Karnataka High Court

The Union Of India vs H. Venkateshappa on 10 September, 2024

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                                                      WP No. 48097 of 2019




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 10TH DAY OF SEPTEMBER, 2024

                                         PRESENT
                        THE HON'BLE MR JUSTICE V KAMESWAR RAO
                                              AND
                          THE HON'BLE MR JUSTICE RAJESH RAI K
                        WRIT PETITION NO. 48097 OF 2019 (S-CAT)
                BETWEEN:

                1.    THE UNION OF INDIA,
                      REPRESENTED BY ITS SECRETARY,
                      DEPARTMENT OF POST,
                      DAK BHAVAN,
                      NEW DELHI - 110 001.
                2.    CHIEF POSTMASTER GENERAL,
                      KARNATAKA CIRCLE,
                      BENGALURU - 560 001.

                3.    CHIEF POST MASTER,
                      BENGALURU GPO,
                      BANG ALURU - 560 001.
                                                             ...PETITIONERS
Digitally       (BY SMT. SHUBHA S., CGC)
signed by K G
RENUKAMBA
                AND:
Location:
High Court of
Karnataka       1.    H. VENKATESHAPPA,
                      AGED ABOUT 49 YEARS,
                      S/O HANUMAPPA,
                      WORKING AS GROUP-"D",
                      BENGALURU GPO,
                      R/AT : NO.6/1, 2ND CROSS,
                      GANESHA BLOCK, R.T. NAGAR,
                      BENGALURU - 560 032.

                2.    SMT. THANUJA.R.,
                      AGED ABOUT 40 YEARS,
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                                        WP No. 48097 of 2019




    W/O SUBRAMANYA H.R.,
    WORKING AS POSTAL ASSISTANT,
    BENGALURU GPO,
    R/AT: K.MALLASANDRA,
    NANDAVATHI POST,
    HOSAKOTE TLAUK,
    BENGALURU - 560 067.
                                               ...RESPONDENTS
(R1 & R2 ARE SERVED AND UNREPRESENTED)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER    DTD.25.10.2018     ANNEXURE-A      PASSED    BY    THE
CENTRAL ADMINISTRATIVE TRIBUNAL BENGALURU BENCH,
BENGALURU IN O.A.NO.170/00409/2017, ETC.

     THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:

CORAM:    HON'BLE MR JUSTICE V KAMESWAR RAO
          and
          HON'BLE MR JUSTICE RAJESH RAI K


                        ORAL ORDER

(PER: HON'BLE MR JUSTICE V KAMESWAR RAO)

None for the respondents.

This petition has been filed by the petitioners-Union of

India and its functionaries challenging the order of the Central

Administrative Tribunal (for short 'Tribunal') dated 25.10.2018

in O.A.No.170/00409/2017, whereby the Tribunal has allowed

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the OA filed by the respondents herein by stating in paragraph

No.9 as under:

"9. At this point of time one more submission is made by the respondents counsel that the Fundamental Rules are not applicable to them except for the effect of Article 311 which has been brought into force through judicial compulsion. If Article 309, 310 and 311 are applicable to a set of employees, then we cannot really understand why FR is not applicable but then we understand the difficulties of the department also. It serves even the remotest points of the nation of India. The volume of business at such place may not be conducive and compulsive enough to post a regular employee there as then the burden will be cumbersome, therefore, from the earliest point of time a methodology had been found to have extra departmental persons to man such posts. It is to be noted that all these people are totally under the administrative control of the department and their duty hours, even though specific for the purpose of grant of wages, naturally and normally it spills over and even though there is a stipulation that they can engage in other private employments also practically this must be difficult in terms of the workload of each station which had been manipulated and formulated in such a way as to obtain maximum benefit for the department. That being so, even though theoretically it may be said that these people are eligible for outside employment

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also, till all these time no such factum has been brought to our notice. Even after 10 years of examination of these things, this has not been a ground raised by the department in any of the cases relating to GDS ranging from 2009 till date. Therefore this argument will not hold water. Even assuming that department had permitted them to obtain outside employment also, after having obtained total loyalty and total sincerity to the department and having subjected them to a competitively assessment operation the department cannot turn over and say that there is a possibility that these people may have obtained an outside employment also. This outside employment in the nature of the agreement entered into between them and the department is to the effect they can be agriculturists or they can be small time businessman. The respondents counsel would say that teachers were also engaged in the earlier times but not now. But assuming that they were also teachers they had also enure to the challenges of the department as they were paid pittances terms of the work done by them. The department cannot have both ways. We understand that because of the huge volume of business they conduct and the remoteness of the places where they operate it may not be commercially viable to have regular employees at those places but at least pittances of benefits must visit these unfortunate people as since the Hon'ble Apex Court have clearly held that these people are also part of governance system then the DoPT circular relating to continuance of service must

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operate in favour of the applicants also. It is once again declared that applicants are eligible for the Old Pension Scheme since their service will date back from the date of their appointment as GDS and not on the selected/promoted date to the post of Postman which is later on."

2. Learned counsel appearing for the petitioners has

drawn our attention to the order dated 16.08.2021 passed by

the Co-ordinate Bench of this Court in W.P.No.3494/2021 (S-

CAT), wherein according to her, an identical issue inasmuch as

whether the Gramin Dak Sevak working in the Postal

Department shall be entitled to the benefit of the old pension

scheme with effect from the date of appointment as Gramin

Dak Sevak was decided.

3. She states that, the said petition was filed by the

Union of India, which petition has been allowed and the order

of the Tribunal has been set-aside by following the judgment of

the Hon'ble Supreme Court in the case of Union of India and

others vs Gandiba Behera in SLP Civil Appeal

No.8497/2019 arising out of SLP (C) No.13042/2014

dated 08.11.2019 and connected matters. The Co-

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ordinate Bench of this Court in paragraph No.5 has stated as

under:

"5. We have perused the impugned order passed by the Tribunal and also the order passed by a Co- ordinate Bench of this Court dated 23/03/2021 in W.P.No.32123/2019 and we find that the aforesaid order is squarely applicable to the present case also having regard to the judgment of the Hon'ble Supreme court in the case of Gandiba Behera referred to above. For the purpose of immediate reference, we extract the order of the Co-ordinate Bench of this Court referred to above as under:

"ORDER

None for respondents despite service of notice.

2. The present petition is arising out of the order dated 25.10.2018 passed in O.A. No.170/01019/2016 by which the Central Administrative Tribunal, Bengaluru Bench has directed the petitioners - Union of India to take into account the services rendered by the respondent prior to his appointment as Group-D employee and to grant the benefit of old pension Scheme.

3. Learned counsel for the petitioners has drawn the attention of this Court to the judgment delivered by the Apex Court on 08.11.2019 in Civil Appeal No.8497/2019 (arising out of SLP (C) No.13042/2014) between Union of India & Ors., and Gandiba Behera

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and connected matters. Her contention is that the issue is no longer res integra.

4.Paragraphs 20 to 23 of the aforesaid judgment read as under:

"20. For the reasons we have already discussed, we are of the opinion that the judgments under appeal cannot be sustained. There is no provision under the law on the basis of which any period of the services rendered by the respondents in the capacity of GDS could be added to their regular tenure in the postal department for the purpose of fulfilling the period of qualifying service on the question of grant of pension.

21. We are also of the opinion that the authorities ought to consider their cases for exercising the power to relax the mandatory requirement of qualifying service under the 1972 Rules if they find the conditions contained in Rule 88 stand fulfilled in any of these cases. We do not accept the stand of the appellants that just because that exercise would be prolonged, recourse to Rule 88 ought not to be taken. The said Rules is not number specific, and if undue hardship is caused to a large number of employees, all of their cases ought to be considered. If in the cases of any of the respondents' pension order has already been issued, the same shall not be disturbed, as has been directed in the cases of Union of India & Ors. V Registrar & Anr. (supra). We, accordingly allow these appeals and set aside the judgments under appeal, subject to the following conditions:-

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(i) In the event the Central Government or the postal department has already issued any order for pension to any of the respondents, then such pension should not be disturbed. In issuing this direction, we are following the course which was directed to be adopted by this Court in the case of Union of India & Ors. v. Registrar & Anr. (supra).

(ii) In respect of the other respondents, who have not been issued any order for pension, the concerned ministry may consider as to whether the minimum qualifying service Rule can be relaxed in their cases in terms of Rule 88 of the 1972 Rules.

22. Interim orders passed in these appeals, if any, shall stand dissolved. All connected applications shall stand disposed of.

23. There shall be no order as to costs."

5. The Apex Court, in the aforesaid case, has held that there is no provision under the law on the basis of which any period of services rendered by the respondents in the capacity of GDS could be added to their regular tenure in the postal department for the purpose of fulfilling the period of qualifying service on the question of grant of pension, meaning thereby, the services prior to their becoming regular Class IV employees of the postal department cannot be taken into account.

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6. In the light of the aforesaid law laid down by the Hon'ble Apex Court, the order dated 25.10.2018 passed in OA.No.170/01019/2016 is hereby quashed.

Writ petition is allowed accordingly.

No order as to costs."

4. In view of the law laid down by the Hon'ble

Supreme Court, as followed by the Co-ordinate Bench of this

Court, we set aside the judgment passed by the Central

Administrative Tribunal in O.A.No.170/00409/2017 dated

25.10.2018. Accordingly, the Writ Petition is allowed.

5. No costs.

Sd/-

(V KAMESWAR RAO) JUDGE

Sd/-

(RAJESH RAI K) JUDGE