Central Administrative Tribunal - Delhi
P C Sharma vs Kendriya Vidyalaya Sanghthan on 8 September, 2017
Central Administrative Tribunal
Principal Bench
OA No.1077/2010
Reserved on : 27.03.2017
Pronounced on : 08.09.2017
Hon'ble Mr. Justice Permod Kohli, Chairman
Hon'ble Mr. K. N. Shrivastava, Member (A)
Dr. P. C. Sharma
S/o Sh. Ghasi Ram Sharma
R/o G-597, Alpha-II, Greater Noida,
Noida, Uttar Pradesh. .... Applicant.
(By Advocate : Shri Sanjay Shangari)
Vs.
1. Union of India
Through its Secretary
Department of Education,
Ministry of Human Resources & Development,
Delhi.
2. The Commissioner
Kendriya Vidyalaya Sanghatan
18, Institutional Area,
Shaheed Jeet Singh Marg,
Katwaria Sarai,
New Delhi 110 016. ..... Respondents.
(By Advocate : Shri S. Rajappa)
:ORDER:
Justice Permod Kohli, Chairman:
The applicant was appointed to the post of Post Graduate Teacher in Geography by the Ministry of Education, Government of India (Central School Unit) vide offer letter dated 10.06.1965. He joined the services of Government of India as Post Graduate Teacher 2 in Geography at Central School No.2, I. A. F. Station Ambala Cantt. While, he was serving in the aforesaid School, he was offered a temporary post of Master in Geography from the Principal of Rashtriya India Military College (RIMC) under the Ministry of Defence, Government of India vide letter dated 18.07.1968. Prior to that, the applicant had worked at Government Higher Secondary School, Kakira, the then Union Territory of Himachal Pradesh w.e.f. 15.06.1963 to 07.07.1965. The applicant joined the RIMC, Dehradun on being appointed as Master (Geography) and served there for the period 01.08.1968 to 28.02.1971, and later served at Military School, Chail, Himachal Pradesh for the period 01.03.1971 to 25.10.1981. He retired as Education Officer from the Kendriya Vidyalaya Sangathan (KVS) Headquarters after serving in KVS up to 31.07.1998.
2. One of the disputes involved in the Original Application is as to whether services rendered by the applicant at RIMC, Dehradun is to be counted for purposes of pensionary benefits. The claim of the applicant is that he joined RIMC after applying through proper channel, and with the permission of KVS, whereas the stand of the respondents is that the applicant directly applied to RIMC, Dehradun, without permission, and resigned from the service to take up the job at RIMC, Dehradun. Thus, entire previous service is forfeited and not to be counted for purposes of pensionary benefits. The applicant has also claimed pensionary benefits for the services 3 rendered by him at Government Higher Secondary School, Kakira, the then Union Territory of Himachal Pradesh w.e.f. 15.06.1963 to 07.07.1965.
3. The respondents have allowed the benefit of pension to the applicant for the period from 01.08.1968 to 31.07.1998. The total claim of the applicant in the present Application thus relates to the period from 15.06.1963 to 31.07.1968 for the purposes of counting said period towards pensionary benefits in addition to the pension granted to him w.e.f. 01.08.1968 to 31.07.1998.
4. The applicant has relied upon copy of an order dated 03.02.2003 passed by the KVS whereby the period from 01.08.1968 to 25.10.1981 (13 years, 2 months and 25 days) rendered by the applicant in RIMC, Dehradun and Chail Military School has been approved for purposes of pensionary benefits in conjunction with the services rendered in KVS w.e.f. 26.10.1981 to 31.07.1998. The said order is reproduced hereunder:-
"F.13-4/96-KVS (Estt.I) Date 3.2.03
OFFICE ORDER
Approval of the competent authority is hereby accorded for counting of past services rendered by Shri P. C. Sharma, Education Officer (Retd.), KVS (HQ), New Delhi in the RIMC, Dehradun and Chail Military School, Chail during the period from 01.08.1968 to 25.10.1981 (13 years, 2 months and 25 days) for the purpose of pensionary benefits in conjunction with the services rendered in the Kendriya Vidyalaya Sangathan with 4 effect from 26.10.81 to 31.7.98 in accordance with the instructions issued by the Govt. of India from time to time.
sd/ (S. K. Talapatra) Sr. Admn. Officer (Estt)"
The applicant has also placed on record copy of Service Verification Certificate dated 02.11.2002 issued by Kendriya Vidyalaya No.2, Ambala Cantt. (Haryana), which reads as under:-
"Dr. P. C. Sharma C-69, Nar Vihar Part-I, Sector 34 Noida (UP) 201307 Sub : Service verification certificate.
Sir, I am to refer to your letter dated 2.8.2002 on the subject cited above and to inform you that as per records available in the Vidyalaya that you had worked as PGT (Geog) on regular basis w.e.f.08.7.65 to 31.7.68 and did not avail any leave without pay during this period. The relieving certificate required by you is not traceable in this Vidyalaya.
Yours faithfully, Sd/ (R. V. S. Shishodia) Principal"
This certificate would reveal that the applicant had worked in KVS, as PGT (Geography) on regular basis w.e.f. 03.07.1965 to 31.07.1968 and did not avail any leave without pay during the said period. 5
5. The applicant made a representation dated 25.04.2002 to the Deputy Commissioner (Admn.), Kendriya Vidyalaya Sangathan, New Delhi for counting of his past services rendered in Government Higher Secondary School, Kakira, the then Union Territory of Himachal Pradesh for the period 15.06.1963 to 07.07.1965 and at Central School No.2, I. A. F. Station Ambala Cantt., Haryana from 08.07.1965 to 31.07.1968. This request of the applicant was rejected vide letter dated 10.06.2003. The said letter reads as under:-
"F.13-4/96-KVS (Estt.I) Date : 10.06.2003 Dr. P. C. Sharma Education Officer (Retd.) C-69, Nar Vihar Part-I, Sector-34, NOIDA-201307.
Sub : Counting of past services rendered in UT of HP and KV No.2 Ambala from 15.6.63 to 7.7.65 and 8.7.65 to 31.7.68 respectively.
Sir, I am to refer to your letter dated 25.4.2003 on the subject cited above and to say that your request for the counting of past services rendered in UT of HP and KV No.2 Ambala from 15.6.63 to 7.7.65 and 8.7.65 to 31.7.68 respectively has been considered by the competent authority in consultation with Finance Division of the Sangathan but could not be acceded to as you left the KV No.2 Ambala by tendering resignation to take up a job at RIMC, Dehradun for which you had applied directly.
Yours faithfully, (S. K. Talapatra) Sr. Admn. Officer (Estt.)"6
Aggrieved of the aforesaid decision, the applicant made various representations from time to time claiming the benefit of services rendered by him at Higher Secondary School, Kakira, the then HP and Central School at Ambala Cantt. Further representation of the applicant also came to be rejected vide letter dated 01.08.2003, which reads as under:-
"F.13-4/96-KVS (Estt.I) Date : 1.08.2003
Dr. P. C. Sharma
Education Officer (Retd.)
C-69, Nar Vihar Part-I,
Sector-34, NOIDA-201307.
Sub : Counting of past services rendered in UT of HP and KV No.2 Ambala from 15.6.63 to 7.7.65 and 8.7.65 to 31.7.68 respectively.
Sir, I am to refer to your letter dated 23.7.2003 on the subject cited above and to say that as already intimated vide this office letter of even number dated 10.6.2003 that your case for counting of past services was considered by the competent authority in consultation with Finance Division of the Sangathan but the same could not be acceded to.
There is no change of the decision already communicated to you.
Yours faithfully, (S. K. Talapatra) Sr. Admn. Officer (Estt.)"
7
The applicant continue to make further representations and also served a Legal Notice dated 24.08.2004 claiming the benefit of counting of past services as referred to hereinabove.
6. Receiving no response, the applicant filed an application under Right to Information Act, 2005 on 15.02.2007. Reply dated 09.04.2007 was sent to the applicant. Not being satisfied, the applicant filed an Appeal on 15.05.2007 to the first Appellate Authority under RTI Act.
The first Appellate Authority passed order dated 25.05.2007. The applicant was again not satisfied, and filed an Appeal before Central Information Commission which came to be decided vide order dated 05.12.2007 followed by a corrigendum dated 12.12.2007.
7. The Public Information Officer furnished a copy of attendance register of the applicant for the month of July, 1968, as also the copy of the ledger showing final payment of his CPF amount. The applicant further wanted copy of service book which was said to be not traceable. The appeal preferred by the applicant was rejected by the Appellate Authority, and further appeal was disposed of by the Information Commissioner, Central Information Commission with a direction to the respondents to make another effort to search for the appellant's service book in view of the stand of the respondents that the record being 30 years old has been weeded out. Later, vide letter dated 02.01.2008, Assistant Commissioner, KVS, Chadigarh was informed by the Principal, KV No.2, Ambala Cantt. that two 8 documents of the applicant, i.e., (i) 01 Service Book and (ii) personal file: Page No.01 to 47 have been traced, and no other document is available. Based upon the availability of the aforesaid documents, the applicant made further representation seeking consideration of his case for counting of his past services referred to above for purposes of pensionary benefits vide letter dated 12.03.2008, followed by other representations.
8. The applicant thereafter filed OA No.1254/2009 before this Tribunal seeking benefit of past services rendered by him as referred to above. The said OA was disposed of vide judgment dated 03.06.2009 with following directions:-
"The controversy in the OA in hand is quite distinct from the issue in the aforesaid judgment. The applicant has to establish that his resignation had been waived off by the second Respondent and he was trated as relieved from the Kendriya Vidyalaya No.2, Ambala Cantonment, not after tendering his resignation, but on the basis of technical resignation. The Applicant has not been able to establish this fact.
8. The Applicant has been pursuing his cause relentlessly and doggedly since 1996. It is because of his dogged pursuit of his cause that his Service Book of his service in the Kendriya Vidyalaya No.2, Ambala Cantonment, as also 17 pages of his personal file have become available. The second Respondent has not categorically stated in its communication dated 7.01.2008, already advanced to in the preceding paragraph, that there is no mention of the nature of the Applicant's relief from the aforementioned school in the Service Book or in the notes in the personal file. We would like to give the matter a quietus by directing the second Respondent to go through the Service Book of the Applicant and his personal file and pass a speaking order regarding the fact of the Applicant's relief from the above mentioned institution at the time of joining RIMC, Dehradun. The applicant may be shown the above Service Book and the 9 personal file, if he so wishes, and for which he would make an application to the second Respondent within one month of the receipt of a certified copy of this order. If he does not make such an application, the second Respondent would pass a speaking order, as directed above, within two months of the receipt of a copy of this order. We have not considered it necessary to give notice to the Respondents as this direction does not cause any prejudice to them.
9. The OA is disposed of at the threshold in terms of the observations made above."
9. In view of the above directions, the applicant was required to approach the respondents by way of an Application within one month of the receipt of certified copy of the order whereupon the second respondent was directed to go through the Service Book and Personal File of the applicant and pass a speaking order regarding the fact of applicant's relieving.
10. In para 4.2 of the amended OA, the applicant states that the certified copy of the order dated 03.06.2009 was received by him on 07.07.2009 on reopening of the Tribunal after summer vacations, and the applicant made his representation vide letter dated 12.07.2009 followed by another representation dated 16.07.2009. However, the respondents did not grant any opportunity of personal hearing to the applicant, nor the service book was shown to him. The respondents passed order dated 12.08.2009. The said order is under challenge in Original Application, and annexed as Annexure 'A'. While dealing with the representation of the applicant, the respondents referred to 10 the claim of the applicant in para 3 of the order and rejected the same with further observations in subsequent paras. The said order reads as under:-
"3. In the representation dated 12.7.2009, the applicant has requested to count his continuous past services of about 35 years in Government Organizations detailed as under:-
i) 15.6.1963 to 7.7.1965 Govt. Hr. Sec. School, Kakira (Chamba), H.P., (then) Union Territory, Govt. of India.
ii)8.7.1965 to 31.7.1968 Central School, No.2 (Now KV, No.2), Ambala Cantt. (then) (Min. Of Education, Govt. of India (Central School Unit).
iii) 1.8.1968 to 31.7.1984 RIMC, Dehradun (1.8.1968 to 28.2.1971), Military School Chail (1.3.71 to 317.84), Ministry of Defence, Govt. of India.
iv) 26.10.1981 to 31.7.1998 Kendriya Vidyalaya Sangathan, Ministry of HRD, Govt. of India.
4. The applicant further stated in his representation dated 12.7.2009 that Kendriya Vidyalaya Sangathan granted him pension only for about 30 years service from 1.8.1968 to 31.7.1998 only for service period as at Sr. No.(iii) and (iv) above and has rejected his claim for pension for the service rendered in KV No.2 Ambala from 8.7.65 to 31.7.68.
5. As per instructions issued by the Govt. of India, Deptt. of Personnel and AR vide OM No.28/10/84-Pension Unit dated 29.8.1984, the past services rendered by employees in other Central/Govt. State/Autonomous Organization can be counted provided the following conditions are fulfilled:-
i) The previous department is a Govt. Department i.e. either State Govt. of Central Govt. or Autonomous body fully financed by the Government.
ii) The employee has applied for service in the respondent organization with the full knowledge of his previous employer.
iii) The previous employer has duly forwarded the application of the employee for employment.11
In this connection it is pertinent to mention that Hon'ble Supreme Court of India in his judgment dated 11.2.2008 in Civil Appeal No.1251/08 (Arising out of SLP (C) No.8966/2006)-KVS & Anr. Vs. Raghunandan Bhargava & Ors. has confirmed that past service of an employee can only be counted if the conditions laid down in Govt. of India Office Memorandum dated 29.8.1984 and 7.2.1988 are fulfilled.
6. The request of the applicant for counting of his past services rendered by him in RIMC, Dehradun and KV No.2, Ambala Cantt w.e.f. 8.7.1965 to 31.7.1968 and 1.8.1968 to 31.7.1984 respectively was duly considered time and again by the competent authority but the same could not be acceded to under the rules/instructions issued by the Govt. of India from time to time as he applied directly for a job in RIMC, Dehradun and on his selection there he left the service of Kendriya Vidyalaya No.2, Ambala by tendering resignation to take up a job in RIMC, Dehradun.
7. In this connection it is stated that applicant did not fulfil the conditions laid down above at Sl. No.5, as such his request for counting of his service as detailed at point-4, cannot be counted for the purpose of pensionary benefits.
8. This issues in compliance with the Hon'ble CAT Principal Bench order dated 3.6.2009 in OA No.1254/2009 filed by Shri P. C. Sharma, Education Officer (Retd.), KVS (Hqrs.), New Delhi."
11. During the pendency of this Application, this Tribunal considering the request of the applicant vide its interlocutory order dated 31.03.2011 directed the respondents to produce Service Book and Personal File of the applicant on the next date of hearing. Thereafter, the matter seems to have been adjourned from time to time. The Service Book of the applicant was produced before the Tribunal on 12.10.2012. The Tribunal perused the Service Book and noticed that the applicant had resigned and was relieved on 12 31.07.1998. During the pendency of this Application, some additional affidavits were also filed by the parties. Another order dated 13.09.2013 was passed by this Tribunal directing the respondents to produce the service record and personal file of the applicant for examination of the Bench as well as the applicant.
12. As is evident from interlocutory order dated 15.01.2014, learned counsel for the respondents stated that while passing the impugned order, the KVS Commissioner has not considered many of the documents which have been filed by the applicant now. He submitted that the Commissioner would consider those documents afresh. The Bench directed the applicant to have personal audience with the Commissioner for resolution of the issue. The applicant along with his counsel were allowed to appear before the Commissioner within two weeks after taking an appointment, and outcome of the meeting with the Commissioner shall be reported to the Bench.
13. It seems that during the pendency of this Application, second impugned order dated 11.03.2014 came to be passed, whereupon the applicant amended the OA and filed this amended OA. The impugned order is on the same lines as earlier order dated 12.08.2009.
14. Heard learned counsel for the parties at length. 13
15. The applicant relies upon Rule 13 of CCS (Pension) Rules, 1972 which reads as under:-
"13. Commencement of qualifying service Subject to the provisions of these rules, 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 :
Provided further that -
(a) in the case of a Government servant in a Group `D' service or post who held a lien or a suspended lien on a permanent pensionable post prior to the 17th April, 1950, service rendered before attaining the age of sixteen years shall not count for any purpose, and
(b) in the case of a Government servant not covered by clause (a), service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity.
(c) the provisions of clause (b) shall not be applicable in the cases of counting of military service for civil pension under Rule 19."
Relying upon the aforesaid rule, it is argued that the qualifying service of a government servant shall commence from the date he takes over the 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. 14 According to the applicant, his initial service was in the Government School in the then union territory of Himachal Pradesh, and later with RIMC, Dehradun which is again a Central Government Organisation, and thus his entire service including two components of services rendered in the union territory of HP and RIMC, Dehradun is required to be counted for the purposes of his pensionary benefits.
14. To the contrary, Mr. S. Rajappa, learned counsel for the respondents has relied upon Rule 26 of CCS (Pension) Rules, 1972 which deals with forfeiture of service on resignation. The relevant extract of Rule 26 is reproduced hereunder:-
"26. Forfeiture of service on resignation (1) Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the appointing authority, entails forfeiture of past service.
(2) A resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies.
(3) Interruption in service in a case falling under sub-
rule (2), due to the two appointments being at different stations, not exceeding the joining time permissible under the rules of transfer, shall be covered by grant of leave of any kind due to the Government servant on the date of relief or by formal condonation to the extent to which the period is not covered by leave due to him.
15(4) The appointing authority may permit a person to withdraw his resignation in the public interest on the following conditions, namely :-
(i) that the resignation was tendered by the Government servant for some compelling reasons which did not involve any reflection on his integrity, efficiency or conduct and the request for withdrawal of the resignation has been made as a result of a material change in the circumstances which originally compelled him to tender the resignation ;
ii)that during the period intervening between the date on which the resignation became effective and the date from which the request for withdrawal was made, the conduct of the person concerned was in no way improper ;
iii) that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days ;
iv) that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days ;
(5) Request for withdrawal of a resignation shall not be accepted by the appointing authority where a Government servant resigns his service or post with a view to taking up an appointment in or under a private commercial company or in or under a corporation or company wholly or substantially owned or controlled by the Government or in or under a body controlled or financed by the Government.
(6) When an order is passed by the appointing authority allowing a person to withdraw his resignation and to resume duty, the order shall be deemed to include the condonation of interruption 16 in service but the period of interruption shall not count as qualifying service.
(7) A resignation submitted for the purpose of Rule 37 shall not entail forfeiture of past service under the Government."
15. It is argued by Mr. Rajappa that resignation from service or a post entails forfeiture of past service. The exception under sub-rule (2) of Rule 26 is where proper permission to take up another appointment, temporary or permanent, under the Government is taken, such resignation shall not entail forfeiture of service. According to him, in the present case, the applicant took up the appointment with the RIMC, Dehradun without permission and thus his entire past services stood forfeited. The same is the stand of the respondents in the counter affidavit.
16. Additional Affidavits have been filed by the parties.
17. In the additional affidavit dated 13.02.2013, the respondents have placed on record a Xerox copy of the Teachers' Attendance Register for the month of July, 1968, and at the bottom of it, there is an endorsement "Resigned and relieved 31.07.2008 AN". From the copy of a ledger attached thereof also, we find an endorsement "Resigned from the Post". There is also a receipt dated 24.04.1970 which shows that the applicant has received Rs.656/- on account of final payment of his contributory P.F. money by money order. 17
18. The applicant thereafter filed another affidavit. Along with the said affidavit, he has placed on record copy of a letter dated 10.06.1965 which is offer of appointment letter of the applicant as Post Graduate Teacher in Geography at Central School No.2, I.A.F. Station, Ambala Cantt. Another letter dated 18.07.1968 attached to the said affidavit is appointment of the applicant as Temporary Master in Geography in Rashtriya Indian Military College, Dehradun. We find that copy of this appointment letter has not been endorsed to the respondents. In proforma regarding verification of service attached with the affidavit wherein service particulars of the applicant have been mentioned, it is verified that the applicant has served w.e.f. 01.08.1968 to 28.02.1971 at RIMC, Dehradun and from 01.03.1971 to 31.07.1984 at Military School, Chail. The total service rendered by him is 15 years, 11 months and 30 days.
19. The only question which requires consideration is whether the applicant applied directly to take up the job at RIMC, Dehradun or through proper channel with permission, and as to whether the resignation of the applicant was merely technical or he resigned from service to take up the new assignment?
20. The applicant has not been able to produce a copy of his application whereby he applied for the post of Master in RIMC, Dehradun and any order/endorsement of the respondents whereby 18 permission was granted by the respondents to him to take up said job. In an interlocutory order dated 12.10.2012 in the present OA, it was noticed that from the perusal of the service book of the applicant it could be found out that he had resigned and was relieved on 31.07.1998. It is also relevant to note that while deciding OA No.1254/2009, this Tribunal has noticed that the applicant has to establish that his resignation had been waived off by the second respondent and he was treated as relieved from the Kendriya Vidyalaya No.2, Ambala Cantonment, not after tendering his resignation. The applicant has not been able to establish this fact. These findings and observations in the order dated 12.10.2012 have not been rebutted by the applicant in any manner. The only certificate dated 03.02.2003 reveals that the service rendered by the applicant in RIMC, Dehradun and Chail Military School, Chail during the period from 01.08.1968 to 25.10.1981, i.e. , 13 years, 2 months and 25 days be counted for the purposes of pensionary benefits in conjunction with the services rendered in KVS w.e.f. 26.10.1981 to 31.07.1998. This office order was issued with the approval of the competent authority. Thus, notwithstanding the fact that the applicant has not been able to establish that his resignation was merely technical, and that there is no material on record to show that he applied with proper permission of the competent authority, the fact remains that the respondents have granted approval for 19 counting the service rendered by the applicant w.e.f. 01.08.1968 to 25.10.1981 towards pensionary benefits. From this certificate implied nature of resignation can be inferred. This certificate has neither been refuted nor denied by the respondents in their counter affidavit, and thus in view of the above admission, the applicant is at least entitled for counting of services rendered by him in RIMC Dehradun and Chail Military School, Chail w.e.f. 01.08.1968 to 25.10.1981.
21. This Application is partly allowed. The respondents are directed to count the services rendered by the applicant at RIMC, Dehradun and Chail Military School, Chail w.e.f. 01.08.1968 to 25.10.1981 towards pensionary benefits in conjunction with the services rendered by him in Kendriya Vidyalaya Sangathan w.e.f. 26.10.1981 to 31.07.1998. Let pensionary benefits of the applicant be recalculated and refixed within a period of three months from the date of receipt of certified copy of this order, and consequential benefits be released within a period of three months thereafter. No order as to costs.
(K. N. Shrivastava) (Justice Permod Kohli)
Member (A) Chairman
/pj/