(Order of the Court was delivered by T.S.SIVAGNANAM, J.) This writ petition has been filed challenging the order passed by the Central Administrative Tribunal, Madras Bench in O.A.No.526 of 2013 dated 18.12.2015. The said original application was filed in assailing the correctness of the order dated 29.06.2011 passed by the first respondent.
2.Heard Ms.Porkodikarnan, learned counsel appearing for the petitioner and Mr.R.Murugappan, learned senior panel counsel for the Central Government.
3.The petitioner's case is that he was appointed as a Extra Departmental Packer (ED Packer) by the respondent in 19.11.1973 and served up to 12.10.1982 for a period of 9 years. Subsequently, he was posted as Extra Departmental Branch Post Master (EDBPM) on 13.10.1982 and continued to serve in the said post till 11.11.2001, for a period of 19 years. Therefore, the petitioner would state that he worked as Extra Departmental staff of the Postal Department for a period of 27 years, 11 months and 13 days. Thereafter, he was absorbed in Group-D post (temporary appointment) and posted as NTC Chowkidhar-cum-sweeper at postal dispensary, Tirunelveli from 12.11.2001 to 10.10.2002. He served the said post for a period of 10 months and 28 days and he was given regular appointment as Postal Assistant at Tirunelveli on 11.10.2002 and served in the said post till 20.07.2007. Subsequently, the petitioner was posted as Postal Assistant at Kulasekaram and worked there from 21.07.2007 to 31.03.2011, and retired from service on 31.03.2011 while working as Postal Assistant at Thisayanvilai.
4.The petitioner would further state that he has rendered 27 years, 11 months and 13 days service as Extra Departmental staff and 10 months, 28 days service as temporary staff and 8 years 5 months and 20 days service as departmental staff. Therefore, the petitioner would state that his service in Group-D cadre, if taken cumulatively, would be 9 years 4 months and 18 days. The reason for raising such contention is on account of the fact that the petitioner to be eligible for grant of pension in terms of Rule 49 of the CCS (Pension Rules) ought to have completed 10 years of service. Thus, according to the petitioner he have completed 9 years 4 months and 18 days of service and if the service rendered by him in the Extra Departmental category is reckoned, he would be entitled for grant of pension.
5.The respondent contented that the department resisted the original application of the petitioner stating that the system of engaging Extra Departmental agents is exclusive to the department and the sevaks so engaged are not required to perform duty more than five hours in a day and they are permitted to retain up to 65 years of age as against 60 years of age for a regular Government servant. The respondent further contended that EDA / GDS are distinct categories by themselves and it is governed by non-statutory rule framed by the Government from time to time. Further, rule 6 of the GDS (Conduct and Engagement) Rules, 2011, specifically states that the sevaks shall not be entitled to any pension. Therefore, it was contended that as on the date of retirement, the petitioner has put in 8 years 5 months and 19 days of service and has not achieved the minimum qualifying service of 10 years and therefore, the petitioner cannot claim pension.
6.The Tribunal, after taking note of the above submission made by either side, virutally by a single line order, held that there is no flaw in the order passed by the respondent (impugned in O.A.No.526 of 2013) warranting interference of the Tribunal. Thus, at the first instance, we shall point out that the impugned order is a non-speaking order. Though, the impugned order contains five paras, the rejection of the application is only one line.
7.Be that as it may, we are required to consider as to whether the petitioner is justified in seeking the relief as prayed for in the original application. We are guided by an order passed by the Division Bench of this Court in the case of K.Thangasamy Vs. The Post Master General in W.P.(MD)No.26212 of 2011 dated 06.09.2012. The facts and circumstances of the said case were somewhat identical, except that in the said case, the petitioner had worked for 9 years and 30 days. The Court, after considering an earlier order passed in an identical issue, disposed of the petition by issuing certain directions. At this stage, it is beneficial to extract the relevant paragraphs of the above mentioned order.
5.When the writ petition came up for consideration, it is submitted that in similar circumstances, this Court, after following the identical issue decided in W.P.No.45465 of 2002, dated 04.10.2007, extended the benefit to the employee, as per judgment, dated 18.10.2011, in W.P.No.6764 of 2011, wherein it has been held as follows:-
?While considering the same provision of law in similar set of facts, the Central Administrative Tribunal has passed an order in O.A.No.1264 of 2001 dated 18.04.2002 whereby and whereunder a direction was given to the respondents therein to consider the case of the applicant in a proper prospective and formulate a scheme by giving weightage for certain percentage for service rendered as an ED agent for reckoning the same as a qualifying service for the purpose of pension in respect of those persons who were absorbed or promoted against regular Gr.D posts in the Department, which would enable such employees to get minimum pension. Against the said order, a Writ Petition in W.P.No.45465 of 2002 was filed and the same was dismissed on 04.10.2007. The matter went up to the Hon'ble Supreme Court. The Supreme Court as per order dated 17.10.2008 in S.L.P.No.13829 of 2008, dismissed the Special Leave Petition. Pursuant to the same, the Department, as per order dated 09.10.2009, implemented the directions given by the Tribunal?
6.Further, we have considered the similar issue in number f cases, and hence, we consider it appropriate that the deficiency in completing 10 years period may be accepted as 10 years of service.
7.For the foregoing reasons, we dispose of the Writ Petition with a direction to the respondents 1 and 2 to calculate the service of 9 years and 13 days rendered by the petitioner as 10 years of service to arrive at the qualifying service and to grant pensionary benefits to him within a period of four weeks from the date of receipt of a copy of this order.?
8.Further more, it has been brought to our notice that the Central Administrative Tribunal in O.A.No.255 of 2008 dated 13.04.2009 has considered a similar case of a GD Packer, in which, there is also a reference to an order passed by this Court in W.P.No.45465 of 2002 dated 04.10.2007. The operative portion of the order reads as follows:
?5.The issues raised in this O.A. are similar to the issues raised in O.A.No.1264/2001. It is pertinent to quote the findings of this Tribunal in its order dated 18.04.2002, which is as under:
?Here, we would like to invite a reference to the OM dated 12.04.1991 issued by the DOPT with regard to regularization of casual labourers are concerned. In the said scheme, there is a clause stating that 50% of the service rendered as temporary status employee will be reckoned as a qualifying service for regulating the retiral benefits, after regularization against Gr. D posts. This provision is on similar lines prevailing in the Railways an other Govt. of India departments. In a nutshell, the essence is that even in respect of casual labourers who got regularized at a subsequent dated against regular Gr. D posts, a portion of their service rendered with temporary status is reckoned as qualifying service for regulating the retiral benefits.
The following observations of the Tribunal is also pertinent and hence is quoted below:
?The above point will have to be seen in the light of the fact that on regularization as Gr. D employee, the age of superannuation of the employee gets reduced from 65 years to 60 years. Surely, this amounts to a reduction in the superannuation age and deserves to be adequately compensated. Thus, it could appear that on promotion to the Gr. D cadre, the ED employee does not gain and on the contrary he seems to be more on the losing side. We, therefore, hold that this position has to be adequately corrected by reckoning a portion of the service rendered as an EDA as a qualifying service for the pensionary purposes.
We would like to observe that this need not be 50% of the service as in the case of a casual labourer with temporary status, but perhaps a lesser percentage may be reckoned as qualifying service in respect of the service rendered as as ED Agent. This can be any where around 20 to 25%. But, to say that no weightage will be given to the service rendered as as ED Agent, even after regularization on absorption or, promotion as Gr. D employee, will not be in harmony with other schemes obtaining in other departments of the Govt. principles of equity and fair play require that certain portion of the service rendered as an EDA should be reckoned as a qualifying service for pension purposes and if that is done, persons like the applicant would get over the shortfall and it will entitle them for at least minimum pension, especially when similar benefits are extended to persons working in Railways and other departments of the Govt. of India. In short, it would appear that after regularization, the ED Agent does not get the same treatment as in the case of a casual labourer. This is an anomalous situation. We, therefore, hold that this is a fit case where the respondents as a model employer should apply their mind and formulate a welfare scheme as has been formulated by the DOPT and Railways which would help many persons like the applicant to get at least the minimum pension.?
While allowing this O.A., the Tribunal also gave the following directions to the respondents:
?The first respondent is directed to consider the case of the applicant in a proper perspective and formulate a scheme as has been formulated by the DOPT in their scheme issued in the OM of 12.04.1991 as also in the Railways, by giving weightage for certain percentage of service rendered as on ED Agent for reckoning the same as a qualifying service for purposes of pension in respect of persons who get absorbed or promoted against regular Gr. D posts in the department which would enable such employees to get the minimum pension. This exercise shall be completed within four months of receipt of a copy of this order by the respondents.
We are directing the Registry to sent a copy of this order direct to the first respondent in view of the importance involved in this case and for expediting action thereon.
The O.A. is allowed to the extent indicated above with no orders as to costs?.
6.It is clear from the submissions that in spite of the above direction, no steps have been taken by the Department to formulate any such scheme. The respondents have filed a Writ Petition against the orders of this Tribunal before the Hon'ble High Court of Madras in W.P.No.45465 of 2002. The Hon'ble High Court has passed the following orders:
?We are of the view that once the rule making authority has considered it appropriate to treat fraction of a year equal one half year while calculating the length of qualifying service, considering the total length of service put in by the first respondent, we are of the view that it is nothing serious if the first respondent's service, which is short of just three months is treated as a qualifying twenty half-year service, so as to extend the pro-rate pensionary benefits to him which has been correctly assessed by the Tribunal in the order dated 18.04.2002. In O.A.No.1264 of 2001 filed by the first respondent. Therefore, we see no reason to interfere with the said considered order passed by the Tribunal. Accordingly, it is confirmed and the writ petition is dismissed. However, it is made clear that the relief granted in this Writ Petition is confined only to the case of the first respondent, which should not be treated as a precedent for others to follow. Consequently, the connected MP is also closed. No costs.?
7.The applicant in the present O.A is almost similarly placed as the applicant in that O.A. In that case, the applicant/EDA later promoted as Postman had put in only 9 years, 3 months and 29 days of service as Postman and in the present case also the applicant, who is an EDA has put in only 9 years 1 month and 8 days as Postman. It is evident that both have not put in the required qualifying service of 10 years to make them eligible for pension as per Rule 49.1 of CCS (Pension) Rules, 1972.
8.Since the applicant in this case is similarly place as the applicant in the above case, it is held that he is entitled for the same benefit as that extended to the applicant in the above case. The O.A. is allowed to this extent. No order as to costs.?
9.In the light of the above referred decision and more particularly, the decisions of the Division Bench which were referred supra against one of such orders, the appeal filed before the Hon'ble Supreme Court was also dismissed by order dated 09.10.2009.
10.Therefore, we are convinced that the petitioner is entitled for a similar relief. Accordingly, the Writ Petition is allowed. The order passed by the Central Administrative Tribunal is set aside and the respondents are directed to consider the petitioner by including the service rendered by him in ED service and reckon the same as 10 years, so as to arrive at the qualifying service for being eligible for pension. The said exercise shall be complied with within a period of eight weeks from the date of receipt of a copy of this order. No costs.
To
1.The Superintendent of Post, Department of Posts India, Tirunelveli District, Tirunelveli.
2.The Post Master General, Southern Region, Tamilnadu, Madurai.
3.The Secretary, The Union of India, Department of Posts, Daag Bhavan, New Delhi-1.
4.The Central Administrative Tribunal, Represented by its Members, Chennai..