Central Administrative Tribunal - Mumbai
Dhananjay Rai vs M/O Defence on 9 March, 2018
1 MA No.466/2015 & OA No.160/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI.
MISCELLENEOUS APPLICATION No.466/2015
&
ORIGINAL APPLICATION No.160/2015.
Dated this Friday the 9th day of March, 2018
CORAM: HON'BLE SHRI ARVIND J. ROHEE, MEMBER (J)
Dhananjay Rai, S/o Ghanshyam Rai
Scientific Assistant,
{Army No.9509292-L Rank: Havildar
(AEC) Retd.}
R/at Room No.11, AROMA Apartment
New Colony, Khojgaon Ambernath
West -421 505.
Place of Employment
Controllerate of QualityAssurance
(Military Explosives), Aundh Road,
Khadki: Pune 411 020. ... Petitioner
(In Person)
Versus
1. Controller,
Controllerate of Quality Assurance,
(Military Explosives)
Dept. of Defence Production (DGQA)
Govt. of India, Ministry of Defence,
Khadki: Pune 411 020.
2. The Director General of Quality Assurance
Dept. of Defence Production (DGQA)
Govt. of India, Ministry of Defence,
DHQ PO New Delhi 110 011.
3. Controller General of Defence Accounts
(CGDA) Ulanbatar Road, Palam,
Delhi Cantt. - 110 011.
4. The Deputy Controller of Funds & Accounts
Account Office, Ammunition Factory
(KGF) Khadki: Pune 411 003. ... Respondents
(By Advocate Shri N.K. Rajpurohit)
2 MA No.466/2015 & OA No.160/2015
ORDER
Per : Shri A.J. Rohee, Member (J)
The Applicant who is presently working as Scientific Assistant at Controllerate of Quality Assurance (Military Explosives), Aundh Road, Khadki, Pune, on his re-employment after discharge from the Military Service, approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs;
"8.a) That this Hon'ble Tribunal be pleased to exercise powers vested in it under Administrative Tribunal Act 1985 to issue a direction thereby directing the Respondent Nos.1 to 4 to continue to extend Old Pension Scheme (The Central Civil Service (Pension) Rules 1972) and existing General Provident Fund Scheme (GPF) and Commutations of Pension Rule 1981, based on concept of combine service benefit as contemplated under OM No.28/10/84- P&PW dated 28.10.2009 to the Applicant and they be restrained from bringing the applicant under the New Pension Scheme i.e. Defined Contribution Pension Scheme; as contemplated under Govt. of India notification dated 22 Dec 2003, as well as all clarifications issued by Deptt of Pension and Pensioners Welfare (DOP&PW), vide O.M. No.28/5/10-P&PW(B) dated 23.02.2010 with added emphasis on clarificatory Note SD No.5303/P&PW dated 11.10.10, to MOD and the same having been disseminated vide letter MOD ID No.12(2)/2009/D(CIV-II) dated 03.11.2010 to Respondent No.4 and ultimately reached as important circular to Respondent No.1 for strict compliance.3 MA No.466/2015 & OA No.160/2015
Since OM No.28/5/10-P&PW(B) dated 23.02.2010 and Clarificatory Note, S D No.5303/P&PW/2010 dated 11/10 2019 all being based on superseded OM No.28/10/84-P&PW dated 26.07.2005 have no legal authenticity and is self proved to be ''NULL AND VOID" hence not enforceable under law.
(b) Such all other benefits available to demobilized/released Military Personnel under service conditions of civil services, after getting re-employment in civil services such as, Pay Fixation, Leave encashment and Promotion/Determination of Seniority and such other benefits, which are inuring from/based on principle of combined service benefits be allowed.
(c) Litigation Cost and compensation for undue mental harassment and other such relief circumstantial to case whatever deems proper."
2. The Applicant claims to be governed by the Old Pension Scheme on his re- employment on Civilian post in Department of Defence Production in Government of India, Ministry of Defence on 14.07.2006 i.e. after the New Pension Scheme was introduced for Central Government employees with effect from 01.01.2004.
3. The Applicant initially joined Indian Army and worked in the rank of Havildar and Trade Instructor (Special) Army Education Corps during the period from 27.04.1985 to 29.02.2004. He secured pre- 4 MA No.466/2015 & OA No.160/2015 mature discharge from Military Service on compassionate ground before completion of 24 years of service or 47 years of age whichever is earlier as per his terms of service condition. He, therefore, stands discharged from Military service on 29.02.2004 (AM).
4. The applicant then applied for the post of Scientific Assistant in Department of Defence Production and was re-employed w.e.f. 14.07.2006, where he is presently working. As per his appointment letter, since he was re-employed after 01.01.2004, it is stated that he is governed by the New Pension Scheme and hence amount towards contributory pension was deducted from his salary.
5. It is stated that sometime in the year 2009-10, the applicant got information regarding grant of 180 days leave encashment to one Shri P.D. Devashthali, Laboratory Attendant, who was also an ex- serviceman and was re-employed in the same office in which the applicant was working. It is stated that the said Shri P.D. Devashthali already got the benefit of 5 MA No.466/2015 & OA No.160/2015 leave encashment when he retired from Military service before his re-employment. On its strength, the applicant submitted a representation dated 12.03.2010 to the respondents to continue the benefit of Old Pension Scheme to him, although he joined after 01.01.2004. In this respect, reliance was placed on relevant provisions of Civil Services (Pension) Rules and Civil Services Regulations Vol-I, various O.Ms and office orders. However, by the order dated 03.11.2010 (Annexure A-2) his claim was rejected on the ground that he is governed by the New Pension Scheme since there is no continuity of service nor he has rendered technical resignation.
6. Along with OA, MA 466/2015 is filed for condonation of delay mainly on the ground that necessary steps are taken by the applicant after he came to know about grant of benefit of leave encashment to his colleague who was identically placed and joined the department on re-employment. It is also stated that since the claim is for being governed by the Old Pension Scheme, it is a continuing cause of action, 6 MA No.466/2015 & OA No.160/2015 although there is a gap of two years and five months in his retirement from Military services and his re-employment.
7. On notice on MA for condonation of delay, the Application is opposed mainly on the ground that no sufficient grounds are stated therein for condonation of delay and that since the applicant is post 01.01.2004 appointee on his re-employment, he is governed by the New Pension Scheme and since he is already receiving pension on retirement from Military service rendered by him.
8. During pendency of the OA, the applicant has filed number of MAs for amendment in the OA and also amendment in the MA for condonation of delay.
9. On 28.02.2018, when the matter was called out, I have heard the Applicant, who appeared in person and the reply arguments of Shri N.K. Rajpurohit, learned Advocate for the Respondents on MA for condonation of delay.
10. I have carefully gone through the case record including pleadings of parties and documents relied upon by applicant. 7 MA No.466/2015 & OA No.160/2015
11. On 25.06.2015, this Tribunal issued notice to the respondents on MA for condonation of delay only thereby deferring issuance of notice on OA. However, the respondents have filed reply to the OA also and the applicant has filed rejoinder to which the respondents have filed sur- rejoinder.
12. At this stage the only question that arises for consideration of this Tribunal is whether the delay in approaching this Tribunal is liable to be condoned.
13. It is not disputed that the applicant is the ex-serviceman and secured re-employment after 01.01.2004 in Department of Defence Production under Government of India. The applicant himself has filed on record the Circular dated 31.12.2010 issued by the Controller General of Defence Accounts, New Delhi which was communicated to all concerned on 17.02.2011 (Annexure A-1) by which clarification was issued regarding applicability of the New Pension Scheme to ex-servicemen appointed in civil post under Ministry of Defence on 8 MA No.466/2015 & OA No.160/2015 or after 01.01.2004. It is clearly stated therein that New Pension Scheme is applicable to all new entrants to Central Government service (except to Armed Forces) with effect from 01.01.2004 and its applicability to ex-servicemen appointed in Civil Posts has been under examination in consultation with Ministry of Defence. It has been clarified by Department of Pension & Pensioners Welfare that New Pension Scheme will also be applicable to ex- servicemen on re-employment to Civil Post under Central Government services with effect from date of joining civil appointment on or after 01.01.2004. However in the present OA, the applicant stated that this results in giving discriminatory treatment to ex-servicemen since, if there is continuity in service on tendering technical resignation, the employee joining other department even after 01.01.2004 is governed by the Old Pension Scheme.
14. However in the present case, the appointment order dated 05.07.2006 produced on record at page 143 & 144 of OA 9 MA No.466/2015 & OA No.160/2015 clearly states that the applicant was offered an appointment of Scientific Assistant Grade III at Rs.5000/- in the Scale of Pay of Rs.5000-150-8000 with usual allowances subject to various conditions incorporated therein at clause (a) to (e)
(i) to (xi). It is clearly stated therein that the appointment is temporary and as per clause (x) it is specifically stated that the applicant will be governed by the new Restructured Defined Contributory Pension System as applicable to the civilians paid from the Defence Services Estimates as in force from time to time. It is needless to say that the applicant having been appointed under Controller General of Defence Accounts, he is paid out of the Defence Services Estimates.
15. It is thus obvious that from the date of joining service under Respondent No.3, the applicant was well aware of the fact that he is governed by the New Pension Scheme which came into force with effect from 01.01.2004. Accordingly, amount of contributory pension was deducted from his salary. It is also obvious that the 10 MA No.466/2015 & OA No.160/2015 applicant made no grievance in this behalf till he submitted a representation on 12.03.2010 that to when he came to know that the benefit of leave encashment has been granted to the staff working in the same department on re-employment after discharge from Military service. However, it is obvious that grant of pension is different then grant of benefit of leave encashment after re-employment. Simply because the applicant came across the relief granted to his fellow colleague regarding leave encashment, it cannot be said that the said fellow was entitled to get the benefit of pension also after rendering service on re-employment. Admittedly, the said fellow colleague must have joined after 01.01.2004. It is needless to say that the applicant is fully governed by the Circular dated 31.12.2010.
16. So far as condonation of delay is concerned, it is settled law that simply because some other fellow colleague had got the relief, period of limitation will not be extended to claim the similar relief, when it came to the knowledge of another 11 MA No.466/2015 & OA No.160/2015 employee. In the present case, cause of action to approach this Tribunal in fact arose on the date when the applicant joined the service with Respondent No.2 on re- employment. However, he kept mum till he submitted a representation on 12.03.2010 and then approached this Tribunal after a period of about more than four years. In such circumstances of the case, it cannot be said that sufficient grounds are made out in the MA for condonation of delay in approaching this Tribunal beyond a period of one year from the date of accrual of cause of action, which period is prescribed under Section 21 of the Administrative Tribunals Act, 1985.
17. For the same reasons, it cannot be said that there is a continuing cause of action so far as claim for declaration that the applicant is governed by the Old Pension Scheme. Had it been a claim for grant of pension simpliciter, it may have been said that there is a continuing cause of action from month to month. However since it is not so, it cannot be said that there is a continuing cause of action and 12 MA No.466/2015 & OA No.160/2015 hence there is no delay in approaching this Tribunal or the delay is liable to be condoned.
18. From the above discussion, MA for Condonation of delay stands rejected, since OA not filed within a period of one year from the date of accrual of cause of action and no sufficient grounds are stated for condonation of delay. The OA, therefore, cannot be entertained for decision on merit, although in this order the provisions of Circular dated 31.12.2010 are considered in para 11 as a brushing reference to the claim made.
19. Parties are, however, directed to bear their respective cost.
20. Registry is directed to forward certified copy of this order to both the parties at the earliest.
Place:Mumbai. (Arvind J. Rohee) Date:09.03.2015. Member (Judicial) dm.