Casual labourers without temporary status cannot count 50% prior service for OPS; post-2004 regularization mandates NPS.

ORDER 

PER: RAKESH KUMAR GUPTA, MEMBER (A)

1. The applicants have filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:

a) To set aside the Order No. B-II/MTS/Dlgs dated 09-04-2018 (Annexure A-8) along with order no. SK/AP/16-7/RMS Q dated 05- 04-2018 (Annexure A-7), vide which their request for considering them to be covered under Old Pension Scheme instead of New Pension Scheme, has been rejected.

b) Direct the respondents to consider the case of the applicants under Old Pension Scheme thereby counting their 50% of casual service from the date of their initial engagement to the date of regularization as qualifying service for the purpose of pension and other consequent benefits.

c) Pass such other order or orders as this Tribunal may deem fit and proper in the interest of justice.

2. The applicants have also filed MA. No. 267/2021 seeking condonation of delay of 2 years 3 months and 17 days in filing the present application. The applicants have challenged orders dated 9.4.2018 and 05.4.2018, through the present OA on 26.7.2021. They have stated in their MA that the applicants are challenging the action of the respondents of not considering their case under old pension scheme. This will come into effect only after their retirement which is a continuous cause of action and therefore there cannot be any delay in filing the present applicant in such cases. As an abundant caution, the applicants are filing the present application for condonation of delay of 2 years, 3 months and 17 days.

3. The condonation of delay application has been opposed by the respondents in their reply statement.

4. Keeping in view the fact that the applicants are seeking relief for them to be considered under the Old Pension Scheme, instead of New Pension Scheme, which can be considered to be a continuous cause of action, the MA.No.267/2021 seeking condonation of delay is allowed for the reasons stated therein.

5. The facts of the case as pleaded by the applicants in their pleadings, are as follows:

a) The applicants were appointed as casual labour under Respondent no.3. Subsequently, the applicants were converted into full time casual worker (FTCL) as per letters dated 30.01.1999 (Annexure A-1 in respect of Applicant No.2) and 27.12.1999 (Annexure A-2 in respect of Applicants No.1 & 3). They have claimed to be working in Respondents organization continuously without any break.

b) Respondent No.3 selected applicant No. l as multi-tasking staff for the vacancy of 2009 amongst casual labourers on selection cum seniority basis and allotted to SRO, RMS ‘Q' Division, Mangalore vide order no. B-1/MTS/Dlgs dated 13-06-2011 (Annexure A-3).

c) Respondent No.3 selected the applicant No.2 as multitasking staff for the vacancy of 2009 amongst casual labourers on selection cum seniority basis and allotted to SRO, RMS ‘Q' Division, Mangalore, vide Corrigendum no. B-1/MTS/DIgs dated 15.09.2011 (Annexure A- 4).

d) Respondent No.3 selected the applicant No.3 as multitasking staff for the vacancy of 2011 amongst casual labourers on selection cum seniority basis and allotted to SRO, RMS Q' Division, Mangalore, vide order no. B-IUMTS/Dlgs dated 18.04.2012 (Annexure A-5).

e) Applicant No. l appeared for the Limited Departmental Competitive Examination (LDCE) for promotion and he was promoted as Mail guard vide order no. B-II/D-10/MG Exam/2016-17 dated 30.05.2017 (Annexure A-6).

f) While appointing the applicants on regular basis they were placed under the New Pension Scheme (NPS). The applic