IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930 WP(C).No. 8271 of 2007(S) ------------------------- OA.523/2004 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS: ------------ 1. UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVT. OF INDIA, MINISTRY OF EXTERNAL ARRAIRS NEW DELHI. 2. THE REGIONAL PASSPORT OFFICER, PASSPORT OFFICE, CALICUT. 3. JOINT SECRETARY(CPV), CHIEF PASSPORT OFFICER, MINISTRY OF EXTERNAL AFFAIRS, PATIALIA HOUSE ANNEX, TILAK MARG, NEW DELHI. BY ADV. SRI.JOHN VARGHESE, ASSISTANT SG SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR RESPONDENTS: ------------- 1. RAVINDRANATH V.K., LOWER DIVISION CLERK, PASSPORT OFFICE, KOZHIKODE. 2. C.K.JAYALEKHA, LOWER DIVISION CLERK, PASSPORT OFFICE, KOZHIKODE. 3. SUHASINI.K, LOWER DIVISION CLERK, PASSPORT OFFICE, KOZHIKODE. 4. VINODINI.P, LOWER DIVISION CLERK, PASSPORT OFFICE, KOZHIKODE. 5. GEETHAMANI T.P., LOWER DIVISION CLERK, PASSPORT OFFICE, KOZHIKODE. 6. REMADEVI.P, LOWER DIVISION CLERK, PASSPORT OFFICE, KOZHIKODE. 7. PRABHAVATHI K.E., LOWER DIVISION CLERK, PASSPORT OFFICE, KOZHIKODE. 8. GIRIJA.N LOWER DIVISION CLERK, PASSPORT OFFICE, KOZHIKODE. 9. SIVARANI.P., LOWER DIVISION CLERK, PASSPORT OFFICE, KOZHIKODE. 10. BABY SREEJA.V., LOWER DIVISION CLERK, PASSPORT OFFICE, KOZHIKODE. 11. RAJAGOPAL P.T., LOWER DIVISION CLERK, PASSPORT OFFICE, KOZHIKODE. 12. SHEEBA V., LOWER DIVISION CLERK, PASSPORT OFFICE, KOZHIKODE. 13. VIJAYAN K., LOWER DIVISION CLERK, PASSPORT OFFICE, KOZHIKODE. 14. SREELATHA K., LOWER DIVISION CLERK, PASSPORT OFFICE, KOZHIKODE. 15. UNNIKRISHNAN K., LOWER DIVISION CLERK, PASSPORT OFFICE, KOZHIKODE. BY ADV. SRI.M.R.RAJENDRAN NAIR (SR.) SRI.M.R.HARIRAJ SMT.REKHA VASUDEVAN SRI.SURAJ.S SRI.P.A.KUMARAN SMT.VINEETHA B. SRI.S.NITHIN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/04/2008, THE COURT ON 09/04/2008 DELIVERED THE FOLLOWING: WPC.NO.8271/2007 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 COPY OF O.A.NO.523/04 OF C.A.T, ERNAKULAM, DATED 3.7.04. EXT.P2 COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS HEREIN IN O.A.523/04 DTD 16.9.04. EXT.P3 COPY OF THE ORDER OF THE C.A.T, ERNAKULAM IN O.A.523/04 DTD 2.5.06. EXT.P4 COPY OF THE O.M.NO.28036/10/92-ESTT(D) DTD 2.8.93. RESPONDETNS' EXHIBITS: EXT.R1(a) COPY OF THE ORDER NO.V.IV 578/18/97 DTD 29.12.2006 ISSUED BY THE ADMINISTRATIVE OFFICER (PV.IV) MINISTRY OF EXTERNAL AFFAIRS, (CPV DIVISION) NEW DELHI. EXT.R1(b) COPY OF THE ORDER NO.V.IV/578/138/85 DTD 8.5.06 ISSUED BY THE ADMINISTRATIVE OFFICE (PV-IV), MINISTRY OF EXTERNAL AFFAIRS, (CPV), DIVISION, NEW DELHI. EXT.R1(c) COPY OF THE JUDGMENT DTD 23.10.96 IN SLP(CIVIL) NO.11913/1996 OF THE SUPREME COURT OF INDIA. /TRUE COPY/ cl K. BALAKRISHNAN NAIR & P.N. RAVINDRAN, JJ. --------------------------------------------------------------- W.P.(C).NO.8271 OF 2007-S -------------------------------------------------------------- Dated this the 9th day of April, 2008. JUDGMENT Balakrishnan Nair, J: The petitioners were the respondents in O.A.No.523/2004 on the files of the C.A.T, Ernakulam Bench. The respondents were the applicants. 2. The applicants were casual employees working in the post of L.D.C in the Regional Passport Office, Calicut. Claiming regularisation in service, they moved the C.A.T, Ernakulam Bench by filing O.A.No. 1333/1991. By Annexure-A2 order produced along with Ext.P1 original application, the said O.A was allowed directing their regularisation subject to clearing a test as was held in 1985. The test was held, as if it was a regular selection by the Staff Selection Commission. So, they filed O.A.No.3/1994 before the C.A.T. The said O.A was allowed by Annexure-A3 order produced along with Ext.P1 directing that the test for regularisation shall be held as ordered in Annuexure-A2 judgment. Later, the respondents herein were finally regularised in 1997 but, their regularisation was WPC.8271/2007 . 2 given only prospectively. Therefore, they were again constrained to approach the C.A.T by filing O.A.No.1557/1998. The respondents herein contended that they were eligible to get regularisation with retrospective effect in view of Annexure-A2 judgment. The Tribunal, upholding the contentions of the applicants/respondents herein, directed the competent authority to re-consider the matter and pass fresh orders in accordance with law as per Annexure-A4 order dated 20.4.2001. The writ petitioners herein challenged the said decision before this Court by filing O.P.No.28474/2001. The matter was remitted to the C.A.T for fresh hearing and disposal as per Annexure-A5 judgment. The Tribunal again partly allowed the O.A by Annexure-A6 order dated 14.7.2003 ordering retrospective regularisation with effect from the date of their initial engagement for all purposes other than seniority. It was specifically ordered that they will be eligible to appear in promotion test taking into account their past service and the terminal benefits will also be granted taking into account the said service. The relevant portion of the said judgment reads as follows: “In the light of what is stated above, we allow the application in part. The claim of the applicants for seniority above respondents 4 to 43 with effect from the date of their initial WPC.8271/2007 . 3 engagement as casual labourers is rejected. Declaring that the applicants are entitled to have their service regularised as LDCs with effect from the dates of their initial appointment as Casual Labourers in view of the judgment of this Tribunal in OA.Nos.1037/91 and 1333/91, we direct the respondents to grant the applicants the benefit of regularisation with effect from the initial date of their engagement for all purposes other than seniority namely eligibility to appear in the promotion tests or examination and for terminal benefits etc. We also direct the respondents to issue appropriate orders notionally fixing their pay and date of regularisation accordingly. Annexure-A8 order is set aside finding that the orders issued hitherto did not amount to full implementation of the judgment of the Tribunal (Annexure-A1). There is no orders as to costs”. 2. A true copy of the above judgment is produced as Annexure- A6 in that O.A. But, when the judgment was implemented, they were not given the arrears of salary from their initial date of engagement. They were given only notional fixation of pay from the said date and arrears were paid only prospectively. Annexure-A8 is one of the orders issued fixing the pay by the competent authority in implementation of Annexure A6 judgment. The same was done based on Anneuxre-A1 common order. Challenging Annexures-A1 and A8, the present O.A was filed. 3. The writ petitioners resisted the application by filing WPC.8271/2007 . 4 Ext.P2 reply statement. After hearing both sides, the Tribunal allowed the application by Ext.P3. The operative portion of the said order reads as follows: “In the result, we allow the application with the following orders/directions: (i) For the purpose of ACP benefit, the services of the applicants from the initial date of engagement should be considered. (ii) The applicants are entitled to back wages likewise from the initial date of engagement and (iii) Their breaks in services should be duly reconsidered under the CCS Leave Rules for appropriate treatment for working out the dates of increments and arrears”. 4. The C.A.T granted the above benefits taking into account the earlier directions of the Tribunal, which have become final. But, the writ petitioners attacked the above directions relying on the operative portion of Annexure-A6 quoted above. According to them, the Tribunal permitted notional fixation of pay with effect from the date of initial engagement. The same pre-supposes that the incumbent is not entitled to get the arrears of salary. WPC.8271/2007 . 5 Secondly, it is submitted that, for ACP benefit, only regular service which starts from regular appointment alone can be counted. Regarding grant of leave, it is submitted that, the provisions of Rule 31(1) of the CCS Leave Rules are not applicable to the respondents. 5. We heard the learned counsel for the respondents also. Going by the earlier decisions of the C.A.T, the view taken by the Tribunal in Ext.P3 judgment that the respondents are entitled to get the arrears of salary is perfectly legal and valid. The direction to fix the salary notionally with retrospective effect cannot be read in isolation. The Tribunal held that the notionality referred to is the date and not the flow of benefits and therefore the back wages from the date of regularisation should flow into the hands of the applicants. The arrears of salary being one of the components of the benefits flowing from A6 order of the C.A.T, if the Tribunal wanted to exclude it, the same could have been specifically excluded. Therefore, we agree with the reasoning of the Tribunal for upholding the claim of the respondents for back wages. For the very same reason, they are entitled to count their service for promotion under WPC.8271/2007 . 6 the ACP scheme also. Annexure-A6 specifically provides that their service can be counted for promotion. A.C.P is also a form of promotion for persons stagnating without regular promotion. Regarding how broken periods of absence during casual service should be treated, the writ petitioners took the view that the respondents should be granted leave not due which will be adjusted towards leave that may accrue in future. Such leave can be granted, if only the circumstances mentioned in Rule 31(1) of the CCS Leave Rules are satisfied. The Tribunal set aside the stand taken by the writ petitioners on the ground that leave not due can be granted only on medical grounds. So, the Tribunal rightly interfered with that. The present stand of the writ petitioners in this writ petition is that Rule 31(1) will not apply to the respondents. Therefore, it is unnecessary for them to challenge the direction of the C.A.T. 6. In the result, we find that no ground has been made out warranting interference with Ext.P3. Accordingly, this writ petition is dismissed. K. BALAKRISHNAN NAIR, JUDGE P.N. RAVINDRAN, JUDGE. cl WPC.8271/2007 . 7