M.Pariyani vs Superintendent Of Post Offices on 12 February, 2025

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Kerala High Court

M.Pariyani vs Superintendent Of Post Offices on 12 February, 2025

The present O.P.(CAT) is directed against the judgment dated 03.04.2023 in O.A.No.907 of 2017, whereby the claim of the petitioner - applicant for treating his period of officiating/adhoc service in the post of postman with effect from 01.10.2002 to 08.08.2007 and thereafter till 17.07.2010, for consideration for the purpose of pension, has been rejected.

2. Succinctly the facts in brief for adjudication of the lis are as follows:

While working as a Gramin Dak Sevak (hereinafter called 'GDS', for short) the applicant -

petitioner was ordered to officiate as postman at Kanhirapuzha Branch against the regular vacancy during the period from 30.09.2002 to 17.07.2010 and thereafter, at different post offices. This fact is evident OP (CAT) NO. 81 OF 2023 -4- 2025:KER:20359 from the information received under the RTI Annexure A2 as well as from the first and second additional reply statements, which we will be extracting in the later part of the judgment. However, vide order Annexure A6 on 22.07.2010 was appointed as Group D against the post of postman with effect from 09.08.2007 with the clarification that the period of notional service shall count only for the purpose of pension. A representation Annexure A7 was submitted by the petitioner for counting of Ad-hoc arrangement rendered as officating postman in the vacant post for the purpose of pension, which was rejected vide Annexure A8 dated 24.11.2016.

The relevant portion of the order is extracted herein below:

"Sub: Counting of Ad-hoc arrangement rendered as officiating Postman for consideration of pension - reg.

Ref: Your representation dated 02.08.2016.

                   This    has      reference     to     your
  OP (CAT) NO. 81 OF 2023        -5-

                                                    2025:KER:20359

representation dated 02.08.2016 requesting to count the ad-hoc service rendered as Postman in different spells for the purpose of pension. This is to inform you that the engagement as postman against leave vacancies and /or otherwise will not be counted for pension and other terminal benefits. As per records, you were appointed as MTS against the vacancy arisen after the introduction of New Pension scheme. Therefore, you are not eligible for pension an other benefits under Statutory Pension Scheme 1972."

3. The aforementioned order was assailed before the Tribunal. Respondents in the first additional reply statement did not disclose the fact that the applicant -petitioner had worked from 30.09.2002 to 17.07.2010 but only gave the particulars of employment of 2010 i.e., from 12.04.2010 to 29.04.2010, 16.06.2010 to 19.06.2010, 24.06.2010 to 30.06.2010 and 01.07.2010 to 17.07.2010. However, in paragraph No.5 of the said statement, it has been stated that he had served against the vacant post of post man, Mannarkad from 01.10.2002 OP (CAT) NO. 81 OF 2023 -6- 2025:KER:20359 to 31.03.2010. Similar was the contention in the second additional reply in paragraph No.4 thereof.

4. Learned tribunal though noticed the aforementioned contentions/averments recorded in the additional reply, in paragraph No.11 of the judgment under challenge, but, while giving the findings in the penultimate paragraph and in between found that the service of the applicant - petitioner as postman, while working as GDS, was only intermittent and rejected the case. It is in this contention this O.P.(CAT) has been filed.

5. Learned Senior counsel Sri.O.V.Radhakrishnan assisted by Mr.Vishnudas H., learned counsel appearing on behalf of the petitioner - applicant submitted that the relevant point of time the applicant-petitioner officiated as postman in Mannarkad area was from 30.09.2002 to 17.07.2010. Chapter III Rule 13 of the Central Civil Service (Pension) OP (CAT) NO. 81 OF 2023 -7- 2025:KER:20359 Rules, 1972 (hereinafter referred to as '1972 Rules', for short), dealing with qualifying services were applicable, which came to be repealed only in 2004 and as per Rule 13 the 'qualifying service' would mean the service rendered by an applicant in official temporary capacity without any interruption by substantive appointment. The aforementioned contention has also been rejected only on the premise that the material available on record shows that the applicant - petitioner had not satisfying the requirement of qualifying service as contemplated under Rule 13 of 1972 Rules, thus, the findings of the tribunal are wholly erroneous.

6. On the other hand, Mr.Prenjith Kumar, learned Central Government Counsel appearing on behalf of the respondents reiterated the submissions recorded by the tribunal as culled out from the first and second additional reply statements, found that the intermittent services rendered by the applicant- OP (CAT) NO. 81 OF 2023 -8-

2025:KER:20359 petitioner will not be construed to be a qualifying service as it was not uninterrupted. Even otherwise, the aforementioned 1972 Rules had undergone a sea change by introduction of a new pension scheme into force and thus urged this Court for upholding the findings under challenge.

7. We have heard learned counsel for the parties and appraised the paper book.

8. Before dealing with the rival findings it would be axiomatic to extract the contents of paragraph No.5 of the first additional reply and the chart contained in paragraph No.4 of the second additional reply.

9. Paragraph No.5 in the first additional reply reads as follows:

"5. It is submitted that as per the contentions raised in Para 5 of the Original Petition it is admitted that the Applicant was engaged as Gramin Dak Sevak Mail Deliverer(GDSMD for Short), Kanhirapuzha PO with effect from 22.08.1977. It is further submitted that the OP (CAT) NO. 81 OF 2023 -9- 2025:KER:20359 applicant worked as a substitute in the vacant post of Postman Mannarkkad MDG from 01.10.2002 to 31.03.2010 in the vacancy arose subsequent to the retirement of the regular departmental incumbent, availing LWA [Leave without allowance] from his original post of EDDA Kanhirapuzha. When a regular departmental postman joined at Mannarkkad MDG on 01.04.2010, the applicant had to return to his original post and continued to work there as EDDA Kanhirappuzha. Later he worked as substitute for Postman vacancies at Mannarkkad MDG on different spells of period 12.04.10 to 29.04.2010, 16.06.10 to 19.06.2010, 24.06.2010 to 30.06.2010 and 01.07.2010 to 17.07.2010 when any of the regular postmen at Mannarkkad MDG proceeded on leave. There after the Applicant was posted as Group DPattambi as per Annexure A-5 memo dated 17.07.2010. Later the applicant was transferred to Mannarkkad MDG and retired from service on attaining the age of Superannuation on 30.06.2016.It may be pertinent to point out here that the post of postman and MTS are entirely different carrying different Grade Pay/Levels."

Chart contained in paragraph No.4 of the second additional reply OP (CAT) NO. 81 OF 2023 -10- 2025:KER:20359 "4. It is humbly submitted that Gramin DakSevaks are holders of Civil posts but they are outside the purview of regular Civil Service and are employed for a maximum of five hours in different post offices, for performing various types of duties. Their engagement is governed by GDS Conduct Rules [now GDS (Conduct & Engagement) Rules as amended from time to time. The selection of a Grameen Dak Sevak to the cadre of Multi Tasking Staff or Postman is considered as direct recruitment. GrameenDakSevaks are engaged to work in the posts of Postman/ Multi Tasking Staff in short term leave vacancies or long term vacancies as working arrangement. Such arrangements are purely temporary. A Grameen Dak Sevak is not eligible for officiating in any Departmental posts of Postman, Multi tasking Staff. It is admitted that the applicant was engaged in the vacant posts of Postman in various spells purely on a working arrangement as detailed below.

The applicant has not worked continuously from 01.10.2002 to 17.07.2010 as stated below.

      Period          Post          Remarks
      22.08.1977- GDSMD             Regular post     of
      30.09.2002 Kanjirapuzha       the applicant
  OP (CAT) NO. 81 OF 2023       -11-

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       01.10.2002- Postman            Engaged        to
       31.03.2010 Mannarkkad          manage the post
                   MDG                due to vacancy
       01.04.2010- GDSMD              Regular post      of
       11.04.2010 Kanjirapuzha        the applicant
       12.04.2010- Postman            Engaged        to
       29.04.2010 Mannarkkad          manage the post
                   MDG                due to vacancy
       30.04.2010- GDSMD              Regular post      of
       15.06.2010 Kanjirapuzha        the applicant
       16.06.2010- Postman            Engaged        to
       19.06.2010 Mannarkkad          manage the post
                   MDG                due to vacancy
       20.06.2010- GDSMD              Regular post      of
       23.06.2010 Kanjirapuzha        the applicant
       24.06.2010- Postman            Engaged        to
       30.06.2010 Mannarkkad          manage the post
                   MDG                due to vacancy
       01.07.2010- Postman            Engaged        to
       17.07.2010 Mannarkkad          manage the post
                   MDG                due to vacancy
       18.07.2010   GDSMD             Regular post      of
                    Kanjirapuzha      the applicant
       19.07.2010   Group D           Promotion
                    Pattambi
                                                         "

10. The aforementioned two aspects were noticed by the tribunal in paragraph No.11 of the judgment, which is extracted hereinbelow:

"11. The details of service of the applicant in O.A 907/2017 is available OP (CAT) NO. 81 OF 2023 -12- 2025:KER:20359 from the additional reply statement dated 3.3.2022. It shows that during the period from 01.10.2002 to 17.07.2010, he has officiated on different spells, as Postman, Mannarkad in short term leave vacancy/long term vacancy. After each spell, he continued to hold the regular post of GDS. The last spell as GDS was on 18.07.2010. Thereafter on 19.07.2020 he got appointed as Group D employee, at Pattambi."

11. But while rendering the findings in paragraph Nos.21 and 22 failed to notice the aforementioned service to bring the case within the parameters of Rule 13 of 1972 Rules. It would be also pertinent to extract Rule 13 as they were in vogue and operative when the applicant-petitioner was ordered to officiate the post of postman from 2002. The said rule is extracted herein below:

"13. Commencement of qualifying service Subject to the provisions of these OP (CAT) NO. 81 OF 2023 -13- 2025:KER:20359 rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity:

Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post:

Provided further that-

(a) in the case of a Government servant in a Group 'D' service or post who held a lien or a suspended lien on a permanent pensionable post prior to the 17th April, 1950, service rendered before attaining the age of sixteen years shall not count for any purpose, and

(b) in the case of a Government servant not covered by Clause (a), service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity.

[(c) the provisions of Clause (b) shall not be applicable in the cases of counting of military service for civil OP (CAT) NO. 81 OF 2023 -14- 2025:KER:20359 pension under Rule 19."

12. We are of the view that respondents had been remiss in not explaining the continuous service of 30.09.2002 to 17.07.2010 as officiating/discharging the duties of postman at Mannarkkad post office. This was the clincher for, in our considered view, allowing the application of the applicant-petitioner to be strictly in tandem with the Rule 13 of 1972 Rules ibid. Similar view has also been expressed by the Division Bench of this Court in support of the judgment of this Court in Reghukumar C.P. Vs. Union of India and Others [2021 (3) KHC 400). Paragraph No.7 of the judgment is extracted herein below:

"7. A reading of the above Rules would make it clear that the operative portion of Rule 13 would mandate that, subject to the provisions of the CCS Rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. The first OP (CAT) NO. 81 OF 2023 -15- 2025:KER:20359 proviso to the said Rule would stipulate that this is so provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post. The second proviso thereto consists of three clauses as per clauses (a), (b) and (c) thereof. Clause (a) to the second proviso is not applicable in the instant case inasmuch as it deals with cases which have occurred prior to 17th April, 1950. Clause (b) would stipulate that in a case of a Government servant not covered by clause (a), service rendered before attaining the age of 18 years shall not count, except for compensation gratuity. A reading of internal page No.2 of Annexure R1 would show that date of birth of the petitioner herein (shown as Sl.No.2 thereof) is 24.03.1955. So, obviously the petitioner's case will not be affected by the condition in clause (b) of the second proviso to Rule 13 inasmuch as the service rendered by the petitioner is much after the cut of age of 18 years. Clause (c) of the second proviso would further stipulate that the provisions of clause (b) of the second proviso shall not be applicable in cases of counting of military service for civil pension under Rule 19 of the CCS (Pension) Rules. Clause (c) of the second proviso would also in any manner detrimentally affect the case OP (CAT) NO. 81 OF 2023 -16- 2025:KER:20359 of the petitioner inasmuch as clause (b) itself is not applicable to his case. Thus it can be seen that if an incumbent like the petitioner can satisfy the requirements the operative portion of Rule 13 of CCS (Pension) Rules as well as its first proviso, then such an incumbent is entitled to count his initial adhoc/officiating service, for the purpose of reckoning the same as pensionable service in the post, to which he is substantively/regularly appointed later, provided that the officiating or temporary service is followed without interruption by substantive appointment in the same post or another service or post as envisaged in the first proviso to Rule 13."

13. As an upshot of findings, we are of the view that the reasoning assigned by the tribunal is wholly perverse, opaque, fallacious and not sustainable in the eyes of law. Accordingly, impugned judgment is set aside. O.A. is, therefore, allowed. Consequently O.P. (CAT) is also allowed. Respondents are directed to consider the officiating service of applicant-petitioner from 30.09.2002 to 17.07.2010 strictly as per the OP (CAT) NO. 81 OF 2023 -17- 2025:KER:20359 provisions of Rule 13 of the 1972 Rules and grant the benefit of the pension which was though a condition at the time when the applicant-petitioner was actually appointed with effect from 09.08.2007 within a period of two months from the date of receipt of the certified copy of the judgment.

Sd/-

AMIT RAWAL JUDGE Sd/-

K. V. JAYAKUMAR JUDGE vv OP (CAT) NO. 81 OF 2023 -18- 2025:KER:20359 APPENDIX OF OP (CAT) 81/2023 PETITIONER ANNEXURES Annexure A 1 PHOTOCOPY OF THE CHARGE REPORT DATED 17-08-1977 ANNEXURE A 2 PHOTOCOPY OF THE REPLY DATED 02-08- 2016 FURNISHED UNDER THE RIGHT TO INFORMATION ACT OF THE IST RESPONDENT. ANNEXURE A 3 PHOTO COPY OF THE MEMO DATED 16-07- 2010 OF THE IST RESPONDENT.

ANNEXURE A 4 PHOTO COPY OF THE MEMO DATED 17-07- 2010 OF THE IST RESPONDENT.

ANNEXURE A 5 PHOTOCOPY OF THE MEMO DATED 17-07-2010 OF THE POSTMASTER, PATTAMBI M.D.G. ANNEXURE A 6 PHOTOCOPY OF THE MEMO DATED 22-07-2010 OF THE POSTMASTER, PATTAMBI MDG. ANNEXURE A 7 PHOTOCOPY OF THE REPRESENTATION DATED 02-08-2016 OF THE APPLICANT TO THE IST RESPONDENT.

ANNEXURE A 8 PHOTOCOPY OF THE MEMO DATED 24-11-2016 OF THE IST RESPONDENT.

ANNEXURE A 9 PHOTOCOPY OF THE ORDER DATED 17-11- 2016 IN O.A NO. 749 OF 2015 AND CONNECTED CASES (EXCLUDING PAGES 2 TO 320 WHICH CONTAINS THE NAME AND ADDRESS OF APPLICANTS 4 TO 106) ANNEXURE R1 TRUE COPY OF THE JUDGMENT IN CIVIL APPEAL 90/2015 OF THE SUPREME COURT OF INDIA IN Y.NAJITHAMOLAND OTHERS CASE OP (CAT) NO. 81 OF 2023 -19- 2025:KER:20359 ANNEXURE R2 TRUE COPY OF THE JUDGEMENT IN OP(CAT) 327/2016 BY HON'BLE HIGH COURT OF KERALA INDUKALA & OTHERS CASE.

ANNEXURE R3 TRUE COPY OF THE RULE 13 OF SWAMY'S PENSION COMPILATION INCORPORATING CCS PENSION RULES.

ANNEXURE A 10 TRUE COPY OF THE EXTRACT-RELEVANT PAGES INCLUDING PARA 64 OPERATIVE PORTION OF THE COMMON ORDER IN O.A.NO. 312/2008 AND O.A.NO.422 OF 2008 OF THIS HON'BLE TRIBUNAL.

Annexure A 11 TRUE COPY OF THE D.G., POSTS, LETTER NO. 18-34/92-ED & TRG., DATED THE 25TH NOVEMBER, 1993.

ANNEXURE A 12 TRUE COPY OF THE RELEVANT PAGES OF THE DEPARTMENT OF POSTS (GROUP-D POSTS) RECRUITMENT RULES, 2002 ANNEXURE A 13 TRUE COPY OF THE ORDER DATED 16-09- 2009 IN O.A.NO.462 OF 2008 OF THIS HON'BLE TRIBUNAL.

ANNEXURE A 14 TRUE COPY OF THE JUDGEMENT DATED 10- 02-2010 IN WP(C) NO.18 OF 2010 OF THE HON'BLE HIGH COURT OF KERALA.

ANNEXURE R 4 TRUE EXTRACT OF RULE 127 A OF POSTAL MANUAL VOLUME II.

ANNEXURE R5 JUDGEMENT DATED 31-05-2016 ON OA NO.

135/2013 FILED BY SRI.P.S.PADMAKUMAR AND OTHERS.

EXHIBIT P 1 TRUE COPY OF THE ORIGINAL APPLICATION NO.907/2017 FILED BY THE PETITIONER/APPLICANT.

OP (CAT) NO. 81 OF 2023 -20-

2025:KER:20359 EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE RESPONDENTS DATED 17- 05-2018.

EXHIBIT P3 PHOTOCOPY OF THE COMMON ORDER DATED 30-10-2019 IN OA NO.180/000907/2017 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.

EXHIBIT P4 TRUE COPY OF THE COMMON JUDGEMENT DATED 22ND DAY OF OCTOBER, 2021IN OP(CAT)NOS. 55&56 OF 2021 OF THIS HON'BLE COURT.

EXHIBIT P5 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE RESPONDENTS 1 TO 5 DATED 31-12-2021.

EXHIBIT P6 TRUE COPY OF THE REJOINDER STATEMENT FILED BY THE APPLICANT/PETITIONER. EXHIBIT P7 TRUE COPY OF THE 2ND ADDITIONAL REPLY STATEMENT FILED ON BEHALF OF THE RESPONDENTS 1 TO 5 DATED 03-03-2022. EXHIBIT P8 TRUE COPY OF THE ADDITIONAL REJOINDER STATEMENT OF THE APPLICANT DATED 04- 04-2022.

EXHIBIT P9 TRUE COPY OF THE 3RD ADDITIONAL REPLY STATEMENT FILED BY THE RESPONDENTS DATED 27-05-2022.

EXHIBIT P 10 TRUE COPY OF THE IIND ADDITIONAL REJOINDER TO THE IIIRD ADDITIONAL REPLY STATEMENT OF THE APPLICANT/PETITIONER DATED 22-09-2022. EXHIBIT P 11 PHOTOCOPY OF THE COMMON ORDER DATED 03-04-2023 IN OA NO.180/000907/2017 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, OP (CAT) NO. 81 OF 2023 -21- 2025:KER:20359 ERNAKULAM BENCH.

Exhibit P-12 TRUE COPY OF THE GOVERNMENT OF INDIA (AUTHORIZATION OF OFFICERS FOR VERIFICATION OF PLEADINGS AND OTHER DOCUMENTS TO BE FILED IN THE CENTRAL ADMINISTRATIVE TRIBUNAL) RULES, 1993 AS PER G.I., DEPT. PER AND TRG., NOTIFICATION NO., A-11019/105/87- AT, DATED 28-09-1993 PUBLISHED AS PER GSR 630(E) IN THE GAZETTE OF INDIA.

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