Dismissed

Bharat Sanchar Nigam Limited Through Its Telecom District Manager Pushp Kishore Singh v. Union Of India Through The Chairman Cum Cum Director General And Ors.

Jharkhand HC20 Mar 2023WPC/6415/2017

Case brief

AI extract

What is this about?

In a writ petition, BSNL challenged a Central Administrative Tribunal order directing consideration of an applicant's claim for temporary status. The Court analyzed eligibility criteria regarding attendance and service breaks, concluding that the Tribunal correctly applied principles of equal treatment among similarly situated employees.

What did the court decide?

The writ petition challenging the Central Administrative Tribunal's order was dismissed.

Bharat Sanchar Nigam Limited Through Its… — Pension and Retirement Benefits | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(S) No. 6415 of 2017

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Bharat Sanchar Nigam Limited having its office at Bharat Sanchar Bhawaan Janpath, P.O. and P.S. Janpath, New Delhi 110001 through its Telecom District Manager, Dumka namely, Pushp Kishore Singh S/o Late Gangadhar Singh R/o Kundu Bunglow Road Madhupur P.O. Madhupur, P.S-Madhupur, District-Dumka (Jharkhand) .…… Respondent/ Petitioner

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Versus

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Md. Chunnu Jawed Eqbal, S/o Md. Abdul Halim, R/o Village Singhauli, P.O. & P.S Hisua, District Nawada, Bihar.

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……. Applicant/Respondent

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Union of India through the Chairman cum Director General, BSNL, New Delhi.

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Chief General Manager, BSNL, Bihar Circle, Patna.

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Telecom District Manager, BSNL, Bhagalpur.

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Chief General Manager, BSNL, Jharkhand Telecom Circle, Ranchi.

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General Manager, [GMTS], Jharkhand Telecom Circle, Ranchi.

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The Sub-Divisional Engineer [Group], Sahibganj.

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The Assistant Engineer, [M.W.P.], Bhagalpur

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The A.O. [Cash], BSNL, Dumka, Jharkhand.

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10.Shri N.K. Singh, then S.D.E. [G], Dumka.

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……. Proforma Respondents

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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE SUBHASH CHAND

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---------- For the Petitioner : Mr. Prabhat Kumar Sinha, Advocate

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08/Dated: 20^th March, 2023 Per: Sujit Narayan Prasad, J.

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The writ petition has been filed under Article 226 of the Constitution

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of India wherein the order dated 10.01.2013 passed by the learned Central Administrative Tribunal, Patna, Circuit Bench at Ranchi in O.A. No.155 of 2010(R) is under challenge by which the direction has been passed upon the respondent/writ petitioner to consider the case of the applicant in the light of the observation made in the impugned order by interfering with the order dated 10.07.2007 as has been appended as Annexure-6 to the paper book.

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2. The brief facts of the case as per the pleading made in the writ petition which requires to be enumerated, reads hereunder as:

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The Telecom District Manager, Dumka pursuant to the direction dated 22.07.2002 passed by the Central Administrative Tribunal in O.A. No.578 of

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2000 vide order dated 20.02.2004 found that the claim of the respondent for conferment of temporary status and regularization of service subject to final approval of the BSNL Headquarter. Thereafter, the AGM, Administration, office of the CGM Telecom, Jharkhand Circle, Ranchi sent a request letter dated 09.06.2004 to the Assistant Director General (Pers.-IV), BSNL, Sanchar Bhawan, New Delhi for necessary approval for conferment of temporary status to the respondent. In its response the Assistant Director General (Pers.-IV), BSNL, Sanchar Bhawan, New Delhi vide letter dated 19.07.2004 addressed to the Chief General Manager, BSNL intimated that the respondent has been engaged as casual labour despite being total ban on recruitment and further directed to identify the erring officers responsible for this and to take suitable disciplinary action against them. The Assistant Director General (Pers.-IV), BSNL, Sanchar Bhawan, New Delhi vide its letter dated 10.03.2006 addressed to the Chief General Manager, BSNL directed to intimate the present status of the respondent and the details of his engagement calendar year wise. Thereafter the AGM (Admin), Office of the (C.G.M.T), Ranchi vide its letter dated 05.02.2007 intimated the BSNL, Corporate office wherein it was stated that the respondent is not working in the department since February, 1999. In view of the aforesaid issue the conferment of temporary status of the respondent was reviewed by the General Manager (C.M.T.S) vide its order dated 10.07.2007 wherein it was found that the essential conditions required under the schemes of temporary status to casual labourers have not been satisfied and therefore, the respondent is not eligible for conferment of temporary status and subsequent regularization of service.

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The applicant/respondent herein filed O.A. No.495 of 2009 before the Central Administrative Tribunal, Patna Bench, Patna which was renumbered

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as O.A. No.155 of 2010 (R) before the Central Administrative Tribunal, Circuit Bench, Ranchi challenging the order dated 10.07.2007 passed by the General Manager (C.M.T.S), Jharkhand Telecom Circle, Ranchi is in contravention to the order dated 20.02.2004 passed by the Telecom District Manager, Dumka pursuant to the direction passed by the Central Administrative Tribunal in O.A. No.578 of 2000. The learned tribunal while appreciating the fact that the applicant/respondent herein is fulfilling the essential condition for conferment of the temporary status directed to consider the case of the respondent vide order dated 10.01.2013 passed in O.A. No.155 of 2010(R) against which this writ petition has been filed.

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3. The applicant/respondent no.1 who was working in the daily rated capacity as would appear from the impugned order dated 10.01.2013 with effect from 01.01.1984 and thereafter break in service has been shown and again allowed to work. The case of the applicant/respondent no.1 which led to approach the Central Administrative Tribunal by filing original application is on the basis of the scheme issued by the Department of Telecommunication as contained in letters dated 14.08.1998 and 12.02.1999 wherein three conditions have been stipulated for consideration of giving temporary status and regularization:

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(i) The concerned person is required to on roll as on 01.08.1998.

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(ii) He is to possess 240 days on the date of the attendance.

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(iii) There may not be break in service during the posted period.

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The grievance of the applicant/respondent no.1 as was agitated before the Tribunal as even though he is fulfilling the aforesaid condition stipulated under the letter dated 14.08.1998 and 12.02.1999 but since he was not allowed the official duty on or after 31.01.1999 and hence the prayer was made before the Tribunal for granting of temporary status and regularization

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by taking into consideration the fact that the applicant/respondent no.1 is fulfilling the condition contained in the circular dated 14.08.1998 and 12.02.1999. The writ petitioner, after having been called upon by the Tribunal, has taken the ground that the applicant/respondent no.1 is not fulfilling the condition stipulated in the letters dated 14.08.1998 and 12.02.1999 and as such he is not entitled for taking temporary status as also for regularization. The learned Tribunal, after considering the objection raised on behalf of the writ petitioner, has discarded the same by considering the fact that the respondent/writ petitioner has failed to satisfy the learned Tribunal regarding the fact about non-fulfillment of the three conditions required for taking a person who is working in the daily wage capacity under temporary status and for regularization. The learned Tribunal, therefore, has passed order by putting reliance upon the order passed by another Tribunal in O.A No.599 of 1996 and 32 others wherein the cases of similarly situated casual labourers have been dealt with by taking into consideration the order of termination passed against them which was within a period of one and half years of the filing of the application and applying the same in the given facts of the case, the applicant/private respondent herein who has filed original application within the period of one and half years and as such passed the similar order as was passed in O.A No.599 of 1996 and 32 others.

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The said order has been questioned by filing this writ petition by invoking the jurisdiction conferred to this Court under Article 226 of the Constitution of India mainly on the ground that the Tribunal has failed to appreciate the fact that the applicant to O.A No.599 of 1996 and 32 others even though was not fulfilling the criteria as contained in letters dated 14.08.1998 and 12.02.1999 but the similar order has been passed as was passed in O.A No.599 of 1996 and 32 others and therefore, the impugned

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order passed in O.A. No.155 of 2010(R) suffers from illegality since the same is based upon non-consideration of the factual aspect in right perspective.

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4. We have heard learned counsel for the petitioner/respondent to the original application and on consideration of the order passed by the learned Tribunal wherein the claim of the applicant since was based upon the letter dated 14.08.1998 and 12.02.1999, therefore, this Court consider it first to go through the content of the letter dated 14.08.1998 and 12.02.1999 so as to consider the case of the parties, more particularly the case of the applicant as to whether he, on the basis of the decision taken by the petitioner/respondent was at all eligible for consideration of his case for granting temporary status and regularization.

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5. It is evident from the record that the circular dated 14.08.1998 and 12.02.1999 contains three conditions:

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(i) The concerned person is required to on roll as on 01.08.1998.

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(ii) He is to possess 240 days on the date of the attendance.

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(iii) There may not be break in service during the posted period.

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It further appears from the impugned order as per the discussion made

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therein regarding the case of the applicant who was found to be on roll as on 01.08.1998, i.e., the first condition as per the decision of the petitioner for taking such employee on temporary status and regularization. The Tribunal has also considered by going through the attendance of the concerned employee having found that the applicant had regularly discharged duties for 240 days on the basis of his attendance and there was no break period till 31.01.1999. The Tribunal, on the basis of the three conditions as contained in the letters dated 14.08.1998 and 12.02.1999, come to the conclusion that

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the applicant since is fulfilling the criteria, therefore, he is entitled for consideration of his case.

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It further appears from the impugned order passed by the learned Tribunal wherein the reference of an order passed in O.A No.599 of 1996 and 32 others has also been made and the learned Tribunal while considering the said order passed on 11.10.2006 wherein in the similar circumstances the cases of the casual labourers even though their services were terminated which was within a period of one and half years from filing of application, has directed to consider their cases for granting temporary status and regularization. The learned Tribunal after considering the case of the applicant also on the ground as to whether the applicant has been allowed to discharge the duty for a period of one and half years as to bring him at par with the cases of the applicant of O.A No.599 of 1996 and found that the application has also been filed by the applicant within the period of one and half years, i.e., O.A. No.155 of 2010(R).

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6. The ground which has been agitated on behalf of the writ petitioner that the applicant is not fulfilling the condition, since, there is break in service . The learned counsel for the writ petitioner in order to fortify his argument has referred the impugned order dated 10.07.2007 wherein the claim of the applicant/private respondent has been rejected on the ground that he was absent for the period from 01.04.1985 till 31.01.1996, not been paid for the period from 01.03.1997 to 31.03.1997 and not worked from 01.02.1999 onwards and therefore, has come to the conclusion that there is break in service and as such he is not entitled to be given the benefit of the guideline dated 14.08.1998 and 12.02.1999.

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7. We, on consideration of the aforesaid argument and taking into consideration the guideline, are of the view that the question of break in

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service is only required to be considered during the period of continuation of service of 240 days i.e. in a calendar year and the aforesaid aspect of the matter is not in dispute, since, there is no denial to that aspect of the matter that the applicant was on roll as on 01.08.1998 and having 240 days attendance and there was no break in service till 31.01.1999. However, the applicant was restrained from discharging his duty after 31.01.1999 but the same cannot be a ground not to give the benefit of the policy decision as taken by the department of Telecommunication vide letter dated 14.08.1998 and 12.02.1999 reason being that the only requirement to consider as to whether the concerned person who was on roll as on 01.08.1998 had discharged his duties continuously for a period of 240 days which is not in dispute.

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Further the applicant was not allowed to discharge his duty after 31.01.1999 but the said ground has also been taken by the Tribunal by taking into consideration the fact that the order passed by the Tribunal in O.A No.599 of 1996 and 32 others wherein the employee who were terminated within the period of one and half years since has filed application before the Tribunal and therefore, the reliefs, under the scheme vide letter dated 14.08.1998 and 12.02.1999, were directed to be granted in favour of the O.A No.599 of 1996 and 32 others and considering the aforesaid aspect of the matter and taking into consideration the fact that the applicant of the instant application since has filed original application within the period of one and half years by filing O.A. No.578 of 2000 which was immediately after restrainment in discharging duty i.e. 31.01.1999 and therefore, considered the case of the applicant at par with the applicants of O.A No.599 of 1996 and 32 others and has directed to consider the case of the applicant as per the order passed by Tribunal in O.A No.599 of 1996.

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8. The question of legality and propriety, therefore, as has been agitated by the petitioner is not sustainable in the eye of law, according to our considered view, for the reason that when in the similar circumstances the direction has already been passed by the Tribunal by passing an order on 11.10.2006 in O.A. No.599 of 1996 and 32 others there is no reason not to consider the case of the applicant at part with the applicants of the O.A. No.599 of 1996 and 32 others. Even though the law is well settled that if any court of law is deciding an issue and the order is being passed, it is the bounden duty of the respondent concerned to consider the cases of the other similarly situated at par with the consideration so made by the court of law as has been held by Hon’ble Apex Court in the case of State of Uttar Pradesh and Others v. Arvind Kumar Srivastava and Others reported in [(2015) 1 SCC 347] , wherein at paragraph 22.1 it has been held, which reads as under:

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“ 22.1 . The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.”

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9. This Court after taking into consideration the facts in entirety as per the discussion made in above, is of the view that this case is not coming under the fold of showing interference with the order passed by the learned Tribunal in O.A. No. 155 of 2010(R) dated 10.01.2013, since, the writ petitioner has failed to point out any error apparent on the face of record

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which is the primary consideration to be made while exercising the power to

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issue writ of certiorari.

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10. Accordingly, the instant writ petition fails and is dismissed.

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11. Pending interlocutory application (s), if any, stands disposed of.

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(Sujit Narayan Prasad, J.)

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