DENIAL OF ARREARS AND FULL TEMPORARY SERVICE BENEFITS UPHELD; NO NEGATIVE EQUALITY.

The applicants are civilian pensioners from the Southern Naval Command, Kochi, initially appointed as casual laborers.

Following orders from the Tribunal in O.A. No. 640/1995 and O.A. No. 54/1997, they were granted temporary status and subsequently regularized as unskilled laborers.

Similar to the applicants, a previous O.A. No. 724/2011 was allowed, ordering 50% of casual service and temporary status service to be reckoned as qualifying service for pensionary benefits.

The applicants, relying on the Supreme Court's dictum in Union of India & others v. Rakesh Kumar & Ors. (AIR 2017 SC 1691), and citing instances where similarly placed persons received arrears by counting entire temporary status and 50% of casual service for pension, submitted a representation on July 7, 2022, to the 1st respondent.

Their claim was to reckon the entire temporary service period and 50% of the casual service for pensionary benefits and to disburse arrears.

The 1st respondent rejected this claim via Order No. CS 2730/Ty status on November 30, 2022 (Annexure A-2).

The respondents contended that according to DoP&T OM 51016/2/90-Estt(C) dated September 10, 1993, only 50% of the service rendered under temporary status would be counted for retirement benefits after regularization.

They also stated that the Supreme Court judgment in Rakesh Kumar was based on Railway Service Rules and not applicable to Defence Establishments.

The respondents further argued that counting the entire temporary status period for a few employees was an inadvertent error and did not create a right for others based on "negative equality."

They cited the dismissal of similar O.A. No. 587/2018 and O.A. No. 539/2019 containing similar claims.

1. Whether the Hon'ble Apex Court's order in Union of India and Others v. Rakesh Kumar and two others is applicable in favor of the applicants

2. Whether the applicants are entitled to the benefit of reckoning 50% of casual service for pensionary purposes, as granted to some other employees in the Defence establishment

The Tribunal primarily applied the principles of the Scheme for grant of temporary status and regularisation of causal workers, particularly DoP&T OM 51016/2/90-Estt(C) dated 10.09.1993, which stipulates that only 50% of the service rendered under temporary status counts for retirement benefits after regularisation.

It further recognized and applied the doctrine of "negative equality" as articulated by the Hon'ble Supreme Court in State of Odisha and Ors. v. Anup Kumar Senapati and Ors. (dated 16.09.2019), and reiterated in Basawaraj and Anr. v. Special Land Acquisition Officer (2013) 14 SCC 81, and Chaman Lal. v. State of Punjab and Ors. (2014) 15 SCC 715, holding that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, and a wrong benefit conferred inadvertently does not create a right for others to claim the same.

The Tribunal also distinguished the applicability of Union of India & others v. Rakeshkumar & Ors. (AIR 2017 SC 1691), noting that it was based on Railway Recruitment Rules, which are separate from those applicable to Defence Establishments.

The Tribunal analyzed the applicants' claim in light of previous decisions and established legal principles.

Regarding the applicability of the Rakesh Kumar judgment, the Tribunal reaffirmed its previous finding in O.A. No. 587/2018, stating that the Rakesh Kumar case was primarily based on Railway Recruitment Rules, not DoP&T circulars relevant to the Defence establishments, and therefore, was not applicable.

The DoP&T OM at Annexure R2 dated February 26, 2016, clearly allowed only 50% of the temporary status period for retirement benefits.

The Tribunal found that the applicants' claim for 50% of casual service was not previously granted in O.A. No. 724/2011 and that there was no retrospective application of the Rakesh Kumar judgment to a class of employees across various departments.

Concerning the claim for benefits granted to other employees (reckoning 100% of temporary status and casual service), the Tribunal relied on the doctrine of "negative equality."

It held that such instances were due to inadvertent errors and violations of extant rules, and thus, could not be demanded by the applicants to perpetuate an illegality.

The Tribunal cited Supreme Court judgments reaffirming that Article 14 does not envisage negative equality and that a wrong decision in favor of one party does not entitle others to claim the same benefit.

The Tribunal held that the applicants are not entitled to get 50% of their casual service rendered for calculating qualifying service for pensionary benefits and are also not entitled to get any arrears of pay and allowances for the period from January 10, 2005, to August 31, 2008.

The Tribunal found no merit in the OA given its deliberations, its previous order in OA No. 587/2018, and the judicial pronouncement by the Hon'ble Apex Court in State of Odisha and Others v. Anup Kumar Senapati and Others.