Madras High Court

Union Of India vs S.Sekar on 22 November, 2023

Author: D.Krishnakumar

Bench: D.Krishnakumar

                                                                        W.P.No.5013 of 2018

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 22.11.2023

                                                        CORAM :

                                  THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
                                                           and
                                    THE HONOURABLE MR.JUSTICE P. DHANABAL
                                                  W.P.No.5013 of 2018
                                                 WMP No.6912 of 2018
                     1. Union of India, rep. by its Secretary,
                        Department of Posts,
                        Ministry of Communication & IT,
                        Dak Bhavan, Sansad Marg,
                        New Delhi 110 001.

                     2. The Chief Post Master General,
                        Tamil Nadu Circle, Anna Salai,
                        Chennai 600 002.

                     3. Post Master General, Central Region (TN),
                        Tiruchirapalli 620 001.

                     4. Senior Superintendent of Post Offices,
                        Thanjavur Division, Thanjavur 613 001.

                     5. Assistant Superintendent of Post Offices,
                        Thanjavur South Sub Division,
                        Thanjavur 613 001.

                     6. Assistant Superintendent of Post Offices,
                        Thanjavur North Sub Division,
                        Thanjavur 613 001.                               ... Petitioners

                     Page 1 of 12


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                                                                                         W.P.No.5013 of 2018

                                                               Vs.

                     1. S.Sekar

                     2. The Registrar, Central Administrative Tribunal,
                        High Court, Madras 104.                                     ... Respondents

                     Prayer: Writ petition filed under Article 226 of Constitution of India to issue
                     a writ of certiorari to call for the records in O.A.310/01351/2014, dated
                     31.03.2017 on the file of the second respondent and quash the same in so
                     far it is against the petitioners.


                                  For petitioners     : Mr.AR.L.Sundaresan
                                                       for Assistant Solicitor General
                                  For Respondents     : Mr.R.Malaichamy for first respondent
                                                        R2 - Tribunal


                                                             ORDER

(Order of the Court was delivered by D.KRISHNAKUMAR, J.)

This writ petition has been filed, as against the order passed by the

Tribunal in O.A.No.310/0135/2014, dated 31.03.2017, in and by which, the

petitioners herein were directed to process the pension case of the first

respondent under old pension scheme under CCS (Pension) Rules, 1972,

counting his service from the date of the vacancy in 2003, when he would

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have joined in Group D, but for the delay on the part of the respondent,

within two months from the date of receipt of a copy of the oder.

2. The brief facts leading to the filing of the writ petition is as follows.

The first respondent herein was initially appointed as an Extra

Departmental Branch post Master (EDBPM), Poomal Rowtherkoil Street

Branch, Thanjavur on 28.02.1974. Subsequently, he was appointed as

Group D (MTS) on 9.6.2005 and then selected as Postman on 18.12.2008,

thereafter, retired from service on superannuation on 31.5.2013. According

to him, he had served as GDS (EDA) for 31 years and 4 months from

28.2.1974 to 8.6.2005 and as Group D (MTS) for 3 years and 6 months

from 9.6.2005 to 17.12.2008 and as postman for 4 years and 5 months from

18.12.2008 to 31.05.2013, totalling 39 years and three months. Therefore,

his name ought to have been brought under old pension scheme under CCS

(Pension) Rules, 1972, but his name was included in the new pension

scheme, which is applicable only for the employees appointed from

1.1.2004. Therefore, he filed the original application before the Tribunal,

which was came to be allowed. Against which, the present writ petition has

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been filed by the Department.

3. Mr.AR.L.Sundaresan, learned Assistant Solicitor General

appearing for the petitioners submitted that, the first respondent had joined

as Group-D employee only on 09.06.2005, before that, he was working as

GDS, which is outside civil service of the Union. He further submitted that,

as per Old Pension System and Central Civil Service (CCS) Pension Rules,

1972, the employees, who recruited after 01.01.2004 are not eligible for

grant of monthly pension. As such, since the petitioner was appointed in

regular service only on 09.06.2005 as Group D, i.e., after 01.01.2004 and

also not completed the qualifying service of 9 years, 9 months, as per the

decision of the Board of Postal Department, he is not entitled for old

pension.

4. The learned Assistant Solicitor General has also brought to the

notice of this court that, in a similar matter in W.P.No.1485/2014, this

Court, vide order dated 15.11.2023, has allowed the writ petition filed by the

Union of India, Postal Department and hence, on the same line, orders may

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be passed.

5. At this juncture, it is worthwhile to extract the relevant portion of

the order passed by this Court in W.P.No.1485/2014, dated 15.11.2023,

which runs as follows.

4. The learned Additional Solicitor General for the petitioners has brought the notice of this Court to the decision of this Court made in W.P.Nos. 10162, 19881 & 6514 of 2015, dated 28.07.2023, wherein this Court by relying upon the communication dated 25.11.2020 issued by the Government of India, Ministry of Communications, Department of Posts (Pension Section), New Delhi and accepting the contention of the respondent- department therein, dismissed the said writ petition. The relevant paragraphs of the said judgment are extracted below;

5. We also find merits on the submissions made by the learned Additional Solicitor General appearing for the respondent Department. The issue raised by the petitioners in these writ petitions is squarely covered by the decision of the Hon'ble Supreme Court in Civil Appeal No.8497 of 2019 dated 08.11.2019 (Union of India and others v. Gandiba Behera), wherein the Hon'ble Supreme Court, in paragraphs 20 & 21, has held as follows:-

“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

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basis of which any period of the service 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 case of Union of India & others v. Registrar and another (supra). We, accordingly allow these appeals and set aside the judgments under appeal, subject to the following conditions:-

(i) In the event the Central Government or the postal department has already issued any order for pension to any of the respondents,

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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 & others v. Registrar and another (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.”

It has also been brought to our notice that pursuant to the above directions, the Department has taken a policy decision on 25.09.2020, as communicated in the letter of the Assistant Director General (Pension), Department of Posts (Pension Section), Government of India dated 25.11.2020, ordering as follows:-

“2. In compliance of Hon'ble Supreme Court Order dated 08.11.2019 passed in Special Leave to Appeal (C) No.13042/2014, the matter was examined in detail and the matter placed before the Postal Service Board (PSB) of this Department for deciding the issue as per the directions of the Hon'ble Supreme Court.

3. The Postal Services Board after detailed deliberations in its meeting held on 25.09.2020 decided as under:

“In view of directions of Apex Court dated 08.11.2019, CCS (Pension) Rules, 1972, GDS (Conduct & Engagement) Rules, 2011 and observations of IFW of this Department,

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the Board after in-depth deliberation decided that there cannot be a single definition of 'undue hardship' that can be applicable to all cases. Hence, all cases similar to the cases tagged with the SLP No.13042/2014 and decided by Hon'ble Supreme Court vide Order dated 08.11.2019, may be taken up as per Rule 49 of CCS (Pension) Rules, 1972 only where an inbuilt relaxation of three months has already been provided. No further relaxation on case-to case/ enmasse basis will be admissible in terms of Rule 88 of the CCS (Pension) Rules, 1972.”

4. The decision of Postal Service Board (PSB) in compliance of Apex Court order dated 08.11.2019 may be brought to the notice of all concerned for strict compliance.

This may also be brought to the notice in consultation with CGSC of all concerned CAT/Courts in which similar such cases are pending for adjudication thereby ensuring early disposal/settlement of the cases.”

6. In the light of the above, we are convinced that there is no question of considering the request of the petitioners for the purpose of pensionary benefits. Therefore, finding no merits or reason to interfere with the impugned orders passed by the Central Administrative Tribunal, the writ petitions are dismissed. There shall be no order as to costs.

5. On facts, the 2nd respondent herein has rendered service only 9 years 5 months 2 days and he has not completed minimum qualifying service of 9 years 9 months to consider for grant of pensionary benefits as per Rule 49 of CCS (Pension) Rules 1972.

6. In view of the decision of the Division Bench of this Court in

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W.P.Nos. 10162, 19881 & 6514 of 2015, dated 28.07.2023 cited supra and considering the fact that the 2nd respondent has not completed the qualifying service of 9 years 9 months in the petitioners-department, the impugned order passed by the tribunal in O.A.No. 1408 of 2010, dated 13.12.2012 is liable to be set aside.

7. In the result, the order passed by the tribunal in O.A.No. 1408 of 2010, dated 13.12.2012 is set aside. The writ petition filed by the department is allowed. No costs. Consequently, the connected Miscellaneous Petition is closed.

6. Admittedly, the first respondent has rendered the service less than 8

years only. Therefore, in the light of the order passed in

W.P.No.1485/2014, dated 15.11.2023, and also considering the fact that the

first respondent has not completed the qualifying service of 9 years and 9

months in the Department, the impugned order passed by the Tribunal is

liable to be set aside.

7. Accordingly, this writ petition is allowed and the order passed by

the Tribunal in O.A.No.310/01351/2014, dated 31.03.2017 is set aside. No

costs. Consequently, connected miscellaneous petition is closed.

                                                                                        (D.K.K.J.)              (P.D.B.J.)




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                                                                              22.11.2023
                     Internet: Yes/No
                     Index : Yes/No
                     mst


                     To

1. The Registrar, Central Administrative Tribunal, High Court, Madras 104.

2. The Secretary, Union of India, Department of Posts, Ministry of Communication & IT, Dak Bhavan, Sansad Marg, New Delhi 110 001.

3. The Chief Post Master General, Tamil Nadu Circle, Anna Salai, Chennai 600 002.

4. Post Master General, Central Region (TN), Tiruchirapalli 620 001.

5. Senior Superintendent of Post Offices, Thanjavur Division, Thanjavur 613 001.

6. Assistant Superintendent of Post Offices, Thanjavur South Sub Division, Thanjavur 613 001.

7. Assistant Superintendent of Post Offices, Thanjavur North Sub Division, Thanjavur 613 001.

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D.KRISHNAKUMAR, J.

and P. DHANABAL, J.

mst

22.11.2023