P.K. Salu & Ors. vs Union Of India & Ors.

Justice K.Haripal, Judicial Member

As common questions were raised for consideration and since respondents are the same, both these Original Applications were clubbed, heard together and are being disposed of by this common order. O.A. No.234/2019 is taken as the lead case.

There are six applicants in O.A.234/2019, all were working as Processing Workers under the 3^rd respondent. They were initially selected and appointed as Casual Processing Workers sponsored by the Employment Exchange. The applicants were initially appointed on 21.01.1985. It is submitted that the applicants 1 to 5 were regularised as Processing Workers on 15.07.1989 and the 6^th applicant on 23.08.1989 on the basis of the orders of this Tribunal in O.A.905/1992.

It is submitted that the applicants had no avenues for promotion. Indo-Norwegian Project employees association and two of the Processing Workers had approached this Tribunal complaining that they were stagnated in the same pay scale indefinitely without any scope for promotion and without any grade system. On the directions of the Tribunal, respondents 2 and 3 introduced grade system for Processing Workers with effect from 03.05.2004. Thus the Processing Workers were placed in different grades and given pay scales accordingly. The 5^th Central Pay Commission introduced the ACP scheme providing two career progressions in service on completion of 12 years and 24 years for stagnated employees. Thereafter, the 1^st respondent issued a clarificatory O.M. on 10.02.2000 issuing guidelines with regard to the implementation of the ACP scheme. According to the applicants, Processing Workers are not stand alone posts, while implementing the ACP the benefit of clause 32 of the O.M. dated 10.02.2000 should have been extended to them.

Meanwhile, MACP scheme was introduced in supersession of the ACP scheme as per the 6^th Pay Commission Report.

Applicants also submitted that while granting ACP, their initial date of appointment on 21.01.1985 or 23.08.1989, as the case may be, was ignored and the benefit was granted only from the respective dates of regularisation, which is illegal. Secondly, while granting the 1^st ACP, through Annexure-A3 office order, the applicants who were in the scale of Rs.2550-3200 were granted only the scale of Rs.2610-3540. The initial scale of pay of the applicants and the Peons were the same, namely Rs.2550-3200, while applying clause 32 of the said O.M., they should have been granted the scale of LDC in Rs.3050-4590 as granted in the case of Peons. But, without considering that aspect, they were granted scale of Rs.2610-3540 only, which is illegal.

Further, on the grant of 1^st and 2^nd MACP under the Annexure-A4 order, they were not given appropriate enhancement in scale. On granting 2^nd MACP, they were given the grade pay of Rs.2000/- only, whereas, actually they were entitled to get pay at the scale of Rs.5200-20200 with grade pay of Rs.2400/-.

In short, the applicants submitted that their entire service was not reckoned for the purpose of grant of ACP, clarification issued in O.M. dated 10.02.2000 was not honoured and they were given benefit taking the cadre as a stand alone post. ACP and MACP benefits were not given in accordance with the standing instructions, scales of analogues posts in the same department should have been taken into consideration; thus they have sought the following reliefs:

Turning to O.A.272/2019, it is submitted that the applicants 1 to 3 were appointed as Casual Processing Workers on 21.01.1985 and the 4^th applicant was appointed as Casual Worker on 02.01.1989. Later, the applicants 1 to 3 were regularised with effect from 01.01.1996 and temporary status was granted to the 4^th applicant from 02.01.1989.

Here also, they have spoken about the earlier litigation, the absence of any grade system, introduction of grade system following the directives issued by this Tribunal, introduction of ACP scheme, clarification issued by the Ministry through O.M. dated 10.02.2000 etc.

It is submitted that applicants 2 and 4 were granted 1^st ACP on 10.09.2005 and 16.10.2005 respectively on completion of 12 years, reckoned from the date of regularisation. ACP benefits were not given to other applicants. Later, through Annexure-A4, 1^st MACP was granted to them with effect from 01.09.2008 giving grade pay of Rs.1900/- in the scale of Rs.2610-3540, they were given 2^nd MACP also on 01.12.2014, 02.09.2013, 07.10.2013 and 17.06.2017 respectively with grade pay of Rs.2000/-.

Here also, the grievance of the applicants is that their date of initial appointment was not reckoned for the purpose of counting the length of service, applicants 1 and 4 were not granted 1^st ACP, they should have been granted ACP taking the category as a stand alone post, they should have been granted hike on grant of 1^st ACP at par with that of Peon in the organisation and in that case, they would have secured scale of LDC on granting 1^st ACP; enhancements pursuant to grant of 1^st and 2^nd MACP also are not in accordance with the standing instructions. They have sought the following reliefs:

Respondents have taken common line of contentions in the replies. According to them, earlier attempts to create grades of Processing Workers were not acceded to and at last, as directed by this Tribunal in O.A.274/2001 three grades of Processing Workers were created with effect from 03.03.2004. Grade-III at the bottom in the scale of Rs.2550-3200, Grade-II with the scale of Rs.2610-3540 and Grade-I at Rs.2750-4400. The number of posts was also fixed, such an arrangement was effective from 03.03.2004. As per the ACP scheme, regular service alone shall be counted for the grant of benefit from the date of appointment as a direct recruit. Thus the applicants in O.A.234/2019 were granted 1^st ACP taking the pay at the scale of Rs.2610-3540. Later, they were granted 1^st and 2^nd MACPs also giving them grade pay of Rs.1900 and Rs.2000 respectively as stated by them. It is submitted that 4^th applicant in O.A.234/2019 was initially appointed on 23.08.1989, whereas others were regularly appointed as Processing Workers on 15.07.1989. The 1^st ACP was granted to them on completion of 12 years of service in the scale of Rs.2610-3540. Similarly, they were granted 1^st and 2^nd MACPs also as per the extant instructions. So, according to the respondents, in O.A.234/2019 the applicants are not entitled to get any relief.

In the reply to O.A.272/2019, it is submitted that the 1^st applicant was appointed as Processing Worker on 01.12.1994, was granted 1^st ACP on 05.09.2007, 1^st MACP on 01.09.2008 and 2^nd MACP on 01.12.2014. Similarly, the 2^nd applicant was appointed as Processing Worker on 02.09.1993, was granted 1^st ACP on 10.09.2005, 1^st MACP on 01.09.2008 and 2^nd MACP on 02.09.2013. Regarding the 3^rd applicant it is submitted that she was appointed as Processing Worker on 07.10.1993, granted 1^st ACP on 16.10.2005, 1^st MACP on 01.09.2008 and 2^nd MACP on 07.10.2013. As regards the 4^th applicant, it is submitted that she was appointed as Processing Worker on 17.06.1997, was granted 1^st MACP on 01.09.2008 and 2^nd MACP on 17.06.2017. According to the respondents, since the applicants were granted benefits in accordance with the relevant instructions, are not entitled to get any relief as claimed.

Applicants filed rejoinders raising identical contentions. Contentions in the replay statements are denied by them except those which are specifically admitted. The contentions regarding bar under limitation are not acceptable. According to them, the Tribunal was pleased to consider their contentions at the time of admitting the Original Application and hearing the learned Standing Counsel. So, at this belated stage, such an argument cannot be raised. Moreover, it is the settled law that fixation of pay, grant of less pay and pension etc. make recurring and continuing cause of action and the contention that it is barred by limitation is erroneous, perverse and illegal. The applicants have a legal right to get ACP/MACP on counting their continuous service after regular process of selection. By filing this O.A., the rights of third parties are not affected and would not affect other persons in those orders. Therefore, there is no merit or bonafides in the contention that the Original Applications are barred by limitation.

Similarly, it is submitted that in the order directing to grant grades, this Tribunal did not ask the respondents to compare the grade system with slip way workers and net makers. The CPC also did not recommend grade system to any slip way worker separately. That means, the pay of the applicants should have been reckoned keeping them at par with workshop categories. Thus the applicants submit that while granting 1^st ACP, their grade should have been reckoned in the scale of LDC and there is no justification in fixing a lesser pay. Formation of grades of Processing Workers in Annexure-R1 is not based on notified Recruitment Rules or standard hierarchy under Article 309 and violation of CPC recommendations and orders of the Tribunal in O.A.573/2006 dated 14.11.2006. They reiterate that the post of Processing Worker is still remain as stand alone post. They did not specifically denied the dates of conferring upgradations in ACP/MACP schemes to each applicant.

The respondents filed an additional replay denying the contentions in the rejoinders. According to them, the applicants are not entitled to claim parity with LDC on grant of ACP and that of a UDC on grant of 1^st MACP and Head Clerk on granting 2^nd MACP. According to them, they were sponsored by Employment Exchange and were appointed as Fish Processing Workers. All along the applicants took the stand that they are to be treated as factory workers so that they are coming under the Industrial Disputes Act. If they are covered by Industrial Disputes Act and Factories Act, such an Original Application will not lie before this Tribunal.

Further, with reference to Annexure-R4, copy of the common order of this Tribunal in O.A.1086/2011, 1088/2011 and 1124/2011 dated 25.06.2013 it is submitted that the applicants had moved this Tribunal seeking a declaration that they are entitled to regularise their services with effect from the date of initial entry on daily wage or atleast with effect from 01.01.1982 as has been granted to others, to direct the respondents to reckon the services of the applicants with effect from the date of initial entry or at least with effect from 01.01.1982 immediately with all consequential benefits like ACP/MACP including seniority, arrears etc. After having suffered set back in the said Original Application, the present OAs are barred by doctrine of res judicata. They also contended that the applicants have suppressed material facts. So, they have again pleaded for dismissing the Original Applications.

We heard Sri.P.K.Madhusoodanan, learned counsel for the applicants, Sri.M.N.Manmadan, learned Senior Central Government Standing Counsel and Sri.S.R.K.Prathap, learned Additional Central Government Standing Counsel for the respondents at length.

In order to support the contention that the applicants are entitled to reckon their service for the purpose of financial upgradation from the date of entry in service, Sri Madhusoodanan has placed reliance on four authorities namely, the order of this Bench in O.A.1024/2016 dated 31.12.2018, order of the Jaipur Bench of this Tribunal in O.A.138/2010 dated 10.01.2013, Madras bench of this Tribunal in O.A.105/2010 dated 28.04.2011 and also judgment of the Calcutta High Court in WPCT 497/2013.

Relying on the decision in Punjab State Electricity Board and others v. Jagjiwan Ram and others [(2009) 3 SCC 661], Sri.S.R.K.Prathap has submitted that regular service means service rendered after regular appointment and therefore does not include service rendered as temporary, adhoc or work charged employee. He also placed reliance on the decision of Chandigarh Bench of this Tribunal in O.A. 1062/2016, judgment of the Hon'ble High Court in OP(CAT) 62/2022 dated 22.12.2023 and submitted that the period of adhoc service rendered by the applicants cannot be reckoned for the purpose of considering the grant of financial upgradations. So he reiterated that the period can be reckoned only from the date of regularization of the applicants.

Sri.M.N.Manmadan has placed reliance on the order of the Bombay Bench of this Tribunal in O.A.399/2013 dated 01.08.2013, besides the judgments in State of U.P. v. Nawab Hussain [(1977) 2 SCC 806] and Chief Executive Officer v. S.Lalitha [2025 KHC 6393] in support of his contentions.

There are six applicants in O.A.234/2019 and four applicants in O.A.272/2019. All of them were initially appointed on adhoc basis as Processing Workers or casual workers in the Fisheries Department under the 3^rd respondent and were later regularised. Most of them were granted 1^st ACP in the scale of Rs.2610-3540, which is evident from the impugned orders, 2^nd MACP with grade pay of Rs.1900/- and 3^rd MACP with grade pay of Rs.2000/-. In order to have a bird's eye view of the contentions, we have drawn up the official profile in tables as given below, which will give an idea about the service profile of the applicants.

Though there are slight variations in the dates, ignoring the same, we can say that the above tables will give an overall picture of the details of services of the applicants starting from 1985. It is also not disputed that they were initially appointed as Processing Workers or casual workers as sponsored by the Employment Exchange.

In O.A.272/2019, it was complained that 1^st and 4^th applicants were not given 1^st ACP. In the reply, the respective dates of regularisation have been stated. It was also submited that the 1^st applciant was given 1^st ACP on 05.09.2007. This contention has not been denied in the rejoinder. Similarly, given the dates of regularisation, the 4^th applicant is not entitled to get ACP benefits. She has been granted 1^st and 2^nd MACPs on 01.09.2008 and 17.06.2017 respectively.

From the averments and the rival contentions of the parties and also the arguments of the learned counsel on both sides, the following points arise for our consideration:

The applicants have raised three fold contentions for quashing the impugned documents. Firstly, it is submitted that their entry in service was not properly reckoned, for the purpose of grant of financial ugpradations they should have been treated having entered service on the date of initial appointment, whereas 1^st ACP and other financial upgradations were granted reckoning only from the respective date of regularisation, which is illegal. Secondly, it is submitted that they were holding stand alone posts and therefore clarification 32 of the O.M. dated 10.02.2000 should have been applied in their case and they should have been granted ACP/MACP at par with that of Peons in the office, in that case they should have been given the scale of LDC when granted 1^st ACP, UDC on granting 2^nd MACP and so on, on granting further upgradations. That is also illegal.

As stated earlier, the respondents have challenged the very maintainability of the Original Applications. They have contented that the Original Applications are barred by limitation, besides both the learned Standing Counsel have submitted that the OAs are barred under the principles of res judicata and constructive res judicata in the light of Annexure-R4 common order of this Tribunal in O.A.1124/2011 dated 25.06.2013, in which all the Original Applicants were parties, that the claim that they are entitled to get their dates of initial appointment reckoned stands rejected and now such a contention is not available, again.

Maintainability of the Original Applications is challenged with two fold contentions. First is the bar under the law of limitation and second that it is barred by res judicata and constructive res judicata. It is submitted that the applicants were granted 1^st ACP in 2001 by Annexure-A3 order dated 20.11.2001 and MACPs from 2008 and 2009 by order dated 24.07.2009. Still they have moved the instant Original Applications only in 2019, which is highly time barred and therefore, are not maintainable and are liable to be dismissed at the threshold.

The applicants wanted to say that they have raised a contention which has a recurring effect in their service profile, non-granting of ACP/MACP at the appropriate time is a cause of action having recurring effect and therefore, the contention regarding bar under limitation is not available to the respondents.

The applicants have contented that immediately after the grant of 1^st ACP they had made representations, their unions also had raised such contentions before the authorities, which have been denied by the respondents. Except the Annexure-A5 document in OA 234/2019 and Annexure-A8 O.M. in O.A.272/2019, both are the same, which indicates that 19 representations were submitted by applicants including the applicants in both the cases dated 13.11.2018 were forwarded for appropriate action. The respondents have denied that any representation prior to that, immediately after the grant of ACP was submitted by the respondents. It is for the applicants to make out that they had agitated these questions immediately after the grant of 1^st ACP or when they were regularized on subsequent point of time. Therefore, It has to be thought that they had raised such a contention before the authorities only on 13.11.2018 for the first time. That means, they were remaining dormant for long period of time and were raising a stale question before the authorities, based on which a cause of action which had occurred to them way back in 1989 or 1996 or 2001 cannot be raked up, as done by the applicants.

In this connection, it is only appropriate to quote the following observations of the Hon'ble Supreme Court in Lalitha, quoted supra.

That means, since there is no evidence that the applicants had ventilated their grievances earlier, a cause of action, which had arisen either in 1985, 1989, 1996 etc. cannot be raised through a proceeding in 2019, which is highly time barred. On that score itself, the Original Applications are liable to be rejected.

Turning to the second contention regarding the maintainability of the Original Application, it is the specific case of both the learned Standing Counsel that the O.A. is barred by the principles of res judicata and constructive res judicata. Even though there is no specific averments on these grounds, it being a question of law, can be agitated before us. Supporting this contention, they have placed reliance on Annexure-R4 common order of this Tribunal in O.A.1086/2011, 1088/2011 and 1124/2011 dated 25.06.2013. Annexure-R4 indicates that all these applicants were parties to OA 1124/2011. That Original Application was filed seeking the following reliefs:

Such a contention was rejected by the Tribunal. That order has become final. The Tribunal had found that the claim of the applicants for regularisation right from the initial entry ought to have been raised at the time of regularisation or immediately thereafter. Seeking regularization after scores of years, after having retired from service be viewed as a case hit by law of limitation. After having suffered such an order, now, they cannot claim that they should have been regularised from the date of initial entry in service itself. We have already noticed that such a contention is time barred.

Moreover, O.A.1124/2011 was instituted in 2011. By the time, most of these impugned orders had already been passed by the authorities. Annexure-A3 in O.A.234/2019 was issued on 20.11.2001. Annexure-A4 was passed on 24.07.2009. Similarly, Annexure-A3 In O.A. 272/2019 was issued on 04.05.2007 and Annexure-A4 was issued on 24.07.2009. The other two impugned orders were issued subsequent to the filing of O.A.1124/2011. Still, Annexures-A3 and A4 in O.A.272/2019 were available at the time of instituting O.A.1124/2011 and all these contentions regarding the non-granting of ACP/MACP at the appropriate dates ought to have been raised in that Original Application. It was a proceeding between the same parties. The cause of action also was the same and therefore, there is considerable force in the argument of the learned Standing Counsel that both the Original Applications are hit by principles of res judicata and constructive res judicata, inviting bar under Section 11 CPC and the Explanation IV thereunder.

That means, both the Original Applications are not maintainable and are liable to be rejected at the threshold itself.

Still, for the sake of completeness, we will consider the other contentions also.

Regarding the claim that they should have been granted regularisation from the date of initial appointment has no legs to stand upon. From the respective schemes of the ACP and MACP, it is clear that the effective date of regular appointment alone can be reckoned for the purpose. Clause 3.1 of Annexxure-A1 clearly mandates that, certain categories of employees such as casual employees (including those with temporary status), adhoc and contract employees shall not qualify for benefit under the scheme. Similar clause is incorporated in Annexure-A2 also. It has been held by various Benches of this Tribunal that what is important is regular service, which has been upheld by the Hon'ble High Court and the Supreme Court. Since the Supreme Court has made it very clear that such employees are not entitled to get benefits of regular employees, it is not necessary to go after the decisions of the Tribunal or the High Court. The decision in Jagjiwan Ram, quoted supra, clearly lays down the principle thus:

Turning to other contentions also, the applicants are bound to fail. It is true that initially there were no grades among Processing Workers. There were long standing claim for grant of grades and by the order of this Tribunal in O.A.274/2001, ultimately, Annexure-R1 order was passed creating three grades, Grade-III, Grade-II and Grade-I with the scales of 2550-3200, 2610-3540 and 2750-4400 respectively and thus the upgradation under the ACP was given on that basis only. Even though Annexure-R1 was issued subsequent in point of time, from Annexure-II to Annexure-A1 ACP scheme, it is clear that the standard common scales have been appended to the scheme. The applicants were drawing scale at Rs.2550-3200 as Processing Workers. Therefore, as per the scheme, they were entitled to get 1^st ACP only to the Grade-II scale with pay at Rs.2610-3540. That has been given to them. Nowhere it is stated that they were to be treated at par with Peons in the office and therefore, on granting ACP, they should be given the scale of LDC and so on. Therefore, such a contention also falls to the ground.

Secondly, it was urged that the applicants should have been granted benefits with effect from 01.01.1996, in terms of the date of implementation of the 6^th CPC. In the light of the decision of the Hon'ble Supreme Court in Union of India v. R.K. Sharma [(2021) 5 SCC 579] that argument also cannot be accepted. The Supreme Court has observed that since benefits flowing from MACP scheme and ACP scheme are incentives and not part of pay and resolution dated 29.08.2008, made effective from 01.09.2008 as the effective date of implementation of the allowance other than pay and DA, which includes financial upgradation under the ACP and MACP schemes. Applicants are not entitled to seek benefits of MACP scheme from 01.01.2006 as claimed. That means, they can claim the benefits under the ACP and MACP only from the respective dates of implementation of the schemes.

Moreover, even though Annexure-R1 scheme was formulated and grades were introduced on subsequent point of time, as stated earlier, the scale of the applicants were given on granting first ACP in Rs.2610-3540 truly in terms of Annexuure-A1 scheme only. Therefore, the applicants cannot claim parity with Peons and say that they should have been granted the scale of LD Clerk on conferring first ACP.

Even though they have stated that they were appointed in stand alone posts and clause-32 of the OM dated 10.02.2000 is applicable to them, while arguing, learned counsel for the applicants has submitted that they have no case that they are working in isolated posts. Now, three grades have already been introduced among processing workers and have been granted upgradations in the scale and the 1^st ACP and subsequent MACPs were granted truly in terms of the schemes, which cannot be challenged by the applicants in right earnest.

It is seen from the impugned orders that after the grant of 1^st ACP to the applicants, on completion of 20 years they were granted 1^st MACP under the Annexure-A2 scheme. This is, no doubt incorrect, because on completion of 20 years of service they should have been granted 2^nd MACP and not 1^st MACP. Similarly, on competition of 30 years they should have been granted 3^rd MACP and not 2^nd MACP as done by the respondents. We find that they have been granted benefits truly in terms of the schemes and there is no ground for grievance for the applicants.

As a necessary corollary, we hold that both the Original Applications are not maintainable and are barred by the law of Limitation and principles of res judicata. There is no merit in the contentions raised by the parties.

Resultantly, both the Original Applications are dismissed. No costs.