Sanjay Kumar And Ors vs Union Of India And Ors

S.N. Terdal, J

We have heard Mr. Anil Singal, counsel for applicants and Mr. S.M.Arif,  counsel for  respondents,  perused  the  pleadings  and documents produced by both the parties.

In this OA, the applicants have prayed for the following reliefs:

"(a) To call for the records and Quash/set aside the Order dt. 7.7.2014 and direct the respondents to consider the case of the applicants for regularization on the post of Enquiry Clerk or equivalent post w.e.f. the date of the appointment on Muster Roll basis along with consequential benefits.

(b) To direct the respondents to protect the last pay and pay scale i.e. 52090+1900 drawn by the applicants as Enquiry Clerk on Muster Roll till 11.10.2011 on regularization and treat the period w.e.f. 15.10.1995 to 11.10.2011 as qualifying service for pension and pensioner benefits extending benefits of Old Pension Scheme and this period being counted for the ACP/MACP Scheme benefits (If the regularization of the applicants on the post of Beldar is upheld) with all consequential benefits.

(c) To award cost in favour of the applicant and

(d) To pass any order or orders which this Hon'ble Tribunal may deem just & equitable in the facts & circumstances of the case."

The relevant facts of the case are that the applicants were appointed as Enquiry Clerks on muster roll w.e.f. 17.10.1995. They filed OA No. 870/1988 before this Tribunal seeking regularization in the post of Enquiry Clerks. The Tribunal after hearing both the parties vide order dated 24.03.2000 held that the regularization of the applicants in the post of Enquiry Clerk is not possible. But, however, they further directed that the applicants shall not be replaced by any other persons who are junior to the applicants in the said post of Enquiry Clerk on muster roll basis and that the applicants may be considered for some other posts in accordance with the rules for recruitment relaxing the age requirement. The relevant portion of the order is extracted below:-

"6. According to the applicants, the respondents have need for the services of Enquiry Clerks. They have contended that in the circumstances, since they have worked for a number of years with the respondent, they should not be replaced by any other outsiders and juniors as the work of Enquiry Clerks are still available with the respondents. The applicants have also submitted that if they are given some reasonable time for preparation for the tests, they are willing to sit in the examination for the Group 'C' posts, for example, LDC/UDC. As the applicants were admittedly working as Enquiry Clerks which is a Group 'C' post, the stand of the respondents that the DOP&T Scheme dated 10.9.93 which deals with Group 'D' staff is not applicable to the applicants cannot be faulted. However, the action of the respondents in engaging the applicants for a number of years dehors the rules is also not in order because they should have acted in accordance with the rules while appointing the applicants.

In the peculiar facts and circumstances of the case, so long he respondents have work for Enquiry Clerks, they shall not engage any other persons who are junior to the applicants. Considering the fact that the applicants have rendered more than four years of service with the respondents in a Group 'C' post, and they are willing to undergo the prescribed tests to qualify in the examination for any other similar posts, the respondents may consider their cases, in accordance with the rules for recruitment on other suitable posts. The respondents shall also take into account the past service of the applicants for the purposes of age relaxation, if required, as per the relevant rules and instructions, while considering them for appointment to other Group 'C' posts, subject to the fulfilment of other terms and conditions."

In view of the above said order, the applicants were continued in the post of Enquiry Clerks on muster roll basis and on 29.09.2011 they were appointed in the posts of Beldar (WC). The order of appointment dated 29.09.2011 is extracted below:-

"OFFICE ORDER

Consequent upon regularization of the following Enquiry Clerks (Muster Roll) in the post of Beldar(WC) vide SE(C-1) office order no. SE(C) 1(7)/2011/WC/860 dt. 27.09.11, both the enquiry clerks are directed to submit their unconditional willingness of accepting the post of Beldar(WC) to this office immediately for further action:-

Sh. Sanjay Kumar, Enquiry Clerk (MR)

Sh. Sunil Kumar, Enquiry Clerk (MR)."

The applicants accepted the appointment of Beldar unconditionally. The applicants have filed the present OA seeking regularization in the post of Enquiry Clerks and protection of their pay in the post of Enquiry Clerks.

The counsel for the applicants vehemently and strenuously submitted that in the above said appointment letter dated 29.09.2011 the word regularization is used while appointing the applicants in the post of Beldar and in view of the same, the relief prayed for in the OA be granted to them. In support of his contention, he relied upon the following orders passed by this Tribunal:

(1) Surender Kumar-1 and Ors. Vs. UOI and Ors (OA 3935/2011)

(2) Satbir Singh and Ors Vs. CSIR and Ors (OA 1026/2013)

(3) Ram Karan (Watchman) and Ors. Vs. UOI & Ors. (OA 653/2005)

The counsel for the respondents equally vehemently and strenuously submitted that in the earlier OA, the applicants specifically prayed for regularization of their services as Enquiry Clerks which was not granted to them by this Tribunal by the above extracted order dated 24.03.2000 and that, therefore, seeking the same prayer in this OA is hit by the principles of res judicata and that  though  the  word  "regularization"  is  used  in  the  above extracted appointment letter dated 29.09.2011, but, however, from the conjoint reading of the order of this Tribunal dated 24.03.2000 and the appointment letter dated 29.09.2011, it is crystal clear that the appointment of the applicants in the post of Beldar is an appointment to a different post altogether as per the order of this Tribunal and the applicants having accepted their regular appointment to the post of Beldar cannot turn around and seek pay protection in the post of Enquiry Clerks; nor they are entitled to count the  services  rendered  on  muster  roll  towards  their past services for purpose of ACP/MACP. The relevant portions of the averments are extracted below:

"1.[A] xxx xxx

[B] That both the petitioners were engaged as Enquiry Clerk on Muster Roll w.e.f. 17.10.1995. However, their services were regularized w.e.f. 12.10.11 and 14.10.11 respectively in the post of Beldar on their unconditional request. Since pension was discontinued w.e.f. 1.1.2004, they were admitted in Contributory Provident Fund (CPF) Scheme.

[C] That the service rendered as casual labour cannot be claimed for the purpose of ACP/MACP as per ACP/MACP Rule. Copies of the Rules ACP/MACP are annexed hereto and marked as Annexure R.1 colly.

xxx xxx

4.11. (Wrongly mentioned as 4.8) That the claim of pay protection is untenable. Referring judgment of Hon'ble CAT in OA No. 1026/13 is distinct and not applicable in the present facts of the case. The benefit of pension and pensionary benefits were allowed to the applicants in that OA because they were conferred temporary status and service rendered as Temporary Status after regularization is treated regular service from the date of temporary status. Whereas in this case no Temporary Status was granted to the applicants. Their first appointment in Service of Union is in the post of Beldar."

In view of the facts and circumstances narrated above, we are of the view that the relief prayed for by the applicants cannot be granted. Accordingly, OA is dismissed. MAs pending stand disposed of. No order as to costs.