Central Administrative Tribunal - Allahabad
Smt Alka Srivastava vs Income Tax Department on 13 November, 2024
OA No. 145 of 2022
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Pronounced on 13th day of November, 2024.
Original Application No. 145 of 2022
Hon'ble Mr. Justice Rajiv Joshi, Member (Judicial)
Smt. Alka Srivastava aged about 61 years, wife of Late Rajesh Kumar
Srivastava residence at House No. S-3/244, Ardali Bazar, Varanasi
City, District-Varanasi.
. . .Applicant
By Advocate :Shri Indra Raj Singh
Shri Yadvendra Pandey
VERSUS
1. Union of India through its Secretary, Ministry of Finance
Department of Revenue, New Delhi.
2. Commissioner Income Tax, 5, Ashok Marg, Lucknow 226001.
3. Commissioner Income Tax, Maqbul Alam Road, Income Tax
PUNIT KUMAR
MISHRA
Office, Varanasi.
. . .Respondents
By Advocate: Shri Chakrapani Vatsyayan
ORDER
Heard Shri Indra Raj Singh assisted by Yadvendra Pandey, learned counsel for the applicant and Shri Chakrapani Vatsyayan, learned counsel for the respondents.
2. This Original Application, under Section 19 of the Central Administrative Tribunal Act, 1985, has been filed by the applicant on 07.02.2022, seeking the following reliefs:-
"i). Issue an order and quash the impugned order 16.08.2021, passed by Opposite party no.2 Commissioner Income Tax, (Annexure No.1) so far as declined to account entire service including daily wage for giving benefit of old pension scheme to the applicant.
ii). Issue an order or directions to the opposite party no.2 Commissioner Income Tax, to account entire service of the applicant including daily wage basis w.e.f. 01.10.2001 and to give benefit of old pension scheme and pay pension accordingly from due date alongwith interest within stipulated time as may be fixed by the Hon'ble Tribunal.
iii). Award the cost to the applicant."Page 1 of 11 OA No. 145 of 2022
3. The short facts of the case as apparent from the record are that the husband of the applicant, namely, Late Rajesh Kumar Srivastava, while holding the substantive post of Tax Assistant, died in harness on 11.10.1999 leaving behind the applicant as his widow, a daughter-Km. Nidhi Srivastava and a son-Abhinav Srivastava. After the death of her husband, the applicant applied for compassionate appointment vide her application dated 19.12.1999 before the competent authority and in response thereto, the Chief Income Tax Commissioner, Lucknow vide order dated 10/13.09.2001 engaged the applicant as Daily Wager. Pursuant to the aforesaid order, the applicant joined on 01.10.2001 in the office of respondent-3 (Commissioner Income Tax, Maqbul Alam Road, Income Tax Office Varanasi) and started discharging her duties.
3.1 Subsequently, a recommendation was made for the appointment of the applicant on regular basis by respondent-2, Commissioner Income Tax, Lucknow vide letter dated 04.01.2006. PUNIT KUMAR MISHRA Thereafter, several reminders were sent by the applicant, but no action was taken from the side of the respondents and therefore, the applicant earlier approached before this Tribunal by way of filing Original Application No. 1794 of 2010 (Smt. Alka Srivastava Vs. Union of India & Others), which was finally disposed of vide order dated 27.05.2011 with a direction upon the respondents to take final decision in the matter, within three months.
3.2 In pursuance of the order of this Tribunal dated 27.05.2011 passed in Original Application No. 1794 of 2010 (Smt. Alka Srivastava Vs. Union of India & Others), the services of the applicant was regularized on the post of Tax Assistant in the scale of Rs. 5200- 20200/- in the grade pay of 2400/- vide order dated 10.10.2011. The applicant, after rendering her services for 19 years and 11 months, retired from the post of Senior Assistant from the office of respondent-2 on 31.08.2021.
3.3 It is further stated that the services of the applicant after joining (on 01.10.2001) was never interrupted and she initially continued on the post of daily wager followed by regularization on 10.10.2011 and therefore, the applicant is entitled for counting the entire services and entitled for the grant of benefit of Old Pension Scheme. However, respondent-2 Commissioner Income Tax, Lucknow Page 2 of 11 OA No. 145 of 2022 vide order dated 16.08.2021 rejected the claim of the applicant for Old Pension Scheme on the ground that the entire services rendered by the applicant could not be counted including the previous service as daily wager. The aforesaid order dated 16.08.2021 is impugned in this Original Application.
4. Counter Affidavit has been filed from the side of the respondents on 20.01.2024 in which it is stated that the services of the applicant were regularised in the department w.e.f. 10.10.2011, although she had been working as casual worker w.e.f. 01.10.2001 on daily wage basis and not on Class-III post, therefore, the applicant is entitled pensionary benefits from the date of regularization of her service i.e, 10.10.2011. The impugned order dated 16.08.2021 passed by respondent-2 has rightly been passed, declining to extend the benefits of Old Pension Scheme by non-counting previous entire services rendered by the applicant as daily wager in the department.
PUNIT KUMAR
5. Rejoinder affidavit has been filed on 19.02.2024 reiterating MISHRA the facts as stated in the Original Application.
6. Learned counsel for the applicant submitted that the applicant has continued in services from 01.10.2001 on daily wage basis followed by regularization dated 10.10.2011 and therefore, her services rendered as daily wager from 01.10.2001 till regularization is liable to be counted with regular service for the purpose of grant of retiral / pensionary benefits.
7. In support of submissions, the learned counsel for the applicant has relied upon the Judgment of the Apex Court in case of Prem Singh Vs. State of U.P. and others, reported in 2019(10) SCC 516 and Judgment of High Court of Judicature at Allahabad in the case of Kamaluddin Vs. State of UP and another { Writ A No. 17042 of 2021} and submits that the impugned order is not sustainable in the eye of law and liable to be quashed. The order relied upon by the counsel for the applicant in case of Kamaluddin (Supra) is quoted as under:
"The record reflects that petitioner has been engaged as daily wager Clerk on 14.06.1989. It also transpires from the record that since the date of engagement of petitioner as daily wager, he was continuously working till his services was regularised by order dated 22.09.2008, therefore, in view of the judgement of Apex Court in the case of Prem Singh (supra) as well as Page 3 of 11 OA No. 145 of 2022 judgement of this Court in the case of Kaushal Kishore Chaubey (supra), the services rendered as daily wager is liable to be counted for the purpose of grant of pensionary benefit after retirement, and if that be so, obviously the date of appointment of petitioner would be treated to be 14.06.1989. Hence, the services of the petitioner will be governed under the Old Pension Scheme as has been held by this Court in Writ-A No.55607 of 2008 which has been upheld by this Court in Special Appeal Defective No. 116 of 2021.
This Court in Special Appeal Defective No.116 of 2016 has held that date of appointment is relevant for determining applicability of Old or New Pension Scheme as the date of appointment of petitioner is 14.06.1989 which is prior to 01.04.2005, therefore, case of the petitioner is covered under Old Pension Scheme. Paragraph 8 of the said judgement is extracted herein below:-
8. The issue aforesaid has been factually discussed by the learned Single Judge by referring to the judgment of this Court in the case of Satyesh Kumar Mishra and others vs. State of U.P. and others 2016(6) ADJ 808 (LB) and so as the judgment of Delhi High Court in the case of Inspector Rejendra Singh vs. Union of India 2017 SCC Online Del. 7879. We do not find any error in the judgment. It is not only the date of appointment is relevant PUNIT KUMAR MISHRA but candidate lower in merit out of same selection are governed by the old pension scheme because appointments and joining were given from time to time before even 01.4.2005 thus appellant cannot be deprived from the same benefits. The judgments on the issue has been discussed by the learned Single Judge."
In view of the aforesaid fact, this Court finds that the reason assigned by the authority concerned in rejecting pensionary benefit to petitioner based upon the Government Order dated 17.07.2019 according to which an employee appointed subsequent to 01.04.2005 shall be governed by New Pension Scheme is misconceived and not sustainable in law as the appointment of the petitioner is 14.06.1989 which is prior to 01.04.2005.
Thus, for the reasons given above, the impugned order so far as it relates to petitioner is set aside, and a mandamus is being issued to respondent no.2-Nagar Ayukt, Nagar Nigam Prayagraj to grant pensionary and other retiral benefits to the petitioner within a period of three months from the date of production of certified copy of this order.
The writ petition is allowed subject to the observations made above."
8. Per contra, learned counsel for the respondents submitted that the applicant was initially appointed on 01.10.2001 as daily wager and her services were regularized w.e.f. 10.10.2011, therefore, she shall be governed under the National Pension System (hereinafter referred as 'NPS'), which has been made applicable to the applicant Page 4 of 11 OA No. 145 of 2022 and as such, there is no illegality and infirmity in the impugned order dated 16.08.2021.
9. Learned counsel for the respondents further submitted that admittedly, the services of the applicant after regularization has already been computed for extending the benefits of pension and the pension has been paid to her under NPS. The entire services of the applicant rendered as daily wager cannot be considered or counted for the purpose of old pension Scheme.
10. Learned counsel for the respondents submits that as per Clause (b) of Article 361 of the Civil Service Regulations (herein after referred as CSR) part-time services cannot be treated as substantive and permanent for qualifying for pension. Article 368 of the CSR clearly postulates that service does not qualify unless the officer holds a substantive post on a permanent establishment or temporary status was given. The word "qualifying service" means service, which PUNIT KUMAR qualifies for pension in accordance with the provisions of Article 368 of MISHRA the CSR. It means that the employment must be substantive and permanent for qualifying service and the period of appointment cannot be counted for grant of pensionary benefits unless it is substantive and permanent, hence part-time services rendered in work charge establishment cannot be treated as regular service.
11. Learned counsel for the respondents further submits that CSR refers only to temporary or officiating service and they do not at all mention part-time service. The part-time or daily wager cannot be treated/counted as qualifying service for grant of pensionary benefits. The provision of engagement under the work charge establishment is provided under Paragraphs 667, 678 and 669 of the Financial Hand Book, Volume 6 Part-1 and the expenses of the same were charged on the said particular work.
12. The learned counsel for the respondents relied upon the judgment of the Apex Court in Civil Appeal No. 3155 of 2023 (Uday Pratap Thakur and Another Vs. State of Bihar and Others along with connected SLPs decided on 28.04.2023 in which the following direction was given:
"7. In view of the above and for the reasons stated above, present appeals lack merits and the same deserve to be dismissed and are accordingly dismissed. It is observed and held Page 5 of 11 OA No. 145 of 2022 that the service rendered as work charged after their services have been regularized under the regularization scheme, namely, the Rules, 2013 and the Circular shall be counted for the purpose of qualifying service for pension only as per Rule 5(v) of the Rules, 2013.
Present appeals, thus, deserve to be dismissed and are accordingly dismissed. No costs."
13. I have considered the rival submissions so raised by the learned counsel for the parties and perused the record.
14. The record reflects that the applicant was engaged as a daily wager w.e.f. 01.10.2001 and she was continuously working till her services were regularized vide order dated 10.10.2011.
15. By impugned order 16.08.2021, passed by Respondent-2 Commissioner Income Tax, the claim of the applicant for Old Pension Scheme was declined on account of the fact that entire service, including the services as daily wager cannot be taken into effect and accordingly she was entitled for National Pension System (NPS). Now PUNIT KUMAR the issue involved in this Original Application is that whether the MISHRA services rendered by the applicant as a daily wager is counted for Old Pension Scheme or not?
16. The issue fell for consideration before the Single Bench of the High Court of Judicature at Allahabad in Writ A No. 8095/2023 (Arun Kumar Srivastava Vs. State of UP) dated 16.05.2023 allowing the Writ Petition on the same direction as relied upon by the applicant in Writ A No. 17042 of 2021 Kamaluddin (Supra), which was subject to challenge before the Division Bench of Allahabad High Court in Special Appeal Defective No. 62 of 2024 and vide judgment and order dated 05.04.2024, the Division Bench set aside the order dated 16.05.2023 after taking into consideration the judgment of Apex Court in case of Uday Pratap Thakur & Anr. (supra). The relevant portion of the said judgment is quoted as under:
12. Having heard learned counsel for the respective parties and having perused the records in question, we find that the learned Single Judge has observed that the petitioner was initially engaged as Meth on daily wage basis in the concerned department in February, 1984 and his services were regularized on 01.07.2003. He has retired from the service on 31.05.2019.
Thereafter, the petitioner preferred his claim before the respondent authorities for extension of the retiral benefits and pension including his daily wage service rendered before regularization. The representation filed by the petitioner was rejected by the respondent no.3 on 29.10.2021. The said order Page 6 of 11 OA No. 145 of 2022 was subjected to challenge in Writ A No.8095 of 2023 and learned Single Judge vide impugned judgement and order dated 16.05.2023 has allowed the writ petition, relying upon the judgement of the Apex Court in the case of Prem Singh (supra), which has been subjected to challenge in the present Special Appeal.
"13. We have occasion to peruse the judgment dated 16.05.2023 passed by the learned Single Judge and the relief claimed by the petitioner in the writ petition. The petitioner himself pleaded that his services rendered by him in work charge establishment (from 01.11.1992 to 30.06.2003) be counted in regular service, and accordingly, his pension may be revised and also be accorded consequential benefits. Nowhere he had pleaded for counting his previous services rendered as daily wager. The said finding of fact recorded by learned Single Judge is contrary to the record. We have also considered the judgment of Apex Court in the case of Prem Singh (supra), in which it has been categorically held that those persons, who have rendered their service on ad hoc/work charge basis cannot be denied the benefit of pension. This judgment discusses the provisions as was then existing under the CSR for denying benefit of old pension scheme to those, who have earlier rendered service as work charge employee, though such employees subsequently got placement under regular cadre. Hon'ble Supreme Court in Prem Singh case PUNIT KUMAR MISHRA (supra) considered the applicability and validity of U.P. Retirement Benefit Rules, 1961 and CSR Regulations, which barred payment of pension to persons working in work charge establishment and held as under: -
"30. We are not impressed by the aforesaid submissions. The appointment of the work-charged employee in question had been made on monthly salary and they were required to cross the regular employees? No material indicating qualitative difference has been pointed out except making hald statement. The appointment was not made for a particular project which is the basic concept of the work-charged employees. Rather, the very concept of work- charged employment has been misused by offering the employment on exploitative terms for the work which is regular and perennial in nature. The work-charged employees had been subjected to transfer from one place to another like regular employees as apparent from documents placed on record. In Narain Dutt Sharma v. State of U.P. [CA No. _____ 2019 arising out of SLP (C) No. 5775 of 2018] the appellants were allowed to cross efficiency bar, after '8' years of continuous service, even during the period of work-charged services. Narain Dutt Sharma, the appellant, was appointed as a work-charged employee as Gej Mapak with effect from 15-9-1978. Payment used to be made monthly but the appointment was made in the pay scale of Rs. 200-320. Initially, he was appointed in the year 1978 on a fixed monthly salary of Rs. 205 per month. They were allowed to cross efficiency bar also as the benefit of pay scale was granted to them during the period they served as work-charged employees they served for three to four decades and later on services have been regularised time to time by different orders.Page 7 of 11 OA No. 145 of 2022
However, the services of some of the appellants in few petitions/appeals have not been regularised even though they had served for several decades and ultimately reached the age of superannuation.
31. In the aforesaid facts and circumstances, it was unfair on the part of the State Government and its officials to take work from the employees on the work-charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on the work- charged basis for long amounts to adopting the exploitative device. Later on, though their services have been regularised. However, the period spent by them in the work-charged establishment has not been counted towards the qualifying service. Thus, they have not only been deprived of their due emoluments during the period they served on less salary in work-charged establishment but have also been deprived of counting of the period for pensionary benefits as if no services had been rendered by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in work-charged establishment.
32. In view of the Note appended to Rule 3(8) of the 1961 Rules, there is a provision to count service spent on PUNIT KUMAR MISHRA workcharged, contingencies or non-pensionable service, in case, a person has rendered such service in a given between period of two temporary appointments in the pensionable establishment or has rendered such service in the interregnum two periods of temporary and permanent employment. The work-charged service can be counted as qualifying service for pension in the aforesaid exigencies.
33. The question arises whether the imposition of rider that such service to be counted has to be rendered in-between two spells of temporary or temporary and permanent service is legal and proper. We find that once regularisation had been made on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of workcharged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and Irrationalbecause of the rider contained in the Note to Rule 3(8) of the 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. There is no rhyme or reason not to count the service of workcharged period in case it has been rendered before regularisation. In our opinion, an impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The classification cannot be done on the irrational basis Page 8 of 11 OA No. 145 of 2022 and when respondents are themselves counting period spent in such service, it would be highly discriminatory not to count the service on the basis of flimsy classification. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification.
34. As it would be unjust, illegal and impermissible to make aforesaid classification to make Rule 3(8) valid and non discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or non-pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.
35. In view of the Note appended to Rule 3(8), which we have read down, the provision contained in Regulation 370 of the Civil Services Regulations has to be struck down as also the instructions contained in Para 669 of the Financial Handbook,
36. There are some of the employees who have not been regularised in spite of having rendered the services for 30- PUNIT KUMAR MISHRA 40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularised under the Government instructions and even as per the decision of this Court in State of Karnataka v. Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1: 2006 SCC (L&S) 753]. This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one-time measure, the services be regularised of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularised. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension.
37. In view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work- charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension. The arrears of pension shall be confined to three years only before the date of the order. Let the admissible benefits be paid accordingly within three months. Resultantly, the appeals filed by the employees are allowed and filed by the State are dismissed."
Page 9 of 11 OA No. 145 of 202214. While deciding the writ petition, learned Single Judge has not considered the latest judgment of Hon'ble Apex Court in the case of Uday Pratap Thakur (supra) in which the principle and ratio laid down in the judgment of Prem Singh (supra) has been further explained and clarified, whereby observations are made to the effect that Prem Singh's judgment (supra) offers benefit to those employees, who have rendered their services on daily wage basis/temporary basis/work charge basis only for the purposes of giving them benefit of pension under the old pension scheme and they were being offered appointment on regular basis for the service rendered by them on adhoc basis/temporary basis/work charge basis."
17. The principle and ratio for awarding pensionary benefits has been explained and clarified by the Apex Court in case of Uday Pratap Thakur (Supra) in which, it has been categorically held that ratio of the judgment is to be considered for giving benefit of old pension scheme by taking into account such period of ad hoc/work charge service, which will make good the shortfall towards qualifying period for making pension admissible. If the argument as is advanced by the opposite party- petitioner that earlier period rendered in work PUNIT KUMAR MISHRA charge establishment is to be reckoned with the purpose of qualifying service and in case it is accepted in its entirety, the effect would be that regular appointment stands offered to such person/employee from the date of his initial inception in the department as temporary/ad hoc/work charge appointment in service. This is neither the object of spirit of the judgment in Prem Singh's case.
18. In view of the above and the latest legal proposition laid down by the Apex Court in the case of Uday Pratap Thakur (supra) with regard to admissibility of pension and counting of period towards service, this Tribunal is of the considered opinion that the applicant's services rendered as a daily wager employee cannot be counted for the purpose of pension/quantum of pension. However, at the same time, after rendering of service as daily wager employee for number of years and thereafter, when her service have been regularized, she cannot be denied the pension on the ground that she has not completed the qualifying service for pension. Admittedly, the services of the applicant after regularization has already been computed for extending the benefits of pension and the pension has also been extended to her.
Page 10 of 11 OA No. 145 of 202219. Recently, a Coordinate Bench of this Tribunal decided the similar issue in O.A. 256 of 2021 vide order dated 18.09.2024. Relevant paragraphs quoted as under :
16. In the instant case, applicants were regularized on
20.01.2009 on the basis of their past 10 years of service. Admittedly, none of the applicants have been granted temporary status. Their services were regularized in light of the OM dated 11.12.2006 issued in compliance with the direction passed by Hon'ble Apex Court dated 10.04.2006 in Civil Appeal No. 3595- 3612/1999 in the case of Secretary, State of Karnataka and others Vs. Uma Devi & Ors.. In Vasudev (supra) case, Apex Court recognized the effective date of petitioner's regularization as date back to the date of his application made before the CAT that was the date of filing of OA No. 2410 of 1997 and on that basis petitioners were allowed with the benefit of old pension scheme. In the present case, none of the applicants have been granted temporary status In Vasudev (supra) case, key issue regarding grant of old pension scheme in spite of non-granting of temporary status was kept open to be decided in an appropriate case. Thus, no benefit can be extended to the applicant with the law laid down in Vasudev (supra) case.
PUNIT KUMAR
17. On close scrutiny of the entire facts and evidence of the MISHRA matter with the settled legal position as on date, we are of the view that applicants' prayer for treating them for qualifying service way back 10 years on which basis their services were regularized, cannot be accepted. OA lacks merits and is liable to be dismissed. Accordingly, OA is dismissed.
20. In view of the above discussions, the instant Original Application lacks merit and the same deserves to be dismissed and is accordingly dismissed. The impugned order dated 16.08.2021, passed by Respondent-2 Commissioner Income Tax, so far as declined to account entire service including daily wage for giving benefit of old pension scheme to the applicant is liable to be affirmed and is accordingly affirmed. There is no illegality or infirmity in the impugned order.
21. Pending Misc. Application, if any, also stands disposed of.
22. No order as to cost.
(Justice Rajiv Joshi) Member (Judicial) Sahil-PM/ Page 11 of 11