Central Administrative Tribunal - Delhi
Wg. Cdr. (Retd.) vs Union Of India Through on 2 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH R.A. No.197/2012 In O.A. No. 4235/2010 M.A. No.1744/2012 Reserved On:23.12.2013 Pronounced on:02.1.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. ASHOK KUMAR, MEMBER (A) Wg. Cdr. (Retd.) Dinesh Kumar C-1/22, Goldcraft CGHS, Plot No.4, Sector-11, Dwarka, New Delhi-110075. ..Review Applicant By Advocate: Shri Padma Kumar S. Versus 1. Union of India through Chairman, NTRO, Block-III, Old JNU Campus, New Delhi110067. 2. Special Secretary, HQ Aviation Research Centre, R.K. Puram, New Delhi. ..Respondents By Advocate: Shri T.C. Gupta. ORDER
Honble Mr. G. George Paracken, Member (J) The Applicant in this Review Application is the Applicant in the Original Application No.4235/2010. In this RA, he has sought a prayer for recalling the order of this Tribunal dated 28.02.2012 in the aforesaid OA. The relevant part of the said order reads as under:-
6. In the factual gamut of the case, the very foundation of the claims being agitated under the OA gives way. When an per the terms and conditions of re-employment under the NTRO, the Applicant was required to join the New Pension Scheme of 2004, any agitation of claims for pensionary benefits under the Old Pension Scheme would be in contravention of the basis terms of re-employment. We are unable to accept the argument advanced by the applicants learned counsel that the 25.07.2006 order of NTRO impliedly meant a change of this condition of appointment. In any case, the respondents have averred this order to be not correct or legally tenable. Without going into the other legal technicalities, we are of the view that non-consideration of this basic term of appointment would not be consonance with the principles of substantive justice. In the State of Haryana and Others Vs. Babu Singh 2008 (1) SCC (L&S) 286, the Honble Apex Court observed:
It is well settled that the relief granted by courts must be seen to be logical and tenable within the framework of law rather than on misplaced sympathy.
7. For the reasons stated above, the claims tenable in the OA have not been found tenable within the framework of law. Under the circumstances, we have also not considered it necessary to look into the other contentions made on behalf of the applicant and their rebuttal by the Respondents. Resultantly, the OA is dismissed with no order as to costs.
2. The learned counsel for the Review Applicant has submitted that this Review Application has been filed on the discovery of facts which could not have been made earlier even after due diligence. He has also stated that there are not only errors apparent on the face of the record but also other sufficient grounds prescribed under Order 47 Rule 1 Civil Procedure Code, 1908 which has been adopted by the Central Administrative Tribunal (Procedure) Rules, 1987, to file this Review Application.
3. According to the Review Applicant, the Respondents stand in the OA was that they had sent an offer of appointment dated 14.02.2006 at the residential address of the Applicant and in support of the aforesaid stand, they have enclosed the copy of the offer of appointment purported to have been issued to him and annexed as Annexure-V to the counter reply. However, the fact was that the Applicant did not receive any such offer of appointment on 14.02.2006. Rather, he was called to NTRO on 16.02.2006 and he was given the offer of appointment of the same date by hand and on the same date he joined duty there. The said offer of appointment also contains the condition that the Applicant would join New Pension Scheme, if applicable.
4. In OA No. 4235/2010 filed by the Applicant, he challenged the action of the Respondent No.1 in not giving effect to its own order dated 25.07.2006 whereby the competent authority accorded approval under CCS (Pension) Rules, 1972 for condoning the break in service of 15 days in respect of the Applicant. The said order also declared that the said period to be debited to his Earned Leave account and his resignation from ARC was deemed to be technical resignation. Thus, the said order gave the benefit of counting the past service of the Applicant rendered in ARC for the purpose of pension. On the other hand, the stand of the Respondents taken in the OA was that the competent authority wrongly accorded its approval and, therefore, the order dated 25.07.2006 cannot be given effect to whereas they never took such a stand earlier at any time. It was not their stand that the Applicant has accepted the New Pension Scheme. Since the break in service had already been condoned by the competent authority which has never been recalled by any procedure established by law, the Respondents cannot later on take the stand that there was no such condonation of the break in service. In this regard, he has relied upon an order of the Hyderabad Bench of this Tribunal dated 10.07.2007 in the case of T. Basavaiah Vs. The Chief Postmaster General. In the said case, the Applicants service was regularized retrospectively with effect from 01.11.2001 vide Respondents order dated 31.3.2006 and he became a regular employee. Accordingly, he claimed that he should be treated as a beneficiary of the Old Pension Scheme and the contribution remitted by him under the New Contributory Pension Scheme shall be refunded to him. During the pendency of the case, the Union of India conceded to his request. The learned counsel has also relied upon the judgment of the Madras High Court in the case of V. Palraj Vs. The Government of Tamil Nadu decided on 30.11.2010. The said case relates to the New Contributory Pension Scheme which the Government of Tamil Nadu introduced from 01.04.2003 replacing the Tamil Nadu Pension Rules, 1978. The grievance of the petitioner therein was that he was not granted the pensionary benefits under the Tamil Nadu Pension Rules, 1978 on the ground that he was not having 10 years of pensionable service. The Respondents treated his service of 23 years on daily wage basis as non-pensionable service. The claim of the petitioner to treat the entire service as pensionable service was rejected stating that the petitioner was appointed as Forest Watcher only on 03.05.2003 and, therefore, he was covered only by the Contributory Pension Scheme which came into force w.e.f. 01.04.3003. The High Court allowed the Writ Petition observing that the petitioner having been initially appointed without any break-in-service, he was entitled to the Old Pension Scheme by counting his 50% of the past service as daily wager.
5. However, in the case of the Applicant herein also, the break in service has already been condoned by the competent authority and the correctness of the said decision cannot simply be called in question. However, this Tribunal dismissed the OA vide order dated 28.02.2012 finding he joined the NTRO in terms and conditions stipulated in the offer of appointment dated 14.02.2006. According to the Applicant, the aforesaid order is liable to be reviewed as the Respondents have not filed the correct copy of the offer of appointment in the counter reply. According to him, the offer of appointment received by him, traced out now contained the following clause at Para 2(ix) of the offer of appointment dated 16.02.2006:-
2(ix) He/she will be required to join the New Pension Scheme defined as Contribution Pension Scheme introduced by the Government of India, Ministry of Finance vide F.No.1(7)(2)2003/TA/11, dated 07.01.2004, if applicable.
According to the learned counsel for the Review Applicant he has argued that the term if applicable has been introduced by the Respondents in the offer of appointment keeping in view the past service rendered by the Applicant in ARC. Therefore, it cannot be attributed on the Applicant that he has foregone his past service on his own volition. He has also argued that a welfare state should interpret the provisions related to social security measures like pensions, etc., with tools of liberal interpretation so as to facilitate the life of aged and aging with comfort.
6. The learned counsel for the Review Applicant has also relied upon the judgment of the High Court of Rajasthan in the case of Kana Ram Vs. State of Rajasthan and Others wherein it has been observed as under:
4.I am firm of the view that after the break in service was condoned by the State Government..the service rendered by the petitioner cannot be compartmenalised. The period of service rendered by him up to the date of his resignation and the period of his service after his reappointment cannot be kept as separate and distinct services. But on account of the order of condonation of break in his Beryice, both these periods were linked together to one and continuous service, which is only possible when the period of break from .towas considered as part of his qualifying service. It was this period, the break in respect of which was actually condoned. Thereafter by a fiction of law the petitioner should be considered to have been in Government servant during the aforesaid period, in which he did not actually render any service. The condonation of interruption cannot have any other effect..
7. The Respondents have filed the reply stating that the Review Applicant is trying to mislead the Tribunal by circumlocution, misrepresentation of facts and bringing forth non-relevant court judgments and discovery of new documents. The Respondents have also stated that this Tribunal in para 6 of its judgment clearly mentioned that they are unable to accept the argument advanced by the learned counsel for the Applicant that the order dated 25.07.2006 of NTRO impliedly meant a change of this condition of appointment. They have further stated that the basic ground on which the Applicant has filed the present RA is that the offer of appointment issued by the Respondents to him on 14.02.2006 was not received by him but he was called by the NTRO on 16.02.2006 and gave the offer of appointment of the same date by hand and he joined on the same date. The Respondents have further mentioned that the said offer of appointment dated 16.02.2006 also contains a condition that Applicant would join New Pension Scheme, if applicable. On this premises, he has mentioned in his rejoinder that since he joined Respondent No.2, i.e., ARC on 01.08.1998, he was a member of the Old Pension Scheme and after submitting his resignation from ARC, he joined NTRO. Therefore, after condonation of break in service, he was eligible to be considered under the Old Pension Scheme as the New Pension Scheme came into force on 01.01.2004.
8. The Respondents have also reiterated in their reply that as per the office copy of the offer of appointment dated 14.02.2006 available in the records, there is no hand written clause if applicable added to para 2 (ix). On the contrary, no copy of the offer of appointment dated 16.02.2006 submitted by the Applicant before this Tribunal is available with this office. Further, they have submitted that the offer of appointment in NTRO was a fresh appointment in the year 2006 and he for all purposes has to be covered under the New Pension Scheme only. Further, according to the Respondents, this Tribunal had already taken note of Respondents submission that the said order dated 25.07.2006 was not correct or legally tenable. The condonation of break in service was not within the powers of the NTRO and hence it was not legally tenable and an error committed can always be rectified by the Government. Moreover, no hardship is caused to the Applicant by not granting civil pension from NTRO, which is otherwise also not applicable as he is in receipt of the pension for the services rendered by him in the Indian Air Force.
9. The Respondents have also referred to Rule 26(2) of CCS (Pension) Rules, 1972 which deals with technical resignation. The said Rule also clearly mentions that the order accepting resignation should clearly indicate that the employee is resigning to join other appointment with prior permission and that the benefits under Rule 26 (2) would be admissible to him. The said Rule also stipulates that such an order should be recorded in the service book of the individual concerned under proper attestation. However, in the present case the said stipulation has never been recorded. On the contrary, Applicant submitted a clear resignation requesting it to be accepted from 31.08.2005 vide his application dated 30.05.2005, without mentioning anything about his appointment in NTRO. The same was accepted by ARC and he was relived of his duty w.e.f. 31.01.2006. Neither in the acceptance letter of ARC nor in his service book or other documents anywhere it has been mentioned that Applicant is being relieved of his duties to take up appointment in NTRO with prior permission and his services should be considered in terms of Rule 26 (2) of Pension Rules. Moreover, the Applicant in his letter dated 16.03.2006, addressed to the Chairman, NTRO himself admitted that, Had I been permitted by ARC to join NTRO, I would have earned my pension and all allowances as admissible to superannuated officers. It is, therefore, clear that his reemployment on contract basis in NTRO was not through proper channel and his resignation was not technical and did not attract Rule 26(2) of CCS (Pension) Rules, 1972. The condonation granted in break in service was not legally tenable and hence not acted upon, a fact which has been upheld by the Tribunal while dismissing the OA vide order dated 28.02.2012. They have, therefore, submitted that this RA is not tenable and the same has to be dismissed.
10. We have heard the learned counsel for the Review Applicant Shri Padma Kumar S and the learned counsel for the Respondents Shri T.C. Gupta. We have also perused the departmental record produced by the Respondents. It is seen from the Respondent-NATOs file that they were in correspondence with the Respondent-ARC with regard to the re-employment of the Applicant. They have received a letter from the ARC dated 18.01.2006 which says that the Applicant will be relived by 31.01.2006. Further it is seen that the application of the Applicant for the post of Scientist E in Respondent-NTRO was duly forwarded by the Respondent-ARC vide their dated 30.12.2004. The Respondent-NTRO also had obtained the No Objection Certificate from the Respondent-ARC before he was offered the appointment to the aforesaid post. Therefore, it cannot be held that the appointment of the Applicant in Respondent-NTRO has no connection whatsoever with his earlier service in the Respondent-ARC.
11. In view of the above position, this RA is allowed and the OA No.4235/2010 is restored. Registry is directed to list the same for further consideration on 16.01.2014.
No order as to costs.
(Ashok Kumar) (George Paracken)
Member (A) Member (J)
Rakesh