Central Administrative Tribunal - Kolkata
Shekhar Chandra Sarkar vs M/O Defence on 3 February, 2022
poe ee . Q.A, No.350/00132/2021. : aoe 23 . ; A ey A 350/00045/2021. - ree AED foie Papa CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH KOLKATA O.A. No.350/00132/2021. M.A.350/00045/2021 Date of order: 03.02.2022 Hon'ble A's Bidisha Banerjee, Judicial Member Hon'ble -Dr.(Ms) Nandita Chatterjee, Administrative Member 1. Shri Shekhar Chandra Sarkar, Son of Late Tara Kanta Sarkar, Aged about 47 years, Residing at 43/2/1, Ghola Kachari Road, Bankim Pally, Post Office & Police Station -- Barasat, District - 24-Parganas (North), Pin - 700124. Shri Biplob Kumar Roy, Shri Pradip Kumar Nayak, Shri Santosh Kumar Prasad, Shri Sarbananda Barman, Shri Sankar Nath Chakraborty, Shri Gopal Chakraborti Shri Jadav Kumar Sasmal, Shri Ambar Banerjee, 10. Shri Ashis Das, 11.Shri Arup Saha, \ 12. Shri Somenath Dey, 13. Shri Satish Kumar Singh, 14.Shri Sanjay Kumar Mishra, 15.Shri Somnath Chakraborti, 16.Shri Bimanes Mitra, . 17.Shri Chandranath Banerjee, 18.Shri Sanjoy Sur, 19. Shri Gouri Shankar Maity, . 20.Shri Gora Chand Mahanii, 21.Shri Lakshman Sasmal, 22.Shri Sukanta Banerjee, 23. Shri Srimanta Sinha, 24.Shri Dolgobinda Dey, 25.Shri sukanta Das, 26.Shri Ambar Nad Das, 27.Shri Rajib Majee, 28. Shri Subrata Biswas, 29.Shri Sanjoy Das, 30.Shri Ashru Swaoo, 31.Shri Mushtaque Ahmed, WONAGRWN 2 O.A. No.350/00132/2021. MA 350/00045/2021. 32.Shri Aloke Ghosh, 33. Shri Rabin Kumar roy. 34. Shri Jayanta Kumar Sankar, 35.Shri Buddhadeb Bhattacharya, 36.Shri Biplab Sahu, 37.Shri Nand Kishor Yadav, 38. Shri Brij Bihari Singh, 39. Shri Raju Hansda, 40.Shri Apurba Biswas, 41.Shri Mriganka Mondall, 42.Shri Amal Kumar Barman, 43. Shri Bijan Haldar, 44.Shri tapan Mandal, 45.Shri Ram Sankar Dalai, 4é.Shri Anil Kumar Pandey, 47. Shri Tapan Ankura, 48. Shri Prasanta Bakshi, 49. Shri Ujjal Kumar Maji, ~ 50. Shri Kinkar Sardar, 51.Shri Arnab Saha, 52.Shri Ghanshyam Prasad Gond, 53. Shri Nikhil Chandra Das, 54.Shri Bishwavijay Kumar Choubey, 55.Shri Ashoke Deay, -- All the applicants are presently working to the various posts under control and authority of General Manager, Gun & Shell Factory, Cossipore. The detailed particulars of all the applicants has already annexed as Annexure A-1 of this original Application. seeee Applicants. Versus 1. Union of India Service through the Secretary, Ministry of Defence (Defence and Production), Government of India, South Block, New Delhi - 110001. 2. The DGOF-cum-Chairman, Ordnance Factory Board, Having his office at 10A, Shaheed Khudiram Bose Road, Kolkata -- 700001. 3 _ ©.A. No.350/00132/2021. MA 350/00045/2021. 3. The General Manager, Gun & Shell Factory, Cossipore, Khagendra Chatterjee Road, CIT, Cossipore, . Kolkata -- 700002. 4, The Additional General Manager, Gun & Shell Factory, Cossipore, Khagendra Chatterjee Road, CIT, Cossipore, © Kolkata -- 700002. 5. The Director/IR, Ordnance Factory Board, Government of India, Ministry of Defence, Having his office at 10A, Shaheed Khudiram Bose Road, Kolkata -- 700001. 6. The Junior Works Manager (SG)/DS, In the office the General Manager, Gun & Shell Factory, Cossipore, Khagendra Chatterjee Road, CIT, Cossipore, Kolkata -- 700002. keeees Respondents. For the applicant : Mr. P.C. Das, Counsel Ms. T. Maity, Counsel For the respondents : Mr. §. Paul , Counsel ORDER
Per : Bidisha Banerjee, Judicial Member Ld. counsels were heard.
2. This application has been jointly filed by 55 applicants. who are identically aggrieved and seek the following reliefs:
"8.a) Leave may be granted to the applicants to file this application jointly under Rule 4(5)(a) of the Central Administrative Tribunal (Procedure) Rules, 1987 as because all fhe applicants' grievances are common, 4 O.A. No.350/00132/2021. MA 350/00045/2021.
b) To quash and/or set aside the impugned order No. A/29/DS/NPS-
OPS, Disc. Section, GSF dated 22.07.2020 issued by the Junior works Manager (SG)}/DS for the General Manager, Gun & Shell Factory, . Cossipore by which the General Manager, Gun & Shell Factory, Cossipore rejected the claim of the applicants by passing a cryptic order by not considering the fact that ihe against the sanctioned vacancies by the Ordnance Factory Board in terms of SRO No. 185 of, 1994 in the same File - No. 1640/D{QA}/2002 dated 20.05.2003 against the sanctioned posts of 120 posts of Semi-Skilled where the present applicants were selected against such posts wherein the Is batch of 60 posis were granted under the coverage of Old Pension scheme whereas the 2d batch of 60 posts of same. File who got appoiniment in the year 2004 and those who are selected against same sanctioned vacancies have denied the benefit of Old Pension Scheme which is a hostile discrimination. under Article 14 and 16 of the Constitution of India and also against the judicial pronouncements passed by the various High Courts as well as Ceniral Administrative Tribunals and also violates the office memo dated 17.02.2020 issued by the Department of Personnel & Training, New Delhi being Annexure A-5 of this original application and office order dated 14.08.2020 issued by the Ordnance Factory Board, Kolkata being Annexure A-10 of this original application;
c) To pass an appropriate order directing upon the respondent authority to extend the benefit of Old Pension Scheme under CCS (Pension) Rules, 1972 in favour of the present applicants in terms of paragraph 18 of the judgment and order dated 27!» March, 2017 passed by the Division Bench of the Hon'ble High Court of Delhi at New Delhi in WP (c} No. 2010/2016 in the case of Inspector Rajendra Singh & Ors. -vs-
'Union of india & Ors., and also in the order dated 27 August, 2018 passed by the Ceniral Administrative Tribunal, Hyderabad Bench in OA No. 109/2015 in the case of Shyam Sunder Prasad Sharma -vs- Union of India & Ors. and also in the order dated 13% March, 2018 passed by the Ceniral Administrative Tribunal, Chandigarh Bench in OA No. 060/00105/20158 in the case of Dr. Neelam Aggarwal & Ors. -vs- Union of India & Ors. and also in the order dated 23 January, 2013 passed by the Hon'be Punjab and Haryana High Court at Chandigarh in CWP No. 1432 of 2012 and also_ in the order dated 22°4 October, 2018 passed by the Hon'ble. Punjab and Haryana High Court at Chandigarh in CWP No. 26482 of 2018 in respect of Old Pension Scheme and to declare that all the applicants are entiiled for the benefit of Old Pension Scheme as per the CCS (Pension) Rules, 1972 because the present applicants were selected in terms of the vacancies sanctioned by the Ordnance Factory Board vide File No. 1640/D(QA)/2002 dated 20.05.2003 and other batch those who have got appointment against same vacancies got the coverage of Old Pension Scheme and the applicants were not given the coverage of Old Pension Scheme which is a hostile discrimination of the Article 14 and 16 of the Constitution of India on the part of the respondent authority by setting aside and/or quashing the impugned order No. A/29/DS/NPS-OPS, Disc. Section, GSF dated 22.07.2020 being Annexure A-9 of this original application; .
5 OA. No.350/00132/2021.MA 350/00045/2021.
d) Costs,"
3. The applicants are aggrieved with Memo dated 22.07.2020 issued by the Junior Works Manager (SG)/DS, for GM whereby and whereunder "their prayer for coverage under CCS (Pension) Rules, 1972, has 'been turned down. The said Memo is extracted hereunder with supplied ' emphasis for clarity :
" _ No. A/29/DS/NPS-OPS Disc. Section, GSF Dated: 22-07-2020 Sub: Coverage under _CCS(Pension) Rules, 1972, in place of National Pension System, of those Ceniral Government employees whose selection of appointment was finalized before 01-01-2004 but who joined on or after 01-01-2004 - regarding Ref: i) DoP&PW O.M NO. 57/04/2019-P&PW (B}, dated 17-02-2020 _ fi) OFBL. No. 307/NPS/Per/Policy dated 20-02-2020 ili) GSF Circular No. 58 dated 16-03-2020
iv)Your application dated 26-May-2020 with reference to {i} above, department of Pension and PW of Government of India has issued an'OM regarding coverage. under CCS(Pension) Rules, 1972 in place of National Pension System for those Central Government Servants who were declared successful' for recruitment based on the results declared on or before 31- 12-2003 against vacancies occurring before 01-01-2004 and are covered under the NPS on joining service on or after 01-01-2004, Those, covered under NPS, may be given a one-time option to be covered under the CCS (Pension) Rules, -
_1972 and the said option should be exercised by the Government servants latest by 31-05-2020. Accordingly, OFB along with GSF has issued the above instruction vide reference (ii) & {iti) above.
2. Your application dated 26-May-2020, in this regard, has been received at this end. After scrutinize the case, it is found that you were , interviewed for the post of Semi/Skilled Grade on 05-Oct-04 and the interview result was approved by the General Manager.on 13-Oct-04.
3. In view of the above facts, it is regretted to inform you that your case has not been found fit by the Competent authority for conversion from NPS to OPS. Accordingly, your representation dated 26-May-2020 is disposed of.
4, This issues with the approval of the Competent Authority.
Sd/-
{A. Roy Mokhopadhyay} Jr. Works Manager (SG)/DS for General Manager"
6 O.A. No.350/00132/2021.MA 350/00045/2021.
4. The applicant would contend that Pension Rules apply to cases where vacancies that were filled up, arose prior to 01.01.2004, whereas NPS apply to those for whom vacancies arose after 01.01.2004 and that in the present case the vacancies were sanctioned in 2003, by the Ordnance Factory Board for appointment of 120 (60+60) Semi-Skilled Artisans from the Trade Apprentices from 'those who possessed the Certificates of NCVT, (vide order dated 20.05.2003) such 120 vacancies were sanctioned in terms of the said order which was communicated by the OFB, Kolkata vide office order dated 29.08.2003 to the General Manager, Gun & Shell Factory, Cossipore.
All the applicants got such certificate of NCVT in the Trade of Fitter/Machinist etc. in May 1995 onwards. That, on the basis of such certificates, they entered the department as Trade Apprentices in the Gun & Shell Factory, Cossipore in the year 1995 onwards, long before the New Pension Scheme came into force.
It is further averred that the SRO 185 of 1994 provides for absorption from the Trade Apprentices to the post of Semi-Skilled, out of those who possess NCVT certificates from Government recognized institution in a prescribed trade. In terms of said SRO No.185 of 1994, the Director/IR for Director General, Ordnance "Factories, Kolkata, vide order dated 15.10.1999, directed all the General Managers of the Ordnance Factories throughout the country to recruit Ex-Trade Apprentices in the Ordnance 'Factories in compliance of the Hon'ble Supreme Court's judgment. Long after that, the Director/IR, OFB Kolkata sanctioned the 120 vacancies of Semi-Skilled category on 20.05.2003, as such all the 120 vacancies were sanctioned vide office order dated 29.08.2003, prior to introduction of NPS. The said authority even directed the General Manager, Gun & Shell 7 0.A. No.350/00132/2021. MA 350/00045/2021.
Factory, Ishapore for initiating action for direct recruitment of manpower against such sanctioned post for appointment to the post of Semi-Skilled from the Trade Apprentices.
That another communication was made by the Director/IR OFB, Kolkata vide order dated 10.03.2004 quoting the same order against 120 sanctioned posts of Semi-Skilled, to the General Manager, Gun & Shell Factory, Cossipore. But the respondents without inviting 120 candidates against 120 sanctioned vacancies in terms of the approval of the Director General, OFB order dated 20.05.2003, rectuited only 60 Semi-Skilled artisans in the 1s batch and thereafter rest 60 in the another batch. Unfortunately, the applicants who deserved such posts with effect from 1995, because of delay in filing up such vacancies, got appointed after 01.01.2004.
That in the 1s! batch 60 vacancies of Semi-Skilled sanctioned vide office order dated 29.08.2003 were filed up and all 60 semi skilled artisans have been granted the benefit of Old Pension Scheme. Whereas out of the same selection process the unfortunate applicants who were selected in the 2nd batch in terms of the office order dated 10.03.2004 but against the occurence of vacancies of File No.1640/D(QA)/2003 dated 20.05.2003, were given appointment on 18.10.2004 and brought under new pension scheme.
Being highly aggrieved, all the applicants preferred representations before the General Manager, Gun & Shell Factory, Cossipore on 27.6.2020 and 26.05.2020, seeking coverage under Old Pension Scheme under CCS (Pension) Rules, 1972, in place of New Pension Scheme of 01.01.2004, citing DoPT's office Memo dated 17.02.2020. But the concerned 8 , O.A. No.350/00132/2021. MA 350/00045/2021.
respondent, vide impugned speaking order dated 22.07.2020 straightway rejected their claim for conversion from NPS to Old Pension Scheme.
That such order is a cryptic one, and it has been issued in violation of various judicial pronouncements made by the Hon'ble High Courts and coordinate benches of the Central Administrative Tribunals. As such the impugned order deserves to be quashed.
5. The respondents repelling such contentions, have filed written -- arguments. They would contend that the recruitment process was carried out in terms of instructions contained in OFB letter L/No.: 800/MP/2003- 04/A/l dated 10-03-2004, the requirement of 60 semi skilled posts in different trades as approved by the G.M was forwarded to OFB for obtaining approval of operating Member (WV&E) vide G.M/GSF D.O. No.A/29/TA/Vig & Co/GM dated 24-04-2004. Accordingly, OFB vide their FAX No.844/Manpower/CO/PW dated 07-05-2004 (FA) has approved the 'recruitment of 60 Ex-TA in the trades of Machinist (35.Nos) Fitter (22 No.} Electrician (02 Nos) and Welder (1 No.) of the semi-skilled Grade. Under the provision of the said letter the factories were required to maintain seniority list of ex-trade apprentice as and when vacancy would arise the - factories were permitted fo make direct induction from Ex-Trade apprentice of their own Factory.
That manpower is recruited as industrial employees as and when the nodal office OFB gave sanction of strength. In this way, when OFB sanctioned Manpower vide L/No. 800/Manpower/2000-2001/A/I dated 29.08.2003 and approved 60 semi skilled industrial employees, then, the Competent Authority processed the recruitment process on the basis of this approval of the same. Then, Ex-TAs from 30' batch onwards upto 36th batch (for General/SC/ST/OBC) were called for the interview. However, 9 O.A. No.350/00132/2021. . MA 350/00045/2021.
"none of the applicants were called for that said interview against the sanctioned vacancy which was given vide OFB letter dated 29.08.2003. it has been further clarified that, the applicants were called, those who got the highest marks in their batch. It is also mentioned that SC/ST/OBC candidates were called upto 36" batch. After that, OFB again sanctioned 60 semi-skilled Industrial employees vide L/No. 800/MP/2003-04/A/I dated 10-03-2004. Subsequently, the competent Authority started recruitment process against the said vacancy. All the applicants are belong from 324 -- batch onwards those who got the lower marks in theit batch and they were called for interview under the vacancy against the manpower sanctioned dated 10.03.2004.
The order dated 22.07.2020 vide No.A/29/DS/NPS-OPS_ is very | justified as because it is: clearly mentioned therein that "all the applicants interview for the post of Semi-Skilled Grade was held on 14.06.2004 and the interview result was approved by the General Manager on 01.07.2004 . and on this ground their application for conversion from NPS to OPS was regretted."
That the applicants and others were not appointed in the vacancy of first. batch wherein °60 posts of semi skilled vide office order dated 29.08.2003. However emphatically admitting that "applicants and others are appointed in the 274 batch by filling 60 posts of semi skilled vide office _ order dated 10.03.2004 aaainst_the occurence of vacancies_of file No.1640/D(QA}/2003 dated 20.05.2003 it is the power vested on Chairman for induction of manpower but not the creating of vacancy.
"That it is not the case that 120 posts of semi skilled were declared 'vacant at any time but only 60 posts of semi skilled was declared vacant at any time but only 60 posts of semi skilled was declared on' each 10 | O.A. No.350/001 32/2021. MA 350/00045/2021.
notification and these applicants are for 60 posts of semi skilled in the 2nd batch by filling 60 post of semi skilled vide office order dated 10.03.2004."
"That the Annexure A-7 page 219 of the O.A upon which. the applicants are relying upon which is nothing but the list of the candidates whose result declared on or before 31.03.2003 against vacancies occurring before 01.01.2004, hence was given the option for conversion from NPS to OPS bui in this list the names of these applicants will not appear as because neither their interview was held on or before 31.12.2003 nor their result was declared on or before 31 12.2003 even their vacancy was not created on or before 31.12.2003."
6. _ The rival contentions are noted. The respondents have given a list of these applicants to show that vacancies arose on 10.03.2004 i.e. affer -
introduction of NPS. An extract goes thus :
' "Chronological incident of applicants of OA, who are not eligible for OPS "| SLNo. ] 2 ; 3 4 45 Per. No. at | 6771 6/72 6775 6776 6782 the time of appointment ;
Name Jadab Ambar Anil Kumar | Arup Saha | Satish Kumar Banerjee Pandy Kumar Sasmal : Singh Trade Machinist Machinist _| Fitter | Fitter __ | Fitter Caste Gen Gen Gen Gen Gen Marks 468 468 464 458 433 obtained ;
Batch No. 32 32 32 32 32 Interview '}4-Jun-04 14-Jun-04 14-Jun-04 '14-Jun-04 14-Jun-04 held on Final -- result | 1-Jul-04 }-Jul-04 ]-~Jul-04 1-Jul-04 }-Jul-04 approved on ; ;
Appointed 4-Nov-04 4-Nov-04 4-Nov-04 4-Nov-04 4-Nov-04 on DOB 7-Dec-72 16-Nov-73 | I-Jan-73 12-Jan-75 | 5-Jan-74 Date of | 10-Mar-04 10-Mar-04 | 10-Mar-04 10-Mar-04 | 10-Mar-04 creation of vacancy They are however conspicuous by their silence about the 1s! batch of 60 who were allowed to opt OPS from NPS. The date of creation/occurrence 11 O.A. No.350/00132/2021. MA 350/00045/2021.
of vacancies, the date of inviting applications, holding interview and granting appointment in regard to the 1st. batch of 60 semi skilled has been very carefully and delicately avoided.
7. The DoPT OM dated 17.02.2020 explicates the following :
(extracted with supplied emphasis for clarity) "No, 57/04/2019- P&PW({B} Government of India Department of Pension and PW Lok Nayak Bhawan, Khan Market, New Delhi, the 17th February, 2020 OFFICE MEMORANDUM Subject: Coverage under Central Civil Services (Pension) Rules, 1972, _in place _of National Pension System, of those Central Government employees_whose selection for appointment was finalized before 01.01.2004 but who joined Government service on or after 01.01.2004. -
The undersigned is directed to say that consequent on introduction of National pension System {NPS) vide Ministry of Finance (Department of Economic Affairs) Notification No. 5/7/2003-ECB & PR dated 22. 12.2.0A3, all Government servants appointed on or after 01.01.2004 to the posts in the Central Government service (except armed forces) .are mandatorily covered under the said scheme. The Central Civil Services (pension) Rules, 1972 and other connected rules were also amended vide Notification dated 30.12.2003 and, after the said amendment, those rules are not applicable to the Government servants appointed to Government service after 31.12. 2003.
2, Representations have been received in. this Department from ihe Government servants appointed on or afterl.1 .2004 requesting for the benefit of the pension scheme under Central Civil Services (Pension) Rules, -
1972 on the ground that their appointed was delayed on account of administrative reasons or lapses. Similar references have been received from Ministries/Departments seeking advice of this Department on the question whether the Government servants who were appoinied on or -- .. after 1.1.2004 could also be extended the benefit of pension scheme --
under_GCS§ _{Pension) Rules, if their appointment was delayed beyond 31.12. 2003 on account of administrative reasons and the delay in appointment was beyond the control of the said Government servants.
3 From the representations of the Government employees and the references received from Ministries/Departments, it has been observed that in many of the cases referred to this Departmen, selection process {including written examination, interview and declaration of result) for recruitment had been completed before 01. 01. 2004 but the employee joined the Government service on or after 01.01.2004. A few illustrations 12 . . O.A. No.350/00132/2021. MA 350/00045/2021.
where the selection was finalized before 01.01.2004 but actual joining took place on or after 01.01.2004 are as under:
(i) The result for recruitment was declared before 01.01.2004 but the offer of appointment and actual joining of the Government servant was delayed on account of police verification, medical examination etc'. ,
(ii) Some_of the candidates selected through a common selection process were issued offers of appointments and were also appointed before 01.01.2004 whereas the offers of appointment to other selected candidates were issued on or after 1.1.2004 due to administrative reasons/constraints including pending Court CAT cases.
(ii) Candidates selected before 01.01.2004 through a common competitive examination were allocated to different . Depariments/organization. While recruitment process was completed by some Department(s}/ Organizations on or before 31.12.2003 in respect of
- one or more candidates, the offers of appointment to the candidates allocated to the other Departments / organization were issued on or ofter 01.01.2004.
fiv) Offers of appointment to selected candidates were made before. 01.01.2004 with a direction to join on or after 01.01.2004.
(v) Offers of appointment were issued to selected candidates before - 01.01.2004 and many/most candidates joined service before 01.01.2004, However, some candidate(s} were allowed extension of joining time and they joined service on or after 01.01.2004. However, their seniority was either unaffected or was depressed in the same batch or to a subsequent batch, the result for which subsequent batch was declared before 01.01.2004.
(vi) The result for recruitment was declared before 01.01.2004 but one or more candidates were declared disqualified on the grounds of medical 'fitness or verification of character and antecedents, caste or income certificates. Subsequently, on review, they were found fit for appointment and were issued offers of appointment on or after 01.01.2004.
in all the above illustrative cases, since the result for recruitment was declared before 01.01.2004, denial of the benefit of pension under CCS (Pension) Rules, 1972 jo the affected Government servants is not considered justified.
4. The matter has been examined in consultation with the Department of Personnel & Training Department of Expenditure and Department of Legal.» Affairs in the light of the various representations/references and decisions of the Courts in this regard. It has been decided that in all cases where the results for recruitment were declared before 01.01.2004 against vacancies occurring on or before 31.12.2003, the candidates declared successful for recruitment shall be eligible for coverage under the CCS${Pension) Rules, 1972. Accordingly, such Government servants who were declared successful for recruitment in the results declared on or before 31.12.2003 against vacancies occuring before 01.01.2004 and are . covered under the National Pension System on joining service on or after 01.01.2004, may be given a one-time option to be covered under the 13 O.A. No.350/00132/2021. MA 350/00045/2021.
CCS/{Pension) Rules, 1972. This option may be exercised by the concerned Government servants latest by 31.05.2020.
5. Those Government servants who are eligible. to exercise option in accordance with para-4 above, but who do not exercise this option by the stidulated date, shall continue to be covered by the National Pension System."
The applicants have banked upon this Circular to stake their claim to be governed by the OPS alike the 1s! batch of 60 semi skilled.
8. The applicants have banked upon the following decisions too :
"iJThe Division Bench of the Hon'ble High Court of Delhi at New Delhi delivered a landmark judgment on 27! March, 2017 whereby the Hon'ble High Court of Delhi at New Delhi under paragraph 18 of the said judgment has held that -
"In our view, basic terms and conditions of service, such as the right to receive pension upon superannuation, as applicable at the time of notification of the posts, cannot later be altered to the prejudice of the incumbents to the post, after commencement of the selection process."
(ii) The Central Administrative Tribunal, Hyderabad Bench order on 27th © August, 2018 in OA No. 109/2015 in the case of Shyam Sunder Prasad Sharma -vs- Union of India & Ors., in respect of Old Pension Scheme.
(iii) An order dated 13 March, 2018 of the Central Administrative Tribunal, Chandigarh Bench passed an order in OA No. 060/00105/20158 in the case of Dr. Neelam Aggarwal & Ors. -vs- Union of India & Ors., in respect of Old Pension Scheme.
{iv} The Hon'ble Punjab and Haryana High Court at Chandigarh judgment rendered on 23 January, 2013 in CWP No. 1432 of 2012 in respect of Old Pension Scheme."
9. The rival contentions are noted. The moot issue to be decided in this O.A are the following :
(i) | Whether the vacancies in question against which the applicants were appointed arose prior fo 01.01.2004:
(ii) | Whether the first 60 vacancies filled up before 01.01.2004 were out of the same selection process against which the second batch of 60 were qppointed and as such whether the present batch would deserve identical treatment.14 O.A. No.350/00132/2021.
_ MA 350/00045/2021.
10. The Hon'ble High Court at Delhi in WP (C) No. 2810/2016 in the case - 'of Inspector Rajendra Singh & Ors. vs. UO! &Ors. rendered on 27.03.2017 wherein the petitioners who were recruited after 01.01.2004, against vacancies that occurred before 01.01.2004 were declared as eminently entitled to be covered by the Old Pension Rules and that bringing them into the ambit of New Pension Scheme of 2004 in bad in law.
That the Hon'ble Apex Court in the case of Shabad Prakash Punia & Ors. batch cases where the petitioners who had applied pursuant to the . Notification dated september, 2003 and June, 2003 for the post of Constable/GD in Central Armed Police Forces and Sub-Inspectors through | Staff Selection Commission, and had qualified in the said examination of 2003, sought for benefits under Old Pension Scheme under the CCS (Pension) Rules, 1972, whereas, the New Contributory Pension Scheme that was introduced by a notification dated 22"¢ December, 2003, and implemented with effect from. 15! January, 2004, was applied.
Hon'ble Court found that the batch mates of the most of the petitioners have been given the benefits of Old Pension Scheme under various judgments passed by the Court as under:
(i) Patil Gopal Babulal &Ors. vs. Union of India R018. W.P. (C) 1646/2018;
(i) . Tanaka Ram &Ors. vs. Union of India &Ors., 2019 (174) DRJ | 146 (DB); | | . (ili) Shyam Kumar Choudhary andOrs. vs. Union of India being W.P. (C ) No. 1358 of 2017 and
(iv) | Niraj. Kumar Singh &Ors. vs. Union of India &Ors., WP. (C } -
- No. 13129/2019. | The Hon'ble Court therein held as under:
O 15 O.A. No.350/00132/2021. MA 350/00045/2021.
"8. 'The issue in the present batch of matters is no longer res integra. Consequently, the request for additional time to file counter-affidavit is declined.
9. In the case of certain constables of the BSF, this Court by its judgment dated 12'" February, 2019 in Tanaka Ram {supra} allowed the prayer of those Petitioners and permitted them to avail of the benefit of the Old Pension Scheme. It was held that the option fo _ continue the Old Pension Scheme should be extended to alll those who has been selected in the examination conducted in 2003, but were issued call letters only in January or February, 2004. lf is also pertinent to mention that the Respondents aggrieved by the said judgment filed an SLP bearing No. 25228/2019 before the Apex Court. The said SLP has been dismissed by the Supreme Court vide order dated 02"6 September, 2019.
10. This Court in Shyam Kumar Choudhary and Ors. vs. Union of | India being W.P.(C) No. 1358 of 2017 allowed similar petitions vide judgment dated 09! April, 2019 against which the Respondents had again filed SLP bearing no. 31539/2019 which was again dismissed on 27 September, 2019. The Respondents thereafter chose to file a review petition bearing no. 2188/2020 before the Apex Court in the said matter and the said Review petition was also dismissed on merits vide order dated 24" November, 2020.
It. Following the judgment of Shyam Kumar Choudhary (supra), the learned predecessor Division Bench in Niraj Kumar Singh and Ors. Vs. Union of India &Ors.,W.P.(C) No. 13129/2019 granted similar benefit to 17 petitioners who had applied to the post of Sub- Inspector in Central Police Organisations pursuant to an advertisement dated 21% June, 2003 even when the writfen > examination and physical efficiency test were held in November, 2003, medical examination was held in January-February, 2004 and final result was declared in May, 2004. The said 17 petitioners were issued offer of appointment on 02% June, 2005 and on accepting the same, the appointment letter was issued on 14! July, 2005 for joining the Sashastra Seema Bal.
12. Another Coordinate Bench vide judgment dated 06"
November, 2020 in W.P.(C) No. 6548 of 2020 as well as 6989/2020 was pleased to allow the said petitions for grant of Old Pension Scheme by following the judgment in Shyam Kumar Choudhary (supra).
13. Having regard to the fact that in the present batch of cases also the advertisement/notification was issued in September, 2003 and June, 2003 i.e. prior to coming into force of the present' contributory pension scheme _on 224 December, 2003, this Court is of the view that petitioners cannot be deprived of the benefit of the Old Pension Scheme.
14. This is more so when the batchmates of the petitioners are getting this benefit under various judgments passed by this Court.
15, For the above reasons, the petitioners are allowed. Respondents are directed to extend the benefit of Old Pension
-Scheme to each of these Petitioners and pass consequential orders within a period of eight weeks from today.
16. Accordingly, the writ petitions along with pending applications stand disposed of."
0 16 O.A. No.350/00132/2021.MA 350/00045/2021.
~
11. The following facts are discernible in the case at hand:
(i) The OFB way back in the year 1999 issued the following instructions | for the GMs of all factories:
"No.570/A/J{Ill) Government of India, Ministry of Defence, Ordnance Factory Board, 10-A, Shaheed Khudiram Bose Road, Calcutta - 700 001.
To Dated, the 15/20!» October, 1999 The General Managers All Factories Staff College, _ Ambajhari.
Sub: Recruitment of Ex-trade Apprentices in OFs.
It has been represented in JCM Ii! Level Council meeting that factories are not following uniform procedure in recruiting Ex-Trade Apprentices of the factories. It was mentioned that factories follow different methods in selecting Ex-Trade Apprentices for recruitment. The matter has been under examination in this Hqrs. for quite some fime and it has been decided that a common uniform method/procedure of recruitment should be followed by all factories keeping in view various Govt. instructions and judicial pronouncements.on the subject.
02. Instructions have been issued vide Circular No.570/A/I dated 15-05- . 96 that ex-trade apprentices should be given preference in recruitment in pursuance of the directives of Min. Of Labour which were based on the Supreme Court judgement in UPSRTC Vs. UP Parivahan Nigam Shishukh Berozgar Sangh on the subject. DOP&T has also issued instructions in pursuance of another Apex Court judgement on the necessity of notifying » the vacancies in Newspapers while approaching Employment Exchanges for sponsoring of candidates for recruitment. There has also been judicial pronouncement on subjecting the ex-trade apprentices to tests/interviews _ etc. ,
03. In compliance with the Supreme Court judgement effort will be made to meet the requiremenis by appointing ex-TAs of the factory as far as possible. Only when ex-TAs of the factory are not available recruiiment from other sources will be resorted to.
04. Keeping in view the above instructions and functional requirement of factories the following procedures will be adopted for direct recruitment of industrial employees: -
Phase-l
i) The factories shall maintain the seniority list of ex-frade apprentices of their own factory. Apprentices trained in the earlier batch willbe » on-bloc senior to the apprentices of the subsequent batches. 'While maintaining the batch-wise_ seniority, marks/grading obtained_in NCTVT examination will be the criterion for determining the intra = batch seniority of the apprentices.
ii) As and when vacancies arise and factories are permitted to make direct induction, in the first instance ex-trade apprentices of_their own factory will be considered for recruitment as already explained in the preceding para.47 O.A. No.350/00132/2021.
MA 350/00045/2021.
ili) Selection process is based on fitness cum seniority. Only trade test will be conducted to ascertain whether fhe ex-trade apprentice is fit for the job or not. if he is unfit (i.e. he failed in trade test) he is to be excluded. Amongst the candidates who pass the trade test, and are therefore fit, the selection will be done strictly on seniority. That is why it is very important that the factories maintain accurately batch-wise and in the same baich seniority list. The trade test should be same as in a trade test conducted for promotions of industrial employees in OFs. The suitability or board in the test. ;
iv} Factories should normally testing the call of ex-trade apprentices for the test one and half times the number of vacancies intended to be filled up. This is to provide necessary cushion fo meet the eventuality of some of the candidates so called not turning up for the test or failing in test. Once the number of candidates selected/passed reaches the number required, the test is to be stopped. This position may be explained to the candidates before starting the test. This is necessary as maintaining a waiting list of selected candidates has its problems leading to litigation later.
Phase-l!
i) if the factory fails to meet the requirement of candidates for recruitment from the list of their ex-irade apprentices maintained either because of exhausting the list or because of the unsuifability/ineligibility of the ex-TAs. in the list, the factory may notify such number of vacancies as required by them jo the
- Employment."
(ii) No action was taken on the said Circular until 2003. In 2003 the OFB issued a letter dated 29.08.2003, that reads as under :
"No, 800/Manpower/2000-2001 /A/! Dated: 29 Aug. 03 ' To, The General Manager, Gun & Shell Factory, Cossipore.
Sub: Manpower ~ Sariction of In exercise of the powers vested on Chairman/OFB vide M of D No. 1640/D(QA) /2002 dt 20-05-2003 for induction of manpower in Ordnance & Ordnance Equipment Factories, the Chairman is pleased to sanction further induction of the following manpower through direct recruitment to GSF for. purpose of meeting the increased work load and. the situation arising out of large scale wastage of manpower and the consequent skill erosion.
INDUSTRIAL EMPLOYEES --- 60/Semi Skilled
02. While initiating action for direct recruitment of manpower as sanctioned above, the factory should strictly follow the following guidelines
(a) Government instructions issued vide letter No DGET 50(D2)/95-
AP. dated 15-03-1996 circulated under OFB circular No. 570/A/I dt 14-05-1996, DOP & T letter No. 14024/2/96- Estt. Dated 18-05- otherwise of the candidate is to be determined by the selection" |"
18 OA. No.350/00132/2021.MA 350/00045/2021.
1998 circulated under OFB letter no 039(6)/A dated 24-08-1999 and OFB instructions on recruitment of manpower issued vide . letter No. 570/A-I/lil dated 15/20 October 1999 should be followed. Be
(b) All provisions contained in SRO 185 / 94 will be strictly complied with.
(c) Stipulated percentage of vacancies earmarked for promotions (20%) in the SRO will be left intact and such vacancies will be filled only by way of promotion.
(d) Similarly, induction will be done only to the extent of authorized grade-wise sanctions/ strength, and if the factory in unable to = accommodaie the. above manpower induction/ sanction within the authorized grade-wise strength, necessary proposal for revision of the grade-wise strength may be sent to OFB for consideration before going ahead with direct recruitment.
(e] Government instruction/ orders issued from time to time on the subject of reservation in recruitment of reserved categories including that of PH candidates must be complied with strictly.
(f) Trade-wise allocation of .posis as sanctioned above may be decided with the approval of Operating Member/ Addi. DGOF.
(Gurudutia Ray) Director/IR For Director General, Ordnance Faciories"
It is evident from the Annexure that this was the letter in terms of which probably the first batch of trade apprentices were selected and appointed.
(iii) The factory order part Il dated 17.06.2020 issued long after NPS was introduced explicates that such trade apprentices of 1st batch who joined on 15.03.2004 i.e. after introduction of NPS, were given one time option to switch to OPS referring to their application date. An extract would be the following :.
"No. 1535 Sub: Coverage under CCS (Pension) Rules, 1972 in place of National Pension System :
Ref: i) DOP & PWO.M No. 57/04/2019-P & PW(B) dtd 17.02.2020
ii) OFB Letter No. 307/NPS/Per/Policy dtd 20.02.2020
iii) GSF Circular No. 58 dated 16.03.2020 _ With reference to {i} above, Depariment of Pension and PW of Government of India has issued an OM regarding coverage under CCS (Pension) Rules, 1972 in place of National Pension system for those Ceniral Government Servants who were declared successful for recruitment ) 19 OA, No.350/00132/2021. , MA 350/00045/2021.
based on the results declared on or before 31.012.2003 against vacancies occurring before 01.01.2004 and are covered under the NPs on joining service on or after 01.01.2004.
Accordingly, the Competent Authority has approved vide Notesheet no A/29/NPS-OPS/DS dtd 10.06.2020 for conversion from NPS to .OPS to the following eligible employees. In accordance with Para 4 of DOP & PW O.M No vide re. (i) the following employees have submitted there option forms/ applications specified against each, to exercise one 'time option of coverage under CCS (Pension) Rules, 1972.
Sil. | Employee Design | Section | Per Per No | Date of | Opt/ No | Name No. of | of GO/ | appointm | Apple IE's NGO/ | ent Date NIE 1 | Rajeev HS-I Gun-A_ | 6707 ~ | 75.03.200 | 22.05.202 Ranjan Raj 4 0 2 | UtpalSarkar | MCM Gun-C | 6711 15.03.200 | 21.03.202 4 0 3 | Chandra MCM Gun-C 16713 15.03,200 | 21.03.202 Nath Naskar 4 0 4 |Gautam . HS-I ac 6715 15.03.200 | 27,05.202 Chakraborty 4 0 The order explicit is further explicit that those 60 semi skilled of 15! batch of
---60 inducted on 15.03.2004, i.e. after NPS came into effect, were granted benefit under OPS as their results were declared before 01.01.2004.
liv) The OFB letter dated 10.03.2004 that reads :
"No. 800 MP/2003-04 A-I _ Date: 10.03.2004 To The General Manager, Gun & Shell Factory Cossipore Sub: Manpower Sanction of in exercise of the powers vested on Chairman/OFB vide M of DF No 1640/D(QA}/2002 dt 20-05-2003 for induction of manpower in| Ordnance & Ordnance Equipment Factories, the Chairman is pleased to sanction further induction of the following manpower through direct recruitment to _ GSF for purpose of meeting the increased work load and the situation arising out of large scale wastage of manpower and the consequent Skill erosion-
INDUSTRIAL EMPLOYEES -- Semi Skilled -60(sixty only}
02. While initiating action for direct recruitment of manpower as sanctioned above, the factory should strictly follow the following guidelines 20 O.A. No.350/00132/2021. MA 350/00045/2021.
{g) Government instructions issued vide letter No DGET 50(D2} /95- AP dated 15-03-1996 circulated under OFB circular No. 570/A/I dt 14-05-1996, DOP & T letter No. 14024/2/96- Estt. Dated 18-05- 1998 and OFB instructions on recruitment of manpower issued vide letter No. 570/A-i/Ill dated 15/20 October 1999 should be followed. a {h) All provisions contained in SRO 185 / 94 will be strictly complied with."
The OFB letter dated 10.03.2004 demonstrates and exemplifies that the 2nd batch of 60 semi skilled were inducted by virtue of sanction order 'of 20.05.2003 that applied equally to the 13 batch.
(v) The representations preferred by applicants, who admittedly joined after 01.01.2004 but out of the same apprentice list where the 15 60 figured.
(vi) The impugned rejection letter dated 27.02.2020 that emphasizes the reason for rejection as under :
"Ref: i) DOP&PW O.M No. 57/04/2019-P&PW (B), dated 17-02-2020
ii) OFB L. No. 307/NPS/Per/Policy dated 20-02-2020 © iii] GSF Circular No. 58 dated 16-03-2020
iv) Your application dated 26-May-2020 With reference to (i) above/Department of Pension and PW of Government of India has issued an OM regarding coverage under CCS(Pension) Rules, 1972 in place of National Pension Systern for fhose Central. Government Servants who were declared successful for
- recruitment based on the results declared on or before 31- 12-2003."
Whereas no result of the previous batch of 60 have been brought to the fore to show that since their results were declared before 01.01.2004, they were brought under OPS as a one time exception.
(vil) The respondents have categorically stated that Ex-TAs from 30! batch onwards upto 36!h batch (for General/SC/ST/OBC) were called for the interview. However, none of the applicants were --
called for that said interview against the sanctioned vacancy which was given vide OFB letter dated 29.08.2003 and those who got the highest marks in their batch and also that SC/ST/OBC candidates 21 . O.A. No.350/00132/2021. MA 350/00045/2021.
were called upto 36! batch. It is clearly evident from such -
-statement that the semi skilled were inducted in the order of their merit in their batch 32nd till 36th which they completed in 1995, Therefore, it is not a case where results of selection were published separately. Rather semi skilled of batches 324 to 3é6!h have been ~ divided in two groups of 60.
Such being the position, there is no gainsaying that the 1s! batch of 60 were allowed one time exception to opt for OPS as their results were i published before 01.01.2004 and the present batch has been disallowed as their results were published after 01.01.2004. The statement is quite misleading.
12. In Man Singh vs. State of Haryana & Ors. AIR 2008 SC 2481 and 'Rajendra Yadav vs. State of M.P. and others, 2013(2) AISLJ, 120, the Ho'ble . Apex Court ruled "that the concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extent to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing: -
liability upon him. Equal is to be treated equally even in the matter of executive or administrative action."
13. In view of the legal and factual position discussed supra, it would be expedient in the interest of justice if the impugned orders are quashed and the matter is remanded back to the competent authority to delve into the following details :
~ {i) Whether the date of release of vacancies for the 1s! batch of 60 semi skilled and the second batch of 60 was the same;
{ii) Whether the date of sanction for appointment for the two, . batches was same; -
(ii) | Whether the date of issuance of notification for selection of 1s! batch of 60 was before that of the second batch;
14, 22 O.A. No.350/00132/2021. MA 350/00045/2021.
(iv) Whether the date of selection of 1 batch was before | 1.1.2004;
(v) The declaration of result of the first batch; and if the answer to (i) -- (iv) is in the affirmative then, on the basis of the revelation to consider the claim of the present batch in the light of DoPT OM dated 17.02.2010 and the decisions in Shabad Prakash Punia & Ors. to decide whether to allow them to switch to OPS from NPS if they 'are identically circumstanced to the first batch of 60..
Appropriate order be issued within a period of 3 months from the date of receipt of a copy of this order.
15. O.A is accordingly disposed of. No costs. M.A also stands disposed of.
ae
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(Dr. Nandite Chatterjee ) (Bidisha Banerjee ) Member(A) Member (J) Pg