Central Administrative Tribunal - Madras
S. Abdul Azeem And Ors. vs Union Of India (Uoi) And Ors. on 6 October, 2005
Equivalent citations: 2006(92)SLJ198(CAT)
ORDER
P. Shanmugam, J. (Vice Chairman)
1. All the above Original Applications are filed praying to quash the order of the second respondent denying the shifting of the date of absorption and consequently to direct the first and second respondents to sanction pension with effect from 1.1.1975.
2. The facts of the case are as follows: All the applicants joined the first respondents' office namely Director General of Civil Aviation in the year 1964 and their services were confirmed in the year 1973. After formation of the Airport Authority of India the applicants were absorbed in the year 1973. The applicants have put in less than 10 years of service with the Government. The association of the applicants requested the first respondent to shift their date of absorption with the third respondent to 1.1.1975 in order to make them fully eligible for availing pension. However, their request was rejected by the impugned order dated 20.4.2004. The O.A, is against this order in all these cases.
3. The grounds raised in these O.As. are as follows: Many employees who were absorbed and who did not render 10 years of qualifying service to become eligible for pension were permitted to shift their date of absorption with the third respondent so that the concerned employees complete 10 years of service. The applicants are not given the same benefit and therefore there is a clear discrimination. The applicants have rendered more than 9 years of service and therefore their services ought to have been rounded off to 10 years as per Rule 49.3 of the Pension Rules. The denial of pension to an individual is a continuing cause of action and therefore the question of limitation will not arise.
4. In the above circumstances they have prayed that the relief as prayed for be granted.
5. Two reply statements one by respondent Nos. 1 & 2 and the other by third respondent have been filed. According to the first reply statement, filed on behalf of the respondents 1 & 2, it is stated that the benefit of rounding off the service is available only with effect from 28.6.1983. Since the applicants were absorbed in the Public Sector Undertakings in July and November, 1973, the benefit of rounding off the service cannot be extended to them. There is no provision for that. The correspondence regarding shifting of date with All India Public Sector Undertakings Retired Employees Association started on 4th August, 2000 only i.e. after a prolonged period of approximately 27 years and that too after the implementation of the Vth Pay Commission's recommendations which had increased the pensionary benefits substantially. At the time of permanent absorption in the year 1973, the pensionary, benefits was meagre, while the benefits accrued by permanent absorption in the Public Sector Undertaking was much higher. The applicants have opted for service gratuity and Death-cum-Retirement Gratuity with the International Airports Authority of India. The case of the other employees quoted by the applicants are different as those employees had represented at that time of absorption itself for shifting their date to become eligible for pro-mta pension. In so far as Shri S.D. Kumaravelu is concerned he was falling short of 24 days only for qualifying service of 10 years as on 1.1.1973 for grant of pro-rata pension and that he had represented to the Director General on this issue on 23.1.1975 itself for grant of terminal benefits and to condone the difference of 24 days. The applicant was granted service gratuity and DCRG on his absorption at that time after having made a declaration to the effect that he had neither applied for nor received, any pension or gratuity in respect of any portion and/or gratuity is claimed herein nor shall he submit an application hereafter without quoting a reference to this application and the orders which may be passed thereon. According to the respondents the Civil Aviation Department has paid the service gratuity at that time itself.
6. The third respondent has filed a separate reply statement. According to his reply, the applicants have not put in 10 years of qualifying service required for the grant of pro-rata pension. They came on deputation from the first respondent's office and they have retired from the service by 2005. The applicant in O.A. No. 390/2005 retired on 31.7.2005, applicant in O.A. No. 391/2005 retired on 31.5.2003, applicant in O.A. No. 392/2005 retired on 31.5.1998 and the applicant in O.A. No. 393/2005 was terminated from service on 2.2.1993. According to them the reliefs sought of by the applicants is not in time and the prayer should be dismissed on the ground of laches and stale claim.
7. The learned Counsel for the applicants Mr. Balan Haridas submitted that the denial of relief clearly violative of Articles 14 and 16 as the same relief has been granted to similarly situated persons. The applicants had been making repeated representations and therefore they are well within time. According to him the refusal to grant the shifting date of absorption is discriminatory and is illegal.
8. The learned Counsel for the respondents Mr. M.T. Arunan submitted that the applicant is highly belated and the claim is stale. All the applicants have been absorbed in the year 1973 and have opted to come to the service of the third respondent and they were absorbed as per the terms and conditions set out and circulated on 1.5.1973. All the applicants had since retired long time back cannot reopen the issue belatedly. The learned Counsel justified the benefits given to some on the ground that the claims were made immediately after absorption and the orders were passed by exercising the power in favour of those applicants and hence he has prayed for the dismissal of the O. A.
9. We have heard the learned Counsel for the applicants and the learned Counsel for the respondents.
10. As all the applicants raising a common question of law they were heard together. The question that arises for consideration is whether the relief claimed by the applicants are in time? Secondly whether the applicants are entitled for shifting the date of absorption from 1973 to 1975 so as to make them eligible for getting pension. Thirdly whether the rejection of the claim is justifiable.
11. The relief claimed by the applicants viz. that they must be ordered to shift their date of absorption with the third respondent as on 1.1.1975: The applicants were appointed in the Govt. under the Civil Aviation Department in the year 1964. Options were called for in the year 1973 for absorption of Civil Aviation Department staff in the I.A. & A.I. on a permanent basis with effect from 1.7.1973 or from the date they report for duty to IA & AI which shall not be later than 31.7.1973. The applicants were informed that their permanent absorption will be governed by the terms and conditions stipulated in Annexure-3. The two conditions are relevant for our purpose which are extracted below:
Every absorptionalist will exercise an option within 6 months of the absorption for either of the alternatives indicated below:
(a) Receiving the monthly pension and DCRG (Death-Cum-Retiremerit-Gratuity) gratuity already worked out under usual Govt. arrangements.
(b) Receiving the gratuity and a lump sum amount in lieu of pension worked out with reference to commutation tables obtaining on the date from which pension will be admissible and payable under option orders.
Service gratuity: In cases where an employee at the time of absorption has less than 10 years of service and is not entitled to pension, the question of proportionate pension will not arise, he will only be eligible to proportionate service gratuity in lieu of pension and to DCRG based on length of service which will be paid in addition to pay in the authority.
The applicants were told that they will have to exercise an option within six months either to receive pension and DCRG or receive gratuity and lump sum amount in lieu of pension. They were also told that in case of employees with less than 10 years of service and were not entitled to pension, proportionate pension will not arise and he will only be eligible for proportionate service gratuity in lieu of pension and DCRG based on length of service. The applicants after having got absorbed in service of the IA & AI and served the Public Sector Undertaking, retired in the years 2005, 2003 and 1998 respectively and one of the applicant in O.A. No. 393/2005 was terminated from service in the year 1993 itself, did not make any representation on their own for shifting of the date of absorption but they have made it through an association called All India Public Sector Undertaking Absorbed Retired Employees Welfare Association. The letter of the Secretary of the Association dated 4.12.2003 was considered and by the impugned order dated 20.4.2004 they have been informed that their request for shifting the date of absorption cannot be accepted.
12. From the facts of the case it is not in dispute that after the absorption of the applicants the third respondent' Organisation they had given the option and they have continued their services after having received the commutation lump sum amount from the Govt. and have since retired from the service of the third respondent. One of the applicant is as a matter of fact terminated from service. Therefore it is clear the applicants did not pursue the representations said to have been made but their only representation that was taken into account was the representation of the Secretary of the association dated 14.12.2003, The applicants' claim is for shifting the date of absorption has to be decided on individual basis and cannot be raised on the representation by the Association made in the year 2000 and 2003. Their claim relates to 1975. The applicants did not within a reasonable time of their actual date of absorption namely in the year 1973 seek for shifting the date to 1975. The present request made in the year 2000 and consideration with reference to the request of 2003 is a claim of more than 25 years and for that belated claim the applicants had not given any explanation. Though the order of rejection is made in the year 2004, the Tribunal is not prevented from going in to the nature of the claim and make the applicants responsible for the laches. We find that the delay is inordinate and unexplained. Hence on this ground the claim of the applicants are liable to be rejected.
13. The provision for adding of qualifying service was introduced in Rule 48 'C' of Pension Rules, 1972. The benefit of the rounding off the service is made eligible with effect from 26.8.1983 as per Department of Personnel and Administrative Reforms Notification No. 32/4183 Pension(A) dated 26th August, 1983. The said provision is added to Rule 49 'C' which is extracted below:
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.
All the applicants were absorbed in the IA & AI from the Civil Aviation Department permanently from 1.7.1973 and have been told in clear terms that they will not be eligible to pension if their services were less than 10 years and the question of proportionate pension will not arise. There is no provision by which sub rule 3 can be expanded and applied to the case of the applicants. Any such shifting of absorption should be treated as individual case and should have been treated as a separate and personal to that particular individual. Further as pointed in their reply statement, that in the case of Shri S.D. Kumaravelu, he was falling short of 24 days only for the qualifying service of 10 years and that he had represented to the Director General on this issue on 23.1.1975 itself for the grant of terminal benefits and to condone the deficit of 24 days.
14. With reference to the instances cited by the applicant namely S.M. Thanikachalam, S. Gopalan etc. their application ought to have been made prior to 2.2.1980. Thus it could be seen that the individual application received through the Director General of Civil Aviation Department was considered and accepted by the Govt. of India. We have no reason to say that every case of shifting of the date of absorption should be automatically be granted whenever it is asked. As we have stated above, the question of shifting of date of absorption so as to extend the length of qualifying service is a matter to be decided on individual basis. We do not find any illegality in the order of rejection.
15. The applicants have given a declaration stating that while they were granted service gratuity and DCRG on their absorption at that time and having accepted the same at the time of absorption without even referring to the said acceptance they are estopped from going back on their acceptance and seeking for a pro-rata pension.
16. The order in O.A. No. 641/2003 is a case of absorption of a Peon. It could be seen from the order that he was sent on compulsory deputation to IA & AI with effect from 1.4.1972. He was absorbed in the Department with effect from 1.1.1975. He had given his willingness for permanent absorption only with effect from 1.1.1975. The IA & AI had initially communicated the permanent absorption of the applicant in that case with effect from 1.1.1975. The shifting of this date to an earlier date namely 1.1.1973 was found to be without notice and clearly illegal and hence the O.A. was ordered in his favour. There is no such arbitrary action in this case of shifting the confirmation by IA & AI.
17. The judgment of the Hon'ble Supreme Court in Ajay Jadhav v. Govt. of Goa and Ors. was to the effect that the appellant possessed qualifications laid down in the circular and some similarly placed teachers were already getting pay scales and hence they were entitled for the pay scales. Their Lordships held that the fact remains that three writ petitioners were possessing the same qualifications, i.e. they are not having post graduate degree and were having post graduate diploma and yet had been held entitled to the Grade-I Teacher pay scale and the said judgment was accepted by the Govt. of Goa and therefore the denial of the same treatment was held to be not correct. This judgment in our view will not be of assistance to the applicant. In the case on hand the shifting of absorption has to be done on individual basis taking into account the facts and merits of each case.
18. For all the above reasons, we do not find any grounds to grant the relief as prayed for. The O.A. fails and is accordingly dismissed. No costs.