Central Administrative Tribunal - Ernakulam
K. Bhuvanachandran vs Union Of India on 21 March, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/01125/2014
Tuesday, this the 21st day of March, 2017
CORAM:
Hon'ble Mr. U. Sarathchandran, Judicial Member
K. Bhuvanachandran, S/o. Late Shri Kesavan, aged 59 years, Postman,
Anchal, Department of Posts, residing at Devi Sadanam, Panayamcherry,
Mallasseribhagom, Anchal PO, Pin - 691 306. ... Applicant
(By Advocate : Mr. V. Sajith Kumar)
Versus
1. Union of India, represented by the Secretary to the Government of
India, Department of Posts, Government of India, New Delhi-110 001.
2. The Chief Postmaster General, Kerala Circle, Trivandrum-695 033.
3. The Superintendent of Post Offices, Pathanamthitta Postal Division,
Pathanamthitta - 689 645. . . . Respondents
(By Advocate : Mr. Thomas Mathew Nellimoottil, Sr. PCGC)
This application having been heard on 01.03.2017, the Tribunal on
21.03.2017 delivered the following:
ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member -
The short question to be considered in this OA is whether the applicant, who initially started his service as GDS in the year 1984 and got appointed as Postman in the 2003 vacancy but was posted as such only on 30.8.2005, is entitled to get pension under the CCS (Pension) Rules, 1972 by giving notional date of appointment as Postman as and when the vacancy arose in 2003? Obviously, all appointments after 1.1.2004 are governed by the new contributory pension scheme which has come into vogue on that day and CCS (Pension) Rules, 1972 is now confined to only those who were appointed prior to 1.1.2004.
2. According to the applicant the examination conducted for the posts of Postman for the vacancies arose in 2003 was unnecessarily delayed on the ground that clearing from screening committee was required for filling up those posts. As per the information obtained by invoking RTI Act, 2005 sanction for filling up the vacancies of Postman was granted only in 2005. Though there were 12 vacancies in 2003, sanction to fill up was given only for 8 vacancies of Postman. The administrative delay in getting sanction for filling up the vacancies could be avoided and therefore, the applicant could be deemed to have been appointed for the vacancy which arose in 2003 and thereby he could have been brought under CCS (Pension) Rules, 1972. Applicant, therefore, seeks relief as under:
'(i) To direct the respondents to place the applicant notionally with effect from the date of his entitlement by appointing him with effect from the date of occurrence of vacancies by including him in the statutory pension scheme, extending the benefits ordered in OA No. 620/2003.
(ii) To direct the respondents to stop recoveries towards the contribution of the applicant under the New Pension Scheme and to refund the amount already recovered with an interest of 10%.
(iii) To direct the respondents to stop recoveries towards the contribution of the applicants under the New Pension Scheme and to refund the amount already recovered with an interest of 10% per annum.
(iv) Grant such other reliefs as may be prayed for and as the Court may deem fit to grant, and
(v) Grant the cost of this Original Application.'
3. Respondents resisted the OA by contending that the applicant who had applied for the examination to the cadre of Postman notified on 18.2.2005 was fully aware of the fact that if he was selected he would be placed under the New Pension Scheme and therefore he is estopped from putting over any claims regarding his date of appointment at this belated point of time. According to the respondents clearance of direct recruitment vacancies by the screening committee is the administrative procedure common to all Central Government departments and approval of respondent No. 2 was received only in 2004 and the examination was conducted in May, 2005. According to the respondents applicant is not entitled to be included under the CCS (Pension) Rules, 1972.
4. Heard Mr. V. Sajithkumar, learned counsel for the applicant and Mr. Thomas Mathew Nellimoottil, learned Sr. PCGC for the respondents. Perused the record.
5. When this case was taken up for final hearing Shri Sajithkumar learned counsel for the applicant referred to a common order dated 17.11.2016 of the Principal Bench of this Tribunal in OA No. 749 of 2015 and connected cases wherein it was held that for all GDS who have been absorbed as regular Group-D staff the period spent as GDS will be counted in total for the purpose of pensionary benefits.
6. Shri Thomas Mathew Nellimoottil, learned Sr. PCGC for the respondents referred to the apex court judgment in Y. Najithamol & Ors. v. Soumya S.D. & Ors. in Civil Appeal No. 90 of 2015 wherein it was held that GDSs not being postal employees are being merely extra-departmental agents cannot be treated as promoted to the post of Postman and that they can be treated as only direct recruits for the purpose of appointment to the post of Postman. Referring to the common order dated 22.11.2016 passed by this Bench of the Tribunal in OA No. 555 of 2016 and connected cases Shri Thomas Mathew Nellimoottil submitted that in that order this Tribunal relying on the ratio of the Najithamol's case (supra) held that appointment of Postman from GDS being a direct recruitment, candidates who were so recruited directly cannot seek anti-dating of their appointment. In that common order this Tribunal, besides emphasising the ratio of Najithamol's case (supra), relied on the another apex court decision in Suraj Prakash Gupta & Ors. v. State of Jammu & Kashmir - 2000 (7) SCC 561 wherein it was held that in service jurisprudence the direct recruits can claim seniority only from the date of his regular appointment and that he cannot claim seniority from a date when he was not born (sic) in the service.
7. Drawing the essence, syllogistically, of the dictum in Suraj Prakash Gupta's case (supra) this Tribunal in the common order dated 22.11.2016 held that the ratio enunciated in those decisions is that direct recruits cannot get their appointment anti-dated from the date of occurrence of vacancies in the direct recruitment quota.
8. Shri. Sajithkumar learned counsel for the applicant submitted that what the applicant seeks is merely notional anti-dating of his appointment in view of the administrative delay occurred in not filling up the vacancies of the post of Postman in 2003 itself. He submitted that the administrative delay on the part of the respondents in the delayed conducting of the examination for selection to the post of Postman in May, 2005 cannot be passed on to the applicant. He further submitted that the limited prayer of the applicant is quite innocuous, not effecting anybody's seniority or is a claim for salary benefits by such notional anti-dating of the date of appointment. He further submitted that it was on account of sheer administrative delay occurred in getting a clearance from the competent authority to fill up the vacancy which arose in 2003 the appointment to that post could take place after 1.1.2004 by which time the New Pension Scheme has come into force. Shri Sajithkumar, learned counsel for the applicant, therefore, requested the Tribunal to look into the prayer as distinct from the aforecited cases as the applicant is not claiming any other benefits other than including him in the CCS (Pension) Rules, 1972. In this connection, he referred to a decision of the Jharkhand High Court in WP(S) No. 5331 of 2009 (Annexure A7) wherein it was held that the employee having less than the required service for pensionary benefits on account of the fault of the administration in filling up the vacancy, taking into account of the fact that the said employee had a considerable length of service in the Department more than what is required for pensionary benefits, it was ordered to treat him to be included in the Pension Rules.
9. While taking note of the aforesaid decision of the Jharkhand High court in WP(S) No. 5331 of 2009 this Tribunal is of the view that the common order dated 22.11.2016 of this Tribunal in OA No. 555 of 2016 and connected cases have to be necessarily followed in this case also or else it will be an instance of lack of consistency. Referring to S.I.Rooplal v. Lt.Governor through Chief Secretary, Delhi, the apex court in Government of Andhra Pradesh v. A.P. Jaiswal - AIR 2001 SC 499 held that consistency is the cornerstone of the administration of justice. It is consistency which created the system and this consistency can never be achieved without respect to the rule of finality. (See K. Ajit Babu & Ors. v. Union of India & Ors. - (1997) 6 SCC 473 para.6 and Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel & Ors. - AIR 1968 SC 372).
10. Since the aforesaid common order of this Tribunal dated 22.11.2016 in OA No. 555 of 2016 and connected cases has been brought to the notice of this Tribunal in this case, the rule of consistency demands for following the aforesaid precedent. Accordingly, the Original Application is dismissed. Parties shall suffer their own costs.
(U. SARATHCHANDRAN) JUDICIAL MEMBER ''SA''