JUDGMENT :

Soumitra Saikia, J.

Heard Mr. R.K.D. Choudhury, learned Deputy Solicitor General of India for the petitioner in W.P.(C) No. 4045/2019 and Mr. M. Kataki, learned counsel for the petitioner in W.P(C) No. 3159/2019. Also heard Mr. S.R.A. Naser, learned counsel for the sole respondent in W.P.(C) No. 4045/2019 and Mr. R.K.D. Choudhury, learned Deputy Solicitor General of India for the respondents in W.P(C)No. 3159/2019.

2. Both these writ petitions relate to a common issue namely, shortage of qualifying service for grant of pension after their absorptions in Group-D Posts.

3. In W.P(C) No. 4045/2019, the respondent joined as EDDA-cum-EDMC at Kordoiguri BO on 03.02.1971. He was posted on promotion in the Group-D cadre and he served in the said capacity till his retirement on superannuation on 30.10.2010 after completing nearly 40 years of service which includes the service as ED official in Group-D Post. However, notwithstanding the service for forty (40) years, The respondent was denied his pensionary benefits as he had completed 9 years and 8 months in the Department of Posts, India in the Group-D cadre. Since he did not complete the mandatory 10 years of service in Group-D post, he was not given the pensionary benefits. The grievance of the petitioner is that had he been appointed in the Group-D cadre in a clear vacancy by the authority, instead of keeping him in the waiting list, he would have completed full ten years of the mandatory service required to be eligible to get the pensionary benefits. The respondent served for about five months in sitting capacity as a Male Peon at Naojan EDSO against a clear vacant post. It is the grievance of the petitioner that had he been appointed against this clear vacancy, he would have completed the mandatory 10 years required for being eligible for to get the pensionary benefits. After his superannuation, he had received service gratuity amounting to Rs.1,05,935.00(Rupees One Lakh Five Thousand Nine Hundred Thirty Five only) and further some of Rs.52,968.00 (Rupees Fifty Two Thousand Nine Hundred Sixty Eight only) and Rs.48,647.00 (Rupees Forty Eight Thousand Six Hundred Forty Seven only) as retirement gratuity and GPF respectively. But his pensionary benefits were denied as he did not complete the mandatory 10 years as required under the Rules for being eligible to get the pensionary benefits. Being aggrieved, the respondent approached the CAT, Guwahati.

4. The CAT, Guwahati vide order dated 12.10.2018 passed in OA No. 040/00309/2018 by referring to Rule 49(3) of the CCS(Pension) Rules and allowed the OA. The CAT, Guwahati by referring the Rule 49(3) of the CCS(Pension) Rules held that the said Rule will come to the aid of the respondent/applicant as his service for 9 years 8 months can be reckoned as qualifying service by applying Rule 49(3) of the CCS(Pension) Rules. The CAT, Guwahati directed the petitioner to calculate the pension of the respondent after including the services rendered by the respondent/applicant as a stop gap arrangements against Group ‘D’ post after selection by DPC on 20.10.2000 and to release the consequential payments of pension along with arrears. Being aggrieved, the Union of India represented by the Secretary and Director General, Department of Posts, Dak Bhawan has filed this instant writ petition assailing the impugned order dated 12.10.2018 passed in OA No. 040/00309/2018 by the CAT, Guwahati.

5. In W.P.(C) No. 3159/2019, the petitioner before this Court was engaged as an Extra Departmental Agent (EDA) on 17.11.1971 and subsequently, by order dated 16.10.2002, the petitioner was appointed in Group-D against the vacant post at Hajo SO as Night Chowkidar, in the pay scale of Rs.5200-20200/- with Grade Pay of Rs.1800/-. The petitioner continued his service and ultimately superannuated from his service on 31.03.2012. Although the petitioner was granted retirement gratuity but he was not granted pension because of not having completed the qualifying service