Central Administrative Tribunal - Jaipur
Chhedi Lal Joshi vs D/O Post on 12 February, 2024
OA No. 518/2015 1
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 518/2015
Order Reserved on: 06.02.2024
DATE OF ORDER: 12.02.2024
CORAM
HON'BLE MS. RANJANA SHAHI, JUDICIAL MEMBER
Smt. Santosh Devi Joshi wife of late Shri Chhedi Lal
Joshi, aged about 60 years, Resident of Ward No. 38,
Near Purani Jail, Joshi Mohalla, Jhunjhunu (Raj.).
Kundan Lal Joshi son of Late Shri Chhedi Lal Joshi,
aged about 37 years, Resident of ward no. 38, Near
Purani Jail, Joshi Mohalla, Jhunjhunu (Raj.).
....Applicants
Shri M.S. Gurjar, counsel for applicants.
VERSUS
1. Union of India through its Director of Accounts
(Postal) Ministry of Communication and IT
Department of Posts, Jaipur.
2. Regional Post Master General Department of Post
of India, Regional Office, Jodhpur (Raj.).
3. Account Officer, Director of Accounts (Pension),
Jaipur-14 (Raj.).
4. Superintendent of Post Offices, Department of
Post of India, Jhunjhunu Division, Jhunjhunu
(Raj.).
.... Respondents
Shri Kinshuk Jain, counsel for respondents.
ORDER
Per: RANJANA SHAHI, JUDICIAL MEMBER The applicant, Shri Chhedi Lal Joshi, has filed the present Original Application being aggrieved with the OA No. 518/2015 2 action of the respondents whereby the earlier services rendered by him as GDS BPM from 17.11.1975 to 11.06.2004 has not been counted for the purpose of retiral / pensionary benefits. As such, through the present O.A., he is seeking counting of his service rendered as GDS BPM for computing retiral / pensionary benefits.
2. The factual matrix of the case is that the applicant was initially appointed as GDS BPM in Postal Department vide order dated 17.11.1975. The applicant was promoted to the next cadre post of Postman on 11.06.2004. On 31.08.2014, after rendering 10 years of service as Postman, the applicant retired from service. Through the present O.A., he is seeking that the service rendered by him as GDS BPM prior to his appointment in the Postman cadre on 11.06.2004 be counted for retiral / pensionary benefits. Besides the above, he is also claiming that he be given the benefit of Old Pension Scheme (OPS) since he joined as Postman on 11.06.2004.
3. In reply to the said OA, the respondents have stated that the GDS BPM are not entitled for any kind of pension and the services rendered by the applicant OA No. 518/2015 3 as GDS BPM cannot be counted for computing the pensionary benefits. As per approved reference book Swamy's Postal Gramin Dak Sevak (Conduct and Employment) Rules, earlier services rendered as GDS BPM is not to be counted for the purpose of retiral /pensionary benefits. As to the second contention of the applicant, the respondents aver that the applicant is covered under New Pension Scheme (NPS) as those of the employees who are appointed on and after 01.01.2004 are covered under the New Pension Scheme (NPS) and the applicant was appointed to the post of Postman on 11.06.2004, thus, the applicant comes under NPS.
4. To support his case, the applicant has filed rejoinder and has annexed a copy of the order dated 17th November, 2016 passed by Principal Bench of this Tribunal in OA No. 749/2015 (Shri Vinod Kumar Saxena & Ors. vs. UOI & Ors.) with 2 connected OAs., wherein the following order was passed: -
"20. To summarise, we dispose of the O.As. with the following directions to the respondents:
(a) For all Gramin Dak Sevaks, who have been absorbed as regular Group 'D' staff, the period spent as Gramin Dak Sevak will be counted in toto for the purpose of pensionary benefits.
(b) Pension will be granted under the provisions of CCS (Pension) Rules, 1972 to OA No. 518/2015 4 all Gramin Dak Sevaks, who retire as Gramin Dak Sevak without absorption as regular Group 'D' staff, but the period to be counted for the purpse of pension will be 5/8th of the period spent as Gramin Dak Sevak. Rule 6 will accordingly be amended.
(c) The Gramin Dak Sevaks (Conduct and Engagement) Rules, 2011 are held to be valid except Rule 6, as stated above.
(d) The claim of Gramin Dak Sevaks for parity with regular employees regarding pay and allowances and other benefits available to regular employees, stands rejected."
5. Learned counsel for the respondents has also placed reliance upon the judgment of the Hon'ble Apex Court passed in the case of Union of India & Ors. vs. Gandiba Behera, reported in (2021) 14 SCC
786.
6. From perusal of the order-sheets, it has come to notice that since the original applicant Shri Chhedi Lal Joshi had expired on 30.04.2019, MA No. 550/2019 was filed by his wife Smt. Santosh Devi Joshi and son Shri Kundan Lal Joshi praying for impleading them as legal representatives of the applicant, Shri Chhedi Lal Joshi. This Bench of the Tribunal vide its order dated 02.08.2019 has allowed the said MA and Smt. Santoh Devi Joshi and Kundan Lal Joshi have been ordered to be impleaded as legal representative of the applicant OA No. 518/2015 5 (since expired) and, accordingly, the amended cause title has been taken on record.
7. Heard both sides as well as perused the judgments furthered by each side.
8. I have gone through the judgment of the Hon'ble Apex Court as relied upon by the respondents and find that in this case [Union of India & Ors. vs. Gandiba Behera (supra)], the order dated 17th November, 2016 passed by Principal Bench of this Tribunal in the case of Shri Vinod Kumar Saxena & Ors. vs. UOI & Ors., (supra) has been overruled. The order passed in the case of Shri Vinod Kumar Saxena & Ors. has been considered by the Hon'ble Apex Court in para 14. While allowing the bunch of appeals filed by the Union of India, the Hon'ble Apex Court has set aside the judgment/order under appeal and has clearly held as under: -
"26. Having regard to the provisions of the aforesaid Rules relating to qualifying service requirement, in our opinion the services rendered by the respondents as GDS or other Extra- Departmental Agents cannot be factored in for computing their qualifying services in regular posts under the Postal Department on the question of grant of pension. But we also find many of the respondents are missing pension on account of marginal shortfall in their regular service tenure. This should deserve sympathetic consideration for grant of pension. But we cannot trace our power or jurisdiction to any legal OA No. 518/2015 6 principle which could permit us to fill up the shortfall by importing into their service tenure, the period of work they rendered as GDS or its variants. At the same time, we also find that in Union of India v. Registrar, though the incumbent therein (being Respondent 2) had completed nine years and two months of service, the Union of India had passed orders granting him regular pension. This Court in the order passed on 24-11-2015 had protected his pension though the appeal of the Union of India was allowed.
27. For the reasons we have already discussed, we are of the opinion that the judgments under appeal cannot be sustained. There is no provision under the law on the basis of which any period of the service rendered by the respondents in the capacity of GDS could be added to their regular tenure in the Postal Department for the purpose of fulfilling the period of qualifying service on the question of grant of pension. "
9. The Gramin Dak Sewaks are governed by the 2011 Rules, which form a complete and separate code providing for the recruitment, gratuity, conduct, and disciplinary proceedings of Gramin Dak Sewaks. The terms and conditions of their engagement are governed by Rule 3 A of the 2011 Rules, which reads as under:
"3A Terms and Conditions of Engagement
(i) A Sevak shall not be required to perform duty beyond a maximum Period of 5 hours in a day;
(ii) A Sevak shall not be retained beyond 65 years of age;
(iii) A Sevak shall have to give an undertaking that he has other sources of income besides the allowances paid or to be paid by the Government OA No. 518/2015 7 for adequate means of livelihood for himself and his family;
(iv) A Sevak can be transferred from one post/unit to another post/unit in public interest;
(v) A Sevak shall be outside the Civil Service of the Union;
(vi) A Sevak shall not claim to be at par with the Central Government employees;
(vii) Residence in post village/delivery jurisdiction of the Post Office within one month after selection but before engagement shall be mandatory for a Sevak: Failure to reside in place of duty for GDSBPM & within delivery jurisdiction of the Post Office for other categories of Gramin Dak Sevaks after engagement shall be treated as violative of conditions of engagement and liable for disciplinary action under Rule 10 of the Conduct rules, requiring removal/dismissal;
(viii) Post Office shall be located in the accommodation to be provided by Gramin Dak Sevak Branch Postmaster suitable for use as Post Office premises;
(ix) Combination of duties of a Sevak shall be permissible"
(emphasis supplied) A reading of Rule 3A(iii) of the 2011 Rules, makes it abundantly clear that a Gramin Dak Sewaks must have an independent means of livelihood. The Gramin Dak Sewaks are engaged on a part time basis for a maximum of 3 to 5 hours a day. Rule 3A(v) and
(vi) stipulate that a Gramin Dak Sewak shall be outside the Civil Service of the Union, and shall not claim to be at par with the servants of the Government.
OA No. 518/2015 8
10. I agree with the contention of the respondents that the part time employment of Gramin Dak Sewaks is governed by a separate scheme, since they do not form part of the regular cadre, and cannot be treated to be in the main service or class of service. Gratuity is payable to them in accordance with the Gramin Dak Sewak (Conduct & Engagement) Rules, 2011.
11. While passing the order/judgment by the Hon'ble Principal Bench in the case of Shri Vinod Kumar Saxena (supra), as relied upon by the applicant, this Tribunal had not considered the Hon'ble Apex Court's judgment passed in Y. Najitha Mol as the same was not submitted before the Principal Bench, as such, the applicant's reliance on Shri Vinod Kumar Saxena (supra) is misplaced. Besides, the same has been overruled as mentioned in the preceding paras.
12. This issue has also been dealt with and adjudicated upon by Chandigarh Bench of this Tribunal at its Circuit Bench at Shimla in the case of Satish Chand vs. UOI & Ors., (OA No. 063/00581/2018) vide its order dated 07.11.2019 and it has been held that:-
OA No. 518/2015 9
"8. In the wake of the aforesaid legal position, it is clear that the GDS service cannot be counted along with service rendered by applicant as Group 'D'/(MTS) for treating him as employee under the Old Pension Scheme. The view taken in the indicated cases, applies on all fours, to the facts of this case."
13. In view of the above, the services of the applicant from 17.11.1975 to 11.06.2004 rendered as GDS BPM cannot be counted for retiral / pensionary benefits. That being so, now coming to the second claim of the applicant to be given the benefit of OPS, his appointment as Postman was on 11.06.2004, which is after 01.01.2004 i.e. the cut-off date for coming into effect of New Pension Scheme (NPS), as such, the claim of the applicant for Old Pension Scheme cannot be accepted. Thus, the present Original Application deserves to be dismissed.
14. Accordingly, the present Original Application stands dismissed. No order as to costs.
(RANJANA SHAHI) JUDICIAL MEMBER /nlk/