4.2006. He, however, conceded that in view of the decision of the Mumbai Bench of the Tribunal the claim of the applicant appears justified. He pointed out the portion in the reply statement to say that : "However, the matter was taken up with the Director General, Department of Posts, New Delhi (Respondent No.4) to take decision regarding counting of service for the purpose of pension and terminal benefits, extension of benefits under CCS (Pension) Rules, 1972, for which the reply of the Director General is still awaited." Although the Counsel also represents the D.G. (Respondent-3), he could not comment on the reason for pendency by the DG.

10. In view of the above, we see no reason for allowing the department to wait till the decision of the Respondent-4. We hold that the applicant became entitled to permanent status on the date of the completion of 3 years as casual labour (TS) i.e., w.e.f. 29.11.1992 and must be given the pensionary benefits under older Scheme i.e, CCS (CCA) Rules, 1972. As such,
(a) the department may issue orders holding him eligible for pensionary benefits uner the Rules, 1972 and
(b) discontinue his continuation under new scheme and
(c) refund all the money recovered, if any.
In view of the judgement of Mumbai Bench in .............. the responsdent had a responsibility not to allow this application to linger on. Therefore the department well advised to take a review of all such representations pending with them and proceed to grant relief on the lines as indicated by the Mumbai Bench in case No......... We reiterate that there is no substitute to administrative efficiency and the Government Department have a responsibility to ensure efficient redressal of grievances of their employees failing which they only increase the work of the Tribunal and cause undue hardship to genuine employees.
The application is thus allowed. The relief directed at (a), (b) and (c) above should be given within 2 months. No order as to costs.


(V. AJAY KUMAR) (LEENA MEHENDALE)
MEMBER(J) MEMBER(A)
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