Central Administrative Tribunal - Ernakulam
Amrutharaj V vs Union Of India on 19 January, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00018/2015
Thursday, this the 19th day of January, 2017
CORAM:
Hon'ble Mr. U. Sarathchandran, Judicial Member
1. Amrutharaj V., aged 35, S/o. Vasudevan Nair,
Postal Assistant, Kallara - 686 611, residing at Nediyankeril House,
Thalayazham PO, Kottayam District, Pin - 686 607.
2. Vijoy James, aged 39, S/o. K.A. Chacko, Postal Assistant,
Kuravilangad -686 633, Residing at Kollamkunnel House,
Vattukulam PO, Vayala - 686 587, Kottayam
District. ... Applicants
(By Advocate : Mr. C.P. Johny)
Versus
1. Union of India, represented by the Secretary,
Department of Posts, New Delhi - 110 001.
2. Chief Postmaster General, Kerala Circle,
Thiruvananthapuram - 695 033.
3. Postmaster General, Central Region, Kochi - 682 020.
4. The Senior Superintendent of Post Offices,
Kottayam Division, Kottayam - 686 001. ... Respondents
[By Advocate : Mr. N. Anilkumar, Sr. PCGC (R)]
This application having been heard on 04.01.2017, the Tribunal on
19.01.2017 delivered the following:
ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member -
While working as GDS, the applicants were deputed to Army Postal Service (APS) after promoting them as Group-D on 4.10.2000. During the service in APS they succesfully appeared in the competitive examination held on 22.5.2005 for promotion to the post of Postman. After three years they took part in the Lower Grade Official (LGO) examination for promotion as Postal Assistant held on 27.12.2008 and became successful. On repatriation from APS they were posted as Postal Assistant but instead of placing them under the old pension scheme of CCS (Pension) Rules, 1972 they were included in the New Pension Scheme (NPS). Being aggrieved by the refusal of the respondents to include them in the CCS (Pension) Rules, 1972 the applicants have approached this Tribunal with the present OA seeking relief as under:
'I. Declare that the applicants are eligible to be included in the pension scheme under CCS Pension Rules, 1972.
II. Declare that the Group D service rendered by the applicants in Army Postal Service should be counted towards their pensionable service.
III. Declare that the applicants are to be included in the General Provident Fund and to stop the recoveries towards contribution under the New Pension Scheme and refund the amount already recovered.
IV. Grant such other relief, which this Hon'ble Tribunal may deem fit, proper and just in the circumstances of the case.'
2. Respondents resisted the OA contending that while working as GDSMD applicants were deputed to APS after giving technical promotion to the cadre of Group-D for one day before dispatching them to BRO, Trivandrum on 5.10.2000. Admitting that subsequently they passed the Postman examination held on 27.5.2005 and later the LGO examination held on 27.12.2008 and that they were promoted to the cadre of Postal Assistant, the respondents state that after discharge from APS the applicants joined as Postman in Kottayam Division - the 1 st applicant at Kaduthuruthy Post Office on 15.3.2010 and the 2nd applicant at Palai HO on 3.3.2010. They were deputed to PTC Mysore for induction training and rejoined as Postal Assistants on 29.10.2010 on successful completion of the induction training. Respondents further contend that though they were relieved from GDS after giving a technical promotion to the cadre of Group-D for a day the applicants hold lien in the GDS cadre and their names are not cut of from the GDS list. GDS are eligible to appear in MTS/Postman test and also in the selection from seniority quota. After passing the examination their promotion is governed by the 'next below rule'. According to the respondents as the promotion of the applicants happened to be after the date of introduction of the New Psion Scheme(NPS) the applicants will have to be included in the NPS. Respondents further contend that technical promotion was given to the applicants under the existing terms and on the condition that whene reverted to civil side from APS they were required to join as GDS in the civil unit and not as Group-D. The respondents further contend that for inclusion in the old pension scheme there cannot be two sets of rules; one for persons returning from APS and another for the civil employees as the same would cause infringement of the rights of the employees under civil employment.
3. A rejoinder was filed by the applicants contending that they had served in the APS for a period of nine years, three months and 24 days. They have produced Annexures A16 & A17 'combined certificate of discharge and recommendation for civil employment' and pray that the Tribunal should declare the service rendered by them to be tagged with the pensionable service for the purpose of statutory pension under the CCS (Pension) Rules, 1972.
4. Respondents filed additional reply statement reiterating their plea that the condition attached to the technical promotion granted to the applicants on 5.1.2000 was that they will have no right to continue in that cadre on repatriation to civil duty. It is further stated that the promotion of the applicants as Group-D service in APS was an out of turn arrangement. According to them as the applicants left the cadre of GDS in 2005 and opted for promotion in the post of GDS merit quota in 2005 they are entitled to the benefits attached to the post only from 2005.
5. Heard Mr. C.P. Johney, learned counsel appearing for the applicant and Mr. Thomas Mathew Nellimoottil, learned Sr. PCGC appearing for the respondents. Perused the record.
6. The main issue involved in this case is whether the service rendered by the applicants in APS can be reckoned for including them under the CCS (Pension) Rules, 1972 or not ?
7. The facts and service particulars of the applicants are not in dispute. However, according to the respondents it was while remaining as GDS the applicants were sent on deputation as Sepoy's in APS which is a Group-D post. According to the respondents for enabling them to join a Group-D post in APS the applicants were given 'technical posting as Group-D for one day' on 5.1.2000 before they proceeded to BRO, Trivandrum for joining in the APS. It is not in dispute that while serving in the APS the applicants successfully appeared in the Postman examination and also the LGO examination for being promoted as Postal Assistants.
8. Learned counsel for the applicants Shri C.P. Johney submitted that soon after their discharge from APS, applicant No. 1 reported for duty at Kaduthuruthy Post Office and took charge as Postman on 15.3.2010. Similarly applicant No. 2 reported at Palai HO and assumed charge as Postman on the same date without any interruption in service. Annexures A16 and A17 are the discharge-cum-employment orders issued by the APS in relation to applicants Nos. 1 and 2 respectively. In Annexure A16 discharge-cum-employment order dated 31.1.2010 applicant No. 1 is directed by the APS authorities to report to the SPM, Kuravilangadu SO. In the case of applicant No. 2 the discharge - cum - employment order directs him to report to the SPM Aruvithura SO under Palai HO for further duties. Annexures A19 and A20 are the charge reports indicating that the applicants took charge on 15.3.2010 as Postman. It is worth noticing from Annexures A16 & 17 discharge-cum-movement orders that the applicants have been granted joining time and 30 days of AL for the year 2010 with effect from 1.2.2010 to 2.3.2010.
9. Shri C.P. Johney, learned counsel for the applicants submitted that for the purpose of pensionary benefits under the CCS (Pension) Rules, 1972 the qualifying service for pension of Government servant will be reckoned from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. Rule 13 of CCS (Pension) Rules, 1972 reads:
'13. Commencement of qualifying service Subject to the provisions of these 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 pension under Rule 19] *Inserted vide Notification No. 28/19/2001-P&PW(B) dated 11-11-2003 published as so no. 3205 in Gazette of India dated 22-11-2003.'
10. Shri C.P. Johney further referred to a Government of India OM No. FE(58)-E.V(A)/61, dated 3rd February, 1962 which reads:
'(5) Counting of non-regular/purely temporary military service for civil pension. - Continuous military (non-regular/purely temporary) service not rendered in conjunction with war service in the Army, the Navy and the Air Force will count in full towards civil pension if such service is followed without interruptions by appointment to and eventual confirmation in a pensionable post in civil service. The grant of this concession is subject to the following conditions:-
(1) The officer concerned should not have earned a pension under the military rules in respect of the service in question.
(2) In the case of services or posts in respect of which a minimum age is fixed for recruitment, no military service rendered below that age shall be allowed to count for pension.
(3) If the officer has been granted any retirement gratuity in respect of such service, such gratuity shall be refundable.
[G.I., M.F., O.M. No. F. 3 (58)-E. V (A)/61, dated the 3rd February, 1962.] ' Shri. Johney then referred to the apex court decision in Union of India & Ors. v. M. Mathivanan - (2006) 6 SCC 57 wherein it was held that an employee in APS having completed eligibility condition of 16 years of service which included non-regular as well as regular service, he would be entitled to the benefit of time bound promotion scheme and the same cannot be denied on the ground that he had not completed 16 years of regular service.
11. Shri Anilkumar learned Sr. PCGC submitted that Mathivanan's case is quite different from the issue involved in this case because Mathivanan was appointed as Warrant Officer on the establishment of regular Army whereas in the present case the applicants were only deputed to APS by giving a technical promotion and having appeared in the Postman examination held in 2005 in the GDS merit quota, they cannot be treated as having a qualifying service commencing from the date of their service in the APS.
12. There is no dispute for the respondents that the applicants were working as Sepoys in the regular pay-roll of APS. Annexures A1 and A2 are orders dated 3.10.2000 re-directing the applicants for joining APS wherein it is seen that the applicants are obliged to give an undertaking that they will not seek repatriation to civil before their appointment to Group-D cadre on their return. It is also not in dispute that while serving as Sepoys in APS the applicants successfully appeared in the Postman examination and subsequently in the CGO examination for promotion to the post of Postal Assistants. It is clear from Rule 13 of CCS (Pension) Rules, 1972 that the service of the applicants in APS certainly qualifies them to be considered for reckoning commencement of qualifying service under the CCS (Pension) Rules, 1972 as after discharge from APS the applicants have reported to the respondents without interruption for taking up the substantive appointment as Postman in the civil side. Annexures A16 and A17 indicate that they have been given joining time and annual leave. Annexures A19 and A20 reveal that they reported for duty as Postman on 15.3.2010 without interruption.
13. Shri C.P. Johney referred to a decision of the Punjab & Harayana High Court dated 31.8.2010 in Harbans Lal v. The State of Punjab & Ors. - CWP No. 2371 of 2010 wherein the daily wage service of an employee from 1988 till the date of his regularization was held to be counted as qualifying service for the purpose of pension under the old pension scheme and the GPF scheme which were applicable to the employees recruited in the Punjab Government service prior to 1.1.2004. Shri C.P. Johney then referred to the information received under the RTI Act, 2005 from the Karimnagar, Dehradun and Namakkal Divisions of the Department of Posts where identically situated persons discharged from APS and having passed the examination for Postal Assistants while in APS joined service after 1.1.2004 were included in the CCS (Pension) Rules, 1972. He submitted that only in Kerala circle a skewed view was taken by the respondents not reckoning the service in the APS for counting qualifying service for the purpose of CCS (Pension) Rules, 1972. He further submitted that the NPS is not supplanting or abrogating the CCS (Pension) Rules, 1972 in any way for the existing employees whose commencement of qualifying service was in tune with Section 13 of CCS (Pension) Rules, 1972. This Tribunal finds merit in that argument.
14. In the light of the above discussion, this Tribunal is of the view that the OA is only to be allowed. Accordingly, it is hereby declared that the applicants are eligible to be included in the old pension scheme under CCS (Pension) Rules, 1972 and that the Group-D service rendered by the applicants in the APS should be counted towards their pensionable service. It is further declared that the applicants are to be included in the then existing General Provident Fund. Respondents are directed to stop recovery from the applicants towards contribution under the NPS and to refund the amount already recovered from them. The above exercise shall be completed within two months from the date of receipt of a copy of this order. It is made clear that this order is applicable only for the purpose of the pensionary and retiral benefits of the applicants.
15. Original Application is allowed as above. No order as to costs.
(U. SARATHCHANDRAN) JUDICIAL MEMBER b� SAb�