Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through The Secretary on 17 April, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
O.A.NO.719-HR-2011 April 17, 2012
CORAM:HONBLE SMT SHYAMA DOGRA, MEMBER(J)
Banwari Lal son of Shri Mam Raj, Ex-Postman at Head Post Office Narnaul resident of Village and Post Office Sareli Tehsil Narnaul District Mohindergarh.
APPLICANT
BY ADVOCATE: SHRI GAURAV SETHI.
VERSUS
1. Union of India through The Secretary, Department of Posts, Ministry of Telecom and IT, Dak Bhawan, Parliament Street, New Delhi.
2. The Chief Post Master General, Haryana Postal Circle, Ambala.
3. The Senior Superintendent of Post Offices, Gurgaon Division, Gurgaon, Haryana.
4. The Post Master, Head Post office, Narnaul.
RESPONDENTS
BY ADVOCATE: SHRI ROHIT SHARMA VICE
SHRI DEEPAK AGNIHOTRI,
SR. CENTRAL GOVT. COUNSEL.
ORDER (oral)
HONBLE SMT SHYAMA DOGRA, MEMBER (J):
Shorn of unnecessary details, the facts of this case in brief are that applicant was appointed as an Extra Departmental Delivery Agent (re-designated as GDS DA) at Branch Post office Sareli on 1.2.1972. As a result of examination for appointment / promotion to the cadre of Postman held on 4.8.1996, the applicant was declared successful and approved for appointment as Postman, vide letter dated 21.11.1996 and was ordered to undergo training vide Memo dated 6.12.1996 (Annexure A-3). Vide letter dated 23.12.1996 (Annexure A-4), the applicant, after successful completion of training, was ordered to be posted at Narnaul HO. Formal orders of his appointment as a Postman were issued on 26.12.1996 (Annexure A-5). The applicant was retired from service w.e.f. 29.4.2006 vide letter dated 10.4.2006 (Annexure A-6), though as a GDS DA, he was due for retirement on 6.4.2011 on attaining the age of 65 years. Apparently, he was retired on attaining the age of 60 years.
2. The applicant pleads that after his retirement, he was not paid any retiral benefits and on enquiry, he was informed that he had not completed qualifying service of ten years as a Postman and as such is not entitled to retiral dues and his service rendered as GDS DA from 1972 to 1996 cannot be counted as qualifying service as there is no provision in the rules for doing so. The applicant got issued a legal notice dated 10.4.2006 (Annexure A-7) claiming pensionary benefits or alternatively allow him to serve as GDSDA upto 65 years. The claim of the applicant was, however, rejected vide letter dated 12.4.2006 (Annexure A-8) with a plea that qualifying service rendered by the applicant is 9 year, 4 months, 6 days and being a permanent employee, having retired before completion of 10 years qualifying service, he is not entitled for pension. Placing reliance on rule 13 of CCS (Pension) Rules, 1972, the applicant claims that 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.
3. The applicant has, thus, prayed for issuance of direction to the respondent for release of service pension and other pensionary benefits along with arrears with interest for the service rendered by him from 1.2.1972 to 30.4.2006 which has been denied by respondents vide reply dated 12.4.2006.
4. The respondents have filed a reply to oppose the O.A. they submit that Original Application is barred by limitation counting from the order dated 12.4.2006. As per rule 6 of Department of Posts, Gramin Dak Sewak (Conduct and Employment) Rules, 2001, the Sewak is not entitled to any pension. Thus, the applicant is not entitled for any pension for the service rendered by him as GDS (Annexure R-1). The service reckoned for pensionary purpose is known as qualifying service. All kind of service do not earn pension. Only qualifying service does. The qualifying service of government servant commences from the date he takes charge of the post to which he is appointed substantively. A govt. servant who retires from service before completing qualifying service of 10 years is not eligible for payment of pension but is entitled for the payment of a lump sum amount termed Gratuity. A copy of rule 49 of CCS (Pension) Rules, 1972 is annexed as Annexure R-2. Being a Government servant, the applicant has rightly been retired on attaining the age of 60 years.
5. The applicant has filed a replication reiterating the submissions made in the Original Application with further submissions that this point with regard to counting of services rendered as GDS for payment of pensionary benefits has already been adjudicated upon by Chennai Bench of this Tribunal in the case of M.R. Palamisamy Vs. Union of India & Others, in O.A.No. 1264 of 2001 decided on 18.4.2002. This order was upheld by the Honble Apex Court while dismissing the SLP filed by the respondents under C.C.No.13829/2008 on 17.10.2008.
6. I have heard learned counsel for the parties and gone through the record.
7. After careful consideration of the matter, it is found that the issue raised in this case is no longer res-integra and stands settled by the aforesaid decision in Palanisamys case. Therefore, bar of limitation does not apply where there exists a strong prima facie case in favour of a litigant. Limitation does not apply in cases where there exists a continuing cause of action where the aggrieved person is getting loss of pension every month. Otherwise also it was incumbent upon the respondents to accept the claim of the applicant in the light of decision rendered by the Chennai Bench which has attained finality upto the Supreme Court in 2008. It is unfortunate that every time, similarly situated persons have to knock the door of justice for redressal of their grievance which was already granted to their counter parts either by the Department or by the Court of law. Therefore, the issue involved in this case of limitation is also decided in favour of the applicant holding that the O.A. is filed within the period of limitation.
8. Similarly, in the case of Nanak Chand Vs. Union of India & Others, decided by this Bench on 6.2.2009, O.A.No. 175-HP-2008. The Bench examined rule 4 of the P&T Extra Departmental Agents (Conduct & Service) Rules, 1972 and held that same was bad in law as it does not improvise an exception whereby a work-charged EDA, if regularized on a civil post at a later stage, is entitled for counting of his service towards qualifying service, full or 50%, for pension and needs to be suitably modified under the requirements of law. Once EDDA staff are held to be holding civil posts, they should not be deprived of benefits under the rules and the law applicable to civil posts, including pension rules, by counting past service as EDDA, followed by regular appointment either 50% or 100%. Thus, the Court held that rule 4 of P&T EDA (C&S) Rules, was not a comprehensive provision and was required to be suitably modified. It being a welfare State, the Government should grant pension and pensionary benefits to such employees and in that case, the applicant was entitled to get his service counted as a work-charge employee as qualifying service for pension.
9. Though this case of Nanak Chand is sub-judice before the Honble High Court of Punjab and Haryana, fact remains that this issue has attained finality in Palanisamys case and the order was also implemented by the respondents. Pars 9 to 11 thereof are relevant to be quoted here-in-below :-
9. A conjoint reading of the above provisions would go to show that an EDA who had rendered a continuous minimum service of 20 years would be entitled for the severance amount of Rs. 30,000 and in the case of absorption of an EDA against a regular post in the department after rendering a continuous service as an EDA for 15 years, he would be entitled to severance amount of Rs. 20,000/-. In the instant case, we find that the applicant has rendered 29 years of service as an EDA before his promotion to the Group-D cadre. But the service rules for ED Staff are silent with regard to reckoning a portion of service as an ED Agent as a qualifying service on absorption as a regular Gr. D or on promotion as a Group D against the departmental post. Here we would like to invite a reference to the OM dated 12.04.1991 issued by the DOPT with regard to regularisation of casual labourers are concerned. In the said scheme there is a clause stating that 50% the service rendered as temporary status employee will be reckoned as a qualifying service for regulating the retiral benefits after regularisation against Gr. D Posts. This provision is on similar lines prevailing in the Railways and other Govt. of India departments. In a nutshell the essence is that even in respect of casual labourers who get regularised at a subsequent date against regular Gr. D Posts. a portion of their service rendered with temporary status is reckoned as qualifying service for regulating the retiral benefits.
10. On the other hand, there is no such welfare scheme in respect of ED Agents. One reason may be that the ED Agents are part-time workers and therefore no weightage is called for. It is in this connection we would like to observe that a distinction has to be made in respect of a person who works as an ED employee and retires as such and a person who works for some time as an ED Agent and gets absorbed as a Gr. D official. In the former case since the employee retire as an ED Agent, there is no scope for any pension at all. On the other hand, in the latter case since the employee retires as a Gr. D official after regularisation, the department has to decide whether any weightage need be given for the services rendered by him as an ED Agent for well over several years.
11. The above point will have to be seen in the light of the fact that on regularisation as a Gr. D employees, the age of superannuation of the employee gets reduced from 65 years. Surely this amounts to a reduction in the superannuation age and deserves to be adequately compensated. Thus it would appear that on promotion to the Gr. D cadre, the ED employee does not gain and on the contrary he seems to be more on the losing side. We therefore hold that this position has to be adequately corrected by reckoning a portion of the service rendered as an EDA as a qualifying service for pensionary purposes.
10. After thoughtful consideration of the matter, I find that the facts of this case are fully covered by the decision in the case of Nanak Chand & Palanisamy's cases (supra), therefore, impugned order, Annexure A-8 is declared as illegal and void and is hereby quashed and set aside. The respondents are directed to consider the claim of the applicant for grant of pension and other retiral benefits as admissible to him, by counting full or half of the service rendered by him prior to his regularization on Group D Post, towards qualifying service for the purpose of grant of pension and other pensionary benefits, within a period of three months from the date of receipt of copy of this order, failing which, the respondent shall be liable to pay interest on those dues @6% per annum excluding six months from the date of his retirement till the payment is made.
11. In terms of these observations & directions as above, this O.A. stands disposed of accordingly. No costs.
(SHYAMA DOGRA) MEMBER (J) Place: Chandigarh.
Dated: 17.04.2012 HC* 1 O.A.No.719-HR-2011