Central Administrative Tribunal - Kolkata
Manoj Kumar Khalko vs Eastern Railway on 18 April, 2022
CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA O.A. No. 350/269/2022 Date of Order: 18.04.2022 _ Coram: Hon'ble Ms. Bidisha Banerjee, Judicial Member In the matter of : Manoj Kumar Khalko, Son of Charwa Khalko, aged about 44 years, working as Guard/BWN/E.RLY/HWH, residing at 4, Jadunath Ukil Road, P.O.- Paschim, P.S.- Haridevpur, Kolkata-700041. M. No.- 91238783654, Email- [email protected] bevnenees 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. beneeee Respondents For The Applicant(s): Mr. A. Chakraborty, Ms. P. Mondal; Counsel For The Respondent(s): Ms. D. Ghosh Dastidar, Counsel ORDER(ORAL Per: Ms. Bidisha Banerjee, Member (J)
Heard Ld. Counsels for both sides.
2. This application has been preferred to seek the following relief:
QQ cc oo uasundtsvaistiysssitradieenvevsvmaneShaeeseesnsseecssuetiepn forma wnasetiassaeeesaneeeemnsonannneutialis ana eetenenseeeunnnanannnnansenens ss Ped "fa} An order do issue directing the respandent jos. id and 2 to issue directions to the Competent Authority to grant scope of switching over to Old Pension Scheme in favour of the applicant on immediate basis for extending and effecting coverage af his case wider Central Services (Pension}Rule 1972 in alace of National Pension System at an earliest.
(b) Te. grant Casts and incidentals.
fe) Any other order or orders as the Han'ble Tribunal deenis fit and proper."
Thies matter is taken up by Single Bench in view of the revised List dated 04.04.2000 issued under Sub-Section (@) 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. BR/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 2008. The applicant was thereafter declared successful and the selection process was completed before 01.01.2004 when the Old Pension Scheme wag in effect, However, he was offered appointment only after 01.01.2004, Le. on 16.06.2004, when the New Pension Scheme came into elfect.
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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 61.01.2004, i.e. before the intruduction of New Pension Seheme (NFS 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 texms of the DOPT notification dated 17.02.2020 itself. \ Lys Further in support, Ld. Counsel would cite the decision of the 'Hon'ble High Court at Delhi in WP (C) No. 2810/2616 in the case of Inspector Rajendra Singh & Ors. vs. UOT & Ors. rendered on 27.03.2017 wherein the petitioners who were reeruited after O1.01.2004, 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 af 2004 in bad in law.
Ld. Counsel for applicant would also place the decision of Hom ble Apex Court in the case of UOL Vs Shabad Prakash Punia SLP (C) No. 7873/2021 and batch cases where the petitioners who had applied.
poursuant to the notification dated September, 2005 and dune, 2008 for the post of Constable/GD im Central Armed Police Forces and Sub- Ingpectors through Staff Selection. Commission, and had qualified in the said examination of 2003, sought for benefits under Old Fension 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 ist January, 2004, was apphed.
Hon'ble Court found that the batch mates of the most of the "netitioners have been given the benefits of Old Pension Scheme under ig € various judgments passed by the Court as under:
{i} Patil Gopal Babulal & Ors. vs. Union of India & Ors, W.P. (C} 11646/2018;
Gy Tanaka Ram & Ors. vs. Union of India & Ors, 2019 (174) DR] 146 | (DB);
(fit) Shyam Kumar Choudhary and Ors. vs. Union of India being W.P. (C } No. 1358 of 2017 and \ es Ms, Peet Boonies Vie Pa
(iv) Niraj Kumar Singh & Ors, vs, Union of India & Ors, W.P. (C ) No. 431292019.
The Hon'ble Court therein held as under:
"B. The issue in the present batch of matters is na longer res integra. Consequently, the request far qiditional time to file counter-affidavit is declined. a in the case of certwhy constables of the SSE, thls Court by its Judgatene dated E2"
February, 2019 in Tanaka Ram (supri} alowed the praver of those PetiGoners and permitted them te avail of the benefit of the Obl Pension Scheme. it was held that the eption te.continue the Old Fensian Scheme should be.extended to. all Ghose who has been selected ih he examination conducted In 2003, Sut were issued call letters only in january er February, 2004 itis alse pertinent te mention that the Respondents aggrieved hy the sdid judgmant filed an SLP bearing Na 25228/2019 before the Apex Court. The said SLP hus been dismissed by the Supreme Court vide order dated 02 September, 2019.
18, Tis Geurt In SAyerm Kumar Choudhary-and. Ges, vs. Union af India being HPC) No. L258 of 2017 alowed similar petitions vide judgment dated OS April 2019 quyainst witch the Respondents Aad agaiy fled SiP hesring ne. SISIS2019 which wie again dismissed om 22° September, 2018. The Respondents thereafter chase ur file @ review petition bearing no. 2188/2020 before the Apex Court in the said matter and the said Review petition was also dismissed on merits vide order dated 24" November, 2026. EL Following the judgment of Shyam Kumar Chaudhary (supra), the learned predecessor Division Beach in Niraj Kumar Singh and Ors, Vs. Union of India & Ors, WBC) No. 13129/2019 granted similar benefit te 17 petitioners whe had applied to the post af Sub-inspector in Central Police Organisations pursuant to an advertisement dated 21" fans, 2005 aves sehen thesenitien examination and physical wfictency test were hele in Noveribeo, 2009, medical exdmination was hekl ie fanuary-Febracry, 2004 and final result was declared in May, 2004. The said 17 petitioners were issued affer af appointment on 02°) June, 2005 and on accepting the scame, the appointment letter was issued on 148 Jus 2008 for joining the Sashastra Seema Bai, Te. Another Coordinate Bench vide judgment dated G6" November, 2020 in WLP{C) No. 0548 ef 2020. ay well as 6889/2020 was pleased to allow the said petitions for grantaf Old Pansion Scheme by follawing the judgment in Shyam Ranvier Chaudhary (supra s.
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23. Having regard te the fact thet ip the present batch of cuses also. the ngvertisomentenatification wee issued in September, 2003 ond June, SOUS Le. peor to coming inte force of the present contributory pension scheme on 22 December 2U03. Hus Court is of the view that petitieners cannit be deprived of the benefit of the Old Pension Seneme:
14. This is nore so whenthe batchmates of the petitioners are getting this benefit under various jindgments passed by this Court IS, For the abave reasons, tie petitioners are allowed, Respandents are directed to extend the benefit af Gli Pension Scheme to eveh of these Petitioners aad piss consequent arders within a period af eightweeks from teday £6. Accordingly, the writ petitions along with pending appiicetions stand disposed a yf The decision was rendered on 15.01.2021 by the Hon'ble High Court at New Delhi and the decision in one of such Writ Petitions hearing No. WP (C)9262/2020, was assailed before the Hon'ble Apex Court in SLP No. 7873/2021 but the SLP was dismissed on 09.07.2021.
2. Therefore, Ld. Counsel for the applicant would vecifercusly contend that the issue has attained a Anality that, where the vacancies arose and the notification to fill up vacancies was published before 01.01.2004, the recruitment process was alsa 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 hy the Qld Pension Rules of 1972, as in the decisions quoted supra.
Li. Counsel would also refer to the judgment of this Tribunal in OLA. 1815 of 2021 (Prem Kumar Vs SE Railway) and analogous matters which is taken on record.
6. Ld. Counsel for respondents would fairly agree that the matter gatas, CAN he remanded back to the authorities for a fresh consideration in the Bn EDS a light of the decision in Inspector Rajendra Singh & Ors. vs. UOT & Ors., as well as in Shabsd Prakash Punia & Ors. vs. UGI & Ors. referred to Shpea.
Therefore, the instant O.A. is hereby be disposed of with a direction upon the respondent authorities to consider the representation of the applicant dated 22.02.2021 (at Annexure A'5 to the O.A) and to address the grievance of the applicant in the Hight of the DoPT O.M. dated 17.02.2020, ag well as, the decisions cited supra and to pass an appropriate order within 3 months from the date of receipt of a copy of this order,
7. The O.A., accordingly, stands disposed of. No casts, ~ {Bidisha Banerjee) Member () UW