Central Administrative Tribunal - Delhi
Gaurav Gupta vs M/O Home Affairs on 11 November, 2022
1
Item No. 17
O.A. No. 649/2021
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 649/2021
This the 11th day of November, 2022
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Shri Gaurav Gupta
S/o Sh. J.P. Gupta
R/o Permanent Address
C-13/6, Sector III, Rohini, Delhi-110085,
Present Address
Quarter No.4,
IRBn Housing Complex, Near Helipad,
Kavratti, UT of Lakshadweep
Dy. Superintendent of Police, Lakshadweep.
...Applicant
(By Advocate: Mr. Ajesh Luthra)
Versus
Union of India
Through Home Secretary
Ministry of Home Affairs
Govt. of India
North Block
New Delhi-110001.
...Respondents
(By Advocate: Mr. Manjeet Singh Reen)
2
Item No. 17
O.A. No. 649/2021
O R D E R (ORAL)
In the present O.A., filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following relief(s):-
" i) The Hon'ble Tribunal may kindly allow the present application and order dated 23.06.2020 passed by the Ministry of Home Affairs may kindly be set aside and directing the Respondent to consider the applicant eligible to get benefit under the Central Civil Services (Pension) Rules, 1972 (Old Pension Scheme) as applicant has been covered by the new Contributory Pension Scheme effective from 01.01.2004 (New Pension scheme).
ii) Issue such other order, which this Hon'ble Tribunal may deem fit and proper under the facts and circumstances of the case."
2. Brief facts of that arise in the O.A. are that the applicant applied and appeared in the SSC Combined Graduate Level Examination 2003, advertised vide notification dated 25.01.2003. Though the selection process was completed before 01.01.2004, however, the final result of the examination was declared only on 12.06.2004 and the applicant was issued the appointment letter on 05.04.2005.
3 Item No. 17 O.A. No. 649/2021In pursuance of the selection, the applicant joined the Delhi Police as Sub-Inspector (Exe.). Later on the applicant appeared in the Civil Services Examination 2011 and on successful completion of the selection process, he was selected under the DANIPS Cadre and he joined as DANIPS in the year 2011 itself. He has already been granted continuity of service rendered by him as a Sub-Inspector (Exe.). However, he was placed under the New Pension Scheme (NPS). The applicant preferred a representation dated 11.02.2020 (Annexure A-9 Pg 73). However, the same has been rejected by the respondents vide order dated 23.06.2020 and aggrieved by the same the applicant has preferred this O.A.
3. In support of his claim, learned counsel for the applicant submits that the applicant has already participated in the selection process for the vacancy of the year 2003 and he cannot be held responsible for any administrative delay which has been caused at the end of the respondents. He adds that the respondents have incorrectly applied the O.M. dated 17.02.2020, as according to him that 4 Item No. 17 O.A. No. 649/2021 same cannot come in the way of the applicant's cause, as the vacancy for which the applicant was selected belonged to the year 2003.
4. He further draws support from the judgment rendered by Hon'ble the Gauhati High Court in W.P. (C) No. 7369/2021 titled Sanjay Kumar and Anr. Versus Union of India and Others decided on 04.02.2022 and the judgment rendered by the Hon'ble High Court of Delhi in W.P. (C) No. 5079/2020 titled Bharat Singh & Ors.
Versus Union of India and Ors. heard with W.P. (C) No. 9098/2020 decided on 02.12.2021.
5. Mr. Manjeet Singh Reen, learned counsel for the respondents vehemently opposes the O.A. and while referring to the Department of Pension and PW O.M. dated 17.02.2020 (page 133), bearing No. 57/04/2019-P&PW(B) annexed as Annexure A-I with the counter reply, states that the case of the applicant is covered by point 7(iii) of the said O.M. (reproduced below) and submits that the applicant is not entitled to the relief as prayer for in the O.A.:-
5 Item No. 17 O.A. No. 649/2021"It is clarified, that the above option would be available to only those Government servants who were declared successful for recruitment before 01.01.2004, against vacancies pertaining to the period prior to that date. This option shall, however, not be available to the Government servants appointed on or after 01.01.2004 if they fall in any of the following categories:
(i) Government servants whose names were included in a panel of selected candidates before 01.01.2004 for recruitment against vacancies occurring on or after 01.01.2004 and were, accordingly, recruited on or after 01.01.2004.
(ii) A Government servant whose name was included in a panel of selected candidates prepared before 01.01.2004 for vacancies arising before and after 01.01.2004 but was actually appointed after 31.12.2003 against a vacancy arising on or after 01.01.2004.
(iii) Government servants who were selected against vacancies pertaining to the period prior to 01.01.2004 on the basis of an advertisement/notification issued before 01.01.2004 or a written examination/interview held before 01.01.2004 but results for recruitment were declared on or after 01.01.2004.
(iv) Government servants who joined on or after 01.01.2004 after they were granted extension of joining time on their own request and, in accordance with instructions issued by the Department of Personnel & Training, their seniority was depressed on account of such extension of joining time to a batch for which the result for recruitment was declared on or after 01.01.2004."
6 Item No. 17 O.A. No. 649/20216. He further submits that the judgments so relied upon by the applicant are applicable in the case of para-military officers while the applicant belongs to the DANIPS Cadre and therefore, the benefit of the judgments cannot be extended to the applicant.
7. Heard the learned counsel for the parties at length.
8. In order to decide this O.A., it is imperative to once examine the undisputed facts, the applicant participated in the selection process for the SSC CGL Examination 2003 which commenced before 01.01.2004 for the vacancies of the year 2003 and the preliminary examination as well as the mains examination were held in the year 2003 itself.
Further, the applicant stood qualified in both the examinations, however, the final result of the same was declared only on 12.06.2004. It is observed that the applicant in any way cannot be held responsible for the delay in the declaration of the result by the respondents.
Additionally, the relevant paragraphs of the judgment rendered by Hon'ble the Gauhati High Court in W.P. (C) No. 7 Item No. 17 O.A. No. 649/2021 7369/2021 titled Sanjay Kumar and Anr. Versus Union of India and Others decided on 04.02.2022 are as follows:_ "8. The short case projected by the petitioners is that they are entitled to the benefit of being included under GPF Scheme and CCS (Pension) Rules, 1972 in view of the fact that the recruitment process in which they participated and were ultimately selected and appointed pertain to the vacancies which arose in the year 2003. Notwithstanding the delay in culmination of the selection process and the appointment of the petitioners being granted in the year 2005, since the vacancies pertain to the year 2003 during which period the GPF Scheme and CCS (Pension) Rules, 1972 in force, the petitioners are entitled to be granted the benefit of the same and are not covered under the New Pension Scheme.
9. There is no dispute in the Bar that the selection process was initiated in the year 2003, completed in the year 2004 and finally the appointment orders were issued in the year 2005. Since at the time of initiation of the selection process, the old pension Rules were in force and the vacancies admittedly relate to year 2003. Whether the petitioners can claim to be covered under the Old Pensions Rules notwithstanding the delay in issuance of Appointment orders is the issue to be decided.
23. In the facts of the present case as there is no dispute that when the advertisement was issued in the year 2003 and the selection process had commenced, the Old Pension Scheme was in force. The Judgments of the Delhi High Court and the Uttarakhand High Court were rendered on facts which are similar to the facts in the present case. The petitioners had also agitated their grievances by their representation dated 30.08.2017 before the respondent authorities. In the detailed representation preferred before the 8 Item No. 17 O.A. No. 649/2021 authorities the petitioners referred to the orders passed by the Uttarakhand High Court in State of Uttarakhand & Ors. -Vs- Balwant Singh & Ors., and by the Delhi High Court in Parma Nand Yadav & Ors.
-Vs- Union of India & Ors., as well as order passed by the Central Administrative Tribunal, Ernakulam Bench and the Central Administrative Tribunal, Jabalpur Bench. The said representation however came to be rejected by communication dated 11th December, 2017. Pursuant to which the petitioners approached the Central Administrative Tribunal, Gauhati Bench.
24. As discussed above, the respondent authorities have not explained the delay of about 19(nineteen) months which had occurred from May, 2003 to December, 2004 for completion of the selection process and declaration of results. That apart, the appointment orders of the petitioners came to be finally issued on 12.07.2005. Such delay which had occurred during the selection process as well as the delay in issuing the appointment orders cannot be attributed to the petitioners in the absence of any explanation forthcoming from the respondent authorities. The Delhi High Court had rendered several judgments allowing writ petitions where persons similarly situated as the present petitioners were granted the benefit of the Old Pension Rules, two of which, namely, Tanaka Ram (supra) and Shyam Kumar Choudhury (supra) have attained finality in view of the appeals preferred by the Union of India having been dismissed by the Apex Court. Under the circumstances, this Court is persuaded to accept the views expressed in the judgments rendered by the Delhi High Court and Uttarakhand High Court. Accordingly, it is held that the cases of the petitioners being similarly situated persons ought to be covered under the Old Pension Scheme of 2003. For reasons held as aforementioned, we are not persuaded to accept the views expressed by the Allahabad High 9 Item No. 17 O.A. No. 649/2021 Court in Manoj Kumar Singh (supra) and Satyesh Kr. Mishra (supra) which are relied upon by the respondents as the same are not applicable to the facts of the case.
25. Accordingly, this writ petition is allowed by issuing a Mandamus to the respondents to treat the petitioners as members of the Old Pension Scheme which was in force till December 31, 2003.
26. The respondent authorities are directed to pass appropriate orders granting the benefit of the Old Pension Scheme to the petitioners as have been done in the case of other recruitments initiated in the year 2003 in respect of other departments like the BSF, SSB, ITBP etc., by the Government of India. Consequential orders necessary are directed to be passed by the respondent authorities in respect of the petitioners. Needless to say that the order passed in the writ petition will only be applicable for grant of pensionary benefits under the Old Pension Scheme, but no claims will be entertained as regards the seniority and any arrear salary of the petitioners."
9. It is not in dispute that the applicant in the present O.A. is identically and similarly placed with the applicants in the aforesaid judgment of the Hon'ble the Gauhati High Court in W.P. (C) No. 7369/2021.
10. I may further refer to the judgment of the Hon'ble High Court of Delhi in W.P. (C) No. 5079/2020 titled Bharat Singh & Ors. Versus Union of India and Ors. with W.P. (C) 10 Item No. 17 O.A. No. 649/2021 No. 9098/2020 decided on 02.12.2021 and the relevant paragraphs are quoted as under:-
"9. The learned counsels for the respondents further rely upon the judgment of the Supreme Court in Col. B.J. Akkara (Retd.) v. Government of India & Ors., (2006) 11 SCC 709, to submit that merely because the judgments of this Court have been implemented in case of other employees, the petitioners cannot seek an advantage thereof, especially where the respondents have issued an Office Memorandum dated 17.02.2020 clearly mentioning that the Old Pension Scheme will not apply to the employees who were given offers of employment after 01.01.2004.
21. Similarly, the judgments of the Supreme Court in Col. B.J. Akkara (Retd.) (supra) and Rakesh Kumar (supra) can have no application to the facts of the present case as in view of the binding precedents, it cannot be said that the batchmates of the petitioners and others similarly situated persons have been wrongly denied the benefit of the Old Pension Scheme, especially keeping in view that the SLPs against such judgments have also been dismissed by the Supreme Court. The Office Memorandum dated 17.02.2020 cannot detract from the judgments of this Court holding that the benefit of the Old Pension Scheme would be available to the employees whose recruitment process had been initiated prior to 31.12.2003 and the delay in issuing the final appointment letters was for the reasons attributable only to the respondents."
11. In the aforementioned paragraphs, the Hon'ble High Court of Delhi has in fact taken cognizance of the said O.M. dated 17.02.2020 and granted the relief sought for. Though 11 Item No. 17 O.A. No. 649/2021 it is correct that the judgment delivered by the Hon'ble High Courtsare with respect to the Para-Military Cadre. However, the judgment delivered by the Hon'ble Guahati High Court takes cognizance of the law laid down by the High Court of Delhi and states that the applicant being part of the DANIPS cadre similar benefits be extended to the applicant as have been done in the case of other recruits who participated in the examinations initiated in the year 2003 of other departments like BSF, SSB, ITBP etc. by the Government of India.
12. In view of the above, the facts of this O.A. being covered by the law laid down by the Hon'ble High Courts mentioned hereinabove. I am clear that that The Tribunal may not be guided by the executive instructions but by the law laid down by the Hon'ble High Courts. Accordingly, the order dated 23.06.2020 is hereby quashed and set aside.
The respondents are directed to consider the case of the applicant being eligible for the grant of benefit under the Central Civil Services (Pension) Rules, 1972 Old Pension 12 Item No. 17 O.A. No. 649/2021 Scheme in accordance with law. The O.A. is allowed in above terms.
13. Pending M.A., is any, shall also stand disposed of accordingly. There shall be no order as to costs.
(Pratima K. Gupta) Member (J) /dd/