B. Rajasekharan vs Union Of India & Ors.

Per: Justice Sunil Thomas, Judicial Member –

The applicant was originally appointed as a GDS Mail Carrier in Vellappara Branch Office with effect from 1.11.1979. While so, in OA No. 312 of 2008 and connected cases, to which the applicant was not a party, this Tribunal had directed to fill up all the vacancies of MTS-Group-D post from 2000 onwards. The said order, along with connected cases, was the subject matter of challenge in a series of Writ Petitions No. 32491 of 2009 and connected cases. The Hon’ble High Court by Annexure A1 judgment directed the entire process of selection to be completed as expeditiously as possible with directions. Consequently, Annexure A2 circular was issued by the Assistant Director, Legal Cell of the respondents to complete the entire legal process of selection. An elaborate procedure was also laid down, inter alia in Annexure A2 in clause (viii) it was provided that “the appointments will be made retrospectively from the date of occurrence of vacancies and will be given notionally from that date”.

Consequent to the above selection process the applicant was appointed as a Group-D employee by Annexure A3 selection memo dated 18.1.2011 and was appointed with effect from 21.1.2011, Annexure A4 appointment order. However, in Annexures A3 and A4 it was stated that the period of notional service shall be counted only for the purpose of pension.

The applicant entered the Government service as Group-D employee with effect from 1.1.2007 notionally. He assumed charge with effect from 26.1.2011. Accordingly, he was placed under the NPS as his appointment was subsequent to 1.1.2004. He was granted severance amount of Rs. 20,000/- as an ex-GDS by Annexure A5 dated 30.9.2011 considering his date of termination as GDS as on 31.12.2006. Evidently, it was prior to the notional period of service as Group-D employee which was with effect from 1.1.2007. The applicant retired from service on 31.8.2015.

After retirement he submitted Annexure A6 representation dated 1.12.2017 contending that the benefits which he is entitled to after reckoning his notional period of service from 1.1.2007 was not reckoned and that his date of appointment was made retrospectively from the date of occurrence of vacancy and the direction that it will be granted notionally were not granted. He claimed retirement gratuity, service benefits/pensionary benefits reckoning notionally with effect from 1.1.2007 to 20.1.2011 for fixing the annual increment also. Since no action was taken the Original Application was filed. The reliefs sought are as under:

In the reply statement filed by the respondents it was contended that the Original Application was barred by limitation and hence liable to be dismissed. It was contended that the applicant approached the Tribunal after six years, that too, after his retirement on superannuation. It was contended that the applicant was appointed as Group-D notionally with effect from 1.1.2007 and he assumed charge as MTS at Pathanamthitta Head Office with effect from 21.1.2011. In the light of the specific stipulation in Annexures A3 and A4 orders, his notional appointment would be considered only for the purpose of pension. Therefore, it was decided by the competent authority that the GDS who are appointed in the cadre of MTS in compliance with the directions in OA No. 312 of 2008 will be eligible to count the service rendered as GDS only to the date prior to the date of their notional promotion as MTS and not up to their actual date of MTS and accordingly, severance amount was granted. It was admitted that at the time of retirement the applicant was not paid the gratuity. However, by OM dated 26.8.2016 produced as Annexure R2(a) it was decided that the Government employees covered by the NPS shall be eligible for the benefits of retirement gratuity and death gratuity on the same terms and conditions as applicable to the employees covered by CCS (Pension) Rules. It was found that the net qualifying service of the applicant was only 4 years, 7 months and 6 days and hence not entitled for retirement gratuity. This was intimated to the applicant by Annexure R2(b) communication. However, it was stated that the applicant’s case be considered for payment of retirement gratuity by counting the period of notional service also. However, regarding the entitlement of the applicant to ex-gratia gratuity for the GDS service rendered by him, as per DG’s letter dated 16.1.1968 as amended from time to time ED agents (now GDS) whose services were terminated will be sanctioned monetary benefits termed as Gratuity provided they have not put in less than 10 years of continuous satisfactory service as ED agents. They relied on Annexure R2(c).

Heard both sides and examined the records.

It is evident that by Annexure A3 it was stipulated that all the appointment of persons taken on service as Group-D employees, will be retrospectively from the date of occurrence of vacancies and will be given notionally from that date. However, if that be the general policy, a clause contrary to therein cannot be incorporated in Annexures A3 and A4.

It is pertinent to note that even for the purpose of granting severance amount his period has been reckoned up to 31.12.2006 and consequently the implication is that his period thereafter will be considered as notional service. Otherwise, he should have been entitled for severance amount counting it from his actual date of taking charge on 21.1.2011.

It is also pertinent to note that the respondents have now referred to Annexure R2(c) wherein by virtue of clause (1) therein, the applicant is held to be not entitled for the gratuity.

However, it is pertinent to note that the respondents cannot blow both hot and cold. By limiting the severance amount prior to the notional service and thereafter not considering it for any other purpose, has caused considerable prejudice to the applicant. We feel that this period has to be taken into consideration for reckoning his entire benefits as due to him. Accordingly, we are inclined to dispose of the Original Application with a direction to the respondents to consider his claims in the light of what is mentioned above and to pass appropriate orders as expeditiously as possible at any rate within a period of two months from the date of receipt of a copy of this order. Ordered accordingly. The entire amount, if any, due to him shall also be paid failing which it will carry 8% interest thereafter, till payment.

Original Application is disposed of as above. No order as to costs.