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PETITIONER: UNION OF INDIA & ANR.

       Vs.

RESPONDENT: K.N. SIVADAS & ORS.

DATE OF JUDGMENT:       01/08/1997

BENCH: SUJATA V. MANOHAR, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT:   [With Civil Appeal No. 5268/97 {@ SLP[C] No. 17422/95},  Civil Appeal Nos. 126/96, 124-125/96, 127-130/96 & 131/96]                       J U D G M E N T Mrs. Sujata V. Manohar. J.      Leave granted in S.L.P.(C) No. 17422 of 1995.      Application for impleadment in C.A. Nos. 124-125/96 are allowed.      The respondent  in these  appeals were, at the material time, in  the Reserved  Trained Pool  of Post and Telegraphs Department, Government  of India.  After the  bifurcation of the  two  departments  in  the  year  1988  the  respondents continued in  the Reserved  Trained Pool of their respective departments.      The Reserved  Trained Pool  was set up in October 1980. Under a  circular  bearing  60/36/80-SPB  I  dated  30th  of October, 1980  issued by the office of the Director General, Indian Posts  & Telegraphs  Department, a  scheme was framed for constitution  of a  standing pool  of  trained  reserved candidates for  Post and  RMS offices.  The circular set out that in  may operative  offices the  smooth flow of work was hampered by  shortage of  staff due to absenteeism and other cause. Meeting  this shortage with overtime arrangements was not always  a satisfactory  solution. Hence  it was  decided that  a   standing  pool   of  trained   reserve  candidates (hereinafter referred  to as  RTPs) should be formed in each recruiting unit to meet these short-time needs and recurrent needs. The  scheme was  made applicable the cadres of Postal Assistants and Sorting Assistants. As per existing practice, at the  time of  each recruitment, after the select list was drawn up. an additional list of candidates known as Part ‘B’ or part  II list was being prepared by each recruiting unit. The candidate  in part ‘B’ list were called up against drop- outs from  the main  list. They  were imparted training only after they  were brought  to  the  main  list.  It  was  now proposed under  the new  scheme that  after the main list is drawn up,  a specific  additional reserve list of candidates equal in  number to  50% of  the number of candidates in the main select  list will  be drawn  up. The  candidates in the reserve  list  will  also  be  imparted  training  like  the candidates in  the main  list. The candidates in the reserve

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list will  constitute a  standing pool  of trained  reserve. They will  be absorbed  in regular  vacancies in  their turn after the  candidates in  the main  list are  absorbed. Till then they will be used as short duty staff against vacancies due to  absenteeism or  any other reason. Besides, they will be used  for handling  peak hour  work. Since the purpose of having them  as  short  duty  staff  is  to  minimise  staff shortages, they  may be called for engagement depending upon their  ready   and  easy  availability  on  demand  and  not necessarily in  the order  of their position in the reserved list. Their  eventual absorption,  however, will  be in  the order of  their merit.  They may  be employed accordingly to needs but  subject to  a maximum  of eight hours a day. They will be  paid on  hourly rates  of wages.  Clause 5  of  the circular provides  for the manner of absorption. It say that reserved candidate  are recruited  as a  stand-by  over  and above the  vacancies announced  at the  time of recruitment. The surplus  recruited candidates  will be given priority of absorption against  vacancies for  subsequent recruitment in the manner which is set out in that clause.      This scheme  was in  operation from  the  date  of  the circular till  4.3.1986 when  the scheme  was abolished. The initial creation of reserved pool was on the basis of 50% of the notified  vacancies. In 1982, the percentage of reserved pool was  reduced to  15% of  the  notified  vacancies.  The entire scheme  was abolished  with effect from 4.3.1986. The respondents in the appeals were recruited as RTPs. They have been since  absorbed as  regular employees  on various dates from  1988   to  January  1990  (with  a  few  exception  as hereinafter set out)      The respondents  filed  applications  before  different Benches of  Central Administrative Tribunal claiming reliefs similar to  those which  were granted  to casual  labours in their department  in view  of a  scheme  framed  for  casual labourers in  the year  1989 as  per the directions given by this Court  in Jagrit  Mazdoor Union  (Regd.)  and  Ors.  v. Mahanagar Telephone Nigam Ltd. and Anr. (1990 Supp SCC 113). The respondents prayed that the benefits which were given to the casual labourers under the scheme which came into effect in the  year 1989  should be  given to them with effect from the date  they were recruited as RTPs till the date of their absorption  as   regular  employees.   The  first   of  such application  came   up  before  the  Central  Administrative Tribunal, Ernakulam  Bench which  is the  before the Central Administrative  Tribunal,   Ernakulam  Bench  which  is  the subject-matter of  CA Nos.  80-123  of  1996.  The  Tribunal directed that  the  applicants  before  them  who  had  been rendering service  for eight  hours a  day continuously,  on completion of  one year  of such service should be deemed to have attained  temporary status and half the period of eight hours a  day should  be counted  for qualifying  service for pension. It  also directed  that  all  other  benefits  made available  to  casual  mazdoors  after  attaining  temporary status should  be extended  to the  applicants  as  set  out therein and  that the applicants should be paid productivity linked bonus  during the  period when they were RTPs if they had completed  240 days of service each year for three years after their  recruitment as  RTP candidates. Similar reliefs have been given by the Hyderabad Bench of the Tribunal also. Hence the  department had  filed the  present  appeals  from these judgments of different benches of the Tribunal.      The directions  given  by  the  Central  Administrative Tribunal are  based upon  a decision of this Court in Jagrit Mazdoor Union  (Regd.) and Ors. v. Mahanagar Telephone Nigam Ltd. &  Anr., (1990 Supp SCC 113) (Supra). This judgment was

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in respect  of writ  petitions which  were filed  either  by casual labourers,  or by  reserved trained  pool  employees. This Court  after referring to certain interim orders passed in various  petitions before  it, referred in paragraph 5 to the scheme  known as  Casual Labourers  (Grant of  Temporary Status and  Regularisation) Scheme which had been formulated and put  into operation  from 1st of October, 1989. It said, "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......In  these   circumstance,  no  further  specific direction is  necessary in  the two  application relating to the two  Nigams of  Bombay and Delhi except calling upon the respondent to implement every term of the scheme at an early date." In  paragraph  6,  this  Court  dealt  with  the  two remaining  writ  petitions  by  the  RTP  employees  in  the Department of  Posts. It has recorded that after April 1986, about 7,000  RTPs have been absorbed. It said "Since the RTP category is  no more  expanding, only  about  2900  of  them remain to  be absorbed. We have been told by learned counsel for the  department  that  equal  number  of  justified  and supernumerary posts  are being  created by the ministry. The ministry’s proposal  is in  the hands  of  the  Ministry  of Finance for  approval and  is excepted to be finalised soon. This has  to be  done within  a time frame and we direct the posts of  both the  categories to  be created  by the end of January 1990,  and the process of absorption to be completed by March  31, 1990. With such absorption made, the RTPs will become  regular   employees.   All   their   claims   would, thereafter, be  regulated on  the basis  of  entitlement  in accordance with extant rules." The judgment was delivered in November 1989.  The expected  sanction was  obtained and all RTPs have  been absorbed  as regular  employees  in  January 1990.      Are reserved  trained pool  employees  prior  to  their absorption as  regular employees,  entitled to  the benefits which have  been given  to casual labourers under the Casual Labourers (Grant  of Temporary  Status  and  Regularisation) Scheme framed  under the  circular No.45-95/87-SPB  I, dated 12.4.1991  issued   by  the   Ministry   of   Communication, Government of  India, Department  of Posts  and brought into effect from  29.11.1989?  The  Casual  Labourers  (Grant  of Temporary Status and Regularisation) Scheme sets out that in compliance with the directions of the Hon’ble Supreme Court, a scheme  was drawn  up by  this department  in consultation with the  Ministries  of  Law,  Finance  and  Personnel  and President had been pleased to approve the scheme. The scheme provided that  temporary status would be conferred on casual labourers in employment as on 29.11.1989 and who continue to be currently  employed and  have rendered continuous service for at  least on  year. During  the year they must have been engaged for  a period  of 240 days. The scheme gives various benefits to casual labourers which are conferred with effect from 29.11.1989.  A casual labourer, therefore, is not given under the scheme any benefits prior to 29.11.1989. Under the scheme temporary  status is conferred on casual labourers if thy fulfil the various conditions and requirements laid down in  the   scheme.  Clause  7  provides  that  conferment  of temporary status  does  not  automatically  imply  that  the casual labourers  would be  appointed as  regular Group  ‘D’ employees with  any fixed  time frame.  Appointment to Group ‘D’ vacancies  will continue  to be  done as  per the extant recruitment rules, which stipulate preference to eligible ED employees. Therefore,  various benefits  which go  with  the conferment of  temporary status  were given  to these casual

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labourers in view of the fact that their eventual absorption as regular employees was not to be within any fixed time and they were  not  automatically  entitled  to  become  regular employees.      The position  of RTPs  is quite different. In the first place, the  very scheme  which constituted RTPs provided for their absorption  as regular  employees. With  this in mind, they were also given the same training as regular employees. They were  required in the meantime, to carry out short-term duties or  to handle  peak hour  traffic on  an hourly  wage basis. However, there was clear assurance in the scheme that they would  be accommodated  in future  vacancies as regular employees in  the manner  set out  in  the  scheme.  We  are informed that  there was  backlog in absorption because of a ban  on  recruitment  during  certain  years.  All  the  RTP employees have  been absorbed  as regular employees by 1990. Some of the respondents who are before us have been absorbed much earlier,  in the  year 1988.  Therefore, they  are in a much better  position than  casual  labourers  and  are  now enjoying all the benefits of regular employment. Their claim relates to  the period prior to their absorption. The entire period in effect, is either prior to 1988, or in the case of some of the respondents, prior to January 1990. The benefits which they  claim are the benefits which have been conferred on casual  labourers only after 29.11.1989. The respondents, however, are claiming these benefits for earlier periods (In respect of  those respondents  who were  absorbed in January 1990, their continuation as RTPs after 29.11.1989 is only of two months  duration). In  other words,  RTPs  are  claiming benefits for  a period  for which  a similar benefit has not been  conferred   on  casual   labourers  under  the  Casual Labourers (Grant  of Temporary  Status  and  Regularisation) Scheme.      The Tribunal,  in our  view, has erred in equating RTPs with casual  labourers. The position of these two categories of employees  is very  different as we have already set out. The  Tribunal   has  also  erred  in  assuming  that  casual labourers are  getting these  benefits during the period for which the  RTPs  are  claiming  these  benefits.  RTPs  have already  obtained  the  benefit  of  absorption  in  regular service  because  of  their  own  scheme.  They,  therefore, cannot, on  the one  hand, avail of their own special scheme and at the same time, claim additional benefits on the basis of what  has been  given to  the casual  labourers. This  is unwarranted, especially  as the  period for which they claim these benefits is the period during which such benefits were not available to casual labourers.      Among the  various benefits  the Tribunal  gave to  the respondents (RTPs) productivity linked bonus if they had put in, like  casual labourer, 240 days of service each year for three years  or more  on the  basis of  its judgment in O.A. 612/89 and  O.A. 171/89.  The appellants have submitted that although the  order in these two O.As. was not challenged in appeal, it  should not  be automatically  made applicable to all RTPs. The appellants have relied upon the observation of this Court  in State  of Maharashtra v. Digambar (1995 4 SCC 683) to the effect, inter alia, that non-filing of an appeal before this  Court by the State in similar matter, by itself cannot operate  as a  fetter for  this Court in entertaining special leave  petitions subsequently filed even if they are considered as  relating to  similar matter  when this  Court finds that the relief which was granted was wrong; specially when  there  is  every  possibility  that  such  relief  may continue to  be granted  to other  complainants who  may  go before that  forum, which  may ultimately  result in  a  big

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financial loss  to the  State. There  is substance  in  this submission because  we find  that  the  reliefs  which  were granted by  the Tribunal  are wholly unwarranted, looking to the service  conditions of  RTPs as  compared to the service conditions of casual labourers.      In C.A. Nos. 124-125 of 1996 the respondents originally worked as  Telegraph Assistants in various Central Telegraph Offices in  their reserved trained pool and were absorbed in regular service  in 1992. In their department, the scheme of temporary status  and regularisation  for casual labours has come into  effect form 1.10.1989. Their case in no different from the  case of other RTPs although undoubtedly, they have been regularised  a  little  later.  As  stated  above,  the position of  RTPs is  very different  from the  position  of casual labourer  and the Tribunal could not have equated the two.      In C.A.  Nos. 127-130  of 1996  the RTPs  who have been regularly absorbed  in the  year 1988  have been  given  the benefit of counting their service as RTPs for the purpose of think   eligibility   to   appear   for   the   departmental examination. The  relevant rule provides that the candidates "must have  put in  at least 5 years continuous satisfactory service in  one or  more eligible  cadres" before  they  can appear for  the examination.  The eligibility  is related to five years  service in  the cadre.  Any  service  which  was rendered prior  to regular  appointment in the cadre, cannot count for  the purpose  of this  rule because  it cannot  be considered as  service in  any eligible  cadre. The Tribunal was, therefore,  wrong in  granting to  RTPs the  benefit of service rendered by them prior to their regular appointment, for the  purpose of  their eligibility  to  appear  for  the departmental promotion examination.      In the  premises, all  these appeals  are allowed,  the impugned judgments  of the  Tribunal are  set aside  and the original  application   filed  before   the   Tribunal   are dismissed. There will, however, be no order as to costs.