Central Administrative Tribunal - Ernakulam
M.Ravindran Nair vs Union Of India (1991) Supp (2) Scc 363 Has on 17 August, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No. 103/2012
Friday, this the 17th day of August, 2012.
CORAM
HON'BLE Dr K.B.S.RAJAN, JUDICIAL MEMBER
M.Ravindran Nair,
(Retd. Mailman, HRO, Thiruvananthapuram)
"Gopalam", Ullas Nagar,
Elippodu, Thirumala,
Thiruvananthapuram-695 006. - Applicant
(By Advocate Mr Vishnu S Chempazhanthiyil)
v.
1. The Chief Post Master General,
Kerala Postal Circle,
Thiruvananthapuram-33.
2. Union of India represented by the
Director General of Posts,
Dak Bhavan, New Delhi-1. - Respondents
(By Advocate Mr Sunil Jacob Jose, SCGSC]
This application having been finally heard on 14.08.2012, the Tribunal on
17.08.2012 delivered the following:
O R D E R
HON'BLE Dr K.B.S.RAJAN, JUDICIAL MEMBER The applicant was appointed as Mailman, a Group D post, on 20th of September, 1994. Earlier he was engaged as an Extra Departmental Agent since 1983. He superannuated on 31st of May 2004. The period of qualifying service rendered by him works out to 9 years 7 months and 14 days. The minimum required period of qualifying service for earning pension is nine years and nine months (construed as 10 years) and thus, in the case of the applicant the same fell short by 46 days. Earlier the applicant filed OA No. 371 of 2011, citing an order of the Madras Bench of the Tribunal in OA No. 1264 of 2001. That Bench directed that a scheme be formulated giving weightage of certain percentage of service rendered as ED Agent (now GDS) for reckoning the same as qualifying service for purposes of pension which would enable the employees to get minimum pension. The OA was disposed of by this Tribunal as per Annexure A-12 order directing the second respondent to consider and dispose of Annexure A-11 representation within the time stipulated in the order. Accordingly, the said representation was disposed of vide the impugned Annexure A-13 order dated 28th of September 2011. The applicant has challenged the same and has sought to the following reliefs:-
(i) Declare that the applicant is legally entitled to part of his service rendered as Extra Departmental Agent reckoned for the purpose of determining minimum qualifying service for pension to make up the deficiency of a few days to complete 10 years in the post of Group D and is entitled to receive pension on his retirement from the cadre of Group D'
(ii) Call for the records leading to the issue of Annexure A-13 and set aside Annexure A-13.
(iii)Directing the respondents to pass appropriate orders sanctioning pension to the applicant who retired from group D cadre, reckoning the part of his service rendered as Extra Department Agent to make up the deficiency of service for earning pension.
(iv) Directing the respondents to disburse arrears of pension which became due on retirement of the applicant from the post of Group D and continue to pay pension regularly.
(v)Direct the respondents to count the officiating service rendered from 3.3.1994 to 20.9.994 as qualifying service for the purpose of pension.
(vi)Direct the respondents to treat the applicant as being appointed as a Mailman/Group D with effect from 1.9.1994.
(vii)Direct the respondents to pay the pensionary benefits due to the applicant forthwith.
(viii)Declare that the applicant has minimum qualifying service for purpose of grant of pension.
(ix)Any other further relief or order as this Hon'ble Tribunal may deem fit and proper to meet the ends of justice.
2. Respondents have contested the OA. They have cited certain cases wherein identical claims have been disallowed by the Tribunal. (Annexure R-3). Further they have stated that the order of the Madras Bench cannot be applied to the case of the Applicant as the Apex Court in that case held that the question of law is left open and consequently, the benefit of that order applied to the case of the applicant therein only.
3. Counsel for the applicant succinctly brought out the background of the case. The applicant was earlier employed as ED Agent since 1983 and when the rule of upper age limit was brought to 50 years for appointment of Extra Departmental Agent as the applicants at that point of time was 52 years, he had challenged the aforesaid rule through OA No. 155 of 1995. The claim of the applicant was allowed by order dated 6th March 1996 which directed the respondents to make fresh selection with reference to the date of arisal of the vacancies, considering the case of the applicant on merit. Annexure A3 refers. According to the counsel for the applicant, the vacancy against which he came to be appointed arose on 1st of September 1994 whereas he was appointed only on 20th of September 1994. Had he been appointed from the date of arising the vacancy he would've certainly gained at least 20 days of qualifying service which would have reduced the deficient period of qualifying service correspondingly.
4. Counsel for the applicant also referred to the following instances relevant to the legal issues involved in this case:
(a) the Tribunal in OA 608 of 1990 directed the respondents to regularise the services of certain individuals forthwith and they said order was passed on 25th of April 1991. However the respondents regularised the services only from 12th of October 1992. As the delay in regularisation resulted in deficiency in the qualifying service for earning minimum pension, the applicants filed original petition before the High Court of Kerala and the High Court held that the official ought to have been regularised w.e.f. the date of order of the Tribunal since the direction was to regularise the service is forthwith. Annexure A-4 refers.
(b) in OA 389 of 2004, the applicant therein was initially appreciating in a group D posts and later on regularised but the extent of qualifying service from the date of regularisation till superannuation fell short of the qualifying service required for earning the minimum pension. The Tribunal directed the respondents to take in to account the officiating services as well for the purpose of working out the qualifying service for pension purposes. Annexure A-5 refers.
5. The Counsel further submitted that the applicant preferred a representation to the Chief Postmaster General for grant of minimum pension vide Annexure A-6 letter dated 20th February 2006. In view of the fact that the Madras Bench of the Tribunal directed the respondents to formally the scheme to give weightage to the past the services as Extra Departmental Agents (now GDS) the applicant sanguinely hoped that his case would also be considered favourably. However, in that case, the Apex Court had dismissed the Special Leave Petition filed by the respondents (after the High Court has upheld the decision) leaving the question of law open.
6. The counsel submitted that recently, in a batch of cases, this Tribunal has considered the cases of identical nature and suggested that the cases justifiably deserve consideration at the level of Secretary, Department of Posts for relaxation invoking the provisions of Rule 88 of the Postal Manual and an identical direction in this case would render justice to the applicant.
7. Counsel for the respondents submitted that as per the existing rules, the minimum qualifying service required for earning minimum pension is nine years and nine months and the applicant does not fulfill this requirement. The department has already rejected his request for relaxation.
8. Arguments were heard and documents perused. In the batch matter referred to by the counsel for the applicant, this Tribunal has passed its order, which is as under: -
"Arguments were heard and documents perused. The minimum period of ten years (which has indeed been reduced to nine years and nine months by the Rules) has to be ensured for eligibility for drawal of pension. There is one provision in Rule 88 of the CCS(Pension) Rules, 1972, which gives power to the Central Government to relax the condition. The said Rule reads as under:-
"88. Power to relax:
Where any Ministry or Department of the Government is satisfied that the operation of any of these rules, causes undue hardship in any particular case, the Ministry or Departments, as the case may be, may, by order for the reasons to be recorded in writing dispense with or relax the requirements of that rule to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner.
Provided that no such order shall be made except with the concurrence of the Department of Personnel and Administrative Reforms."
Thus, if at all there could be a possibility for the applicants to earn pension, the same cannot but be with the invoking of the above provisions, for which it is the Government which is the authority. The Tribunal could intervene only when there is a patent error in calculation of the period of service or reckoning the service and the like. It cannot relax the provisions of the Rules by any judicial order.
With the above principle in mind, the cases are to be analyzed. In so far as the first two cases were concerned, the fact is that the applicants were eligible to participate in the examination but were not informed of their eligibility. They had moved the matter before the Tribunal and in fact in so far as the applicant in OA 666 of 2010 is concerned, he had participated in the test conducted in 1989 and the initial order of the Tribunal allowing a part of the OA came to be there in 1990 itself. The respondents, however, without implementing the order of the Tribunal chose to move the matter before the Apex Court and it was after the dismissal of the Special Leave Petition that the applicant came to be offered. There has been certainly a delay on the part of the respondents.
The Apex Court in the case of of Nirmal Chandra Bhattacharjee vs Union of India (1991) Supp (2) SCC 363 has commented upon the impermissibility of the recoiling of the mistake or delay on the part of the government upon its employees. The Apex Court has, in that case, held as under:-
The selection process in respect of Ticket Collectors had also started prior to August 1, 1983. If the department would have proceeded with the selection well within time and would have completed it before August 1, 1983 then the appellants would have become Ticket Collectors without any difficulty. The mistake or delay on the part of the department, therefore, should not be permitted to recoil on the appellants.
The above dictum of the Apex Court applies to the case of the applicant in the first two cases. Had the respondents acted promptly, the applicants would have been in regular service of Group D post earlier than they had been inducted. But the question is whether there could be a notional date of regular appointment. Since Rule 88 of the Pension Rules provides for the relaxation in deserving cases, there appears a good ground in respect of the applicants in OA No. 666 of 2010 and 765 of 2010 for relaxation by the authority concerned.
In so far as OA No. 773 of 2010 is concerned, here is a case where the regular appointment was preceded by appointment to the Group D post against the vacancy that did not fall within the category in which the applicant could be appointed. Thus, the fact remains that the applicant did serve as Group D but her service prior to regular appointment against a valid post has not been reckoned for working out the total period of regular service rendered. This case also deserves relaxation at the hand of the authority under the provisions of Rule 88 of the pension rules.
Coming to the rest of the cases, we have to summarily reject one of the contentions that the decision of the Madras Bench should be extended to the applicants. For, the so called discrimination is not due to any act originated by the respondents. The High Court of Madras has clearly stated that te benefit could be available only to the party before it and the Administration has accordingly obeyed the decision. The Apex Court too has clearly held that the question of law is open. As such, the benefit of the judgment of the High Court of Madras cannot be extended to the applicants. As regards another ground, that there is only a marginal deficiency, it should be held that a period of more than one year cannot be taken as marginal. Thus, the case of Nagamani and Chellammal in OA No. 980 of 2010, wherein deficiency of more than one year subsists cannot be brought within the term marginal deficiency. As regards the other applicant in OA 980 of 2010, the delay appears to be 45 days. Again, in the case of Shri P.J. Lonan, one of the applicants in OA No. 977 of 2010, the delay is one month plus. Thus, these two could be considered as belonging to one category of marginal deficiency. In the case of the rest of the applicnats in OA No. 977 of 2010 and OA No. 1057 of 2010, the delay is more than four to five months.
The Tribunal is of the considered view that it is for the Secretary, Department of Posts, in consultation with the DOPT to decide in all the above cases whether relaxation could be afforded. The decision of the authorities may take into account the discussion contained above and decision taken judiciously.
Thus, all the O.As are disposed of with a direction to the Chief Post Master General, to address communication to the First Respondent making out a statement of case for his consideration for relaxation of the Rules, under the provisions of Rule 88 of the CCS (Pension) Rules, 1972. Action on the part of the Chief Postmaster General should be complete within three months from the date of communication of this order, while action on the part of the first respondent should be completed within six months from the date of receipt of the statement of case.
Under the above circumstances, there shall be no orders as to cost."
9. In the instant case, the deficiency in minimum period is 46 days. Earlier, the direction was that the applicant should have been appointed from the date of arising of the vacancy. Annexure A3 refers. True, the applicant accepted his appointment from 20-09-1994. Had the applicant been appointed on 01-09-1994, the deficient period would have still further been reduced to 26 days. Earlier, while rejecting the case of the applicant, perhaps all the above factors would not have been brought to the notice of the Secretary. Now that these have been highlighted, the Tribunal is of the considered opinion that this is one of the fit cases for the Secretary to consider application of relaxation under Rule 88 of the Rules cited above. Of course, his discretion and decision are final and the view of the Tribunal be not construed as a direction. Judicious use of discretionary power alone is ordered.
10. In view of the above, the first respondent is directed to make out a statement of case and refer the same to the second Respondent for further consideration for relaxation of minimum qualifying service under the provisions of Rule 88 cited above. Time limit as provided in the other case i.e. OA 666 of 2010 extracted above would equally apply to this case.
11. No costs.
Dr K.B.S.RAJAN JUDICIAL MEMBER trs