OP (CAT) No.6/2015 - Superintendent of Post Offices, Thiruvananthapuram South Division; Chief Postmaster General, Kerala Circle; Union of India v. N. Chandran Asari; Krishnamma T.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE S.V.BHATTI** ## **&** ## **THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 17[TH] DAY OF FEBRUARY 2023 / 28TH MAGHA, 1944 OP (CAT) NO. 6 OF 2015** ## **AGAINST THE ORDER OA 607/2013 OF CENTRAL ADMINISTRATIVE TRIBUNAL,** ## **ERNAKULAM BENCH** ## **PETITIONER/S:** - 1 SUPERINTENDENT OF POST OFFICES THIRUVANANTHAPURAM SOUTH DIVISION -695 001. - 2 CHIEF POSTMASTER GENERAL KERALA CIRCLE THIRUVANANTHAPURAM. - 3 UNION OF INDIA, REPRESENTED BY ITS SECRETARY AND DIRECTOR GENERAL, DEPARTMENT OF POSTS, MINISTRY OF COMMUNICATIONS, NEW DELHI. BY ADV SRI.T.V.VINU, CGC ## **RESPONDENT/S:** - 1 N. CHANDRAN ASARI, GROUP D (RETIRED), KOWDIAR, RESIDING AT RAM NIVAS, EHPARAKONAM, KULAPPADA P.O., ARYANAD -695 542. - 2 KRISHNAMMA T., ADDL. R2. W/O. LATE N. CHANDRAN ASARI, RAM NIVAS, ELIPARAKONAM, KULAPPADA P.O., ARYANAD, THIRUVANANTHAPURAM-695 542. ADDITIONAL RESPONDENT NO.2 IS IMPLEADED AS PER ORDER DATED 22.12.15 IN IA NO.18365/15 IN OP (CAT) 6/2015. **O.P.(CAT) No.6/2015** **-2-** BY ADV SRI.S.VISHNU THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 17.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **O.P.(CAT) No.6/2015** **-3-** ## **J U D G M E N T** S.V. Bhatti, J. Respondents in O.A. No.607/2013 before the Central Administrative Tribunal, Ernakulam Bench, are the petitioners. N Chandran Asari/applicant before the Tribunal is the 1[st] respondent. The 1[st] respondent died during the pendency of the Original Petition, and his wife has been impleaded as respondent no.2. For convenience, we refer to parties as applicant(s) and the respondents. 2. The 1[st] applicant, on 01.02.1974, entered service in Postal Department as Extra Departmental Agent. On 31.03.2003, the 1[st] applicant retired from service. By the date of retirement, the 1[st] applicant rendered 9 years, 8 months and 18 days of service. By reckoning the pensionable service as inadequate by 12 days, the 1[st] applicant was denied the pension by the **O.P.(CAT) No.6/2015** **-4-** respondents. The case of the 1[st] applicant is that his service of 9 years, 9 months and 20 days could be taken as 10 years qualifying service, and the shortfall of 12 days is erroneously arrived at by not reckoning the service/working of 1[st] applicant as Extra Departmental Agent. The 1[st] applicant, before the Tribunal, prayed for the following reliefs: “1. Declare that the applicant is legally entitled to has his service rendered as Extra Departmental Agent reckoned for the purpose of determining qualifying service for pension to make up the deficiency of a few months to complete 10 years in the post of Group D and Postman and is entitled to receive pension on his retirement from the cadre of Postman; 2. Directing the respondents to pass appropriate orders sanctioning pension to the applicant who retired from Group D cadre, reckoning the part of his service rendered as extra Departmental Agent to make up the deficiency of service for earning pension; 3. Call for the records leading to the issue of Annexure A9 and set aside Annexure A9. **O.P.(CAT) No.6/2015** **-5-** 4. Directing the respondents to disburse arrears of pension, which became due on the retirement of the applicant from Group D cadre and continue to pay pension regularly. 5. Any other further relief or order as this Hon'ble Court may deem fit and proper to meet the ends of justice. ## 2.1 The Tribunal, through the order under review, allowed the application in the following terms: “After having heard the counsel for both the parties and perusing the material on record, I am of the view that denial of pension to the applicant who has put in more than 19 years of service as an Extra Departmental Agent and thereafter as a Group -D for 9 years 9 months and 18 days needs to be reconsidered favourably. Therefore the O.A. is allowed. The respondents are directed to sanction pension to the applicant treating the applicant as having completed the minimum qualifying service of 10 years from the date of his retirement and the arrears released to him within a period of three months from the date of receipt of a copy of this order. No order as to costs.” ## Hence the Original Petition at the instance of the respondents before the Tribunal. **O.P.(CAT) No.6/2015** **-6-** 3. The inclusion of service rendered as Extra Departmental Agent was considered by the Apex Court in _Union of India v. Gandiba Behera_[1] . Paragraph no.3 of the said judgment refers to the question considered, and we prefer to excerpt para 3 hereunder: “3. All these appeals have reached this Court from decisions of different Benches of the Central Administrative Tribunal and thereafter judgments of the High Courts on a common question of law. The dispute in these appeals is as to whether services rendered by the employees in the postal department in the capacity of Gramin Dak Sevaks (GDS) ought to be computed or not for the purpose of calculation of the qualifying service of their pension after they got selected in regular posts in the said department. The respective High Courts, whose judgments are under appeal before us, have uniformly held in favour of the GDSs who subsequently were selected as regular employees of the postal department. The original applicants were not found eligible for pension as their services fell short of the qualifying period. The minimum service period in regular employment in the said Department for being entitled to pension is contained in Central Civil Services (Pension) Rules, 1972 and it is 10 years. 1 MANU/SC/1532/2019 **O.P.(CAT) No.6/2015** **-7-** We shall refer to these Rules henceforth as the 1972 Rules. In all these appeals, service tenure of the Respondents in regular posts fell marginally short of the said period of 10 years. Clause 49 (1) of the 1972 Rules stipulates: In the case of a Government servant retiring in accordance with the provisions of these Rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half month’s emoluments for every completed six monthly period of qualifying service.” ## 3.1 In paragraph 19, the question is answered as follows: “19. Having regard to the provisions of the aforesaid Rules relating to qualifying service requirement, in our opinion the services rendered by the Respondents as GDS or other ExtraDepartmental Agents cannot be factored in for computing their qualifying services in regular posts under the postal department on the question of grant of pension. But we also find many of the Respondents are missing pension on account of marginal shortfall in their regular service tenure. This should deserve sympathetic consideration for grant of pension. But we cannot trace our power or jurisdiction to any legal principle which could permit us to fill up the shortfall by importing into their service tenure, the period of work they **O.P.(CAT) No.6/2015** **-8-** rendered as GDS or its variants. At the same time, we also find that in the case of **Union of India and Ors. v. The Registrar and Anr** . (supra), though the incumbent therein (being Respondent No. 2) had completed nine years and two months of service, the Union of India had passed orders granting him regular pension. This Court in the order passed on 24th November 2015 had protected his pension though the appeal of Union of India was allowed. Following the said judgment, the Original Petition could have been disposed of. But the circumstances which need reference are that the 1[st] applicant stated a grievance against denial of relaxation under Rule 88 of Central Civil Service (Pension) Rules (for short, CCS (Pension) Rules). The decision communicated in Annexure A9 dated 04.10.2011 is unsustainable and does not, in any manner, evidence consideration of the discretion under Rule 88. 1[st] applicant argues that going by the principle and the ratio on the entitlement of consideration for relaxation of service period under Rule 88 of CCS (Pension) Rules in the **O.P.(CAT) No.6/2015** **-9-** _Gandiba Behera_ case, and the respondents must be directed to reconsider the request for relaxation of service period under Rule 88 for granting a minimum pension to the 1[st] applicant. 4. Adv S Vishnu informs the Court that the 1[st] applicant is entitled to receive pension during his lifetime, and Smt. Krishnamma T/2[nd] respondent herein, being wife, is entitled to family pension. On both the points referred to above, by following the principle in _Gandiba Behera_ case, this Original Petition can be disposed of. 5. The above consideration records the following conclusions: “(i) The order dated 07.08.2014 in OA No.607/2013 of the Central Administrative Tribunal, Ernakulam Bench, is set aside by following the principle laid down in _Gandiba Behera_ case. ## **O.P.(CAT) No.6/2015** **-10-** (ii) The communication dated 04.10.2011 noted as Annexure A9 in the Original Application is set aside. (iii) Smt. Krishnamma T/ 2[nd] respondent is given liberty to enclose a copy of this judgment to the Superintendent of Post Offices, Thiruvananthapuram; the Chief Postmaster General, Kerala Circle, Thiruvananthapuram; and the Secretary and Director General, Department of Posts, New Delhi, along with a request for relaxation of service period under Rule 88 of CCS (Pension) Rules within four weeks from the date of receipt of a copy of this judgment. (iv) The addressees read in clause (iii) are directed to entertain the application made by the 2[nd] respondent herein for self and on behalf of the deceased 1[st] applicant, examine the request for relaxation of service period under Rule 88 of the CCS (Pension) Rules and by keeping in **O.P.(CAT) No.6/2015** **-11-** perspective the view taken by the Supreme Court in _Gandiba_ _Behera_ case. - (v) The exercise directed by clause (iv) is completed within four months from the date of receipt of the request for relaxation of the service period. The Original Petition is ordered as indicated above. Sd/- **S.V.BHATTI JUDGE** **Sd/-** **BASANT BALAJI JUDGE** jjj **O.P.(CAT) No.6/2015** **-12-** ## **APPENDIX OF OP (CAT) 6/2015** PETITIONER ANNEXURES - ANNEXURE A9 TRUE COPY OF ORDER NO.99-47/2011/PEN DATED 04/10/2011 ISSUED BY THE 3RD RESPONDENT. - ANNEXURE A1 TRUE COPY OF THE MEMO NO. BIE/MISC DATED 26/03/2003 ISSUED BY THE 1ST RESPONDENT. - ANNEXURE A2 TRUE COPY OF THE ORDER NO.ASP/TV (EY05) DATED 10/04/1996 ISSUED BY THE ASST. SUPDT. OF POST OFFICES, TRIVANDRUM, EAST SUBDIVISION, TRIVANDRUM. - ANNEXURE A3 TRUE COPY OF THE REQUEST DATED 15/12/2005 TO THE 1ST RESPONDENT. - ANNEXURE A3(A) TRUE COPY OF THE REQUEST DATED 15/12/2005 TO THE 1ST RESPONDENT. - ANNEXURE A4 TRUE COPY OF THE REPRESENTATION DATED 13/10/2010 TO THE 2ND RESPONDENT. - ANNEXURE A4(A) TRUE COPY OF THE REPRESENTATION DATED 13/10/2010 TO THE 3RD RESPONDENT. - ANNEXURE A5 TRUE COPY OF THE ORDER DATED 18/04/2002 IN OA NO.1264/2001 OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, MADRAS BENCH. - ANNEXURE A6 TRUE COPY OF THE ORDER DATED 17/10/2009 IN SLP CC NO.13829/2008 IN WP NO.45465/2002 OF THE HON'BLE SUPREME COURT OF INDIA. ANNEXURE A7 TRUE COPY OF THE ORDER NO. 99-3/08-PEN DATED 09/10/2009 OF THE 3RD RESPONDENT. **O.P.(CAT) No.6/2015** **-13-** - ANNEXURE A8 TRUE COPY OF THE REQUEST DATED 31/12/2010 TO THE 3RD RESPONDENT. - ANNEXURE A10 TRUE COPY OF THE ORDER IN OA NO.674/2012 OF THIS HON'BLE TRIBUNAL. - ANNEXURE A11 TRUE COPY OF THE JUDGMENT DATED 10/08/2009 IN CWJC 3893/2009 OF THE HON'BLE PATNA HIGH COURT. - ANNEXURE A12 TRUE COPY OF THE JUDGMENT DATED 29/03/2010 IN WP(S) NO.5331/2009 OF THE HON'BLE JHARKAND HIGH COURT. - ANNEXURE R1 TRUE COPY OF THE ORDER DATED 31/05/2011 IN OA NO.889/09 OF THE CAT, ERNAKULAM BENCH. - ANNEXURE R2 TRUE COPY OF ORDER DATED 04/10/2007 IN WPC NO. 45465/2002 OF THE HIGH COURT OF JUDICATURE MADRAS. - ANNEXURE R3 TRUE COPY OF JUDGMENT DATED 04/10/2007 IN WPC 45465/2002 OF THE HON'BLE SUPREME COURT OF INDIA. - EXHIBIT P1 TRUE COPY OF OA NO.607/2013 FILED BY THE PETITIONERS. - EXHIBIT P2 TRUE COPY REPLY STATEMENT DATED 30.8.2013 FILED BY THE PETITIONERS - EXHIBIT P3 TRUE COPY OF REJOINDER STATEMENT FILED BY THE RESPONDENT DATED 5.12.2013 - EXHIBIT P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE PETITIONER - EXHIBIT P5 TRUE COPY OF THE ORDER IN OA NO.607/2013 DATED 7.8.2014 OF THE CAT, ERNAKULAM BENCH. ## **O.P.(CAT) No.6/2015** **-14-** RESPONDENT EXHIBITS EXHIBIT R2(A) TRUE COPY OF DEATH CERTIFICATE ISSUED BY THE DEPARTMENT OF PANCHAYAT, GOVERNMENT OF KERALA.