THE HON'BLE SMT JUSTICE T.MEENA KUMARI & THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA WRIT PETITION NO : 17426 of 2000 Dated: 16.7.2010 Between: 1. Union of India rep., by Secretary, Ministry of Communications, Department of Posts & Director-General (Posts), New Delhi and others. ..... PETITIONERS AND 1 K. Rajaiah and another. .....RESPONDENTS The Court made the following : THE HON'BLE SMT JUSTICE T.MEENA KUMARI & THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA WRIT PETITION NO : 17426 of 2000 ORDER: (Per Hon’ble Smt. Justice T. Meena Kumari) This writ petition is filed challenging the order, dated 10.2.2000 in O.A.No.1051 of 1998 passed by the Central Administrative Tribunal, Hyderabad. The respondents herein are the applicants before the Tribunal. They filed the above O.A., seeking to set aside the orders contained in Memo. No.62/Admn.II/SA V/ Pay fixation/Gr.D, dated 17/18.6.1998 and the memo No.49014/4/97-Estt (C ), Government of India, Ministry of Personnel, Public Grievances and Pensions, Dept., of Personnel & Training, New Delhi, dated 29.1.1998 and consequently to direct the respondents-officials to fix the pay of the applicants in Group-D by allowing the increments they have earned in temporary status w.e.f. 27.8.1991 as contained in Memo No.104/Admn.I/EA.I/Casual Mazdoor/Temp. Status dated 27.8.1991 with all consequential benefits. It is the case of the applicants before the Tribunal that they were appointed as casual labourers in the office of the Director of Accounts w.e.f. 13.5.1988 and 13.6.1988 respectively and were conferred temporary status w.e.f. 29.11.1989 in accordance with the memo dated 12.4.1991 and vide memo dated 27.8.1991 and they were given the benefit of increment at the same rate as applicable to a Group D employee and the same was taken into account for calculating per month rate of wages upto the date of their regularization. The applicants were allowed three increments w.e.f. 1.12.1990 to 1.12.1992 and they were drawing the pay at the rate of Rs.786/- p.m., in the scale of Rs.750-940 when they were regularly appointed as Group-D vide orders in Memo No.133/Admn.I/EA.I/Rectt/Gr.D, dated 22.12.1992 fixing the pay of the applicants in the bottom of the scale of pay i.e., at Rs.750/- at the time of regularization. The applicants submitted representations on 6.4.1993 stating that in the telecom department, the pay of casual mazdoor on regularization is fixed at higher stage with reference to the last pay drawn as temporary status mazdoor as per DOT letter No.269-10/89-STN Vol.I dated 21.12.1992. On representation, the matter was referred to the Directorate. The Directorate vide its letter dated 24.3.1998 relying on the orders of Ministry of Personnel dated 21.9.1998 informed the department that since the conferment on the temporary status was with reference to the availability of a Group D post and despite the conferment of temporary status they continue to draw wages on actual basis. Hence, their pay on regularization may be fixed at the minimum of pay scale of the relevant Group D post, and the pay was refixed and was ordered to recover the excess amount paid to them by office order No.62/Admn.II/SA V/Pay fixation/Grade-D, dated 17/18.6.1998. The Tribunal observed that the temporary status was granted to the applicants because of a scheme, whereby the applicants had put in certain years of service as casual mazdoors and that where the regular posts are not available in Group –D, they were conferred temporary status as per the scheme and they were performing the duties of a regular post even though there were no group –D posts available from the time of conferment till the regularization and that the service rendered by them as temporary status mazdoors have enabled them to get the increments and that the employees cannot be put to disadvantage by withdrawing the increment gained by them during the period they worked as temporary status casual mazdoors merely on the ground of non-availability; and that the Department of Telecom had given the guidelines correctly to take into account the increment granted to the employees while working in temporary status when their pay is fixed on regular appointment and that the Ministry of personnel letter dated 29.1.1998 does not indicate why such a view cannot be taken and that the reply given by the Department of Posts is only a repetition of letter of Ministry of Personnel dated 29.1.1998 without indicating as to why such a view was taken by the Nodal Ministry and that it is not known why the Nodal Ministry has not filed a reply, even though the Nodal Ministry has been impleaded as respondent No.2 in the O.A. Further, the Tribunal observed that the applicants have earned their increments because of their working as temporary status casual mazdoors and that their carrier as temporary mazdoors cannot be washed away when they were regular mazdoors by refixing their pay at the minimum pay scale. The Tribunal set aside the impugned letters dated 17/18.6.1998 and office memorandum dated 29.1.1998 of the Department of Personnel and directed the authorities to continue to pay the applicants in accordance with the pay fixation as was done initially before referring their case to the postal Directorate. Aggrieved by the same, the authorities filed the present writ petition. Heard the learned counsel and perused the material available on record. The fact that remains undisputed is that the applicants were appointed as casual labourers in the office of the Director of Accounts (Postal) w.e.f. 13.5.1988 and 13.6.1988 respectively and were conferred temporary status w.e.f. 29.11.1989 in accordance with the memo dated 12.4.1991 and vide memo dated 27.8.1991 and they were given the benefit of increment at the same rate as applicable to a Group D employee and the same was taken into account for calculating per month rate of wages upto the date of their regularization. The applicants were allowed three increments w.e.f. 1.12.1990 to 1.12.1992 and they were drawing the pay at the rate of Rs.786/- p.m., in the scale of Rs.750-940 when they were regularly appointed as Group-D vide orders, dated 22.12.1992 fixing the pay of the applicants in the bottom of the scale of pay i.e., at Rs.750/- at the time of regularization. In this regard, he Tribunal is justified in observing that the applicants have earned their increments because of their working as temporary status casual mazdoors and that their carrier as temporary mazdoors cannot be washed away when they were regular mazdoors by refixing their pay at the minimum pay scale. In this background of the matter and in view of the undisputed fact that where the regular posts are not available in Group –D, the applicants were conferred temporary status as per the scheme and they were performing the duties of a regular post even though there were no group –D posts available from the time of conferment till the regularization and that the service rendered by them as temporary status mazdoors have enabled them to get the increment, we have no hesitation to hold that the tribunal is justified in setting aside the impugned letters dated 17/18.6.1998 and office memorandum dated 29.1.1998 of the Department of Personnel. Hence, this writ petition is devoid of merits and the same is liable to be dismissed. Accordingly, this writ petition is dismissed. No order as to the costs. __________________________ Justice T. Meena Kumari ____________________________ Justice Gopala Krishna Tamada Date: 16th July, 2010 nn. - THE HON'BLE SMT JUSTICE T.MEENA KUMARI & THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA WRIT PETITION NO : 17426 of 2000 (Order of the Division Bench delivered by the Hon’ble Smt. Justice T. Meena Kumari) 16/07/2010