R.K.MERATHIA - (1.) HEARD Mr. Sumeet Gadodia, learned counsel for the petitioner and Mr. G. M. Mishra, learned counsel for the respondents.
(2.) LEARNED , counsel for the petitioner submitted that the petitioner is a Registered Trade Union and this case relates to the Senior Operative Trainee/Senior Trainee of the first to 35th batch trained between 1970 -1988, The reference to the petitioner, in this case will mean the said members of the petitioner. As submitted by learned counsel for the petitioner, the main question involved in this writ petition is whether the period of 1 and 1/2 years, during which the petitioner worked as a Senior Trainee, is to be counted and/or considered for the purpose of his seniority/promotion?
(3.) THE stand of the petitioner is that they were appointed as trainee and were governed by the Service Rules, as per the appointment letter issued to them. Though the appointment letter stipulated about the application of the Service Rules but without any basis, the Management started applying the other provisions. The petitioner moved this Court vide CWJC No. 2235 of 1994 (R). The same was disposed of on 8.2.1996 with an observation that the petitioner should approach the authorities, who may consider the grievances in accordance with law. Pursuant to the said order, a representation was made. The same has been rejected by the impugned order dated 22.7.1996 (Annexure 8). The training is an in service training, and is a feeder post. Petitioners were appointed in substantive capacity on completion of the training. The word absorbed in column No. 5 of the office order dated 28.7.1986 issued by the respondents means that the trainees were treated as regular employees. He further submitted that the said period of training was counted and considered practically for all purposes, such as calculation/payment of Provident Fund and/or gratuity, voluntary retirement, allotment of quarters other incentives, allowances, subsidies and benefits. Learned counsel submitted that as per Section 5 of the Provident Fund Scheme, the same is applicable only to the regular employees and gratuity is payable only against qualifying service of a regular employee. Relying on the aforesaid circumstances, he submitted that the training period was treated by the Management as a service period on quasi permanent post. But only for promotion/seniority, the training period is not considered/counted. Learned counsel for the petitioner relied on 1994 Suppl. (1) SCC 71, Kailash Chandra Rajawat v. Union of India and Anr., to show that the period of temporary duty prior to the regularization is to be taken into consideration for the purpose of promotion. He also relied on (1980) 4 SCC 226, Baleshwar Dass and Ors. v. State of U.P. and Ors., to show that if a person is appointed substantially on a temporary post, he becomes a member of the service. He lastly relied on 1990 (2) Lab IC 1304, to show that once an incumbent is appointed to a post according to Rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. He further submitted that there was a settlement with the Management on 7.6.1974 between the trainees and the management for counting the training period for seniority/promotion.;