Central Administrative Tribunal - Lucknow
John Joseph vs Union Of India on 8 November, 2023
CAT,Lucknow Bench OA No. 332/00 359 of 2021 - John Joseph &Anr. Vs. U.O.I &Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No. 332/00359 of 2021
ORDER RESERVED ON : 30/10/2023
ORDER PRONOUNCED ON : 08/11/2023
Hon'bleMr. Justice Anil Kumar Ojha, Member-Judicial
Hon'bleMr.Pankaj Kumar, Member-Administrative
1. John Joseph,
Aged about 58 years,
Son of Late Shri P.P. Joseph,
Resident of 2/25, Sector H, Jankipuram,
Lucknow.
2. C.L. Singh,
Aged about 58 years,
Son of Shri Ram Sajiwan Singh,
Resident of 9/41, Bahar-A, Sahara States, Jankipuram,
Lucknow.
.....Applicants
By Advocate:Shri Prashant Chandra Sr. Advocate alongwith Geetika Yadav
Versus
1. Union of India through the Secretary,
Department of Pension and Pensioners' Welfare,
Ministry of Personnel, Public Grievances and Pensions,
Government of India,
New Delhi.
2. The Director,
Department of Pension and Pensioners' Welfare,
LokNayakBhawan,
Khan Market,
New Delhi.
3. Income Tax Appellate Tribunal,
Fourth Floor, Old CGO Building,
Maharshi Karve Marg, Mumbai,
Through its Assistant Registrar/President.
4. The Pay & Accounts Officer,
Pay & Accounts Office,
Ministry of Law & Justice,
Department of Legal Affairs,
Forth Floor, JanpathBhawan,
New Delhi.
5. The Assistant Registrar,
Income Tax Appellate Tribunal,
Page 1 of 12
CAT,Lucknow Bench OA No. 332/00 359 of 2021 - John Joseph &Anr. Vs. U.O.I &Ors.
Fifth Floor, Picup Bhawan,
Gomti Nagar,
Lucknow.
....Respondents
By Advocate: Smt. Prayagmati Gupta.
ORDER
PerHon'bleMr.Pankaj Kumar, Member-A This case raises before us the issue of admissibility of pension in terms of the Central Civil Services (Pension) Rules 1972, under the Old Pension Scheme in vogue till 31.12.2003, to the applicants belonging to a public sector undertaking of State Government, who were on deputation to the Income Tax Appellate Tribunal (ITAT) and whose services were absorbed in ITAT after 01.01.2004.
2. The applicants have sought following relief:
(a) to set aside the impugned order dated 29.07.2021 passed by respondent 3, as contained in Annexure 1 as also the clarification dated 15.07.2021 as contained in Annexure 2 to their application;
(b) issue an appropriate order or direction commanding the respondents to treat the applicants to be entitled for pensionary benefits under the Old Pension Scheme as per the CCS (Pension) Rules, 1972 as settled at the time of their appointment and the respective obligations fulfilled by the respondents and the applicants; and also to reckon the services rendered by the applicants in UPTRON prior to joining the respondent 5 for all service benefits;
(c) issue any other appropriate order or direction which the Hon'ble Tribunal may deem fit and necessary in the circumstances of the case; and,
(d) to allow the application with exemplary costs.
3.1 The applicants were formerly employees of UPTRON India Ltd., a public sector undertaking of Government of Uttar Pradesh. In response to circular dated 01.05.2001 issued by ITAT, they applied and were taken on deputation in April 2002 in the post of Private Secretary in ITAT. The maximum period of deputation was 3 years. In April, 2005, the applicants were absorbed permanently in ITAT. In Page 2 of 12 CAT,Lucknow Bench OA No. 332/00 359 of 2021 - John Joseph &Anr. Vs. U.O.I &Ors. the letters conveying the sanction of the President, ITAT to permanent absorption of the applicants, they were asked to exercise option within six months:
(i) Either to count the service rendered under UPTRON India Ltd. for pension in the Central Government under D.P.&A.R.'s O.M. No. 28/10/84-PU dated 29.08.1984.
(ii) Or to receive pro rata retirement benefits for the service rendered under UPTRON India Ltd.
3.2 The applicants exercised the first option, i.e., to count the service rendered under UPTRON India Ltd. for pension.As per the letter of sanction for absorption, this option required UPTRON India Ltd. to 'discharge its pension liability by paying in lump sum as a one time payment, the pro rata pension/service gratuity/terminal gratuity and retirement gratuity for the service upto the date of absorption'.UPTRON India Ltd., however, informed ITAT vide letter dated 22.07.2005 that as it was a sick industrial company, it would not be possible for the company the dues of applicants towards gratuity, provident fund contribution and pending salary, if any, for the service rendered by them with UPTRON till their absorption in ITAT. This was communicated by ITAT to the applicants vide memorandum dated 12.08.2005 stating that Central Government will not pay pension for the period of service rendered in UPTRON India Ltd. unless and until UPTRON India Ltd. discharges its liability of leave salary contribution and pension contribution/CPF (employer's share) with interest thereon for the service upto the date of absorption. In response, the applicants informed the Deputy Registrar, ITAT that they were taking up the matter of payment of liability with UPTRON India Ltd. Nothing by way of payment from UPTRON appears to have taken place thereafter. Post absorption, the applicants were promoted to the post of Senior Private Secretary vide order dated 30.06.2005.
3.3 The National Pension System (NPS) came into effect from 01.01.2004 vide Ministry of Finance notification dated 22.12.2003 for all Government servants appointed on or after 01.01.2004 to the posts in Central Government service (except armed forces). Faced with representations from Government servants who were appointed after 31.12.2003 but requested for benefits of the pension scheme under CCS (Pension) Rules 1972 on the ground that their appointment was delayed due to administrative reasons or lapses beyond their control, the Department of Pensions & Pensioners' Welfare issued O.M. dated 17.02.2020. This Page 3 of 12 CAT,Lucknow Bench OA No. 332/00 359 of 2021 - John Joseph &Anr. Vs. U.O.I &Ors. O.M. allowed all such Government servants who were declared successful for recruitment in the results declared on or before 31.12.2003 against vacancies occurring before 01.01.2004 and are covered under NPS on joining the service on or after 01.01.2004, may be given a one-time option to be covered under the CCS (Pension) Rules 1972 and this option may be exercised by concerned Government servants latest by 31.05.2020.
3.4 The applicants submitted a representation dated 28.05.2020 to respondent no. 3 praying for coverage under CCS (Pension) Rules 1972 and stressing that their case did not fall under the O.M. dated 17.02.2020. On advice of the Pay & Accounts Office, the matter was referred to the Department of Pensions& Pensioners' Welfare who clarified thus as informed to applicants by Assistant Registrar, ITAT, Mumbai vide communication dated 29.07.2021:
(i) DOP&PW OM No. 57/04/2019-P&PW(B) dated 17.02.2020 is not applicable in the instant case where employees have joined ITAT on deputation basis from a State PSU and thereafter absorbed in ITAT after 01.01.2004.
(ii) The service rendered in PSU is not counted for pensionary benefit under CCS (Pension) Rules, 1972.
3.5 Aggrieved with the above clarification, the applicants have preferred this OA claiming coverage under CCS (Pension) Rules 1972 and for reckoning service rendered in UPTRON for all service benefits.
4.1 It is the applicants' case that vide communication dated 29.07.2021, they have been deprived of pensionary benefits admissible to them in accordance with the terms and condition of appointment which were agreed upon and accepted and even acted upon by regularly deducting the General Provident Fund (GPF) since June 2002. They contend that DOP&PW's O.M. dated 17.02.2020 is not applicable to them. The impugned communication dated 29.07.2021 is based on a clarification dated 15.07.2021 processed in DOP&PW, a copy of which applicants have obtained from the respondents under the Right to Information Act, 2005 and enclosed as Annexure-II to this OA. In the applicants' view, the communication dated 29.07.2021, which refers mechanically to O.M. dated 17.02.2020 suffers from arbitrariness, non application of mind, and violation of principles of natural justice as the applicants had been given no opportunity for hearing on clarification dated 15.07.2021 of DOP&PW on which the impugned communication relies. Page 4 of 12 CAT,Lucknow Bench OA No. 332/00 359 of 2021 - John Joseph &Anr. Vs. U.O.I &Ors. 4.2 It is highlighted by the applicants that their deputation to ITAT is governed by O.M. dated 05.01.1994 of Department of Personnel & Training (DoPT) quoted in the circular dated 01.05.2001 of ITAT inviting applications to fill up vacancies on deputation basis and draw attention to clause 7.7(iii) thereof, reproduced below:
"In case of reverse deputation from Central Public Sector Undertakings/State Public Sector Undertakings, Autonomous Bodies to Central Govt. the question regarding leave salary and pension contribution will be decided by mutual consent."
4.3 They further contend that after satisfactory rendition of service on deputation for 3 years, they were absorbed in ITAT and the terms and conditions of their service are regulated as per O.M. dated 29.08.1984 of the then Department of Personnel & Administrative Reforms. Clause 3(b)(ii) of which is reproduced below:
"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."
4.4 The applicants have asserted that even the respondents were considering the applicants to be eligible under the CCS (Pension) Rules 1972 and it was for this reason that their accounts under the New Pension Scheme were never opened after it came into effect from 01.01.2004.
4.5 The applicants claim that alteration of the service conditions and terms of appointment and consequently completely disentitling the applicants from receiving pension is legally unsustainable and call for setting aside the order dated 29.07.2021.
5.1 The respondents, on the other hand, have stated that on absorption of the applicants, they became government servants. However, the applicants were absorbed in 2005, and the new defined contribution pension scheme came into effect from 01.01.2004, replacing the existing defined benefit pension system, vide notification dated 22.12.2003 of Ministry of Finance.As such the applicants Page 5 of 12 CAT,Lucknow Bench OA No. 332/00 359 of 2021 - John Joseph &Anr. Vs. U.O.I &Ors.
are entitled to get pension under New Pension Scheme and they are not entitled under Old Pension Scheme.
5.2 It is further contended that due to non-transfer of contribution of employer and employee towards contributory provident funds to ITAT by UPTRON, GPF accounts of applicants were opened as a temporary measure and this temporary arrangement for parking of contribution funds does not entitle the applicants to be covered under the Old Pension Scheme. However, the applicants are eligible for gratuity, leave encashment and other benefits. 5.3 The respondents have brought to our notice that the representations received from similarly situated officers were forwarded to Ministry of Law & Justice and the Ministry further referred the issue to the Department of Pensions & Pensioners' Welfare, Ministry of Personnel, Public Grievances and Pensions, who have, after due consideration, conveyed the following decision:
"The pensionary benefits for the services rendered in ITAT, it is mentioned that as per the Office Memorandum dated 13.09.1996 states that the services rendered in Public Undertaking do not count as qualifying service for the purpose of pension. The service rendered by the above employees of PSU on deputation basis in ITAT shall also not count as qualifying service for the purpose of pension."
5.4 The respondents have cited a similarly situated case of Rema Devi Vs Department of Pensions & Pensioners' Welfare &Ors in OA No. 310/01754 of 2016, wherein the Chennai Bench of this Tribunal at Chennai decided that the applicant is not entitled to get the benefit of Old Pension Scheme.
6. In response, the applicants filed a rejoinder reiterating the arguments made in the OA. Further, vide C.M. Application 1204 of 2023, they have brought to our notice that the issue whether the services rendered by the employees of State PSU on deputation basis can be counted as qualifying service for the purpose of pension and pensionary benefits has been decided by a Division Bench at Jaipur of this Tribunal, wherein, vide order dated 02.09.2022 in OA No. 800 of 2016, it has been ordered to treat the period spent by the applicant on deputation in ITAT as qualifying service for the purpose of computation of pension. This order has been subsequently affirmed by a Division Bench of Hon'ble High Court at Jaipur vide order dated 06.04.2023 passed in Civil Writ Petition No. 18908 of 2022 and has also been relied on by a Page 6 of 12 CAT,Lucknow Bench OA No. 332/00 359 of 2021 - John Joseph &Anr. Vs. U.O.I &Ors.
Division Bench of the Principal Bench of this Tribunal at Delhi in an order dated 19.12.2022 passed in OA No. 872 of 2017.
7. In the hearing, learned counsels for the applicants and the respondents expounded their respective positions highlighting adjudications referred to in paragraphs 6 and 5.4 above, respectively.
8.1 Having heard both the parties, we observe that the instant case belongs to a unique category wherein the State PSU employee, having initially served on deputation in a post governed by service rules of the Central Government, and subsequently having been absorbed in that post, finds himself in a situation in which he is unable to avail of pension, whether under the Old Pension Scheme or the New Pension System. This position is captured in paragraph 5 of the note dated 15.07.2021 prepared by the Department of Pensions & Pensioners' Welfare (Annexure A2 of OA) in the following manner:
"DoLA has stated that the unique nature of issue here cannot be adequately emphasised when the deputationists do not acquire the benefit of the service rendered in ITAT (15-16 years) either in the Old Pension Scheme or in the National Pension System or in the Contributory Pension Scheme when they would have continued to be entitled if they had stayed in UPTRON. Further, due to the peculiarity of the situation, it would be impossible to consider the deputationists from UPTRON in the NPS retrospectively due to the fact that no contribution under the NPS can be made by the employee or the government at this stage. The window of opportunity to consider the possibility of providing the benefit of Old Pension Scheme can be explored by granting permission to club the past service."
8.2 To examine the issue in the context of various adjudications, we first turn to the order passed by Chennai Bench of this Tribunal in Rema Devi Vs Department of Pensions & Pensioners' Welfare &Orsin OA No. 310/01754 of 2016. The operative part of the order is reproduced below:
"5. We had heard both sides and perused the pleadings and Annexures marked before this Tribunal. On a perusal of Annexure R1, DOPT OM No. 28/24/94-P&PW(B) dated 13.09.1996, it can be seen that the Government had rejected the demand for considering the service rendered in public sector undertaking for admissibility of pension. So, it has to be considered that applicant ought to have known this difficulty when she came on deputation in 2002 to ITAT. In the deputation order itself (Annexure A6) it is clearly mentioned that "in case he/she opts in favour of clause (i) of clause (1) above, UPTRON India will discharge its pension liability by paying a lump sum as one-time payment, the pro rata pension/service, gratuity/terminal gratuity and retirement gratuity for service upto the date of absorption." In the applicant's case, the UPTRON India Ltd. had failed to pay the dues to ITAT on her giving option. The Government of India had clarified the policy (Annexure Page 7 of 12 CAT,Lucknow Bench OA No. 332/00 359 of 2021 - John Joseph &Anr. Vs. U.O.I &Ors.
R8) of Government (Annexure A17) and reiterated the same stand that was expressed in its OM dated 13.09.1996 (Annexure R1) referred supra by us.
Since the applicant was absorbed in the service of ITAT w.e.f. 11.03.2005, she is also not entitled to get the benefits of old pension scheme. There is nothing impugned in the order of second respondent. There is nothing arbitrary in the said order. The applicant in this case had failed to make out a case in her favour and we find that the OA is liable to be dismissed.
6. Accordingly we hereby dismiss the OA. No costs."
8.3 A similar case praying for relief by way of treatment of service rendered in ITAT, including service rendered on deputation, came up as OA No. 800/2016 R N Mishra vs Union of India &Ors before the Jaipur Bench of this Tribunal. The relevant parts of the order dated 02.09.2022 of the Tribunal are extracted below:
"12. .....This OM dated 13th September, 1996is not related to counting of services rendered on deputation basis and subsequent absorption....
13. Further, as per Rule 3(q) of Central Civil Services (Pension) Rules 1972, 'Qualifying Service' means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible. Rule 13 of the said Rules also provide that qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity, provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post. Rule 14(1) of the said Rules provides that the service of a Government servant shall not qualify unless his duties and pay are regulated by the Government, or under conditions determined by the Government. Rule 14(2) of the said Rules provides that for the purposes of sub-rule (1), the expression "service" means service under the Government and paid by that Government from the Consolidated Fund of India or a local Fund administered by that Government but does not include service in a non-pensionable establishment unless such service is treated as qualifying service by that Government. The aforementioned provisions of Central Civil Services (Pension) Rules 1972 apply in the case of applicant also. The services rendered by the applicant while on duty i.e. from 18.11.2002 in ITAT shall be taken into account for the purpose of pensions and gratuities. The qualifying service of the applicant shall commence from the date he takes charge of the post to which he is first appointed i.e. 18.11.2002 in ITAT. The applicant was being paid by the Government from the Consolidated Fund of India. Therefore, we are of the view that the 'qualifying service' of the applicant commenced from the date he took charge of the post to which he was first appointed i.e. from 18.11.2002 on the post of PS in the ITAT on deputation basis and the said date is earlier than 01.01.2004, which is the cut off date for New Pension Scheme. Furthermore, it is seen that GPF account of the applicant bearing No. DLH-LAW-LA-02600 was maintained by PAO (LA), New Delhi and GPF contribution was deducted by the ITAT and was retained by the Pay & Accounts Office (Legal Affairs), New Delhi. As the applicant's service commenced/started from 18.11.2002 and GPF contribution was being deducted by the ITAT, therefore, he is eligible for old pension scheme counting the service from 18.11.2002 till his retirement on 31.05.2015 as minimum qualifying service for pension is 10 years and, as such, the applicant has having more than 12 years of qualifying service as discussed above.Page 8 of 12
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....
15. We are in agreement with the judgment/order of the Coordinate Bench of this Tribunal at Jodhpur dated 29.03.2012 passed in the case of ShriSushil Kumar Tiwari vs. UOI &Ors. (OA No. 208/2008), in an identical case on the very same issue, which has been upheld by Hon'ble High Court of Rajasthan, Jodhpur Bench in DBCWP No. 4799/2013 (UOI &Ors. vs. Sushil Kumar Tiwari&Ors.) vide order dated 2014, as relied upon by the applicant herein. The Hon'ble High Court of Rajasthan has agreed with the findings of Jodhpur Bench of this Tribunal that the applicant therein is entitled to be considered for permanent absorption from his initial date of deputation itself."
8.4 In the above mentioned order dated 02.09.2022, the Jaipur Bench of this Tribunal inter alia took note of the order dated 30.07.2019 passed by Ernakulam Bench of this Tribunal in the similarly situated case of K. Pushparajanvs The President ITAT &Ors (OA No. 180/0153/2017) in which the action of respondents was found just and proper and in accordance with the relevant rules and instructions on the subject. The Jaipur Bench of this Tribunal dealt with such conflicting views of Ernakulum Bench in the following manner:
"19. However, still we would like to deal with the matter from another angle that there seems contradiction in the two orders passed by Benches of the equal strength of the Tribunal firstly by Jodhpur Bench of this Tribunal and secondly by Ernakulam Bench of this Tribunal as noted above. In such a situation, as per decision/order dated 24th March, 2015 in OA No. 569/2009 (Ajay Sharma vs UOI &Ors.) passed by Larger Bench at C.A.T. Jaipur Bench, the ideal course would be to refer the matter to a Larger Bench. But from the observations and discussions made here-in-above, it is clear that the order/judgment dated 29.03.2012 passed by Jodhpur Bench of this Tribunal in the case of ShriSushil Kumar Tiwari (supra) has been upheld by the Hon'ble High Court of Rajasthan, Jodhpur Bench vide its order dated 20.03.2014 in DRCWP No. 4799/2013. Therefore, since the order of Jodhpur Bench of this Tribunal has been upheld by the Hon'ble High Court of Rajasthan, Jodhpur Bench, we are of the considered view that there is no need to refer the matter before a Larger Bench. Moreover, said order/judgment of Jodhpur Bench was passed by Division Bench; however, the order/judgment of Ernakulum Bench of this Tribunal was passed by Single Member Bench. Further, it is seen that respondents have only relied upon the said order of Ernakulum Bench dismissing the OA, but have not stated anything whether the same has been challenged before the concerned Hon'ble High Court or not. Be that as it may, if the matter had been taken before the concerned Hon'ble High Court and if there is any verdict, still we have to follow the said order/judgment passed by Jodhpur Bench of this Tribunal in the case of ShriSuhil Kumar Tiwari (supra) as has been upheld by the Hon'ble High Court of Rajasthan, Jodhpur Bench as the Larger Bench of this Tribunal in Ajay Sharma vs UOI &Ors(supra) has decided that if there are conflicting judgments of two different High Courts, by the Benches of equal strength, the Tribunal should be free to take its own view to be in consonance of the view taken in either of the judgments of the High Courts. Further, we have not come to know that there is any further challenge to the Page 9 of 12 CAT,Lucknow Bench OA No. 332/00 359 of 2021 - John Joseph &Anr. Vs. U.O.I &Ors.
decision taken by the Larger Bench of this Tribunal in the case of Ajay Sharma vs UOI &Ors (supra) before the Hon'ble High Court of Rajasthan."
8.5 The order dated 02.09.2022 of the Jaipur Bench of this Tribunal in R N Mishra vs Union of India &Ors was challenged in DB Civil Writ Petition No. 18908/2022 UOI &Orsvs R N Mishrain the Hon'ble High Court of Judicature for Rajasthan, Jaipur Bench and disposed of vide order dated 06.04.2023 dismissing the petition in following terms:
"16. The respondent-applicant is running from pillar to post and is in the corridors of the Court for redressal of his grievances for the last seven years. He has won the legal battle but still he is deprived of the fruit of successful litigation. While allowing the Original Application filed by the respondent- applicant, the Tribunal directed the petitioners to grant pension and other related benefits within a period of eight weeks but instead of granting such benefits to the respondent-applicant, he has been unnecessarily dragged in litigation by filing this merit-less writ petition. The writ petition is sans merit. Consequently, this writ petition stands dismissed with a cost of Rs. 1,00,000/- which shall be payable to the respondent-applicant by way of demand draft. The petitioners are directed to grant all benefits allowed by the Tribunal vide order dated 02.09.2022 and the cost of Rs. 1,00,000/- imposed by this Court to the respondent-applicant on or before 31.05.2023. In case, fail to comply with the aforesaid directions, the respondent-applicant would be at liberty to file appropriate application before this Court."
8.6 Taking note of the judgments in R N Mishra vs UOI &Ors by Jaipur Bench of this Tribunal, in Sushil Kumar Tiwarivs UOI &Ors by Jodhpur Bench of this Tribunal and in Ajay Sharma vs UOI &Ors by Larger Bench at Jaipur of this Tribunal referred to by us in preceding paragraphs, a similar case was disposed of by the Principal Bench of this Tribunal at New Delhi in OA No. 872/2017 Sahansra Pal vs UOI &Ors vide order dated 19.12.2022 with the following conclusion:
"5. In the aforesaid facts and circumstances, the OA is allowed and the impugned orders dated 04.0.2016 (Annexure A-1), 28.06.2016 (Annexure A-2) and 24.10.2016 (Annexure A-3) are quashed and set aside. Accordingly, the respondents are directed to treat the qualifying service of the applicant for the purpose of pension from 18.11.2002 to 18.11.2005. He shall also be allowed pension and other pension related benefits including commutation of pension, gratuity, leave encashment, etc. The said exercise shall be carried out by respective respondents within a period of three months from the date of receipt of a copy of this order.
6. Accordingly, Original Application is allowed with the above observations and directions. No order as to costs."
8.7 This OA is about pension and pensionary benefits. Before we part with the survey of adjudications brought to our notice, we must make a mention of Page 10 of 12 CAT,Lucknow Bench OA No. 332/00 359 of 2021 - John Joseph &Anr. Vs. U.O.I &Ors.
the following observations on the subject made by the Hon'ble Apex Court in Pepsu Road Transport Corporation vs Mangal Singh &Ors reported in (2011) 11 SCC 702and quoted by Hon'ble High Court of Rajasthan, Jaipur Bench in their order dated 06.04.2023 in UOI &Orsvs R N Mishra(supra):
"To sum up, we state that the concept of pension has been considered by this Court time and again and in a catena of cases it has been observed that the pension is not a charity or bounty nor is it a conditional payment solely dependent on the sweet will of the employer. It is earned for rendering a long and satisfactory service. It is in the nature of deferred payment for the past services. It is a social security plan consistent with the socio-economic requirements of the Constitution when the employer is State within the meaning of Article 12 of the Constitution rendering social justice to a superannuated Government servant. It is a right attached to the office and cannot be arbitrarily denied."
9.1 The factual matrix of this OA brings out that the applicants are similarly situated with the applicants in cases cited, viz.,Rema Devi vs Department of Pensions & Pensioners' Welfare &Ors(supra), R N Mishra vs Union of India &Ors(supra) and Sahansra Pal vs UOI &Ors(supra).
9.2 For the purpose of clarity, the applicants' service can be viewed in three parts: (i) service rendered in UPTRON; (ii) service rendered on deputation in ITAT; and, (iii) service rendered after absorption in ITAT. 9.3 As regards the first part of service rendered in UPTRON, we have no hesitation in agreeing with the conclusion reached in Rema Devi Vs Department of Pensions & Pensioners' Welfare &Ors by Chennai Bench of this Tribunal that that owing to failure of UPTRON India Ltd. to discharge its liability, the first part of service rendered in UPTRON cannot count for pension and pensionary benefits of the employee absorbed in ITAT. This is because the exercise of option (i) referred to in paragraph 3.1 above was contingent on UPTRON discharging its liability outlined in paragraph 3.2 above. To that extent, the applicants in the instant OA are not entitled for relief of counting their past service in UPTRON towards pension and pensionary benefits. 9.4 It is with regard to the second part of service rendered on deputation in ITAT that we respectfully differ with Rema Devi Vs Department of Pensions & Pensioners' Welfare &Ors and agree with the conclusion reached in R N Page 11 of 12 CAT,Lucknow Bench OA No. 332/00 359 of 2021 - John Joseph &Anr. Vs. U.O.I &Ors.
Mishra vs Union of India &Ors and Sahansra Pal vs UOI &Ors that the service rendered on deputation qualifies for pension and pensionary benefits in terms of CCS(Pension) Rules 1972 for the reasons explicated in R N Mishra vs Union of India &Ors as upheld in UOI &Orsvs R N Mishra (supra). We also agree with R N Mishra vs Union of India &Ors and Sahansra Pal vs UOI &Ors that further reference to Larger Bench is not required for the reasons expounded therein.
9.5 There is no dispute and nothing to be settled pertaining to the third part of service rendered on absorption in ITAT.
10. In the aforesaid facts and circumstances, the impugned communication dated 29.07.2021 (Annexure A-1 of OA) is quashed and set aside. The respondents are directed to treat the service rendered by applicants on deputation to ITAT as qualifying service for pension and pensionary benefits under CCS (Pension) Rules 1972. These directions shall be implemented by the respondents within a period of three months from the date of receipt of certified copy of this order.
11. Accordingly, Original Application is partly allowed with above observations and directions. No order as to costs.
(Pankaj Kumar) (Justice Anil KumarOjha)
(Member -A) (Member-J)
vidya
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