Central Administrative Tribunal - Madras
T Balachandran vs M/O Communication & It on 29 May, 2023
° 1 O.A.25 1/2018 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH OA No. 251/2018 Dated Monday the 23 day of May Two Thousand Twenty a Three ; CORUM: . HON'BLE MS. LATA BASWARAJ PATNE, JUDICIAL MEMBER T.Balachandran S/O Thillaimuthu, 1/710-18, vivekananda Nagar, Pamban, Rameswaram Taluk, Ramanathapuram District PIN-623. 524 (Retd Group-D Mandapam 50} * .. Applicant By Advocate M/S.M/S.R.Malaichamy Vs. , 1 Union of India, Rep. By its Secretary, Ministry of Communications & IT Department of Posts, Dak Bhavan, Sansad Marg, New Delhi-L10 001 2 The Chief Postmaster General, Tamil Nadu Circle Anna Salai, Chennai-600 002 3 The Postmaster General, Southern Reglon (TN) Madurai-625 002 4 The Superintendent of Post Offices, Ramanathapuram Division, Ramanathapuram=-623 501 ..Respondents By Advocate Mr.J.Vasu 2 . 0.A.251/2018 - ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)} The applicant has- filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking for the following reliefs:
"_d) To call for the records of the 4th respondent pertaining to his ofder which is made in No.C/677 dated 18.12.2017 and set aside the same, consequent to
ii) direct the respondents to cure the shortage of qualifying service of 2 months ands days by treating the 28 years GDS cadre by invoking Rule 88 of CCS (Pension) Rules 1972 service and grant pension to the applicant with all attendant benefits and lil) To pass such further or other orders as this Hon'ble Tribunal may deem fit and proper""
2. The brief facts of the case in nutshell are as under:
The applicant worked as GDS about 28 years 6 months and 21 days. The applicant was initially appointed as EDMC (Extra Departmental Mail Carrier} now called as GDS MC (Gramin Dak Sevak Mail Carrier) on 27.2,1971. The applicant was appointed /promoted as Group D against the quota earmarked for GDS vide order dated 16.09.1999 and retired . from service on 30.04.2009. The applicant has rendered almost 28 years 6 months and 21 days in Group D cadre and he had rendered qualifying service after appointment/promotion as Group D cadre about 9 years 6 months and 23 days continuously . There is a shortfall two months and 7 days to complete the qualifying service required under the rule to grant of minimum pension, "
2.1 As per Rule 49 (3) of the CCS (Pension) Rules, 1972 for getting "minimum pension three months and above but less than six months treated as one half year and reckoned as qualifying service. The period of 9 months would, therefore, be two half years. Since there is shortfall of 2 moriths for qualifying service by the applicant, he has been denied pension
3 OA2S/2018 under old pension scheme.
2.2 The applicant. further has submitted his request letter dated 3.7.2017 for grant of Pension. However same was rejected by the respondents vide order dated 18.12.2017. The applicant contended that the Banglore Benh of this Hon''ble Tribunal allowed similar nature of cases and attained finality in the Hon'ble Supreme Court of India in SLPs, in the cases of Union of India Vs.Dattappa and Union of India Vs. B.V.Dambal etc. Further, the Hon'ble High Court, Madras in its judgement in the case of Union of India Vs. Velayutham I WP No.23652 of 2014 dated 27.10.2014 held that the service rendered in GDS cadre can be taken into account for grant of pensionary benefits 'by referring the judgement of Orissa Bench of this Hon'ble Tribunal and upheld by the Hon'ble High Court of Orissa In W.P. © No.29574 of 2011 dated 02.07.2012 and the Hon'ble " Supreme Court of India in SLP (Civil) C.C.5292 of 2013 dated 15.04.2013. Therefore, the applicant is entitled the benefit of such judgement and to grant pension to him, 2.3 Being aggrieved, the applicant has challenged the order dated 18.01.2017 passed by the Respondent No.4 in the present OA and prayed for aforesaid relief, -
3 After notice, the respondents have appeared through their counsel . and filed a detailed reply and opposed the relief claimed by the applicant in the OA on the ground that the judgement relied upon by the applicant are applicable only to the individual cases and not to be treated as precedent in any other similar cases by ignoring the directions of the Hon'ble Supreme Court decision in In the matter of UCI vs Gandiba Behera in Civil Appeal No.8497/2019 dated 08.11.2019.
4 The respondent have further contended that the minimum qualifying . 4 0.A.251/2018 service required as per rule 49 (3) of CCS (Pension) Rules 1972 for getting minimum being 9 years and 9 months. So far the applicant has rendered 9 years 6 months and 23 days as qualifying service, hence, he Is not covered under the said rule and the respondent authorities have already taken decision that there cannot be single definition of hardship that can be considered under Rule 88 of CCS (Pension) Rules, 1972. Hence the case taken up as per Rule 49 of CCS (Pension) Rules, 1972 only wherein an inbuilt relaxation of three months has already been provided. No further relaxation on case-to-case/en-masse basis will be admissible "in terms of Rule 88 of the ccs (Pension) Rules, 1972. Therefore, the respondent contended that the request of the applicant has been considered and the respondents have rejected the same since the applicant does not fulfill the minimum qualifying service for grant of minimum pension. Hence prayed for dismissal of O.A.
5. Heard M/S.R.Malaichamy for the applicant and Mr.Su.Srinivasan, SCGSC for the Respondents and Perused the relevant records, "6 It is to be noted that the respondents have availed the applicant's service initially as Extra Departmental Mail Carrier (EDMC) (subsequently re-designated as Gramin Dak Sevak Mail Carrier (GDS MC)) from 27.02.1971 It is also to be noted that almost after rendering 28 years of service as EDMC and followed with the seniority list, the applicant was selected and appointed as Group D on 16.09.1999 Accordingly, the applicant retired from service on superannuation on 30.04.2009 after . rendering 9 years 6 months service as Group D. 7 It is also noted that the applicant is with shortfall of two months and seven daysto qualify Pensionable service required as 10 years. If applicant Is having 9 years 9 months service in his account, then he will y 0.A.251/2018 automatically under rule of relaxation. Therefore, the applicant prayed for to condone the shortfall of two months and seven days by calculating his services from the GDS.
8 It is also to be noted that while considering the-issue the Hon'ble Supreme Court In the matter of UOI vs Gandiba Behera in Civil Appeal in , CA No.8497/2019 and batch cases by its order dated 08.11.2019 observed thus:
21, We are also of the opinion that the authorities ought to consider their cases for exercising the power to relaxthe mandatory requirement of. qualifying service under the 1972 Rules if they find the conditions contained in Rule 88 stand fulfilled in any of these cases. We do not accept the stand of the appellants that just because that exercise would be prolonged, recourse to Rule 88 ought not to be taken. The said Rules is not number specific, and if undue hardship is caused to a large number of employees, all of their cases ought to be considered. If in the cases of any of the respondents' pension order has already been issued, the same shall not be disturbed, as has been directed in the case of Union of India & Ors. v Registrar & Anr, (supra). We, accordingly allow these appeals and set aside the judgments under appeal, subject to the following conditions:
(i) In the event the Central Government or the postal department has already issued any order for pension to any of the respondents, then such pension should not be disturbed. In issuing this direction, we are following the course which was directed to be adopted by this Court in the case.of Union of India & Ors. v. Registrar & Anr.(supra}.
(if) In respect of the other respondents, who have not been issued any order for pension, the. concerned: ministry may consider as to whether the minimum qualifying service Rule can be relaxed in their cases in terms of Rule 88 of the 1972 Rules.
"9 It is to be noted that after the said direction, the respondent department has Issued order dated 25.11.2020, the relevant portion is exiracted below:
"3 The Postal Services Board after detailed deliberations in its meeting held on 25.09,2020 decided as under:
in view of directions,of Apex Court dated 08.11.2019, CCS (Pension) Rules, 1972, GDS (Conduct & Engagement) Rules; 2011.and observations of IFW of this Department, the Board after in-depth deliberation decided that there cannot be a single definitionof "undue hardship" that can be applicable to. all casés. Hence allcases similar to the cases tagged with the ~~ 6 O.A.251/2018 SLP NO.13042/2014 and decided by Hon'ble Supreme Court vide order dated 08.11.2019, may be taken up as per Rule 49 of CCS (Pension) Rules, 1972 only where an inbuilt relaxation of three months has already been provided. No further relaxation on case-to-case/en-masse basis will be admissible in terms of Rule 88 of the CCS (Pension) Rules, 1972"
Mere reading of the said para, it is very surprising that the respondents not at all followed the the decision of the Hon'ble Supreme Court of India and taken the decision on their own not considering the case in terms of Rule 88 of CCS (Pension) Rules, 1972. it is also to be noted that against the direction of the Tribunal dated 23.08.2016, the respondents have passed the order dated 01.02.2019 and rejected the claim of the applicant without considering the directions of this Tribunal In its letter and true spirit as well as by letter date 25.11.2020 In view of the decision of the Postal Service Board dated 25.09.2020 have decided to not to follow the direction of the Hon'ble Supreme Court in the matter of UOI vs Gandiba Behera and the said act of the respondent Is contrary to direction of passed by the Han'ble Supreme Court decision in the matter of UOI vs Gandiba Behera.
- 10 itis also seen that condonation of shortfall for considering the case for pension In respect of the employees like the applicant, some of the orders were implemented by the respondents immediately without challenging to Higher Courts. Being the model employer it is necessary to the respondents to bring all correct facts before the Hon'ble Supreme Court to avold discrimination among the similarly placed, employees 141 It is also to be noted that in the matter of UOI Vs. Registrar and others, the respondents have implemented the order by condoning the shortfall of 7 months and granted Pension.
12 It is also to be noted that when the directions has been issued by the Hon'ble Supreme Court for condoning the said shortfall, the cases like applicant for exercising the power to relax the mandatory requirement of '| i') 7 0.A.251/2018 qualifying service under Rule 88 of CCS (Pension) Rules, 1972if undue hardship is caused to the employees. It Is also to be noted that the employee like applicant who have rendered the continuous dedicated jong service in the Interest of the organisation. since 1971 and satisfied with the said services, the respondents have appointed the persons like applicant * on regular basis.
13. The issue involved in the matter is no more res integra and squarely covered by the order of this Tribunal in 0.A..605/2021 14 In view of the above, in my considered opinion, the respondents have not applied their mind at all. Accordingly the Impugned Order passed by the respondents dated 18.12.2017 is contrary to the directions of the Hon'ble Supreme Court needs to be quashed and set aside and _ accordingly the same is quashed and set aside. The Respondents are directed to act according to the directions of the Hon'ble Supreme Court issued in the matter of UOI vs Gandiba Behera and consider the claim of the applicant to condone the shortfall of 2 months and 7 days by taking GDS Services considering the length of service rendered by the applicant from 1971 to 2009 to avoid hardship which is going to be caused even after long spell of service and grant the Pension, all retirernent service benefits with arrears of Pension to application within a period of 3 months from the date of receipt of'a copy of this order. If the respondents fails to comply the said order within the specific period, 9% interest will be applicable. Accordingly OA is allowed.