Hon'ble Alok Mathur,J.
(Delivered by Hon'ble Alok Mathur, J.)
1. Heard Sri Farooq Ahmad, learned counsel for the petitioner-review applicant and Sri Uday Veer Singh, learned counsel appearing for Union of India.
2. The petitioner by means of present writ petition has challenged the final order passed by the Central Administrative Tribunal, Lucknow Bench, Lucknow (hereinafter referred to as "the CAT"), dated 3rd February, 2006, passed in Original Application No. 411 of 2004, whereby his claim for pension has been rejected.
3. The counsel for the petitioner submitted that the petitioner was appointed as Extra Departmental Branch Postmaster at Bankashi Post Office, Bahraich on 27/02/1962. In pursuance to notification issued on 14/10/1991, for filling up the vacancy of group "D" by promotion, the petitioner was promoted on 18/01/1995 and joined the Group "D" post on 2/02/1995. The petitioner has vehemently submitted that despite the fact that the notification for vacancy was issued in the year 1991, it was due to the lapse on the part of the respondents that they promoted the petitioner after a gap of more than 4 years.
4. It is next submitted on behalf of the petitioner that he retired from service on 28/02/2004 after attaining the age of superannuation i.e 60 years. Prior to his retirement the petitioner had submitted all the necessary documents along with joint photograph in triplicate for the purpose of pension, in the year 2003, but by means of the order dated 05/08/2004, which was challenged by the petitioner before the CAT, the petitioner was informed that he is not entitled to get pension or pensionary benefit as the petitioner had served for only 9 years and 14 days on the Group "D" post, which is less than 10 years, for entitlement to pension.
5. The CAT by means of order dated 02/02/2006 rejected the claim of the petitioner on the ground that services rendered by him as Extra Departmental Employee was non-pensionary, under Rule 49 of The Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as "the CCS Rules, 1972"), 10 years qualifying service is must for entitling a Government Servant for pension, and that the case of the applicant/petitioner was also not covered by the proviso for relaxation of 10 years of qualifying service.
6. That before us, the petitioner contended that the order of the CAT is perverse and arbitrary as the same has been passed without considering the factual aspects of the controversy, without applying the law correctly while denying the pensionary benefit to the petitioner. He has submitted that the proceedings for promotion were initiated on 14/10/1991, when the notification was issued and the vacancies were notified, but it took the respondents four years' to issue the promotion order to the petitioner on 18/01/1995. The petitioner contends that had the promotion order been issued in time, he would have fulfilled the statutory requirement of rendering qualifying service of 10 years as required for the purpose of pension, and he has been denied the benefit, because his service fell short by few months. The counsel for the petitioner has vehemently contended that petitioner has rendered 42 years of service in the Department including 9 years and 14 days as regular employee on the post of Group "D". It has further been submitted that the services rendered by the petitioner as "Extra Departmental Agent" should be included while counting the qualifying service for grant of retiral benefits.
7. In support of his contention the counsel for the petitioner has relied upon the judgments in the case of Nanak Chand vs Union of India - Original Application No. 175-HP of 2008 (decided on 06/02/2009) by the Central Administrative Tribunal (Chandigarh), Mohd Shafiquzzaman vs State of Andhra Pradesh and others - Original Application No. 307 of 2007 with M.A. No. 449 of 2008 (decided on 18/03/2009) by the Central Administrative Tribunal (Hyderabad), Union of India And Others vs Lal Das - CWP No. 3641 of 2009 decided by the High Court of Himachal Pradesh on 04.11.2015, Union of India and Others vs P.Sevakan - Writ Petition No. 29896 of 2013 (decided on 06.12.2013) by Madras High Court and Union of India and others vs M. Arokiadass - Writ Petition No. 23638 of 2015 and two other connected matters (decided on 15.02.2016) decided by Madras High Court.
8. The learned counsel appearing for Union of India has submitted that the petitioner has completed only 9 years and 14 days of service, which is less than the minimum requirement for entitlement for pension which is 10 years. as such the petitioner is not entitled for pension. He is further submitted that the CAT has rightly rejected the claim of the petitioner as the same has no merit .
9. We have heard the counsel for the parties and perused the record.
10. The only ground on which the petitioner's claim for pension has been denied is the lack of qualifying service which is 10 years. The petitioner has completed only 9 years and 14 days as group "D" employee. The only controversy before us is as to whether the past services could be counted towards the qualifying period for the purposes of pension.
11. The contention of the writ petitioner is that as per rule 6 of the Gramin Dak Sevaks (Conduct and Employment) Rules, 2001, or Rule 4 of Extra Departmental Agents (Conduct and Service) Rules, 1964, Sevaks are not entitled to any pension as Extra Departmental Agents, as they serve only for 5 hours a day and not 8 hours a day. The payment of pensions to the Central Government Employees is governed by the CCS Rules, 1972 and the petitioner is governed by these rules from the date of the appointment as Group D employee in the Department and since the qualifying service is less than 10 years, they are not entitled to pensionary benefits.
12. Rule 88 of the CCS Rules, 1972 provides for relaxation, and benefit of the same can be given to the petitioner for dispensing or relaxing the requirement of the rider of minimum period of qualifying service for pension. Rule 88 of CCS Rules, 1972, applies when the Government is satisfied that operation of any of these rules, causes undue hardship in any particular case of the Ministry or Department, as the case may be, may, by order, for reasons to be recorded in writing, dispense with or relax the requirement prescribed under the Rule, to such an extent, subject to such exceptions and conditions, as it may consider necessary in a case, in a just and equitable manner.
13. We are of the considered opinion that the petitioner who had served the Department for more than 4 decades, is being wrongly denied the benefit of pension only because his qualifying service fell short by 11 months. The benefit of relaxation in the qualifying service period can be granted to him by invoking the provisions contained in Rule 88 of the CCS Rules, 1972.
14. In the case of Union of India & Others Vs The Registrar & Another, in Civil Appeal nos. 13675- 13676 of 2015, decided on 24/11/15 by the Apex Court, the respondent no.2 therein had worked as Extra Departmental Agent in the Postal Department from 1968 to 1993. He was regularised on 01/04/1993 and retired on 31/05/2002, thereby completing only 9 years and 2 months of service, was not granted pension. During the pendency of the appeal of Union of India, the Tribunal passed orders granting regular pension to the respondent no.2. The Supreme Court while allowing the appeal in favour of the Union of India, provided that the pension granted to respondent no.2 will not be affected by the order, and the said respondent will continue to enjoy the pensionary benefits in accordance with the provisions of law.
15. We have gone through the judgements cited by the petitioner wherein persons rendering less than 10 years of qualifying service, have been granted pension by the orders of the CAT, as well as various High Courts. In the case in hand the petitioner is entitled for parity with such persons as we are satisfied that he is similarly placed. We have considered the fact that similarly situated person before the Hon'ble Supreme Court who had rendered nine-year and 2 months of service was also granted pension, and the order of the Union of India was upheld by the Apex Court. We, therefore, have no hesitation to hold that the petitioner who has rendered 9 years and 14 days of service would also be entitled to pension.
16. In the light of discussions made hereinabove the writ petition is allowed.
17. The order of the tribunal dated 03/02/2006, passed in Original Application No. 411 of 2004, is hereby set aside. The order dated 05/08/2004, passed by the Superintendent Post Office, Bahraich is quashed. The petitioner will be entitled to pension alongwith interest at the rate of 9% per annum on the arrears of pension, from the date of his retirement, in accordance with law, and the respondents are directed to comply with this order within a period of 4 months from today.
Order Date :- 23.01.2019 A. Verma