Central Administrative Tribunal - Bangalore
Dr. (Mrs.) Sharadamba Rao vs Union Of India (Uoi) And Anr. on 20 March, 2003
Equivalent citations: 2004(2)SLJ392(CAT)
ORDER Mukesh Kumar Gupta, Member (J)
1. The applicant, who had been working in the office of National Council of Educational Research & Training (hereinafter referred as NCERT for short), respondent No. 2 as Field Advisor, and retired on attaining the age of superannuation on 30th September, 1990, has prayed for the following reliefs:
"(a) To direct the respondents to allow the benefit of Special Addition to qualifying service as required under the recruitment rules incorporated in NCERT Notification No. F. 1-16/85-E-T dt. 5.9.90 (Annexure A-1).
(b) To direct the respondents to add the maximum admissible service as Special Addition to qualifying service and to redetermine the benefit by way of Revision of Pension and other pensionary benefits to the applicant. On such revision, to accord all consequential benefits such as payment of arrears of pension and other pensionary benefits admissible to her from the date it became due.
(c) To award the interest at the rate of 18% p.a. on the arrears of pension and other pensionary benefits due to her from the date the date of its accruel, till the date of payment.
(d) To award the cost of the application. (e) To grant such other reliefs which the Hon'ble Tribunal deem fit in the facts and circumstances of the case."
2. Brief facts, which are relevant for deciding the issue raised in the present case are that the applicant joined as Lecturer in Ranchi University on 9.12.1963 and remained there till 31.8.1976. Thereafter, applicant joined NCERT with effect from 2nd September, 1976 and retired on attaining the age of superannuation with effect from 30th September, 1990. She filed a Writ Petition No. 35924 of 1992 before the High Court of Karnataka, praying for counting her service rendered in Ranchi University towards qualifying service for calculation of pension and pensionary benefits as well as interest @ 18% for belated payments. During pendency of the aforesaid Writ Petition, applicant gave an undertaking dated 26.3.1998 and stated that:
"I will not claim:
(a) pay interest at the rate of 18% p.a. on the revised pensionary benefits. (b) Award the cost of petition in the High Court of Karnataka, Bangalore. (c) Any other relief the High Court may deem fit except the pensionary benefits for the service rendered by me in Ranchi University." (Emphasis supplied)
3. The said writ petition was accordingly withdrawn. Based on the aforesaid undertaking dated 26.3.1998, the respondent No. 2 passed Order dated 7/21.4.1998 whereby and whereunder the services rendered under Ranchi University from 9.12.1963 to 31.8.1976 was counted for the revised pensionary entitlements. The break of one day i.e. 1st September, 1976 was also condoned by the Council under Rule 28(a) of the CCS (Pension) Rules, 1972.
4. Thereafter based on, the respondent No. 2, Notification dated 5th September 1990, applicant submitted representation dated 16.11.1998 (Annexure A-2) requesting the respondent No. 2 to add five years service towards qualifying services. The said Notification reads as under:
"Subject: Addition to Recruitment Rules in respect of Lecturers/ Readers/Professors.
In pursuance of the recommendations made by the Establishment Committee in its meeting held on the 7th April, 1989 and approval thereto accorded by the Executive Committee in its meeting held on 30th August, 1989, the following specific clause is added to the Recruitment Rules for the posts of Lecturers, Readers and Professors in the Council:
An employee who retires from a post shall be eligible to add to his service qualifying for superannuation pension (but not for any other class of pension) the actual period, not exceeding one-fourth of the length of his service by which he age at the time of recruitment exceeded 25 years or a period of 5 years, whichever is less.
Provided that this concession shall not be admissible to an employee unless his actual qualifying service at the time he quits service is not less than 10 years.
Provided further that in case a person had been appointed to another post in the Council or elsewhere prior to his selection as Lecturer/Reader/ Professor at an age not exceeding 25 years and service in such post qualifies for pension the above benefit will not be available to him."
The said representation was rejected vide communication dated 10/14.12.1998 (Annexure A-3) by stating that since the applicant had already enjoyed the benefit of combined service, she is not eligible for the said benefit. The applicant once again made a representation dated 22nd December, 1998, followed by legal notice dated 14.8.1999, which was duly replied to. Undeterred by the same the applicant once again got the legal notice issued on 27.11.2000, which remained unanswered. Hence, the present O.A., which had been filed on 22.4.2002.
5. On notice being issued, the respondents filed their reply and contested the claim made by the applicant, by stating that the applicant's claim for pensionary benefits were settled by considering her undertaking dated 26.3.1998, wherein she clearly stated that she "will not claim any other relied than the High Court may deem fit except the pensionary benefit for the services rendered by her in the Ranchi University." Guidelines were framed by the NCERT in a meeting held under the Chairmanship of the Director NCERT on 18.4.96, stating that the benefit of added years of service would be given to those who had not been extended the benefit of counting of past service for superannuation/pension. The said decision was based on the Govt. of India's decision in amending Rule 30 of CCS (Pension) Rules. The applicant's representation was considered and applicant was informed about the same. The applicant is not entitled to any relief, and accordingly it has been prayed that the O.A. deserves dismissal.
6. The applicant filed rejoinder, disputing the contentions raised by the respondents. It is stated that the claim made in the Writ Petition No. 35924 of 1992 has no relevance to the claim made in the present O.A. and that the decision taken in the Director's meeting on 18.6.96 cannot override the rules framed by the Council vide Notification dated 5th September, 1990.
7. The learned Counsel for the applicant has relied upon 1997 SCC (L&S) 1527=1997(6) SCC 623=1998(3) SLJ 76 (SC), Chairman, Railway Board and Ors. v. C.R. Rangadhamaiah & Ors., that the amount of pension payable to the official has to be in accordance with the rules which were in force at the time of retirement. Further reliance has been placed on AIR 1991 SC 772, State of M.P. v. G.S. Dall & Ors., to the effect that the executive instructions, can supplement a statute or cover areas to which the statute does not extend. But they cannot run contrary to statutory provisions or whittle down their effect. On the same proposition reliance has been placed on AIR 1979 SC 6767=1979 SLJ 468 (SC), B.N. Nagarajan v. State of Karnataka.
8. The applicant has also relied upon Rule 30 of CCS (Pension) Rules, 1972, and contended that she is entitled to get the benefits of five years service to be added to compute qualifying service for pension.
9. On the other hand, Mr. Vishnu Bhat, learned Counsel for the respondents, has vehemently argued that the O.A. is barred by limitation. The applicant retired on 30.9.1990 and all the pensionary benefits were settled. The applicant was conscious about the rule position in the year 1990 itself, though the O.A. had been filed on 22.4.2002. There is not even an application filed for condonation of delay. This Tribunal was conferred jurisdiction to entertain the service disputes of NCERT's employees with effect from 1.1.2002, by issuing Notification under Section 14(2) of the Administrative Tribunals Act, 1985. As per the provisions of Section 21(2)(a) of the said Act, grievance in respect of cause of action which arose during the three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act, alone can be entertained by this Tribunal. It is undisputed that the cause of action arose on 30.9.1990 when the applicant retired. Her request was rejected vide communication dated 10/14.12.1998 (Annexure E).
10. To counter this contention, learned Counsel for the applicant has relied upon M.R. Gupta v. Union of India, 1995(5) SCC 628 and P.L. Shah v. Union of India, 1989( 1) SCC 546= 1989(2) SLJ 49 (SC). The case of Shri M.R. Gupta relates to fixation of pay, while the case of Shri Shah was concerned about the subsistence allowance. In such circumstances it was held that the cause of action is of continuous in nature.
11. The second contention raised by the learned Counsel for the respondents is that the present O.A. is barred by the principles of constructive res-judicata. The learned Counsel elaborated his submissions by stating that the applicant earlier filed Writ Petition No. 35924/92 and prayed for counting her services rendered with Ranchi University from 1963 to 1976. If she had a grievance about the non-grant of benefit under Notification dated 5.9.1990, she ought to have urged the said grievance in the said proceedings itself. Having chose to restrict her relief, the principles of constructive res-judicata as well as acquiescence get attracted, Section 11 read with Explanation IV, CPC, which principles are applicable to the facts and circumstances of the present case, reads as under:
"11. Res judicata--No Court............
Explanation IV--Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."
Learned Counsel for the applicant has also relied upon 1996(4) SLR 717, S.R. Bharnale v. Union of India, to contend that limitation is not applicable to retiral benefits including earned leave, increment arrears, special pay etc, denied and, wrongfully withheld. He also contended that applicant in the said case has also been making representations but it did not yield any result. We have carefully perused the said judgment. In our respectful view the said judgment has no application in the facts and circumstances of the present case as we do not find any wrongful withholding of any retiral benefits of the applicant. As we have already noted the applicant had made representation for the first time on 16.11.1998 seeking the benefit of notification dated 5.9.1990 and that too after the settlement of her retiral benefits consequent upon the writ petition in the High Court of Karnataka. Learned Counsel further cited ILR 2003 Kar. 590 (Division Bench), U. Ratnakar Rao v. Union of India and Ors., and contended that the High Court also had held that delay and laches in approaching the Court for the terminal benefits should be condoned. We have carefully perused the said judgment also. In the said judgment the petitioner had sought a direction to the respondents to include the amount of gratuity admissible under the pension rules in accordance with the provisions of CCS (Pension) Rules, 1972. The facts and circumstances of the said case are totally different than the issue raised in the present case and, therefore, in our respectful view the said judgment has no application. Learned Counsel then relied upon AIR 1971 SC 1407, Deoki Nandan Prasad v. State of Bihar and D.S. Nakara v. Union of India, AIR 1983 SC 130=1983(1) SLJ 131 (SC). The case of Deoki Nandan Prasad was concerned with the retirement of the petitioner therein and consequently his pensionary benefits. It that context the Constitution Bench of Hon'ble Supreme Court has held that the pension is not a bounty payable on the sweet will and pleasure of the Government but is a valuable right vesting in a Government servant. In the present case the applicant has not been denied the pension. What has not been allowed to her is the benefit of notification dated 5.9.1990 which has been diluted by the second respondent's subsequent decision to amend the same vide decision dated 18.4.1996. The validity of decision dated 18.4.1996 had not been challenged in the present proceedings. We find no justification in declaring the decision dated 18.4.1996 as either arbitrary or illegal as contended by the applicant's Counsel for the simple reason that the applicant herself in an undertaking submitted before the second respondent on 26.3.1998 has clearly and unequivocally stated that she "will not claim any other relief than the High Court may deem fit except the pensionary benefit for the services rendered by her in the Ranchi University." In view of the above it cannot be said that the applicant has been denied the pension or the benefit of notification dated 5.9.1990. Therefore, the ratio laid down in the case of Deoki Nandan Prasad is not applicable to the facts of the present case. Similarly the case of D.S. Nakara was concerned with whether pensioner's entitled to receive superannuation or retiring pension under CCS (Pension) Rules, 1972, form a class as a whole? or not was the basic issue. Similarly whether differential treatment to pensions related to the date of retirement qua the revised formula for computation of pension had been the subject matter in the said case. In that context the Hon'ble Supreme Court has held that all pensioners governed by the 1972 Rules and Army Pension Regulations shall be entitled to pension as computed under the liberalised pension scheme from the specified date, irrespective of their date of retirement. In our respectful view the said judgment D.S. Nakara has also no application in the facts and circumstances of the present case.
The learned Counsel for the respondents further contended that the applicant had voluntarily forgone the said relief before the High Court. As such the principles of estoppel becomes applicable. Similarly applicant herself submitted undertaking to the respondent No. 2 that she would not claim any other relief except counting her service rendered in Ranchi University and based on the said undertaking, her request for counting her service from 1963 to 1976 was counted and her claim for pensionary benefits was settled. Having settled the said claim, she cannot be allowed to reopen the issue raised in present proceedings on some other pretext. The settled service position cannot be allowed to be unsettled after more than a decade of applicant's retirement, contended the learned Counsel. No material has been pointed out from which it could be seen that the applicant was required to possess the qualification required under Rule 30 of the CCS (Pension) Rules, 1972, at the time of her initial appointment with Ranchi University, which would make her eligible to get five years added benefits in computing qualifying service. In fact the provisions of CCS (Pension) Rules, 1972, are not applicable to the employees/officials of NCERT. Therefore, the reliance on the said rule is misplaced.
12. On the other hand, the learned Counsel for the applicant contended that the provisions of CPC are not applicable. It is further contended that the undertaking dated 26.3.1998 had nothing to do with the claim made in the present case.
13. We have perused the pleadings carefully and considered the contentions raised by the parties. We are of the considered view that the applicant herself restricted the relief before the High Court of Karnataka in writ petition filed by her. If the applicant was aggrieved with the respondent No. 2 action in not extending benefit to her in terms of Notification dated 5.9.1990 nothing prevented her to make the same such an issue and prayer in the said proceedings before the High Court. Similarly the cause of action arose in the year 1990 when the applicant retired on 30.9.1990. Section 21 of the Administrative Tribunals Act, 1985, prescribes limitation period, which provisions are mandatory. No application for condonation of delay has been filed by the applicant. The applicant's reliance on M.R. Gupta and P.L. Shah cases is misplaced. None of the said cases pertains to providing additional benefits to the pensioners. The case of Shri M.R. Gupta was related to fixation of pay while the case of Shri P.L. Shah was concerned with fixation of subsistence allowance. Fixation of pay and grant of five years added services towards pensionary benefits are two different and distinct issues and the same are not comparable. We may note at this stage that the applicant made representation for the first lime only on 16.11.1998, though she retired on 30.9.1990. It is settled law that the settled service conditions cannot be unsettled. There is no explanation as to why the applicant kept silent for about 8 years in raking up the issue of five years added services towards computing qualifying period for pensionary benefits.
14. The Notification under Section 14(2) of the A.T. Act, 1985, was issued by the Central Government and the jurisdiction over the employees of NCERT was conferred on the Tribunal with effect from 1.1.2002. Merely a jurisdiction over the employees of NCERT is conferred and vested in this Tribunal with effect from 1.1.2002, the applicant cannot be allowed to rake up the issue for which the cause of action arose on 30.9.1990. Further, the applicant had furnished the undertaking before the Respondent No. 2 on 26.3.1998 and she is bound by the same. By the present proceedings, she cannot be allowed to achieve something which could not have been achieved directly. It is settled law that what cannot be achieved directly cannot be allowed to achieve indirectly. The applicant's claim is barred by the principles of constructive res-judicata also. By conduct also, the applicant is not entitled to any relief. Having secured the relief, so prayed for in the writ petition whether at the hands of Court or the Department, the applicant cannot be allowed to raise other issue subsequently, which she herself chose not to raise/include at that point of time.
15. I view of the above discussion and findings, we see no illegality and arbitrariness in respondents' action in not acceding to applicant's request. The O.A. is accordingly dismissed. No costs.