karsanbhai m solanki vs POSTS on 15 October 2026

ORDER

Per: Hon’ble Shri Sanjiv Kumar, Member (A)

1. The question of facts & law as well the prayer sought by the applicants are common in nature in both the OAs, therefore, the present OAs are being disposed of together with the consent of learned counsel for the parties. For the sake of convenience, OA No. 35/2022 has been taken up as lead case. 1.1 Applicant has filed the present OA, under Section 19 of the Administrative Tribunal Act, 1985, seeking following reliefs: “i) May be pleased to admit and allow present original application.

ii) May be pleased to direct the respondents to extend coverage of CCS (Pension) Rules 1972 to the applicant.

iii) May be pleased to direct the respondents to grant monthly pension to the applicant from June 2021 onwards and effect payment of arrears arising therefrom.

iv) May be pleased to direct the respondents to draw and disburse all the retiral benefits to the applicant as admissible under CCS (Pension) Rules 1972.

And v) May be pleased to grant such other and further relief as deemed appropriate.

2. Brief facts of the case as stated by the applicants are as under: - 2.1 The applicant was initially engaged as a Gramin Dak Sevak (GDS) in the Surendranagar Postal Division on 06.02.1984. He participated in the departmental competitive examination conducted for recruitment to the cadre of Postman/Village Postman/Mail Guard on 08.06.2003. 2.2 The applicant was declared successful and included among the approved candidates for appointment to the Postman cadre vide memorandum dated 18.11.2003. 2.3 The said examination was conducted for vacancies pertaining to the year 2003 and he had successfully completed the selection process before the introduction of the New Pension Scheme with effect from P ANUKUMA

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01.01.2004. He submits that the subsequent delay in issuing his appointment order should not alter his entitlement to pensionary benefits under the Old Pension Scheme. 2.4 An order dated 28.07.2006 was issued directing the successful candidates, including the applicant, to undergo ten days of training from 10.08.2006 to 19.08.2006. The candidates were thereafter required to await their allotment and appointment orders. Subsequently, vide memorandum dated 19.09.2006, the applicant was allotted to the concerned unit in the Postman cadre. 2.5 In the meantime, the New Pension Scheme had been introduced for Central Government employees appointed on or after 01.01.2004, subject to the applicable provisions. Consequently, the applicant was covered under the New Pension Scheme. The Department of Pension and Pensioners’ Welfare, Government of India, issued an Office Memorandum dated 17.02.2020 bearing No. 57/04/2019-P&PW(B), providing a one-time option for coverage under the CCS (Pension) Rules, 1972, to specified categories of Central Government employees whose selection for appointment had been finalised before 01.01.2004 but who joined Government service on or after that date. 2.6 Relying upon the aforesaid Office Memorandum, the applicant submitted a representation dated 28.10.2020 requesting that he be permitted to exercise the option for coverage under the Old Pension Scheme. He subsequently submitted another representation dated 22.04.2021. 2.7 The Department of Pension and Pensioners’ Welfare issued a further Office Memorandum dated 31.03.2021 extending the time limit for exercising the option up to 31.05.2021 and for consideration of the representation by the appointing authority up to 30.09.2021. 2.8 The respondents examined the applicant’s request and vide impugned order dated 14.07.2021, rejected his claim. The rejection was based primarily on the view that the available official records did not establish that the applicant had been selected against a vacancy arising before 01.01.2004. P ANUKUMA

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2.9 The applicant thereafter submitted a representation dated 23.07.2021 before the Postmaster General, Saurashtra and Kachchh Region, Rajkot, challenging the rejection. The respondents state in their reply that the matter had been forwarded to the higher authority and that a decision on the representation was awaited.

3. Submissions of learned counsel for the applicant 3.1 Learned counsel for the applicant submits that the applicant participated in the departmental competitive examination conducted on 08.06.2003 and was declared successful on 18.11.2003. His selection was thus finalised before the introduction of the New Pension Scheme on 01.01.2004. Despite his selection in November 2003, the respondents issued the training order only on 28.07.2006 and the allotment order on 19.09.2006. Learned counsel contends that the applicant cannot be made to suffer a recurring financial disadvantage in his retirement merely because the department took an unduly long time to complete the appointment process. 3.2 Learned counsel further submits that the applicant had been serving in the postal establishment as a GDS since 1984 and that his subsequent appointment to the Postman cadre was through a departmental competitive examination. It is contended that the applicant should not be treated as a person whose selection process commenced only after the introduction of the New Pension Scheme. Learned counsel for the applicant by referring to the Office Memorandum dated 17.02.2020, submits that the Government itself recognised that certain employees whose selection had been finalised before 01.01.2004 but who joined service subsequently could be considered for coverage under the Old Pension Scheme. 3.3 Learned counsel also relies upon the Office Memorandum dated 31.03.2021, by which the time limits for exercising the option and deciding representations were extended. It is submitted that the applicant submitted his representation on 28.10.2020, well within the extended period, and was therefore entitled to a proper consideration of his claim under the prescribed procedure. P ANUKUMA

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3.4 In this regard, learned counsel for the applicant placed reliance on the judgment of the Hon’ble Delhi High Court in Parmanand Yadav and Others v. Union of India and Others, W.P. (C) No. 3834/2013, decided on 12.02.2015, as well as the judgment in W.P. (C) No. 2810/2016, decided on 27.03.2017. It is submitted that the aforesaid judgments recognise the principle that employees should not be deprived of the Old Pension Scheme merely because appointment letters were issued after the introduction of the New Pension Scheme. 3.5 Learned counsel for the applicant argues that the respondents have failed to distinguish the applicant’s case on any legally sustainable basis. The rejection of the representation without adequately considering the circumstances leading to the delay in appointment is contrary to the principles of fairness and equality embodied in Articles 14 and 16 of the Constitution of India. 3.6 Learned counsel further submits that the impugned order does not satisfactorily explain why the applicant’s selection in November 2003 was insufficient for the purpose of determining pension coverage. It is contended that the decision has been taken without proper application of mind and deserves to be set aside and the respondents be directed to extend the benefit of the Old Pension Scheme to the applicant, together with all consequential pensionary benefits admissible in law.

4. Submissions of learned counsel for the respondents 4.1 Per contra, learned counsel for the respondents denied the claim of the and submitted that applicant is not entitled to coverage under the Old Pension Scheme because he joined the Postman cadre only on 01.10.2006. 4.2 Learned counsel for the respondents further submits that the New Pension Scheme was introduced with effect from 01.01.2004 and that Central Government employees appointed on or after the prescribed cut-off date are ordinarily governed by the New Pension Scheme, subject to the applicable exceptions and subsequent Government instructions. P ANUKUMA

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4.3 It is contended that the applicant’s inclusion in the list of approved candidates on 18.11.2003 does not establish that he was selected against a vacancy arising on or before 31.12.2003. The date on which a candidate is declared successful and the date or year of the vacancy against which the candidate is appointed are distinct matters. 4.4 Learned counsel for the respondents also draws attention to the training order dated 28.07.2006 and the allotment memorandum dated 19.09.2006. It is submitted that the applicant was allotted against a clear vacancy available in the concerned unit in 2006 and joined the Postman cadre with effect from 01.10.2006. 4.5 Learned counsel further submits that, upon receipt of the applicant’s representation dated 28.10.2020, the relevant service records and examination file were examined. However, the records available with the department did not establish that the examination conducted in 2003 related to vacancies arising before 01.01.2004. A letter dated 22.09.2006 addressed to the Regional Office, Rajkot, referred to the non-availability of vacancies in the Postman cadre and the consequent inability to accommodate the approved candidates at the relevant time. The respondents rely upon this correspondence to explain why the appointment and allotment process was completed only in 2006. 4.6 In this regard, learned counsel places reliance on paragraph 7(ii) of the Office Memorandum dated 17.02.2020. The said provision excludes the benefit of switching over from the New Pension Scheme to the Old Pension Scheme in cases where the name of a candidate was included in a panel prepared before 01.01.2004 for vacancies arising both before and after that date, but the candidate was actually appointed after 31.12.2003 against a vacancy arising on or after 01.01.2004. It is submitted that the applicant’s case falls within the aforesaid exclusion because the available record does not establish that his appointment was against a pre-01.01.2004 vacancy. Accordingly, the respondents contend that the applicant cannot claim coverage under the Old Pension Scheme merely on the basis of the date of declaration of the examination result. P ANUKUMA

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4.7 Learned counsel further submits that the judgments relied upon by the applicant arose in different factual circumstances and cannot be applied without examining the nature of the selection, the relevant vacancies and the terms of the applicable Government instructions. 4.8 The respondents also contend that the applicant had submitted a representation dated 23.07.2021 before the Postmaster General, Saurashtra and Kachchh Region, Rajkot, against the order dated 14.07.2021. The said representation was pending for consideration when the present OA was filed and the applicant had approached the Tribunal without awaiting the decision of the higher authority. It is therefore submitted that the impugned order was passed after examination of the available records and in accordance with the applicable pension instructions. Hence, the OA deserved to be dismissed due to devoid of merits.

5. Applicant has also filed rejoinder and reiterated the submissions made in the OA.

6. Heard learned counsel for the parties and perused the material available on record.

7. The question that arises for consideration in the present OA is whether the applicant, who was declared successful in the departmental competitive examination conducted on 08.06.2003 and whose name was included in the list of approved candidates vide memorandum dated 18.11.2003, can be denied the benefit of coverage under the Central Civil Services (Pension) Rules, 1972, merely because his appointment to the Postman cadre was issued after 01.01.2004. 7.1 It is an admitted position that the applicant was initially engaged as a Gramin Dak Sevak on 06.02.1984 and subsequently participated in the departmental competitive examination conducted on 08.06.2003 for recruitment to the Postman cadre. His name was included in the approved list of candidates on 18.11.2003. However, the training order was issued only on 28.07.2006, followed by the allotment memorandum dated 19.09.2006, and the applicant joined the Postman P ANUKUMA

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cadre with effect from 01.10.2006. Consequently, the applicant was brought under the New Pension Scheme. 7.2 The applicant has contended that the selection process had been completed before the introduction of the New Pension Scheme with effect from 01.01.2004 and that the delay in issuing the appointment order was attributable to the administrative process of the respondents. On the other hand, the respondents have contended that the inclusion of the applicant’s name in the approved list before 01.01.2004 does not establish that he was appointed against a vacancy arising before the said date. They have further relied upon paragraph 7(ii) of the Office Memorandum dated 17.02.2020 to contend that the applicant is not entitled to the benefit of the Old Pension Scheme. 7.3 We find that the Office Memorandum dated 17.02.2020 was issued to provide a one-time option to specified categories of Central Government employees whose selection for appointment had been finalised before 01.01.2004 but who joined service on or after that date, subject to the conditions prescribed therein. The subsequent Office Memorandum dated 31.03.2021 extended the prescribed time limits for exercising the option and consideration of the representations. 7.4 The object of the aforesaid instructions is to provide relief to eligible employees whose selection had been finalised before the introduction of the New Pension Scheme but whose appointment was completed subsequently. The entitlement of an employee, however, has to be determined in accordance with the specific conditions contained in the applicable Office Memorandum. Therefore, neither the date of declaration of the result nor the date of joining can, in isolation, be treated as conclusive of the applicant’s entitlement. 7.5 In the present case, the applicant’s selection was finalised 18.11.2003, on the basis of Memo No. B2/2/2003 dated 18.11.2023 at Surendranagar which specifically mention that “The following GDS Employees are hereby declared successful and selected as approved candidates for appointment in Postman cadre against unfilled P ANUKUMA

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vacancies of Departmental Quota of the Division on the basis of merit Allotment orders of these APCs will be issued later on after completion of prescribed training” whereas the appointment was made in October 2006. The respondents have relied upon the non- availability of vacancies at the relevant time and the subsequent allotment of the applicant against a vacancy available in 2006. However, the mere fact that the appointment order was issued in 2006 does not, sufficiently explain the precise nature and year of the vacancy against which the applicant was ultimately appointed. The relevant vacancy position, the approved panel and the circumstances in which the applicant was accommodated require examination together in the light of the applicable Government instructions. 7.6 We are of the view that, while considering the applicant’s representation, the respondents were required to examine the relevant recruitment records and determine whether the applicant's case fell within the categories eligible for the one-time option under the Office Memorandum dated 17.02.2020. Such determination could not properly be made merely by referring to the date of joining or by stating that the available records did not establish the existence of a pre-01.01.2004 vacancy, without a reasoned examination of the relevant recruitment and vacancy records. 7.7 The applicant has specifically relied upon the memorandum dated 18.11.2003, the training order dated 28.07.2006 and the allotment memorandum dated 19.09.2006. These documents are relevant to the determination of his claim. The respondents were, therefore, required to examine the selection process, the vacancy position and the applicable provisions of the Office Memorandum together and record clear findings on the applicant’s eligibility. The impugned rejection dated 14.07.2021 does not satisfactorily resolve the issue concerning the applicability of the aforesaid instructions to the applicant’s case. 7.8 We also take note of the judgments relied upon by the learned counsel for the applicant, including Parmanand Yadav and Others v. Union of India and Others, W.P. (C) No. 3834/2013, decided on P ANUKUMA

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12.02.2015, and the judgment in W.P. (C) No. 2810/2016, decided on 27.03.2017. The principles laid down in the said decisions are required to be considered in the context of the facts of the present case and the subsequent Government instructions governing the one-time option. The respondents cannot disregard the applicant’s claim without examining the applicability of the relevant judicial precedents and the governing pension instructions. 7.9 As regards the contention of the respondents that the applicant’s representation dated 23.07.2021 was pending before the higher authority when the present O.A. was filed, we find that the said circumstance does not justify rejection of the applicant’s claim on merits. The respondents had already passed the order dated 14.07.2021 rejecting his request for coverage under the Old Pension Scheme. The respondents have neither passed speaking order on the applicant’s claim on 14.07.2021, nor disposed of his representation dated 28.10.2020. No useful purpose will be served by remanding the matter back to Appellate Authority in view of the fact the applicant has already retired and doing so will further delay the matter. The applicant was, therefore, entitled to challenge the said decision before this Tribunal in accordance with law. 7.10 An employee whose selection was finalised before the introduction of the New Pension Scheme is entitled to have his claim examined fairly, on the basis of the relevant records and the applicable rules. 7.11 The employee joined as GDS on 06.02.1984 and was appointed based on unfilled vacancy circulated vide letter dated 18.11.2003. Respondents have not been able to place any material on record which can substantiate their claim that he was appointed on vacancy arisen after 01.01.2004. His case is also strengthened by the judgment placed on record.

8. In view of the facts and circumstances discussed hereinabove: 8.1 The impugned order dated 14.07.2021 rejecting the applicant’s request for coverage under the Central Civil Services (Pension) Rules, 1972, is hereby set aside. P ANUKUMA

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8.2 Respondents are directed to appoint the applicant on the basis of established fact that vacancy arose as on 18.11.2003 and extend the consequential pensionary and retiral benefits admissible to him under the rules. 8.3 The aforesaid exercise shall be completed by the competent authority by passing a reasoned and speaking order within a period of three months from the date of receipt of a certified copy of this order.

9. Since the question of facts and law involved in both the Original Applications is common, both the OAs are allowed in the above terms.

10. There shall be no order as to costs.

11. MA pending if any, also stands disposed of.

(Sanjiv Kumar)

(Jayesh V Bhairavia)

Member (A)

Member (J)

//Anu//

P ANUKUMA