Central Administrative Tribunal - Delhi
Smt. Ramesh Thakkar vs Govt. Of Nct Of Delhi Through Director Of ... on 14 May, 2010
Central Administrative Tribunal Principal Bench OA No.2121/2009 New Delhi this the 14th day of May, 2010. Honble Mr. Shanker Raju, Member (J) Honble Mr. S.P. Singh, Member (A) Smt. Ramesh Thakkar, 490, Mandakini Enclave, Alaknanda, New Delhi-110019. -Applicant (By Advocate Shri O.P. Gehlot) --Versus0 1. Govt. of NCT of Delhi through Director of Education, Old Secretariat, Delhi. 2. Deputy Director of Education, Distt. South Zone, Defence Colony, New Delhi. -Respondents (By Advocate Shri H.K. Gangwani) O R D E R Honble Mr. Shanker Raju, Member (J):
Through this OA applicant impugns respondents orders dated 19.01.2008 and 23.06.2009, whereby the pensionary benefits have been denied to her as also the benefit of service rendered with Haryana Government has been denied. Simultaneously, a recovery of Rs.2,68,007/- on account of grant of senior scale has been effected. Applicant seeks refund of the recovered amount with interest and also payment of full pension, DCRG and other retiral duties with interest.
2. Applicant was appointed as a Trained Graduate Teacher (Social Science) under the Govt. of Haryana on 21.9.1968. She was appointed on 16.7.1983 on deputation basis initially for a period of one year, which was extendable to three years. On acceptance of technical resignation an order passed on 1.3.1985 permanently absorbed applicant and on 8.8.1986 she was informed by the Administrator as to approval of permanent absorption. It was made clear that she will be treated as a fresh entrant in the Directorate and no benefit of past service in her parent department will be given for the purpose of her pay fixation or any other consideration whatsoever and no liability towards pension of Delhi Administration. However, a corrigendum was issued on 12.8.1993 where the conditions of service contained in the memorandum issued to applicant on 1.3.1985 changed the designation of her appointment as transfer on deputation with restoration of basic pay drawn in Haryana Govt. However, the conditions stipulated on 1.8.1986 were retained. Applicant later on completion of 12 years service was accorded the senior scale as per the methodology under the Rules but had been denied the selection scale. The senior scale was granted on 16.7.1988 w.e.f. 1.1.1986.
2. Applicant retired on attaining the age of superannuation w.e.f. 31.8.2007 and had raised her pension case on which on 19.1.2008 certain queries have been put as to drawl of pro rata benefits from Government of Haryana as pension liability. Also re-fixation of pay from 16.07.1983 and excess payment has been sought to be recovered without any fault of applicant. Applicant represented to the respondents and also filed OA before the Tribunal, of which directions stood complied with by an order dated 23.6.2009 and on account of non-deposition of pro rata benefits in lieu of service rendered in Haryana govt. it has not been counted towards qualifying service and recovery on account of grant of senior scale has been ordered and effected.
3. Learned counsel of applicant, at the outset, states that an order passed on 12.8.1993 whereby transfer on deputation of applicant has been construed as fresh appointment. As per Rule 14 (3) of the CCS (Pension) Rules, 1972, where a Govt. servant belonging to State Govt. on permanent transfer to a post, the continuous service rendered under the State Govt. followed without interpretation by substantive appointment rendered under that Govt. in an officiating capacity, shall qualify. It is in this regard stated that the pension liability is to be borne by the respondents and has relied upon the Govt. of India, Ministry of Finance OM dated 9.10.1986, where a decision was taken that pension liability, including seniority is to be borne fully by the Central Govt. on permanent transfer and more particularly by the Govt. to which the applicant belongs to and working at the time of retirement. It is also stated by the learned counsel of applicant that in an identical case in Smt. Ramesh Thakkar v. Govt. of NCT of Delhi through its Secretary-cum-Director of Education and ors., OA No.1894/2008, decided on 30.01.2009 the benefits have been allowed, which on all fours covers the claim of applicant.
4. On the other hand, learned counsel of respondents would vehemently oppose the contentions and stated that as per the terms and conditions applicant was appointed afresh to which she had given her acceptance and the corrigendum changing the nomenclature had not altered the conditions of letter dated 8.8.1986 where pension liability is to be borne by the State of Haryana and also seniority has to be counted from the date of taking over the charge. It is also stated that the applicant has been given senior scale wrongly treating the erstwhile period towards seniority, which has been rectified as a mistake, does not suffer from any legal infirmity.
5. In the additional affidavit filed by the respondents it is stated that the department has not accepted the eligibility of grant of seniority and no benefits of past service in the Haryana Govt. will be given for the purpose of pay fixation. It is also stated that the applicant has not stated any thing regarding seniority and senior scale and regarding discrimination to the identically situated Smt. Jagdish Kaur no particulars have been assigned.
6. We have carefully considered the rival contentions of the parties and perused the material on record. In service jurisprudence while the respondents act as a model employer they cannot approbate and reprobate simultaneously. Applicant, who has tendered her technical resignation from State of Haryana had joined an equivalent post, which was treated earlier as a fresh appointment but later on the service condition dated 8.8.1986 reiterated seniority not to be granted and pension liability is to be borne by the applicant. This has resulted in corrigendum issued on 12.8.1993 where the appointment has been treated as transfer of government servant on deputation. It is trite that when administrative instructions are issued, whereas the statutory rules hold the field, the latter shall prevail over the administrative instructions. As per Rule 14 of the Pension Rules ibid one who is working in State Govt. when as a decision of the Govt. is permanently transferred to a post under the Central Govt. the continuity of service shall qualify. Furthermore, Ministry of Finance instructions ibid allows pension liability to be borne by the Central Govt., as applicant was working at the time of retirement under the Govt. Counting of service has been well laid by the Govt. of India, Ministry of Finance OM dated 30.6.1976, as such keeping in light the general principle that on permanent transfer one cannot lock service both for the purpose of seniority and qualifying service for pension a right, may be of the respondents, has created senior scale to the applicant, yet in consonance with their corrigendum it has been divested from the applicant after retirement without any fault attributable to her, which cannot be countenanced in the light of the decision of the Apex Court in Paras nath Singh v. State of Bihar, 2009 (6) SCALE 157. Moreover, if statutory Rule-14 ibid and Ministry of Finance OM apply and mandate Central Govt. to have the liability of pension on permanent transfer the earlier order and terms of conditions, which even were accepted by the applicant since been changed in nomenclature subsequently by the respondents, this corrigendum as an administrative instruction being a clarification would relate back to the date of issue of the original appointment letter and conditions laid down for transfer of applicant would be treated as its part, as held by the Apex Court in S.S. Grewal v. State of Punjab, (1993) SCC (L&S) 1098.
7. In the above view of the matter, the conditions of service in letter of 1986 being contrary to Rule 14, shall not be pressed. The stand taken by the respondents in their impugned orders cannot be sustained in law.
8. Resultantly, for the foregoing reasons, OA is allowed. Impugned orders are set aside. Respondents are directed to count past service in Haryana Govt. rendered by the applicant towards qualifying service of applicant for all purposes, including selection grade. The recovery effected from the applicant shall be restored back to her as well as the pensionary benefits, including DCRG and leave encashment shall be re-worked and arrears thereof shall be paid to the applicant. All these amounts shall entail an interest @9% per annum from 31.7.2008 till it is paid to the applicant. The respondents are further directed to disburse the aforesaid payment within a period of two months from the date of receipt of a copy of this order. No costs.
(S.P. Singh) (Shanker Raju) Member (A) Member (J) San.