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Jagrit Mazdoor Union (Regd.) & ... vs Mahanagar Telephone Nigam Ltd. & ... on 29 November, 1989
Section 21 in The Administrative Tribunals Act, 1985
Article 14 in The Constitution Of India 1949
Union Of India vs Pushpa Rani & Ors on 29 July, 2008
Dilip vs State Of Maharashtra & Ors. on 24 August, 2000

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Central Administrative Tribunal - Delhi
Umesh Kumar vs Secretary on 22 July, 2011

Central Administrative Tribunal

Principal Bench

O.A.No.2155/2011

New Delhi, this the 22nd day of July, 2011

Honble Shri Shailendra Pandey, Member (A)

Honble Shri Dharam Paul Sharma, Member (J)

Umesh Kumar

s/o Narain Singh

r/o 437, Sector-3

R.K.Puram

New Delhi  22.  Applicant

(By Advocate: Ms. Anu Mehta)

Versus

Union of India

Through its Secretary

Ministry of Human Resources & Development

Shastri Bhawan

New Delhi.

Director General

Archaeological Survey of India

Janpath

New Delhi.

Secretary

DoPT, North Block

Govt. of India

New Delhi. . Respondents

O R D E R

By Shailendra Pandey, Member (A):

In this OA, the applicant has challenged the respondents order dated 10.06.2010, denying him medical and all other service benefits applicable to Casual Labourers with temporary status employees available in the Department of Posts, and has sought the following relief: The order dated 10.06.2010 passed by Respondent denying medical, all other service benefits applicable to Regular employee, be quashed and set aside, and consequently

The Respondents be directed to modify the Scheme dated 10.9.1993 for extending the medical benefits and all service benefits for TS employee akin to regular/temporary employee of the department.

2. The brief facts of the case, as set out in the OA, are that the applicant was engaged as a Class IV casual employee in the year 1980 (mentioned as 1990 in his representation dated 2.6.2010) in the Archaeological Survey of India. Thereafter, he was granted temporary status under the Department of Personnel and Trainings (DoPT) Scheme of 10.9.1993, along with other casual employees, w.e.f. 1.09.1993. It is stated that the applicant made representations/reminders to the respondents on 29.09.2008, 30.12.2008, 7.1.2009 and 23.10.2009 seeking service benefits like medical facilities (CGHS), group insurance, etc as admissible to the temporary status employee in the Department of Posts. As no response has been received from the respondents, the applicant approached this Tribunal in September, 2009 by filing OA No.3308/2010, seeking the same benefits at par with employees of the Department of Posts, which was disposed of on 26.05.2010 by the following order: This OA stands disposed of with an observation that if the applicant makes a representation to respondent No.4 regarding parity in respect of certain conditions of CLTS at par with employees in Postal Department by appending all material, documents and case laws cited in the OA, within a period of two days from today, Respondent No.4  Department of Personnel & Training  shall consider the same and pass a speaking order within 45 days thereafter. No costs.

Accordingly, the respondents have passed the order dated 10.6.2010, which has been challenged in the present OA on the following grounds:

that the action of the respondents of denying basic service benefits to the Temporary Service employees is unfair and violative of Articles 14, 16 and 21 of the Constitution of India. Further, the benefits, i.e., LIC, Medical, Group Insurance, Holiday allowance, etc. are being extended to the temporary service employees of several other departments such as telecom and postal and denial of the same to him, despite his unblemished and satisfactory services as a Temporary Service employee is discriminatory. That the respondents have failed either to dispose of the representation of the applicant on merits or grant the service benefits to him.

3. The learned counsel for the applicant has relied on the Judgment of the Honble Supreme Court in Jagrit Mazdoor Union Ltd. and Others v. Mahanagar Telephone Nigam Ltd. and Another, [1993] 13 ATC 768 to contend that all the casual labourers after rendering three years of continuous service with temporary status, shall be treated at par with temporary grade `D employees and would thereby be entitled to such benefits as are admissible to Group `D employees on regular basis.

4. We have heard the counsel for the applicant and also perused the pleadings on record.

5. We find that the Scheme applicable to the applicants case is the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India, 1993, issued by DoPT on 10.09.1993 which was effective from 1.09.1993, wherein Clause 5 prescribes the following benefits available to the Casual Labourers with temporary status employees: (i) Wages at daily rates with reference to the minimum of the pay scale for a corresponding regular Group `D official including DA, HRA and CCA. [Special Compensatory Allowance or `Compensatory (City) Allowance or Composite Hill Compensatory Allowance, etc., i.e., only one of the compensatory allowance, more beneficial to them, can be taken into account for the purpose of calculating their wages  O.M. No.3(2)/95-E.II(B), dated the 15th January, 1996].

(ii) Benefits of increments at the same rate as applicable to a Group `D employee would be taken into account for calculating pro-rata wages for every one year of service subject to performance of duty for at least 240 days, 206 days in administrative offices observing 5 days week) in the year from the date of conferment of temporary status.

(iii) Leave entitlement will be on a pro-rata basis at the rate of one day for every 10 days of work, casual or any other kind of leave, except maternity leave, will not be admissible. They will also be allowed to carry forward the leave at their credit on their regularisation. They will not be entitled to the benefits of encashment of leave on termination of service for any reason or on their quitting service.

(iv) Maternity leave to lady casual labourers as admissible to regular Group `D employees will be allowed.

(v) 50% of the service rendered under temporary status would be counted for the purpose of retirement benefits after their regularisation.

(vi) After rendering three years continuous service after conferment of temporary status, the casual labourers would be treated on par with temporary Group `D employees for the purpose of contribution to the General Provident Fund, and would also further be eligible for the grant of Festival Advance/Flood Advance on the same conditions as are applicable to temporary Group `D employees, provided they furnish two sureties from permanent Government servants of their Department.

(vii) Until they are regularized, they would be entitled to Productivity Linked Bonus/ Adhoc bonus only at the rates as applicable to casual labourers.

6. Further, it is seen that Clause 6 of the said Scheme provides as under:

6. No benefits other than those specified above will be admissible to casual labourers with temporary status. However, if any additional benefits are admissible to casual workers working in Industrial establishments in view of provisions of Industrial Disputes Act, they shall continue to be admissible to such casual labourers.

7. The applicant belongs to the Archaeological Survey of India and the above Scheme is applicable to the said Department and the allowances and benefits to be given to him arise from this Scheme. It is not the case of the applicant that the benefits mentioned in Clause 5 of the said Scheme had not been extended to him. He has also not pointed out any discrimination with reference to benefits under this Scheme being given to employees of other Departments (to which the Scheme is applicable) but being denied to him. Instead, he has sought, in the present OA, additional benefits such as LIC, Medical, Group Insurance, Holiday allowance, etc. which are stated to have been extended to the Casual Labourers with temporary status employees working in the Department of Posts and Department of Telecommunication as per their Schemes. The contention of the applicants counsel is that this differentiation shown by the respondents is in violative of Articles 14 and 16 of the Constitution of India. This contention is not tenable as he is governed by the DoPTs Scheme while the Temporary Service employees of the Department of Posts and Telecom are governed by a separate Scheme formulated in the year 1991 and 1989. In our view, Article 14 can not be stretched so far as to make two un-equals be treated as equals. If such a contention was to be accepted, it will make the functioning of the administration impossible. In this connection, it would be useful to refer to the case of the Honble Supreme Court in Dilip Kumar Garg and Another vs. State of U.P. and Ors., (2009) 4 SCC 753, wherein the Apex Court observed as under:

In our opinion Article 14 should not be stretched too far, otherwise it will make the functioning of the administration impossible. The administrative authorities are in the best position to decide the requisite qualifications for promotion from Junior Engineer to Assistant Engineer, and it is not for this Court to sit over their decision like a Court of Appeal. The administrative authorities have experience in administration, and the Court must respect this, and should not interfere readily with administrative decisions. (See Union of India vs. Pushpa Rani and others 2008 (9) SCC 242 and Official Liquidator vs. Dayanand and others 2008 (10) SCC 1).

8. As already observed, the Scheme applicable to the applicant is the DoPT Scheme of 10.09.1993 and the applicants claim to additional benefits at par with the Schemes of Department of Posts and the Department of Telecommunication is misplaced.

9. It is further seen that in the Telecom Department, the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme was formulated and put into operation from 01.10.1989. The applicant has placed reliance on the case of Jagrit Mazdoor Union (Regd.) and Others v. Mahanagar Telephone Nigam Ltd. and Another, [1990] 13 ATC 768 but the Judgement in the case will not be of any help to him. In that case, the Apex Court was considering various benefits given to the Temporary Status employees of the Department of Posts to the Temporary Status employees of the Department of Telecommunication and the Apex Court clearly observed as under:

5. The scheme known as Casual Labourers (Grant of Temporary Status in Regularisation) Scheme has been formulated and put into operation from 1/10/1989 and a copy thereof has been placed for our consideration. 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. Counsel for the respondent-Nigams have told us that the scheme will be given full effect and other benefits contemplated by the scheme shall be worked out. In these circumstances, no further specific direction is necessary in the two applications relating to the two Nigams of Bombay and Delhi except calling upon the respondents to implement every term of the scheme at an early date.

10. From the above, it is clear that benefits, allowances are to be regulated in accordance with the Scheme applicable to the employees and that the applicability Scheme has to be implemented in its true letter and spirit.

11. Further, the additional benefits given in the Department of Posts and Department of Telecommunications, have been extended to their employees keeping in view their functional requirements, and it is for the competent authority to decide such issues. In the case of the applicant in this OA, the competent authority would be the DoPT. In our view, therefore, the benefits given under a Scheme of another Department cannot be automatically extended to the applicant. No right has accrued to the applicant for benefits other than those given by the DoPT Scheme, and no right can accrue to them to benefits not mentioned in the Scheme governing them, simply because such benefits have been given to the employees of other departments, governed by separate Schemes.

12. Further, extension of such benefits is a policy decision of the Government and this Tribunal cannot direct accord of any such benefits. In this connection, it would be useful to refer the Honble Apex Courts decision in Union of India & Ors. v. Dinesh Engineering Corporation & Anr. etc., (2001) 8 SCC 491, in which it was held that where the policy decision of the authority is in regard to a policy matter, this, Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and Courts are normally not equipped to question the correctness of a policy decision. Further, in P.U.Joshi & Ors. v. The Accountant General of Ahmedabad, ATJ 2003(2) SC 6224 the Honble Apex Court also has reiterated that policy decisions of the Government should not to be interfered with by this Tribunal nor should the Tribunal direct the State to adopt a particular method or conditions of service, etc. by substituting its own views for that of the State. The relevant observations of the Honble Supreme Court in the case of P.U.Joshi (supra) are extracted below:

10. We have carefully considered the sub-missions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substruction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/ posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.

13. In view of the above settled position of law, we cannot interfere in the matter. The OA is, therefore, devoid of merit and liable to be dismissed.

14. There is another reason why the OA is liable to be dismissed. This is because of limitation. The DoPT Scheme Casual Labourers (Grant of Temporary Status and Regularisation) Scheme, 1993 applicable to the applicant under which benefits were given to him, was issued on 10.09.1993. Thus, for any grievance with reference to the benefits provided, the cause of action would be taken to have arisen in September, 1993. However, the OA has been filed on 6.07.2011, after a lapse of over 15 years. Any claim with reference to this Scheme cannot be allowed to be raised now because of the bar of limitation under Section 21 of the Administrative Tribunals Act, 1985. In a recent Judgement of the Honble Apex Court in the matter of D.C.S. Negi v. Union of India & Ors. decided on 07.03.2011 in SLP (C) No.7956/2011(CC No.3709/2011) the Apex Court while dismissing the Appeal has observed that the Administrative Tribunal established under the Act is duty bound to first consider whether the application is within limitation, and an application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21 (3). The Apex Court also observed as follows: Learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the respondents, no such objection was raised but we have not felt impressed. In our view, the Tribunal cannot abdicate its duty to act in accordance with the statute under which it is established, and the fact that an objection of limitation is not raised by the respondent/non applicant is not at all relevant. Thus the OA filed in the year 2011 for a cause of action that arose in the year 1993 would attract limitation. Only if there is cause of action which needs to be taken up by relaxing and condoning the delay, can the same be considered under Section 21. The present case is, however, not a fit case for condonation of delay.

In view of the above discussion, the OA (No.2155/2011) is dismissed. No costs.

(Dharam Paul Sharma) (Shailendra Pandey)

Member (J) Member (A)

/nsnrsp/