Patna High Court
The Union Of India vs Umesh Prasad Yadav on 3 August, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.25608 of 2019
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1. The Union of India through the Director General, Department of Posts, New
Delhi-110001.
2. The Chief Postmaster General, Bihar Circle, G.P.O Complex, Patna-800001.
3. The Postmaster General, Northern Region, Muzaffarpur.
4. The Senior Superintendent of Post Offices, Postal Division, Purnea-854301.
... ... Petitioner/s
Versus
Umesh Prasad Yadav, Son of Late Bodh Narayan Yadav, Resident of Village-
Rampur North, P.O.-Rampur, P.S.-Foresganj, District-Arariya.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. K.N. Singh, ASG
Mr. Sujeet Kumar Sinha, Advocate
For the Respondent/s : Mr.Kumar Ravish, Advocate
Mr. Ramesh Kumar Singh, Advocate
Ms. Siddhi Aashana, Advocate
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE RAJIV ROY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 03-08-2022
Heard learned counsels for the parties.
2. In the instant petition, petitioner-department has
questioned the validity of the order dated 02.02.2018 passed in
O.A. No. 050/350/2017 of the Central Administrative Tribunal,
Patna Bench.
3. Respondent-employee filed Original
Application No. 350 of 2017 in which he has sought for the
following reliefs:-
"[8.i] The applicant humbly
Patna High Court CWJC No.25608 of 2019 dt.03-08-2022
prays that the respondents may be directed
to grant the pension and its consequential
benefits by treating the qualifying service for
pension from 01.01.2002 i.e. date of vacancy
of the Group 'D' post to 28.02.2014 i.e. date
of retirement under CCS (Pension) Rule
1972.
[8.ii] The applicant further
prays that arrears of the pension and its
benefits with [email protected] interest may be granted.
[8.iii] Any relief/reliefs may be
granted to the applicant for ends of the
justice."
4. The Original Application was allowed while
directing the petitioner herein to treat the qualifying service of
the respondent-employee for the purpose of pension from
01.01.2002, i.e. the date of vacancy of Group-D post which was
filled up in the year 2004 while appointing the respondent-
employee and further to count service from 01.01.2002 to
28.02.2014, the date on which respondent-employee attained
age of superannuation and retired from service.
5. Feeling aggrieved and dissatisfied with the
order of the Central Administrative Tribunal, the present petition
is filed.
6. The respondent-employee was appointed as
EDBPM and it has been re-designated as GDSBPM, Rampur
BO-a/c with Forbesganj SO Under Purnia Postal Division. The
petitioner- department issued a Rule called "Department of
Patna High Court CWJC No.25608 of 2019 dt.03-08-2022
Posts (Group 'D' posts) Recruitment Rules, 30.01.2002.
Respondent-employee name was considered with reference to
the post of Mail Peon (Part-II -post of Sub-ordinate officers)
Rules, 2002 under 75% vacancies (quota). Mail Peon was stated
to have been vacant in the year 2002. However, the same has not
been filled up due to Administrative delay. In the result, among
others petitioner was appointed to the post of Mail Peon in the
year 2004. The petitioner attained age of superannuation and
retired from service on 28.02.2014 and he has been denied
retiral benefits including pension for the reasons that he did not
fulfill the criteria of ten years of service in terms of Rule 49 of
Central Civil Services (Pension) Rules, 1972 (for short "CCS
Rules, 1972") whereby compelling him to approach C.A.T.
7. Learned counsel for the petitioner-department
submitted that there is no infirmity in not extending retiral
benefits and fixation of pension as respondent-employee failed
to fulfill the criteria laid down under Rule 49 of Rules, 1972. It
is further submitted that respondent-employee is not entitled to
count any service rendered against the then EDBPM and now
GDSBPM towards retiral benefits and fixation of pension.
8. In support of the aforesaid contention,
petitioner-department relied on Apex Court's decision rendered
Patna High Court CWJC No.25608 of 2019 dt.03-08-2022
in the case of Union of India and Others Vs. Gandiba Behera
reported in 2019 SCC online SC 1444. Therefore, CAT has
committed error in not noticing eligibility criteria, when
respondent-employee failed to fulfill the necessary criteria for
the purpose of extending retiral benefits and pension. Even
though, the Central Administrative Tribunal has directed to
count the service from 01.01.2002 whereas respondent-
employee was appointed on 09.06.2004.
9. Per contra, learned counsel for respondent-
employee resisted the contention of the petitioner and supported
the order of the Tribunal. Further, it is submitted that for no
fault of the respondent-employee he has been belatedly
appointed to the post of Mail Peon in the year 2004 instead as
and when vacancy accrued. Due to administrative delay on the
part of the petitioner-department, respondent-employee cannot
be denied service benefits from 01.01.2002 to 09.06.2004.
Therefore, there is no infirmity in the order of the Central
Administrative Tribunal.
10. Heard learned counsels for the parties.
11. Respondent-employee was appointed to the
post of EDBPM in the year, 1974. Petitioner-department issued
a Rule called "Department of Posts (Group 'D' Post)
Patna High Court CWJC No.25608 of 2019 dt.03-08-2022
Recruitment Rules, 2002 and it was notified on 30.01.2002.
Various kind of Group-D posts like, Peons and equivalent posts
have been identified as a bunch of posts in which Mail Peon is
included. Method of recruitment to the bunch of Group-D posts
reads as under:-
1. Peons/ 33018 General Rs. 2550-55- Not 18-25 Years Not Essential
Letter Box (2002) Central 2660-60- applicable Note:1. The applicable qualification
Peons/ Mail Subject to Service 3200/- crucial date s:
Peons/ variation Group for Middle
Packer/Porter/ dependent 'D' Non- determining School
Runner/Van on Gazetted the age limit Standard
Peon/Orderly/ workload. shall in each Pass
Gatemen/ case be the Desirable:
Attendant- closing date 1)
cum- for receipt of Knowledge
Khansama/ applications of cooking
Cleaner in from for
Mail Motor candidates in attendant-
Service/ India (and not cum-
Pumpmen the closing Khansama
date 2.
prescribed for Knowledge
those in of cycling
Assam, 3.
Meghalaya, Knowledge
Arunachal of tailoring,
Pradesh, painting,
Mizoram, carpentry
Manipur, (for posts in
Nagaland, stock or
Tripura, store
Sikkim, Depots)
Ladakh
Division of
Jammu &
Kashmir
State, Lahaul
and Spiti
District and
Pangi
Subdivision
of Chamba
District of
Himachal
Pradesh,
Andaman &
Nikobar
Islands and
Lakshadweep
).
2. In the case
of
recruitment
made through
the
Employment
Exchange,
the crucial
date for
determining
the age limit
shall be last
date up to
Patna High Court CWJC No.25608 of 2019 dt.03-08-2022
which
Employment
Exchange is
asked to
submit the
names.
12. The respondent-employee is entitled to be
appointed to any of the post mentioned above under 75% of the
vacancies. The respondent-employee due to administrative
difficulties given effect to the 2002 Rules on 09.06.2004 while
appointing the petitioner to the post of Mail Peon for the
vacancy occurred in the year 2002.
13. In this backdrop, from 09.06.2004 to till the
date of retirement in the year, 2014, the respondent-employee
could not fulfill the eligibility criteria under Rule 49 of Rules,
1972, namely ten years of service.
14. It is learnt that he has rendered 9 years 7
months and 26 days. There is short of about less than three
months for the purpose of extending retiral benefits and pension.
The cited decision on behalf of the petitioner is in respect of
non-counting of service rendered in EDBPM. Whereas in the
present case, pre-ponement to the date of appointment to the
post of Mail Peon from 09.06.2004 to 01.01.2002 in order to
meet the eligibility criteria for the purpose of retiral benefits and
fixation of pension, the petitioners have not disputed that there
is administrative delay in issuing order of appointment to the
Patna High Court CWJC No.25608 of 2019 dt.03-08-2022
petitioner on 09.06.2004 with reference to vacancies occurred as
on 01.01.2002. In fact, appointment order dated 09.06.2004 in
the preamble portion it is crystal clear the post are being filled
up with reference to vacancy occurred as on 01.01.2002. In
view of the material information it is crystal clear that for no
fault of the respondent-employee he has been denied
appointment timely as on 01.01.2002. In the result, he has been
made ineligible to claim retiral benefits and pension.
Accordingly, the cited decision do not assist the petitioner-
department.
Apex Court recently in the case of Amarendra
Kumar Pandey Vs. Union of India & Ors. reported in 2022
LiveLaw (SC) 600 in para 28 to 37 it is held as under:-
"28. Where an Act or the
statutory rules framed thereunder left an
action dependent upon the opinion of the
authority concerned, by some such
expression as 'is satisfied' or 'is of the
opinion' or 'if it has reason to believe' or 'if
it considered necessary', the opinion of the
authority is conclusive, (a) if the procedure
prescribed by the Act or rules for formation
of the opinion was duly followed, (b) if the
authority acted bona fide, (c) if the authority
itself formed the opinion and did not borrow
the opinion of somebody else and (d) if the
authority did not proceed on a fundamental
misconception of the law and the matter in
regard to which the opinion had to be
formed.
29. The action based on the
Patna High Court CWJC No.25608 of 2019 dt.03-08-2022
subjective opinion or satisfaction, in our
opinion, can judicially be reviewed first to
find out the existence of the facts or
circumstances on the basis of which the
authority is alleged to have formed the
opinion. It is true that ordinarily the court
should not inquire into the correctness or
otherwise of the facts found except in a case
where it is alleged that the facts which have
been found existing were no supported by
any evidence at all or that the finding in
regard to circumstances or material is so
perverse that no reasonable man would say
that the facts and circumstances exist. The
courts will not readily defer to the
conclusiveness of the authority's opinion as
to the existence of matter of law or fact upon
which the validity of the exercise of the
power is predicated.
30. The doctrine of
reasonableness thus may be invoked. Where
there are no reasonable grounds for the
formation of the authority's opinion, judicial
review in such a case is permissible. [See
Director of Public Prosecutions v. Head,
(1959) AC 83 (Lord Denning).
31. When we say that where
the circumstances or material or state of
affairs does not at all exist to form an
opinion and the action based on such
opinion can be quashed by the courts, we
mean that in effect there is no evidence
whatsoever to form or support the opinion.
The distinction between insufficiency or
inadequacy of evidence and no evidence
must of course be borne in mind. A finding
based on no evidence as opposed to a
finding which is merely against the weight
of the evidence is an abuse of the power
which courts naturally are loath to tolerate.
Whether or not there is evidence to support a
particular decision has always been
considered as a question of law. [See Reg. v.
Governor of Bixton Prison, Armah, Ex
Patna High Court CWJC No.25608 of 2019 dt.03-08-2022
Parte, (1996) 3 WLR 282 at p. 841].
32. It is in such a case that it is
said that the authority would be deemed to
have not applied its mind or it did not
honestly form its opinion. The same
conclusion is drawn when opinion is based
on irrelevant matter. [See Rasbihari v. State
of Orrisa, AIR 1969 SC 1081].
33. In the case of Rohtas
Industries Ltd. v. S.D. Agrawal and
another, AIR 1969 SC 707, it was held that
the existence of circumstances is a condition
precedent to form an opinion by the
Government. The same view was earlier
expressed in the case of Barium Chemicals
Ltd. and another v. Company Law Board
and others, AIR 1967 SC 295.
34. Secondly, the court can
inquire whether the facts and circumstances
so found to exist have a reasonable nexus
with the purpose for which the power is to
be exercised. In other words, if an inference
from facts does not logically accord with
and flow from them, the Courts can interfere
treating them as an error of law. [See Bean
v. Doncaster Amalgamated Collieries,
(1944) 2 All ER 279 at p. 284]. Thus, this
Court can see whether on the basis of the
facts and circumstances found, any
reasonable man can say that an opinion as is
formed can be formed by a reasonable man.
That would be a question of law to be
determined by the Court. [See Farmer v.
Cotton's Trustees, 1915 AC 922]. Their
Lordships observed:
"..........in my humble
judgment where all the material facts are
fully found, and the only question is whether
the facts are such as to bring the case within
the provision properly construed of some
statutory enactment, the question is one of
law only."
[See also Muthu Gounder v.
Government of Madras, (1969) 82 Mad LW
Patna High Court CWJC No.25608 of 2019 dt.03-08-2022
1].
35. Thirdly, this Court can
interfere if the constitutional or statutory
term essential for the exercise of the power
has either been misapplied or misinterpreted.
The Courts have always equated the
jurisdictional review with the review for
error of law and have shown their readiness
to quash an order if the meaning of
constitutional or statutory term has been
misconstrued or misapplied. [See Iveagh
(Earl of) v. Minister of Housing and Local
Govt., (1962) 2 QB 147; Iveagh (Earl of) v.
Minister of Housing and Local Govt.
(1964) 1 AB 395].
36.Fourthly, it is permissible to
interfere in a case where the power is
exercised for improper purpose. If a power
granted for one purpose is exercised for a
different purpose, then it will be deemed that
the power has not been validly exercised. If
the power in this case is found to have not
been exercised genuinely for the purpose of
taking immediately action but has been used
only to avoid embarrassment or wreck
personal vengeance, then the power will be
deemed to have been exercised improperly.
[See Natesa Asari v. State of Madras, AIR
1954 Mad 481].
37. Fifthly, the grounds which
are relevant for the purpose for which the
power can be exercised have not been
considered or grounds which are not
relevant and yet are considered and an order
is based on such grounds, then the order can
be attacked as invalid and illegal. In this
connection reference may be made to Ram
Manohar v. State of Bihar, AIR 1966 SC
740; Dwarka Das v. State of J. and K., AIR
1957 SC 164 at p. 168 and Motilall v. State
of Bihar, AIR 1968 SC 1509. On the same
principle, the administrative action will be
invalidated if it can be established that the
authority was satisfied on the wrong
Patna High Court CWJC No.25608 of 2019 dt.03-08-2022
question: [See (1967) 1 AC 13]."
15. While examining the decisions on
administrative side by a department and such a decision was not
supported by reasons and interfered and extended shortcoming
of service for the purpose of extending pension. The aforesaid
decision deals with the judicial review. The aforesaid decision
aptly applicable to the respondent-employee for the reasons that
for not fault of the respondent-employee he has been denied
appointment to the post of Mail Peon timely, i.e. from
01.01.2002 and he has been appointed on 09.06.2004.
16. In the light of these facts and circumstances,
petitioners have not made out a prima facie case so as to
interfere with the order of the Central Administrative Tribunal
dated 02.02.2018. Accordingly, writ petition stands dismissed.
17. The concerned appointing authority/
competent authority is hereby directed to compute respondent-
employee's service from 01.01.2002 till the date of retirement
for the purpose of determining eligibility criteria under Rule 49
of the Rules, 1972 and pass speaking order relating to
entitlement of retiral benefits and pension, after due calculation.
The respondent-employee shall be extended all monetary
benefits. If petitioner-department fails to settle the respondent-
Patna High Court CWJC No.25608 of 2019 dt.03-08-2022
employee's due after reconciling the amount with reference to
payment of certain amount under New Pension Scheme within a
period of four months in that event respondent-employee is
entitled to interest @ 6% per annum.
(P. B. Bajanthri, J)
( Rajiv Roy, J)
rakhi/-
AFR/NAFR
CAV DATE
Uploading Date 08.08.2022
Transmission Date
