ke.
O.A.No. 180/00020/2015
O.A.No. 180/00020/2015
Monday this the 15th day of February, 2016
CORAM:
1. Sheeba B., Aged 32 years,
W/o Praveen K,
Postal Assistant, Karivallur P.O. 670 521
Residing at ‘Parvathi’, Karivellur,
Kannur District
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
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.
the Secretary to the Government,
Ministry of Communication,
Department of Posts,
New Delhi 110 011.
2. The Chief Postmaster General,
Kerala Circle,
Thiruvananthapuram – 695033.
Kerala Circle,
Thiruvananthapuram – 695033.
3. The Superintendent of Post Office,
Department of Posts,
Kannur 670 001,
Kannur District. . . . . Respondents
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 notification 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.
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)