IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933 OP (CAT).No. 2394 of 2011(Z) ---------------------------- OA.299/2010 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH PETITIONERS: RESPONDENTS ---------------------------------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, DEPARTMENT OF POSTS, NEW DELHI-110001. 2. DIRECTOR GENERAL OF POSTS, DK BHAVAN, NEW DELHI-110001. 3. THE CHIEF POSTMASTER GENERAL, KERALA CIRCLE, TRIVANDRUM-33. 4. SENIOR SUPERINTENDENT OF POST OFFICES, TRICHUR DIVISION, TRICHUR-680001. BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA RESPONDENT: APPLICANT --------------------------------------- REGINOLD C.C., S/O.C.K.CHERU, ASSISTANT SUPERINTENDENT OF POST OFFICES (RETD), CHANGANASSERY SUB DIVISION, CHANGANASSERY RESIDING PERMANENTLY AT FORMS VILLA NO.12, SAKTHAN THAMPURAN NAGAR, TRICHUR-680001. BY ADVS. M/S. M.R.HARIRAJ, P.A.KUMARAN, SURAJ.S, VINEETHA B., NIRMAL V NAIR, K.RAJAGOPAL, ANISH JAIN & SMT.SARITHA NANDANAN. THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 22.8.2011, THE COURT ON 29.9.2011, DELIVERED THE FOLLOWING: O.P.(CAT) 2394/2011 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF ORIGINAL APPLICATION NO. 299 OF 2010 ALONG WITH ITS ANNEXURES FILED BY THE RESPONDENT BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS IN O.A. NO. 299 OF 2010 BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH ALONG WITH ITS ANNEXURES. EXT.P3 PHOTOSTAT COPY OF THE ORDER PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN O.A. NO. 299 OF 2010 DATED 22.3.2011. RESPONDENTS' EXHIBITS: NIL. // TRUE COPY // P.S. TO JUDGE. KNC/- C.N. RAMACHANDRAN NAIR & P.S. GOPINATHAN, JJ. = = = = = = = = = = = = = = = = = O.P. (CAT) NO. 2394 OF 2011 = = = = = = = = = = = = DATED THIS, THE 29TH DAY OF SEPTEMBER, 2011. J U D G M E N T Gopinathan, J. Petitioners are the respondents in O.A. 299 of 2010 on the file of the Central Administrative Tribunal, Ernakulam Bench. The respondent herein is the applicant before the Tribunal. Since 1988 he was working as Inspector of Post Offices under the petitioners. By Annexure A2 order dated 26.6.2001 respondent was promoted as Assistant Superintendent of Post Offices on ad hoc basis. By Annexure A3 order dated 6.10.2002, he was given regular promotion. While holding so, he noticed that one of his juniors namely Sri. M.P. Nirmal Kumar was getting higher salary than him. He immediately filed Annexure A4 option for fixation of the salary. The respondent filed other representations also requesting to fix salary at par with his junior. But the petitioners did not heed stating that request was belated. Respondent would contend that Annexure A3 order was not communicated to the respondent and therefore, he could not file Annexure A4 option in the time stipulated from the date of the order. Fundamental rule O.P.(CAT) 2394/2011 2 22(1) stipulates one month time for filing option. According to the respondent, soon after he knew about Annexure A3 order, option was preferred and therefore, it is in time and that the petitioners were not justified in rejecting his option. With this plea, the above application was preferred by the respondent seeking an order to quash Annexure A1 order rejecting the representation made by the respondent and to direct the petitioners to accept the option under fundamental rule 22(1) (a)(i) after condoning the delay and to fix his pay accordingly with all consequential benefits. 2. Petitioners took up a defence that Annexure A3 order was duly communicated. But the respondent did not file option within the time limit prescribed by the fundamental rules and since Annexure A4 option was beyond the period prescribed, the respondent is not entitled to the relief sought. 3. The Tribunal, after hearing either side and perusing the documents, arrived at a finding that there is nothing on record to show that Annexure A3 order was served upon the respondent. Not only that, it was further found that a departmental enquiry revealed that Annexure A3 order was not served upon the respondent. The Tribunal, therefore found that the respondent is entitled to get the delay in filing Annexure A4 option O.P.(CAT) 2394/2011 3 condoned. Consequently, Annexure A1 order was set aside and the petitioners were directed to accept Annexure A4 option and to fix the salary of the respondent. The respondent got voluntary retirement in 2009. Therefore, petitioners were also directed to re-fix the retrial benefits. Assailing the above order, this petition was preferred under Article 227 of the Constitution of India. 4. We have heard Advocate Sri. Parameswaran Nair, learned Assistant Solicitor General of India and Advocate Sri. Hariraj for respondent and perused the records. 5. Petitioners could not produce any document to show that Annexure A3 order was served upon the respondent. What the learned counsel would submit is that the respondent being the leader of the Service Organization, he might have seen Annexure A3 order in time. Learned counsel for the respondent, on the other hand, would submit that the respondent was ailing severely with lumbago due to IVDP and was on leave frequently and ultimately he was persuaded to avail voluntary retirement on medical ground. The respondent denied the contention of the petitioners that he was served with copy of Annexure A3 or that he was otherwise aware of it. The Tribunal accepted the plea of the respondent. We find that it was on a finding of fact, the Tribunal concluded that copy of O.P.(CAT) 2394/2011 4 Annexure A3 order was not served on the respondent or that the respondent was aware of it and therefore, he is entitled to have the delay in filing the option condoned. We find nothing on record to arrive at a contrary finding so as to interfere with that finding of the Tribunal. 6. The learned Assistant Solicitor General of India, further advanced a contention that Annexure A1 order dated 17.6.2008 was assailed before the Tribunal after more than one year and therefore, there is total lack of bona fides. This argument was countered by the learned counsel for the respondent stating that because of the ailment the respondent could not move the Tribunal below in time and that the respondent had in fact filed a petition for condoning the delay and that the Tribunal had, on accepting the explanation, condoned the delay and the petition was entertained. We find merit in the submission of the respondent. We further find that in the facts and circumstances stated earlier, the Tribunal was within the frame work of the jurisdiction. There is nothing to be rectified in exercise of the powers vested on this Court under Article 227 of the Constitution of India. The writ petition is devoid of merits. In the result, the writ petition is dismissed. There will be no order as to costs. C.N. RAMACHANDRAN NAIR, (JUDGE). P.S. GOPINATHAN, (JUDGE) knc/-