Central Administrative Tribunal - Ernakulam
Vinodan A V vs D/O Post on 20 March, 2025
-1-
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00060/2017
Thursday this the 20th day of March 2025
CO RAM:
HON'BLE Mr.JUSTICE K.HARIPAL, JUDICIAL MEMBER
HON'BLE Ms.V.RAMA MATHEW, ADMINISTRATIVE MEMBER
Vinodan.A.V.,
Aged 53 years,
S/o.Pokkan,
Gramin Dak Sevak Branch Post Master,
Poothampara Branch Post Office.
Residing at Edathum Velikkakath House,
Kavilampara P.O., Vadakara,
Kozhikode District - 673 513. ...Applicant
(By Advocate Mrs.R.Jagada Bai)
versus
1. Union of India
represented by the Secretary to Department of Posts,
New Delhi - 110 001.
2. The Superintendent of Post Offices,
Vadakara Division, Vadakara - 673 101.
3. Inspector Posts,
Vadakara North Sub Division,
Vadakara - 673 101.
4. The Post Master,
Vadakara Head Post Office - 673 101. ...Respondents
(By Advocate Mr.M.K.Padamanabhan Nair, ACGSC)
A S PEETHAMBARAN 2025.03.20 16:03:57+05'30'
-2-
This application having been heard on 20 th February, 2025 the
Tribunal on 20th March 2025 delivered the following :
ORDER
HON'BLE Ms.V.RAMA MATHEW, ADMINISTRATIVE MEMBER Heard both sides in extenso. Briefly, the facts of the matter are as under :
The applicant was appointed as an Extra Departmental Delivery Agent, now known as Gramin Dak Sevak Mail Deliverer that is at Poothampara Branch Post Office in account with Kavilampara Sub Post Office in Vadakara Postal Division with effect from 28.10.1991 vide the Superintendent of Post Offices, Vadakara Division (2 nd respondent) Memo No.B3/Poothampara dated 20.01.1992. Consequent upon the revision of Time-Related Continuity Allowance (TRCA) since 01.01.2006, he was placed in the TRCA scale of Rs.3660-70-5760. He had drawn the TRCA in the same scale up to November, 2016.
2. On 13.05.2013, the 2nd respondent issued a letter No.A2/417/2012/2013 dated 13.05.2013, informing him that the periodical review of Poothampara Branch Post Office entitles him to TRCA in the scale of Rs.2745-50-4245 instead of Rs.3660-70-5760 due A S PEETHAMBARAN 2025.03.20 16:03:57+05'30' -3- to reduction in workload. It was also informed to him that his then TRCA would be protected for a period of one year from 01.05.2013. It was specifically intimated that a special review would be conducted for the review of the TRCA as required by the DG Posts letter No.5-1/07-WS-1 dated 15.10.2012. The statistics in respect of the workload of the Branch Postmaster Poothampara Branch Post Office was called for by the 2nd respondent through his letter No.A2/417 dated 26.06.2014 with specific directions to the 3 rd respondent to forward the verification report immediately to his office and the same was forwarded to the 3rd respondent on 12.07.2014. On 15.04.2016 the 2 nd respondent referring to the letters in Annexure A-3 and Annexure A-4 issued a letter No.A2/417 dated 15.04.2016 again directing the applicant to forward statistics of the workload of the Branch Postmaster, Poothamapara for the period June, 2013 to May, 2014 with specific directions to 3 rd respondent to submit report on verification with immediate effect. This is produced as Annexure A-6. The applicant on compiling the required statistics forwarded the same to the 3rd respondent on 17.05.2016. This is produced as Annexure A-7. The special review was then conducted by the 3rd respondent only on 25.09.2016 and the TRCA of the applicant was reduced to the TRCA scale of Rs.2745-50-4245 from Rs.3660-70-5760 retrospectively with effect from 01.05.2014 by the 2 nd respondent vide A S PEETHAMBARAN 2025.03.20 16:03:57+05'30' -4- Memo No.A2/417 dated 25.11.2016. The same is produced and marked as Annexure A-8. The Director General Posts letter No.5-1/07-WS-I dated 15.10.2012 which has mentioned in Annexure A-3 issued by the 2nd respondent requires that the special review of the workload of the Gramin Dak Sevak Branch Post Master for the protection of the TRCA is to be conducted on completion of the period of one year for which the TRCA remains protected after periodical review. This is produced as Annexure A-9. Subsequent to the issue of Memo of 25.11.2016, 4th respondent commenced recovery of an amount to the tune of Rs.59556/- from the TRCA of the applicant with effect from 01.05.2014 retrospectively reducing the scale to Rs.2745-50-4245 from Rs.3660-70-5760. He preferred a representation against this on 15.01.2017 to the 2nd respondent praying for re-examination of unjustified reduction of the TRCA with retrospective effect. This is the order which has been assailed in this O.A.
3. It must be noted that the Annexure A-8 dated 25.11.2016 directs the reduction of TRCA with effect from 01.05.2014 to Rs.2745-50-4245.
The earlier TRCA of Rs.3660-70-5760 had been continued upto that date. Subsequently Annexure A-10 order was issued which directed a recovery of Rs.59556/- in equal installments of Rs.1990/- per month for A S PEETHAMBARAN 2025.03.20 16:03:57+05'30' -5- 30 months. Effectively this resulted in a reduction of income from Rs.11825/- per month to Rs.9973/- per month to the applicant with an additional deduction of Rs.1990/-. Effectively reducing the income of the applicant to just over Rs.8000/-. Relief was sought in terms of equity. Also seeking application of Clause 4 (5) of the Annexure A-14 O.M issued in pursuance of the Rafiq Masih's case as recovery was directed because of delay by the administration which is not on fault of the applicant and Clause 4(v) of the Rafiq Masih's decision arises out of S.L.P(C) No.11684/2012 in the Hon'ble Supreme Court which states that "In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would for outweigh the equitable balance of the employer's right to recover". It is argued that the applicant falls squarely within the ambit of Clause 4(v) of the Annexure A-14, which is a Rafiq Masih's decision, as he is made to suffer the recovery of huge amount from his meagre income which is harsh and arbitrary as he is no way responsible for the delay in the conduct of the Special Review by the 2nd and 3rd respondents and, therefore, retrospective reduction of the TRCA with effect from 01.05.2014 is liable to be set aside and the respondents are liable to refund the amount already recovered from the TRCA of the applicant for the month of December 2016. A S PEETHAMBARAN 2025.03.20 16:03:57+05'30' -6-
4. The respondents have argued that the Rafiq Masih's decision would not apply in this context as the applicant is due to be discharged from service in 2027. It was further argued that the GDS is not a Government employee but a civil post as was determined by the Hon'ble High Court of Kerala in the Najithamol's case and, therefore, the Tribunal does not have jurisdiction for granting relief. The recovery sought is from 2014 and in paragraph 2 of the reply statement it has been argued extensively that the payment of TRCA is based on the workload of GDS/BPM by conducting periodical review triennially and calculated on point system. These slabs were described and it was also stated that the TRCA of the applicant in the slab of Rs.3660-5760 was protected for one year in accordance with the directions contained in the Directorate Letter No.5-1/07-WS-I dated 15.10.2012 conveyed in CO Letter Est/66- 1/10/Rlg dated 07.11.2012. This was produced as Annexure R-1 as per which on completion of one year a Special Review would be conducted to assess the workload of the Branch Post Master and if the workload after review was found to be at a reduced level the allowance would be reduced to the corresponding TRCA slab. On re-assessment of workload after one year with respect to the verified slab no improvement was made and workload remained at below the benchmark and as such the TRCA was reduced to the slab of Rs.2745-50-4245 with effect from 01.05.2014 A S PEETHAMBARAN 2025.03.20 16:03:57+05'30' -7- in accordance with the direction contained as per Annexure R-1 letter of the Directorate and in accordance with the said letter, the previous TRCA of the applicant was protected for one year with effect from 01.05.2013 as per SP Vadakara Letter No.A2/417/2012-13 dated 13.05.2013 as per the directions contained in Annexure A-3 letter. The statistics which was called for by the SP Vadakara with clear directions to the applicant to forward the same to the 3 rd respondent under intimation to SPOs Vadakara and on assessment of the workload of BPM with respect to the verified statistics for one year the TRCA of the applicant has been reduced to the lower slab with effect from 01.05.2014. The applicant was eligible for drawal of basic TRCA of Rs.4245 in the lower slab. Therefore, as a result of the reduction in the TRCA the overpayment of an amount of Rs.59556/- from May, 2014 to November, 2016 was to be recovered from the applicant and the same was directed to be recovered in 30 equal installments. Detailed calculation sheet of the workload based on the statistics produced was also submitted as Annexure R-2.
5. It is submitted that at the time of appointment as GDS it was clearly notified that his engagement/appointment would be governed by the P&T ED Agents (Conduct & Service) Rules, 1964 as amended from A S PEETHAMBARAN 2025.03.20 16:03:57+05'30' -8- time to time (now GDS Conduct and Engagement Rules 2011). The TRCA of a GDS working in a post depends upon the workload of the post which is periodically assessed, which is what happened in this case. That Annexure A-14 O.M dated 02.03.2016 produced by the applicant deals with recovery of wrongful/excess payment made to Government servants due to unintentional mistakes committed by the concerned comptent authorities in determining the emoluments payable to them. It is argued that the Annexure A-14 is an O.M issued consequent to the Rafiq Masih's decision of the Hon'ble Supreme Court is not directly applicable to the case of the applicant as the GDS are a separate cadre outside the Government service. The Apex Court has established their status as holders of civil post outside regular civil services in the case of Union of India vs. P.K.Rajamma in 1977. This is supported by the fact that the Government has not included this category in any of the classification of Group 'A' or Group 'B' or Group 'C' or Group 'D' posts resultant into such exclusion. As such Annexure A-14 O.M of the DoP&T is not applicable to the applicant who is a Gramin Dak Sevak. Moreover, it is argued that in the instant case, there is no unintentional mistake happened on the part of the respondents in calculating the workload of the applicant and the recovery of overpayment in the instant case is the result of the reduced workload in the post of the applicant. A S PEETHAMBARAN 2025.03.20 16:03:57+05'30' -9- The appointment/engagement of the GDS is in the nature of contract liable to be terminated at any time and their engagement is governed by a separate set of rules meant for GDS as amended from time to time. It was also submitted that in the common judgment of this Tribunal while dismissing the O.A.No.78/2010 and connected cases filed by All India Extra Departmental Employees Union challenging the direction to refix the pay of the applicant and to recover excess amount paid, it is ordered by the Tribunal that the respondents are fully within their right to recover the excess amount paid to the applicant and the applicant do not have a right to retain the excess amount paid. The decision of the Principal Bench of this Tribunal in O.A.No.283/2003 dated 13.09.2004 and the decision of the Hon'ble High Court of Kerala in W.P.(C) No.437/1993 confirmed by the Hon'ble Supreme Court in the case of O.K.Udayasankar & Ors. vs. Union of India & Ors., upheld the respondents right to effect recovery of excess payment made.
6. Annexure A-12 produced by the applicant in the O.A relates to a case of excess payment by applying wrong principle in calculating the TRCA which was subsequently found to be erroneous and was adjusted without any notice to the applicant and which is therefore neither A S PEETHAMBARAN 2025.03.20 16:03:57+05'30' -10- relevant nor applicable in the instant case. It is argued that here there is no erroneous calculation or wrong principle in calculating the TRCA of the applicant. Annexure A-12 was partially allowed by this Tribunal as there was a mistake committed by the respondents in calculating the TRCA. But in the instant case there is no such erroneous calculation of the TRCA by the respondents. It has been argued that the Annexure A-13 judgment is related to a case in which the Finance Department, Government of Bihar on 16.11.2000 issued an Office Order to the Department of Primary and Mass Education, Secondary Education and Primary Education stating that pay fixation in terms of FR 22 (C) was irregular and illegal because the said rule had been substituted before the said date and no higher responsibility and duties were attached to the promotion post and, therefore the pay of the Principals and Headmasters in nationalized schools was refixed in terms of the provisions of FR 22 (1)(a) (2) and the excess payment made from the date of initial fixation of pay under FR 22 C was recovered in one instalment authorizing the Drawing and Disbursing Officer concerned to recover the excess amount in maximum 20 instalments if required. This was clearly admitted as bonafide mistake on their part and the excess payment made was the result of wrong interpretation of the rule.
A S PEETHAMBARAN 2025.03.20 16:03:57+05'30' -11-
7. There are two questions which have to be addressed over here. The first question is whether the direction of the Hon'ble Supreme Court in the case of Rafiq Masih as quoted in the O.M produced at Annexure A-14 could be applicable in the case of GDSs or not. Second question to be addressed is whether it would be proper on the part of the department to recover excess payment of the TRCA from the period 2014 to 2016 when the refixation of the TRCA was done on December, 2016. On the face of it the applicant does not fall within the guidelines which is laid down as per the terms of Annexure A-14 essentially requiring the Tribunal to interpret Clause (v) of the said Annexure A-14 O.M. O.M at Annexure A-14 constitute in effect a mercy petition on the ground that this is a very low paid employee as the recovery would be iniquitous or harsh or arbitrary to such an extent as would far outweigh the equitable balance of the employer's right to recover. The second issue which flows out of this is whether when the applicant was in no way responsible for the delay in the refixation of the TRCA although he was put in notice on 2013 and he had supplied all the required documents well in time as and when they were required, as is admitted by both sides, the Special Review conducted by the respondents was only in 25.09.2016 and the reduction in the TRCA was done retrospectively with effect from 01.05.2014 vide order of 25.11.2016, effectively penalizing the applicant A S PEETHAMBARAN 2025.03.20 16:03:57+05'30' -12- for a delay which was in no way caused by him, which is a gap in performance of an administrative function and, therefore, putting the applicant at an acute financial disadvantage is a question which needs to be addressed over here. While under normal circumstances, it would be held that an overpayment of an employee who has effectively 11 years of service left at the time of refixation of his pay could not really be an amount which is not due to him could not be a subject matter for relief in litigation, in this particular instance, given that there is a statutory requirement by their own process requiring that the refixation be done within the notice period of one year, whether it is proper on the part of the department to lay the burden of this delay upon the applicant, is a matter which really needs to be examined and it appears that the failure to maintain the statutory time line being made a consequence to be borne by the applicant, does not appear to be correct.
8. The argument that the GDS being not a civil employee is not entitled to the protection of this Tribunal appears to be a little far fetched given that the appointments, terminations, disciplinary actions of GDS as per the terms of the specific rules are all being dealt with by the Tribunal in all the matters and, therefore, this argument will not hold water.
A S PEETHAMBARAN 2025.03.20 16:03:57+05'30' -13-
9. Consequentially, the O.A is allowed. Relief Nos.2 & 3 are granted. The refund of the amount for which recovery has already taken place, should be done within a period of three months from the date of issue of this order. No order as to costs.
(Dated this the 20th day of March, 2025) V.RAMA MATHEW JUSTICE K.HARIPAL ADMINISTRATIVE MEMBER JUDICIAL MEMBER asp A S PEETHAMBARAN 2025.03.20 16:03:57+05'30' -14- List of Annexures in O.A.No.180/00060/2017
1. Annexure A-1 - A copy of the Superintendent of Post Offices, Vadakara Division (Respondent No.2) Memo No.B3/Poothampara dated 20.01.1992 appointing the applicant as ED BPM.
2. Annexure A-2 - A copy of the pay slip No.1 in Bill No.7 of AR No.167 for November 2016 issued by the Post Master Vadakara Head Post Office (Respondent No.3).
3. Annexure A-3 - A copy of the Superintendent of Post Offices, Vadakara Division (Respondent No.2) letter under No.A2/417/2012/2013 dated 13.05.2013.
4. Annexure A-4 - A copy of the Superintendent of Post Offices, Vadakara Division (Respondent No.2) letter No.A2/417 dated 26.06.2014.
5. Annexure A-5 - A copy of the compilation of the data relating to the work load of the BPM Poothampara forwarded by the applicant to the Respondent No.3 on 12.07.2014.
6. Annexure A-6 - A copy of the Superintendent of Post Offices, Vadakara Division (Respondent No.2) letter No.A2/417 dated 15.04.2016.
7. Annexure A-7 - A copy of the compilation of the data relating to the work load of the BPM Poothampara forwarded by the applicant to the Respondent No.3 on 17.05.2016.
8. Annexure A-8 - A copy of the order of the Superintendent of Post Offices, Vadakara Division (Respondent No.2) Memo No.A2/417 dated 25.11.2016 reducing the TRCA of the applicant to the TRCA scale of Rs.2745-50-4245 from Rs.3660-70-5760 retrospectively from 01.05.2014.
9. Annexure A-9 - A copy of the Director General, Posts (Respondent No.1) letter No.5-1/07-WS-1 dated 15.10.2012.
A S PEETHAMBARAN 2025.03.20 16:03:57+05'30' -15-
10. Annexure A-10 - A copy of the representation dated 15.01.2017 submitted by the applicant to the Respondent No.2 praying for re- examination orders (Annexure A-8) of unjustified reduction of the TRCA with retrospective effect.
11. Annexure A-11 - A copy of the pay slip No.1 in Bill No.7 of AR No.165 for December 2016 issued by the Post Master Vadakara Head Post Office (Respondent No.3).
12. Annexure A-12 - A copy of the order of this Tribunal in O.A.No.907/2010 pronounced on 09.08.2012.
13. Annexure A-13 - A copy of the order of the Hon'ble Supreme Court of India in Civil Appeal Nos.3351-3354 of 2003 pronounced on 16.12.2008.
14. Annexure A-14 - A copy of the Ministry of Personnel, Public Grievances & Pensions, Department of Personnel and Training Office Memorandum No.F.No.18/03/2015-Estt. (Pay-I) dated 02.03.2016.
15. Annexure R-1 - A copy of the Letter No.5-1/07-WS1 dated 15.10.2012.
16. Annexure R-2 - A copy of the fixation of allowance of GDSBPM.
_______________________________ A S PEETHAMBARAN 2025.03.20 16:03:57+05'30'