GDS service to be taken for shortfall of Pensionary service

Short fall in Qualifying Service for grant of minimum pension shall be taken from GDS period of employment- An Historical Decision by CAT Madras Bench upheld by Honourable Madras High Court and the Supreme Court followed by an Order by the Department of Posts.

1. CAT ORDERS.
CENTRAL ADMINISTRATIVE TRIBUNAL: MADRAS BENCH
Thursday, the 18th day of April 2002 (18-4-2002)
PRESENT
The Hon'ble Shri S. Manickavasagam, Member (A)
and
The Hon'ble Shri A. SATHATH KHAN, Member (J)
O.A.No. 1264 of 2001
M.R. Palanisamy ....Applicant

Vs

UOI rep. by
1. The Secretary
Department of Posts
Dak Bhavan
New Delhi-110 001

2. The Chief Post master General
Tamil Nadu Circle, Chennai-2

3. The Superintendent of Post Offices
Tirupur division
Tiruppur-641 601 .....Respondents
......................

Mr. S.Ramaswamy Rajarajan.. Advocate for the applicant
Mr. G. Nanmaran .. Advocate for the respondents

Order : Pronounced by the Hon'ble Shri S.MANICKAVASAGAM MEMBER (A)

Briefly stated the case of the applicant is as follows:-

2. The applicant served as an ED BPM from 1.6.1963 to 1.7.1992. Thereafter he was promoted to the Gr. D cadre and on attaining the age of superannuation (60 years) the applicant retired from service on 31.10.2001. It is the case of the applicant that since he had completed only 9 years, 3 months and 29 days in the Gr. D cadre, he has not been granted any pension as it is less than the minimum of pensionable service of 10 years. Though he made representations requesting the respondent department to reckon a portion of his service as EDBPM as qualifying service to get over the shortfall of a few months which would enable him to draw the pro-rata pension, this was turned down by the respondent department. Hence the present OA.

3. The thrust of the reply filed by the respondents is to the effect that the service rendered in ED Posts are not pensionable service posts. It is further averred that since the applicant had rendered only 9 years and 3 months as a qualifying service, he is not entitled for any pro-rata pension. As per the relevant Pension Rules, an employee who has not completed 10 years of regular service is not entitled for pension and is entitled to only service gratuity/retirement gratuity and accordingly the applicant was paid a sum of Rs. 28120 as retirement gratuity and Rs. 20387 as service gratuity. The respondents have prayed that the OA is liable to be dismissed as devoid of merit.

4. We have heard the learned counsel for both sides and perused the records.

5. At the outset, we find that the applicant had worked as an ED BPM from 1.6.1963 to 1.7.1992. In the normal course, had the applicant continued to work as an ED BPM he would have continued up to the age of 65 years and could have continued in service even now. But in view of the fact that he was promoted to the Gr. D cadre he had to retire at the age of 60 years which is the age of superannuation in Govt. service. Thus promotion in the instant case has come to mean reduction in the age of retirement by five years. Under such circumstances it is to be seen that the reduction in the retirement age in any way is compensated to the applicant. It may be true that as a Gr. D employee the applicant would have received higher pay and allowances. Therefore, to earn the increased pay and allowances the applicant was required to work full-time. But on the contrary as an ED BPM, which was only a part-time job, it carried a lesser salary. Thus, the increased working hours as a Gr. D employee had resulted in increase in wages. In other words the applicant had not gained much by way of promotion.

6. The pertinent factor in this case which requires a mention is that the applicant had lost five years of service as an ED BPM and in return he is not getting even the minimum pension because persons who complete 10 years of service alone are eligible for the pro-rata pension. Further, had the applicant served for another three months he would have become eligible for prorata pension as he would have completed 20 half-yearly periods but no his credit he has only the half yearly periods and therefore he is not eligible for any pension. In other words all the service rendered by him as an ED BPM to the extent of 29 years are of no use in so far as the pension is concerned. It is this aspect of the matter which required consideration.

7. Keeping the above point in mind we would like to observe that in cases where the employees had been dismissed or removed from service they are also eligible to get what is called 'compassionate allowance' not exceeding 1/3rd of the pension according to Rule 41(1) of the CCS(Pension) Rules which is subject to the orders of competent authority. But in the instant case even though the applicant had served for nearly 29 years as an ED BPM, he is not eligible for any pension because he fell short of one half-yearly period. Therefore, this is a matter which requires to be examined by the highest authority after an indepth analysis into the whole matter.

8. At the time of arguments, the learned counsel for the applicant made a fervent plea that in the Railways, for the casual labourers with temporary status, 50% of the temporary status service is taken into account for purposes of qualifying service subsequent to their absorption against regular posts in Gr. D cadre and this benefit has been extended to the temporary status casual labourers for extending the pensionery benefits. Therefore, applying the above analogy to the case on hand and as a model employer, the respondent department ought to have come forward to reckon a portion of the service rendered as ED BPM as a qualifying service which would enable persons like the applicant to draw the minimum pension. As again the above suggestion of ours, there can be two opinions, one in favour of the suggestion and the other against.
In this connection we would like to place reliance on the Justice Talwar Committee's recommendations to resolve the issue on hand in the interest of justice, based upon which the Dept. of Posts had issued an OM dated 17.12.1998 and the subsequent clarificatory circular dated 10.8.1999, and the relevant portion is extracted below:-

"(f) Severance amount on retirement/death:- A lumpsum severance amount of Rs. 30,000/- may be paid only on retirement of an ED Agent at the age of 65 years or on the death of an ED Agent, provided he/she has completed a minimum of 20 years of continuous service.
However, in case of an ED Agent who has completed continuous service equal to or more than 15 year but less than 20 years of continuous service, the severance amount shall be only Rs. 20,000 on retirement or death. These provisions will be effective from the date of issue of these orders.
(g) Severance amount on absorption on regular basis- Severance amount of Rs. 20,000/- may be paid to an ED Agent who has been absorbed on a regular basis against a departmental post after 15 years of continuous service as ED Agent. This provision will be effective from the date of issue of these orders".

9. A conjoint reading of the above provisions would go to show that an EDA who had rendered a continuous minimum service of 20 years would be entitled for the severance amount of Rs. 30,000 and in the case of absorption of an EDA against a regular post in the department after rendering a continuous service as an EDA for 15 years, he would be entitled to severance amount of Rs. 20,000/-. In the instant case, we find that the applicant has rendered 29 years of service as an EDA before his promotion to the Group-D cadre. But the service rules for ED Staff are silent with regard to reckoning a portion of service as an ED Agent as a qualifying service on absorption as a regular Gr. D or on promotion as a Grou D against the departmental post. Here we would like to invite a reference to the OM dated 12.04.1991 issued by the DOPT with regard to regularisation of casual labourers are concerned. In the said scheme there is a clause stating that 50% the service rendered as temporary status employee will be reckoned as a qualifying service for regulating the retiral benefits after regularisation against Gr. D Posts. This provision is on similar lines prevailing in the Railways and other Govt. of India departments. In a nutshell the essence is that even in respect of casual labourers who get regularised at a subsequent date against regular Gr. D Posts. a portion of their service rendered with temporary status is reckoned as qualifying service for regulating the retiral benefits.

10. On the other hand, there is no such welfare scheme in respect of ED Agents. One reason may be that the ED Agents are part-time workers and therefore no weightage is called for. It is in this connection we would like to observe that a distinction has to be made in respect of a person who works as an ED employee and retires as such and a person who works for some time as an ED Agent and gets absorbed as a Gr. D official. In the former case since the employee retire as an ED Agent, there is no scope for any pension at all. On the other hand, in the latter case since the employee retires as a Gr. D official after regularisation, the department has to decide whether any weightage need be given for the services rendered by him as an ED Agent for well over several years.

11. The above point will have to be seen in the light of the fact that on regularisation as a Gr. D employees, the age of superannuation of the employee gets reduced from 65 years. Surely this amounts to a reduction in the superannuation age and deserves to be adequately compensated. Thus it would appear that on promotion to the Gr. D cadre, the ED employee does not gain and on the contrary he seems to be more on the losing side. We therefore hold that this position has to be adequately corrected by reckoning a portion of the service rendered as an EDA as a qualifying service for pensionary purposes.

12. We would like to observe that this need not be 50% of the service as in the case of a casual labourer with temporary status, but perhaps a lesser percentage may be reckoned as a qualifying service in respect of the service rendered as an ED Agent. This can be any where around 20 to 25%. But, to say that no weightage will be given to the service rendered as an ED Agent, even after regularisation on absorption or, promotion as a Gr. D employee will not be in harmony with other schemes obtaining in other departments of the Govt. Principles of equity and fair play require that certain portion of the service rendered as an EDA should be reckoned as a qualifying service for pension purposes and if that is done, persons like applicant would get over the shortfall and it will entitle them for at least minimum pension, especially when similar benefits are extended to persons working in Railways and other departments of the Govt. of India. In short, it would appear that after regularisation, the ED Agent does not get the same treatment as in the case of a casual labourer. This is an anomalous situation. We therefore hold that this is a fit case where the respondents as a model employer should apply their mind and formulate a welfare scheme as has been formulated by the DOPT and Railways which would help many persons like the applicant to get at least the minimum pension.

13. Thus, we are convinced that the applicant's case deserves a sympathetic consideration in view of the fact that there is absolutely no provision in the service rules for ED Staff for pension on absorption as regular Gr. D. We are constrained to observe that it is for the respondent department to take into account the overall picture and then take a sympathetic view.
14. We further find that the impugned order has been issued by the superintendent of Post Offices which in our opinion is not proper as he is not the competent authority to consider the case of the applicant. This is a matter which should be considered at the highest level and the first respondent alone is the competent authority.

15. In the light of the discussion above, we hold that the ends of justice would be met if the following or areal are passed:-
(a) The impugned order dated 6.11.2001 is quashed.
(b) The first respondent is directed to consider the case of the applicant in a proper perspective and formulate a scheme as has been formulated by the DOPT in their, scheme issued in the OM or 12.04.1991 as also in the Railways, by giving weightage for certain percentage or service rendered as an ED Agent for reckoning the same as a qualifying service for purposes of pension in respect of persons who get absorbed or promoted against regular Gr. D posts in the department which would enable such employees to get the minimum pension. This exercise shall be completed within four months of receipt of a copy of this order by the respondents.

16. We are directing the Registry to send a copy of this order direct to the first respondent in view of the importance involved in this case and for expecting action thereon.

17. The OA is allowed to the extent indicated above with no order as to costs.

2. SLP DISMISSED

ITEM No.15 COURT NO.10 SECTION XII
SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil)........./2008 CC 13829/2008
(From the judgement and order dated 04/10/2007 in WP No. 45465/2002 of THE HIGH COURT OF MADRAS)
SECRETARY DEPARTMENT OF POST & ORS. Petitioner (s)
VERSUS
M.R. PALANISAMY Respondent(s)

With A 1 (c/delay in filing SLP)
Date: 17/10/2008 This Petition was called on for hearing today

CORAM:
HON'BLE MR. JUSTICE LOKESHWAR SINGH PANTA
HON'BLE MR. JUSTICE AFTAB ALAM

For Petitioner(s) Mr. B.Dutta, A.S.G.
Mrs. Rajani Ohri Lal, Adv.
Mr. B.K. Prasad, Adv.
Mrs. Anil Katiyar, Adv.
For Respondent (s)
UPON hearing counsel the Court made the following

ORDER
Delay condoned
The special leave petition is dismissed. However, the question of law is left open to be decided by appropriate court in appropriate case.
Sd/- Sd/-
(A.D. Sharma) (Phoolan Wati Arore)
Court Master Court Master

3. ORDER IMPLEMENTING THE CAT DECISION

Dept. of Posts No. 99-3/08-Pen Dated 09.10.2009
Sub. : WP No. 45465/W.P.M.P No. 66391 filed by Shri M.R. Palaniswamy retired Group D Tiruppur. Tamilnadu Circle WP
I am directed to refer to your office letter DO letter No. APA/86-237/2002 dated 24.03.2009 regarding the abovementioned subject
Approval of Deptt. of Pension & Pensioner' Welfare, is hereby conveyed for implementation of the Order/Judgement dated 4.10.2007of High Court of Chennai in WP No. 45465 of 2007 arising out of CAT Chennai OA No. 1262 of 2001, as a special relief of Shri M.R. Palaniswamy, Retired Group 'D' Tiruppur, by sanctioning at least the minimum pension by making up the shortfall in service to the extent of shortfall by taking into account the EDA period of employment
Yours faithfully,
(A.K. Sharma)
Deputy Director General (Estt)