Central Administrative Tribunal - Ernakulam
V Sukumaran Nair vs The Secretary Department Of Posts ... on 21 May, 2024
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.180/00127/2020
Tuesday, this the 21st day of May, 2024
CORAM:
HON'BLE Mr. JUSTICE K. HARIPAL, JUDICIAL MEMBER
V.Sukumaran Nair, S/o. Late Velayudhan Pilla
Aged 61 years, working as Branch Post Master
Cheriyakolla, A/w karakonam S.O.-695504
under Neyattinkara H.O., residing at Anjanam
Mekkolla, Dhanuvachapuram P.O.
Thiruvananthapuram - 695 503
- Applicant
[By Advocates: Sri.M.R.Hariraj, Viswajith C.K., Sri.K.Rajagopal,
Sri.M.B.Jayaraj, Smt.Ganga A Sankar,
Smt.Thanuja Roshan George]
Versus
1. Union of India, represented by the Secretary to
Government of India, Department of Posts
Ministry of Communications, New Delhi - 110 011
2. Chief Postmaster General, Kerala Postal Circle
Thiruvananthapuram - 695 533
3. Superintendent of Post Offices, Thiruvananthapuram
South Division, Thiruvananthapuram - 695 036
- Respondents
[By Advocate: Sri.N.Anilkumar, SPC]
The application having been heard on 14.05.2024 the Tribunal on
21.05.2024 passed the following:
O.A.No.127/2020 2
ORDER
Applicant is a Gramin Dak Sevak, GDS, who started engagement on 10.03.1983. On 27.03.1991 while working as GDS he was technically promoted to Group-D and deputed to Army Postal Service, APS for short, and continued on deputation until 23.07.2003. On 24.07.2003 he was discharged from APS on compassionate ground and was re-engaged as ED agent/GDS in the Thiruvananthapuram South Postal Division and presently working as GDSBPM in Cheriyakolla branch office. He is aggrieved by non-granting of regularisation and not extending benefit of CCS (Pension) Rules, 1972. Annexure-A4 representation submitted by him has been rejected through Annexure-A8 stating that there is no provision to regularize his APS service since he was repatriated to civil side as GDS. Therefore, the Original Application as amended is to quash Annexure-A8, to direct the respondents to regularise him as Group-D as per Annexure-A2 order with effect from 27.03.1991 reckoning his service under the APS as qualifying for pension and grant him pension under the CCS (Pension) Rules, to declare that Rule 6 of GDS(C&E) Rules are ultravires and void to declare that he is entitled to have the pension and O.A.No.127/2020 3 pensionary benefits fixed under the CCS (Pension) Rules and to issue consequential reliefs.
2. Applicant claims that on deputation in the APS he became a holder of civil post since 1991, that he has contributed towards GPF, he was discharged from the APS after putting in 12 years and 4 months service. Even though two batches of GDs, 847 and 659 were ordered to be regularized who were on deputation to APS, his name has been illegally omitted. Even though the department has taken conscious decision to regularise services of personnel who were sent to APS on deputation after giving one day technical appointment as Group-D, his claim was not considered. After Annexure-A2 the 2nd respondent approved two lists containing similarly placed employees for regularization and then another 13 persons under Annexure-A6, his claim has not been considered. He is entitled to be treated at par with the said persons sent on deputation from GDS and is entitled to get the benefit of CCS (Pension) Rules, 1972. His service rendered as GDS also is reckonable qualifying for pension as held by this Tribunal in O.A.749/2015. Referring to the decision reported in Superintendent of O.A.No.127/2020 4 Posts v. P.K.Rajamma [AIR 1977 SC 1677] he said that GDS holds a civil post and therefore, Rule 6 of the GDS (C&E) Rules to the extent of its inconsistency with the CCS (Pension) Rules is void because the GDS (C&E) Rules are not statutory but only executive instructions issued under the administrative powers under Article 72 of the Constitution. Annexure-A8 is arbitrary, unreasonable and unjust violating Articles 14 and 16 of the Constitution.
3. The respondents have contested the claim. They admitted that the applicant, while working as GDS in Manjavilakam, was deputed to APS on 27.03.1991 after conferring technical promotion for one day as Group-D. Later he was discharged from APS from 24.07.2003 on extreme compassionate ground and rejoined duty as GDS MC Marayamuttam under the Thiruvananthapuram South Division.
4. They have also stated that under Annexure-R1 order dated 13.06.2007 the Postal Directorate had conveyed approval for regularision of services of 847 GDS, who were deputed to APS after giving one day technical appointment as Group-D. Later, under Annexure-A2, approval was conveyed for regularisation of another 659 GDSs, who were either O.A.No.127/2020 5 working in APS or in civil side subject to certain conditions. As per paragraph 4(f) of Annexure-A2 'a person, whether figures in the lists of 847 or 659 personnel mentioned or not, who had joined APS as per the practice of deputing GDS after giving them one day technical appointment as Group-D, but has subsequently qualified the examination conducted by the Department of Post, limited to Departmental employee or GDS but not open for all, shall be deemed to be on regular service from the date he had drawn salary of Group-D post continuously.' The list of such personnel was collected and order was issued under Annexure-A3 for regularisation of 135 personnel, including 76 personnel from the list of Directorate and 59 as per details collected from the divisions, as per paragraph 4 of Annexure-A2. The name of the applicant was not included in the said list.
5. According to respondents, representation submitted by the applicant was considered and he was intimated that there is no provision for regulaising the service. It is further stated that he was repatriated to civil side as GDS on 24.07.2003 as he was not qualified in the examination conducted by the department for departmental employees O.A.No.127/2020 6 or GDS. The respondents have repeatedly maintained that GDS is not a civil post. GDS have been specifically excluded from the application of CCS (CCA) Rules, 1965, excluded in the purview of the terms 'central civil service' and 'central civil posts' defined under Rule 2(c), 'government servant' defined under Rule 2(h)(i) of the said Rules. Moreover, as per Rule 3A of the GDS (Conduct and Engagement) Rules, 2011, a Sevak shall be outside the civil service of the Union. Hence applicant cannot be equated with the Central Government employees. GDS(C&E) Rules, 2001 were framed in supersession of the Post and Telegraphs Extra Department Agents (Conduct and Service) Rules so that the applicant cannot claim as a holder of civil post.
6. Referring to paragraph 4(f) of the Annexure-A2 communication it is submitted that those who were on deputation in APS, who have subsequently qualified the examination conducted by the Department Posts, limited to departmental employees or GDS, but not open for all, shall alone be deemed to be on regular service. As he did not qualify in the examination conducted by the Department of Posts limited to departmental employees or GDS, his name was not included in O.A.No.127/2020 7 the list of 847/659 GDS. In other words, it is submitted that the applicant did not qualify the examination conducted by the Department of Posts so that he is not entitled to be regularised as in the case of other candidates. Thus, the Original Application is sought to be dismissed.
7. Heard Sri.M.R.Hariraj, learned Senior counsel for the applicant assisted by Smt.Karthika Ganesh and Smt.Deepa Devi, learned counsel for the respondents on behalf of Sri.N.Anilkumar, Senior Panel Counsel, in detail. The Standing Counsel also gave a memo in answer to the queries put by the Court along with the copy of the minutes of the committee meeting held on 18.11.2021 in terms of paragraph 4(a) of the Annexure-A2. It is marked as Annexure-R4.
8. Referring to the decision in P.K.Rajamma, quoted supra, learned Senior Counsel submitted that the applicant holds a civil post. According to him, the applicant is qualified to be regularised as provided under paragraph 4(a) of Annexure-A2, he need not be pushed to be covered by paragraph 4(f). Annexure-A8 has been passed without application of mind, without understanding the purport of Annexure-A2. According to the learned Senior counsel, refusal to extend the benefit of O.A.No.127/2020 8 regularisation is illegal, arbitrary and violative of Article 14 since similarly placed employees of the division were dealt with differently, causing hostile discrimination against the applicant.
9. On the other hand, according to the learned Standing Counsel, from paragraph 4(f) of Annexure-A2, it is clear that those who have passed the limited departmental examination conducted by the postal department alone are entitled to be considered for regularisation. The Original Application is silent on whether the applicant had passed the examination. Referring to Rule 6 of the GDS (C&E) Rules, she submitted that as a GDS the applicant is excluded from the purview of the CCS(Pension) Rules, he is entitled to get only an ex-gratia payment on retirement. Referring to the schedule attached to Annexure-R4 minutes dated 18.11.2021, which was passed after filing the reply, it is submitted that the case of the applicant was specifically considered by the committee constituted in terms of paragraph 4(a) of Annexure-A2 and found that the applicant is not qualified for regularisation.
10. Even though both sides have taken contradictory plea as to whether a GDS holds a civil post, there cannot be any basis for dragging O.A.No.127/2020 9 the Tribunal to the question since the matter is settled by authorities. In continuation of the decision of the Hon'ble Supreme Court in State of Assam and others v. Kanaka Chandra Dutta [AIR 1967 SC 884], it has been reiterated in P.K.Rajamma, quoted supra, that it is a civil post, the question does not survive for discussion. Still in paragraph 4.4 the applicant has submitted that he became a holder of civil post since 1991, which is a mistake. By virtue of the post held by him as a GDS or ED Mail Carrier from 10.03.1983 itself he is holding a civil post.
11. Now, the core issue is whether the applicant is entitled to be regularised among 847 or 659 candidates or such other candidates to be regularised or included in the list of GDS shown in Annexure-A3. Before entering into the rival contentions it is appropriate to say that there was a practice of deputing members working in the category of Extra- Departmental agents/GDS by technically promoting them for one day as Group-D and deputing to APS. Annexure-A2 mentions about 1506 such GDSs to be regularised, list containing 847 and 659 personnel subject to the following conditions:
4.Regularization of these 847 and 659 personnel are further O.A.No.127/2020 10 subject to the following:-
a. APS Directorate as well as concerned Postal Circles shall verify the details of each and every personnel in the list mentioned above before issue of regularization order. In this regard, each Circle shall constitute a two Members Committee (one each from the Circle and the APS) to scrutinize records for each personnel and shall prepare two sets of documents (to be retained one each in the Circle and the APS), which shall inter alia contain documents of Postal Circle as well as that of APS relating to one day technical appointment in Postal Circle and joining in APS. This exercise may be completed by 15.08.2017 and a compliance report be sent to the undersigned by 31.08.2017. In case of discrepancy in any case, matter shall be reported to the Department of Posts which shall inter alia include views of both APS and Postal Circle.
b. In the aforesaid letter dated 13.06.,2007 it was conveyed that service of the 847 GDSs would be regularised from the date of entry in APS/ from the date the GDSs had been conferred technical promotion as Group 'D'. To remove any kind of ambiguity, it is hereby clarified that the date in which a personnel had drawn salary of Group-D post continuously shall be reckoned as the crucial date of regularization with all consequential benefits from that date. Letter dated 13.06.2007 stands modified accordingly.
c. Applicability of CCS (Pension) Rules, 1972 (old pension O.A.No.127/2020 11 scheme) or New Pension Scheme (NPS) would be determined as per the crucial date of regularization mentioned above.
d. These 847 personnel plus 659 personnel, alter their repatriation to civil side on attaining the retirement age in APS or found medically unfit to serve in APS, will be absorbed in civil side till they attain age of superannuation applicable to civil employee of similar level. The Postal Circles, in coordination with APS, shall maintain a schedule of repatriation of such personnel from APS and maintain vacancies in respective grade to ensure continuation of such personnel in civil posts. Further, the APS shall not repatriate any of these personnel to civil side without prior confirmation of vacancy in the Postal Circle and if need be a personnel may be repatriated on the day of availability of vacancy closest to the normal age of retirement in APS. In case APS decides to extend the service of anyone beyond the normal age of retirement in APS prior consent of the Postal Circle shall be obtained and the Circle will give consent after ensuring availability of vacancy at the time of repatriation after such extension in APS.
e. These 847 personnel plus 659 personnel after regularization of their service as above shall be treated at par with other officials in civil side for appearing in departmental examination and shall compete with them for civil vacancy. Past examination results, irrespective of such personnel being treated at par with other GDS O.A.No.127/2020 12 or other official in civil side shall not be reopened. Their inter se seniority shall be maintained as per their rank in the examination. However, those who are presently working in APS will not be allowed to revert to civil side on qualifying the examination so long as they are found fit to work in APS and vacancy in higher grade is available in APS, f. A person, whether figures in the lists of 847 and 659 personnel mentioned above or not, who had joined APS as per the practice of deputing GDS after giving them one day technical appointment as Group-D, but has subsequently qualified the examination conducted by the Department of Post, limited to Departmental employee or GDS but not open for all, shall be deemed to be on regular service from the date he had drawn salary of Group-D post continuously. The Postal Circles in consultation with the APS shall sent the details of such personnel, who are covered under this provision but do not figure in the lists of 847 and 659 personnel mentioned above, to the undersigned while sending the report mentioned at Para 4(a) above. Whether such a person shall be covered under CCS (Pension) Rules, 1972 (old pension scheme) or not shall be decided as per the crucial date from which he is deemed to be on regular service. If such a person is still serving in APS, he will continue to serve in APS till he is found fit by APS or attains the retirement age in APS and thereafter will be reverted to civil side till he attains the civil O.A.No.127/2020 13 retirement age. If such a person had already left the APS and is currently working in civil side he may continue in civil side with the option of deputation to APS remaining open. Further the service in APS so regularized shall be treated as regular service for all purposes including increment/TBOP/BCR/MACP.
g. 847 personnel regularized earlier and 659 personnel regularized now will be included in the civil side seniority list of Group-D MTS in the bottom of the seniority list of the year from which their service is regularized.
h. Any other case not covered above shall be referred to the Directorate by the Circle with views of APS and vice versa."
For our purpose paragraphs 4(a) and (f) are very relevant.
12. Learned senior counsel for the applicant submitted that irrespective of the question whether he had passed any departmental examination, he is entitled to be regularised after putting in more than 12 years and 4 months service in different terrains. Referring to Annexure-A1 he pointed out that the applicant was always working in hard stations. Referring to paragraph 4(a) he said that such a length of service ipso facto entitles him to get regularised from the date of O.A.No.127/2020 14 deputation. But, according to the learned counsel for the respondents, paragraph 4(f) is more important and all the conditions have to be read together.
13. After considering rival contentions and materials, I feel that arguments of the learned counsel for the respondents appeal to reason. First of all, appointment of an employee in the regular postal department is covered by definite rules and regulations. Members of service in GDS have a definite share in such appointments, especially in the erstwhile Group-D category, as always referred to. There is no rule that an EDA or GDS technically promoted to Group-D and deputed to APS has any right for regularisation in the Postal Department as of right. Even though a percentage of posts in the Postal Department is earmarked for employees in the GDS cadre, they do not have an easy walk over. Everything is conditioned by scrutiny at given stages, may be by way of limited departmental competitive examination. That means, a GDS aspiring to get into the regular service will definitely have to undergo a selection process which is the Rule.
14. Secondly, the applicant wanted to appraise the Tribunal that O.A.No.127/2020 15 he is entitled to get regularised by virtue of the post held by him in the APS. He was working in APS from 27.03.1991 to 24.07.2003. On 24.07.2003 he was repatriated from the APS and was re-engaged as ED agent/GDS in Thiruvananthapuram division. Thereafter, he is continuing as such. It is for him to prove that he is entitled for an exceptional treatment. It is peremptory that when an exception is claimed, such a person should prove the same.
15. It is here that paragraph 4(f) of Annexure-A2 comes to the fore. This paragraph states about clearing limited departmental competitive examination exclusively meant for departmental employees or GDS. As rightly pointed out by the learned Standing Counsel, the applicant does not have a case that he had passed such a test or examination.
16. It has also come out from the memo filed by the learned Standing Counsel and Annexure-R4 that the case of the applicant was considered along with three other cases by the committee constituted as per paragraph 4(a) of Annexure-R2 and found that he had not qualified any departmental examination. The same document contains another O.A.No.127/2020 16 list which contains list of personnel who had passed departmental examination and who were granted regularisation accordingly.
17. An argument can be raised as to what is the peculiarity of qualifying the LDCE or such other examination, which otherwise benefit those who work in the APS. Here, the peculiarity is, if he shall qualify any such examination or LDCE, the effect of such examination would relate back to the date of deputation in the APS.
18. In my assessment, the crucial test is whether such a person had qualified in the department test. There is no proposition that once such a deputation is granted, he is entitled to be regularised, capable of enjoying the benefits of a regular postal employee from the date of such promotion and deputation.
19. In other words, such regularisation is not an unconditional one, but always conditioned by the stipulations in Annexure-A2. The document produced by the respondents clearly indicate that the applicant is not similarly placed as that of the personnel mentioned in Annexures-A3 and A6. The specific case of the respondents that those who had passed the tests above were regularised could not be rebutted O.A.No.127/2020 17 by the applicant.
20. The applicant does not have an enforceable right. He could not prove that grant of technical promotion on deputation to APS ipso facto conferred on him a right or entitlement for regularisation. Such a regularisation is always qualified by the conditions imposed by the respondents. Annexure-A7 is only a view point of the APS centre which is not binding on the respondents.
21. It was also contended that he is entitled to reckon his service as GDS for pension after regularisation. From the decisions rendered by the Hon'ble Supreme Court in Y.Najithamol and others v. Soumya S.D. and others [(2016) 9 SCC 352], Union of India and others v. Gandiba Behera [2020 (1) SLJ 1] etc. it is very clear that the service of the GDS and postal service are distinct and different.
22. Moreover, by virtue of Rule 2(h) of the CCS (Pension) Rules 2021, persons whose terms of conditions of service are regularised by or under the provisions of the Constitution or any other law for the time being in force will not be covered by the provisions of the CCS (Pension) Rules. The service conditions of the applicant are governed by the GDS O.A.No.127/2020 18 (C&E) Rules, issued from time to time.
23. Even though Annexures-A8 and R3 do not contain the actual reasons for rejecting the claim of the applicant, after examining the materials it is evident that the applicant is not entitled to get any relief.
The Original Application is dismissed. No costs.
(Dated this the 21st May, 2024) JUSTICE K. HARIPAL JUDICIAL MEMBER ds O.A.No.127/2020 19 List of Annexures Annexure A1 True copy of the service particulars of the applicant Annexure A2 True copy of Letter No.47-01/2003-SPB-I dated 12.06.2017 issued by the 1st respondent Annexure A3 True copy of Letter No.ST/301/Reg-1/17-Pt II dated 05.07.2019 issued by the 2 nd respondent along with its enclosure Annexure A4 True copy of the representation dated 01.08.2019 submitted by the applicant to the 2nd respondent through proper channel Annexure A5 True copy of the said letter forwarding the representation of the applicant to the competent authority Annexure A6 True copy of Order No.BIE/APS dated 27.08.2019 issued by the 3rd respondent Annexure A7 True copy of order No.3343/KE/Adm dated 25.02.2020 of the commandant, P&E Administration Cell, Army Postal Service Annexure A8 True copy of order No.BIE/APS dated 18.05.2020 issued by the 3rd respondent Annexure R1 True copy of the letter dated 13.06.2007 Annexure R2 True copy of the letter dated 10.05.2019 Annexure R3 True copy of the letter dated 11.05.2020 O.A.No.127/2020 20 Annexure R4 True copy of the minute of joint committee meeting held on 18.11.2021 in the O/o Chief Postmaster General, Kerala Circle, Trivandrum *******