OP (CAT).No.232 OF 2019

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942** **OP (CAT).No.232 OF 2019** **ARISING OUT OF THE ORDER DATED 20.06.2019 IN OA No.491/2015 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **- PETITIONER:** **C.P.REGHUKUMAR AGED 60 YEARS S/O.C.V.PRABHAKARAN, RETIRED MTS, KAVALAM P.O., DEPARTMENT OF POSTS, ALAPPUZHA-688 506, RESIDING AT OLICKAL HOUSE, KAVALAM P.O., ALAPPUZHA-688 506.** **BY ADVS.** **SRI.SAJITH KUMAR V. SHRI.GODWIN JOSEPH SHRI.VIVEK A.V.** ## **RESPONDENTS:** **1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF POSTS, MINISTRY OF COMMUNICATIONS, GOVERNMENT OF INDIA, NEW DELHI-110 011. 2 THE CHIEF POSTMASTER GENERAL, KERALA CIRCLE, TRIVANDRUM-695 033. 3 THE SUPERINTENDENT OF POST OFFICES, ALAPPUZHA POSTAL DIVISION, ALAPPUZHA-688 012.** **R1-R3 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 10-03-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (CAT).No.232 OF 2019** **2** ## **(CR) ALEXANDER THOMAS & K.BABU, JJ.** ------------------------------------ O.P.(C.A.T.) No.232 of 2019 [arising out of the order dated 20.06.2019 in O.A.No.491/2015 on the file of the CAT, Ernakulam Bench] ------------------------------------ Dated this the 10th day of March, 2021 ## **JUDGMENT** ## **ALEXANDER THOMAS, J.** The prayers in the afore-captioned Original Petition (CAT) filed under Articles 226 and 227 of the Constitution of India by the petitioner herein (Original Applicant) are as follows (See page No.11 of the paper book of this O.P.): |_“I._|_To set aside the Exhibit P7 order of the Central_| |---|---| ||_Administrative Tribunal, Ernakulam bench dated_| ||_20.06.2019 in O.A.No.491/2015 and allow the O.A. as_| ||_prayed for._| |_II._|_To direct the Respondents to grant notional service to the_| ||_Petitioner counting his provisional service with effect from_| ||_02.07.2001 or at least with effect from 01.01.2002 for the_| ||_purpose of qualifying service for pension and to grant him_| ||_all consequential benefits including pension under CCS_| ||_Pension Rules._| |_III._|_To issue such other Order or direction as this Hon’ble Court_| ||_may be deem fit and proper in the facts and circumstances_| ||_of the case._| |_IV._|_Grant such other reliefs as may be prayed for and as the_| ||_Court may deem fit to grant and_| |_V._|_Grant the cost of this Original Petition (CAT).”_| 2. Heard Sri.V.Sajith Kumar, learned counsel appearing for the petitioner in the O.P./sole applicant in the O.A. before the Tribunal and Sri.P.Vijayakumar, learned Assistant Solicitor General of India appearing for the respondents in the O.P./respondents in the O.A. **OP (CAT).No.232 OF 2019** **3** 3. The prayers in Ext.P1 original application, O.A.No.491 of 2015 filed by the petitioner herein are as follows (See page Nos.19 and 20 of the paper book of this O.P.) _“(i) To quash Annexure A1. (ii) To direct the Respondents to grant notional service to the Applicant counting his provisional service with effect from 04/09/2001 or at least with effect from 01.01.2002 for the purpose of qualifying service for pension and to grant him all consequential benefits including pension under CCS Pension Rules. (iii) Grant such other reliefs as may be prayed for and as the Court may deem fit to grant, and (iv) Grant the cost of this Original Application.”_ 4. The Tribunal, after hearing both sides, has rendered the impugned Ext.P7 final order dated 20.06.2019 in the instant O.A. No.491 of 2015, whereby the main plea of the petitioner herein/applicant for reckoning his officiating/ _ad hoc_ service in Group D post, for the purpose of reckoning it as pensionable service in terms of Rule 13 of CCS (Pension Rules), by following the _ratio decidendi_ laid down by the Tribunal in Ext.P6 final order dated 09.04.2018 rendered by the CAT, Ernakulam Bench, in O.A.No.79 of 2014 in the case **K.Haridasan v. Union of India & Ors.** on the ground that the facts in that case are distinguishable from the instant case, etc. It is this impugned final order at Ext.P7 rendered by the Tribunal in the instant original application that is under challenge in the original petition. 5. The facts are not seriously under dispute. The petitioner had continuous officiating/ _ad hoc_ service in a Group D post with effect **OP (CAT).No.232 OF 2019** **4** from 02.07.2001 up to his regularisation in the Group D post in the year 2006 along with his regular service in the Group D post, for reckoning the former adhoc service for the limited purpose of pensionable service in terms of Rule 13 of CCS (Pension) Rules. The petitioner had commenced officiating/ adhoc service in the Group D service in the Postal Department as per Ext.P8 order dated 30.06.2001 issued by the competent Postal Authority concerned. The petitioner had continuous officiating/adhoc service in the said Group D post. Later, he was regularised in the post in the Group D service in the year 2006. In pursuance of Annexure R1 minutes of the proceedings of the Departmental Promotion Committee rendered on 17.07.2010, it is ordered in internal page No.2 of Annexure R1 (see page No.38 of the paper book of this O.P.) that the petitioner herein, Sri.C.P.Reghukumar has been shown as Sl.No.2 therein in the unreserved category and he has been given notional promotion/notional regularisation with effect from 01.02.2006 and he has been adjusted as against an unreserved vacancy in the Group D post of the year 2006. Annexure A3 is the consequential order dated 17.07.2010 issued by the 3[rd] respondent, Superintendent of Post Offices, Alappuzha Postal Division (see page No.25 the paper book of this O.P.), wherein the name of the petitioner herein has been shown as Sl.No.2 therein and he has been ordered to be **OP (CAT).No.232 OF 2019** **5** regularised in an unreserved vacancy of the year 2006 in the Alappuzha Postal Sub-Division. The petitioner has thereafter continued in regular service in the said Group D post and has retired from on 31.03.2015. It appears that the respondents herein have counted only the regular service of the petitioner in the Group D post from 01.02.2006, as shown in Annexure R1 for the purpose of reckoning his pensionable service in the Group D post. Claim of the petitioner is that even officiating/adhoc service could also be reckoned for the purpose of determining the pensionable service in the Group D post going by the mandate contained in Rule 13 of the CCS (Pension) Rules. The petitioner has placed reliance on the verdict rendered by the Tribunal in a similar or identical case as per Ext.P6 final order dated 09.04.2018 rendered by the Central Administrative Tribunal, Ernakulam Bench in the case **K.Haridasan v. Union of India & Ors.** in O.A. No.79 of 2014. 6. As mentioned hereinabove, the Tribunal has rejected the said plea of the applicant and has accepted the objections of the respondents and has thus dismissed the O.A. as per the impugned Ext.P7 final order dated 20.06.2019 in the instant O.A.No.491 of 2015. A reading of para No.5 on internal page No.3 of Ext.P7 (see page No.141 of the paper book of this O.P.) would show that the petitioner has placed reliance on the abovesaid verdict of the Tribunal in **OP (CAT).No.232 OF 2019** **6** **K.Haridasan v. Union of India & Ors** . rendered in O.A.No.79 of 2014 by the CAT, Ernakulam Bench (Ext.P6 herein). The Tribunal has found in para No.5 of Ext.P7 that the facts in the instant case are clearly distinguishable from the one in **K.Haridasan’s** case (supra). Reasonings of the Tribunal for arriving at the said conclusion that the instant case is distinguishable from **K.Haridasan’s** case (supra) are given in para No.6 of the impugned Ext.P7 order on internal page No.4 thereof (see page No.142 of the paper book). Before analyzing the correctness or otherwise of the reasonings given by the Tribunal in Ext.P7 order for rejecting the petitioner’s O.A. as per Ext.P7 order, it will be pertinent to refer to the provision made in the statutory rule in terms of Rule 13 of the Central Civil Services (Pension) Rules, 1972 which reads as follows: ## _**“13. Commencement of qualifying service**_ _Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity :_ _Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post :_ _Provided further that –_ - _(a) in the case of a Government servant in a Group `D' service or post who held a lien or a suspended lien on a permanent pensionable post prior to the 17th April, 1950, service rendered before attaining the age of sixteen years shall not count for any purpose, and_ **OP (CAT).No.232 OF 2019** **7** - _(b) in the case of a Government servant not covered by Clause (a), service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity._ - _(c) the provisions of Clause (b) shall not be applicable in the cases of counting of military service for civil pension under Rule 19.”_ 7. A reading of the above Rules would make it clear that the operative portion of Rule 13 would mandate that, subject to the provisions of the CCS Rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. The first proviso to the said Rule would stipulate that this is so provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post. The second proviso thereto consists of three clauses as per clauses (a), (b) and (c) thereof. Clause (a) to the second proviso is not applicable in the instant case inasmuch as it deals with cases which have occurred prior to 17[th] April, 1950. Clause (b) would stipulate that in a case of a Government servant not covered by clause (a), service rendered before attaining the age of 18 years shall not count, except for compensation gratuity. A reading of internal page No.2 of Annexure R1 would show that date of birth of the petitioner herein (shown as Sl.No.2 thereof) is 24.03.1955. So, obviously the petitioner’s case will not be affected by the condition in clause (b) of the second proviso to Rule 13 **OP (CAT).No.232 OF 2019** **8** inasmuch as the service rendered by the petitioner is much after the cut of age of 18 years. Clause (c) of the second proviso would further stipulate that the provisions of clause (b) of the second proviso shall not be applicable in cases of counting of military service for civil pension under Rule 19 of the CCS (Pension) Rules. Clause (c) of the second proviso would also in any manner detrimentally affect the case of the petitioner inasmuch as clause (b) itself is not applicable to his case. Thus it can be seen that if an incumbent like the petitioner can satisfy the requirements the operative portion of Rule 13 of CCS (Pension) Rules as well as its first proviso, then such an incumbent is entitled to count his initial adhoc/officiating service, for the purpose of reckoning the same as pensionable service in the post, to which he is substantively/regularly appointed later, provided that the officiating or temporary service is followed without interruption by substantive appointment in the same post or another service or post as envisaged in the first proviso to Rule 13. 8. Indisputably, the case in **K.Haridasan’s** case (supra) covered by Ext.P6 order of the Tribunal was found to be squarely covered by the provisions in the operative portion of Rule 13 of CCS (Pension) Rules and its proviso. In the instant case, there is no dispute that as per Ext.P8 order dated 30.06.2001 the petitioner was appointed **OP (CAT).No.232 OF 2019** **9** on officiating/adhoc service in the Group D post in the Postal Department. There is also no dispute that the petitioner had continuous officiating/adhoc service till his regularisation in the Group D post in terms of Annexure R1 DPC proceedings dated 17.07.2010 and as followed by Annexure A3 appointment order dated 17.07.2010, which would make it clear that the petitioner has been regularised in the Group D post with effect from 01.02.2006 in an unreserved vacancy in the year 2006. In other words, it is common ground that the petitioner had continuous officiating/adhoc service in the Group D post ever since his first appointment in terms of Ext.P8 appointment order dated 30.06.2001 up to his regularisation in the Group D post as above. In other words, the continuous officiating/ad hoc service of the petitioner in the Group D post is for the period from 30.06.2001 up to 31.01.2006. The regular service of the petitioner in the Group D post is from n 01.02.2006 (as ordered in Annexure R1), up to his date of retirement o 31.03.2015. In the instant case only the regular component of his service in the Group D post has been counted for the purpose of n reckoning his pensionable service after his retirement from service o 31.03.2015. Whereas the contention of the applicant is that he is entitled for the benefit of Rule 13 and its proviso of the CCS (Pension) Rules for counting even the continuous officiating/adhoc service in the **OP (CAT).No.232 OF 2019** **10** Group D post in terms of Ext.P8 order dated 30.06.2001 up to 31.01.2006 and that the said officiating/adhoc service in the Group D post should be counted along with the regular service from 01.02.2006 up to 31.03.2015 for reckoning his qualifying pensionable service in terms of Rule 13 of the CCS (Pension) Rules. The only reasoning given by the Tribunal to disallow the said plea of the petitioner is made out in para No.6 of the impugned Ext.P7 final order given on internal page No.4 thereof (see page No.142 of the paper book). The reasoning adopted by the Tribunal is that there was only one vacancy available in unreserved category and the applicant is not the senior most GDS available and one Sri.V.Karthikeyan, GDS MD was the senior most candidate for the Group D post and he has been notionally given the benefits of regularisation on the lone vacancy in the year 2002 through his legal heir. The next regular vacancy available was only in the year 2006 which has been assigned to the petitioner (as per Annexure R3 proceedings of the DPC). Further the Tribunal would state that since there was only one vacancy in the year 2002, two persons cannot be regularised and that if the applicant has a case contrary to this, he should have challenged the same by making Sri.V.Karthikeyan or his legal representative, a party in the O.A. in accordance with the law, etc. **OP (CAT).No.232 OF 2019** **11** 9. After hearing both sides, we are of the considered view that the Tribunal has gone wrong entirely in stating the said grounds of the rejection. The said reasonings are to say the least, specious. The Tribunal goes on a tangential premise as if the claim of the petitioner herein is for regularisation. The petitioner has not sought for regularisation in the year 2002. On the other hand, the petitioner has no dispute that the sole vacancy of the year 2002 has been assigned to his senior, through his legal representative and that the only vacancy available for regularisation of the petitioner in terms of Annexure R3 was the one which occurred in the year 2006 and the petitioner has been regularised as per Annexure R3 read with Ext.P1(A3) with effect from 01.02.2006. What is involved in this case is that the Tribunal has overlooked, by not adverting to the crucial aspect that what is claimed by the petitioner is not regularisation in the year 2002 but that his continuous adhoc/officiating service in the Group D post for the period from 30.06.2001 up to 31.01.2006 along with his regular service for the period from 01.02.2006 up to his date of retirement on 31.03.2015. This claim is made by the petitioner on the basis of the statutory mandate contained in Rule 13 of the CCS (Pension) Rules. Therefore, the abovesaid aspects pointed out by the petitioner are totally irrelevant and not germane to the issue at hand. Further, it is also admitted by **OP (CAT).No.232 OF 2019** **12** both sides that the incumbent, who was senior to the petitioner, one Sri.V.Karthikeyan had given his no objections in giving the adhoc/officiating appointment to the petitioner in the Group D post in the Postal Department as per Ext.P8 order dated 30.06.2001. There is no dispute from any quarters that the petitioner has continuous officiating/adhoc service in the Group D post for the period from 30.06.2001 onwards up to his regularisation in the Group D post in terms of Annexure R1 read with Annexure A3. So, merely because a senior incumbent had voluntarily given his no objection to enable the petitioner to secure the officiating/adhoc appointment in the Group D post pursuant to Ext.P8 order dated 30.06.2001 is no ground to say that the said officiating/adhoc service of the petitioner cannot be counted for the purpose of pension. With wide and open eyes the senior incumbent had relinquished his claim for the purpose of the said adhoc/officiating appointment. The respondent Postal Department Authorities, after taking into consideration all relevant aspects in the matter and also taking note of the fact that the petitioner is the next senior most eligible claimant has given the benefit of officiating/adhoc appointment in the Group D post on 30.06.2001 as per Ext.P8. Therefore, the aforesaid so-called reasonings based on the objections by the respondents in O.A. as reflected in para No.6 of Ext.P7 **OP (CAT).No.232 OF 2019** **13** order are absolutely untenable cannot be countenanced in law as the said grounds are irrelevant and not germane to the matter in issue. We accordingly declare so. No other objections have been raised by the respondents in the O.A. In other words, indisputably, the petitioner has continuous officiating service in the Group D post from 30.06.2001 as covered by Ext.P8 up to 31.01.2006, that is the day prior to his regularisation with effect from 01.02.2006 in terms of Annexure R1 read with Annexure A3. Analysing abovesaid factual scenario in the legal framework of the operative portion of Rule 13 and its proviso it can be seen that the petitioner has satisfied all the eligibility conditions in Rule 13 of the CCS (Pension) Rules. The case of the petitioner is covered in terms of Annexure A6 order rendered by the Tribunal in a similar case in **K.Haridasan’s** case (supra). Hence, it is ordered and declared that the respondents herein are legally obliged to count the officiating/adhoc service of the petitioner in the Group D post for the period from 30.06.2001 up to 31.01.2006 along with the regular service for the period from 01.02.2006 up to the date of his retirement on 31.03.2015 for the purpose of reckoning his pensionable service as mandated in Rule 13 of the CCS (Pension) Rules. Consequently it is ordered that the impugned Ext.P7 final order dated 20.06.2019 rendered by the CAT, Ernakulam Bench in O.A.No.491 of 2015 against **OP (CAT).No.232 OF 2019** **14** the petitioner will stand set aside. For these reasons, it is ordered that the impugned Annexure A1 rejection order dated 19.12.2014 issued by the third respondent Superintendent of Post Offices is illegal and ultra vires and cannot have any legs to stand in the eye of law. In that view of the matter, it is ordered that the impugned Annexure A1 rejection order dated 19.12.2014 rendered by the 3[rd] respondent will stand set aside and quashed. Revised orders in that regard shall be duly passed by the competent authority of the respondents without any further delay, at any rate within two months from the date of production of the certified copy of this judgment. 10. The petitioner’s counsel may forward copy of this judgment to the competent authority of the respondents for necessary action and immediate compliance. With these observations and directions, the above Original Petition (CAT) will stand finally disposed of. **Sd/ALEXANDER THOMAS JUDGE** **Sd/K. BABU JUDGE** **SCS** **OP (CAT).No.232 OF 2019** **15** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE OA NO.491 OF 2015 SUBMITTED BY THE PETITIONER.** **EXHIBIT P1(A1) A TRUE COPY OF THE ORDER NO.B2/STAFF/MISC. DATED 19.12.2014 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P1(A2) A TRUE COPY OF THE CIRCULAR NO.CO/LC/OA/32/08 DATED 08.07.2010 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P1(A3) A TRUE COPY OF THE MEMO NO.B2/GROUP D DATED 17.07.2010 ISSUED ON BEHALF OF THE 3RD RESPONDENT.** **EXHIBIT P1(A4) A TRUE COPY OF THE REPRESENTATION DATED 19.07.2014 SUBMITTED BY THE APPLICANT TO THE REGIONAL PMG.** **EXHIBIT P1(A5) A TRUE COPY OF THE CHARGE REPORT DATED 05.09.2001 OF THE PETITIONER. EXHIBIT P2 A TRUE COPY OF THE REPLY STATEMENT DATED 16.09.2015 SUBMITTED BY THE RESPONDENTS. EXHIBIT P2(R1) COPY OF DPC MINUTES DATED 17.07.2010. EXHIBIT P2(R2) TRUE COPY OF THE LETTER NO.ST/80-5/03 DATED 11.02.2005.** **EXHIBIT P2(R3) COPY OF MINUTES DATED 17.02.2005. EXHIBIT P2(R4) A TRUE COPY OF ORDER DATED 15.07.2004 IN OA 446/2002. EXHIBIT P3 A TRUE COPY OF THE REJOINDER STATEMENT FILED BY THE PETITIONER AGAINST EXHIBIT P2.** **EXHIBIT P3(A6) A TRUE COPY OF THE APPLICATION DATED 21.12.2015 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.** **EXHIBIT P3(A7) A TRUE COPY OF THE LETTER DATED 19.01.2016 ISSUED BY THE 3RD RESPONDENT.** **OP (CAT).No.232 OF 2019** **16** **EXHIBIT P4** **A TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE RESPONDENTS.** **EXHIBIT P4(R5)** **A TRUE COPY OF THE AFFIDAVIT FILED IN CP(C)NO.95/2009 IN OA 352/2008.** - **EXHIBIT P4 (R6) A TRUE COPY OF THE ORDER DATED 28.09.2011 IN OA NO.145/2010.** - **EXHIBIT P4 (R7) A TRUE COPY OF THE ORDER DATED 18.08.2015 IN OA NO.553/2012.** - **EXHIBIT P4 (R8) A TRUE COPY OF THE ORDER DATED 31.05.2016 IN OA NO.135/2013.** - **EXHIBIT P5 A TRUE COPY OF THE JUDGMENT IN WP(C)NO.34512 OF 2009 DATED 23.12.2009.** - **EXHIBIT P6 A TRUE COPY OF THE ORDER IN K.HARIDASAN V.UNION OF INDIA, OA NO.79 OF 2014 OF THE HON'BLE TRIBUNAL.** **EXHIBIT P7 A TRUE COPY OF THE ORDER OF THE TRIBUNAL DATED 20.06.2019 IN OA NO.491 OF 2015.** - **EXHIBIT P8 A TRUE COPY OF THE APPOINTMENT ORDER NO.13/00-01 DATED 30.06.2001 ISSUED BY THE POSTMASTER, ALAPPUZHA.** - **EXHIBIT P9 A TRUE COPY OF THE CHARGE REPORT DATED 30.06.2001.** - **EXHIBIT P10 A TRUE COPY OF THE REPRESENTATION DATED 17.03.2015 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.** **EXHIBIT P11 A TRUE COPY OF THE ORDER NO.B3/MISC/ALPY SUB DN DATED 05.04.2005 ISSUED BY THE 3RD RESPONDENT.**