Central Administrative Tribunal - Delhi
Lokender Kumar Sharma vs Defence Production on 7 January, 2025
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C-6/Item-44 OA-976/2024
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A./976/2024
M.A./923/2024
M.A./924/2024
Order reserved on :10.12.2024
Order pronounced on :07.01.2025
Hon'ble Dr. Chhabilendra Roul, Member (A)
1. Shri Lokender Kumar Sharma
S/o Shri Mahender Pal Sharma
Aged 41 years
Working as JWM (Tech),
Group-B
R/o 16/QA/81, OFM Estate,
Muradnagar(U.P.)
2. Shri Ved Prakash Verma,
S/o Shri Amar Singh Verma,
Aged 49 year,
Working as Chargeman (Tech)
Group-B,
R/o= Type-III/61 OFM Estate,
Murad Nagar, (U.P)
3. Shri Sunil Kumar Deepak,
S/o Shri Sardar Singh,
Aged 47 year,
Working as Fitter General (MCM),
Group-B
R/o= Type-I/59/625, OFM Estate,
Murad Nagar, (U.P).
4. Shri Yogendra Kumar
S/o Shri Jag Swaroop Tyagi
Aged 46 year,
Working as Fitter General (HS-I)
Group-B,
R/o Village & Post Didouli
Murad Nagar, U.P
5. Shri Sachin Sarawat
S/o Shri Ram Charan Singh, Aged 44 year,
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C-6/Item-44 OA-976/2024
Working as JWM (Tech),
Group-B
R/o Village & Post- Jalalabad
Murad Nagar, (UP).
6. Shri Sanjay Kumar
S/o Shri Raj Kishore Prasad,
Aged-46 year,
Working as Fitter General (MCM),
GROUP-B
R/o PA/19/OFM, Estate,
Murad Nagar (U.P.)
7. Shri Raj Kumar,
S/o Shri Vegpal Singh,
Aged 44 year,
Working as Fitter General (HS-I),
Group-B,
R/o Q/20/74, OFM, Estate
Murad Nagar, (UP).
8. Shri Praveen Kumar,
S/o Shri Harender Singh,
Aged 42 year,
Working as Chargeman (Tech),
Group-B.
R/o III/DS/82 OFM, Estate
Murad Nagar, (U.P).
9. Shri Arun Kumar
S/o Shri Ram Kumar,
Aged-44 year
Working as Fitter General (MCM)
Group-B
R/o H. No. 129, Gali No. 5,
Ganga Vihar, Murad Nagar, (U.P).
10. Shri Ashwani Kumar,
S/o Shri Santosh Kumar,
Aged 40 year,
Working as Fitter General (HS-I),
Group-B
R/o H. No. 393, Radhey Shyam Vihar, Face-5
Murad Nagar, (U.P).
11. Shri Vineet Kumar Malik,
S/o Shri Rajpal Singh,
Aged-42 year,
Working as JWM (Tech),
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C-6/Item-44 OA-976/2024
Group-B,
R/o Gali No. 5 B
Tower Road, New Defence Colony,
Murad Nagar, (U.P).
12. Shri Amit Sharma,
S/o Shri Sushil Sharma,
Aged 43 year,
Working as Machinist (HS.I),
Group-B
R/o Village & Post - Bhatipura,
Meerut (U.P).
13. Shri Ram Bhul Kumar,
S/o Shri Ram Kishan,
Aged 42 year,
Working as Machinist (HS-I),
Group-B
R/o Village & Post Dhindar,
Murad Nagar, (U.P).
14. Shri Manoj Kumar
S/o Shri Devi Singh,
Aged-49 year,
Working as Fitter General (MCM)
Group-B,
R/o H-Type Quarter, No. 4,
OFM, Estate,
Murad Nagar, (U.P). ...Applicants
(Through Shri Manjeet Singh Reen, Advocate)
Versus
Union of India & Others : Through
1. The Secretary,
Department of Defence Production,
Ministry of Defence,
South Block,
New Delhi.
2. The Director General Ordnance (DGO)/(C&S),
Directorate of Ordnance (C&S),
10A, S.K Bose Road,
Kolkata-700 001
3. The Deputy Director General,
Directorate of General (C&S),
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C-6/Item-44 OA-976/2024
Dehradun Field Unit,
OFIL Campus, Raipur,
Dehradun-248008
4. The General Manager,
Ordnance Factory,
Murad Nagar-201206
(U.P.) ...Respondents
.
(Through Shri A.K. Singh, Advocate)
ORDER
Hon'ble Dr. Chhabilendra Roul, Member (A) The instant OA has been filed by the applicants under Section 19 of the Administrative Tribunals Act 1985, seeking the following relief(s):-
"8.1 That this Honourable Tribunal may graciously be please to allow the present Original Application and directing the Respondents to consider the applicants' eligibility to get benefit under the Central Civil Services (Pension) Rules, 1972 (Old Pension Scheme) with all consequential benefits. 8.2 That this Honourable Tribunal may graciously be pleased to allow the present Original Application and to declare the action of the respondents in denying the benefits of the Old Pension Scheme to the applicants as illegal, and to issue direction to the respondents to regulate the case of the applicants under CCS (Pension) Rules, 1972 and not under NPS made effective from 01.01.2004 with all consequential benefits.
8.3 That any other or further relief which this Hon'ble Tribunal may deem fit and proper under the circumstances of the case may also be granted in favour of the applicants."
2. The factual matrix of the present case is that the applicants originally joined as apprentice with the respondents. In pursuance with the office communication 5 C-6/Item-44 OA-976/2024 dated 20.10.1999 from the Ordnance Factory Board, Ministry of Defence, the applicants have completed their apprentice on various dates as mentioned in a table under paragraph 4.3 of the OA. They completed the training on various dates starting from 1998 to 2002. The respondents, particularly the Ordnance Factory Board, vide its letter dated 10.07.2003 sanctioned 35 industrial employees in the Ordnance Factory Muradnagar, i.e. respondent No. 4. The respondent No. 4 sought approval of the competent authority for the following categories:-
(A) Moulder = 10
(B) Fitter General = 12
(C) Machinist = 10
(D) Pattern Maker = 01
(E) Fitter Electronics = 02
3. Subsequently, on demand of the stake holders, the Ordnance Factory, Muradnagar, through its General Manager sought modification of the distribution of various posts. However, the number of Pattern Makers remained as 1 and number of posts for General Fitter remained as 12 even in the modification order. Following this approval given by the Competent Authority on 07.01.2004, the applicants were allowed to join in the respective posts on various dates as described in the table under paragraph 4.3 of the OA. 6
C-6/Item-44 OA-976/2024 Before allowing them to join, as required, the applicants were subject to trade test and interview, which were conducted on 16th and 17th March, 2004. They joined on duties upon various dates starting from 27.04.2004 to 14.05.2004.
4. Submission by learned counsel for the Applicant 4.1 Learned counsel for applicant states that the entire recruitment process for the present applicants started well before 22.12.2003. This is because these are internal recruitments, not through advertisement in the newspapers. The applicants were already in apprentice-ship with the respondents starting from various dates prior to 22.12.2003. Hence, the recruitment process has started well before the cut of date of 22.12.2003. In support of his arguments, learned counsel for the applicants refers to the DOPT OM dated 03.03.2023 (Page 81), particularly, paragraph 4 of the same, which is reproduced as under:-
"The matter has been examined in consultation with the Department of Financial Services, 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 now been decided that, in all cases where the Central Government civil employee has been appointed against a post or vacancy which was advertised/notified for recruitment/appointment, prior to the date of notification for National Pension System i.e. 22.12.2003 and is 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 CCS (Pension) Rules, 1972 (now 2021). This option may be exercised by the concerned Government servants latest by 31.08.2023."7
C-6/Item-44 OA-976/2024 4.2 Learned counsel for the applicants further refers to particularly phrase "post or vacancy which was
advertised/notified for recruitment/appointment, prior to 22.12.2003". He refers to the Annexure A-4, according to which the first approval for 35 posts of industrial employees (semi-skilled) was received by the Ordnance Factory Muradnagar on July 2003. Subsequently, there was a breakup of the categories and follow up of modification of the number of vacancies in various categories which were ultimately received on 07.01.2004. He states that this cannot be constituted to the date of approval as the initial approval has come on 10.02.2003. Hence, the entire recruitment process for 35 vacancies in Ordnance Factory, Muradnagar has been initiated from July 2003. In view of this, the applicants are entitled to be covered under the Old Pension Scheme as per paragraph 4 of the DOPT OM dated 03.03.2023. He further draws attention to letter dated 02.09.2003 (page 58 of rejoinder), vide which respondent No. 2 has given approval for 40 Semi Skilled industrial employees to the General Manager, Cable Factory, Chandigarh. He further refers to page 130 of the OA wherein the concerned subordinate offices under Respondent No-2 has given the benefit of OPS to those employees who were appointed in pursuant to the sanctioned letter dated 8 C-6/Item-44 OA-976/2024 02.09.2003, though these employees joined on various dates after 01.01.2004. Thirdly, he draws attention to letter dated 20.10.2003 issued by respondent No. 2 to General Manager, Ordnance Factory Dehradun, where 20 posts of industrial employees (semi skilled) were granted and these employees joined on various dates, after 01.01.2004. These employees have also been given benefits of old pension scheme as per letter dated 30.11.2023 (Annexure A-18). 4.3 Learned counsel for applicants further states that out of 35 vacancies, 5 vacancies were reserved for Physically Handicap category for which the advertisement was issued on 22-28/11/2003 and were given appointment on 12.01.2005. These employees were given benefits of Old Pension Scheme. He submits a sample copy of letter dated 08.08.2003 which Shri Kameshwar Bajirao Ramtek has been given the benefits of Old Pension Scheme, though he was appointed on 12.01.2005. Drawing Constitutional provision of Article 14 and 16, he states that the present applicants should also be granted OPS at par with Shri Kameshwar Bajirao Ramtek. He states that though the advertisement was issued on 2-28/11/2003 for the said category, the candidates therein were appointed after 01.01.204. However, they have been granted old pension scheme. Drawing attention of the Tribunal to the Principle of parity and 9 C-6/Item-44 OA-976/2024 equity, he avers that the present applicants should be granted the benefits of old pension scheme. 4.4 In support of his contentions, the learned counsel for the Applicants has furnished the following judgments, which mainly have considered the date of requisition to recruitment agencies and year in which vacancies arose:
(i) The Judgment of Apex Court in J&K Public Service Commission Vs Dr. Narinder Mohan, (1994) 2 SCC 630
(ii) The judgment of Allahabad High Court in WP No. 41961/2006 in Rakesh Bhardwaj S/o Late Satyadev Vs State of U.P. through Principal The contention of the applicants is that in these judgments the Hon'ble Apex Court as well as the Allahabad High court has held that the date of requisition should be date when the vacancies were notified to the recruitment agency.
5. Submission by learned counsel for the Respondents 5.1 Per contra, learned counsel for respondents vehemently opposes for grant of any benefit of old pension scheme to the present applicants. He draws attention to the counter reply filed by the respondents and states that the process of advertisement to the vacancies did not start prior to 22.12.2003. Rather, the process of recruitment started 10 C-6/Item-44 OA-976/2024 after 22.12.2003. To be specific, he refers to paragraph 11 of the counter affidavit, wherein it has been stated "However, in the instant case the Applicants who were ex Trade Apprentices of OFM were called for trade test/Interview to be held on 15/03/2004 vide Circular/Notice dated 23 February 2004 and the same was communicated to the respective Applicants through Registered Post dated 23 February 2004 as well as the same was placed on the Notice Board of Ordnance Factory Muradnagar.
5.2 In view of the above, learned counsel for the respondents submits that the process for trade tests and interview were started on 15.03.2004 well after 22.12.2003. In view of this, the applicants are not entitled to benefits of OPS as per para 4 of the DOPT OM dated 03.03.2023. He states that though the strength of man power was sanctioned on 26.08.2003, it is wrongly interpreted by the applicants that the notification/recruitment advertisement for the said vacancies started from that date. Actually, the circular notice for the trade test and interview was given on 23.02.2004 and hence, this can be considered as the date of advertisement for recruitment to the 35 industrial employees (Semi Skilled).
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C-6/Item-44 OA-976/2024 6. Analysis 6.1 I have heard both the learned counsels carefully and perused the records thoroughly. 6.2 From the pleadings in the file as well as from the
submissions by the learned counsels, the following issues are culled out for adjudicating the case;
a) Which is the recruitment agency in the instant case?
b) When ware the requisitions sent to the said recruitment agency as per (i) above, so that the DOP&T notification dated 4.03.2023 shall be applied appropriately to determine whether the present applicants are entitled to migrate to the Old Pension Scheme?
6.3 In the instant case, the Chairman is competent to sanction the creation of vacancies vide communication dated 10.07.2003 (Annexure-A to counter Affidavit by respondents). The final composition of trades were communicated vide communication dated 7.01.2004. There was no external recruitment agency to act as recruitment agency for Respondent No.4. Hence, in the instant case, the recruitment Agency is Respondent No.4 who took the decision to issue notification for recruitment. Because of the peculiarity of the case, the two step processing of recruitment i.e. (a) first the organization requiring recruitment notifies and sends communication to the 12 C-6/Item-44 OA-976/2024 recruiting agency and (b) second, the recruitment agency notifies the advertisement seeking application for the said posts, is not valid. Here both these two agencies are merged with Respondent No.4. Hence, query No. 1 is answered in that manner.
6.4 Now the question arises as to when Respondent No.4 decided to recruit 35 semi-skilled industrial workers. The decision to recruit 35 semi-skilled workers can be termed as the date when the recruitment process started by way of self-requisition. The initial sanction to create the 35 positions was communicated by Respondent No. 2 as per the communication dated 10.07.2003. For better appreciation, the said letter (Annexure-A4 to OA page 69-70) is reproduced below:
"To, The General Manager, Ordnance Factory, Muradnagar.
Sub: Manpower - Sanction of In exercise of the powers vested on Chairman/OFB vide M of D F.No.1640/D(QA)/2002 dt 20-05-2003 for induction of manpower in Ordnance & Ordnance Equipment Factories, the Chairman is pleased to sanction induction of the following manpower through direct recruitment to OFM 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-35 (Thirty five) Semi-Skilled 13 C-6/Item-44 OA-976/2024
02. While initiating action for direct recruitment of manpower as sanctioned above, be factory should strictly follow the following guidelines:
(a) Government instructions issued vide letter No. DGET 50(D2)/933-AP dated 15-03-
1996 circulated under OFB circular No. 370/ A/ I dt. 14-05-1996, DOP&T letter No. 14024/2/96-Estt. dated 18-05-1998 circulated under OFB letter no.039(6)/A/A dated 24-08-1999 and OFB instructions on recruitment of manpower issued vide letter No. 570/A/I/III dated.....should be followed.
(b) All provisions contained in SRO 185/94 will be strictly complied with.
(c) While doing direct recruitment, the SRO provisions of promotion quota should also be kept in view.
(d) Similarly, induction will be done only to the extent of authorized grade-wise sanctions/ strength, and if the factory is unable to accommodate 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.
03. Trade-wise allocation of posts as sanctioned above may be decided with in approval of Operating Member/Addl. DGOF.
Sd/-
(MEENAKSHI SETH) DDG/ADMIN For Director General, Ordnance Factories"
6.5 This letter while giving the sanction for creation of the 35 posts did mention/ remind Respondent No.4 regarding the procedure to be followed for recruiting incumbents to 14 C-6/Item-44 OA-976/2024 these posts. In other words, when Respondent No.1 furnished the instructions for recruitment along with sanction of the posts to Respondent No.4, who is the recruiting agency (as per the analysis in Paragraph 6.3 above), it can be safely inferred that the recruitment agency (in this case Respondent No.4 ) notified the vacancies and was given go ahead for the recruitment. The DOP&T OM dated 3.03.2023 (Paragraph 4) has given clarification as to applicability of Old Pension Scheme (OPS) to employees whose appointment process like notification for recruitment/appointment started before 22.12.2023. As it has already been held that the date of intimation of the vacancies by Respondent No. 1 to Respondent No.4 was on 10.07.2003, the date of requisition shall be construed as 10.07.2003. Hence, by applying the DOP&T OM dated 3.03.2023, the recruitment of the present applicants as Multi-skilled industrial workers entitled them to be treated as eligible for OPS. I don't consider it appropriate, due to the peculiarities of the case, to accept the averment by the learned counsel for the respondents that the notice inviting applications for recruitment was notified by Respondent No.4 on 7.01.2004 and this is date relevant for consideration of applicability of OPS as per DOP&T OM dated 3.03.2003.
6.6 Moreover, the learned counsel for the applicant has fairly brought the principle of parity with similarly situated 15 C-6/Item-44 OA-976/2024 employees in other sub-organization within the jurisdiction of Respondent No.1, who have been granted the benefit of migration to the old pension scheme. As it has been detailed in paragraphs 4.2 and 4.3, the respondents have given the benefit of old pension scheme to similarly placed employees in Chandigarh and Dehradun sub-organizations (ordnance factories) and also in the organizations represented by respondent no.4 for physically handicapped categories. In view of this, applying the principle of parity under Articles 14 and 16 of Constitution of India, the present applicants are entitled for the benefit of old pension scheme.
7. Conclusion 7.1 In view of the above analysis and findings, the present OA is allowed.
(i) The Competent authority amongst the respondents is directed to grant the benefit Old Pension Scheme to the present Applicants under CCS (Pension) Rules, 1972.
(ii) The exercise for granting the benefit of Old Pension Scheme to the present applicants shall be completed within 16 C-6/Item-44 OA-976/2024 8 weeks from receipt of certified copy of this order.
8. There is no order as to costs. Any pending MA is also disposed of accordingly.
(Dr. Chhabilendra Roul) Member (A) /dkm/