Central Administrative Tribunal - Ernakulam
P.K. Raman vs Union Of India on 11 October, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. NO. 204 OF 2012
Thursday, this the 11th day of October, 2012
CORAM:
HON'BLE Mrs. K. NOORJEHAN, ADMINISTRATIVE MEMBER
P.K. Raman, S/o. Late Aaadichan,
Group D (Retired), Omallur Post Office,
Pathanamthitta Division,
Residing at Valumannil House,
Maniyar, Vadaserikara (P.O). - Applicant
(By Advocate Mrs. Rekha Vasudevan)
Versus
1. Union of India, represented by
Secretary to Government of India,
Ministry of Communications,
New Delhi.
2. The Assistant Director General (Pension),
Department of Posts, Dhak Bhavan,
Sansad Mard, New Delhi - 110 001.
3. The Chief Postmaster General,
Kerala Circle, Thiruvananthapuram.
4. The Senior Superintendent of Post Offices,
Pathanamthitta Division,
Pathanamthitta. - Respondents
(By Advocate Mr.Varghese P. Thomas, ACGSC)
The application having been heard on 20.09.2012, the Tribunal
on 11.10.2012 delivered the following:
O R D E R
HON'BLE Mrs. K. NOORJEHAN, ADMINISTRATIVE MEMBER The applicant is aggrieved by the rejection of his claim for pension.
2. The applicant commenced his service as Extra Departmental Agent (EDA for short) in 1969. He worked as Group D at Sabarimala Seasonal Post Office for various spells during 1980-'81, 1981-'82, 1982-'83, 1994-'95 and 1995-'96. As per Indian Posts and Telegraphs (Class IV Posts) Recruitment Rules, 1970 the ED Staff were to be considered against the Group D vacancies for direct recruitment in subordinate offices subject to such conditions and in such manner as may be decided by the DG P&T from time to time. This Recruitment Rules were amended by prescribing the age limit for recruitment from among EDA to Group D as 42 years for the General Category and 47 years for SC/ST in the year 1982. This upper age was struck down by this Tribunal in O.A No. 557/90. Pursuant to the decision of this Tribunal, a fresh order dated 28.08.1990 was issued by the DG Posts prescribing upper age limit as 50 years for General category and 55 years for SC/ST. This was also challenged in O.A No. 155/95. This Tribunal set aside the upper age limit fixed by the DG Posts. The applicant attained the age of 50 years on 05.09.1995 and he was appointed as Group D on 07.03.1996. Due to prolonged litigation, the Department did not fill up the posts of Group D in time and this led to a series of O.As being filed like O.A No. 239/98 and O.A No. 449/98 seeking a direction to the respondents to fill up the Group D vacancies in Kerala Circle. The Tribunal directed the respondents to fill up the Group D vacancies in Kerala Circle without further delay. The respondents filed O.P No. 25172/98 against the Order of the Tribunal. This O.P was disposed of by the Hon'ble High Court judgment dated 30.03.2000 permitting the respondents to issue an executive order fixing the upper age limit for recruitment to Group D from EDA (Annexure A-3). Pursuant to Annexure A-3 judgment, the first respondent fixed the upper age as 50 years for General category and 55 for SC/ST (Annexure A-4). The applicant contends that as he attained the age of 50 years on 05.09.1995, he could have been appointed against a Group D post before 05.09.1995 as the delay deprived him of his pensionary benefits as he did not earn the minimum of ten years qualifying service. This Tribunal directed to grant notional appointment to Group D post from the date of occurrence of vacancy in order to entitle the applicant in the O.A 389/04 to enable him get minimum pension (Annexure A-5). The Order of the Tribunal was upheld by the Hon'ble High Court (Annexure A-6). After many years of service as EDA and after completing 9 years and 7 months as Group D, all that the applicant got was an amount of Rs. 23,275/-. The applicant contends that the shortfall in his minimum qualifying service occurred only because of the inaction on the part of the respondents and Had the right thing been done at the right time as held by the Hon'ble Supreme Court (AIR 1977 SC 1868), the applicant would not have been deprived of pension. The applicant submitted Annexure A-10, A-11 and A-12 representation to the respondents requesting for grant of pension. The applicant avers that he came to know that Annexure A-14 judgment of the Hon'ble High Court of Madras in W.P. No. 45465/2002 was implemented by the respondents and the applicant therein was granted pension even though he did not have the minimum qualifying service of ten years. The respondents filed SLP, which was dismissed (Annexure A-15). The applicant seeks a similar relief in his case.
3. As there was no response from the respondents, the applicant filed O.A 789/2010. This was disposed of by the Tribunal directing the first respondent to consider and dispose of his representation in accordance with law and in terms of Rule 88 of CCS (Pension) Rules. The respondents issued Annexure A-17 impugned order rejecting his claim for pension on the ground that no relaxation can be considered under Rule 88 of Pension Rules as any further relaxation would result in a cascading effect leading to nullification of the relevant rule.
4. The applicant relied on the Order of the Hyderabad Bench of CAT to show that his appointment should be linked to the date of occurrence of vacancy (Annexure 21). He also placed reliance on the Annexure A-19 judgment of Hon'ble High Court of Patna and Annexure A-20 judgment of Hon'ble High Court of Jharkand, to reiterate his stand that delay in holding DPC should not deny him the opportunity to be promoted to Group D in time.
5. The respondents contested the O.A by filing reply statement. They submitted that the applicant was not granted pension as he did not possess the minimum qualifying service of ten years. They submitted that the Madras Bench in O.A No. 1264/2001 only directed the department to formulate a scheme by giving weightage for certain percentage of service rendered as an ED Agent for reckoning the same as qualifying service for the purpose of pension. They added that the Hon'ble High Court of Madras while considering W.P filed by the respondents department had made it clear that the relief granted in W.P is confined only to the first respondent and it is not be treated as a precedent. In the SLP filed by the respondents the Hon'ble Supreme Court made it clear that the question of law is left open to be decided by appropriate Court in appropriate case. Therefore, the respondents maintained that the applicant cannot derive any support from the Order of the C.A.T, Madras Bench.
6. The respondents pointed out that the applicant has joined as Group D way back in 1996 and he had chosen to accept the condition of the appointment and therefore he is estopped from challenging the appointment at this distant point of time. This position is upheld in O.A No. 889/09. While dismissing the said O.A, the Tribunal held that since the applicant approached this Tribunal seven years after issuance of Annexure A-8 and after accepting the benefit of Annexure A-8 and continuing in the service thereafter, he cannot keep alive the cause by submitting a representation after his retirement (Annexure R-1). In another O.A 145/10, this Tribunal held that ".... it is settled law that the promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of posts. ...An employee does not have an indefeasible right to promotion. His right is for consideration for promotion only...." (Annexure R-2).
7. The question of counting ED service as qualifying service for the purpose of determining his pension and other retiral benefits was adjudicated by the Full Bench in O.A No. 238/HP/2003. It was held that the service rendered as Extra Departmental Branch Postmaster, even if followed by appointment as Group D is not to be reckoned as a qualifying service for the purpose of pension.
8. Heard the counsel for the parties and perused the documents.
9. During hearing, the counsel for the applicant argued strenuously for extending the reliefs granted to the petitioners by the Hon'ble Patna High Court judgment, CWJC 3893/2009. In the case therein, it was pleaded that the delay in DPC consequently delayed his absorption as Group D. He had completed 9 years and 10 months service in Group D post. There was a delay of two months in the conduct of DPC and therefore, the respondent's department was directed to grant notional fixation of pay for two months in view of the delay in holding the DPC. Even otherwise, the petitioner therein could have been covered by Rule 49(3) of CCS (Pension) Rules, whereby in calculating the length of qualifying service, fraction of a year equal to three months and above shall be treated as a completed one half year and reckoned as qualifying service.
10. In the case of the applicant in the present O.A there is a shortfall of five months. While dealing with an identical issue, this Tribunal in O.A No. 889/09 held that the claim of the applicant to ante-date his promotion is hit by limitation. In another O.A No. 145/10, this Tribunal observed that :
"........Therefore, we are of the view that there was no deliberate delay or negligence on the part of the respondents in not filling up the Group-D posts from 2002 onwards. It is settled law that the promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of posts. We are unable to agree with the contention that the settled law as reiterated by the Apex Court in Nirmal Chandra Sinha vs. Union of India and Others, (2009) 1 SCC 671, is not applicable to the present case. An employee does not have an indefeasible right to promotion.
His right is for consideration of promotion only. From the facts and circumstances of the case, it is quite clear that there are many eligible seniors to the applicant who are waiting in the wings to get promotions to the cadre of Group-D. Until and unless a junior is promoted with effective date earlier than the effective date of promotion of the applicant, he cannot have a legitimate grievance....."
11. The applicant was promoted on 01.03.1996 even though, he attained the age of 50 years on 05.09.1995. He pointed out that due to continuous litigation from 1990, on the issue of upper age, the respondents did not fill up the post as and when the vacancy arose. The surmise is that the vacancies were filled up when the Hon'ble High Court permitted the respondents to issue an executive order fixing the upper age for recruitment from EDA to Group D. This was fixed as 50 years and the order was issued in 2000. So, it is quite likely that vacancies which existed prior to 2000 were filled up by EDAs, who were above 50 also, before 2000, due to delay in holding DPC, in compliance of the orders of the Tribunal/High Court. Otherwise, the applicant might not have been appointed against a 1996 vacancy as he crossed 50 years in September, 1995. There would have been seniors to him in 1995, who got notional fixation against such vacancies. Since no seniority list was produced by the applicant, the Tribunal is unable to verify such facts. The applicant has no contention that his junior was promoted prior to 01.03.1996. He was also not able to show that there was any vacancy prior to 05.09.1995, which should have been rightly filled up by him only. However, in view of the decision rendered in O.A No.145/10 and O.A No. 889/09 by a co-ordinate Bench of this Tribunal, the claim of the applicant to ante-date his promotion after a period of 15 years cannot be entertained.
12. In view of the forgoing, the O.A lacks merits and is dismissed. No costs.
(Dated 11th October, 2012) K. NOORJEHAN ADMINISTRATIVE MEMBER ax