Central Administrative Tribunal - Cuttack
Sk Allauddin vs D R A T on 4 March, 2024
1 O.A.No. 260/00463 of 2022
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00463 of 2022
Reserved on 01.03.2024 Pronounced on 04.03.2024
CORAM:
HON'BLE MR. PRAMOD KUMAR DAS, MEMBER (A)
Sk. Allauddin, aged about 64 years, Son of Late Sk. Noor
Mohammad, Retired Steno Grade-C, DRT-Cum-CDA-Cum-
Cuttack, permanent resident of Chota Sankarpur,
Lahapati Road, P.O./Town/Dist.- Bhadrak-756100.
..... Applicant
For the Applicant : Mr. N.R.Routray, Counsel
-Versus-
1. Union of India, represented through Secretary,
Ministry of Finance (Banking Division), Department of
Finances Services, Jivan Deep Building 10, Parliament
Street, New Delhi-110001.
2. Chair Person, Debt Recovery Appellate Tribunal, 9, Old
Post Office Street, 7th Floor, Kolkata-700001.
3. Registrar, Debt Recovery Appellate Tribunal, 9, Old
Post Office Street, 7th Floor, Kolkata-700001.
4. Registrar, Debt Recovery Tribunal, C/71, C.D.A.,
Sector-7, Dist. Cuttack-753014.
.....Respondents
For the Respondents: Mr. G.R.Verma, Counsel
2 O.A.No. 260/00463 of 2022
ORDER
Pramod Kumar Das, Member (A):
Undisputed facts of the matter is that on 01.08.1981 the applicant joined as Clerk-cum-Typist under Orissa Tourism Development Corporation Ltd, Bhubaneswar (in short OTDC), which is an undertaking establishment of Govt. of Odisha and was promoted to the post of Junior Stenographer on 01.09.1993.
1.1 While continuing as such, he joined on 23.11.2001 in the Debts Recovery Tribunal (DRT), Cuttack, on deputation basis as Stenographer Grade-C initially for a period of one year. While continuing on deputation, he was absorbed in the said post in DRT w.e.f. 06.09.2002 vide office order dated 09/16.09.2002 (A/2) in terms of Recruitment Rules circulated by the Ministry of Finance, Banking Division vide letter No. 1/3/2000-DRT dated 22.01.2002.
1.2 The Screening Committee set up for the purpose of considering the length of service for the purpose of grant of financial upgradation under MACP and the Committee report placed by the applicant at Annexure-A/3 dated 08.01.2013 shows that the Committee recommended the grant of 3rd financial upgradation w.e.f. 23.11.2001 3 O.A.No. 260/00463 of 2022 by taking into consideration his length of service w.e.f. the date when he had initially joined under OTDC, i.e. from 01.08.1981. Thereafter, the DRT issued Service Certificate vide Annexure-A/5 dated 15.01.2021 taking the period of service from the date he joined in DRT on 06.09.2002 till 31.03.2019. The applicant submitted representation on 02.02.2021 (A/6) praying inter alia to count his past service for the purpose of seniority and other benefits "except pension". The representation of the applicant was forwarded for consideration by the competent authority vide letter dated 16.02.2021 (A/7). The competent authority vide letter dated 02.03.2021 (A/8) did not agree to his prayer made in the representation. According to the applicant, the order of rejection is dehors the specific provision made in the OM dated 29.08.1984 issued by the Govt. of India Ministry of Home Affairs, New Delhi fixing the mobility of counting of service for pension of the personnel between Central Govt. department and autonomous bodies. Hence, being aggrieved by the communication dated 02.03.2021 (A/8), the applicant has approached this Tribunal in the present OA with the prayer as under:
"(i) To quash the decision dtd. 02.03.2021 under Ann.-/8;4 O.A.No. 260/00463 of 2022
(ii) And to direct the Respondents to compute the service period from 01.08.1981 to 05.09.2002 as qualifying service for grant of pension and pensionary benefits;
(iii) And to direct the Respondents to pay the differential DCRG, Commuted Value of Pension, Leave Salary & Arrear Pension with 12% interest for the delayed period of payment;
And pass any other order as this Hon'ble Tribunal deems fit and proper in the interest of justice"
2. Respondents opposed the contention and the prayer of the applicant made in the OA inter alia stating that the representation dated 02.02.2021 of the applicant has been disposed of in the light of the instructions issued by the competent authority. In Para-5(2) of the Office Memorandum No.28/10/84-Pension Unit dated 29.08.1984 issued by the Deptt. of Personnel and Administrative Reforms (R/3), it has been provided that "where no terminal benefits for the previous service have been received, the previous service in such cases will be counted as qualifying service for pension only if the previous employer accepts pension liability for the service in accordance with the principles laid down in the Office Memorandum. In no case pension contribution/liability shall be accepted from the employee concerned".
The applicant belonged to Orissa Tourism Development Corporation Ltd. (A Govt. of Orissa Undertaking) and was initially appointed on 5 O.A.No. 260/00463 of 2022 Deputation in DRT, Cuttack for a period of one year and joined in the post of Stenographer Grade 'C' on 23.11.2001. Subsequently, he was absorbed in DRT, Cuttack on 06.09.2002. Consequent upon his absorption, the OTDC Ltd. issued Office Order dated 05.12.2002 (R/4) stating therein that the applicant is ceased to be an employee of the Corporation w.e.f. 06.09.2002 and, accordingly, the applicant was advised to apply for the terminal benefits of (i) Gratuity; (ii) Group Insurance Scheme and (iii) Employees Provident Fund. Subsequently, the OTDC Ltd. deposited Gratuity for the period from 01.08.1981 to 22.11.2001, amounting to Rs. 58,327/-, and Leave Salary & Pension Contribution (LSPC), amounting to Rs. 5,707/-, for the period from 23.11.2001 to 05.09.2002 to Pay & Accounts Office, New Delhi in the year 2007. It has been stated that while the matter stood thus, the Govt. of India, Ministry of Finance, issued letter dated 24.02.2011 (R/5) dealing with grant of Old Pension Scheme of Public Section Employees absorbed in DRATs/DRTs. Accordingly, the case of the applicant was considered, with reference to the letter dated 24.02.2011 and vide OM dated 04.04.2011, he was intimated that the service rendered by him under OTDC Ltd. prior to his absorption in DRT Cuttack shall not be 6 O.A.No. 260/00463 of 2022 counted for pensionary purpose in the Govt. of India. A copy of the letter dated 24.02.2011 was also communicated to the applicant along with the Memorandum. Hence, the Gratuity and LSPC amounting to Rs. 64,034/- (Rs. 58,327 + Rs. 5,707/-) deposited by the OTDC Ltd. was paid to the applicant on 12.10.2013. However, the respondents have submitted that in supersession of earlier order dated 23.07.2014, the applicant was allowed 3rd MACP w.e.f. 06.09.2012 vide order dated 06.11.2015 (Annexure-R/1) [i.e. after completion of 10 years of his absorption]. Accordingly, the respondents have prayed that there being no injustice caused in the decision making process of the matter, this OA is liable to be dismissed.
3. Ld. Counsel for the applicant submitted that applicant entered to the service of OTDC Ltd., which is a Govt. of Orissa undertaking on 01.08.1981. He joined on deputation basis in DRT on 23.11.2001 and absorbed on 06.09.2002. The employees of the DRT are fully covered and governed by the provision of CCS (CCA) Rules, CCS (Pension) Rules so also orders issued by the Govt. of India from time to time. The National Pension Scheme came into effect w.e.f. 01.01.2004. Thus, even taking into consideration the date of joining of the applicant on 7 O.A.No. 260/00463 of 2022 deputation basis and subsequent absorption in DRT, there can be no second opinion that he is covered and governed by the CCS (Pension) Rules, 1972. Similarly, the OM issued by the DoP&T/Ministry of Home Affairs, as a matter of policy, being applicable to the employees of the DRT, his case is covered and governed by the OM dated 29.08.1984. According to the applicant, rejection of his claim by applying the subsequent order issued by the Govt. of India, Ministry of Finance, Department of Financial Services dated 24.02.2011 having no retrospective effect is bad in law. Therefore, the applicant is entitled to the relief claimed in the OA.
4. On the other hand, Ld. Counsel for the respondents has submitted that the applicant was duly intimated that service rendered under OTDC Ltd. cannot be counted for pensionary purpose in OM dated 04.04.2011, which he did not challenge then and there nor even in this OA filed in the year 2022. The applicant has himself in his representation prayed to grant him the Gratuity, Leave Encashment, Seniority and other benefits for the period of service rendered in OTDC Ltd. "except pension". Since, the applicant was continuing under EPF Scheme in his parent organization, i.e. OTDC, the said period of service 8 O.A.No. 260/00463 of 2022 cannot be taken into consideration for the purpose of pension and pensionary benefits and granting the same would amount to giving him mileage which he is otherwise not entitled to under rules and law. Hence, Ld. Counsel for the respondents prayed for dismissal of this OA for the same being not in proper form, on merit as also on limitation.
5. Before proceeding to deal with the contentions advanced by the applicant, for better appreciation, the full text of the DoP&T Order dated 29.08.1984 is extracted herein below:
"Subject: Mobilityof personnel between Central Government Departments and Autonomous Bodies - Counting of service for pension -
****************************************************** As per existing orders, service rendered outside Central Government does not count for pension in Central Government except in the case of scientific employees of autonomous bodies financed or controlled by the Government, who on permanent absorption under the Central Government are allowed to count their previous service for pension subject to certain conditions. In respect of personnel other than scientific employees, who are permanent in Central Government, in the event of their subsequent permanent absorption in public sector undertakings or any autonomous body, proportionate retirement benefits for the service rendered in Government till the date of permanent absorption are allowed as per rules in force at the time of absorption. No such benefit is allowed to temporary employees going over to autonomous body or undertaking.
2. A number of Central autonomous/statutory bodies have also introduced pension scheme for their employees on the lines of the pension scheme available to the Central Government employees. It has, therefore, been urged by such autonomous/statutory bodies that the service rendered by their employees under the Central Government or other autonomous bodies before joining the autonomous body may be allowed to be counted in combination with service in the autonomous body, for the purpose of pension, subject to certain conditions. Similar provisions for employees of autonomous body going over to Central Government have also been 9 O.A.No. 260/00463 of 2022 urged. In other words, the suggestion is that the benefit of pension based on combined service should be introduced.
3. This matter has been considered carefully and the President has now been pleased to decide that the case of Central Government employees going over to a Central autonomous body or vice-versa and employees of the Central autonomous body moving to another Central autonomous body may be regulated as per the following provisions:-
(a) In case of Autonomous Bodies where Pension Scheme is in operation.
(i) Where a Central Government employee borne on pensionable establishment is allowed to be absorbed in an autonomous body, the services rendered by him under the Government shall be allowed to be counted towards pension under the autonomous body irrespective of whether the employee was temporary or permanent in Government. The pensionary benefits will, however, accrue only if the temporary service is followed by confirmation. If he retires as a temporary employee in the autonomous body, he will get terminal benefits as are normally available to temporary employees under the Government. The same procedure will apply in the case of employee of the autonomous bodies who are permanently absorbed under the Central Government.
The Government/autonomous body will discharge its pension liability by paying in lumpsum as a one-time payment, the pro-rata pension/service gratuity/terminal gratuity and DCRG for the service upto the date of absorption in the autonomous body/Government, as the case may be. Lumpsum amount of the pro-rata pension will be determined with reference to commutation table laid down in CCS (Commutation of Pension) Rules, 1981, as amended from time to time.
(ii) A Central Government employee with CPF benefits on permanent absorption in an autonomous body will have the option either to receive CPF benefits which have accrued to him from the Government and start his service afresh in that body or choose to count service rendered in Government as qualifying service for pension in the autonomous body by foregoing Government's share of CPF contributions with interest, which will be paid to the concerned autonomous body by the concerned Government Department. The option shall be exercised within one year from the date of absorption. If no option is exercised within stipulate period, 10 O.A.No. 260/00463 of 2022 employee shall be deemed to have opted to receive CPF benefits. The option once exercised shall be final.
(b) Autonomous body where the Pension Scheme is not in operation.
(i) A permanent Central Government employee borne on pensionable establishment, on absorption under such autonomous body will be eligible for pro-rata retirement benefits in accordance with the provisions of the Ministry of Finance O.M. No.26(18)EV(B)/75 dated the 8th April, 1976, as amended from time to time. In case of quasi-permanent or temporary employees, the terminal gratuity as may be admissible under the rules would be actually payable to the individual on the date when pro-rata retirement benefits to permanent employees become payable. However, in the case of absorption of a Government employee with CPF benefits, in such an autonomous organisation, the amount of his subscriptions and the Governments' contribution, if any, together with interest thereon shall be transferred to his new Provident Fund account with the consent of that body.
(ii) An employee of an autonomous body on permanent absorption under the Central Government will have the option either to receive CPF benefits which have accrued to him from the autonomous body and start his service afresh in Government or choose to count service rendered in that body as qualifying service for pension in Government by foregoing employer's share of Contributory Provident Fund contributions with interest thereon, which will be paid to the concerned Government Department by the autonomous body. The option shall be exercised within one year from the date of absorption. If no option is exercised within stipulated period, employee shall be deemed to have opted to receive CPF benefits. The option once exercised shall be final.
(c) Absorption of employees of one Central Autonomous body to another Central Autonomous body. The above procedure will be followed mutates mutandis in respect of employees going from one autonomous body to another.
4. "Central autonomous body" means body which is financed wholly or substantially from cess or Central Government grants. "Substantially" means that more than 50% of the expenditure of an autonomous body is met through cess or Central Government grants. Autonomous body includes a Central statutory body or a Central University but does not include a public undertaking.
11 O.A.No. 260/00463 of 2022
Only such service which qualifies for pension under the relevant rules of Government/Autonomous body shall be taken into account for this purpose.
5(1). The employees of a Central autonomous body or Central Government, as the case may be, who have already been sanctioned or have received pro-rata retirement benefits or other terminal benefits for their past service will have the option either:-
(a) to retain such benefits and in that event their past service will not qualify for pension under the autonomous body or the Central Government, as the case may be : or
(b) to have the past service counted as qualifying service for pension under the new organization in which case the pro-rata retirement or other terminal benefits, if already received by them, will have to be deposited along with interest thereon from the date of receipt of those benefits till the date of deposit with the autonomous body or the Central Government, as the case may be. The right to count previous service as qualifying service shall not revive until the whole amount has been refunded. In other cases, where pro-
rata retirement benefits have already been sanctioned but have not yet become payable, the concerned authorities shall cancel the sanction as soon as the individual concerned opts for counting of his previous service for pension and inform the individual in writing about accepting his option and cancellation of the sanction. The option shall be exercised within a period of one year from the date of issue of those orders. If no option is exercised by such employees within the prescribed time limit, they will be deemed to have opted for retention of the benefit already received by them. The option once exercised shall be final.
5(2). Where no terminal benefits for the previous service have been received, the previous service in such cases will be counted as qualifying service for pension only if the previous employer accepts pension liability for the service in accordance with the principles laid down in this Office Memorandum. In no case pension contribution/liability shall be accepted from the employee concerned. 6 These orders will be applicable only where the transfer of the employee from one organization to another was/is with the consent of the organization under which he was serving earlier, including cases where the individual had secured employment directly on his own volition provided he had applied through proper channel/with proper permission of the administrative authority concerned.
12 O.A.No. 260/00463 of 2022
7. These orders will take effect from the date of issue and the revised policy as enunciated above will be applicable to those employees who retire from Government/autonomous body service on or after the date of issue of these orders.
The provisions contained in the Ministry of Finance Office Memorandum No.26(18)EV(B)/75 dated the 8th April, 1976 and Office Memorandum No.25(1)EV/83, dated the 8th September 1983 or any other orders shall, in so far as it provides for any of the matters contained in this Office Memorandum, cease to operate.
8. The Ministry of Education and Culture etc. are requested to advise the autonomous/statutory bodies under their administrative control, with specific directions to the Financial Advisers concerned, to ensure to make necessary provisions in their Rules and Regulations/ Articles of Association in accordance with the provisions contained in this Office Memorandum. In cases where any practice otherwise than enumerated above is presently being followed the same may be revised in accordance with the provisions of this Office Memorandum so that uniformity is maintained in such matters in all the organisations.
9. In so far as persons serving in the Indian Audit and Accounts Department are concerned these orders issue after consultation with the Comptroller and Auditor General of India".
(Emphasis added)
6. This Tribunal has come across that in furtherance to the OM dated 29.08.1984, the DoP&T issued another OM No. 28/24/94- P&PW(B) dated 13.09.1996 wherein it has been stated as under:
"Subject: Counting of past service rendered in Public Sector Undertakings (PSUs) for the purpose of admissibility of Pension under the Central Government.
The undersigned is directed to refer to the Ministry of Finance (Department of Expenditure) OM No.3(28)EV/A/60 dated 28th March, 1960 and this Department's OM No.28/10/84-Pension Unit dated the 29th August, 1984 and to say that periodic references are made by the administrative Ministries to this Department seeking clarifications in regard to the counting of service rendered by the Government employees under Public Sector Undertakings (PSUs) or the service 13 O.A.No. 260/00463 of 2022 rendered by employees of the PSUs under the Government for the purpose of pensionary benefit
2. The orders issued by the Ministry of Finance and this Department referred to above clearly lay down the parameters within which the benefit of service rendered in Non-Government Organisations has to be allowed. The said benefit is admissible only in the event of mobility between Central Autonomous Bodies and the Central Government. Subsequently, the State autonomous bodies were also brought within the purview of these arrangements.
3. Attention in this regard is invited to para 4 of this Department's OM dated 29th August, 1984 which defines "Central autonomous body" as a body which is financed wholly or substantially from cess or Central Government grants. "Substantially" means that more than 50% of the expenditure of the autonomous body is met through cess or Central Government grants. Autonomous body includes Central statutory body or a Central University but does not include a public undertaking 4 In the light of position stated above, it is once again clarified that the orders contained in Ministry of Finance (Department of Expenditure) OM dated 28th March, 1960 and this Department's OM dated 29th August, 1984 do not provide for counting of service rendered by a Central Government employee in public sector undertaking or service rendered by an employee in public sector undertaking under the Government for the purpose of pension.
5. Attention in this connection is also invited to the instruction issued vide OM No. 28/24/94-P&PW(B) dated 30th May, 1995 which clarify that the employees who had rendered service in the Nationalised Banks and other Government financial institutions are not entitled to count that service for pensionary benefits admissible under the Central Government Rules as these organisations are treated at par with public sector undertakings.
6. Ministry of Defence etc. are requested to bring the position in this regard to the notice of all authorities under their administrative control so that the representations made by the employees for counting of service rendered by them in the above mentioned organisations and writ petitions filed by them are dealt with appropriately in accordance with the established policy of the Government."
(Emphasis added) 14 O.A.No. 260/00463 of 2022
7. According to the applicant since he came and joined under DRT much before 24.02.2011, he is not governed by the said instruction dated 24.02.2011 and, therefore, the service rendered by him under PSU/OTDC Ltd. under Govt. of Odisha has to be counted towards pensionable service in DRT based on the DoP&T OM dated 29.08.1984. The instruction dated 24.02.2011 is quoted herein below:
"Subject:-Grant of Old Pension Scheme to the employees of Public Sector Employees absorbed in DRATS/DRTs-reg.
Sir, I am directed to refer to the issue of grant of Old Pension Scheme to the employees of MELTRON and other PSUs who have been absorbed in the DRATS/DRTs and to say that this issue has been examined in consultation with Department of Pensions and Pension Welfare, Ministry of Personnel, Public Grievances and Pensions.
2 Department of Pensions have opined that only those Govt. servants who were appointed in Govt. service on and before 31.12.2003 are entitled to the benefits of old pension scheme. Besides, the date of absorption' (and not date of joining on deputation) in DRT can be treated as date of appointment for such Govt. servants in service. Those persons who joined DRT/DRAT on deputation before 01.01.2004, but absorbed later cannot be covered in the old pension scheme as their date of absorption is after 31.12.2003. Hence, they can be covered under New Pension Scheme.
3 It is also informed that the Govt. Policy does not permit counting of Public Sector Undertaking service for pensionary purposes in the Govt. of India. There is no such concept of counting PSU service in Govt. for pension under CCS (Pension) Rules.
4 All DRATS/DRTs are requested to follow the above guidelines for strict compliance and intimate the status of implementation in all such cases to this Department within a week's time.15 O.A.No. 260/00463 of 2022
8. Examined the case of the applicant with reference to the extant provisions. It is seen that the instruction dated 24.02.2011 issued by the Govt. is nothing but a clarification with regard to counting of period of service of a deputationist for the purpose of pension after NPS came into effect and reiteration of the instruction issued vide OM No. 28/24/94-P&PW(B) dated 13.09.1996 providing that the Govt. Policy does not permit counting of Public Sector Undertaking service for pensionary purposes in the Govt. of India. There is no such concept of counting PSU service in Govt. for pension under CCS (Pension) Rules.
9. In the instant case, it is not in dispute that the applicant initially joined on 23.11.2001 on deputation basis from public sector undertaking of Govt. of Odisha and subsequently, absorbed under the DRT w.e.f. 06.09.2002. It is also not in dispute that employees of the DRT are covered and governed by the rules and regulations framed by the Govt. of India. Since, the deputation and absorption of the applicant was much prior to the National Pension System known as NPS came into effect from 01.01.2004, the applicant is covered by the Old Pension Rules, i.e. CCS (Pension) Rules, 1972 and his entitlement to pension w.e.f. his joining on deputation in DRT till retirement cannot be questioned. However, the Gratuity and LSPC amounting to Rs. 64,034/- 16 O.A.No. 260/00463 of 2022 (Rs. 58,327 + Rs. 5,707/-) was deposited by the OTDC Ltd. and the same was paid to the applicant on 12.10.2013.
10. Insofar as counting the period from his date of joining in PSU/OTDC Ltd. Of Govt. of Odisha till his absorption in DRT is concerned, it may be recorded that in view of the policy decision of the Govt. issued in furtherance to the OM dated 29.08.1984, vide OM No. 28/24/94-P&PW(B) dated 13.09.1996, quoted above, which has been reiterated in Letter dated 24.02.2011, the respondents are absolutely within their domain in not counting the previous period of service rendered by the applicant in PSU/OTDC Ltd., which cannot be found faulted, more so, the applicant as it appears from the record was very much conscious of the provision for which in the representation, which he had submitted before the authority concerned has abundantly made clear as under:
"Under the above said circumstances, I pray your honour to kindly look into my poor case by extending your helping hand for consideration of my seniority of service and other benefits except my pension, so that I will be able to get natural justice from your end and I shall not be deprived from the above past service seniority and other benefits."
11. In view of the discussions made above, this Tribunal do not find any injustice caused to the applicant in the decision taking process of 17 O.A.No. 260/00463 of 2022 the matter warranting judicial interference in the matter. In the result, the OA stands dismissed leaving the parties to bear their own costs.
(PRAMOD KUMAR DAS) MEMBER(A) RK/PS