Central Administrative Tribunal - Delhi
Sh. A.K. Singh vs Indian Council Of Agricultural ... on 16 August, 2012
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-4038/2011
Reserved on : 01.08.2012.
Pronounced on : 16.08.2012.
Honble Sh. A.K. Bhardwaj, Member (J)
Sh. A.K. Singh,
S/o Sh. Rajpal Singh,
R/o H.No. 2924, Sector-23,
Gurgaon, Haryana. . Applicant
(through Sh. B.L. Jangira, Advocate)
Versus
1. Indian Council of Agricultural Research(ICAR)
Through its Secretary,
Krishi Bhawan,
Dr. Rajendra Prasad Road,
New Delhi-110001.
2. Director,
National Bureau of Plant Genetic Resources,
(N.B.P.G.R.),
Pusa Campus, New Delhi-12. . Respondents
(through Sh. Jagan Mathur, Advocate)
O R D E R
The applicant has filed the present Original Application making the following prayer:-
(i) To allow this Original Application of the applicant with costs through out.
To quash and set aside the impugned orders as passed by the respondents as totally arbitrary, illegal and void.
To direct the respondents to count the applicants services rendered at University of Jodhpur by condoning the gap and also half of the services rendered as visiting Scientist at NBPGR for the purposes of pension and further to direct the respondents to grant pensionary benefits to the applicant on the basis of the total service that he has rendered.
To grant to the applicant all retiral benefits including arrears of pension from the date it became due along with interest @ 18% per annum.
To grant any other relief or reliefs as may be deemed fit and proper in the circumstances of the case.
2. As can be derived from the contents of Original Application the applicant initially joined University of Jodhpur on 14.08.1973 as Lecturer in Botany. Subsequently, he joined as Cytogeneticist at ICRISAT w.e.f. 19.06.1978 while retained lien on the post held by him in University of Jodhpur. He served ICRISAT till 31.12.1997 i.e. the date of completion of contract with said organization. Afterwards he joined NBPGR (ICAR) as Visiting Scientist for one year w.e.f. 24.04.1998. When such tenure of appointment of applicant was not yet over, ICAR issued Memorandum No. 10-749/98 dated 23.02.1999 appointing the applicant as Visiting Scientist in said Bureau (NBPGR) on tenure basis for a period of five years or till further orders. Later, on the recommendation of Agricultural Scientists Recruitment Board, the President, Indian Council of Agricultural Research Society approved the appointment of Dr. A.K. Singh (applicant) as Head, Division of Germplasm Conservation, and Acting Director, National Bureau of Plant Genetic Resources, New Delhi on tenurial basis till 31.07.2008 i.e. date of superannuation or until further orders. Thus, the Deputy Secretary (P), ICAR forwarded an offer of appointment in his favour in duplicate. The original was to be delivered to the applicant and the other was to be delivered to NBPGR. The applicant served in NBPGR (ICAR) from 24.04.1998 to 31.07.2008 on contract/tenure basis. On completion of his tenure, the applicant made a representation dated 07.10.2008 addressed to the Asstt. Administrative Officer, NBPGR, Pusa Campus, New Delhi-12 making the following prayer:-
In view of the above aforesaid facts and the circumstances, I request as under-
Half period of services rendered to NBPGR/ICAR in the capacity of Visiting Scientist may be counted as qualifying service, as it was a contractual assignment with monthly salary paid from contingency and was followed by regular appointment on a post with pensionary benefits without any break.
Permit me to deposit the retirement benefit availed from University of Jodhpur, with applicable interest, and penalty, if any and count the said period as qualifying service for pension.
Condon the period of interruption of three months and 24 days, so that I may get the benefit of my past services, for pension benefit only.
3. In response to said representation, the respondent No.1 issued Communication No. 29.3/99-Per.III dated 15.10.2008 providing therein that in terms of provisions of Rule 14 and Rule 27 & 28 of CCS (Pension) Rules, 1972 the applicant was not entitled to pensionary benefits. Questioning the aforementioned Communication dated 15.10.2008, the applicant filed OA-1405/2009 before this Tribunal, which was disposed of on 22.02.2010 with a direction to respondents to re-consider the case of the applicant in terms of provisions of Government of Indias Decision 2 under Rules 14 and 49(3) of the CCS (Pension) Rules, 1972 and take a decision in accordance with Rules. Para-12 of the said order reads as under:-
Accordingly, the impugned order dated 15.10.2008 is quashed and the respondents are directed to re-consider the case of the applicant in terms of the provisions of Govt. of Indias Decision 2 under Rules 14 and 49(3) of the CCS (Pension) Rules, 1972 and take a decision in the matter in accordance with Rules and communicate the same to the applicant through a reasoned and speaking order on the subject. This may be done within a period of two months from the date of receipt of a copy of this order. The OA is disposed of as above. No order as to costs. In implementation of aforementioned order, the ICAR passed order dated 26.08.2011 making the observations and taking the view that the applicant was appointed in NBPGR only as Visiting Scientist and rejected his claim for pensionary benefits. Para-9 of the said order reads as under:-
Whereas, as per the directions of the Honble CAT, the matter has again been examined on the basis of Rule 14 of CCS (Pension) Rules, 1972 as made applicable to ICAR employees and the following observations are made:-
Persons employed on contract are not governed by CCS (Pension) Rules, 1972 except where the contract provides otherwise. The applicant was appointed on contract basis as Visiting Scientist/Expert at NBPGR under the Visiting Scientists/Experts Scheme of ICAR which clearly stipulates that the Visiting Scientist/Expert shall not be deemed as an employee of the Council or the Institute during engagement or thereafter and ICAR Institute shall have no liability after completion of the tenure.
Moreover, a consolidated remuneration for the Visiting Scientists was paid from the erstwhile Cess Fund of the Agricultural Produce Cess Act.
The provisions of GID below Rule 14 of CCS (Pension) Rules, 1972 provides counting half of the service paid from contingencies with regular service subject to the condition that the service should have been continuous and followed by absorption in regular employment without a break. The applicant does not fulfill any of the above conditions.
4. Aggrieved by the aforesaid order, the applicant has filed the present Original Application contending therein:-
(a) To reckon his pensionable service, the period of his contractual appointment from 24.04.1998 to 23.02.199 9 need to be taken into account.
(b) In terms of Rule 49(3) of CCS (Pension) Rules, 1972 the applicant is entitled to pension from respondents.
(c) In order to reckon qualifying service for pension respondents should give him benefit of the pensionable service rendered by him in University of Jodhpur, Rajasthan.
(d) The payment of remuneration of Scientist engaged on tenure basis out of Agricultural Produce Cess Fund/Misc. contingencies would not disentitle the applicant for pension particularly in view of the order dated 22.02.2010 passed by this Tribunal. Such plea of respondents has already been negated by this Tribunal. The various Rules and Instructions cited by the applicant are not considered by the respondents, while passing the impugned order, rejecting his claim of pensionary benefits.
(e) Since the applicant has devoted 35 years to Agricultural Research, he has a right to get pension.
5. The respondents opposed the Original Application filed by the applicant and broadly pleaded that being appointed on tenure basis, the applicant had not served in pensionable establishment in NBPGR, thus, was not entitled to any pension. In the reply filed on behalf of the respondents it is also averred that as far as the plea of applicant regarding counting of service rendered by him on contract basis (Visiting Scientist) is concerned, as can be seen from letter dated 16.04.1998, respondents appointed him as Visiting Scientist for a period of one year under the Visiting Scientist/Expert Scheme at NBGPR with the following stipulations:-
(i) The Scheme will be governed by policy guidelines for operating the Visiting Scientist/Expert Schemes circulated vide ICAR letter No.20-3/95-CSC dated 6-11-1995 as amended from time to time. A copy of the agreement to be signed between Director, National Bureau of Plant Genetic Resources, New Delhi and Dr. A.K. Singh as Visiting Scientist is enclosed for further necessary action at your end.
Dr. A.K. Sing will be paid a consolidated and fixed rate of Rs.13,500/- per month. He will be eligible to D.A. as per mode of travel actually used with in the country for any journey undertaken in connection with his assignment with the concerned Institution. The local transport would be provided to the extent feasible under the rules of the ICAR. The allowances is inclusive of the cost of boarding and lodging of a scientist/expert which will be paid by the concerned scientist/expert himself. However, wherever feasible, the guest house facilities may be extended by the Institute concerned as per the existing rules of the ICAR.
(iv) The Director will intimate the actual date of joining of Dr. A.K. Singh to the ICAR, New Delhi. The expenditure would be met but from the A.P. Cess Fund of ICAR. The Director, will make payment to him and will send the claim to concerned subject matter division for the reimbursement by the Council.
(v) The information of Visiting Scientist/Expert engaged and the agreement entered into covering interalia the specific activities, duration and amount paid shall be sent to the ADG(TC) and Director (F) for reporting to the Governing Body of the Indian Council of Agricultural Research. Such appointment of applicant may be called as contractual appointment. In terms of Rule 17 of CCS (Pension) Rules, 1972 a person who is initially engaged by the Government on a contract for a specified period and is subsequently appointed to the same or another post in a substantive capacity in a pensionable establishment without interruption of duty, may agree to refund to the Government the monetary benefits referred to in sub-rule (a) or to forgo the same if the same has not been paid and count the aforesaid benefits which may have been payable. In the present case, as can be seen from the stipulations noted herein above, the applicant was entitled to be paid a consolidated and fixed rate of Rs. 13,500/- P.M. for his Visiting engagement and there was no provision for Government contribution in the Contributory Provident Fund. The applicant was not even treated as an employee of respondents but his services were hired on visiting basis only. It is not the case of applicant that for his engagement as Visiting Scientist he was entitled to Government contribution in the Contributory Provident Fund and he had agreed to refund or forgo the same. Even otherwise also, the contractual service rendered by applicant was not followed by his appointment to the same or another post in a substantive capacity in a pensionable establishment but was followed only by another tenure appointment. An appointment can be called as substantive only when the same is made on regular basis. The adhoc/contractual/fortuous/tenure appointment cannot be called as substantive appointment. Thus, I do not find any force in the contention of the applicant that the service rendered by him as Visiting/Expert Scientist was to be treated as qualifying service for pension. As is noted hereinabove, the applicant has tried to substantiate his claim for counting of half of his visiting service to reckon qualifying service for pension on the basis of Government of Indias O.M. No. F.12(1)-E.V/68, dated the 14th May, 1968 below Rule 14 of CCS (Pension) Rules, 1972. In terms of said instructions the employees paid from contingencies and employed in types of work requiring services of whole-time workers and are paid on monthly rates of pay or daily rates are entitled to count half of the service rendered by them at the time of absorption in regular employment subject to the following condition:-
(a) Service paid from contingencies should have been in a job involving whole-time employment (and not part-time for a portion of the day.
(b) Service paid from contingencies should be in a type of work or job for which regular posts could have been sanctioned, e.g., malis, chowkidars, khalasis, etc. The service should have been one for which the payment is made either on monthly or daily rates computed and paid on a monthly basis and which though not analogous to the regular scale of pay should bear some relation in the matter of pay to those being paid for similar jobs being performed by staffs in regular establishments.
The service paid from contingencies should have been continuous and followed by absorption in regular employment without a break.
Subject to the above conditions being fulfilled, the weightage for past service paid from contingencies will be limited to the period after 1st January, 1961, for which authentic records of service may be available. Apparently, the said instructions are applicable only in a case where a person paid from contingencies is absorbed in regular appointment. In the present case, the applicant who was appointed as Visiting Scientist followed by tenure appointment was never absorbed in regular establishment thus could not be benefited by aforementioned O.M. in any manner. Rule-49 of CCS(Pension) Rules,1972 provide for treating fraction of an year equal to three months and above as completed one half year for reckoning qualifying service for pension. Said Rule need to be read with Rule-13 of CCS(Pension) Rules, 1972 in terms of which the qualifying service of a government servant shall commence from the date he takes charge of he post to which he is first appointed either substantively or in an officiating or temporary capacity. In the present case, the applicant was never so appointed in ICAR. The fraction of an year equal to three months and above could be treated as completed one half year and reckon as qualifying service only if such service is rendered by the applicant after substantive appointment. Since applicant was never so appointed, Rule 49 also has no application in his case. Thus, either independent or harmonious construction of Government of India Decision No.2 under Rule 14 and Rule 49 of CCS (Pension) Rules, 1972 do not espouse the claim of the applicant for pension from ICAR in any manner. As far as the claim of applicant for determining his qualifying service on the basis of the service rendered by him in University of Jodhpur is concerned, as can be seen from representation 07.10.2008 addressed to the Asstt. Administrative Officer, NBPGR, Pusa Campus, New Delhi-12 he joined University of Jodhpur on 14.09.1973 as Lecturer in Botany and the University had forwarded his application for the post of Cytogeneticist at International Crop Research Institute for the Semi-Arid Tropics (ICRISAT) and on his selection for the said post University allowed him to retain his lien on the post of Lecture in Botany for one year i.e. till 19.06.1979. Thus, apparently at the time of joining NBPGR as Visiting Scientist on 24.04.2008 on contractual assignment for one year the applicant had no lien in the University of Jodhpur on any post. The appointment of applicant in ICRSAT was also on contract basis from 19.061.978 to 31.12.1997, thus the service rendered by him in said Research Institute was also not pensionable. Moreover, from the date of termination of contractual appointment of applicant as Cytogeneticist in ICRISAT and the date of his joining in NBPGR as Visiting Scientist there was a gap of three months and 24 days. Above all, in terms of Section 26 of CCS (Pension) Rules, 1972 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. In terms of sub-rule(2) of Rule-26 a resignation would not entail forfeiture of past service if it is submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies. The procedure of technical resignation is laid down in G.I., M.F. Letter No. 35 (15)-E. V/60 dated 21.09.1960, which reads as under:-
(1) When resignation a technical formality and when it subsists.- A Government servant intending to apply for a post or posts outside his parent office/department under the Government of India should have his application forwarded through the Competent Authority under whom he was serving at the time of applying for the post. Such an authority should either forward the application or withhold it according as the exigencies of public service may indicate but should not forward the application conditionally, for example, that in the event of the applicant coming out successful, he will be required to resign his post before taking up the new one. Once the application has been forwarded unconditionally and the person concerned is offered the post applied for, he should be relieved of his duties to join the new post as a matter of course and the question of his resigning the post held by him in such circumstances should not arise. Accordingly, the amended article is intended to cover the cases where even though the applications were forwarded by the Competent Authority, the applicant had been asked for one reason or the other to resign his post before taking up the new one. The above position holds good whether the Government servant held the post in permanent or temporary capacity, before resigning the post.
Situations may arise where the application of a Government servant was not forwarded and the Government servant resigned his appointment of his own volition with a view to his taking up the new post or where it was not possible to forward his application in the public interest but the Government servant had volunteered to resign his post or where the conditions of service is an office demand as a matter of policy that the Government servant should resign his post in the event of his taking up another post outside. In all such cases, it has been held that resignation of public service will subsist and entail forfeiture of past service.
It has been decided that in cases where Government servants apply for posts in the same or other departments through proper channel and on selection, they are asked to resign the previous posts for administrative reasons, the benefit of past service may, if otherwise admissible under rules, be given for purposes of fixation of pay in the new post treating the resignation as a technical formality. The pay in such cases may be fixed under FR27.
6. Besides, as is provided in Rule 27 of CCS (Pension) Rules, 1972 interruption in the service of a Government servant entails forfeiture of past service. In the present case, the applicant had not tendered technical resignation from University of Jodhpur to take up employment in NBPGR. Between the date of termination of his lien in University of Jodhpur and taking up contractual appointment as Visiting Scientist in respondents organization there was gap of almost 19 years and the contractual service as Visiting Scientist and the tenurial appointment i.e. the capacity in which the applicant was appointed in the aforementioned (NBPGR) w.e.f. 11.11.1998 till 05.10.1999 respectively does not qualify for pension. The applicant has placed reliance on Appendix-7 of CCS (Pension) Rules, 1972. Said Appendix contains various instructions issued by Government of India (DoP&T and Ministry of Finance) from time to time regarding grant of pro-rata benefits. Said instructions have no application to the issue involved in the present O.A., as the plea raised by the applicant is not for grant of pro-rata retirement benefits but is of counting of the service rendered by him in University of Jodhpur to reckon as his qualifying service in ICAR for pension. In the present case, no part of service rendered by the applicant in NBPGR is perstorable tenable and further in view of Rules 26 and 27 of CCS (Pension) Rules, 1972 and Govt. of decision dated 14.05.1968 below Rule 14 of CCS (Pension) Rules, 1972 the service rendered by the applicant in University of Jodhpur cannot be taken into account to determine pensionable service rendered by applicant in ICAR. It is also contended by learned counsel appearing for the applicant that the applicant was paid out of the funds of the Society i.e ICAR which included the income from the Cess realized under the Agricultural Produce Cess Act, 1940, thus, the service rendered by him in the Society including the service rendered as Visiting Scientist on contract basis need to be counted for qualifying service for pension. Such argument advanced on behalf of applicant is misconceived. Articles 266 and 267 of the Constitution of India provide for consolidated funds and public accounts of India and of the States and contingency fund. In terms of Article 266 whole or part of the net proceeds of certain taxes and duties to States, all revenues received by the Government of India, all loans raised by that Government by the issue of treasury bills, loans or ways and means advances and all moneys received by that Government in repayment of loans shall form one consolidated fund to be entitled the Consolidated Fund of India, and all revenues received by the Government of a State, all loans raised by that Government by the issue of treasury bills, loans or ways and means advances and all moneys received by that Government in repayment of loans shall form one consolidated fund to be entitled the Consolidated Fund of the State. In terms of Article 266(3), no moneys out of the Consolidated Fund of India or the Consolidated Fund of a State shall be appropriated except in accordance with law and for the purposes and in the manner provided in this Constitution. Thus, when salary or remuneration of a person engaged in any capacity is charged from the Consolidated Fund of India or the Consolidated Fund of the State, it is deemed that his such engagement or appointment is with due approval of the system prevalent to approve the appointment or engagement in the capacity he is engaged. In the present case, even if the applicant was paid out of the Funds of the Society including the income from the Agricultural Produce Cess Act, 1940, only presumption could be drawn in his favour is that his appointment as Visiting Scientist on tenurial basis was in accordance with the procedure laid down for such appointment and could not be questioned.
6.1 In Para-20 of Appendix-7 of CCS (Pension) Rules, 1972 it is provided that the service rendered by a Scientific employee of a semi-Government institution which is financed wholly or mainly from cess or Central Government grants who was Contributory to Contributory Provident Fund in such an institution may, on permanent appointment without any interruption to a pensionable service or post under the Government of India count his previous service in that institution during which he subscribed to that Fund as service qualifying for pension provided that the contribution together with interest thereon paid by the institution is made over to the Government. For easy reference, the said para is extracted below:-
20. On the basis of the recommendations of the Second Pay Commission (i) for counting towards pension of service rendered by Scientific employees of semi-Government Institutions, financed from cess or Government grants, on their appointment to a pensionable service under the Government of India; and (ii) the rate of pension contribution payable by Universities when they borrow service of Government servants who are Scientists and Technologists, it was decided as follows:-
(i) A scientific employee of a semi-Government institution which is financed wholly or mainly from cess or Central Government grants who was on a Contributory Provident Fund basis in such an institution may, on permanent appointment without any interruption to a pensionable service or post under the Government of India count his previous service in that institution during which he subscribed to that Fund as service qualifying for pension provided that the contribution together with interest thereon paid by the institution is made over to the Government. The service during which he did not subscribe to the Contributory Provident Fund will not be so reckoned unless the previous employer agrees to bear proportionate charges on account of pensionary benefits for the service so rendered. If, however, the officer was not on a Contributory Provident Fund basis in such an institution, his previous service will be reckoned as qualifying for pension, if the previous employer agrees to bear proportionate charges on account of pensionary benefits.
(ii) If the services of a Government servant who is a scientist or a technologist are lent to a University, the rate of pension contribution, which the University will pay, will be restricted to the rate at which it contributes to the Provident Fund of its employees.
7. In the present case, it is not so that the applicant was appointed to a pensionable service under the Government and the contribution to any Institution financed by Cess is credited to the Government. In fact, the applicant was appointed as Visiting Scientist in NBGPR initially on contract basis and subsequently on tenurial basis i.e. in a non-pensionable service and he is seeking treatment of such service as qualifying service for pension. Thus, the aforementioned Para-20 of the said Appendix-7 would not buttress of no help to the case of the applicant. The plea that he rendered service as Lecturer and Scientist for different Institutions for 35 years would not advance the claim of the applicant for pension in any manner. Any claim including the claim for pension need to be founded on Rules/Regulations/instructions/Provisions of Law. As is analyzed hereinabove, the service rendered by the applicant in ICAR on contract/tenure basis cannot be treated as qualifying service for pension. Clause-12 of Memorandum dated 23.02.1999 in terms of which ICAR offered the applicant appointment to the post of Project Coordinator (Pigeon Pea), Indian Institute of Pulses Research, Kanpur on tenurial basis for a period of five years does not espouse his claim for pension in any manner, as the said clause provide for application of relevant rules/orders/staff regulations issued by ICAR from time to time to service of the applicant. The pensionary benefits of employees of ICAR are regulated by CCS (Pension) Rules which cannot be termed as rules/orders/staff regulations issued by ICAR. On being given an opportunity to do so, the applicant produced certain documents to contend that one Dr. K.C. Jain who was appointed as Assistant Director General (Commercial Crops), ICAR on tenurial basis was granted pension. Such plea taken by the learned counsel appearing for the applicant is not correct. In terms of Order dated 10/11.08.2006 the absorption of Dr. K.C. Jain as Assistant Director General (Commercial Crops), ICAR was approved by the President, ICAR Society on the recommendations of the Agricultural Scientists Recruitment Board. The said order reads as under:-
On the recommendations of the Agricultural Scientists Recruitment Board, President, ICAR Society is pleased to approve the absorption of Dr. K.C. Jain, Assistant Director General (CC), ICAR in the Agricultural Research Service of ICAR in the discipline of Plant Breeding on regular basis w.e.f. 20.10.2002. 7.1 No such order of absorption as was issued in the case of Dr. K.C. Jain was ever issued in respect of applicant. His initial appointment in ICAR was on contract basis. Subsequently, he was appointed on tenurial basis for a period of five years, which was further extended upto 31.07.2008.
8. In view of the aforementioned, I do not find any merit in the claim of the applicant for pensionary benefits. The O.A. is devoid of merits, and is dismissed. No costs.
(A.K. Bhardwaj) Member (J) /Vinita/