Smt. Sunita Shrotriya vs Union Of India & Ors.

Ms. Shrishti Singh, learned counsel for the applicant, and Shri Vinod Kumar Pandey, learned counsel for the respondents, are present and heard.

Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-

The brief facts of the case are that the husband of the applicant was appointed as a Contingency Paid Chowkidar on 04.09.1978 in the respondents department. He was granted temporary status vide order dated 29.11.1989. During his service, he was granted earned leave, casual leave, annual increments, Bonus and LTC facilities. GPF contributions were also deducted from his salary. The husband of the applicant died on 31.10.2017 while in service. The applicant submitted a representation dated 22.11.2017 before respondent no.2 seeking pension and other retiral benefits of her husband, pursuant to which the letter dated 06.12.2017 was issued to respondent no.3 for consideration of the claim of the applicant Central Administrative Tribunal^{but no action has been taken. Being aggrieved, the applicant has} filed the present OA seeking grant of pension and all other retiral benefits from the date of death of her husband. The applicant claims that since her husband was appointed as Contingency Paid Chowkidar on 04.09.1978 and performed his service without any break till his death on 31.10.2017, he should be treated as a regular employee. Learned counsel for the applicant has further relied upon Clause 154(a) of the Posts and Telegraphs Establishment Manual and claims that the applicant is entitled to pensionary benefits as due to her husband at par with other Group ‘D’ employees.

The respondents, in their counter affidavit, have stated that the applicant’s husband was engaged as a Contingency Paid Chowkidar with effect from 04.09.1978 on daily-wage basis. He was granted temporary status vide order dated 29.11.1989. However, according to the respondents, the applicant’s husband was not regularised in the Group ‘D’ cadre prior to his death. Therefore, the respondents contend that he was not entitled to retirement benefits applicable to permanent Group ‘D’ employees and the claim of the applicant is not acceptable.

Learned counsel for the applicant argued that the services of the applicant’s husband were liable to be regularised on the ground that he had been granted temporary status and on completion of about 28 years of service without break, he shall be deemed to be a regular employee and as per clause 154(a) of Post and Telegraph establishment manual, he is entitled for the retiral benefits at par with other Group ‘D’ employees. Learned counsel for the applicant further argued that the applicant’s husband died on 31.10.2017 while in service and after his death she was entitled for pension and the retiral dues of her husband. However, despite having rendered about 28 years of continuous service, the respondents have denied her pension and other retiral benefits. It was further submitted that mere fact that the applicant’s husband was not formally regularised in the Group ‘D’ cadre cannot be a Central Administrative Tribunal^{ground to deny him pensionary and other retiral benefits,} particularly when he was granted temporary status. Thus, he argued that the OA be allowed and the respondents be directed to grant pension and all other retiral benefits to the applicant.

Learned counsel for the respondents opposed the claim of the applicant and submitted that the applicant’s husband was only granted temporary status and was never regularised in the Group ‘D’ cadre. It was further submitted that the applicant cannot claim the benefit of her husband’s regular service only on the ground that her husband had worked for a long period. The fact that the applicant’s husband was granted certain service benefits during his engagement does not confer upon him the status of a regular employee. Thus, he argued that the applicant is not entitled to claim pension and other retiral benefits by treating her husband’s entire service as regular service. The OA is, therefore, liable to be dismissed.

I have considered the rival submissions and have gone through the record carefully.

The facts which are not in dispute are that the applicant’s husband was appointed as a Contingency Paid Chowkidar on 04.09.1978 and was granted temporary status vide order dated 29.11.1989. It is also not disputed that the applicant’s husband continued to work in the department for about 28 years without any break and was granted various service benefits, including earned leave, casual leave, annual increments, Bonus, LTC and GPF facility. He died while in service on 31.10.2017.

The main objection of the respondents is that the applicant’s husband was never formally regularised in the Group ‘D’ cadre and, therefore, his service cannot be counted for pensionary benefits. In my opinion, the said objection cannot be accepted. The applicant’s husband was not merely a daily-wage worker, he was granted temporary status by the department itself in the year 1989 and thereafter continued in service for more than two Central Administrative Tribunal^{decades. The respondents also extended various service benefits to} him during this period. There is nothing on record to show that the service of the applicant's husband was discontinued at any stage or that his work was found unsatisfactory.

Post and Telegraph Ministerial Manual Establishment Rule 154 (a) provides that “selected categories of whole time contingency paid staff, such as Sweepers, Bhisties, Chowkidars, Chobdars, Mails or Gardeners, Khalassis and such other categories as are expected to work side by side with regular employees or with employees in work charged establishment, should, for the present, be brought on to regular establishment of which they form adjuncts and should be treated as “regular employees”.

The applicant by placing reliance upon para 154(a) of the Manual of Appointment and Allowances of Officers of the Indian Posts and Telegraphs Department contended that she is entitled for all retiral benefits due to her husband by virtue of her husband’s service as may be admissible to comparable staff in the regular group ‘D’ employee.

In the case of Union of India and others Vs. Shyam Lal Shukla and another in Civil Misc. Writ Petition No. 60272 of 2009 decided on 23.12.2011, Hon’ble High Court of Allahabad has observed as under:-

In O.A No. 917/04 – Chandi Lal Vs. U.O.I and Ors. decided on 2.9.2005 by CAT, Allahabad Bench of this Tribunal, the applicant was working in the Department of Posts on work charged establishment w.e.f. 15.4.1982. He was granted temporary status w.e.f. 29.11.1989 and thereafter, he was brought on the pay scale of Group ‘D’ employee and also accorded service benefits admissible to the Group ‘D’ employee. Though no formal order of the regularisation was issued in the said case, the Tribunal held that the applicant was entitled to pension treating him a Group ‘D’ regular employee. The Writ Petition No. 11297/2006 filed against the said order was dismissed by Hon’ble Allahabad High Court vide order dated 02.03.2007 and Hon’ble Supreme Court also upheld the order of Tribunal and High Court vide order dated 03.03.2008 passed in SLP (Civil) case No. 11297/2006 (CC 3248/2008).

The facts and circumstances of the present case are similar. The applicant’s husband had continued in service after attaining the temporary status till his death for a period of nearly 28 years. Therefore, it would not be proper to deny the applicant the pensionary benefits accruing to her husband by dint of the services rendered by her husband merely because no separate formal order of regularisation in Group ‘D’ cadre was issued.

The respondents have not disputed the fact of the continuous service or the grant of temporary status to the deceased employee. Their only objection is that there was no formal regularisation in Group ‘D’. Such a technical objection cannot, in the facts of the present case, be permitted to deprive the applicant of family pension and other retiral benefits, particularly when the applicant’s husband was treated as an employee of the department for a very long period.

Thus, relying upon the judgments passed by the Hon’ble High Court as well as by the Hon’ble Supreme Court, the O.A. is allowed, the services of the applicant’s husband shall be deemed to have been regularized, therefore, the respondents are hereby directed to grant the applicant family pension and other retiral benefits (including the arrears) as accrued to her husband by considering him a regular employee within a period of three months from the date of receipt of certified copy of this order failing which a penal interest at the rate of 6% per annum shall also apply. No order as to costs. All associated MAs are disposed of.