Central Administrative Tribunal - Delhi
Ramesh Chander vs M/O Health And Family Welfare on 31 May, 2019
Central Administrative Tribunal
Principal Bench
OA No. 317/2018
MA No. 323/2018
Order reserved on: 24.05.2019
Order pronounced on : 31.05.2019
Hon'ble Mr. Pradeep Kumar, Member (A)
Ramesh Chander,
Age 59 yrs., Group C,
S/o Late Sh. Chittar Mani,
R/o House C-127 Gali No.5
Tomar Colony, Kamalpur Burari,
Delhi-110084.
... Applicant
(By Advocate: Sh. B.Rajesh for Sh. Ranbir Yadav)
Versus
1. The Director General,
E.S.I. Corporation Kotla Road,
New Delhi.
2. M.S. (Medical Superintendent)
E.S.I.C. Model Hospital,
Basaidara Pur Ring Road,
New Delhi-110015.
3. Director (Medical) Delhi,
E.S.I. Scheme, Dispensary Complex,
Tilak Vihar, New Delhi.
... Respondents
(By Advocate: Sh. A.K.Verma)
ORDER
The applicant was appointed as a Daily Wage Electrician with ESIC Hospital on 16.01.1991. He was regularised in 2 OA No.317/2018 due course w.e.f. 28.07.2004. He retired from service on 30.06.2017. The applicant had pleaded that 50% of his daily wage service prior to regularisation needs to be counted for his qualifying service towards pension.
The applicant has also pleaded that he needs to be regularised w.e.f. 25.02.2002 when the regular post of Electrician was created or at least from 01.01.2004. This is in the context that with his regularisation w.e.f. 28.07.2004 he is being covered under the New Pension Scheme which came into force for all those appointed after 01.01.2004 and if he would be regularised prior to this date, he would be covered under Old Pension Scheme.
2. The applicant brought out that despite working for long as a daily wage Electrician, he was not regularised. Feeling aggrieved, he had preferred OA No.1481/1991, which was decided on 08.05.1992 with the following directions:
"4. In the above background, we dispose of the application with the direction to the respondents to consider appointing the applicant as Electrician on regular basis if any vacancy exists and if he is found suitable for such regularisation in accordance with the E.S.I.C. (Recruitment) Regulations, 1965 in all respects. Till then, he shall be continued to be engaged as Electrician on daily wage basis so long as the respondents need the services of an Electrician. The interim order passed on 2.7.1991 is hereby made absolute with the aforesaid observations. There will be no order as to costs."3 OA No.317/2018
3. Later on, the applicant pleaded that a regular post of Electrician became available but he was not being regularised. He made a representation for such regularisation on 21.05.2002 and when this was not acceded to, he preferred another OA No.2662/2002 with a plea to get himself regularised. This was decided on 09.10.2002. The operative part of this order reads as follows:
"3. In face of the above said facts, it is directed that the case of the applicant may be considered, in case there is a regular vacancy for the post of Electrician. Order passed by this Tribunal referred to above must be kept in view while considering the case of the applicant. Decision in this regard be taken within two months from the receipt of a certified copy of the present order."
4. In follow up of directions by the Tribunal, as brought out above, a regular post of Electrician was created on 25.02.2002 and applicant‟s services were regularised vide orders dated 25.08.2004 and this regularisation took effect from 28.07.2004. Feeling aggrieved at such delay in regularisation, the applicant preferred another OA No.1723/2006 with a plea to regularise him from an earlier date prior to 01.01.2004. Certain orders were passed in this OA. However, the applicant preferred RA No.160/2007. This was decided vide orders dated 19.12.2007. The operative para reads as under:
4 OA No.317/2018
"3. We have carefully gone through the order dated 9.10.2002 passed by the Tribunal in OA 2662/2002 whereby the respondent authorities were directed to consider the applicant‟s case for regularisation in the event there was a regular vacancy in the post of Electrician. True it is that the respondent authorities could not comply with the directions of this Tribunal within the time stipulated therein. Instead, they have regularized the applicant from 28.7.2004. But that by itself, does not give rise to a cause of action for claiming regularization from December, 2002. Assuming that the respondents failed to comply with the directions of this Tribunal, what made the applicant to remain quiet for a period of two years is not explained here. We only direct that it will be open to the applicant to make a fresh representation highlighting his contentions within two months from the date of this order, and in that case it is to be disposed of by the concerned respondents in their discretion, and in accordance with law, with some amount of expedition."
5. In compliance to these directions, the applicant made a representation dated 24.01.2008 to regularise him w.e.f. 25.02.2002, the date when post was created or December 2002 when the two month time limit for compliance of directions as given by the Tribunal, ended (para 3 supra). He made another representation dated 18.02.2008 for regularisation. These representations were rejected vide orders dated 25/28.08.2009.
6. It was pleaded that there is a scheme under Government of National Capital Territory of Delhi (GNCTD), as seen from MCD letter dated 06.09.2000 as well as from Delhi Jal Board Scheme dated 13.08.2007 wherein 50% of the daily wage service can be counted towards qualifying service.
5 OA No.317/2018
Applicant made representations dated 23.06.2014, 27.10.2014, 21.01.2015 and 08.05.2015 for counting such period for him also. The applicant made a RTI query dated 29.03.2016 in this regard and when this was not replied, he sent a reminder also on 11.05.2016. The RTI query was replied on 20/21.07.2016.
When such daily wage period was not counted, applicant made another representation dated 09.08.2016 in this regard. When his request for counting of daily wage period was not agreed to, he preferred another OA No.118/2017 which was decided on 11.01.2017. The operative para reads as under:
"In the circumstances, the OA is disposed of at the admission stage itself without going into the merits of the case by directing the respondents to consider the Annexure A-1 (colly) representation dated 09.08.2016 of the applicant by passing a reasoned and speaking order in accordance with law within a period of 60 days from the date of receipt of a certified copy of this order. There shall be no order as to costs."
7. In compliance, the matter was considered by the respondents and the request was rejected vide orders dated 20.03.2017. The applicant felt aggrieved and preferred another OA No.2881/2017 challenging the rejection dated 20.03.2017. This OA was dismissed as withdrawn vide order dated 06.10.2017 which reads as under: 6 OA No.317/2018
"Mr. P.M.Saini, learned proxy counsel for Mr. Ranbir Yadav, learned counsel for the applicant, seeks permission of this Court to withdraw this OA with liberty to file a fresh O.A.
2. On the request of learned proxy counsel for the applicant, the O.A is dismissed as withdrawn with aforesaid liberty. No costs."
8. Since his request has not been agreed so far, he is feeling aggrieved and has preferred the instant OA seeking following relief:
"(a) impugned order dated 20.03.2017 rejecting the representation of the applicant may kindly be quashed.
(b) directions may kindly be issued to the respondents that the applicant may be granted pension as per old pension scheme applicable before 01.01.2004.
(c) direction may kindly be issued to the respondents that the 50% period of service served as daily wager on the post of electrician be counted for the purpose of pensionary benefits from 06.01.1991 to 27.07.2004 i.e. from date of joining to till date of regularization of service of the applicant.
(d) any other relief as this Hon‟ble Tribunal may deems fit and proper.
(e) to award the costs of the case."
9. The respondents opposed the OA. It is pleaded that in compliance to the directions by the Tribunal, as brought out by the applicant, the Recruitment Rules for the post of Electrician were published on 24.02.2001 wherein the age limit was 18 to 25 years. The applicant was 32 years of age (DOB 15.06.1957) when he was initially engaged as a daily wage Electrician in 1991 and accordingly, he was 45 years of age in the year 2002 when the said post of Electrician was 7 OA No.317/2018 created. He was, therefore, overage and could not have been considered for regularisation.
10. In compliance to directions by the Tribunal in OA No.2662/2002, the proposal for age relaxation was considered in the 159th meeting of ESIC and a Resolution was passed on 28.05.2003. This needed approval by the competent authority, namely, Ministry of Labour and Employment. This approval was received on 15.09.2003. Thereafter, the Medical Superintendent of the hospital, where the applicant was working, was given directions on 30.09.2003 to initiate the process of recruitment. This reads as under:
"It is informed that the Standing Committee of ESI corporation in its 159th meeting has approved considering appointment of Shri Ramesh Chander in relaxation of age limit/educational qualification. The Ministry of Labour, Govt. of India (Central Government), has also approved relaxation of upper age limit and educational qualification in the case of Shri Ramesh Chander for considering his appointment to the post of Electrician on regular basis.
You are, therefore, requested to consider appointment of Shri Ramesh Chander to the post of Electrician by following the requisite drill of recruitment i.e. calling application for filling up of the post through open advertisement etc. prescribed in the Recruitment Rules.
Final outcome of the case may be intimated to this office.
A copy each of Agenda note and relevant extract of minutes of 159th meeting of the Standing Committee and Ministry of Labour‟s letter, dated 15/09/03, containing Ministry‟s approval, are enclosed herewith for information and record."
11. It was only subsequent to these directions that the process of recruitment was initiated by calling applications 8 OA No.317/2018 through an open advertisement as per the Recruitment Rules in force. The applicant was also invited, as by this time the age relaxation etc. has already been obtained. The applicant was selected based upon an interview and the offer of appointment was issued on 19.07.2004. This offer of appointment very clearly specified that a New Pension Scheme has come into force w.e.f. 01.01.2004 and candidate can join if such terms and conditions are acceptable. The applicant conveyed his consent for accepting all terms and conditions vide his letter dated 28.07.2004. This consent letter reads as under:
"विषय : इऱेक्ट्रीशियन के पद पर ननयुक्क्ट्ि के सॊदर्भ में ǀ महोदय, सविनय ननिेदन यह है कक ननदे िाऱय चिककत्सा ददल्ऱी के पत्र सॊख्या 111P/11/12/16/04-EI(M) ददनाॊक 28.07.04 के सॊदर्भ में रमेि िन्द्र इऱेक्ट्रीशियन के पद पर ददनाॊक 28.07.04 (पूिाभह्न) में कायभग्रहण हे िु उपक्थिि हुआ हूॉ कृपया मुझे ड्यूटी पर ऱेने का कष्ट करें आपकी अनि कृपाǀ"
12. Once this consent was received, formal appointment letter was issued vide office order no. 114/2004 dated 25.08.2004. This took effect from 28.07.2004 (FN) and the relevant terms and conditions of this appointment as contained in this order, are reproduced as under:
"4. He will be governed by the Government of India new Contributory Pension Scheme effective from 1-1-2004 as implemented in the ESI Corporation.9 OA No.317/2018
5. He will be on probation for a period of two years from his date of appointment/joining.
6. The above mentioned employee has been medically examined by the Competent Authority and declared fit for appointment to the post of Electrician under ESI Corporation.
7. The appointment of Shri Ramesh Chander has been made after considering grant of relaxation required in the upper age limit and educational & other qualification given to him by the Standing Committee, ESI Corporation as conveyed vide Hqrs. Office letter No.A-12(11)-1/94-DM(HQ) dated 30-9- 2003."
13. The applicant had completed his probation on 18/26.03.2008 and retired on 30.06.2017.
14. In view of the foregoing, the regularisation in respect of the applicant needed age relaxation and certain other processes which had taken time. The applicant was clearly advised of coming into force of a New Pension Scheme w.e.f. 01.01.2004 and he had consented for the same. In view of this, applicant‟s request for treating him to be covered under Old Pension Scheme is not tenable.
In regard to counting of 50% daily wage period, it is pleaded that the two circulars quoted by the applicant (para 6 supra) pertained to GNCTD and the same are not applicable to ESIC Hospital. Hence this request also cannot be considered and the same is required to be rejected.
15. Matter has been heard at length. Sh. B. Rajesh for Sh. Ranbir Yadav represented the applicant and Sh. A.K.Verma represented the respondents. 10 OA No.317/2018
16. MA No.323/2018 has been filed seeking exemption in filing original copies of the Annexures. MA is allowed.
17. The facts of this case are not in doubt. They have been recounted as above. The regularisation of the applicant had taken place as a result of adjudication by the Tribunal at several stages which needed age relaxation, process of selection and by the time this entire process was completed the New Pension Scheme has already come into force w.e.f 01.01.2004 before the applicant could be regularised w.e.f. 28.07.2004. Accordingly, the New Pension Scheme shall have to be applied in respect of the applicant.
The aspect of regularisation w.e.f a date prior to 01.01.2004, had come up for adjudication in OA- 2662/2002, but was not agreed to (para 4 supra). No new facts have been brought to light now, warranting any reconsideration. The decision of the respondents to treat the applicant under New Pension Scheme cannot be faulted.
18. The applicant‟s request to consider 50% of the daily wage period towards qualifying service can also not be accepted in view of there being no policy guidelines in this respect on ESIC. The policy directives of GNCTD cannot be applied upon an organisation like ESIC which does not work 11 OA No.317/2018 under GNCTD. This aspect had also come up for adjudication earlier in OA 118/2017 (para 6 supra) and in OA 2881/2017 (para 7 supra). No new facts have been brought to light now, warranting any reconsideration.
Accordingly, the request for counting 50% of daily wage period towards qualifying service, can also not be accepted.
19. In view of the foregoing, pleas put forth by the applicant are not gaining acceptability. OA is accordingly dismissed being without merit. No order as to costs.
( Pradeep Kumar ) Member (A) „sd‟