Central Administrative Tribunal - Delhi
Dr. S.D. Pradhan vs National Security Council Secretariat on 21 October, 2013
Central Administrative Tribunal Principal Bench OA No. 2250/2012 Reserved on: 10.07.2013 Pronounced on:21.10.2013 Honble Dr. Birendra Kumar Sinha, Member (A) Dr. S.D. Pradhan Flat No. 1D, 253 West End Road, Kohinoor Enclave, Saidullahjab, New Delhi. Applicant (By Advocate: Shri A.N. Singh & Ms. Bushra Parveen) Versus 1. National Security Council Secretariat, Represented by its Secretary, East Block 10, Level IV, R.K. Puram, New Delhi 110 066 3rd Floor, Sardar Patel Bhawan, Sansad Marg, New Delhi-110 001. 2. Union of India, M/o Personnel, Public Grievances & Pensions, Department of Pension & Pensioners Welfare Lok Nayak Bhawan, New Delhi. .Respondents (By Advocate: Sh. D.S. Mahendru) O R D E R
The instant Original Application is directed against the impugned order dated 08.05.2012 issued by the Deputy Secretary (Admn.) of National Security Council Secretariat (hereinafter referred to as NSCS) by which the applicant has been denied revision of his pension in terms of OM dated 10.12.2009. By filing this Original Application, the applicant has sought the following relief(s):-
8.1.1 To quash order No.38012/1/2008-Ad (SDP)Vol.II dated 8.5.2012 of Deputy Secretary (Admn.), Government of India, National Security Council Secretariat.
8.1.2 To grant pension at the rate of Rs.40,000/- w.e.f. 1.3.2008 in accordance with OM dt. 10.12.2009.
8.1.3 Direct that the arrears be paid to the Applicant with interest at the rate of 18% per annum.
8.1.4 Pass such order or further orders as this Honble Tribunal may deem fit and necessary in the facts and circumstances of the case.
2. The case of the applicant, in brief, is that he had joined Punjabi University, Patiala (hereinafter referred to as University) as Lecturer on 12.08.1970 and was subsequently promoted as Reader. On 23.04.1984, the applicant was appointed as Joint Editor in Ministry of Defence on deputation basis in the pay scale of Rs.3700-5700/- for a period of two years. The deputation of the applicant was extended from time to time. On 29.06.1989, the applicant joined as Director/Deputy Secretary with the NSCS-respondent no.1, which had borrowed his services from the Ministry of Defence. On 01.07.1991, the respondent no.1 had requested the Punjabi University for extension of the period of deputation of the applicant beyond June, 1991, which was declined. As a consequence thereof, the applicant took premature retirement from the University with effect from the same date. The services of the applicant were reckoned from 12.08.1970 to 30.06.1991. It is the case of the applicant that initially only Contributory Provident Fund Scheme (hereinafter referred to as CPF) was available in the University but later the pensionary benefits, which came into force w.e.f. 01.01.1996, were made available to all pensioners with retrospective effect. The applicant on this count was granted the pension @ Rs.1639/- per month, which was subsequently revised to Rs.4400/- per month. The applicant was absorbed in the respondent no.1 organization as Joint Secretary in the pay scale of Rs.18400-22400/- w.e.f. 07.06.2001. On 18.06.2001, his services, which had been on contract basis, were regularized with a commitment that he would be entitled to the benefit of past service as admissible under Rule 17 of the CCS (Pension) Rules, 1972 (hereinafter referred to as the Pension Rules). The applicant further contends that his case was examined by the respondents wherein it was decided that he was entitled to retention of pensionary benefits for past service as per para 5(1) of the OM dated 29.08.1984 and his past contract service would be reckoned w.e.f. 01.07.1991 prior to his regularization. Subsequently, the applicant was promoted to the rank of Additional Secretary with the respondent no.1 and thereafter he was appointed as Chairman, Joint Intelligence Committee in the rank and pay of Secretary to the Government of India for a period of two years on 27.02.2006 from where he finally retired on 29.02.2008.
3. The grievance of the applicant is that his pension was revised w.e.f. 01.03.2008 to basic pension of Rs. 25,455/-. On 10.12.2009, the Government of India modified its earlier OM and decided that the full pension would be delinked from the earlier qualifying service of 33 years w.e.f. 01.01.2006 instead of 02.09.2008. The applicant submitted representation for revision of his pension in accordance with OM dated 10.12.2009 which was denied by the respondents vide the impugned order on the ground that none other than re-employed ex-servicemen are allowed a second pension under Rule 7(2) of the Pension Rules. All those in receipt of pension/pensionary benefits or even CPF benefits are considered to be re-employed pensioners except for those who retired under Rule 18 of the Pension Rules on invalid pension or gratuity or on compensation pension. The order further stated that the appointing authority had ignored the expressed provision of the Pension Rules that unless the grant of the second pension is actually regularized by relaxing the provision of Rule 7(2) of the Pension Rules with the approval of the Secretary to the Administrative Department, it would remain irregular.
4. The applicant has challenged this order on the following grounds:-
The applicant had rendered service with the Central Government for 16 years & 8 months w.e.f. 01.07.1991 to 29.02.2008 and a period of 4 years & 2 months under Rule 30 of the Pension Rules was added, which entitled the applicant to the benefits of the OM dated 10.12.2009. It is also contended by the applicant that when all similarly persons had been granted the benefits of the aforesaid OM dated 10.12.2009, he cannot be discriminated on this account.
The respondents have never raised any dispute about the calculation of pension, therefore, the benefit of OM dated 10.12.2009 was only consequential and did not require re-determination of his pensionable service. The applicant has relied upon the decided case of the Honble Supreme Court in the matter of Motilal Padampat Sugar Mills versus State of U.P. [1979 (2) SCC 409 pg. 442 (para 24)] wherein it has been held that fixation of pension entails constitutional promises and the doctrine of legitimate expectation also applies which imposes a duty on the Public Authority to act fairly as held by the Honble Supreme Court in the matter of Navjyoti Co-operative Group Housing Society Versus Union of India [1992 (4) SCC 477].
The other submission of the applicant is that his case is covered under the mobility rules according to which an employee can earn two separate pensions and/or to have one pension for combined service. He has contended that the observation of the respondents that none is allowed to receive superannuation pension or retiring pension except for ex-servicemen re-employed is not correct under the Pension Rules. A person, who retired on superannuation pension or retiring pension, was subsequently employed shall not be entitled to a separate pension for the period of his re-employment. Here, the applicant is not re-employed but was absorbed in NSCS when his lien in the University came to an end and he was regularized with clear stipulation that he would be entitled to his past benefits under Rule 17 of the Pension Rules.
The applicant has relied upon the decision of the Honble High Court in the matter of Union of India versus E. Shreedharan [LPA No.242 of 2009] which holds that in the re-employment, the employment should be on the same post, similar post or in the same department or in the same channel of promotion. However, here this case is not applicable as the applicant was assigned a different post in a different channel of promotion and he rose even to the rank of the Secretary to the Government of India.
The applicant has also relied upon the report of the 6th Central Pay Commission, paragraph 5.1.33 whereof states that qualifying service will cease to have any relevance as full pension will be payable once minimum pensionable service is put in without any reference to qualifying service. The applicant further submits that his employment in the University was not a Government employment as the University is an autonomous statutory body and, therefore, is controlled by the statute. The applicant has relied upon the decisions of the Honble Supreme Court in the matter of State of Assam and Others versus Kanak Chandra Dutta [AIR 1967 (SC) 994]; Dr. S.L. Agrawal versus The General Manager, Hindustan Steel Ltd. [AIR 1970 (SC) 1150]; and Tekraj Vasandi Alias K.L. Basandhi versus Union of India & Others [AIR 1988 (SC) 469]. What the applicant submits is that his pension of Rs. 4400/- (after revision) was not counted towards his appointment in the government organization i.e. NSCS. The OM dated 29.02.2008 makes it clear that such an employee shall have the option to retain such benefits but in that event his past service will not qualify for pension under the Central Government. The Department of Pension has mentioned in its note dated 29.10.2001 that the applicant had exercised option for retention of pensionary benefits for the past service as provided in para 5 (1) of O.M. dated 29.08.1984.
5. The respondents have filed their counter affidavit in which they have denied the prayer for relief of the applicant. However, they have stated that the pension of the applicant was revised to Rs.25,455/- w.e.f. 01.03.2008. As per para 5.2 and 5.3 of the OM dated 02.09.2008 of the Department of Pension & Pensioners Welfare, once a government servant becomes entitled to pension on completion of 20 years/10 years of qualifying service, he shall be entitled to 50% of the emoluments or average emoluments received during the last 10 months, whichever is beneficial to him. However, para 7.1 of the OM ibid further decides that in view of revised provisions for computation of pension in paragraph 5, the extant benefit of added years of qualifying service for the purpose of computation of pension provided under Rules 29, 29-A 30, 48-B and 48-C of the Pension Rules were withdrawn w.e.f. 02.09.2008. The revised provisions for calculation of pension were to come into effect w.e.f. 01.01.2006. In view of the above, the benefit of added qualifying service of 4 years and 2 months allowed to the applicant while revising his pension w.e.f. 01.03.2008 had to be withdrawn and thereby bringing his total service for the purpose of pension to 16 years & 8 months instead of 20 years & 10 months. The respondents have further submitted that para 5.5 of the GOI decision No.4, below Rule 49 of the Pension Rules, provides that w.e.f. 01.01.2006, the amount of pension shall be subject to a minimum of Rs.3500/- and maximum upto 50% of highest pay in the Government. The respondents have argued that if two pensions to be added in the case of the applicant, his pension would come to Rs. 51,210/- [i.e. Rs.40,000/- + Rs.11,210/- being drawn from Punjabi University = Rs.51,210) and the same would exceed the maximum pension entitled to an officer drawing highest pay in the Government. This will be in violation of Rule 49 of the Pension Rules. The respondents have, therefore, argued that the applicant should approach respondent no.1 for authorization of revised pension in accordance with the provisions contained in Rule 18 (3) of the Pension Rules which stipulates that the pension or gratuity admissible for his subsequent service is subject to the limitation stated above. The respondents have, therefore, urged that the Original Application may be dismissed being devoid of merit.
6. I have carefully perused the pleadings of the parties as also the documents submitted by them. I have also carefully listened the arguments advanced by the learned counsels of the parties and on the basis thereof, I find that the following issues emerge which need to be decided:-
Whether the instant case is one of re-employment or absorption?
Whether the provisions of Rule 7(2) of the CCS (Pension) Rules, 1972 will be applicable to the facts of this case?
Whether the respondents are precluded from re-opening the case after determination of the pension in the year 2008 on account of application of law of estoppels on the subject?
What relief, if any, can be granted to the applicant?
7. In so far as the issue no.1 is concerned, it is an admitted position that the applicant was employed from 12.08.1970 to 30.06.1991 with Punjabi University as Lecturer and later promoted to the post of Reader. It is further admitted that Ministry of Defence availed of the services of the applicant, and that in 1991, the respondent no.1 had requested the University to extend the period of deputation of the applicant beyond 1991 to which the University did not agree. As a result of this, the applicant took voluntary retirement. At the time of the voluntary retirement, the University was governed by the Contributory Provident Fund Scheme (hereinafter referred to as CPF). Pensionary benefits Scheme was introduced w.e.f. 01.01.1996 and the same was made applicable to all the pensioners including the applicant, who was granted the pension at Rs. 1639/- per month which was later revised to Rs.4400/- per month. It is also a matter of fact that the services of the applicant were initially on contract basis and were regularized on 18.06.2001. Subsequently, the applicant retired as Chairman of the Joint Intelligence Committee in the rank of Joint Secretary on 29.02.2008 after having served for a period of two years. In this regard, it is necessary to look at the order of absorption, communicated vide order dated 18.06.2001, which reads a under:-
Consequent upon his absorption in the National Security Council Secretariat (vide DOP&T OM No.15/8/2001-EO (SM-II) dated 7.6.2001), the President is pleased to appoint Dr. S.D. Pradhan as Joint Secretary in the pay scale of Rs.18,400-22,400/- with effect from the forenoon of 7th June, 2001 until further orders.
Dr. S.D. Pradhan will be entitled to the benefit of past service admissible under Rule 17 of CCS (Pension) Rules.
8. It appears from the perusal of the above that there was a reference regarding counting of service admissible under Rule 17 of the Pension Rules in respect of the applicant. However, for the sake of better illustration, Rule 17 is being reproduced as follows:-
17. Counting of service on contract A person who is initially engaged by the Government on a contract for a specified period and is subsequently appointed to the same or another post in a substantive capacity in a pensionable establishment without interruption of duty, may opt either to retain the Government contribution in the Contributory Provident Fund with interest thereon including any other compensation for that service; or to agree to refund to the Government the monetary benefits referred to in Clause (a) or to gorgo the same if they have not been paid to him and count in lieu thereof the service for which the aforesaid monetary benefits may have been payable.
The option under sub-rule (1) shall be communicated to the Head of Office under intimation to the Accounts Officer within a period of three months from the date of issue of the order of permanent transfer to pensionable service, or if the Government servant is on leave on that day, within three months of his return from leave, whichever is later.
If no communication is received by the Head of Office within the period referred to in sub-rule (2), the government servant shall be deemed to have opted for the retention of the monetary benefits payable or paid to him on account of service rendered on contract.
9. It appears from the above that there are two routes open for a person who has been absorbed after having served for a certain period on contract basis. In the first instance, he may retain contribution in the CPF. Alternatively such employee may agree to refund to the government the monetary benefits received by him with interest thereon or to forgo the same and count the service for which the aforesaid monetary benefits were payable or paid. This option is to be communicated to the Accounts Officer within a period of three months from the date of issue of the order of permanent transfer to pensionable establishment. Here in this case, it is an admitted fact that the CPF contributions were not drawn by the applicant as is evident from the note dated 29.06.2001 (Annexure A-3) which states that Dr. S.D. Pradhan has not received CPF or any other terminal benefits from the Government for the period he served on contract in JIC/NSCS and he has desired to forego the benefits to count in lieu thereof the service rendered since 1.7.91. The respondent no.1 in its note dated 14.08.2001, submitted for re-consideration, has placed reliance on para 5(1) of DP&ARs OM 28.09.1984, wherein it has been provided as under:-
5(1) The employees of a Central Autonomous Body or Central Government, as the case may be, who have already been sanctioned or have received pro rata retirement benefits or other terminal benefits for their past service will have the option either to retain such benefits and in that event their past service will not qualify for pension under the Autonomous Body or the Central Government, as the case may be; or to have the past service counted as qualifying service for pension under the new organization in which case the pro rata retirement or other terminal benefits, if already received by them, will have to be deposited along with interest thereon from the date of receipt of those benefits till the date of deposit with the Autonomous Body or the Central government, as the case may be. The right to count previous service as qualifying service shall not revive until the whole amount has been refunded. In other cases where pro rata retirement benefits have already been sanctioned but have not yet become payable, the concerned authorities shall cancel the sanction as soon as the individual concerned opts for counting of his previous service for pension and inform the individual in writing about accepting his option and cancellation of the sanction. The option shall be exercised within a period of one year from the date of issue of these orders. If no option is exercised by such employees within the prescribed time-limit, they will be deemed to have opted for retention of the benefits already received by them. The option once exercised shall be final.
10. These facts were taken into consideration by the Department of Pension & PW which re-considered its earlier decision and held as under:-
5. On reconsideration of the case it has been observed that Dr. Pradhan has been appointed on regular basis as Joint Secretary in NSCS on 7-6-2001. Under Rule 17 of CCS (P) Rules, he will become eligible w.e.f. the date of substantive appointment, for counting of past contract service rendered in NSCS w.e.f. 1-7-1991 prior to regular appointment in Government Service. It may be seen from the Provident Fund Statement placed in the file that it contains element of government contribution to the tune of Rs.105889/-. Cabinet Secretariat may ensure that above amount of Government Contribution alongwith interest, may be transferred to Government accounts on counting of contract service a the time of substantive appointment.
11. The bar imposed under Rule 2(g) that the Pension Rules will not apply to persons employed on contact, except when the contract provides otherwise, is not applicable to the facts of the instant case. It is also a fact that the applicants request to consider adding of his past service with his erstwhile employer i.e. the Punjabi University to that in NSCS was declined. It was decided that once the applicant has exercised his option for retention of the monetary benefits qua the past service, it could not be counted towards the Government Service for the purpose of pension.
12. I further take note of the fact that the Punjabi University is an Autonomous Body and is governed by different sets of rules. There was no Pension scheme in the year 1991 when the applicant took voluntary retirement but the same was introduced subsequently in the year 1996 with retrospective effect. Assuming, had the Pension Scheme not been introduced or it had not been given retrospective effect, the applicant would not have received pension and would have had to remain contended with the CPF. Thus, I find substance in the argument of the applicant that his initial employment with the Ministry of Defence and subsequently with the NSCS respondent no.1 was not a re-employment but altogether a new employment in an organization having different hierarchy, different promotional rules and different establishment. Thus, this issue is answered in favour of the applicant.
13. Now I take up the second issue. It has already been covered while dealing with issue no.1. The answer is very simple in this respect that once it has been decided in respect of issue no.1 that the employment of the applicant with Ministry of Defence and subsequently with the respondent no.1 was not a case of re-employment, it is obvious that the provision of Rule 7(2) will not apply to the facts of the instant case as it is only applicable to a case of re-employment. The provision of Rule 19 of the Pension Rules will also not apply to the case of the applicant as he is not the military personnel. To the contrary, I find that the provision of Rule 17(1) will apply as the applicant fulfills the conditions laid down under these rules. The applicant was admittedly engaged by the Government on deputation in the year 1984. Subsequent to his taking voluntary retirement in the year 1991 he was engaged on contract basis. Thus it is not that the employment of the applicant with the Ministry of Defence and with respondent no.1 was something that has taken place after his voluntary retirement. It was in fact continuing well before the period of voluntary retirement. I also take into consideration the fact that during the period of contract employment, the applicant had been given several promotions. In this respect, the contract employment was as good as the regular employment. As has already been discussed above, at the time of absorption, the applicant had not taken the monetary benefit for his contract period of employment. Under these circumstances, there is full application of Rule 17 of the Pension Rules. This question is accordingly answered in favour of the applicant.
14. As regards Issue no.3, it is an admitted fact that at the time of absorption of the applicant, it was clearly stipulated that his services rendered on contract basis will be admissible under Rule 17 of the Pension Rules and the same will include for all purposes including the pensionary purpose. Thereafter, the applicant retired on 29.02.2008 and was granted pension vide OM dated 23.04.2008. Perusal of this OM, which has been annexed at Annexure A-6, reveals that the period of length of qualifying service has been taken as 20 years and 10 months (16 years and 8 months w.e.f. 01.07.1991 to 29.02.2008 (+) 4 years & 2 months added service of benefit under Rule of Pension Rules = 42 six monthly period of service. It is also an admitted fact that the applicants pension was revised w.e.f. 01.03.2008 vide order dated 06.02.2009. The note of this order mentions For post 2006 Pensioners, only 40% of pension amount may be paid in 2008-2009 and revised Gratuity/Commutation amount, wherever applicable, should be paid in full (100%). Para 3.1 of the Memorandum dated 02.09.2008 provides that the revised provisions shall apply to Government servants who retire/die in harness on or after 01.01.2006. Para 5.2 to 5.4 further provide that -
5.2 Linkage of full pension with 33 years of qualifying service shall be dispensed with. Once a Government servant has rendered the minimum qualifying service of twenty years, pension shall be paid at 50% of the emolument or average emoluments received during the last 10 months, whichever is more beneficial to him.
5.3 In cases where Government servant becomes entitled to pension on completion of 10 years of qualifying service in accordance with Rule 49(2) of the CCS (Pension) Rules, 1972, pension in those cases shall also be paid at 50% of the emoluments or average emoluments, whichever is more beneficial to the Government servant.
5.4 The revised provisions for calculation of pension in para 5.2 and para 5.3 above shall come into force with effect from the date of issue of this O.M. and shall be applicable to Government servants retiring on or after that date. The government servants who have retired on or after 01.01.2006 but before the date of issue of this O.M. will continue to be governed by the Rules/orders which were in force immediately before coming into effect of these orders.
15. It is to be noted in this regard that admittedly the pension of the applicant had already been revised vide OM dated 06.02.2009. In this regard, I find that there were ample opportunities for the respondent no.1 to take a stand otherwise. In the first instance, having issued the letter of appointment with stipulation of counting of the contract period and after having served, fixed the pension, I find that the estoppel will apply against the respondents for taking the stand as has been taken in the impugned order dated 08.05.2012. This issue is accordingly answered in favour of the applicant.
16. Now coming to the last issue, I take a note of the argument that the pension of the applicant being drawn from the Punjabi University and from his last employer will exceed the maximum benefit entitled to an officer drawing the highest pay in the Government in violation of Rule 49 of the Pension Rules. For the ample elucidation, Rule 49 of Pension Rules is reproduced below:-
49. Amount of Pension In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half months emoluments for every completed six months period of qualifying service.
(a) In the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less than thirty-three years, the amount of pension shall be calculated at fifty per cent of average emoluments, subject to a maximum of four thousand and five hundred rupees per mensum.
(b) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of thirty five years, but after completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible under Clause (a) and in no case the amount of pension shall be less than rupees three hundred and seventy five per mensem;
(c) notwithstanding anything contained in Clause (a) and Clause (b), the amount of invalid pension shall not be less than the amount of family pension admissible under sub-rule (2) of Rule 54.
In calculating the length of qualifying service, fraction of a year equal to three months and above shall be treated as a completed one half year and reckoned as qualifying service.
The amount of pension finally determined under Clause (a) or Clause (b) of sub-rule (2), shall be expressed in whole rupees and where the pension contains a fraction of a reupee, it shall be rounded off to the next higher rupee. I further find that the deeming clause placed upon the pension is not there.
17. In consideration of the above facts and the issues having been answered, the way that they have been, I, therefore, allow the Original Application with the following directives:-
The Impugned order dated 08.05.2012 issued by the Deputy Secretary is quashed and set aside;
The applicant is entitled to draw pension at 50% of the last pay drawn w.e.f. 29.02.2008;
The respondents are directed to pay the arrears to the applicant with interest at the rate admissible to the GPF from its due date; and There shall be no order as to costs.
(Dr. Birendra Kumar Sinha) Member (A) /naresh/