Thursday, November 1, 2012

OA No. 36/2008 on ??????????



TODAY, THIS THE ......... DAY OF .................., 2011


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

D. Sampath Kumar,
S/o J.B. Dominic,
Aged about 46 years,
Working as Lab. Attendant,
O/o the Director,
Central Frozen Semen Production & Training Institute,
Hessarghatta, Bangalore – 560 088.
R/o  Type-I, Quarters,
CFSP &TI, Hessarghatta,
Bangalore – 560 088.                                  ...                                 Applicants

(By Advocate Shri B. Veerabhadra)


1. The Director,
   Central Frozen Semen Production & Training Institute,
   Hessarghatta, Bangalore – 560 088.

2. The Director (AH),
   Department of Animal Husbandry, Dairying & Fisheries,
   Krishi Bhavan, New Delhi – 110 001.

3. The Union of India,
   Rep. by its Secretary,
   Ministry of Agriculture,
   Department of Animal Husbandry, Dairying & Fisheries,
   Krishi Bhavan, New Delhi – 110 001.               ...                         Respondents

(By Advocate Shri V.N. Holla, ACGSC)


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

            This OA filed on 23.01.2008, under Section 19 of the Administrative Tribunals Act, 1985, is to contest a short point as reflected in prayer at para 8 (ii) of the OA, namely:-
"to direct the respondents to consider the case of the applicant to count the entire service rendered on casual basis, prior to grant of temporary status for the purpose of ACP and for the grant of the pay scale of Rs.3050-75-3950-80-4590/- on 1st ACP."

2.            Though the purpose of the application seems to be to claim and get the benefit of 1st ACP from an earlier date by claiming the counting of his service rendered as a casual labour, he has gone in a round about way with his first prayer to get this service declared as a qualifying service for pensionary benefits that are not due as yet.   In any case, the prayer at para 8 (ii) cannot be consequential to the prayer at para 8 (i).  Hence, at the time of argument, the learned counsel for the applicant prayed for concentrating on the relief claimed at para 8 (ii).

3.            At Annexure-A/1, he has submitted a chart of his work as casual Clerk (Group 'C') on daily wage basis in broken spells starting from 9.12.1980 upto 31.8.1993 at various branches in the office of Central Frozen Semen Production and Training Institute, Hessarghatta, Bangalore.  He has been given temporary status as a Group 'D' employee with effect from 1.9.1993.  It is pertinent to note that this temporary status is in Group 'D' in the pay scale of Rs.750-940/-, which, in no way reflects the scale of Rs.950-1500/-  that was given to him while he was employed as Casual Clerk on daily wage basis in Group 'C'.  After working as temporary Group 'D' employee from 1.9.1993 to 31.3.1994, he has been made Lab. Attendant in Group 'D' in the same pay scale of Rs.750-940/- with effect from 1.4.1994.

4.            On 29.9.1995 (Annexure-A/6), his services as Lab. Attendant was regularised in the pay scale of Rs.750-940/-.   In 1998, he was given a pay revision of Rs.2550-3200/- as applicable under V Pay Commission (Annexure-A/7).  By order dated 4.9.2000 (Annexure-A/8), he was given adhoc promotion to the post of Stockman in the scale of Rs.3050-4590/- with effect from 5.9.2000, which pay scale was later revised to Rs.4000-6000/- with effect from 1.1.1996, vide order dated 6-10-2004 (Annexure-A/10). 

5.         Against this backdrop, we come to Annexures-A/12 and A/13 which are the representations from the Lab. Attendants of the Institute requesting that since they have completed 12 years of regular service in the year 2006, the respondents should create promotional avenues for Lab. Attendants with SSLC qualification and secondly to declare them as eligible to receive full pension (generally available after 33 years of continuous service) by counting their earlier casual service.  Both these representations are not yet been replied by the Respondents.

6.         In the meantime, the respondents have issued Office Order No.CSI/PF/07, dated 8.10.07, (Annexure-A/14), holding the applicant and 12 others as eligible for 1st ACP with effect from 1.9.2008.  By another order dated 14.2.2007 (Annexure-A/15), the respondents had already granted 1st ACP to one Smt. Padmavathi, Poultry Attendant, with effect from 23.9.2006.  The chart attached along with this order shows that the said Smt. Padmavathi was given temporary status on 1.9.1993 and was regularised on 18.10.1995.  Counting from date of regularisation, the date of completion of 12 years for the purpose of 1st ACP would be 18.10.2007.  However, the department has looked into her service rendered as temporary status which comes to 2 years one month and 17 days and have given her 50% advantage against the same, i.e., for 1 year and 24 days, thus, bringing forward her date of 1st ACP to 23.9.2006.  In fact, this chart containing names of 17 employees shows that for all of them 50% of their service in temporary status has been counted for the purpose of preponing their date of 1st ACP which would otherwise be given only on completion 12 years of regular service.  Although, the said Annexure-A/15 has not originated in the Central Frozen Semen Production Institute, Hessarghatta, Bangalore under the Director of Animal Husbandry, Ministry of Agriculture, it falls under a sister concern, viz., Central Poultry Development Organisation, Hessarghatta, falling under the same Director of Animal Husbandry.

7.         Replying to the prayer that the applicant should be given the benefit of his entire casual service right from 9.12.1980, for the purpose of Pension and alsocounting the date of his 1st ACP, the respondents have taken the following four objections:
            (a)       The applicant has not made any proper representation to the department, thus approached the Tribunal without exhausting the internal remedy and hence, his application is premature.  The 2 representations submitted as referred in the OA at Annexures-A/12 and A/13, are collective representations which do not give to the department his specific details or prayer for remedy,  hence, do not qualify for exhausting internal remedy.
            (b)       The case of certain benefit given by Railway Board to Railway employees towards their service as casual labourer (refer to Annexure-A/13 in the OA), is applicable only to the Railway employees and not to the applicant, whose institution is under the Ministry of Agriculture.  Hence, invocation of Art. 14 and 16 of Constitution is not relevant.
(c)           The judgment quoted in the OA (Annexure/A-16) in case of Writ Petition No.15668/01, of Madras High Court for Pensionary benefits on completion of 240 days as casual labour has been passed on the basis of a judgment of Supreme Court in SLP No.6715/2007 and the said order of the SLP relates to the controversy involving that case alone.  The Supreme Court has not laid down any general principle and hence, the said SLP or the said Writ Petition does not become a precedence.

(d)        As per Casual Labourers (Grant of Temporary Status and Regularisation) Scheme, 1993, 50% of the service rendered under temporary status is to be counted for the purpose of retirement benefits after regularisation.  Accordingly, the applicant is not entitled to counting of 50% service under temporary status for the purpose of deciding his eligibility for 1st ACP.

8.         We have considered all the arguments along with the rejoinder and heard both the learned counsels.  The rejoinder does not answer the four specific objections raised in the reply statement.  We are also not convinced at this stage that this Tribunal has to pass any direction regarding counting of his service towards pensionary benefits as prayed in para 8 (i) in the OA.  If necessary, the applicant may make a proper and detailed representation to the department and seek the relief there.  As regards the prayer at para 8 (ii), we are not convinced by the arguments of the applicant, who has held the post of daily worker or adhoc worker in the rank of LDC  (Group-'C') which has nothing to do with his temporary status under Group 'D'.  However, it is worth examining whether pre-ponement of his date of I ACP by counting 50% of his work as temporary status can be counted.  Although the learned counsel for respondents has raised the objection No. (d) above, he has not been able to explain as to how, for another institution situated in the same location, Hessarghatta, under the same Director of Animal Husbandry, viz., the Central Poultry Development Organisation, the order dated 14.2.2007 (Annexure-A/15) has been passed in which all the 17 employees have been given the benefit of 50% of their service in temporary status, thus, in effect, preponing their date of 1st ACP.

9.         In view of the above, the OA is partly allowed with the direction to the respondents to consider the applicability of Annexure-A/15 to the present applicant also.  The decision in this regard should be taken within two months and any consequential financial benefits be paid thereafter within next two months. 

10.       No order as to costs.

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


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