In
the OA No. 180/00020/2015 filed before hon. CAT Ernakulam Bench (Kerala Circle)
, Applicants are directly recruited Postal Assistants, appointed in the year
2005 against the vacancies arose in the year 2002. They are aggrieved by not
including them in the statutory pension scheme under the CCS (Pension)
Hon. CAT, Ernakulam
Bench (Kerala Circle) in OA No. 180/00020/2015 dated 15.02.2016, allowed the
O.A as no other third party interest is put in jeopardy and as the applicants
will not be eligible for other benefits like pay for the aforesaid period. Hence
it is declared that the applicants are deemed to have been appointed from the
date the vacancy arose and that they shall be included in the CCS (Pension)
Rules 1972. Respondents are directed to collect necessary subscription under
the Provident Fund Rules and the contributions collected from the applicants
under the new pension scheme shall be credited to their general provident fund
account. It is made clear that no other financial benefits including increments
and backwages have been granted to the applicants for the aforesaid period.
In this connection RTI has been made
for seeking status of the case. The reply received from the Regional office is
attached herewith for information.
O.A.No.
180/00020/2015
CENTRAL
ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH, ERNAKULAM
O.A.No. 180/00020/2015
Monday
this the 15th day of February, 2016
CORAM:
HON’BLE MR. U.
SARATHCHANDRAN, JUDICIAL MEMBER
1. Sheeba B., Aged 32
years,
W/o Praveen K,
Postal Assistant, Karivallur P.O. 670 521
Residing at ‘Parvathi’, Karivellur,
Kannur District
2. Shinoy P. Aged 34
years,
S/o MukundanN.P.,
Postal Assistant,
Thalassery Head Post Ofice 670 691
Residing at Neelamparambil House,
Vellayil, Pathayakkunnu,
Thalassery, Kannur District. …. Applicant
(Applicant Mr. U.
Balagangadharan, Advocate)
vs.
1. Union of India,
represented by
the Secretary to the Government,
Ministry of Communication,
Department of Posts,
New Delhi 110 011.
2. The Chief Postmaster
General,
Kerala Circle,
Thiruvananthapuram – 695033.
3. The Superintendent of
Post Office,
Department of Posts,
Kannur 670 001,
Kannur District. . . . . Respondents
(Respondents by Mr. N.
Anil Kumar, Sr.PCGC)
This Application having
been finally heard and reserved for orders on 27.01.2016, the Tribunal on
15.02.2016 delivered the following:
ORDER
Applicants are directly
recruited Postal Assistants, appointed in the year 2005 against the
vacancies arose in the year 2002. They are aggrieved by not including
them in the statutory pension scheme under the CCS (Pension) Scheme by
notionally pre-dating their appointment from the date of occurrence of a
vacancy. According to them, the delay occurred in finalising
the recruitment process for the said posts was due to the fault of the
respondents though the vacancies had arisen in the year 2002. Hence they
pray for the relief as under:
‘8.i) Call for records
leading to Annexure A6 and A7 and set aside the same as legally and
factually unsustainable.
b” Direct the 3rd
respondent to induct the applicants into statutory pension scheme under
CCS pension Rules notionally treating them to have been appointed as
Postal Assistants from the date of occurrence of vacancies in the year
2002 for the limited purpose of grant of pension under CCS (Pension) Rules
only.
Iii) Direct the
respondent Nos. 3 & 4 to stop all recoveries from the pay and
allowances of the applicants towards New Pension Scheme and refund the
entire amounts so far recovered from the applicants with immediate effect.
. Declare that applicants
are deemed to have been appointed as Postal Assistant notionally and they
are regulated by CCS pension Rules.
. Grant such other relief
that the Court may feel fit in the facts and circumstances of the case.’
2. Respondents in their
reply statement contend that the posts of Postal Assistants were notified
vide Annexure R.3(a) (collectively) in March 2004, by publishing in news
papers by fixing the last date for receiving application as 31.3.2004. The
Applicants respondened to the aforesaid notificatiion and took part in the
recruitment process. They were selected to the cadre of Postal Assistants
and were appointed in the Vadakara Division with effect from 15.2.2005. As
the new pension scheme came into force with effect from 1.1.2004, the
applicants are to be considered only under the new pension scheme and they
are not eligible for to be included in the statutory pension scheme under
the CCS (Pension) Rules 1972. It is further submitted by the respondents
that the O.A. is barred by limitation because the cause of action has
arisen way back in 2005. It is further contended by the respondents
that as the applicants took part in the recruitment process as outsiders
their claim for inclusion in the statutory pension existed prior to their
selection and appointment in the department is not
permissible.Respondents pray for rejecting the O.A.
3. Heard learned counsel
appearing on both sides. Perused record.
4. Applicants place
reliance on Annexure A/8 order dated 28.06.2013 of this Tribunal in O.A.
No.724/2012. According to the learned counsel for the applicant, the case
of the applicant in Annexure A/8 case is akin to the case of the
applicants in the O.A. on hand. The learned counsel relied on paras 7 and
9 of Annexure A/8 order. The aforesaid paragraphs are extracted below:
‘7. Admittedly the
vacancies belong to 2002. Invariably examinations for promotion to Postman
or Postal Assistants etc. Take place in the very same year and appointment
made immediately. This is with a view to avoid any problems relating to
seniority etc. Especially when there is more than one source of
recruitment. The applicants belong to GDS quota while some other quotas
are also available for promotion to the post of Postman (as for example promotion
from group -D). In the instant case there has been a delay of two years in
conducting the examination though the respondents have stated that the
applicants on their own volition had taken up the examination n 2004,
since that was the only examination conducted after the vacancies of 2002
have arisen they cannot be blamed for taking up the examination only in
2004. Had there been an examination n the year 2002 or 2003 for the said
vacancies, the applicants would have certainly participated in that
examination itself. The contention of the respondents hold good only if
such an examination took place in 2002 and/or 2003 and the applicants did
not participate therein. That is not the case here. As such, on account of
the failure on the part of the Department in holding the examination the
applicants should not be made to suffer. The Government cannot be
permitted to take advantage of its own mistake. In this regard the
following decision of the Apex Court are relevant:-
(a) A.K. Lakshmipathy v.
Rai Saheb PannalalH. Lahoti Charitable Trust, (2010) 1 SCC 287
‘they cannot be
allowed to take advantage of their own mistake and conveniently pass on
the blame to the respondents.’
(b) Rekha Mukherjee v.
Ashis Kumar Das, (2005) 3 SCC 427
36, The respondents
herein cannot take advantage of their own mistake.
8. . . . . . . . . .
9. In view of the above
the O.A. is allowed. It is declared that the applicants are deemed to have
been promoted from the date the vacancy arose and thus notional date of
promotions is only for the purpose of reckoning the qualifying
service for pension under the CCS (Pension) Rules 1972. The
respondents are directed to pass suitable orders in this regard and make
necessary entry in the service book of the applicants indicating clearly
the date of notional
promotion and the purposes of reckoning the same.
10. Further, the
respondents shall collect necessary subscription under the provident fund
rules during the rest of their services and stop any recovery to the
contributory provident fund.
11. There shall be o
orders as to costs.’
5. This Tribunal is of
the view that though the post to which the applicants in Annexure A/8
order were different from the post for which the applicants in the present
O.A. have applied, the reasonings stated in the afore-quoted paragraphs in
Annexure A/8 are squarely applicable to the facts in this case also. It
was submitted by the learned counsel for applicants that Annexure
A/8 order has attained finality without interference from any other
superior forum.
6. The learned counsel
for the Central Government attempted to distinguish the case in Annexure
A/8 order from the present case by contending that applicants in the
former case were departmental candidates who were seeking promotion to their
higher post whereas in the present case, applicants are totally outsiders
who had taken part in an open competitive examination process knowing
fully well that they will be appointed only after 2004.
7. After hearing both
sides this Tribunal is of the view since the limited prayer of the
applicant is to treat the date of arising of the vacancy of the
posts retrospectively as their date of posting for the purpose of pension,
it appears to this Tribunal that the O.A. can be allowed as no other third
party interest is put in jeopardy and as the applicants will not be
eligible for other benefits like pay for the aforesaid period. Hence it is
declared that the applicants are deemed to have been appointed from the
date the vacancy arose and that they shall be included in the CCS
(Pension) Rules 1972. Respondents are directed to collect necessary
subscription under the Provident Fund Rules and the contributions
collected from the applicants under the new pension scheme shall be
credited to their general provident fund account. It is made clear that no
other financial benefits including increments and backwages have been
granted to the applicants for the aforesaid period.
8. The O.A. is disposed
of on the above terms. Parties are directed to suffer their own cost.
(U
SARATHCHANDRAN)
JUDICIAL MEMBER
Information Shard by
Shri. Dhavan Sangani,
OADO, Rajkot DIvision, Rajkot - 360 001
