Central Administrative Tribunal - Mumbai
P G Adsule vs Indian Council Of Agricultural ... on 18 April, 2024
1 OA No. 52/2016 CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAT BENCH, MUMBAI. ORIGINAL APPLICATION No.52/2016 Dated this "Thussday the 6 april, 2024 ~J CORAM: Mz. Justice Ranjit More, Chairman Mr. Shri Krishna, Member (A) Dr. P.G. Adsule Indian Inhabitant Presently aged 64 years, Retired as Director, National Research Center for Graps, Residing at 103, Span-O-Life, Opp. Sweets India/Mio Plaza, BON IT Park, WTC Square, Kharadi, Pune ~ 410 014. ... Applicant ( By Advocate Shri L.S. Shetty ) VERSUS 1. Indian Council of Agricultural Research, A Society Registered under the Societies Registration Act, 1864 Through its Director General and secretary, Department of Agriculture, Research and Education (DARE), Government of India, Ministry of Agriculture having office at Krishi Bhavan, New Delhi ~- 110 O01. 2. The Chief Finance Officer Pension Authorizing Authority, ICAR- Central Institute for Research, on Cotton Technology (Indian Council of Agricultural Research) Having Office at Adenwala Road, Matunga, Mumbai - 400 019. 2 OA No. 52/2016 3. Union of India through the Secretary, Ministry of Agriculture, Krishi Bhavan, New Delhi ~ 110 OO1. ... Respondents ( By Advocate Shri Rakesh lL. Singh ) ORDER _ Per: Mr. Shri Krishna, Member (A)
Aggrieved by the impugned order dated 26.12.2013, the applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 to claim the following reliefs:-~ "(a@) Call for the records and proceedings underlying the impugned order dated 26.12.2013 and impugned letter dated 22.08.2015 (Annexure "A-1" and "A-2" hereto) and ajier examining the legality, regularity, validity and propriety of the same to quash and set aside them.
(6) Declare that his appointment with the First respondent on and from 01.06.1999 upto 31.05.2013 is not by way of re-employment as a re-emploved pensioner and that it is in continuous service with earlier service rendered by him from 01.09.1976 to 31.05.1999 without any break and that he is entitled to receive pension and pensionary benefits on and from 01.07.2013 every month onwards in accordance with the Pension Rules.
(c) To direct the respondents to pay to the applicant, the pension and pensionery benefits viz. Death-cum-retirement, Gratuity, Commutation of Pension etc. every month from 01.07.2013 onwards as admissible in accordance with the Pension Rules and also to pay the arrears of Pension and Pensionary benefits as admissible as per the said rules to him alongwith interest @18% per annum till payment.
(d) to direct the respondents to pay to the applicant the costs of this application.
(e) For such further and other reliefs as this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case be granted."
3 OA No.52/20162. Brief facts of the case as stated by the applicant are as follows:
2.1 The applicant entered the service with Indian Council of Agricultural Research (ICAR) on 01.09.1976 and worked there till 15.04.1982 as Scientist Grade S-II. Thereafter, in response to Advertisement issued by the Union Public Service Commission (UPSC), he was appointed in the Ministry of Industry, Government of India and joined there w.e.f. 19.04.1982 and worked in the said Ministry till. 31.05.1999. His service from 19.04.1982" till 31.05.1999 was continuous service. On his retirement from Ministry of Industry, he was given the retiral dues for the service he rendered till 31.05.1999.
Thereafter, the applicant was appointed to the post of Principal Scientist (HORT), ICAR Research Complex, Goa through Agricultural Scientists Recruitment Board (ASRB) on 24.12.1998. The applicant accepted the said appointment. It was stated in the appointment letter dated 01.03.1999 that on completion of probation for a period of 2 years, he will be confirmed in the post 4. OA No.52/2016 of Principal Scientist, it being a permanent post. He was relieved from Ministry of Industry on 31.05.1999 vide letter dated 28.05.1999. He joined the post of Principal Scientist in Goa on 01.06.1999.
2.2 The applicant claims that his service from 01.09.1976 to 18.04.1982 with the ICAR, his service from 19.04.1982 to 31.05.1999 with the Ministry of Industry and his service from 01.06.1999 to 31.05.2013 are continuous and without any break, that he has not taken retirement and as such his appointment with the ICAR made on and from 01.06.1999 to 31.05.2013 was not by way of reemployment and, therefore, he is entitled for full retirement benefits for his entire service period till 31.05.2013. The applicant claims that his appointment with the ICAR made on 01.06.1999 onwards as that of reemployed pensioner as presumed and assumed in the impugned order dated 26.12.2013 and the impugned order dated 22.08.2015 is not legally permissibie. 2.3 The applicant claims that at no point of time, he filed any pension papers duly signed by him seeking payment of pension and pensionary benefits to 5 . OA No. 52/2016 him with the authorities oof the Development Commissioner of the Ministry of Industry in connection with the service rendered by him on 01.09.1976 till 31.05.1999. However, the office of the Development Commissioner requested the office of the Director, ICAR Research Complex, Goa to make available his service book and leave account which was sent to him. The accounts authorities of the office of the Development Commissioner including the Central Pension Accounting Office issued a Pension Payment Order in favour of the applicant for payment -- of monthly pension to the applicant. It is claimed by the applicant that since he has not filed any pension papers as required by the provisions of the said Pension Rules at any time in relation to his service from 01.09.1976 to 31.05.1999, the pension to him was wrongly granted.
2.4 It has been submitted that the applicant has submitted the pension papers in anticipation of his retirement on attaining the age of superannuation of 62 years in the month of May, 2013. Thereafter, the case of the applicant for payment of pension and 6 OA No. 52/2016 pensionary benefits was under scrutiny. In the month of December, 2013, the first respondent issued the impugned office order dated 26.12.2013 treating the period of service from 01.06.1999 to 31.05.2013 as that of the re-employed pensioner which was issued without giving any prior opportunity to the applicant to have his say in the matter and as such the said order was issued in violation and contravention of the principles of natural justice. It is further contended that the impugned order has been issued without any powers and jurisdiction.
2.5 It has been further stated that by the letter dated 25.08.2014 addressed by the second respondent to the Director of the National Research Centre for Grapes, Pune by referring to Rule 18 of the Pension Rules, certain clarifications were sought to take the decision on the question of payment of pension and pensionary benefits to the applicant. However, the second respondent by referring to the order dated 26.12.2013 and Rule 7(2) of Pension rules returned the pension papers without Sanctioning the payment of pension and pensionary benefits vide his 7 OA No.52/2016 letter dated 23/29.05.2015 to the Director, National Research Centre for Grapes, Pune. The second respondent vide his letter . dated 23/25.07.2015 advised the applicant to pursue the matter with the said Director who by his letters dated 03.08.2015 and 10.08.2015 addressed to the second respondent to review the decision of non-payment of pension to the applicant. The second respondent, by the impugned letter dated 22.08.2015, by referring to Rule 7(2) of the Pension Rules, conveyed his decision of non- entitlement of pension and pensionary benefits to the applicant. It has been submitted that the applicant's Claim is covered by rule 5(1) of the Pension Rules as the applicant has neither taken voluntary retirement nor he has been compulsorily retired. The applicant is also not retired from service from having been declared as surplus as mentioned in Rule 36(2) of the Pension Rules and, therefore, the applicant cannot be treated to be a person receiving retiring pension.
2.6 The applicant has placed reliance on the OM dated 29% August, 1984 issued by Department of Personnel and Administrative Reforms, Ministry of 8 OA No.52/2016 Home Affairs, particularly, on paras 3 and 5 of the OM which reads as under:
"3. This matter has been considered carefully and the President has now been pleased to decide that the case of Central Government employees going over to a Central autonomous body or vice-versa and employees of the Central autononous body moving to another Central Autononous body may be regulated as per the following provisions:
(a) In case of Autonomous Bodies where Pension Scheme is in operation.
(i) Where a Central Government employee borne on pensionable establishment is allowed to be absorbed in an autonomous body, the services rendered by him under the Government shall be allowed to be counted towards pension under the autonomous body irrespective of whether the empioyee was temporary or permanent in Governemnt The pensionary benefits will, however. accrue only if the temporary service is followed by confirmation. If he retires as a temporary employee in the autonomous body, he will get terminal benefits as are normally available to temporary employees under the Government, The same procedure will apply in the case of employee of the autonomous bodies who are permanently absorbed under ihe Ceniral Government.
The Government/autonomous body will discharge its pension liability by paying in lumpsum as a one-time payment, the pro-rata pension/service gratuity/terminal gratuity and DCRG for the service upto the date of absorption in the autonomous body/Government, as the case may be. Lumpsum amount of the pro-rata pension will be determined with reference to commutation table laid down in CCS(Commutation of Pension) Rules, 1981, as amended from time to time.
(iti) A Central Government with CPF benefits on permanent absorption in an autonomous body will have the option either to receive CPF benefits which have accrued to him from the Government and start his service afresh in that body or choose to count service rendered in Government as qualifying service for pension in the autonomous body by foregoing Government's share of CPF 9 OA No.52/2016 contiributions with interest, which will be paid to the concerned autonomous body by the concerned Government Department. The option shall be exercised within one year from the date of absorption. If no option is exercised within stipulate period, employee shall be deemed to have opted to receive CPF benefits. The option once exercised shall be Jinal.
(b) Autonomous body where the Pension Scheme is not in operation.
(i) A permanent Central Government employee borne on pensionable establishment, on absorption under such under such autonomous body will be eligible for pro-rata retirement benefits in accordance with the provisions of the Ministry of Finance O.M. No.26(18)EV(B)/75 dated 8 April, 1976, as amended from time to time. In case of quasi-permanent or temporary employees, the terminal gratuity as may be admissible under the rules would be actually payable to the individual on the date when pro- rata retirement benefits to permanent employees become payable. However, in the case of absorption of a Government employee with CPF benefits, in such an autonomous organisation, the amount of his subscriptions and the Governments' contribution, if any, together with interest thereon shall be transferred to his new Provident Fund account with the consent of that body.
(ii) An employee of an autonomous body on permanent absorption under the Central Government will have the option either to receive CPF benefits which have accrued to him from the autonomous body and start his service afresh in Government or choose to count service rendered in that body as qualifying service for pension in Government by foregoing employer's share of Contributory Fund contributions with interest thereon, which will be paid to the concerned Government Department by the autonomous body. The option shall be exercised within one year from the date of absorption. If no option is exercised within stipulated period, employee shall be deemed to have opted to received CPF benefits. The option once exercised shall be final.
(c) Absorption of employees of one Central Autonomous body to another Central Autonomous body. The above procedure 10 OA No.52/2016 will be followed mutates mutandis in respect of employees going from one autonomous body to another.
5(1) The employees of a Central autonomous body or Central Government, as the case may be, who have already sanctioned or have received pro-rata retirement benefits or other terminal benefiis jor their past service will have the option either:-
(a) 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
(b) to have the past service counted as qualifying service jor pension under the new organisation in which case the pro-rata retirement or other terminal benefits, if already received by them, will have to be deposited alongwith 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 those 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 benefit already received by them. The option once exercised shall be final.
ft was submitted that the above OM enables the applicant to opt for counting of his services from 01.06.1999 to 31.05.2013 for the purpose of pension by surrendering his earlier pension granted by Ministry of Industry. He further submitted that above 11 OA No.52/2016 said OM was followed by subsequent OMs dated 12.09.1985, 31.03.1987 and 26.07.2005 to the same effect. The relevant parts of the above said OMs are quoted for ready reference:-
" OM dated 12" September, 1985 The undersigned is directed to say that in accordance with para-5(I)(b) of this Department's Office Memorandum of even number dated 29" August, 1984 an employee of the Central autonomous body or the Cenetral Government who has already received pro-rata retirement benefits or other terminal benefits for his. past service will have the option to have the past service counted as qualifying service for pension under the new organisation. In such a case the pro-rata retirement benefits or other terminal benefits, if already received by him will have to be deposited with interest thereon from the date of receipt of these benefits till the date of deposit with the autonomous body or the Central Government as the case may be.
2. The rate of interest to be paid on the amount to be refunded has 'been engaging the attention of the Government of India. It has been decided in consultation with the Ministry of Finance (Department of Expenditure) that the rate of interest in such cases would be simple interest of 6% per annum.
3. Further, the entire recovery may be made in the monthly installments not exceeding thirty-six in number, the first installment beginning from the month following the month in which person concerned exercised option, provided that the entire recovery in installments does not go beyond the actual date of retirement. The right to count the previous service as qualifying service shall not revive until the whole amount has been refunded.
5. Further, in accordance with para-3(a) of the Office Memorandum No.28/10/84-Pension Unit dated 29" August, 1984 the Government/autonomous body will discharge its pension liability by paying in lumpsum as one-time payment, the pro-rata pension/service gratuity/terminal gratuity and the DCRG for the service upto the date of absorption in the autonomous body/Government, as the case may be. The lumpsum amount of the pro-rata pension will be determined 12 OA No. 52/2016 with reference to the commutation table laid down in CCS (Commutation of Pension) Rules, 1981, as amended from time to time. Various Ministries/Departments of the Government of India may accept pension liability in all these cases where Central Government employees move to Central autonomous bodies with proper permission and discharge the same in the prescribed manner. For iheir_ purpose 'proper permission' means that Government servant applied for the post in autonomous body through 'proper channel' and he resigns with due intimation that he is doing so to take up assignment in autonomous body or the Government servant is relieved of his duties by the Government Departments, Office to take up assignment in_an autonomous body. Pension liability may also be accepted in past service provided the Government servant took up the assignment in autonomous body with proper permission. The Ministry of Defence etc. may please issue specific directions to their Financial Advisers to advise the autonomous / statutory bodies under their administrative control to make the above provisions in their rules and regulations. in cases where any practice other than mentioned above is presently being followed, the same may be revised in accordance with these decisions and that they may also provide for acceptance of pension liability for the past service.
OM dated 31.03.1987
(ii) Those absorbed in the autonomous bodies having pension scheme shall have an option to receive pro-rata retirement benefits or continue to have the benefit of combined service under the Government and in the autonomous body subject to the conditions laid down in the Department of Personnel and AR's OM No.28/10/84-PU dated the 29" August, 1984 and 12" September, 1985. Such option should be exercised within six months from the date of permanent absorption. In case no option is exercised within stipulated period, he will be eligible for pension based on combined service.
(iii) Encashment of earned leave shall be admissible upto the maximum limit of 240 days. Half pay leave will stand Jorfeited.
aes
3. All cases of grant of pensionary benefits etc., to Government servants who are appointed in the Central Autonomous Bodies on immediate absorption basis shall be decided by the Administrative Ministries/Cadre Controlling Authorities/Authorities competent to 13 OA No.52/2016 accept resignation of a Government servant in accordance with provisions of this O.M. OM dated 26" July, 2005 (ti) The employees who entered into service on or before 31.12.2003 and who were governed by CPF scheme or any pension scheme of Central or State Government, other than the pension scheme under Central Civil Services (Pension) Rules, 1972 on submission of technical resignation to take up new appointment on or after 1.1,2004, cannot be allowed to join the old pension scheme under Central Civil Services (Pension) Rules, 1972 because entry to the said scheme ceased wef. 31.12.2003 and no new entry can be allowed in the pension scheme under above rules. However, such employees can seek pensionary/terminal benefits, from the previous orgnisation/Department, if admissible under the rules of that. organisation/Department, for the period of service rendered under that organisation/Department."
2.7 The applicant has placed: reliance on the decision of the Hon'ble Apex Court in the case of State of Rajasthan Vs. Mahendra Nath Sharma, 2015(39) SCC 540 wherein it has been held that there is no other rule in the pension rules to justify denial of pension and pensionary benefits to him and that an employee cannot be denied pension and pensionary benefits for his continuous. and regular service without any break in recognition of his service from 01.06.1999 to 31.05.2013 with the first respondent @50% of the emoluments as mentioned in Rule 49(2) of the Pension Rules and Dearness Allowance as 14 OA No. 52/2016 admissible on such pension from 01.06.2013 onwards. Reliance has been further placed on the decision of the Hon'ble Apex Court in the case of Devokinandan Prasad Vs. State of Bihar, (1971) 2 scc 330, in the case of State of Punjab Vs. Iqbal Singh, 1976 (2) SCC 1.
3. On notice, the OA was resisted by the respondents by filing reply. The respondents Nos.1 & 2 in their reply have taken a preliminary objection by stating that the OA is bad for misjoinder of parties. It has been stated that ICAR is a society registered under the Societies Registration Act and as per rule 23(C) of its Rules and Bye Laws, ICAR may sue or be sued through Secretary, ICAR only. Therefore, the impleadment of ICAR through its Director General and Secretary, Department of Agricultural Research & Education, Government of India, Ministry of Agriculture, New Delhi and union of India, Secretary, Ministry of Agriculture, New Delhi 1s neither proper nor necessary for adjudication of the issues raised in the instant OA and thus, the OA is liable to be dismissed on this 15 OA No, 52/2016 ground alone.
3.1 It has been further submitted that the OA is false and frivolous and without any cause of action whatsoever and is liable to be dismissed on this ground alone. The applicant worked as Deputy Director (Food) in the Ministry of Industry, Government of India from 19.04.1982 to 31.05.1999 and later joined ICAR from 01.06.1999 on the post of Principal Scientist (Hort.), ICAR Research Complex at Goa where he worked till 31.05.2013 in different capacities as . Principal Scientist and Director at "ICAR Research Complex for Goa and ICAR-NRC for Grapes, Pune respectively. It has been stated that the applicant received all the retirement benefits for his past service of 22 years and 9 months for the services he rendered with Ministry of Industry, Government of India. The applicant not only in the individual capacity but also in the capacity of a responsible officer/post have by concealing the aforesaid fact has filed the present OA with demand that his service is continuous with earlier service rendered by him from 01.09.1976 to 31.05.1999 without break and that 16 OA No. 52/2016 he is entitled to receive pensionary benefits and pension on and from 01.07.2013 every month onwards in accordance with the Pension Rules is not correct.
3.2 It has been stated that Rule 7(2) clearly states that except as provided in Rule 19 i.e. applicable for Military Pensioners, no Government servant is entitled to a separate pension for gratuity for the period of his re-employment. The applicant being a class I officer and a responsible officer holding high post in his service career -- concealed the very important fact of the receipt of the pensionery benefits for 14 years and thus has not come before this Tribunal with clean hands. The applicant had not only concealed the said facts for i4 years but even concealed the same while submitting the pension documents to the answering respondents. It was known only after the query of the respondent that he has disclosed the fact. The fact that the applicant received the retirement benefits from his past employer for his past service and concealed the same for 14 years is a great offence and cannot be ignored at any point of time.
17 OA No. 52/20163.3 It has been submitted that there is no provision in the CCS(Pension) Rules, 1972 for such act of a Group 'A' Officer (Civilian) for enjoying the benefits of Retirement Gratuity, Commutation of Pension, Leave Encashment, Monthly pension, GPF accumulation etc. from his past employer, concealing the same and again claiming said benefits from the next employer for the number of years of service he served. When the fact of receipt of pensionary benefits was revealed during the course of scrutiny of his pension case by the answering respondents, he no more stood to be a regular employee. It has been submitted that there is no such provision in the CCS (Pension)rules. where an employee can receive the benefits of his service from one employer and continue to work with second employer and subsequently claim the retirement benefits from the second employer as it has happened in the present case. Therefore, the ICAR has rightly treated the appointment of the applicant on 01.06.1999 onwards as that of re-employed pensioner.
3.4 It has been submitted that the applicant has 18 OA No.52/2016 never disclosed the fact to ICAR during his entire service career of 14 years with the ICAR that he is a pensioner. A person who is in receipt of monthly pension is called a Pensioner, therefore, a person who is already receiving his monthly pension for 14 years has to be treated as a re-employed pensioner. Moreover, the applicant is getting the benefit of revision of pension of pre-2006-delinking of revised pension from qualifying service of 33 years as per Government of India om No.38/37/08-P&PW(A) dated . 06.04.2016. Therefore, the applicant though served for 22 years and 9 months is now getting benefit of full/revised pension by delinking the qualifying service of 33 years as per revised PPO No.255919900161/1919303/A3 dated 16t June, 2016 .issued by Central Pension Accounting Office, New Delhi since 01.01.2006.
3.5 The respondents have further submitted that the applicant is concealing the fact that he did not take permission from the Ministry of Industry and did not submit his application for appointment in ICAR, Goa through proper channel. He directly applied for 19 OA No. 52/2016 appointment in ICAR Goa without taking any permission from the Industry department. It was further submitted that he. has applied for grant of pension to the Ministry of Industry and his submission that it was voluntarily granted by Ministry of Industry is not correct. It was submitted that a Group 'A' officer who is getting the pension on his retirement is entitled for salary after deducting the amount of pension on his re-employment. Moreover, the person who is already receiving monthly pension is to be treated as re-employed pensioner. The applicant by concealing this fact from the ICAR that he was already getting a pension and kept receiving full monthly pension from ICAR without reducing the monthly pension is a concealment and thus he has drawn excess amount of Rs.8,20,970/- from ICAR which needs to be recovered. It was also submitted that the applicant has committed a criminal offence as he has mislead the Government of India, He had drawn full Salary from the services of the First Respondent for a period of 14 years inspite of the fact that he drew regular monthly pension from the Central Pension 20 OA No.52/2016 Accounting Office. The applicant has drawn an excess amount of Rs.8,20,970/- during his service tenure of 14 years with the First respondent by willfully concealing the fact of drawal of his monthly pension from the Government of India.
3.6 It has been submitted that the applicant had submitted a representation dated 11.08.1999 for disbursement of pensionary benefits for the service rendered in the Ministry of Industries from 01.09.1976 to 31.05.1999 and also submitted his pension papers vide representation dated 24.08.1999 alongwith bank account number. His pension case was accordingly processed by the office of Deputy Director (Administration), Ministry of Industries and forwarded to PAO, MSME, New Delhi vide letter dated 12.10.1999 which contained the pension paper duly filled in by Dr. Adsule. PPO No.255919900161 dated 09.12.1999 was issued by PAO, MSME, ND in respect of Dr. Adsule. In addition to the above, the representation dated 04.12.2013 was also received from Dr. Adsule for payment of CGEGIS which was also duly processed and payment made vide order dated 21 OA No. 52/2016 12.10.2015. Thus, it may be noted from the above letter that Dr. Adsule (applicant) voluntarily represented and applied for the pensionary benefits vide his letter dated 11.08.1999 i.e. immediately within three months of his joining the ICAR service. As per the representation submitted by Dr. Adsule (applicant), it is very clear that he knew that the post for which he was selected is a permanent post and not deputation post. He was also aware of the fact that he was relieved from the office of Ministry of Industries without any lien in the post of Deputy Director (Food). He had voluntary conveyed his willingness to have all his pensionary benefits alongwith commutation value of pension and also family pension for the service period under the Government of India i.e. 01.09.1976 to 31.05.1999. Consequent upon his representation, he submitted the duly filled and signed pension papers to the office of Ministry of Industries on the basis of which his pension case has been processed. The applicant vide his affidavit in rejoinder dated 28.02.2017 has accepted the fact that the statement made by him 'At 22 OA No. 52/2016 no point of time... 1999' is not factually correct. It is one of the reasons that the applicant has not made his own institute a party/respondent in this OA as he himself was involved in the matter.
3.7 It has been submitted that the Office Memorandums and decisions relied upon by the applicant are not applicable in his case as he has applied for the post of Principal Scientist (HORT) in ICAR, Goa Campus in 1999 and not through proper channel. He has no lien and that he concealed the fact for 14 iong years that he is receiving monthly pension/family pension from Ministry of Industries.
4, We have heard the learned counsels for both the parties at length and perused the pleadings and documents filed on record.
5. The issue involved is whether the applicant is entitled for counting of his entire service of 36 years and 9 months which he put in with the ICAR and Ministry of Industries, Government of India in 3 stints and whether he is eligible for recalculation of his pension by surrendering the monthly pension earlier granted to him. The claim of the applicant is 23 OA No. 52/2016 that he has put in continuous service of 36 years and 9 months and he had lien in the ICAR when he joined in the Ministry of Industry and again lien on his post in the Ministry of Industries when he has joined as Principal scientist (Horticulture) with the ICAR, Goa Campus and also that his entire service of 36 years and 9 months is a continuous service. The contention of the respondents is that the applicant has resigned from Ministry of Industries and he was granted pensionary benefits at the time of his resignation from Ministry of. Industries and that his appointment as Principal scientist ICAR was a re-
employment of a retired pensioner.
5.1. We find that the Department of Personnel & Training, Ministry of Personnel, Public grievances & Pension, Government of 'India has issued a Master Circular on Technical resignation and lien in Central services vide Office Memorandum No.28020/2/2018-Estt. (C) dated 27" August, 2018 to consolidate the instruction / guidelines in relation to lien /technical resignation. Para 16 to 19 of the Master Circular deals with lien. Paras 17 and 18 of the 24 OA No. 52/2016 above referred circular is reproduced as under:
"17. Retention of lien for appointment in another central government office/ state government i, A permanent Government servant appointed in another Central Government/Office/State Government, has to resign from his parent department unless he reverts to that department within a period of 2 years, or 3 years in exceptional cases. An undertaking to abide by this condition may be taken from him at the time of forwarding of his application to other department/offices.
ii. The exceptional cases may be when the Government servant is not confirmed in the department/office where he has joined within a period of 2 years. In such cases he may be permitted to retain the lien in the parent department/office for one more year. While granting such permission, a_ fresh undertaking similar to the one indicated above may he seh Ff Feey ae taken from the employee.
ili Timely action should be takento ensure extension reversion /resignation of the employees to their parent cadres on completion of the prescribed period of 2/3 years. In cases, where employees do not respond to instructions, suitable action should be initiated against them for violating the agreement/undertaking given by them as per (i) and (ii) above and for termination of their lien. Adequate opportunity may, however, be given to the officer to such consideration.
iv Temporary Government servants will be required to sever connections with the Government in case of their selection for outside posts. No lien will be retained in such cases."
18. Termination of Lien A_Government_servant's lien on _a post may in no circumstances be terminated even with his consent if the result will be to leave him without a lien upon a permanent post. Unless his lien is transferred, a 25 OA No. 52/2016 Government servant holding substantively a permanent post retains lien on that post. It will not be correct to deny a Government servant lien to a post he was holding substantively on the plea that he had not requested for_retention of lien while submitting his technical Resignation, or _to_relieve such a Government servant with a condition that no lien will be retained." (Emphasis supplied).
The above circular of DOPT makes it very clear that a Government servant holding a permanent substantive post can not be left without a lien unless he has a lien on his new post.
5.2. It is not in dispute that the applicant was a permanent. employee of the Ministry of Industries, Government of India and holding a substantive post before he was appointed as Principal Scientist (Horticulture) in the ICAR, Goa Campus. His offer of appointment letter dated 24% December, 1998. issued by the Dy. Director(P), ICAR for the post of Principal Scientist has a condition No. 6 that he will be on probation for a period of (2 years. The same is reproduced hereunder:
"6. He will be on probation for a period of 2 years from the date of appointment which may be extended or curtailed at the discretion of the competent authority. Failure to complete the period of probation to the satisfaction of the competent authority will render him liable to reversion to his present 26 OA No.52/2016 post substantively held by him in ARS."
In response to the above offer of appointment dated 24.12.1998, the applicant in his acceptance letter dated 31.12.1998 in para (1) has specifically mentioned that since he was a permanent Central Govt. servant, he would like to. retain his lien for two years. He did not have any lien on his new post of Principal Scientist (Horticulture) in ICAR, Goa campus till completion of his probation. Thus, ' the applicant could not have be left without a lien in the Ministry of Industries when he tendered technical resignation. Therefore, the contention of the respondents that he did not have a lien is not correct and hence rejected.
5.3. The Dy. Director( Admn), O/o Development Commissioner, Small Scale Industries, Ministry of Industries, New Delhi vide his letter dated 11" January, 1999 addressed to the Dy.
Director (P), ICAR sought some clarification regarding service conditions, Lien and pension etc. In response to the same, the Dy.
27 OA No.52/2016Director (P), ICAR vide his letter dated 01.03.1999 has stated that "As regards payment of leave salary and pension contribution, it is clarified that the post of Principal Scientist offered to Dr Adsule is a permanent post but he will be on probation for an initial period of two years. On successful completion of probation period, he will be confirmed in the post. Therefore, the question of payment of Leave salary & Pension contribution by the Council does not arise in such cases."
It is evident from the above communication between the Ministry of Industries and ICAR that the Ministry of Industries was very much aware of applicant's appointment to the post of Principal Scientist.
6. It is noticed from the relieving order dated 28.05.1999 issued by the office of the Development Commissioner, Ministry of Industry that the applicant was relieved of his duties w.e.f.
31.05.1399 (forenoon) to enable him to report for 28 OA No. 52/2016 duty in his new assignment at ICAR, Research Complex, Goa. Therefore, the contention of the respondents that the applicant did not inform the Ministry of Industries is not correct and hence rejected.
7. We further find that the case of the applicant is fully covered by para 3 and 5 of the OM dated 29% August, 1984 relied upon by the applicant.
(referred para 2.6 already quoted above.)
8. We find that similar matter came up for consideration of Hydrabad Bench of this Tribunal in OA_No.21/1105/2017 (Dr. Binaya Kumar Paty Vs. National Institute of Agriculiural &xiension Management, Hyderabad & --Anr). The Hydrabad Bench vide their order dated 11.09.2019 allowed the OA of the applicant. It will be fruitful to reproduce the relevant portion of the judgment as under: -
"G. It was further clarified by Ministry of Personnel, Public Grievance and Pensions vide Ir Dated 26.07.2005 that the employees who entered into Central Government Service or in the service of an Autonomous Body set up by Central Govt. on or before 31.12.2003 and who were governed by old pension scheme under the CCS pension rules, 1972 will continue to be governed by the same pension scheme and same rules, for the purpose of counting of their past service under the said rules or 29 OA No, 52/2016 under the provisions of the DP & Ars OM dt. 29.08. 1984., as amended from time to time, if such employees submit technical resignation on or after 01.01.2004 to take up new appointment in another Ministry or Dept of G.O.I. Or an Autonomous body set up by the Central Government in which the pension scheme under CCS(Pension) Rules already exists for the employees who entered into service on or before 31.12.2003.
J. Further Honourable Ernakulam bench of this Tribunal in N. Manilal Vs. U.O.E. On 18.12.2002 reported in 2004(2) SLI 10 CAT, has held that the applicant therein who worked for the Govt. of Kerala for 11 years joined a non pensionable organisation namely Keltron and thereafter entered into VSSC. The services of the applicant in Keltran were condoned and his past Il years service with Kerala Govt. was counted as service for pension by Vikram Sarabhai Space Centre (VSSC), which is under the aegis of Dept. of Space. Similarly Honourable Kolkota bench of this Tribunal has in Sankar Nath Pramanik vs. UOT. And ors. vide judgement dt. 28.04.1998 condoned the service of 5 years of the concerned applicant in HAL, which "is non pensionable period, and allowed the 1] years of service rendered in Defence orgnisation to be counted with the service put up in Govt. of India for the purpose of pension.
To top it, the Honourable Supreme Court of India in Madhukar Vs. State of Maharashtra and ors reported in (2014) 15 SCC 565, dt 11.04.2014 has considered the Past service after condoning the interruption of service as under:
"13. In the case of the appellant, there is notional break in service. The appellant resigned from Government service on 18.07.1960 and joined the post of Lecturer in Hislop College, Nagpur on the same day ie. 18.07.1960. Further, higher authorities have recommended to add the earlier period of service for determination of pension benefit. Being so, in absence of a specific direction to the contrary in the service record, the interruption between two spells of services rendered by the appellant under the Government shall be treated as automatically condoned; the earlier service rendered by appellant is to be counted towards qualifying service."30 OA No.52/2016
A similar observation has been made by the Honourable Supreme Court in D.G. Council of Scientific and Industrial Research y, Dr. K. Narayana Swamy and Ors., (1995) 3 SCC 124, wherein it was held that "
"8. Rule 28 would take care of interruption; and the period of interruption would then stand condoned in the absence of a specific indication to the contrary in the service book."
There is nothing contrary or irregular recorded in the service book of the applicant which has been brought out in the reply statement. The observations of the Judicial forums cited apply squarely to the case in question. The law is well settled in the matter.
K. The stand of the respondents that the applicant has joined NPS at the time of the appointment would not hold because they are contrary to the statutory provisions of CCS Pension Rules -- 1972. Executive instructions cannot overrule the Statutory provisions. When being forced to opt for NPS, applicant opted for the same in order to save interest and income tax. That cannot be a ground to reject his request to apply old pension rules which is backed by rules and law.
In view of the aforesaid discussion covering the issues in question, the action of the I" respondent is illegal, arbitrary and unreasonable. Therefore, the impugned order MNG-01/02- BEP/2012 dt.29.05.2017 issued by the 1" respondent is quashed. The OA is allowed. | L. Consequently the respondents are directed to consider as under:
{i) Io consider grant of pension as per CCS(Pension) Rules 1972, as and when due and considered for payment, with consequential benefits by counting of his past pensionable service in Ministry of Agriculture along with the services rendered in MANAGE by condoning of services rendered in CCS-NIAM as per Rule 28 of CCS(Pension) Rules.
(ii) The applicant shall deposit the pro-rata terminal benefits received by him from Ministry of Agriculture with interest as 34 OA No.52/2016 is applicable at present for GPF accumulations, for the period from the date of receipt of such terminal benefits till the date of deposit into the MANAGE account. Such refund shall be made by the applicant within a period of one month from the date of receipt of this order, as per clause 5(b) of DOP & AR, OM dt. 29.08.1984. (iii) There shall be no order io costs."
9. In view of the above facts, OMs of DOPT and the judicial pronouncements on the issue discussed herein above, we are of the view that the applicant is entitled for counting of his service with the respondents from 01.06.1999 upto date of his retirement ie. 31.05.2013. Therefore, we direct as under:
(1) The appointment of the applicant with the First respondent on and from 01.06.1999 upto 31.05.2013 is not by way of re-employment as a re-employed pensioner and it be treated as continuous service with earlier service rendered by him from 01.09.1976 to 31.05.1999 without any break with all consequential benefits in accordance with the Pension Rules, subject to the applicant depositing his pensionary benefits received by him at the time of his relieving from the Ministry of Industries on 31.05.2013 along with interest at the rate payable on GPF.
(ii) The above order to be complied within a period of four months from the receipt of the certified copy of this order.
io, The OA is allowed in terms of Girections and order.
ii. Pending MAs, if any, stand closed. There shall be no order as to cost.
(ie, "Shri Krishiay (Justice Ranjit More) Member {A} Chairman ma.
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