Central Administrative Tribunal - Madras
S Moorthi vs Posts on 16 June, 2023
I OA No. 276 / 2022 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAT BENCH
0.A No. 276/2022 th .
Dated|Gthe Fri day of June, Two Thousand Twenty Three CORAM: HON'BLE MS, LATA BASWARAJ PATNE, Member (J) S. Moorthi, Son of Subbaiah, No.7F, Ramalinga Nagar, Devakottai Extn., Sivaganga District, Pin -- 630 303. ae Applicant By Advecate : Mr. R. Malaichamy Vs. Union of India, Rep. by the Superintendent of Post Offices, Karaikudi Division, Karaikudi- 630003, 42 Respondent By Advocate: Mr. M. Kishore Kumar SPC 2 OA No. 276 / 2022 GRDER (Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member (J) By this OA, the Applicant is seeking for the following relief:
1. " to call for the records of the respondent pertaining to his-order which is made in Memo No,OA- 1015/2024/KAT Digs dated 11.02.2022 and set aside the same; consequent to,
2. direct the respondent to count the officiating service rendered by the applicant as postman from 30.07.2002 to 39.04.2004 along with his regular service rendered in MTS and Postman cadre and grant old pension, also to,
3. direct the respondents to count the GDS service rendered by the applicant for grant old pension by extending the benefit of judgment of the Princiap! Bench of this Hon'ble Tribunal made in 0.A.No.749 of 2035 and batch cases dated 17.11.2016, further to,
4. direct the respondents to pay the retirement service benefits, pension and arrears of the same to the applicant."
2. The brief facts of the case in nut shell are as under:-
The Applicant Initially entered into the service of the Postal. Department as EDDA (Extra Departmental Delivery Agent) on 17.08.1973 at Devakottal Post Office.
2.1 On considering his seniority, the authority has directed him to officiate as Postman at Devakottal H.O from 30.07.2002 to 30.04.2004. Thereafter, he was appointed as Group - D/MTS at Pallattur S.O. w.e.f 30.04.2004 on considering his 30 years service as GDS for the vacancies of the year 2002-
2003.
2.2 The Applicant earned promotion to the cadre of Postman by way of competitive examination held on 28.08.2008 and after due training given to him, he was promoted as Postman and joined duty at Devakottai H.O on 11.12.2008.
2.3 The details of service rendered by the Applicant as GDS, officiating Postman, MTS and regular Postman are furnished below:-
3 OANo. 276 / 2022From 17.08.1973 to 29.07.2002 = GDS From 30.07.2002 to 30.04.2004 = Officlating Postman From 30.04.2004 to 10.12.2008 = MTS From 11.12.2008 to 31.07.2015 = Postman (retired on 31.07,2015) 2.4 The Applicant on eariter occasion filed OA. No.682 of 2017 before this Hon'ble Tribunal, and prayed for a direction to the Respondents therein to count the period of year of vacancy against which he was appointed as MTS for grant of old pension and other service benefits under old pension scheme and it was disposed of. The Respondent has replied that the case of the Applicant will be decided after the outcome of SLPs No.16767/2016 and 18460/2015.
2.5 The Applicant learnt that the said SLP was allowed by an Order dated 08.11.2018. Hence, he has submitted a fresh representation dated 14.08.2021 and requested to count the officiating service rendered by him as Postman from 30.07.2002 to 30.04.2004, the GDS service along with the regular service rendered by him as MTS and Postman and to grant pension under ald pension scheme with arrears of the same to him.
2.6 Since there Is no response to his representation dated 14.08.2021, he filed OA No.1015 of 2021 and it was disposed of by an Order dated 25.11.2021 with directions to pass order on his representation, but the Respondent, without properly going into the various points raised by the Applicant in his representation dated 14,.08,2021, rejected the claim of the Applicant by an Order dated 11.02.2022, 2.7 Therefore, being aggrieved, the Applicant has filed this Original Application No.276 of 202 before this Tribunal seeking directions to the Respondents.
3. After notice, the Respondents have appeared through their Counsel and filed the detailed reply and raised objections on the ground that the Applicant was originally engaged as Extra Department Delivery Agent (now 4 OANo. 276 / 2022 Gramin Dak Sevak, Devakottai HO on 07.08.1973 and the Applicant services were utilized in vacant post as Postman in the office of the Respondents during various spells from July 2002 to April 2004 as leave substitute and the Applicant was not engaged continuously.
3.1 On completion of every spell the Applicant was reverted as Extra Departmental Delivery Agent and paid with Time Related Continuity Allowance and other admissible allowance as applicable to other Extra Departmental Agents.
3.2 It is further contended that as per the provisions Rule 13 of CCS (Pension) Rules, 1972 officiating and temporary service should be followed without interruption by substantive appointment. In the case of the Applicant, there are interruptions on expiry of various spells during Juiy 2002 to April 2004. Hence, the said provisions of CCS Pension Rules 1972 would not applicable to the Applicant's case, 3.3 Moreover, counting of his service rendered as a GDS for grant of pension, the Hon'ble Supreme Court of India In the matter of Shashi Kant Goswami vs. Union of India, Finance Secretary, Ministry of Finance and 2 Ors, has already considered the rule position and the order passed by the Principal Bench in OA No.749 of 2015 dated 17.11.2016 will not be applicable In the matter of Applicant, since the same is In personam and department has also filed Writ Petition No.832 of 2018 before the High Court of Delhi and the same is sub judice and the representation of the Applicant was considered in accordance with the law and rejected by a reasoned and speaking Order. Hence, the Respondents prayed for dismissal of OA, 4 The Applicant has also filedrejoinder and reiterated the grounds raised inthe OA. The Learned Counsel for the Applicant relied on the following judgments:
3 OA No. 276 / 2022a) Order passed by this Tribunal in OA No.1078 of 2013 dated 21.09.2016 in the matter of R. Shanmugam vs. Union of India, Department of Posts.
4) Order passed by the Hon'ble High Court of Madras in WP No.2290 of 2018 and WMP No.2800 of 2018 in the matter of Union of India, Department of Posts and 2 Ors, vs. K, Ragothaman and Anr.
5 Learned Counsel for the Respondents filed compilation of judgments and relled upon the same.
Ne, Date Description 1 | 25.11.2020 | OM No.99-24/2012 - Pen. -- M/o. Communications, ~- D/o, Post (Pension Section) 2 | 23.01.2020 | OA No.1841 & 1842 of 2014 -- M.Palanisamy & A, Amirthalingam vs. UOI & SPO, Namakkal (Hon'ble CAT --- Madras Bench) 3 | 03.04.2023 | OA No.906 & 907 of 2017 -- KC. Chathu & M, Paariyani vs. UOI & Ors (Hon'ble CAT -- Ernakulam Bench) 4 20.12.2022 | OA No.972 of 2018 -- Vinod Justin M. K. & Ann Vs. UYOI & Ors - Hon'ble CAT - Ernakulam Bench) 3 18.03.2022 | OA No.518 of 2017 -- A. Hari & Ors vs. UOI & Ors Hon'ble CAT - Ernakulam Bench) 6 | 28.02.2022 |OA No.i59 of 2018 -- Gulam Mohmed Ganchi vs. UOT & Ors ~ (Hon'ble CAT --- Ahmedabad Bench) 7 10.08.2020 | OA No.282 of 2020 -- Amar Singh Rathor vs. UOT & Ors (Hon'ble CAT - Chandigar Bench) 6 Heard MrR.Malaichamy, learned counsel for the applicant and MrM.Kishore Kumar, learned counsel for the respondents and perused the records, 7 The Learned Counsel for the Applicant submitted that Applicant was appointed as a GDS in the year 1973 till 2002 he worked continuously on the said post. Subsequently, on 30.07.2002 to 30.04.2004 he was appointed as a Postman in the officiating capacity and 30.04.2004 to 10.12.2008 as MTS on regular basis and subsequently he has been promoted as Postman after successful completion of the examination held on 28.08.2008 and after completion of successful training on 11.12.2008 he was promoted as Postman and on 31.07.2015 he retired from service. Thereby, he has worked continuously for the period of 30 years as a GDS and for the period of two 6 OA No. 276 / 2022 years approximately as a Postman in the Officiating capacity and thereafter on regular basis from 2004 till his date of retirement 2015, almost 11 years on regular basis he has been appointed on regular basis on his seniority against his GDS services. Therefore, the Applicant claimed that he is entitled for the benefits under the old pension scheme.
8 The Learned Counsel for the applicant further contended that constraining his. officiating service, Applicant is entitled for the benefit of pension under the old pension scheme as after the direction of this Tribunal in the matter of R. Shanmugam vs. Union of India, Department of Posts and 2 Ors. The Respondents have considered the officlating service and condoned the shortfall for grant of pension under the old pension scheme. The Applicant is also similarly situated. So, he is entitled for the said benefit.
9 On the other hand, the Learned Counsel for the Respondénts submitted the instructions dated 18.04.2023 on record and contended that the Applicant was not continuously working for the said period from. 2002 to 2004 in the officiating capacity. So, the Rule 13 is not applicable in the matter of Applicant. The Learned Counsel for the Respondents submitted that the Applicant has approached this Tribunal in early occasion by filing an OA wherein he has withdrawn his request for counting the service under Officiating capacity prior to induction into Government service and accordingly Order has been passed by this Tribunal. Therefore, principle of estoppel is applicable in the matter of Applicant. To support his contention, the Learned Counsel for the Respondents relied upon the Order passed by the Coordinate Bench, Jodhpur in OA No.67 of 2017 dated 15.03.2019 in the matter of Shashi Kant Goswami vs. Union of India, Finance Secretary, Ministry of Finance and 2 Ors, wherein, the similar plea has been raised and Court has observed that he is stopped by law ralsing the said plea again In another OA and the matter was dismissed on Principal of res judicata.
@ 7 OA No. 276 / 2022 10 The Learned Counsel for the Respondents have also placed reliance upon the Order passed by various Hon'ble Courts and Tribunals.
SI. Date Description 1 | 25.11.2020 | OM No.99-24/2012 - Pen, ~ M/o. Communications, ~- D/o. Post (Pension Section) 2 | 23.01.2020 | OA No.1841 & 1842 of 2014 -- M.Palanisamy & A. Amirthalingam vs. UOI & SPO, Namakkal (Hon''ble CAT ~ Madras Bench) 3 | 03.04.2023 | OA No.906 & 907 of 2017 -- K.C. Chathu & M. Paarlyani vs. UOI & Ors (Hon'ble CAT - Ernakulam Bench) 20.12.2022 | OA No.972 of 2018 - Vined Justin M. K, & Anr Vs. VOI & Ors -- Hon'ble CAT - Ernakulam Bench) 18.03.2022 | OA No.518 of 2017 --- A. Hari & Ors vs. UOI & Ors Hon'ble CAT - Ernakulam Bench} 28.02.2022 | OA No.159 of 2018 - Gulam Mohmed Ganchi vs. UOT & Ors -- (Hon'ble CAT - Ahmedabad Bench) 7 | 10.08.2020 | OA No,.282 of 2020 - Amar Singh Rathor vs. UOI & Ors (Hon'ble CAT - Chandigar Bench) Oo of fF wherein Rule 13 of CCS (Pension) Rules, 1972 for counting ad-hoc/officiating service prior to regularization, for reckoning pension and pensionary benefits considered in a detailed and since it is not a continuous service,the cases of similar nature were dismissed.
li It is to be noted that the Orders passed by the Principal Bench in OA No.749 of 2015 dated 17.11.2016 wherein Rule 16 of the GDS (Conduct and Engagement) Rules 2007 was struck down. Though, the Respondents. have challenged the sald Order before the High Court of Delhi in Writ Petition No.832 of 2018 is subjudice.
12 The Learned counsel for the applicant would, however, submit that similar cases had been disposed of by this Tribunal directing the respondents to reconsider the case of the applicants therein in the event of the law on the subject finally being declared in favour of the applicants similarly placed and, therefore, a similar order may be passed in this case also. He would cite the order passed in O.A.No.1139/2017 and batch dated 28.11.2018 and
0.A.No.1093 of 2017 dated 11.12.2018 in this regard. With regard to the 8 OA No. 276 / 2022 issue of consideration of the applicant's service under the Old pension scheme, learned counsel for the applicant submits that admittedly the applicant was appointed against the vacancy pertaining to the year 2003 as held by this Tribunal in its earller order dated 22.02.2019 in OA 983/2016 & batch and in similar matter in OA 520/2020 vide its order dated 28.03.2023 this Tribunal has given a direction to consider the representation submitted by the applicant keeping in mind the latest DoPT OM dt. 03.03.2023 and pass a reasoned and speaking order in accordance with law.
13 The relevant portion of the OM dated 03.03.2023 issued by DOPT reads thus:
"3. Representations have been received in this Department from the Government servants appointed on or after 01.01.2004 requesting for extending the benefit of the pension scheme under Central Civil Services (Pension) Rules, 1972 (now 2021) on the ground that their appointment was made against the posts/vacancies advertised/notified for recruitment prior to notification for National Pension System, referring to court judgments of various Hon'ble High Courts and Hon'ble Central Administrative Tribunals allowing such benefits to applicants. The matter has been examined in consultation with the Department of Financial Services, Department of Personnel. & 'Training, Department of Expenditure and Department of Legal Affairs in the light of the various representations / references and decisions of the Courts in this regard. It has now been decided that, in all cases where the Central Government Civil employee has been appointed against a post or vacancy which was advertised/ notified for recruitment/appointment, prior to the date of notification for National Pension System i.e. 22.12.2003 and is covered under the National Pension System on joining service on or after 01.01.2004, may be given a one-time option to ba covered under the CCS(Pension) Rules, 1972 (now 2021). This option may be exercised by the concerned Government servants latest by 31.08.2023."
In accordance with the DOPT OM dated 03.03.2023, the Department has also issued OM dated 09.03.2023.
14 Keeping in view the above orders, this OA is disposed of with the following direction:
9 OA No. 276 / 2022(i) The impugned order dated 11.02.2022 is hereby, quashed and set aside and respondents are directed to consider the claim of the applicant counting of his GDS services for the purpose of pension in the event of the law being finally settled in favour of persons similarly placed as the applicant herein.
(ii) With regard to induction of the applicant under the CCS (Pension) Rules, , 1972 since admittedly the vacancies pertaining to the year 2003 , the applicant is granted liberty to file fresh comprehensive representation and submit his option form within a perlod of two weeks from the date of receipt of copy of this order. The respondents are directed to consider the same in accordance with DOPT OM dt. 03.03.2023 and Department OM dated 09.03.2023 and pass a reasoned and speaking order In accordance with law within a perlod of four weeks from the date of receipt of such representation.
15 OA is disposed of as above. No order as to costs.