Central Administrative Tribunal - Patna
Kumar Rajnish vs Railway on 27 April, 2022
-1- OA/050/01159/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
OA/050/01159/2019
With
MA/050/00444/2019
Reserved on: 22.02.2022
Pronounced on: 27.03.20222
CORAM
HON'BLE MR. M.C. VERMA, JUDICIAL MEMBER
HON'BLE MR. SUNIL KUMAR SINHA, ADMINISTRATIVE MEMBER
1. Kumar Rajnish, Son of Shri Radha Mohan Prasad Asthana, resident
resident
of Mohalla - Chandmari Ekawna, Chitragupta Sadan, Near Saphi
Mandir Road, P.O.- Motihari, P.S.- P.S. Motihari, District- East
Champaran- 845401, presently posted as Station Master at Gokhula
Station under Samastipur Division of East Central Railway.
2. Ranjeet Kumar, Son of Shri B.P. Singh, resident of Mohalla-
Mohalla Ashok
Nagar, Bhatbigha, PO- Gaya, PS- RS, Gaya, District- Gaya- 823001,
presently posted as Station Master at Shivpur Station under
Dhanbad Division of East Central Railway.
.... Applicants.
By Advocate: - Mr. GautamSaha
-Versus
Versus-
1. The Union of India through the Chairman, Railway Board, Ministry
of Railway, Rail Bhawan, New Delhi, PIN-
PIN 110001.
2. Director, Establishment, Railway Board, Ministry of Railway, Rail
Bhawan, New Delhi, PIN- 110001.
3. General Manager, East Central Railway, Hazipur, Bihar, PIN- PIN-
844101.
4. Financial Advisor cum Chief Accounts Officer, East Central Railway,
Hazipur, Bihar, PIN- 844101.
5. General Manager, Northeast Frontier
Frontier Railway, Maligaon, Assam,
PIN-782012.
6. General Manager (Personnel), Northeast
North ast Frontier Railway,
Maligaon, Assam, PIN- 781012.
7. Financial Advisor cum Chief Accounts Officer, Northeast
North ast Frontier
Railway, Maligaon, Assam, PIN- 781012.
8. Deputy Chief Personnel Officer (Gazetted), Northeast
North ast Frontier
Railway, Maligaon, Assam, PIN-781012.
781012.
9. Chairman, Railway Recruitment Board, Station Road, Guwahati-
Guwahati-
781001.
10. Divisional Railway Manager (Personnel), Northeast
North ast Frontier
Railway, Lumding Division, Lumding,
Lumding PIN- 782447.
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11. Assistant Personnel Officer, Northeast
North Frontier Railway, Lumding
Division, Lumding, PIN- 782447.
.... Respondents.
By Advocate(s): - Mr. Bindhyanchal Rai
ORDER
[Heard through Video Conferencing] Per S.K. Sinha, A.M: Instant OA has been preferred jointly by two applicants challenging the action of respondents putting them under the new pension sscheme and praying to direct the respondents to cover them under the Railway Service ice (Pension) ( Rules, 1993 for the purpose of pension and related benefits and to stop deductions of contribution from their salary towards NPS.
N
2. Short facts giving rise to this OA are that the applicants were appointed as Assistant Station Master (ASM) in January 20 2005 05 against the vacancies notified by Northeast Frontier Railway in July 2000 vide Employ mployment Notification No. 1/2000 which also advertised for some other posts including Goods Guard and Electricall Signal Maintainer (ESM).. While selection process including examinations/tests etc. for these other posts were completed and results declared before the the same for ASM got delayed. The 1st stage written end of 2002, th examination for ASM, earlier scheduled on 06.10.2002 had to be cancelled and was finally held on 10.08.2003. Further process for selection including the 2nd stage written examination, examination psychological
-3- OA/050/01159/2019 test etc etc. were completed by the end of 2004 2004 and the applicants were issued the appointment orders on 10.01.2005 10.01.2005 as Trainee Assistant Station Master and sent for training in January 2005. As per the Railway Board circular dated 19.02.2014 (Annexure-
(Annexure R/2) and RBE 225/2003 dated 31.12.2003 (Annexure R/3), the applicants, being appointed after 01.01.2004 01.01.2004, were placed under the new pension ension scheme cheme.
3. Applicants' case is that the Employment Notice (No. 01/2000),, in pursuance of which they were appointed, was issued to fill up the vacancies as existing in year 2000.. The cutoff date for introduction of new p pension scheme cheme in Government of India including the Railways Railways was 01.01.2004 01.01.2004. There was an inordinate delay of more than 4 years in completing the selection process for the post of ASM though the selection for some other posts such as Goods Guard, ESM etc.,, advertised through the same notification, notification was completed in 2002 itself and the selected employees were placed under the Railway Service ice (Pension) Rules, 1993. The applicants have pleaded that as delay in their selection was solely because of laches laches and lackadaisical approach of the RRB officials they cannot be deprived of the benefits of old pension scheme. Also, the action of respondents placing them under the new pension scheme was discriminatory because the officials appointed to other posts advertised through the same notification were put under nder the Railway Service Ser (Pension) Rules,
-4- OA/050/01159/2019 1993. The applicants have pleaded that they, after fter learning about some judgments of the Co-ordinate ordinate Bench of Tribunal, Tribunal sent representations to tthe he departmental authorities requesting to put them under the Railway Service (Pension) Rules, Rules 1993, however, owever, respondent authorities rejected their representations representations.
3.1 The applicants have referred to the order passed by Ernakulam Bench of the Tribunal in OA No. 180/0020 of 2015 (Sheevaji & Anr. Vs. UOI & Ors Ors.) and the order of Jabalpur Bench of the Tribunal in OA No. 203/00290 of 2017 (Suman Kumar Baghmar Vs. Union of India & Ors) in support of their averment.
4. Respondents contested the OA and filed written statement maintaining that the applicants were appointed as ASM in January, 2005 and as they were appointed after 01.01.2004, benefit of new pension scheme was extended to them.
them The appointment offer dated 10.01.2005 (Annexure-A/22) explicitly mentioned that the applicantss would ould be guided by new New Pension Scheme introduced introduced vide Railway Board letter dated 19.02.2004 (Annexure (Annexure-R/2). RBE No. 225/2003 dated 31.12.2003 (Annexure R/3 R/3) states that the fresh recruits joining the railway service from 01.01.2004 onwards shall be covered under N New Pension Scheme and will not be entitled for coverage under Railway Service (Pension) Rules, 1993.
1993 Respondents spondents have maintained that the date of advertisement or year of vacancy has no connection with the applicability of the new pension scheme..
-5- OA/050/01159/2019 The DoP&PW OM dated 17.02.2020 which which was circulated by Railway Board throu through RBE 28/2020 provides that the Govt. servants who were selected against vacancies pertaining to the period prior to 01.01.2004 and the advertisement which was issued before 01.01.2004 or the selection tests/examination were held before 01.01.2004 but the results were declared on or after 01.01.2004 were not entitled to benefit of pension under CCS (Pension) Rules, 1972. Respondents have pleaded that tthe Railway Recruitment Board had not put an anyy restriction on any candidate in submitting applications before another Recruitment Board or Service Commission for appointment.
4.1 Respondents have also mentioned in the WS that the judgement of Ernakulam Bench in OA No. 20/2015, 20/2015, which has been relied upon by the applicant, had been challenged before Hon'ble Kerala la High Court in WP No. OP(CAT) 304/2016 and the order had been stayed by Hon'ble High Court. Also, Also the judgement of Jabalpur Bench of the Tribunal, referred to by the applicant, a was passed on the basis of the judgement of Ernakulam Bench and it was not brought to the notice of the Jabalpur Bench of the Tribunal that the judgement had been stayed by Kerela High Court. Hence, the order of the Tribunal was per incuria incuriam. The respondents have pleaded to dismiss the OA with cost for being misconceived.
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5. Heard the rival counsel and considered their submissions and material on record.
6. Shri Gautam Saha, learned counsel for applicant submitted that the applicant applicants were entitled to the old o Pension Scheme cheme as the employment notification for the post was issued in July 2000 for the vacancies of that year. The delay in selection process was entirely due to the respondents. Further, the appointment to other posts advertised through the same notification was completed in 2002 and the officials so appointed were covered under the old pension ension scheme.
cheme. Putting the applicants under the new pension scheme cheme thus amounted to penalizing them for the fault of respondents respondents.. It was also discrimin discriminatory as candidates appointed to other posts advertised through the same notification were extended the benefit of old pension scheme. Learned Counsel referred the judgment of Ernakulam Bench of the Tribunal in OA No. 1 180/0020/2015 (Sheeba B vs. Union of IIndia &Ors) and of Jabalpur Bench in OA No. 203/00290/2017. Learned counsel also put reliance on the judgment of Hon'ble Delhi High Court in Dr Dr. Davinder Singh Brar Vs. Union of India &Ors in W.P. (C) 756/2020 and Hon'ble Patna High Court in CWJC No. 8319 o of 2020.
7. Shri Bindhyachal Rai, learned counsel for respondents argued that the applicants were placed under the NPS in accordance with the government overnment order/guidelines on the newly introduced National
-7- OA/050/01159/2019 Pension SScheme. The applicants have ve not challenged the vires of these orders and as long these orders survive the action of respondents qua applicants were completely lawful. Learned counsel argued that the applicants had accepted the offer of appointment with the condition of new pension scheme heme but were challenging that now after 14 years.. Thus the OA was barred by limitation. Learned counsel referred to the RBE No. 28/2020 dated 03.03.2020 which circulated the OM dated 17.02.2020 issued by Department of Pension & Pensioners' Welfare offerin offeringg one time option to be covered under the old pension scheme to those Government servants who were declared successful for recruitment in the results declared on or before 31.12.2003 against the vacancies occurring before 01.01.2004 and were covered under the National Pension Scheme Scheme.. Learned counsel submitted that the applicants were not entitled to the old pension scheme as their result was declared after 01.01.2004. Ld. Counsel referred to the order of Principal Bench of the Tribunal in OA No 3572 of 2018 dated 13/10/2019.
8. Going through the judgments of Coordinate Bench of the he Tribunal and Hon'ble High Courts, referred to by the learned counsel for applicants, we do not find them of much relevance or utility to the instant case. The decision of Ernakulam Ernakulam Bench of the Tribunal in OA No. 180/0020/2015 (Sheeba B vs Union of India &Ors), directing the respondents to deem the applicants as appointed from the date
-8- OA/050/01159/2019 of vacancy and to cover them under the CCS (Pension) Rules 1972 was challenged before Hon'ble Kerala High Court in OP(CAT) 304/2016. Hon'ble High Court had admitted the matter on 01.12.2016 and granted interim stay on operation of the Tribunal's order.
9. Similarly, Jabalpur Bench of the Tribunal, in OA No. 203/00290/2017 (Sumant Kumar Baghmar & Ors. Vs. Union of India & Ors), had directed the respondents to consider and decide the representations of the applicants in the light of ratio laid down by Ernakulam Bench in OA Nos Nos. 724/2012 & 180/0020/2015 and in Special Appeal No. 330 of 2013 by the Hon'ble High Court of Uttarakhand Uttarakhand.. The Tribunal, at the time of passing the orders was not informed that all these orders were under challenge either before the respective High Court or Hon'ble Supreme Court.
10. The judgment of Hon'ble Patna High Court in CWJC No. 8319 of 2020 which was filed by constables recruited in various districts of Bihar pursuant to the common advertisement dated 02/2004 also does not lend support to the applicant. The cut-off off date for New Pension ension Scheme in Bihar was fixed as 31.08.2005. As constables were appointed in districts on different dates some got covered under OPS while the petitioners were placed under the NPS. Hon'ble Patna High Court allowed the writ application to maintain consi consistency.
stency. Evidently,
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there is no similarity as regards facts or issues involved in this writ case with those in the instant OA.
11. Hon'ble Delhi High Court, in the case of Dr. Davinder Singh Brar Vs. Union of India &Ors. [WP(C)756/2020], ordered on 28.01.20 28.01.2020 20 to extend the benefit of OPS to the petitioner in terms of the CCS (Pension) Rules, 1972 by issuing appropriate orders. The applicant was appointed as Dental Surgeon in the rank of Assistant Commandant in BSF on 16thOctober 2004 in response to the tisement published on 24th May 2003.
advertisement 2003
12. We find that the facts of instant OA are unique to the extent that several posts were advertised through same employment notice and while the selection process for other posts was completed well before the cutoff da date te for new pension scheme the selection se ction process for the post of ASM was considerably delayed and was completed after the cutoff date. Neither side, in their the pleadings or submissions during the hearing could produce any case law with analogous facts.
13. It is a matter of fact that the new pension scheme cheme (Contribution based Pension Scheme) Scheme), referred to as the National Pension System (NPS), was introduced for Central Government employees and made mandatory for all new recruits to the Central Government se service rvice (except the armed forces) from 1st January, 2004. Railway Board, vide RBE No. 225/2003 dated 31.12.2003,
-10- OA/050/01159/2019 shared the Gazette notification published by Ministry of Finance on this subject and communicated to all the Railway units that Railway Service ce (Pension) Rules, 1993 and some other related rules will not be applicable to the new recruits entering the Railway Service from 01.01.2004. Railway Board further issued detailed guidelines on the introduction of New Pension System vide their letter dat dated ed 19.02.2014.
14. It is also a matter of fact that the RRB, Guwahati had issued employment noti notice (01/2000) inviting applications application for several posts including ASM ASM, Goods Guard and ESM on 01.07.2000 and conducted the selection process for these posts.. It is admitted that the selection process for other posts was completed before 2002 end and the selected candidates were issued appointment orders covering them under the Railway Service (Pension) Rules, 1993 while the he selection process for the post of A ASM SM was delayed.
delayed Final result for the post of ASM was declared in December 2004 and the selected candidates were issued appointment offer on 10.01.2005 placing them under the NPS.
15. The he selection process for the post of ASM took more than four years whi while the same for other posts was completed in less than two years. The delay in the selection process for ASM was there since the beginning as admit card for the first stage examination was issued on 12.08.2002, almost two years after the employment notice. The first
-11- OA/050/01159/2019 stage examination which had been scheduled earlier on 06.10.2002 was cancelled and held later in August 2003. If the respondents had completed the selection process for ASM before the end of 2003 like they did for other posts advertised through the notification,, the applicants would have been covered under the old pension scheme.. The delay seems attributable solely to the RRB officials as the he respondents have not provided cogent reasons for the delay in the WS. For reasons best known to the respondents no step was taken in the first two years to initiate the process of selection to the post of ASM and the first stage examination was cancelled and rescheduled almost ten months later. As RRB Guwahati had advertised ed for several posts together in the employment notice (01/2000) (01/2000),, they were required to complete the selection process for all these posts almost together.
16. Department of Pension and Pensioners' Welfare, GoI issued an OM dated 17.02.2020 clarifying tha thatt those employees whose selection for employment was finalized before 01.01.2004 but who joined Government service on or after 01.01.2004 were to be given a one-time time option to be covered under the old pension scheme. We find that as the RRB completed the selection selection for other posts much before the cutoff date for implementation of the new pension scheme the applicants cannot be made to suffer for the laches on part of respondents specially RRB officials.
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17. In view of the discussions and facts mentioned above, we are of the view that interest of justice would be served if the applicants are covered under the Railway Service ice (Pension) Rules, 1993 for the purpose of pension and related benefits. Accordingly, the Respondents are directed (i) to issue appropriate orders extending coverage of the Railway Serv Service (Pension) Rules, 1993 199 to the applicants, (ii) to collect necessary subscription under the General Provident Fund Rules, and (iii) to credit the contributions collected under the new pens pension ion scheme so far to to their General Provident Fund aaccount ccount expeditiously but latest within six months from the date of this order.
18. The OA is allowed to the extent of above directions. Pending MAs,, if any, also stand disposed of. No Cost.
[Sunil Sunil Kumar Sinha] [ M.C. Verma ] Administrative Member Judicial Member Srk.