Wilson Y. vs Union Of India & Ors.

Per: Justice Sunil Thomas, Judicial Member – The applicant who is a retired Track Maintainer, aggrieved by the refusal on the part of the respondents to grant him the benefit of regularization at par with his junior and colleagues in the list of retrenched casual labourers, has approached this Tribunal.

The applicant was a person born in the list of retrenched casual labourers and hence claimed to be entitled to be absorbed on regular basis, in the light of the decision of the Supreme Court in Inder Pal Yadav v. Union of India & Ors. [(1985) 2 SCC 648]. Such absorption was to be made from a live register maintained by the respondent authorities based on the number of days of casual service rendered by each of such casual labourer. According to the applicant though he was called for such absorption during 2003 against vacancies which were in existence as on 1.1.2003 there was considerable delay in absorbing the applicant which according to the applicant was due to reasons directly attributable to the respondents. He was absorbed by Annexure A1 order dated 11.10.2004. The applicant claims that being an OBC he was entitled to be absorbed against the vacancies reserved for such category.

One Viswanathan born on the same list was absorbed in the year 2007. However, he was shown to have been absorbed with effect from 1996. Hence, several other persons whose names were borne in the list of retrenched casual labourers and subjected to verification of records during 2003, approached this Tribunal by filing a series of Original Applications claiming that they may be directed to be regularized at par with said Viswanathan. In the Original Applications, the respondents took a contention that Viswanathan ought to have been absorbed only with effect from 3.11.2003 and the date of 1996 was erroneous. Accordingly, the Tribunal, by Annexure A2 order in OA No. 1032 of 2011 held that the applicants therein were also entitled to be notionally regularized with effect from the admitted date of 3.11.2003 for the purpose of pension and other retirement benefits.

According to the applicant, one Malgan who was junior to Viswanathan approached this Tribunal by filing OA No. 784 of 2012 claiming same relief. By Annexure A3 order in OA No. 784 of 2012 the Tribunal declared that in so far as denial of consideration and absorption in the year 2003 was on account of unsustainable stand of the respondents, the benefit of absorption should be given with effect from 2003 to Malgan also.

OA No. 784 of 2012 and similar orders were taken up before the High Court of Kerala in OP (CAT) No. 138 of 2014 and connected cases, which, by Annexure A4 judgment upheld the decision to give notional absorption with effect from 3.11.2003. According to the applicant, the said orders have been implemented evidenced by Annexure A5 dated 20.3.2018. The applicant, retired on 31.5.2022. He submitted Annexure A7 representation dated 12.4.2023 claiming similar relief as that of many others in Annexure A1 appointed along with the applicant. Since there was no response, the applicant has approached this Tribunal seeking the following reliefs:

A reply statement was filed by the respondents, wherein it was contended that the applicant was recruited as a casual labour in Engineering/Construction Department with effect from 22.1.1979 and settled with a total period of 553.5 days. In the merged list of causal labourers retrenched prior to 1.1.1981 and after 1.1.1981 prepared based on the judgment in OA No. 1706 of 1994, his seniority position is 2190. The scheme framed by the Railways and approved by the Supreme Court in Inder Pal Yadav’s case (supra) does not specify any time limit or date for absorption. Hence, the absorption has to be on the basis of vacancies. In the instant case, the vacancy arose in the year 2004 against which applicant was absorbed and appointed. In 2003, retrenched casual labourers were called for by issuing necessary press notification to submit their original casual labour card and other certificates. In the course of such verification it was found that the applicant was initially engaged as a casual labour before attaining the minimum age of 18 years. Even though the period to attainment of age of 18 years ought not to have been considered, the empanelment of the applicant was considered by the competent authority based on the minutes of the meeting of the screening committee which was conducted on 12.3.2004, since he had put in 181.5 days of service after attaining the age of 18 years. The minutes of the committee meeting dated 20.9.2001 and 12.3.2004 were produced as Annexures R1 and R2 respectively.

Apart from the claim that the applicant was called for absorption in the year 2003, there is absolutely no material produced to establish it. The Annexure R2 minutes clearly shows that the applicant was empanelled for absorption by the committee which met on 12.3.2004 and not during 2003 as averred by the applicant in the OA.

Accordingly, the applicant was appointed as Trackman by Annexures R3 and R4. It was specifically stated therein that the applicant will be governed by the New Pension System from 1.1.2004. The applicant has not challenged this order till now. He joined immediately, accepting the said terms. Thereafter, after a period of 19 years he cannot agitate the same with a prayer to grant benefits of absorption with effect from 3.11.2003 for getting pension under the pre-1.1.2004 pension Rules.

The case of the applicant cannot be compared with that of Viswanathan or that of Malgan for the purpose of reckoning the qualifying service for determining the eligibility. The placement of Malgan in the seniority list is 2225 with 522 days of service. In the light of above, though the applicant had 553.5 days of service as casual labour and his seniority position in the merged list was 2190, the total service was considered at the time of empanelment which was 181.5 days only. Accordingly, it was submitted that the applicant was not entitled for any relief.

Heard both sides and examined the records.

Basic facts are not in dispute. It is admitted that the applicant was a retrenched casual labour who was empanelled for appointment in Group-D services as per the terms and conditions for filling up vacancies of Trackman, based on the scheme in Inder Pal Yadav’s case (supra). The applicant has a specific case that he was called upon for document verification on 3.11.2003. However, due to a dispute regarding the age, it got extended and he was absorbed only much later. He was absorbed by Annexure A1 order dated 11.10.2004. The basic claim of the applicant is that he ought to have been absorbed with effect from 3.11.2003 in tune with the decisions in the case of one Viswanathan, Malgan and several other applicants, who had obtained similar orders during various periods.

Even though it is specifically averred in the Original Application that he was called for verification during the year 2003 against vacancies which were in existence as on 1.1.2003, apart from an assertion that the applicant has not produced any document to substantiate it, the respondents who would have been in a better position to counter this argument has not produced any document to show the exact dates on which the applicant was called for document verification.

Applicant relied on Annexure A2 order in OA No. 1032 of 2011 wherein persons who were identically situated as that of the applicant herein had approached this Tribunal claiming the benefit of preponing their date of absorption, in the light of the case of Viswanathan, who had approached this Tribunal. In the case of Viswanathan, who was absorbed with effect from 1996, in Annexure A2 the contention set up by the respondent Railway was that Viswanathan ought to have been absorbed only with effect from 3.11.2003. Based on this submission, the Tribunal by Annexure A2 held that the applicants therein were entitled to be notionally regularized with effect from 3.11.2003. The order was on a basic premise that the applicants therein were called for verification in the year 2003. However, their claim was rejected on the ground that they had crossed the prescribed age limit. It was ultimately held that the delay occurred due to the respondents in giving effect to the regularization based on a wrong policy of the Railway in fixing an age limit. It was noted in Annexure A2 that the applicants therein had lost two years. It was found that Viswanathan was reengaged in 2003 and was granted the benefit of absorption with effect from 1996. He had lesser number of days of service as casual labour than the applicants therein. Hence, it was held that not granting the benefit of absorption from the date from which the absorption was due was arbitrary and discriminatory. Accordingly, the OA was allowed and they were directed to be given fixation of pay and annual increments with effect from 3.11.2003.

The above order was followed in OA No. 784 of 2012 in the case of Malgan. The direction in various OAs to reckon 3.11.2003 as the date of regularization in relation to persons who are claimed to be seniors to Vishwanathan and other similar matters were subject matter of consideration in OP (CAT) No. 138 of 2014 and connected matters. The directions in various OAs directing the respondents to regularize the concerned applicants therein with effect from 3.11.2003 for the purpose of reckoning the qualifying service for determining the eligibility for getting pension was considered and affirmed. It is also seen that subsequently, this Tribunal in OA No. 326 of 2023 has granted benefits to similarly situated persons. In OA No. 700 of 2017 and connected cases also the Bench of this Tribunal granted the relief. According to the applicant the applicant in OA No. 700 of 2017 was junior to the applicant. The said order was subject matter in OP (CAT) No. 85 of 2024 which affirmed the decisions in those connected matters.

The learned counsel for the applicant relied on the said decisions to contend that he is entitled to similar benefits. On the other hand, the counsel for the respondents vehemently contended that the applicant failed to establish that he was called for consideration in the year 2003. They relied on Annexure R2 minutes of the meeting for empanelment of retrenched casual employees including the applicant which was held on 12.3.2004. The applicant’s name figures in paragraph 3 at serial No. 1. It was contended that only by virtue of decision dated 12.3.2004 evidenced by Annexure R2, the applicant’s case was considered. Hence, the relief sought in the OA cannot be granted. Though it was contended that the case of the applicant was considered only on 12.3.2004, the first paragraph of Annexure R2 itself indicates that it was in continuation of the minutes of the committee which met on 15.7.2003 for empanelling certain persons. It seems that on a date anterior to Annexure R2 the records were considered for the purpose of regularization. In the case of applicant at paragraph 3 it was stated that the case of applicant along with two others were considered and placed for appropriate decision. Since the previous meeting was on 15.7.2003 definitely verification of documents could only be prior to that. It is also pertinent to note that various persons covered by Annexure A1 who were regularized along with the applicant were granted the relief as sought now. Typical example is the case of E.V. Bhavani who is at serial No. 23 of Annexure A1. Bhavani was the 4^th applicant in OA No. 326 of 2023 in which the relief was granted. All the applicants in OA No. 326 of 2023 are persons who were appointed along with the applicant by Annexure A1. Hence, we are inclined to accept the contention of the learned counsel for the applicant.

It is also an admitted fact that in Annexure A1 there is a specific averment that the applicant will not be eligible for any pension or any benefit under the State regulated Provident Fund or Gratuity Rules and that he along with others covered by Annexure A1 will be entitled for New Pension System with effect from 1.1.2004. This was projected by the ACGSC to contend that the OA is highly belated and the applicant acquiesced to the conditions. We are not inclined to accept. Since relief was granted to several similarly placed employees, applicant could have awaited similar relief.

Accordingly, the OA is allowed. The respondents are directed to regularize the service of applicant with retrospective effect from 3.11.2003 which shall be limited only for the purpose of pension and pensionary benefits. Appropriate orders shall be passed and the entire amount due to the applicant shall be paid as expeditiously as possible at any rate within a period of three months from the date of receipt of a copy of this order failing which it will carry 8% interest till payment. No order as to costs.