Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through The Secretary on 1 September, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH, CHANDIGARH. O.A.No.060/00798/2014 Date of Decision : 01.09.2015 Reserved on: 26.08.2015 CORAM: HONBLE MRS. RAJWANT SANDHU, ADMINISTRATIVE MEMBER HONBLE DR. BRAHM A. AGRAWAL, JUDICIAL MEMBER Prita Ram, son of Sh. Amra, resident of Village Jaintimajri, District Mohali. Applicant Versus 1. Union of India through the Secretary, Govt. of India, Department of Pension & Pensioners Welfare, India. 2. The Chandigarh Administration, Union Territory, Chandigarh, through its Secretary, Department of Local Government, Chandigarh Administration, Sector 9, Chandigarh. 3. The Chief Engineer, Union Territory, Chandigarh Administration, Chandigarh. 4. The Executive Engineer, Public Health Division No.1, Chandigarh. 5. The Municipal Corporation, Chandigarh through its Commissioner. 6. The Executive Engineer, Electrical Division No.1, Chandigarh. . Respondents Present: Mr. Ashish Bansal, counsel for the applicant Mr. Rohit Mittal, proxy for Mr. Rakesh Verma, counsel for respondents no.2 to 4 and 6. Mr. Arvind Moudgil, counsel for respondent no.5. O R D E R
HONBLE MRS. RAJWANT SANDHU, MEMBER (A)
1. This Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:-
8 (i) For quashing the order dated 29.07.2013 whereby his claim for old pension scheme has been rejected and new contributory pension scheme is implemented.
(ii) For issuance of an appropriate order or direction directing the respondents to count work charge period of service of the applicant for grant of ACP after completion of 4/9/14 years after being brought on regular cadre and to grant the same to the applicant.
(iii) For issuance of further direction directing the respondents that the new defined contributory pension scheme notified by the Punjab Govt. on 12.12.2006 which has been adopted by the Chandigarh Administration on 11.06.2009 which has further been adopted by the Municipal Corporation, Chandigarh, be not made applicable to the applicant and the applicant be allowed to continue to be governed by the earlier provisions relating to pension under the Punjab Civil Service Rules in view of the authoritative pronouncement of the Honble Punjab and Haryana High Court at Chandigarh.
(iv) For issuing interim direction directing the respondents to continue to deduct GPF and not the CPF from the salary of the applicant and the applicant be not compelled to submit option / application under the new defined contributory pension scheme during the pendency of the OA.
2. Averment has been made in the OA that the applicant was appointed as Beldar on daily wages to work on muster rolls w.e.f. 01.07.1982 vide letter bearing memo no.1244, dated 18.06.1982 issued by the Sub Divisional Engineer, W/s Sub Divn.No.8 (Mtc), Chandigarh (Annexure A-1). The applicant was furher appointed on the post of Beldar on work charge basis in the pay scale of Rs.300-430 in the Department of Maintenance of Public Health Services vide memo dated 12.04.1985 (Annexure A-2). The applicant was regularized in service vide letter dated 07.01.2011 bearing memo no.439 with the Electrical Divn. No.1, Chandigarh (Annexure A-3).
3. It has further been stated that after regularization of the services of the applicant, he made representation to respondent no.6 for the grant of ACP after completion of 4/9/14 years of service and refixation of salary accordingly (Annexure A-4). This application had not been allowed and the benefit was being denied on the ground that the applicant was not a regular employee and his services had only been regularized in 2011. The applicant had also made a representation to the effect that he was entitled to the old pension scheme as per the Punjab Civil Service Rules and the new Contributory Pension Scheme is not applicable to the applicant as he is in service for the last 25 years. This representation had also been wrongly rejected by the respondents vide order dated 29.07.2013 (Annexure A-7).
4. In the grounds for relief it has, inter-alia, been stated as follows:-
i) This Tribunal in a similar case titled Jagmohinder Singh & Ors. Vs. UOI & Ors. in OA No.585/CH/2012, decided on 18.04.2013 has held that We come to the conclusion that the petitioners initial date of appointment after regularization will be the date on which employee takes charge of the post. Once the entire service of a daily wager is to be counted as qualifying service then his date of appointment will relegate back to his initial date of appointment. So from the above decision, it is crystal clear that the applicant cannot be deprived from the benefits of the service / work charge period on the ground that the services has been regularized in the year 2011 and the respondents have to consider the regularization of the applicant from the date of initial appointment and not from the date when the services was regularized (Annexure A-8).
ii) The same matter has also been considered by the High Court in CWP No.2371 of 2010, decided on 31.08.2010 titled Harbans Lal Vs. State of Punjab & Ors. and has held that once the services of daily wager has been regularized then it relegate back from the initial date of appointment.
iii) Similar view was taken by the Honble High Court of Punjab and Haryana in CWP No.16317 of 2001 titled Varinder Kumar & Ors. Vs. State of Haryana, decided on 14.02.2002 holding that the State shall not exclude the period of work charge service rendered by the petitioner under the State of Haryana towards counting the total service of the petitioner for the purpose of granting the reliefs under the scheme afore-referred. Therefore the applicant is also entitled for the same benefits.
5. In the written statement filed on behalf of respondents no.2 to 4 & 6, it has been stated that the applicant was freshly appointed on 07.01.2011 for the post of Trade Mate. The applicant will get benefit of ACP on completion of 04 years of service as Trade Mate i.e. on 06.01.2015 subject to other conditions of grant of ACP, so he is not entitled to benefit of ACP and regularization of service. So the present OA is not maintainable before this Court. The Finance Department of Chandigarh Administration issued instructions on 11.06.2009 for the introduction of New Restructured Defined Contribution Pension Scheme for new entrants to Chandigarh Administration services. As per these instructions, those employees who were employed in Chandigarh Administration on 01.01.2004 and afterwards shall be governed by the New Defined Contributory Pension Scheme, he is governed by this new scheme so the applicant neither is entitled for regularization nor falls under the old pension scheme. The applicant is also not entitled for the ACP from the back date because he was appointed under the direct recruitment quota and joined the service on 07.01.2011. A copy of the letter dated 11.06.2009 is annexed as Annexure R-2.
6. In the short reply filed on behalf of respondent no.5, it has been stated that the applicant was appointed as a Beldar on purely work charge basis in the Chandigarh Administration and not in the Municipal Corporation, Chandigarh on 12.04.1985 and subsequently was transferred to Municipal Corporation, Chandigarh in 1996 when the Municipal Corporation, Chandigarh was formed. The services rendered by the applicant in the Municipal Corporation were purely work charged and at no point he was regularized by the M.C. Authorities. However, the applicant was regularized by the Electrical Department, Chandigarh vide endorsement no.439, dated 07.01.2011 and subsequently the workman reported his departure in the Municipal Corporation on 13.01.2011 to join his new assignment under Chandigarh Administration. The ACP Scheme on completion of 4/9/14 years of service is optional and the concerned workman / employee has to exercise an option within 02 months from the date of the letter dated 03.11.2003 through an affidavit that he wants to accept his scheme effective from 01.11.2003 and he will not claim any arrear on this account. No such option was exercised by the applicant in the Municipal Corporation and he served in the Municipal Corporation in purely work charged capacity and was not eligible for such benefits. The Chandigarh Administration, UT Chandigarh vide order no.22/7/2002/3547-52 dated 22.07.2002, after considering various judgments of the Apex Court, has clarified that the benefits of the work charged service for the purpose of allowing benefits of ACP Scheme has to be given to regular employees. In view of the above submissions the applicant is not eligible for the benefits claimed by him from the Municipal Corporation. The applicant was regularized by the Electrical Department, Chandigarh vide order no.439 dated 07.01.2011 and subsequently he joined the Chandigarh Administration and not by the answering respondent i.e. Municipal Corporation, Chandigarh.
7. Arguments advanced by the learned counsel for the parties were heard, when they reiterated the content of the OA, rejoinder and the written statements respectively.
8. We have given our careful consideration to the matter. Perusal of para 8 of the OA shows that the applicant is seeking counting of work charged period of service for grant of ACP after completion of 4/9/14 years of service and he is also seeking direction to the respondents that the new defined contributory pension scheme notified by the Punjab Government on 12.12.2006 and adopted by the Chandigarh Administration on 11.06.2009 be not made applicable to him and he be governed by the earlier provisions relating to pension under the Punjab Civil Service Rules. We are of the view that claim for multiple relief has been made through this OA which is not permissible under the Administrative Tribunals Act / Rules. However, since the applicant has sought quashing of the order dated 29.07.2013 whereby his claim for being covered under the old pension scheme has been rejected we will confine our adjudication regarding the claim made in the OA to this aspect only.
9. It is observed that a similar matter has been decided through judgment dated 18.04.2013 in OA No.585/CH/2012 titled Jagmohinder Singh & Ors. Vs. UOI & Ors., wherein it was held as follows:-
11. The issue involved in the present original application is whether on being regularization the date of appointment will relegate back from initial date of appointment as cause / work charge is or not? This issue is no more re-integra as the jurisdictional High Court has considered the same issued in case of Harbans Lal (supra) and held that once the services have been regularized then it will relegate from the date of his entry into service. The operative part of the judgment reads as follows:-
The writ petition was allowed and the petitioners were held entitled to count their entire service w.e.f. 17.08.1965 to 30.09.2001 as qualifying service for the purposes of pension. However, the Contributory Provident Fund was required to be adjusted and deducted from the arrears of her pension. We come to the conclusion that the petitioners initial date of appointment after regularization will be the date on which employee takes charge of the post. Once the entire service of a daily wager is to be counted as qualifying service then his date of appointment will relegate back to his initial date of appointment i.e. 1988 and he cannot be ousted from pension scheme by applying the date of regularization i.e. 28.03.2005 which is evidently after the new scheme or new restructured defined Contribution Pension Scheme came into force w.e.f. 01.01.2004. A perusal of above leaves no doubt that once it has been held by the jurisdictional High Court that once services has been regularized then it will relegate back to his initial date of appointment then in the case of the present applicants also, it relegate from 1980 when they enter into service with the respondents. Once their appointment is taken from 1980, then they are covered under the old Rule and not under the new Defined Contributory Pension Scheme because they are appointed prior to 01.01.2004.
12. Accordingly, this OA is allowed and the respondents are directed not to implement the new Defined Contributory Pension Scheme in the case of the applicants. No costs.
10. In view of the above, since the applicant has been working on work charge basis from 1985 and his services have been regularized in 2011, the applicant is held entitled to be covered by the Old Pension Scheme in force prior to 01.01.2004. The GPF of the applicant may continue to be deducted from his salary and the applicant may not be treated as covered under the new Defined Contributory Pension Scheme.
11. Accordingly, the OA stands allowed. No costs.
(RAJWANT SANDHU) ADMINISTRATIVE MEMBER.
(DR. BRAHM A. AGRAWAL) JUDICIAL MEMBER Place: Chandigarh Dated: 01.09.2015 sv:
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OA.No.060/00798/2014