Allowed

Union of India through Chief Post Master General through Birendra Prasad Srivastava and Anr. v. Bhim Ram

Jharkhand HC18 Jul 2018WPC/5549/2014

Case brief

AI extract

What is this about?

This High Court allowed Union of India's appeals regarding pension claims of postal employees promoted to Group-D posts. The Court held that part-time Extra Departmental Agents without ten years' qualifying service were not entitled to pension, following the Supreme Court's distinction of this category from full-time casual employees.

What did the court decide?

The impugned orders of the Central Administrative Tribunal directing the grant of pension were set aside in both writ petitions.

Union of India through Chief Post Master… — Pension and Retirement Benefits | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 5549 of 2014

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1. Union of India through Chief Post Master General, Jharkhand Circle, Ranchi;

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2. The Superintendent of Post Office, Giridih Division, Giridih. ... Petitioners

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Versus

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Bhim Ram … Respondent With

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W.P.(S) No. 5300 of 2016

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1. The Union of India, through the Director General of Postal Services, Ministry of Communication, Department of Post, Dak Bhavan, New Delhi;

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2. The Chief Post Master General, namely, Shri Anil Kumar, S/o Dhaneshwar Prasad, Jharkhand Circle, Ranchi. ... Petitioners

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Versus

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Banke Bihari Mandal … Respondent

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CORAM :- HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MR. JUSTICE RATNAKER BHENGRA

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For the Petitioners : Mr. Prabhash Kumar, Advocate. (in W.P.(S) No. 5549 of 2014) Mr. Rajiv Sinha, ASGI (in W.P.(S) No. 5300 of 2016) For the Respondent : Mr. Prashant Pallav, Advocate. (in W.P.(S) No. 5549 of 2014) Mr. Ajit Kumar, Advocate. (in W.P.(S) No. 5300 of 2016)

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By Court: Heard learned counsel for the parties.

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Union of India is aggrieved by the order dated 30.05.2014 passed in O.A. No. 213 of 2012 (R) with M.A. 051/00028 of 2014 by the learned Central Administrative Tribunal, Patna Bench (Circuit Bench at Ranchi), whereunder it was directed to treat the applicant as having completed minimum qualifying service of 10 years and allow him pension on that basis within stipulated period. W.P.(S) No. 5549 of 2014 arises therefrom. Petitioner, Union of India has also challenged the order dated 3^rd August, 2015 passed in O.A. 61 of 2013(R)

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by the learned CAT, whereby it has set aside the order dated 27^th February, 2007 passed by the respondent, Department of Postal Services and directed the Chief Post Master General, Jharkhand Circle, Ranchi to consider the case of the applicant in the light of the observations made at para 4 and 5 of the order and pass necessary order granting pension to the applicant along with arrears from the due date, within stipulated period of four months. The Review Application No. 051/00006 of 2015 preferred by the Union of India was rejected by order dated 11.2.2016. Since, common issues arise in both the writ petitions, they have been tagged earlier to be heard together.

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The case of the applicants in the respective O.As are briefly dealt with hereinafter. Applicant in O.A. No. 213 of 2012 ( R) /respondent in WPS No. 5549 of 2014, joined as Extra Departmental Agent on 16.11.1972. His date of birth is 6^th September 1948. Applicant had approached the learned CAT in O.A. 27 of 2011 with a prayer for grant of pension on retirement from the post of mail Peon (Group-D post), to which he was promoted from Extra Departmental Agent. The Original Application was heard on the common prayer of two other applicants and after taking note of the decisions of the High Court of Jharkhand and Patna disposed of by the order dated 23^rd March, 2012 with a direction to the respondent-department to examine the case of the applicants. The applicant's case was thereafter rejected by order dated 3^rd August, 2012 (Annexure-5) passed by the Superintendent of Post Office, Giridih Division under challenge before the learned CAT. The present writ petition arises therefrom. The other relevant material facts germane to the issue, inter alia, are as follows:

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Applicant came in the zone of consideration on completion of 50 years in the year 1998 as per the cut off date i.e. 1^st July of that year. The vacancies were, however, notified on 11.11.1998. Departmental Promotion Committee considered the case of the applicant on 03.12.1998. On recommendation of the Departmental Promotion Committee, he was appointed on the sanctioned post of Mail Peon in Group-D on 11.12.1998.

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Applicant was sent for training thereafter. On completion of his training, he joined on the post on 03.02.1999. He retired from service on 30.09.2008. His claim for pension was rejected by the department, as he had not completed 10 years of service in terms of Rule 49 of the CCS (Pension) Rules, 1972. The total period of his service (reckoned from his date of joining) on the post of Mail Peon, Group-D was 9 years, 7 months and 28 days. The department contested the case before the learned CAT by filing written statement (Annexure-6). Learned CAT, however, acceded to the prayer of the applicant and passed the direction, impugned herein. Learned CAT took into account the judgment passed by the Patna High Court in CWJC No. 3893 of 2009 (Rajdeo Thakur Vs. Union of India & Ors) dated 10.08.2009 and that of this Court in WPS No. 5331 of 2009 (Meghan Yadav Vs. Union of India and others). It observed that the High Court had noticed that the departmental promotion committee meeting was conducted after some delay. The case of the applicant for promotion to Group-D post should have been considered on or before 10.07.1994, whereas, it was considered much later and the promotion order was issued after about 8 months from the due date. Such delay, should not have disentitled the applicant therein as the policy provided that the Group-D post be given only to those who are below 50 years of age. The Departmental Circular dated 25.8.1993 was also taken note of, which deals with Departmental Promotion Committee for promotion to Group-D.

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Applicant in O.A. No. 61 of 2013 had joined as Extra Departmental Agent on 10.12.1972. His case was considered in the year 1996 by the Departmental Promotion Committee and was offered appointment on 20.11.1996 to the post of mail peon, Group-D service, on substantive basis. He joined on the said post on 03.12.1996. His date of birth was 11.5.1946. He superannuated on 31.5.2006.This applicant had also approached the learned CAT earlier in O.A. No. 145 of 2006 with a prayer to consider his case for grant of pension as the respondent-department had not considered his case due to

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non-completion of mandatory 10 years period of service in terms of Rule 49 of CCS (Pension)Rules, 1972. However, his case was rejected by the department vide order dated 27.02.2007 at Annexure-R/2 of the written statement on the same ground that he had not completed 10 years of pensionable service from the date of his joining. The learned tribunal, after consideration of the case of the parties, however, opined in favour of the applicant. W.P(S) No. 5300 of 2016 arises out the order passed by the learned CAT.

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Learned ASGI has made following submissions in support of the challenge to the impugned orders:

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(i) The provision for promotion to Group-D post from the post of Extra Departmental Agent now Gramin Dak Sevak required consideration of the case of an applicant, who had attained the age of 50 years in that particular year reckoned on 1^st July of that particular year. However, Departmental Promotion Committee would only consider the case of such applicant on the existence of vacancies to such post in their quota. Group-D posts have different channels of appointment viz. direct appointment; through promotion from the Extra Departmental Agents, who are full time casual employees and through part time casual employees i.e. Extra Departmental Agents.

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(ii) The Ministry of Communication & I.T., Department of Post, Government of India, examined the matter in view of the persistent claims of such employees, who had a short fall from the minimum qualifying services of ten years and also in the light of orders passed by the Tribunal or other Courts. The policy decision on grant of pension to departmental employees, who were earlier Gramin Dak Sevak and had not completed 10 years of regular service are contained in the Circular dated 25.10.2013 bearing No. 19-12/2009-GDS (Annexure-7).

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(iii) The Postal Service Board after careful consideration of the matter decided that there is no scope of allowing counting of part of GDS service to enable such employees to make up for the short fall in the minimum required service for pension. Observation of statutory provision laid down under Rule 49 of

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CCS (Pension) Rule 1972 should be the rule and no deviation should be allowed from the statutory provisions. The Postal Board referred to the decision of the Madras Bench of the CAT in O.A. No. 1264 of 2001 in the case of M.R. Palanisamy Vs. UOI which had directed the department to consider the case of the applicant in proper perspective and formulate a scheme as formulated by the DoPT vide OM dated 12.04.1991. The said applicant had rendered a service of 9 years 3 months and 29 days only in Group-D cadre. The matter went up to the Supreme Court. The Apex Court, however, dismissed the Special Leave Petition preferred by the department leaving the question of law open. Subsequently, more cases were filed by the employees. The department of post observed that GDS engagement in the department of Posts is unique to the Department and has no parallel to any other Department in the Government of India.

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(iv) The system of engaging EDAs(GDS) is exclusive to the Department of Posts and the Sevaks are not required to perform duty beyond a maximum period of five hours in a day. They are permitted to be retained up to 65 years of age. It is mandatory for a Sevak to furnish an undertaking that he has other sources of income besides the allowances paid by the government for adequate means of livelihood for himself and his family. As such, EDA/GDS is a distinct category in itself and is governed by the non-statutory rules formulated by the Government from time to time and cannot be equated to Railways casual employees etc.

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(v) Rule 4 of P&T Extra Departmental Agents (Conduct and Service) Rules, 1964 provides that “the employees shall not be entitled to any pension”. Rule 6 of the Gramin Dak Sevaks (Conduct and Employment) Rules, 2001, effective from 24.04.2001 also provided that the Sevaks shall not be entitled to any pension.

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(vi) Rule 14(2) of CCS (Pension) Rules, 1972 provides that the expression ‘service’ means service under the Government and paid by that Government from Consolidated Fund of India or a

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local fund administered by that Government but it does not include service in a non-pensionable establishment unless such service is treated as qualifying service by that Government. Extra Departmental Agents are specifically excluded from the application of pension under the applicable rules and the Government has not provided for counting part of the service rendered by them in the capacity of EDA/GDS on absorption to regular departmental posts.

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(vii) Government of India Decision No.2 below Rule 14 of CCS (Pension) Rules, 1972 provides for counting of half of the service paid from contingencies with regular service provided the service paid from contingencies should have been in a job involving whole time employment (and not part time for a portion of the day). The GDS employees in no way come under this category.

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(viii) GDS employees are given ex-gratia gratuity severance allowance.

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(ix) Rule 49 of CCS (Pension) Rules, 1972 provides for pension on completion of minimum of ten years of qualifying service but in calculating the requirement of ten years, especially, in relation to calculating gratuity benefits completed six monthly periods are taken into account. In such every calculation as a general accounting principle rounding off is allowed. By such a principal, sub-rule 49(3) provided that in calculating the length of qualifying service, a fraction of three months and above shall be treated as a completed one ‘half’ year and reckoned as qualifying service. As such, where employee had completed nine years and nine months of service qualifying for pension, last nine months should be construed as two completed periods of six months and hence, nine months become equal to twelve months in a year.

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CCS (Pension) Rules, 1972 applied to the cases of GDSs, who were absorbed before 01.01.2004. On introduction of New Pension Scheme effective from 01.01.2004, all entrants to Government service on or after this date ceased to be governed by CCS (Pension) Rules, 1972.

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Learned ASGI submits that this issue was subjudice in another matter before the Apex Court in Civil Appeal Nos. 13675-13676 of 2015 in the case of Union of India & others versus The Registrar & another . The Apex Court vide order dated 24.11.2015 (Annexure-A to the 2^nd supplementary affidavit filed on 02.02.2016 in W.P.(S) No. 5549 of 2014), after taking note of the peculiar nature of the engagement of Extra Departmental Agents, categorically held that DoP&T Circular,1991 which forms the basis of the impugned direction of the learned Tribunal as affirmed by the High Court, pertained to full time casual employees to which category the second respondent did not belong. Therefore in the light of the provisions of the Rule governing the condition of the service of the respondent, impugned directions ought not to have been passed by the learned Tribunal and approved by the High Court. The matter pertained to policy and involved financial implications. The Apex Court interfered with the impugned directions and allowed the appeals filed by the Union of India but made it clear that the pension granted to the second respondent would not be affected by the said order and he would continue to enjoy it in accordance with the provisions of law.

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Learned ASGI has summarized his argument by submitting that the applicants, who had not completed the qualifying service of ten years in terms of Rule 49 of CCS (Pension) Rules, 1972 were not eligible for pension. Learned Tribunal fell in serious error in directing the department to treat their qualifying service as ten years being persuaded by the plea that delay in holding DPC should not have acted to the prejudice of the applicants. Since the issue has been finally set at rest by the Apex Court in the case of Union of India & others versus The Registrar & another (supra) , the order of the learned Tribunal based upon the order of the High Court in CWJC No. 3893 of 2009 and WPS No. 5331 of 2009 does not hold good. He submits that learned CAT has in another similar case in OA No.175 of 2012 (R), taken a contrary view vide order dated

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19.09.2014 (Annexure-8). He further submits that the issue involves large number of employees and has wider financial implications. It is also in the domain of policy decision. The Postal Board has on consideration of the entire relevant factors, come to a firm decision that deviation from the mandatory requirement of Rule 49 of the CCS (Pension) Rules, 1972 should not be permitted in any case. As such, impugned orders deserves to be set aside.

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Learned counsel for the applicant in W.P.(S) No. 5549 of 2014 has made the following submissions:

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He has referred to the circular of the Government of India also extracted in the impugned order and annexed at page-70 of W.P.(S) No. 5300 of 2016. According to the said circular, vacancies occurring in a calendar year should be calculated in January of each year and the select list should be drawn up strictly in order of seniority ( subject to satisfactory service). The EDAs put on the select panel should be allotted immediately to the Sub-Division / Recruiting Unit agreeably with the number of Group-D vacancies calculated for that SubDivision/Recruiting Unit. In case, vigilance or disciplinary proceedings are pending against an EDA before he/she is actually appointed, his/her appointment would not be made. EDAs crucial date for determining age will be 1^st July of the year in which the recruitment is made. He submits that the applicant became eligible in the year 1998 as he would have completed 50 years by 06.09.1998. If the DPC meeting was held on 1^st July, 1998 i.e. the cut off date, the applicant could have completed mandatory qualifying service of ten years till his date of retirement. The applicant has not asked for counting of his past service, rather his case ought to be treated from the cut off date i.e. 1^st July of that particular year. Non-holding of DPC, as per schedule by the department, should not be to the disadvantage of the applicant. The Department has reckoned his service from the date of joining i.e. 03.02.1999 instead of the date on which he was sent for training on 21.12.1998 after being promoted to Group-D service. He submits that this

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provision is beneficial in nature and should be interpreted in a purposive manner. If the department failed to hold DPC as per scheduled date on 1^st July of the year, the delay should not prejudice the case of the applicant.

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Learned counsel has also relied upon the rounding off principle mentioned in the policy decision (Annexure-7) dated 25.10.2013 of the Ministry of Communications & IT referred in context of the qualifying service for pension under Rule 49 of the CCS (Pension) Rules, 1972. He submits that the learned Tribunal has drawn strength from the judgment rendered by the High Court which have attained finality. The principle on which the High Court allowed the benefit of qualifying service of ten years to those applicants [ Rajdeo Thakur Vs. Union of India & Ors and Meghan Yadav Vs. Union of India and others ( Supra )] equally applies to the facts of the present applicant. He submits that judgment of the Apex Court was not in context of the facts of the present case. The Apex Court in the judgment passed in the case of Union of India ( supra) held that the DOP&T Circular, 1991 which formed the basis of the impugned direction of the learned Tribunal as affirmed by the High Court, pertained to full time casual employees, whereas second respondent belong to different category of part time casual employee. Relevant factual facts in relation to the present applicant that he was not a full time casual employee are not borne out from the present records. As such, the said judgment does not apply to the facts of the case.

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Learned counsel for the applicant in WPS No. 5300 of 2016 has adopted the submission of the learned counsel for the co-applicant. He submits that delay in holding the DPC has led to dis-advantage to the applicant, who would have completed 50 years on 11.5.2006 reckoning his date of birth as 11.5.1946. In his case, appointment was made on 20.11.1996 and he joined Group-D post on 03.12.1996. He retired on 31.05.2006. As such he was short by six months and few days from the mandatory qualifying service of 10 years. The principles laid down by the High Court and as followed by the learned CAT in

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the impugned order should guide the case of the present applicant also.

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We have considered the submissions of the learned counsel for the parties, at some length and also taken note of the relevant material facts, the provisions of law and the circular applicable to the applicants /private respondents herein. At the outset, it is worthwhile to mention that applicant in O.A. No. 213 of 2012 set up a case for promotion to Group-D post on the claim that he had completed 50 years of age and had been working as Extra Departmental Agent from 16.11.1972. There are no averments to the effect that this applicant had, during his service, as Extra Departmental Agent, been promoted as full time casual employee. The case of the applicant herein was for promotion to Group-D post of mail peon as per the Departmental Circular of1993, quoted in the impugned order, as well. As per the Departmental Circular, on promotion to the Group-D post from EDA (GDS) in regular service, the conditions of service of such an employee for the purposes of pensionary benefits are guided by the CCS (Pension) Rule, 1972. The instant rule lays down mandatory qualifying service of 10 years for being entitled to pension. In both the cases, the applicants were short off 10 years of qualifying service, even reckoning it from the date of appointment instead of date of their joining. These applicants have not claimed the benefit of their past services as EDA (GDS) for being added to the qualifying service nor do they come in that category of full time casual employees.

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The departmental circular did provide for a cut off date i.e. 1^st July of the year for eligibility of an employee to be considered for promotion to Group-D post from the post of EDA(GDS). In the case of applicant, in O.A. No. 213 of 2012, the vacancy came to be notified on 11.11.1998 and the DPC was held on 03.12.1998 which recommended his case for appointment to Group-D post. It appears that similarly in the case of the applicant in O.A. No. 61 of 2013, pursuant to the recommendation of the DPC held, he was appointed on

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20.11.1996. Holding of departmental promotion committee meeting are dependent upon host of administrative factors including the existence of vacancies against which promotion has to be made. It is well settled that an employee is born on the cadre post on the date, he joins the said post. By a deemed fiction the date of appointment and joining cannot be stretched back to an imaginary date when the post was not in existence or even the DPC had not been held. If such an approach is approved, it may lead to administrative chaos. The qualifying service for the purpose of pension are to be reckoned from the date the employee is born on the cadre and he joins the post. In the case of present applicants, even if their services are counted from the date of appointment they would not complete the qualifying service of 10 years. [See (2009) 12 SCC 49, State of Rajasthan and others versus Jagdish Narain Chaturvedi].

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The principle of rounding off does not apply to the reckoning of the qualifying service for the purpose of pension. An employee would be entitled for pension upon fulfilling the mandatory requirement of 10 years of qualifying service in terms of Rule 49 of the CCS (Pension) Rules, 1972. The principle of rounding off are however applicable to the computation of gratuity benefits. This principle could not be stretched to round off or overcome the shortfall of qualifying service of 10 years.

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The Apex Court in the case of Union of India & others versus The Registrar & another in Civil Appeal Nos. 13675-13676 of 2015 considered the case of the applicant/ respondent No.2 therein, who had worked as EDA in the postal department from 1968 to 1993. He was regularized on 01.04.1993 and had retired on 31.05.2002, thereby completed 9 years and 2 months of service. As such, he was not granted any pension. The Learned Tribunal directed a scheme to be framed to give some benefit of service rendered by such employees as Extra Departmental Agent so as to enable him to earn requisite period of qualifying service

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for pension i.e. 10 years. The direction of the learned Tribunal was affirmed by the High Court. In the appeal, preferred by the Union of India, the Apex Court observed that second respondent was a part time casual employee who was required to render between 3 to 5 hours of service every day. At the time of their appointment, he was required to give undertaking that he has alternative source of income to support his families. Such appointment were made to reach out to the addresses in the far flung villages where establishment and maintenance of a regular post office is not a viable proposition. Such employees were not entitled to pension but would be entitled to ex-gratia gratuity. Apex Court, therefore, held that the learned Tribunal ought not to have passed direction to frame scheme to allow the services rendered by Extra Departmental Agents to enable them to earn the requisite period of qualifying service for pension.

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The applicants herein indisputably, were engaged as EDA, required to perform duty up to five hours service in a day. They were also required to give similar undertaking that they had alternative sources of income. The applicants if, had continued as Extra Departmental Agents would have attained superannuation at the age of 65 years, compared to the regular Group-D employee who retire at the age of 60 years. On promotion to Group-D post, their services are guided by the CCS (Pension) Rules, 1972, Rule 49 thereof, prescribes a mandatory qualifying service of 10 years. These employees having not completed the mandatory qualifying service of 10 years, therefore could not be legally entitled to claim pension. The learned tribunal seems to have been persuaded by the decisions rendered by the High Court in CWJC No. 3893 of 2009 and WPS No. 5331 of 2009, referred herein above. However, the ratio rendered by the Apex Court in the case of Union of India & others versus The Registrar & another ( supra), has laid down the law to be followed in such cases. As such, we find substance in the prayer of the petitioners, Union of India. The impugned orders passed by the learned

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Central Administrative Tribunal, therefore, cannot be upheld in the eye of law as well on facts. Accordingly, they are set aside.

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