Central Administrative Tribunal - Ernakulam
G. Sajayakumar vs Union Of India on 24 November, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00026/2015
Original Application No. 180/00791/2015
Thursday, this the 24th day of November, 2016
CORAM:
Hon'ble Mr. U. Sarathchandran, Judicial Member
1. Original Application No. 180/00026/2015 -
1. G. Sajayakumar, aged 34 years, S/o. R. Gopakumar,
Postal Assistant, O/o. the Superintendent of Post Offices,
Kollam Division, Kollam 691 001, Rohini Bhavan,
Kureepuzha, Kavanad PO, Kollam - 691 003.
2. J. Sunil, aged 36 years, S/o. John George, Postal Assistant,
O/o the Superintendent Post Offices, Trivandrum South Division,
Trivandrum - 695 036, residing at Lekshmi Vilasam, Aithiyoor,
Balaramapuram PO, Thiruvananthapuram - 695 001.
3. C.P. Binoy, aged 33 years, S/o. C.K. Pathrose,
Postmaster Grade-I, Vyttilla PO, Vytilla, Ernakulam,
residing at Chalil, Pallimattom, Eroor PO,
Ernakulam - 682 306. ... Applicants
2. Original Application No. 180/00791/2015 -
1. Vineesh M.K., aged 33 years, S/o. O.P. Viswanatha Menon,
Postal Assistant, O/o. The Superintendent of Post Offices,
Ottapalam Division, presently on deputation to APS, as
Warrant Officer, Army No. 8375734 Y, 5 Raj Rifles, C/o. 56 APO,
Kanpur Camp, New Delhi, residing Mukkadekkattu Kollath,
Thalakkassery PO, Palakkad District, Pin - 679 534.
2. T.R. Vijeshraj, aged 34 years, S/o. T.K. Rajagopal,
Postal Assistant, O/o. The Superintendent Post Offices,
Aluva Division, aluva - 695 036, presently on deputation to APS,
as Naiv Subedar, Army No. JC 835154 M, 4 Rapid Postal Unit,
C/o. 56 APO, Allahabad, residing Naimy Saranyam House,
Poonoor, Vengola Village, Valayanchirngara PO,
Perumbavoor - 683 556. ... Applicants
(By Advocate : Mr. Shafik M.A. in both the OAs)
Versus
1. Union of India, represented by its Secretary to Government of India,
Department of Posts, Ministry of Communications,
New Delhi - 110 001.
2. The Chief Postmaster General, Department of Posts, Kerala Circle,
Thiruvananthapuram - 695 033. . . . Respondents
in both the OAs
[By Advocates: Mr. N. Anilkumar, Sr.PCGC (R) in OA No. 180/26/2015 &
Mr. Anil Ravi, ACGSC in OA No. 180/791/2015]
These applications having been heard on 22.11.2016, the Tribunal on
24.11.2016 delivered the following:
COMMON ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member -
Since the issue for adjudication in both these Original Applications being the same, these two OAs were heard together and a common order is being passed.
2. For the sake of convenience the facts and record in OA No. 180/791/2015 are dealt with in this order which are mutatis-mutandis applicable to those in OA No. 180/26/2015 also.
3. Applicants are currently working as Postal Assistants in their respective addresses given in the cause title. They were discharged from Army Postal Service (APS for short). They were recruited under a common recruitment process conducted in furtherance of Annexure A1 common news paper report on the recruitment plan for filling up the posts of Postal Assistants both in the APS and Kerala Postal Circle. In terms of Annexure R1 communication dated 16.11.2001 respondent No. 1 had issued communication to all Postal Circles for recruiting Postal Assistants simultaneously on a centralised basis by the Circle both for the vacancies of Postal Assistants which arose in 2001 to be filled up both in the APS and in the civil side of the Postal Department in the Circle. 10 vacancies of the postal assistants have been allotted to the Kerala Circle for the special recruitment drive in APS. According to the applicants, though Annexure A1 emloyment news was published in January 2003, there was another notification prior to Annexure A1 inviting applications for the posts of Postman/Mail Guard for the years 1999, 2000 and 2001 notified in April 2001 for recruitment on open market basis but the said notification was withdrawn and the fresh recruitment drive indicated in Annexure A1 news item was initiated in January, 2003.
4. A common test was conducted on 3.9.2003 at the Circle level for filling up the posts of Postal Assistants in both APS and also for the civil side. The applicants in these two cases applied for the vacancies in the APS and they were selected. The others who were selected for the vacancies in the civil side were called for interview along with applicants on 22.10.2003 and 23.10.2003. Applicants attended the interview as per call letter marked as Annexure A2. Applicants were subjected to physical / medical examination mandatory for appointment in APS. Though the respondents selected 7 persons out of the candidates for the APS vacancies, 5 of them were not found fit in the medical examination. Applicant No. 2 was found fit in the medical examination. Vide Annexure A3 letter. Applicant No. 1 was informed that he was provisionally selected as Postal Assistant in Kerala Circle for deployment in APS and allotted to Ottappalam Division. A similar letter was issued to applicant No. 2 also. Vide Annexure A4 communication applicant No. 1 was called for physical and medical examination. The 2nd applicant also was issued with a similar letter. Thereafter both of them were issued with Annexures A5 and A6 appointment orders dated 10.3.2004 and 8.3.2004 respectively. They joined the respective divisions in the postal circle of Kerala with effect from 25.3.2004 and were deputed to APS on 25.3.2004. Applicant No. 1 was appointed as Warrant Officer by the President of India vide Annexure A7 dated 5.1.2006.
5. During 2009 some of the candidates appointed along with the applicants were repatriated to civil service. After having come back to the civil side they came to know the fact that all the Postal Assistants who were recruited along with them though joined in 2004 have been inducted in to the CCS (Pension) Rules, 1972 reckoning them as recruitees of 2001 and 2002. Immediately on knowing this matter the applicants submitted representations to respondent No. 2 vide Annexure A8 letter through their Commanding Officer in the APS. The said representation was marked to the Recruitment Section in the office of respondent No. 2.
6. According to the applicants though they were recruited for the vacancies of the years 2001-2002 it was due to the delay occurred to the respondents for the recruitment process their appointments were made after the introduction of the New Pension Scheme which came in to force with effect from 1.1.2004, depriving them of inclusion in the more beneficial CCS (Pension) Rules, 1972. The applicants point out that the Postal Assistants who were recruited in the same selection process and appointed for the vacancies of 2001-2002 in the civil side of Circle and Divisions, though appointed in February and March of 2004, were initially included in the New Pension Scheme as in the case of the applicants but vide Annexure A12 they have been inducted into the old pension scheme under the CCS (Pension) Rules, 1972. Therefore, the applicants contend that the denial of their inclusion in CCS (Pension) Rules, 1972 though they have been selected for the vacancies of 2001-2002 is highly illegal, arbitrary, unjust, unreasonable and violative of Articles 14 & 16 of the Constitution of India. Applicants state that it is only due to the delay on the part of the respondents that the notification for the posts of 2001 and 2002 was deleted for two years and the said delay cannot be permitted to be recoiled to the applicants. According to the applicants had the Department been acting strictly on the basis of Recruitment Rules, the vacancies could have been filled up in 2001-2002 along with other vacancies. They contend that the issue involved in this case was already decided by this Tribunal in order dated 7.7.2006 in OA No. 620 of 2003 which was later followed by the Tribunal in OAs Nos. 66 of 2008 and 703 of 2009 also. Applicants have produced Annexure A13 copy of the order dated 29.3.2011 in OA No. 703 of 2009 in support of these cases.
7. Respondents in their reply statement state :
'7. ........... the applicants were selected under a special recruitment drive exclusively for APS and not against any particular vacancies. In respect of APS, the selection process is completed only when the candidates are found medically fit by the Army Authorities. Thereafter, the candidates have to report to the Branch Recruiting Officer for documentation and collection of Rahadari Patra and only after getting the patra from APS Centre, Kamptee, the candidates can attend the army camp and join for duty. All these primary and important activities had taken place only after 1.1.2004. Both the applicants in the OA were selected only vide Annexure R-6 dated 27.2.2004. The first applicant was issued Annexure A-5 appointment order by the Superintendent of Post Offices, Ottapalam Division only on 10.3.2004 and the second applicant was issued Annexure A6 appointment order by the Senior Superintendent of Post Offices, Aluva Division only on
8.3.2004. Thus the applicants who were appointed after 1.1.2004 came under the purview of the New Pension Scheme...................'
8. According to the respondents the meritorious candidates who got selected in the civil side completed their pre-appointment formalities and were deputed for induction training during 2003 itself and therefore, in terms of Annexure R7 OM dated 5.3.2008, as the period spent by such candidates in the departmental training was prior to 1.1.2004, their training period was counted as qualifying service under CCS (Pension) Rules, 1972 and hence they were included in the CCS (Pension) Rules, 1972. According to the respondents there was no such training before 1.1.2004 undergone by the applicants after their recruitment as Postal Assistants for APS. The applicants who joined the service in 2004 without any protest, at a later point of time, cannot claim the benefits of the other civil officials who were included under the CCS (Pension) Rules, 1972. Respondents state that there was no delay in the recruitment process. According to the respondents the applicants having been specially recruited for APS cannot claim the benefits their counterparts in the civil side have obtained on account of their training which began prior to 1.1.2004 and hence became eligible to be included under the CCS (Pension) Rules, 1972.
9. A rejoinder was filed by the applicants pointing out that the delay in appointing the applicants as Postal Assistants/Sorting Assistants was badly effected for the reasons attributable to the respondents. They contend that the mere fact that they did not apply for the civil side of the vacancies which were filled up in the same recruitment process as the applicants have undergone cannot put them under a disadvantageous position in the matter of induction into the old pension scheme.
10. Additional reply statement was filed by the respondents pointing out that recruitment to APS required fulfillment of standards like medical standards/fitness before actual recruitment. Hence the final list of candidates for APS could be prepared only after completion of medical and physical test. The final select list was issued only on 27.2.2004 vide Annexure R6 and posting orders were issued from the concerned Postal Divisions after documentation and conclusion of Rahadari Patra and reporting at the APS Centre, Kamptee. According to the respondents the legal issue involved in OAs Nos. 620 of 2003, 66 of 2008 and 703 of 2009 are different. In those OAs the applicants were Gramin Dak Sevaks who had qualified for the Postman examination held on 24.11.2002 but the candidates in the same selection process and were appointed under the GDS merit quota were given posting in 2003 and the appointment to the unfilled departmental vacancies carried forward to GDS merit quota could be given only in January 2004 due to unavoidable administrative delay.
11. Heard the learned counsel for the parties. Shri Shafik M.A. learned counsel appeared for the applicants. Mr. N. Anilkumar, Sr. PCGC (R) appeared for the respondents in OA No. 26 of 2015 and Mr. Anil Ravi, ACGSC for the respondents in OA No. 791 of 2015. Perused the record in both these OAs.
12. The short issue in both these OAs is whether the applicants who were selected to the posts of Postal Assistants in the APS along with candidates who applied for the similar vacancies in the civil side in the same recruitment process could be deprived of the benefits granted to the candidates on the civil side in the matter of inclusion in the old pension scheme under the CCS (Pension) Rules, 1972 which came to a close with effect from 1.1.2004?
13. Admittedly the candidates for both APS and civil side were appointed only after 1.1.2004. The applicant seek parity with their civil counterparts who were also selected in the same recruitment process but were subsequently included in the old pension scheme under CCS (Pension) Rules, 1972 vide Annexure A12. According to the respondents applicants were selected exclusively for the posts of Postal Assistants/Sorting Assistants in the APS which required physical and medical fitness and hence the delay occurred for their recruitment for the purpose of completion of the medical test and also for the other formalities like documentation, Rahadari Patra and reporting at APS Centre, Kamptee. According to the respondents in the case of the candidates recruited as Postal Assistants in the civil side they had undergone a stipendiary pre-appointment training prior to 1.1.2004, their qualifying service for the purpose of CCS (Pension) Rules, 1972 could be counted from the date from which they were sent for such training and hence they are entitled to be included in the pension scheme under the 1972 rules. Respondents argue that in the case of the applicants who were separately recruited by way of a 'special recruitment drive' as included in Annexure R2 communication there was no such pre- appointment training and hence they cannot avail of the benefits of Annexure R7 OM. The said OM permits the employees who were required to undergo department training prior to 1.1.2004 before they were put on regular appointment and were in receipt of stipend during such training would be governed under CCS (Pension) Rules, 1972 provided they fulfill the qualifying service under the 1972 rules.
14. It appears from the contentions of the respondents that they gave the benefit of Annexure R7 OM to the candidates recruited on the civil side in view of the circumstances that such candidates were sent for pre- appointment training prior to 1.1.2004. According to them the applicants had not undergone any such training before their final posting/appointment order and hence they cannot enjoy the benefits of CCS (Pension) Rules, 1972 as their appointment in the APS were finally made only after February, 2004, by which time the New Pension Scheme was brought into force.
15. A significant factor which pervades in these two cases is that the applicants were selected for the vacancies in APS which arose in the year 2001-2002. This factum is discernible in Annexure R1 communication issued by respondent No. 1 to the heads of all Postal Circles. Paragraph 3 of the instruction regarding the modalities of recruitment of Postal Assistants for APS reads as follows:
'3. The above special Recruitment Drive for APS, however has to be undertaken simultaneously with the recruitment for the vacancy year 2001 under the Annual Direct Recruitment Plan after the same is approved by the Screening Committee mentioned in the Directorate d.o. Letter No. 60-29/98-SPB-I Pt.(II), dated 4.7.2001.'
16. The afore-extracted portion of Annexure R1 clearly states that the special recruitment drive for APS was for the vacancy year 2001. Annexure R1 communication is dated 16.11.2001. However, the written examination which was for both the candidates applying for APS and the civil side was conducted only on 3.9.2003. Applicants point out that the notification published in the year 2001 inviting applications was cancelled and Annexure A1 notification was published in January, 2003 only. Therefore, for the reasons best known to the respondents there was obviously an unexplained delay of 2 years for filling up the vacancies which arose in the year 2001. It is settled law that any unreasonable delay in the recruitment process which is attributable to the respondents cannot be permitted to recoil on the candidates who applied for the posts. If the recruitment process could be completed in 2001 or at least in 2003 - after Annexure A1 press release, certainly the applicants would have a chance of being appointed in the APS in 2003 itself.
17. Learned Central government counsel appearing for the respondents in OA No. 26 of 2015 pointed out that some of the applicants in these case were considered for selection to the APS only when the initially selected persons were found unfit or did not turn up for medical examination and hence the delay was not willful or deliberate. Despite all the procedural formalities before the finalisation of the appointments in APS, the fact remains that the vacancies arose in 2001 itself. It is worth noting that the candidates who opted for civilian posts of Postal Assistants/Sorting Assistants could be given appointment much earlier than the applicants who were candidates in the category of APS in the same recruitment process and the delay occurred in the final appointment in the APS was not attributable to the applicants who had applied for the posts and took part in the recruitment process along with their civilian counterparts. Therefore, this Tribunal is of the view that the applicants are also entitled to the same benefits that were granted to their civilian counterparts. There is no reason for giving differential treatments to the candidates who have undergone the same recruitment process (except for the medical/physical tests required for APS posts) for the purpose of inclusion in the 1972 pension rules. This issue is highly sensitive and valuable for candidates as the 1972 pension rules are more beneficial for the employees than the New Pension Scheme which came into force with effect from 1.1.2004.
18. Though the applicants relied on the decisions of this Tribunal in OAs Nos. 620 of 2003, 66 of 2008 and 203 of 2009 the fact situation in the present two OAs on hand are slightly different. Therefore, the adjudication of these two cases has been on a different premise i.e. by invoking the equality principles enshrined in Articles 14 & 16 of the Constitution of India. In these case two sets of employees who have undergone the same recruitment process seem to have been treated differently in the matter of pension. The applicants in these two OAs and their counter parts who have applied for the post of Postal Assistants in the civil side are similarly situated except for applicability of Army Act and Rules once the former are appointed in the APS. But once the applicants herein are discharged from APS and come back to the civil side of the cadre for which they were selected, the difference between the two categories pales into insignificance. Once they are back in civil service, the apllicants are entitled to be treated equally with the Postal Assistants recruited for the civil posts not withstanding the period of service they have spent in the Army Postal Services.
19. In the above circumstances this Tribunal is of the view that the delay occurred in the recruitment process for the vacancies of 2001-2002 and the special treatment given to the civilian candidates on the premise that they were sent for pre-appointment training prior to 1.1.2004 puts the applicants in comparatively disadvantageous position warranting judicial remedy invoking the equality principles enshrined under Articles 14 & 16 of the Constitution of India.
20. In the light of the above discussion, the OAs are disposed of with a direction to the respondents to consider assigning date of appointment to the applicants notionally with effect from the date of arising of the vacancies in which they were appointed and to consider including them under the CCS (Pension) Rules, 1972 with consequential benefits. It is made clear that the this order is being passed only for the purpose of pensionary benefits of the applicants in both these OAs.
21. The Original Applications are disposed of as above. No order as to costs.
(U. SARATHCHANDRAN) JUDICIAL MEMBER b� SAb�