Delhi High Court
Mcd & Anr. vs Mrs.Raj Bala Mann & Anr. on 12 March, 2013
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, Pratibha Rani
$~6-10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : March 12, 2013
+ W.P.(C) 1461/2012
MCD & ANR. ..... Petitioners
Represented by: Mr.Gaurang Kanth, Advocate
versus
MRS. RAJ BALA MANN & ANR. ..... Respondents
Represented by: Mr.S.M.Dalal, Advocate.
W.P.(C) 2441/2012
MCD ..... Petitioner
Represented by: Mr.Gaurang Kanth, Advocate
versus
KAMLESH KUMARI & ANR. ..... Respondents
Represented by: Mr.S.M.Dalal, Advocate.
W.P.(C) 2476/2012
MCD ..... Petitioner
Represented by: Mr.Gaurang Kanth, Advocate
versus
KAMAL DEVI & ORS. ..... Respondents
Represented by: Mr.S.M.Dalal, Advocate.
W.P.(C) 2628/2012
MCD ..... Petitioner
Represented by: Mr.Gaurang Kanth, Advocate
versus
WP(C)s No.1461, 2441, 2476, 2628 & 2638/2012 Page 1 of 6
SMT. VANITA TREHAN & ORS. ..... Respondents
Represented by: Mr.S.M.Dalal, Advocate.
W.P.(C) 2638/2012
MCD & ANR. ..... Petitioners
Represented by: Mr.Gaurang Kanth, Advocate
versus
KUSUM KUMARI ..... Respondent
Represented by: Mr.S.M.Dalal, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J. (Oral)
1. One Smt.Urmil Chopra, appointed ostensibly as a Community Worker (Part Time) raised an issue pertaining to pension payable to her when she superannuated from service on December 31, 1996 after she was regularly appointed as a Full Time Community Worker. She successfully brought home the point with reference to documents annexed with the writ petition that though appointed as a Community Worker on part time basis on March 12, 1975 she had actually performed full time duties.
2. We highlight that this is a matter of fact i.e. whether Urmil Chopra performed full time duties or not.
3. Whereas MCD relied upon clause (b) of Rule 2 of the CCS (Pension) Rules 1972, which are applicable to municipal employees to bring home the point that persons in casual and daily rated employment are excluded from the applicability of the Pension Rules, Urmil Chopra relied WP(C)s No.1461, 2441, 2476, 2628 & 2638/2012 Page 2 of 6 upon clause (q) and (r) of Rule 3 of the Pension Rules, the former clause requiring service rendered while on duty or otherwise to be taken into account for the purpose of pension and gratuity admissible under the Rules and the latter defining what retirement benefits would be.
4. The learned Single Judge took the view that qualifying service as defined vide Rule 3(q) requires date when service commenced to be reckoned while determining qualifying service irrespective of whether the appointment was substantive, officiating or temporary. With reference to the Recruitment Rules to the post of Community Worker the learned Single Judge noted that appointment could be either by promotion from amongst Part Time Community Workers or by way of direct recruitment. The learned Single Judge further noted that in the year 1992, there being 47 vacant posts of Community Workers (Full Time), directions were issued to regularize the so called Part Time Community Workers, which included Urmil Chopra, since as a matter of fact they were working on full time basis. It was under said peculiar facts that direction was issued to fix Urmil Chopra's pension by reckoning her pensionable service from the date she joined ostensibly as a Part Time Community Worker but as a matter of fact worked full time.
5. The intra court appeal against the decision dated November 16, 2005 passed by the learned Single Judge was dismissed as not maintainable since delay in filing the appeal was not condoned by the Division Bench. MCD's challenge to the view taken by the Division Bench not to condone the delay remained futile inasmuch as the Petition seeking Special Leave to Appeal against the decision of the Division Bench was dismissed in limine by the Supreme Court.
6. With the aforesaid backdrop facts it needs to be noted by us that WP(C)s No.1461, 2441, 2476, 2628 & 2638/2012 Page 3 of 6 the respondents in the various writ petitions were Part Time Community Workers and claimed similar benefit as was made available to Urmil Chopra. They approached the Tribunal under different Original Applications claiming same benefit.
7. MCD opposed the Original Applications pleading that under Rule 14 of the CCS (Pension) Rules 1972 service rendered shall not qualify as pensionable service unless the duties and pay are regulated by the Government and is rendered either in an officiating or a temporary capacity. It was pleaded that under Article 368 of the CSRs (Rule 14), service paid from contingencies followed by regular service would not entitle said service to be counted as pensionable service and further that part time service rendered would not be taken into account as pensionable service period.
8. O.A.No.3927/2010 filed by Kusum Kumari has been allowed by the Tribunal vide decision dated August 19, 2011. O.A.No.370/2011, O.A.No.391/2011 and OA No.1752/2011 filed by Kamlesh Kumari and another, Kamal Devi and others as also Vanita Trehan and others respectively have been disposed of vide order dated November 15, 2011. OA No.3815/2010 filed by Raj Bala Mann and another has been disposed of by the Tribunal vide decision dated September 26, 2011.
9. Whereas order dated August 19, 2011 disposing of OA No.3927/2010 has directed part time service rendered by Kusum Kumari to compute pension payable to her; order dated November 15, 2011 disposing of OA No.370/2011, OA No.391/2011 and OA No.1752/2011 has required the writ petitioner to re-examine claim of the three set of Original Applicants before the Tribunal keeping in view the decision of the learned Single Judge of this Court in Urmil Chopra's case. The decision dated WP(C)s No.1461, 2441, 2476, 2628 & 2638/2012 Page 4 of 6 September 26, 2011 disposing of OA No.3815/2010 has granted relief following the decision of the learned Single Judge of this Court, but the Bench has noted that the decision of the learned Single Judge of this Court, for the reason it was never argued, did not note Rule 14 of the CCS (Pension) Rules 1972 and Article 368 of the CSRs (Rule 14).
10. Now, the decision of the learned Single Judge of this Court in Urmil Chopra's case is on the fact that Urmil Chopra successfully established that though ostensibly appointed as a Community Worker (Part- Time), as a matter of fact she worked full time. It was on said proof of fact that relief was granted to Urmil Chopra.
11. Being a question of fact, which has not been decided by the Tribunal, we dispose of all the writ petitions setting aside the impugned order dated August 19, 2011, September 26, 2011 as also November 15, 2011 and simultaneously remand the matters to the Tribunal for adjudicating whether the Original Applicants before the Tribunal had performed Full Time duties. The reason for said factual adjudication is that admittedly all of them were appointed as Community Workers (Part-Time). Unless they can show that they had actually worked full time, as was shown by Urmil Chopra, relief as prayed by them cannot be granted.
12. We note that the issue pertaining to Rule 14 and Article 368 of the CSRs (Rule 14) would become relevant only if it is established as a matter of fact that the claimants before the Tribunal worked part time. If said fact is established, rest will follow for the reason the Pension Rules do not apply to an employee engaged on part time basis. But if it is found that the claimants had worked full time, the issue would resolve itself on the reasoning of the learned Single Judge in Urmil Chopra's case.
13. OA No.3815/2010, OA No.3927/2010, OA No.370/2011, OA WP(C)s No.1461, 2441, 2476, 2628 & 2638/2012 Page 5 of 6 No.391/2011 and OA No.1752/2011, are restored for fresh adjudication by the Tribunal.
14. No costs.
CM No.3198/2012 in WP(C) No.1461/2012; CM No.5667/2012 in WP(C) No.2638/2012; CM No.5221/2012 in WP(C) No.2441/2012; CM No.5298/2012 in WP(C) No.2476/2012; and CM No.5651/2012 in WP(C) No.2628/2012 Since the writ petitions stand disposed of, instant applications seeking stay of operation of the impugned orders stand disposed of as infructuous.
(PRADEEP NANDRAJOG) JUDGE (PRATIBHA RANI) JUDGE MARCH 12, 2013 mm WP(C)s No.1461, 2441, 2476, 2628 & 2638/2012 Page 6 of 6