Central Administrative Tribunal - Allahabad
Ravi Kant Dube vs Kendriya Vidyalaya Sanghthan on 25 January, 2024
`RESERVED ON 18.01.2024.
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Dated: This the 25th day of January 2024
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Original Application No. 330/00996 of 2021
Ravi Kant Dube, aged about 60 years, S/o Late Sri Kedar Nath Dube,
R/o LIG, LD-5, A.D.A. Colony, Naini, Prayagraj 211008.
...........Applicant
By Adv: Shri Ashish Srivastava/Shri Parashar Pandey
VERSUS
1. Union of India through the Secretary, Ministry of Human
Resource Development (Education), Government of India, Shastri
Bhawan, New Delhi.
2. Commissioner, Kendriya Vidyalaya Sangthan (HQ) 18
Institutional Area, Saheed Jeet Singh Marg, New Delhi 110016.
3. Deputy Commissioner, Kendriya Vidyalaya Sangthan, Regional
Office BLW Varanasi, U.P.
4. Principal, Kendriya Vidyalaya Old Cantt., Teliarganj, Prayagraj.
. .Respondents
By Adv: Shri Rishi Kumar
ORDER
By Justice Om Prakash VII, Member (J) The present O.A has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking following reliefs:-
"(i) Issue a writ, order or direction in the nature certiorari quashing the order dated 12.04.2016 as well as appellate order dated 23.3.2017 passed by respondent No. 3 i.e. adhoc disciplinary authority, Indian Council of Agricultural Research (ICAR), Central Inland Fisheries Research Institute, Barrackpore, Kalkata 2 (Annexure No.1 to this original application annexed in Compilation No. 1).
(ii) Issue a writ order or direction in the nature of certiorari quashing the order dated 13.04.2016 passed by respondent NO. 5 i.e. Indian Council of Agricultural Research (ICAR), Central Inland Fisheries Research Institute, Barrackpore, Kalkata (Annexure No.2 to this original application annexed in Compilation NO.1).
(iii) Issue a writ order or direction in the nature of mandamus directing the respondents to reinstate the applicant in service on the post of skilled Support Staff (S.S.S) and pay him salary month to month.
(iv) Issue a writ, order or direction in the nature of mandamus directing the respondents to pass appropriate orders on the application/appeal of the applicant which is pending consideration.
(v) Any other suitable writ, order or direction/relief for which the applicant is entitled for in the facts and circumstances of the case.
(vi) Award the cost of present original application in favour of the applicant".
2. The brief facts of the case are that in pursuance of the advertisement issued in the employment exchange dated 13-19 September 2003 for the post of Teachers for the year 2004-2005, applicant applied for and after passing the 1st and 2nd stages of written tests, appeared in the interview held on 23.04.2004 and finally the results were declared on 18.05.2004 in which applicant was selected. Offer of appointment was given to the applicants on 04.02.2005 for the post of Primary Teacher on contractual basis and had joined at Kendriya Vidyalaya Zakhama (Nagaland). On 03.10.2006 applicant was regularized from the initial date of joining i.e. 21.02.2005. Vide KVS RO Silchar Region letter No. F.2-4/2008-KVS dated 14.03.2008, the applicant was appointed in substantive capacity w.e.f. 21.02.2007 and thereafter relieved from Kendriya Vidyalaya Zakhama (Nagaland) to Kendriya Vidyalaya Old Cantt. On 22.12.2003 Govt. of India introduced new contributory pension scheme w.e.f. 1.1.2004. Vide letter dated 14.11.2019, it was informed by the Assistant Commissioner (Finance), 3 Kendriya Vidyalaya Sangthan (HQ), New Delhi that the Kendriya Vidyalaya Sangthan which is an autonomous body under the Ministry of Education, adopted National Pension System w.e.f. 01.01.2004 after the approval from Board of Governors of the Sangthan in its 71st meeting held on 04.10.2004. Applicant has given representation to the respondent No. 3 on 23.09.2021 and 06.10.2021 regarding his inclusion under the Old Pension Scheme instead of National Pension Scheme but till date no order has been passed on his aforesaid representation.
3. We have heard Shri Ashish Srivastava, learned counsel for the applicant and Shri Rishi Kumar, learned counsel for the respondents and perused the records.
4. Learned counsel for the applicant has argued that advertisement for appointment of contractual teacher was published in the Employment Newspaper dated 13-19 September 2003. Govt. of India issued vide O.M. dated 22.12.2003 introduced new contributory pension scheme w.e.f. 1.1.2004 after written examination. Applicant appeared in the interview held on 23.04.2004 and appointment letter was issued on 04.02.2005 and thereafter applicant joined on 21.02.2005 at Kendriya Vidyalaya, Zakhama (Nagaland). It is argued that vide memorandum dated 03.10.2006, applicant was regularized from the date of joining i.e. 21.02.2005. He was relieved from Kendriya Vidyalaya, Zakhama (Nagaland) and thereafter to join at Kendriya Vidyalaya Old Cantt., on 03.05.2008. It is argued that due to delay in selection process, applicant was denied the benefit of old pension scheme, hence the applicant is entitled for the grant of old pension scheme because the rule of game cannot be changed in the midway as held by the Hon'ble Apex Court in catena of judgments. Representations of the applicant dated 23.09.2021 and 06.10.2021 could not be considered by the respondents. It is further argued that applicant has applied for the post of Teacher before issuance of O.M. dated 22.12.2003 introducing new contributory pension scheme w.e.f. 1.1.2004. Learned counsel for applicant has relied upon following case laws:-
4(i) U.P Lekhpal Sangh through its Treasurer Vinod Kumar Vs. State of UP and others in WP No. 18197 of 2021 decided on 26.10.2023 by Hon'ble Allahabad High Court.
(ii) Khilari Rajendra Eknath and others in Writ Petition No. 2270 of 2021 decided on 28.04.2023 by Hon'ble Bombay High Court.
5. Learned counsel referring to the aforesaid judgments argued that all these judgments would show that the benefit of old pension scheme will be given to those employees whose advertisements were released in 2003. Learned counsel next argued that applicant was never communicated or informed at any stage of recruitment process about the change of pensionary benefits. It is stated that due to inordinate delay in process of selection and issuance of appointment letters, applicant was denied the benefit of old pension scheme under the Central Civil Services (Pension) Rules, 1972.
6. Learned counsel for the respondents vehemently argued that recruitment process involved various stages scrutiny of applications, verification of education certificate, claims of SC,ST, OBC and PH, issuance of call letters, conducting of written, typing and interview, conduct of medical examination etc. It is further stated that vide letter dated 14.11.2019, it has been decided by Kendriya Vidyalaya Sangathan that KVS adopted NPS after approval from its Board of Governors of the Sangathan in its 71st meeting held on 04.10.2004 in compliance of Ministry of Finance, Deptt of Expenditure OM dated 13.11.2003 in respect of all new entrants of KVS joining services with effect from 01.01.2004. It is further stated that in the offer of appointment, it has been clearly mentioned that applicant, if accepts the offer of appointment, will be covered under New Pension Scheme. Since applicant accepted the aforesaid condition for opting new pension scheme at the time of joining, he is not liable to be agitated at the belated stage. Learned counsel for the respondents categorically stated that since the written examination of the applicant was not held prior to 01.01.2004, the contention of the applicant to be covered under CCS (Pension) Rules, 1972 is not acceptable. Learned counsel for the respondents next argued that since OM dated 17.02.2020 was applicable 5 only to the employees of the Central Government and the Kendriya Vidyalaya Sangathan is an autonomous body and 03.03.2023 are applicable, the aforesaid OM is not applicable to the employees of KVS.
7. We have considered the rival submission of learned counsel for the parties and have gone through the entire record.
8. In the case of U.P Lekhpal Sangh (supra), the Hon'ble Allahabad High Court has held as under:-
"136. The remedy under Article 226 of the Constitution of India is discretionary and if petitioners have made out a case that the action of the State Government is arbitrary and is hit by Article 14 of the Constitution of India, rejection of their claim on a technical ground will defeat the purpose of justice since the paramount consideration of the Court in deciding a dispute is to do substantial justice and not to defeat the justice on technical grounds. In such view of the fact, this Court in a given case under Article 226 of the Constitution of India which is a discretionary power conferred to constitutional courts under the Constitution of India can mould the relief and grant the same to subserve the interest of justice. Accordingly, the aforesaid contention of the learned Additional Advocate General does not stand to merit in the present case and deserves to be rejected.
137. Thus, for the reasons given above, the action of the respondents in denying the benefit of the Old Pension Scheme to the petitioners is declared illegal. Accordingly, all the writ petitions are allowed and respondents are directed to place the petitioners and other similarly situated employees under the Old Pension Scheme. There shall be no order as to costs".
9. Hon'ble Bombay High Court in the case of Khilari Rajendra Eknath and others (supra) has clearly held as under:-
"23. Thus, so far as employees of the Central Government are concerned, they have been given an option to opt for Old Pension Scheme in case they have been appointed against a post or vacancy advertised for recruitment prior to the date of Notification of DCPS. We have already observed above that, the State Government has adopted the DCPS formulated by the Central Government vide Notifications dated 22.12.2003 and 30.12.2003 by way of issuance of the G.R. dated 31.10.2005. The recitals to the G.R. make it amply clear that the State Government has essentially followed the Scheme formulated by the Government of India. Therefore, we see no reason why the State Government should not follow the provisions of Office Memorandum dated 03.03.2023 as well. If the State Government adopts the provisions of the Office Memorandum dated 03.03.2023, petitioners who are appointed against the posts advertised before 01.11.2005 would be governed by the provisions of the Old Pension Scheme. We are therefore of the 6 considered view that since the State Government has adopted the Scheme formulated by the Central Government for Defined Contributory Pension Scheme, the changes effected to the Scheme by the Central Government (based on judicial pronouncements) should also be made applicable to the Officers and employees of the State Government inter alia would consequently apply to the Officers and members of the staff of the High Court as well".
10. In the case of Inspector Rajendra Singh and others Vs. UOI and others in W.P.© No. 2810 /2016 decided on 27th March, 2017, Hon'ble Delhi High Court while deciding the issue involved between the parties has held that employees recruited in the same batch should not be discriminated. Thus, directed to the authority concern to grant old pension scheme to the petitioners who joined the service after implementation of aforesaid O.M. due to delay occurred on the pat of the authority/ department concerned.
11. In the case of Gopal Krishna Rath Vs. M.A. A.Baig (Dead) AIR 1999 SC 2093, Hon'ble Supreme Court has held that after commencement of the selection process, subsequent change in recruitment regarding qualification will not affect the process of selection which has already commenced.
12. In the case of Sanjay Kumar and another Vs. UOI and others in W.P. © No. 7369/201 decided on 4.2.2022, Hon'ble Gauhati High Court in similar circumstances allowed the prayer made by the petitioner directing the appropriate authority to extend the benefit of old pension scheme to the petitioner.
13. From the perusal of Question No. 248 asked in Rajya Sabha, Ministry Finance, Ministry of Finance, Department of Financial Services gave a reply that as informed by Ministry of Home Affairs, reversal from National Pension System (NPS) to Old Pension Scheme was allowed in W.P. (C) No. 756/2020 titled Dr. Davinder Singh Brar vide order dated 28.01.2020. An SLP (C) No. 173/2021 filed by the Union of India against the order was dismissed on 04.02.2021. Upon dismissal of SLP, the proposal was processed for filing Review Petition in consultation with Ministry of Law and Justice and the matter is sub-judice. It was 7 further replied that in respect of SLP (Civil) No. 23568/2019 (Review Petition (C) No. 21889/2019), Central Reserve Police Force (CRPF) has informed that all the 14 petitioners have been reverted from NPS to Old Pension Scheme vide CRPF's Order No. J.II-1/2017-Pers (AC)(SKC) dated 23.09.2020. Further, GPF accounts have also been allotted to them vide order No. M.V-1/2020-21-GOs Entt. Adm dated 14.12.2020 and accordingly, the PAO, CRPF, New Delhi, as well as respective sector IGs have been requested to ensure action about transfer of NPS amount of respective petitioners into their newly allotted GPF accounts vide order No.IRLA- 6557/20-21Aud-9 dated 18.12.2020.
14. It is evident from perusal of record that applicant has applied for the post in the year 2003 in pursuance of the advertisement dated 13-19 September 2003 and applicants appeared in 1st stage written exam on 21.12.2003 before introducing the new pension scheme O.M. dated 22.12.2003 w.e.f. 1.1.2004. According to para 3 of the O.M. dated 17.2.2020, it is clear that candidates who have selected prior to 1.1.2004 shall be entitled for old pension scheme but in the present case applicant has only applied before 1.1.2004, his final selection was made in the year 2004. It is relevant to mention here that Kendriya Vidyalaya Sangathan in its OM dated 08.05.2023 have specifically mentioned that since the OM dated 17.02.2020 is applicable only to the employees of the Central Government, the provisions contained in the aforesaid OM are not applicable to the employees of autonomous bodies under D/o School Education & Literacy.
15. On the points raised by the respondents that OM dated 17.02.2020 is applicable to the employees of the Central Government, we may refer the case of Nirmal Chandra Bhattacharjee v. Union of India, 1991 Supp (2) SCC 363 wherein Hon'ble Supreme Court has held "The mistake or delay on the part of the department should not be permitted to recoil on the appellants." Thus, applicant cannot be discriminated the delay in finalizing the selection within time. Thus the aforesaid plea taken by the respondents is not acceptable.
816. If the facts of the present matter are compared with the ratio laid down in aforementioned cases, certainly post had been advertised prior to the implementation of new pension scheme, selection process (written examination) had been conducted. Applicant's claim will also not be defeated because condition had been incorporated in the joining letter regarding acceptance of new pension scheme. Thus, in our considered view, service conditions, prevailing on the date recruitment process commenced, cannot be permitted to be altered in disadvantage of the recruitees. In the instant case, the process of selection has stated in the year 2003 and new pension scheme came into existence on 22.12.2003, therefore, the case law relied upon by the applicant fully supports the case of the applicant and we are of the opinion that applicant is entitled for old pension scheme because at the time of filing of application, old pension scheme was in existence.
17. Considering the facts and circumstances of the case, O.A. is allowed. Respondents are directed to extend the benefit of old pension scheme to the applicant with all consequential benefits. There shall be no order as to costs. All associated MAs are disposed of.
(MOHAN PYARE) (JUSTICE OM PRAKASH VII) Member (A) Member (J) Manish/-