Central Administrative Tribunal - Kolkata
Biswajit Barua vs Eastern Railway on 18 April, 2022
CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA Date of Order: 18.04.2022 O.A. No. 350/276/2022 Coram: Hon'ble Ms. Bidisha Banerjee, Judicial Member In the matter of : Biswajit Barua, Son of Late Sudhindra Barua, aged about 47 years, working as Khalasi Helper under SSE/T/CNL/HWH(MW), residing at A-53, Sarada Ma Upnibesh, Joy Rampur Jala Road, Behala, Kolkata- 700060 (Mob. NO. 9088317187) Email Id- [email protected] peeteeees Applicant -Versus- 1. Union of India through the General Manager, Eastern Railway, Fairlie Place, Kolkata -- 700001. 2. The Chief Personnel Officer, Eastern Railway, Fairlie Place, Kolkata -- 700001. 3. The Sr. Divisional Personnel Officer, Eastern Railway, Howrah, PO+PS Howrah -- 711101. 4, The Secretary to the Government of India, Ministry of Personnel, Public Grievances and - Pension, Department of Personnel and Training, North Block, New Delhi -- 110001. veceaee Respondents For The Applicant(s): Mr. A. Chakraborty; Counsel For The Respondent(s): Ms. D. Ghosh Dastidar, Counsel ORDER(RAL Per: Ms. Bidisha Banerjee, Member (J)
Heard Ld. Counsels for both sides.
2. This application has been preferred to seek the following relief:
"(a) Order dated 04.12.2020 cannot be sustained in the eye of law and same may be quashed.
(b) An Order do issue directing the respondent Nos.
1 and 2 to issue directions to the Competent Authority to grant scope of switching over to Old Pension Scheme in favour of the applicant and thereby according approval to the case of the applicant on immediate basis for extending and effecting coverage of his case under Central Services (Pension) Rule 1972 in place of National Pension System at an earliest.
(c) To grant Costs and incidentals.
(d) Any other order or orders as the Hon'ble Tribunal deems fit and proper."
This matter is taken up by Single Bench in view of the revised list dated 04.04.2000 issued under Sub-Section (6) of Section 5 of the Administrative Tribunals Act, 1985, and, as no complicated question of law is involved, this matter is taken up for disposal with the consent of both the parties.
3. The applicant herein had applied against a Joint Employment Notice bearing no. ER/1/2001 SPL by the Eastern Railway for which he appeared in the Written test, as well as in PET, in the month of July and December respectively in the year 2003. The applicant was thereafter declared successful and the selection process was completed before 01.01.2004 when the Old Pension Scheme was in effect. However, he was offered appointment only after 01.01.2004, i.e. on 26.02.2004, when the New Pension Scheme came into effect.
4, At hearing, Ld. Counsel for applicant would vociferously argue that, since the vacancies in question arose before the notification was issued with an implied promise of coverage under old rules, and, as the selection was completed before 01.01.2004, i.e. before the introduction of New Pension Scheme (NPS in short) of 01.01.2004, but the orders could only be issued after 01.01.2004 on account of delay caused by the concerned authorities, his client should be covered by the Old Pension Rules of 1972, in terms of the DOPT notification dated 17.02.2020 itself.
Further in support, Ld. Counsel would cite the decision of the Hon'ble High Court at Delhi in WP (C) No. 2810/2016 in the case of Inspector Rajendra Singh & Ors. vs. UOI & 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.
Ld. Counsel for applicant would also place the decision of Hon'ble Apex Court in the case of UOI Vs Shabad Prakash Punia SLP (C) No. 7373/2021 and 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 22nd December, 2003, and implemented with effect from 1st 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 & Ors., W.P. (C) 11646/2018;
(ii) Tanaka Ram & Ors. vs. Union of India & Ors., 2019 (174) DRJ 146 (DB);
(if) Shyam Kumar Choudhary and Ors. vs, Union of India being WP. (C } No. 1358 of 2077 and fiv} Niraj Kumar Singh & Ors. vs. Union of India & Ors, W.P. (C } No. 13429 /2019.
The Hon'ble Court therein held as under:
"8. The issue in the preseat batch of matters is no longer res integra: Consequently, the requent for adiitional time te file counter-affidavit is declined,
2 In che case of certain constables of the BSF, Gus Court ay 1s. judgment dated 22 February, 2029 in Tanaka Rani (supra} Glewed the prayer of those Petitioners asd permitted them bo avail of the benefitof the Old Pensian Scheme it was held that the option to continue the Gld Pension Scheme should be extended to all those wha has been selected ia the examination conducted in 8003, hut were issued call letters aniy in January ar February, 2004. lois also pertinent to mention that the Respondents aggrieved ly the said judgment fled an SLP bearing No. BNg28/2018 before the Apes Court The said SEP has been dismissed by the Supreme Court vide order dated 02% September, 2079, 1@ This Court it Shyam Kumar Choudhary and Ors. vs, Union of India being W.P.(C) No, 1358 of 2017 allowed similar petitions vide judgment dated G9 April, 2079 against which the Respondents had again filed SLP bearing no. B1539/2019 whieh was again dismissed on 25° September, 2019. The Respomslents thereafter chose to fille @ raview petition bearing no. 2188/2020 before the Apes Court in the seid matter and the said Review petigion wasiuse disn issed-an merits vide arder dated 24" November, 2020. Li, Following the fadgment of Shyam Rumar Choudhary fsupre), the learned predecessor Divisian Bench in Niraj Kumar Singh ard Ors, Vs. Unton of India & Ors, WPC) No, 1322972079 granted similar benefit fo 17 petitioners who had anplied to the postaf Sub-Inspector in Cantral Police Organisations parsua mt to.an advertisement dated 218 june, 2002 even when the writtin exuniinadion gn d pliysical efficiency tast were held in November, 2002, medical examination was held in January-February, 2004 and Final result wos declared in Nay, #064, The sait 1? petitioners were tseved offer of appointment an 025% fund, 2003 and on accepting the same, the agpointatent letter wes issued on 14% July, 2005 for foining the Sashastra Seema Bal.
ren Another Coordinate Bench vide judgment dated O6* November, 2020 in WePaG) No, 6548 of 2020 as well as 6985/2020 was pleased to allow the said petitions for grant of Old Pension Scheme hy following the judgment in Shyam Kumar Chaudhary {supra}.
is. Having regard ta tre face thot in the present batch ef gases alsa the advertisement/netification was issued in September. 2003 and June, 2008 Le grior te coming into farce af the present contributory persion scueme On 220? December, 2003, this Court is of tie view thor petitinners cannot be deprived of the benwit of the Old Pension scheme.
a4 This ig more so when the batchmates of the petitioners are getting Hus benefit wider various judgments passed by this Court rs, Por the above reasons, the petitioners are allowed. Respondents are directed 63, extend the benefit of Old Pension Scheme to each of these. Petittuners grit pass consequential orders within a period of eight weeks from taday,
16. Accordingly, the writ petitions along with pending applications stand disposed af"
The decision wag rendered on 15.01.2021 by the Hon'ble High Court at New Delhi and the decision in one of such Writ Petitions bearing No. WP (02)9259/2080, was assailed before the Hon'ble Apex Court in SLP No. 7375/2021 but the SLP was dismissed on 09.07.2021.
fori Therefore, Ld. Counsel for the applicant would vociferously contend that the issue has attained a finality that, where the vacancies arose and the notification to fill up vacancies wag published before O1.01,2004, the recruitment process Was also initiated as also the results were published prior to 01.01.2004, but the appointment letters could be issued only after 01.01.2004, the incumbents would still be governed by the Old Pension Rules of 1978, as in the decisions quoted supra.
Ld. Counsel would also refer to the judgment of this Tribunal in OA. 1815 of 2021 (Prem Kumar Vs 58 Railway) and analogous matters which is taken on record.
6. Ld. Counsel for respondents would fairly agree that the matter can be remanded back to the authorities for a fresh consideration in the light of the decision in Inspector Rajendra Singh & Ors. vs. UOT & Ors., asx well as in Shabad Prakash Punia & Ors. ys. UOL & Ors. referred to supra, Therefore, the instant O.A. is hereby be disposed of with a direction upon the respondent authorities te consider the representation af the applicant dated 22.05.2020 (at Annexure A-5 to the O.A) and te address the grievance of the applicant in the light of the DoPT O.M. dated
17.02.2020, as well as, the decisions cited supra and ta pass ar appropriate order within 3 months from the date of receipt of a copy of -
this order.
~} The O.A., accordingly, stands disposed of. No costs.
(Bidisha Banerjee) Member (J) Us