Central Administrative Tribunal - Delhi
Om Parkash vs M/O Urban Development on 16 May, 2018
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.2615/2017
Reserved on: 15.05.2018
Pronounced on: 16.05.2018
Hon'ble Mr. Uday Kumar Varma, Member (A)
Om Prakash (Aged 69 years)
s/o late Shri Bachi Ram
Retd. Dy. Manager,
R/o Flat No.117-C, Pocket-I, Phase-I,
Mayur Vihar, Delhi - 110 091. ...Applicant
(By Advocate: Shri G.D. Bhandari)
Versus
Union of India through
1. Ministry of Urban Development,
Govt. of India, Nirman Bhawan,
New Delhi.
2. The Superintending Engineer (E)
Delhi Central Electrical Circle No.1,
C.P.W.D., I.P. Bhawan,
New Delhi. ...Respondents
(By Advocates: Sh. C. Bheemana)
ORDER
The applicant has filed the instant Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following main reliefs:-
i). Set aside and quash respondents' orders dated 24.04.2016, Annexure A-1 and rejection of appeal orders dated 05.01.2017, Annexure A-2c, being arbitrary and badly vitiated as humbly submitted in the foregoing paras;
ii) Direct/command the respondents to grant and make payment of the pro-rata pension along with interest @ 24% p.a. by deeming the qualifying 2 service from the date of appointment i.e. 03.10.1968 to the date of termination of the lien i.e. 09.01.1979.
2. It is undisputed that the applicant joined C.P.W.D. on 03.10.1968 as Lower Division Clerk and was promoted as Stenographer in 1971. It is also not disputed that in 1977, the applicant was selected by the Project & Equipment Corporation of India Ltd. [hereinafter referred to as „PEC‟] where he joined on 11.08.1977 but retained his lien in the parent department i.e. CPWD for two years. Subsequently, the applicant, vide letter dated 29.11.1978, made a request for permanent absorption to the PEC and wrote a letter to the CPWD for termination of his lien so that he could be permanently absorbed in PEC. The respondents (parent department of the applicant) passed an order dated 09.01.1979 terminating applicant‟s lien with immediate effect. The contents of the order dated 09.01.1979 is reproduced hereunder:-
"Shri Om Parkash, Stenographer, previously attached to Elect. Divn. No.II was relieved on 10.08.1977 (AN) by the Executive Engineer (E), Elect. Divn. No.II, in compliance of this Office Order No.15(925)/77-EEI/EII dated 01.08.1977 to join Projects & Equipment Corporation of India Ltd., New Delhi, on his new assignment retaining lien in his department for a period of two years as per this Office Order dated 01.08.1977 with the condition that he will be deemed to have resigned in the event of his not reverting to this department within 2 years from the date of his relief from this department. Shri Om Parkash, Stenographer, has now requested for termination of his lien vide his application dated 29.11.1978, received under Deputy Personnel Manager, P.E.C.I. Ltd. Letter No.PEC-P-3
4(45)78 dated 30.11.1978, who has also requested to confirm termination of his lien.
In view of the above circumstances, the lien of Shri Om Parkash, Stenographer, is hereby terminated with immediate effect. Thus, he serves all his connections with this department forthwith."
3. It is also not disputed that the applicant had been getting his salary and other service benefits including retiral benefits based on the fact that he had joined the PEC on 11.08.1977.
4. The respondents have filed their reply denying the contentions of the applicant raised in the OA. The respondents submit that the applicant joined CPWD on 03.10.1968 and was absorbed in the PEC on 11.08.1977. It is further submitted that his lien stood terminated vide order dated 09.01.1979 from the date of his absorption in PEC and, therefore, he does not complete ten years of service to earn pension. In support of their contention, the respondents relied upon the following decisions of the Hon‟ble Supreme Court:-
i) U.P. Jal Nigam & Another vs. Jaswant Singh & Anr. [2006 (!1) SCC 464];
ii) Bharat Sanchar Nigam Limited vs. Ghanshyam Dass (2) & Ors. etc. [2011 (4) SCC 374]; and
iii) State of Uttranchal and Another vs. Shiv Charan Singh Bhandari & Ors. [2013 (12) SCC 179].4
5. The issue for adjudication before me is whether the period between 11.08.1977 and the date of order of termination of applicant‟s lien dated 09.01.1979 can arguably be treated as his continuation in CPWD for the purposes of counting of years of service for pensionary benefits. Taking the initial appointment of the applicant in CPWD as 03.10.1968 and his absorption in the PEC on 11.08.1977, the applicant does not complete ten years of service. He, in fact, as per the respondents, completes only 8 years 10 months and 7 days in CPWD. However, if it is argued that from the date of the order dated 09.01.1979 terminating his lien, the applicant be deemed to be working in CPWD then he completes more than 10 years of service which qualifies him for pension.
6. Notwithstanding that the order terminating applicant‟s lien was issued on 09.01.1979, the fact remains that he got absorbed in the PEC w.e.f. 11.08.1977. In my view, the lien automatically terminates once the employee has been absorbed in the organization irrespective of the date on which such an order is issued.
7. I have come to this conclusion on account of the fact that the lien merely denotes and confers a right on the 5 government servant to hold a regular post. FR 9 (13) deals with "Lien", which is reproduced below:-
"9 (13) "Lien" means the title of a Government servant to hold on regular basis, either immediately or on the termination of a period or periods of absence, a post including a tenure post, to which he has been appointed on regular basis and on which he is not on probation.
Provided that the title to hold a regular post shall be subject to the condition that the junior-most person in the grade will be liable to be reverted to the lower grade if the number of persons so entitled is more than the post available in that grade."
8. I cannot escape this conclusion that lien only confers a right to the government employee to remain a regular government employee in the event he decides to go to some other organization either on deputation of on foreign service or in any other manner. However, such a right gets automatically extinguished once the employee gets permanently absorbed in the other organization. In this regard, DOP&T vide OM No. 28020/1/2010-Estt.(C) dated 17.08.2016 has mentioned in paragraph 3.4 about termination of lien, which is reproduced below:-
"3.4 Termination of Lien 3.4.1 A Government servant's lien on a post may in no circumstances be terminated even with his consent if the result will be to leave him without a lien upon a permanent post. Unless his lien is transferred, a Government servant holding substantively a permanent post retains lien on that post. It will not be correct to deny a Government servant lien to a post he was holding substantively on the plea that he had not requested for retention of lien while submitting his Technical Resignation, or to relieve such a Government servant with a condition on that no lien will be retained.6
3.4.2 A Government employee's lien on a post shall stand terminated on his acquiring a lien on a permanent post (whether under the Central Government or a State Government) outside the cadre on which he is borne."
3.4.3 No lien shall be retained:
a. where a Government servant has proceeded on immediate absorption basis to a post or service outside his service/ cadre/ post in the Government from the date of absorption; and b. on foreign service/ deputation beyond the maximum limit admissible under the orders of the Government issued from time to time."
As can be seen, paragraph 3.4.2 deals with the situation like the one obtaining in this OA because impliedly the applicant‟s lien in CPWD stood terminated from the date he was absorbed in PEC and his lien or equivalent of the same begins with the PEC.
9. Seen from another perspective, what the applicant is claiming is to count that period for the purposes of pension which he never spent in CPWD. It is undisputed that he has actually served the CPWD from 03.10.1968 to 09.08.1977. It is also undisputed that he did not serve CPWD between 11.08.1977 to 09.01.1979. The concept of pension does not extend to a situation where a person becomes eligible for pension even when actually not working in the Government barring exceptional situations such as a judicial intervention. The normal concept of the pension is that the employee must actually work for 10 years in that organization to earn pension. This 7 working period will, of course, include the admissible leaves etc.
10. In my view, it will be wrong to claim pension by the applicant from CPWD for a period when he had left the organization and stood absorbed in another organization i.e. PEC irrespective of the fact when the order of termination of lien was issued as the same becomes effective only from the date of absorption of the employee in that organization.
11. In view of the discussion in the preceding paragraphs, I am of the clear view that the applicant cannot claim the benefit of pension as he is not having the qualified minimum 10 years of service in CPWD. His prayer, therefore, lacks merit and legal basis and deserves to be dismissed. The OA is accordingly dismissed. No costs.
(Uday Kumar Varma) Member (A) /AhujA/