(Order of the Court was made by HULUVADI G.RAMESH, J.) The 1st respondent in this case was initially appointed as Time Scale Postal Assistant on deputation to Army Postal Service Centre with effect from 19.09.1981. Later, the date of appointment has been changed as 01.09.1981 instead of 19.09.1981. The case of the 1st respondent/applicant before CAT is that he had completed 26 years of service in Postal Assistant Cadre as on 01.09.2007 and he is, therefore, entitled for financial upgradation under BCR scheme on the crucial date as on 01.01.2007.
2. The Petitioners would contend that the applicant entered into the Department as Group D Staff on 25.02.1976, he was promoted to the cadre of Postal Assistant w.e.f., 01.09.1981, completed 16 years of service on 01.09.1997. He was considered for financial upgradation under TBOP Scheme from 01.01.1999, since, he was under currency of punishment in view of pending Departmental disciplinary case and further his 26 years of service was completed only on 27.09.2007.
3. The other contention raised on behalf of the Petitioners/Department is that the 1st respondent was not given promotion as the conduct of the said individual was under investigation from the year 2003 as he has committed fraud on the OAP Money Order Payment while he worked as SPM of Veppur SO and was issued with Rule 14 Charge sheet in continuation of investigation on 31.03.2008. It is further submitted that though no charge sheet is pending against the official on the date he is due for promotion, his conduct is under investigation with effect from 2003 as he has committed fraud in payment of Old Age Pension Money Order while he worked as SPM, and the fact that he has committed fraud is accepted by himself in his written statement dated 03.07.2003. Thereafter, inquiry commenced and since the fraud is committed in old age pension money order, it took time to collect the details of money orders, paid vouchers etc and thereafter, to issue charge sheet.
4. Considering the gravity of proven charges, the third petitioner herein-Superintendent of Post Offices, Srirangam, in F/III/4/03-04 dated 26.02.2010 imposed penalty of removal from service. Challenging the said order dated 26.02.2010, the 1st respondent herein filed an appeal in Memo No.STC/3-18/2010 dated 03.09.2010. The Director of Postal Services/2nd respondent herein/Appellate Authority, execrcising the powers conferred under Rule 27 of CCS(CCA) Rules, 1965, modified the punishment of removal from service to that of cumpolsory retirement.
5. The 1st respondent moved Central Administrative Tribunal seeking direction to the respondents to grant BCR benefit since he has completed 26 years of service as on 01.01.2007 and the consequential service benefits.
6. The Central Administrative Tribunal, by its order dated 22.06.2016, pointed out that the issue has been dealt by Tribunal in various OAs wherein it has been held that once an employee completes 26 years of satisfactory service, he has to be granted BCR scheme benefit from the date of completion of such 26 years and accordingly, directed the respondents to grant BCR benefit on the day the applicant/1st respondent herein completed 26 years of service as on 01.01.2007 and consequently pay the arrears of pay and allowances to the applicant and to revise and re-fix the retirement service benefits including pension and pay the arrears of pension etc., to the applicant. Challenging the said order, the Department/Petitioners are before this court.
7. The learned counsel appearing for the 1st respondent relied upon the order of this court passed in W.P.No.4934 of 2017 dated 28.02.2017, to contend that in similar circumstances, the applicant who completed 26 years of service cannot be viewed different from that of other similarly placed persons and a Division Bench of this court, following the order passed by the Tribunal, which was also confirmed by this Court, dismissed the Writ Petition filed by the Department.
8. However, according to the learned counsel appearing for the Union of India/Petitioners submits that the case on hand is entirely on different aspect and the 1st respondent herein found to have committed misconduct and for the proven charges, he was imposed punishment of removal from service.
9. In our view, the order of the Central Administrative Tribunal appears to be little lenient in this regard. When 1st respondent was found that he has committed misappropriation of Rs.17,800/- regarding old age pension money orders, it is a serious misconduct and a matter of embezzlement and in such circumstances, directing the department to grant BCR benefit on the ground that he had completed 26 years of service, is not appropriate. The misappropriation committed by the 1st respondent is during the period 2002-2003 and as such the order passed by the 2nd repsondent-Tribunal is not appropriate. Accordingly, the order dated 22.07.2016 passed in O.A./310/00495/2015 on the file of Central Administrative Tribunal is quashed. The Writ Appeal stands allowed. No costs. Consequently, connected WMP is closed.
such he became eligible for grant of financial up-gradation under BCR scheme only w.e.f., 01.01.2008 and hence his case was not recommended for grant of Postal Assistant. It appears that he committed misconduct in non-paying old age pension not paid money order. Having found the charges are proved, he was removed from service, against which, the 1st respondent filed O.A.No.310/00495/2015 before the Central Administrative Tribunal, Madras Bench. The first respondent also retired from service. In the appeal before the Department, modified to compulsory retirement, as against which, the CAT ordered for grant of DCRG benefits. Challenging this, the appeal filed by the Department.
The learned counsel appearing for the....relied upon the order of this court passed in W.P.No.26696 of 2012 ...dated...18...to contend that in the similar circumstances, he having completed 16 years of service is entitled for financial upgradation under TOP scheme. However, according to the learned counsel appearing for the Union i.e., different aspect, in that case, misconduct altogether is committed from the case on hand. The order of the CAT appears to be little lenient in this regard. When he was found that he has committed misappropriation for 89 more...old age pension....it is serious misconduct ..matter of embezzlement ordering for financial upgradation scheme is not appropriate..CAT on the ground ..26 years...order of CAT is set aside. Writ Petition is allowed.
1st respondent in both the Writ Appeals/Writ Petitioner, who was appointed as Part Time Clerk of Thethigiripatti Panchayat, reported to duty on 19.07.2006 on which date the order of appointment was issued to him. The Inspector of Panchayats Cum District Collector, Salem District, (2nd appellant in W.A.16/2014, 3rd respondent in W.A.1674 of 2014) issued show cause notice dated 26.08.2006 to the President, Thethigiripatty villae Panchayat (2nd respondent in W.A.16/2014; Appellant in W.A.1674/2014) asking him to show cause as to why the resolution dated 13.07.2006 shall not be cancelled on the ground that the said resolution appointing the 1st respondent/Writ Petitioner, is contrary to the relevant Government orders issued prescribing the age limit for the post in question. The Inspector of Panchayats cum District Collector, without consulting the Rural Develpment Department, unilaterally cancelled the resolution by order dated 27.11.2006 and inspite of the request by the petitioner in this regard, the said Authority has not furnished a copy of the said order, and challenging the same, the Writ Petitioner has filed W.P.No.5522 of 2007.
2. In the writ petition, the prayer of the Writ Petitioner is for issuance of Writ of Certiorari calling for the records of the second respondent in Na.Ka.No.5751/2006/A5, dated 27.11.2006 and quash the same. At the time of admission, by order dated 16.02.2007, in M.P.No.1 of 2007 in W.P.No.5522 of 2007, this court passed the following order:-
"The petitioner, as on today is working pursuant to the resolution dated 13.07.2006 and his status shall not be disturbed until further orders."
3. The learned Single Judge, after going through the entire records and the submission made on behalf of learned Special Government Pleader appearing for the third respondent in the Writ Petition No.5522 of 2007, viz., The President, Thethigiripatti Village Panchayat, allowed the Writ Petition and thereby set aside the impugned order of the second respondent in Na.Ka.No.5751/2006/A5, dated 27.11.2006, by order dated 12.11.2013. Challenging the correctness of the said order, the 3rd respondent in W.P., The President, Thethigiripatti Village Panchayat filed W.A.No.1674 of 2014 and the 1st and 2nd respondents in the Writ Petition viz., The Secretary, Rural Development, and the Inspector of Panchayats cum District Collector, Salem District, filed W.A.No.16 of 2014.
4. Today, after hearing the contentions raised on both sides, both the Writ Appeals are taken up together and disposed of by a common order.
5. The learned Special Government Pleader appearing for the appellants in W.A.No.16 of 2014 submits that the Inspector of Panchayats cum District Collector, Salem District, called for explanation from the concerned Panchayat as regards the guidelines not followed by them in respect of appointment of the Writ Petitioner/1st respondent. He further submits that G.O.Ms.No.98 dated 17.07.2006 relaxing five years age for the Government appointment is not applicable to the Petitioner case, because the appointment order was issued on 13.07.2006 that is earlier to G.O.Ms.No.98 dated 17.07.2006. The appointment of the Writ Petitioner as Part-time Clerk who was 35 years old at the time of appointment, could not be done as the age limit of 33 years has been fixed for the Backward community and that the petitioner was over aged on the date of his appointment.
6. The learned counsel for the appellant in W.A.No.1674 of 2014 also raised similar contentions as raised by appellants in W.A.No.16 of 2014 and further drawn our attention to the Additional counter affidavit filed by the President, Thethigiripatti Village Panchayat in W.P.No.5522 of 2007, wherein, it has been averred that one Chinnathambi was holding the additional charge of the Panchayat Clerk till 30.07.2011. After 01.08.2011, the incharge clerk Saravanan is holding the post. Thereafter, one S.Ravikumar was appointed on 28.11.2011 and the said Ravikumar continued to work as Panchayat Clerk in the regular vacant place. It is also submitted that the appointment of the Writ Petitioner as Part-time Clerk had been done without proper advertisement and inviting application and no list called for from employment exchange.
7. The learned counsel appearing for the 1st respondent/Writ Petitioner, would submit that the appointment given to the Writ Petitioner is only Part-time employment and further in the Panchayat meeting held on 13.07.2006, it unanimously accepted the resolution of the Appointment Committee dated 25.05.2006 to appoint the Writ Petitioner as a Part-time clerk and thereafter, the Writ Petitioner reported to duty on 19.07.2006. He further submits that the respondents in the Writ Petition/appellants herein, disobeyed the order of this court and in this connection, Contempt Petition has been filed, however, the appellants herein, without complying with the order of this court, filed the above Writ Appeals.
8. We have heard learned counsel appearing for both sides and perused the records carefully.
9. In the interest of justice, on the narrow compass of the relief sought for in the present Writ Appeals, the issue to be addressed herein is as to whether the Writ Petitioner was overaged on the date of his application to the post of Part-time clerk in the Panchayat ?
10. On going through the detailed order of the learned Single Judge, it is seen that by discussing the various dates and events in the matter of appointment of the Writ petitioner, the relief sought for by him was granted and the impugned order dated 27.11.2006 was set aside. However, in view of the factual matrix discussed in the present Writ Appeals, the appellants are directed to ascertain as to whether any vacancy has arisen subsequently and whether the Writ Petitioner/1st respondent herein could be accommodated in such vacancy in the light of subsequent G.O., if any, issued by the Government and the guidelines issued by the Panchayat. In that view of the matter, we are inclined to remand the matter back to the learned Single Judge to consider the issue in the light of the observation made in the preceding paragraphs. In the mean while, the appellants are also directed to determine whether the post of Part-time clerk is vacant in Panchayat and report the same before the learned Single Judge.
In fine, the order of the learned Single Judge dated 12.11.2013 needs modification. Accordingly, we set aside the order passed by the learned Single Judge, in W.P.No.5522 of 2007 and remand the same for de novo consideration. The learned Single Judge is requested to consider and pass necessary orders and further requested to expedite the matter, preferably, within three months. With the above observation, these Writ Appeals are disposed of. No costs. Consequently connected miscellaneous petitions are closed.
1.The Government of Tamil Nadu Rep. By its Secretary Rural Development Chennai-9
2.The Inspector of Panchayats Cum District Collector Office of the District Collectorate Salem District
3.The President Thethigiripatty Village Panchayat Thethigiripatty Village Mettur Taluk, Salem District HULUVADI G.RAMESH,J.
and RMT. TEEKAA RAMAN,J.
nvsri Writ Appeal Nos.16 of 2014 and 1674 of 2014 24.11.2017