Central Administrative Tribunal - Chandigarh
Sh. Mewa Singh Water Man Cum Cleaner ... vs Union Of India Though The Secretary on 6 May, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH .....................
Dated: 6th, May, 2010
O.A.NO.944/PB/2009
CORAM: Hon'ble Mr. M.L. Chauhan, Member (J). Hon'ble Mr. Khushiram, Member (A).
Sh. Mewa Singh water man cum cleaner (retire) R/o H. No. 167 Ward No.1 Mohalla Hakima wala, Kurali District (Ropar).
Applicant
Versus
1. Union of India though the Secretary, Government of India, Ministry of telecommunication, New Delhi.
2. Telecommunication Divisional Manager, Ropar.
3. Sub Divisional Officer, Telephones, (BSNL), Kurali, Distt. Ropar.
................Respondents
Present: Mr. J.S. Kamboj, counsel for the applicant. Mr. D.R. Sharma, counsel for the respondents.
O R D E R (Oral)
By Hon'ble Mr. M.L. Chauhan, Member (J):-
The applicant has filed this O.A. with a prayer that directions be issued to the respondents for extending pensionary benefits to the applicant by counting his part time/temporary service as qualifying service.
Briefly stated; the facts of the case are that the applicant was initially appointed as water man cum-cleaner at telephone exchange Kurali on part time/temporary basis for 4 hours in a day. According to the applicant he was engaged in the aforesaid post in the year 1987 but according to the respondents applicant was working as part time water man without any sanctioned post for less than 4 hours a day w.e.f. 06.2.1995. It is admitted case between the parties that service of the applicant was converted into full time casual labour w.e.f. 01.5.2000 vide order dated 28.4.2000 (Annexure A-1) and subsequently the service of the applicant was regularized in the post of Mazdoor in the pay scale of 2550-3200 w.e.f. 29.9.2000 vide order dated 10.10.2001 (Annexure A-2) and initially the applicant was permanently absorbed w.e.f. 1.1.2000 vide order dated 21.12.2001 (Annexure A-3). The applicant has retired on attaining the age of superannuation on 30.4.2008. The grievance of the applicant in this case is that the service rendered by him on part time basis should be counted as qualifying service for the purpose of pensionary benefits.
Notice of this application was given to the respondents. The respondents have filed reply. Facts as stated above have not been disputed by the respondents. The case of the respondents is that service rendered by the applicant on part time basis cannot be counted as qualifying service as per Rule 14 of the CCS (Pension) Rules 1972, Government of India decision no.2. Since the applicant was a part time worker working for less than 4 hours a day, he is not covered under the provisions of the aforesaid Rule as he has also not completed 10 years of qualifying service so as to enable him for pensionary benefits. The applicant has filed rejoinder thereby, reiterating the submissions as in the O.A. We have heard learned counsels for the parties and have gone through the material placed on record.
The question which requires our consideration is whether service rendered by the applicant on part time basis can be counted as qualifying service for the purpose of pensionary benefits. In order to decide this point, it will be useful to quote certain provisions of CCS Pension Rules. The word qualifying service has been defined under Rule 3(q) of the Rules which reads as under:
Qualifying Service means service rendered while on duty or otherwise which shall be taken into account of the purpose of pensions and gratuity admissible under these rules; The qualifying service find mention in the Chapter III- Rule 13: of the Pension Rules stipulates that subject to provisions of these Rules, qualifying service of the Government Servant shall commence from the date he takes charge of the post to which he was first appointed either substantially or in an officiating or temporary capacity. There is a proviso to this Rule which provides that officiating or temporary service without interruption followed by substantive appointment in the same post shall be counted for the purpose of qualifying service. Admittedly the applicant was appointed as Mazdoor on regular basis w.e.f. 1.10.2000 in terms of Rule 37-A of the Pension Rules (Annexure A-3). Rule 14 (2) of the Rules defines service to means service under the Government and paid by the Government from the consolidated fund of India or local fund administered by the Government but it does not include service in a non-pensionable establishment. As can be seen from the Government of India decision No.2 under Rule 14 prior to May 1968 that service paid from contingencies was not to be counted as qualifying service for pension under Article 368 of the Civil Service Rules (Rule 14). The matter was considered in the National Council and in pursuance of the recommendations of the Council it was decided that half the service paid from contingencies will be allowed to count towards pension at the time of absorption in regular employment subject to conditions stipulated in the order. One of the condition stipulated in Government of India decision (2) is to the following effect:
(a) Service paid from contingencies should have been in a job involving whole-time employment (and not part-time for a portion of the day). Thus from the portion as quoted above, it is clear that service rendered in the part time capacity shall not be counted towards pension along with service rendered by an employee after absorption. Respondents have also placed on record a copy of the aforesaid Government of India decision as well as extract of Rule 49 of the Pension Rules on record as (Annexure R-1). Rule 49 (1) stipulates that in case a Government Servant retires in accordance with the provisions of these Rules before completing the qualifying service of 10 years; he shall be entitled to service gratuity whereas Sub Rule 49 2 (b) specifically stipulates that in case a Government Servant retires in accordance with the provisions of these rules before completing qualifying service of 33 years, but after completing qualifying service of 10 years, he shall be entitled to pension and amount of such pension shall be proportionate to the amount of pension admissible in clause (a).
Thus from the reading of aforesaid provision it is clear that a Government Servant is entitled for pensionary benefits on superannuation only if he has put in 10 years of qualifying service and not otherwise. The perusal of the aforesaid provision also makes it clear that service rendered by a person on part time basis shall not be counted as qualifying service for the purpose of pensionary benefits. In the instant case admittedly the applicant has put in less than 10 years of qualifying service as the service of the applicant was regularized w.e.f. 1.10.2000 and he retired on superannuation on 30.4.2008. The service rendered by the applicant prior to 1.10.2000 was on part time basis thus according to us we see no infirmity in the action of the respondents whereby the claim of the applicant for pensionary benefits was rejected.
Learned counsel for the applicant has drawn our attention to the decision of the Punjab and Haryana High Court titled as Kashimir Chand Vs. Punjab State Electricity Board and others 2005(4) S.C.T. 298 to contend that daily wage service followed by regular service has to be counted as qualifying service for pensionary benefits. We fail to understand how applicant can take assistance from this judgment as that was a case whereby petitioner prior to his regularization was working on daily wage/work charge basis. It is not a case of such nature. As can be seen from the Government of India decision No.2 as referred above half the service paid from contingencies will be allowed to count pension at the time of absorption in regular employment provided that a person is employed in a job involving whole time employment. This is not a case of such nature.
Admittedly, the applicant was working on part time basis for less than 4 hours a day and it is not a case where the type of work for which he was engaged, required whole time employment or a job for which regular post could have been sanctioned e.g. Malis, Chowkidar etc. Thus according to us service rendered by the applicant on part time basis cannot be counted as qualifying service for the purpose of pensionary benefits. At this stage we wish to quote decision of the Apex court pertaining to the same Department rendered in Civil Appeal No.290/2009 (arising out of SLP (C) No.7803/2006) decided on 16.1.2000 titled as Bharat Sanchar Nigam Limited, Jammu Vs. Teja Singh. That was a case whereby respondent was employed with the applicant company as daily wage Mazdoor. He was recruited in the year 1973 and was appointed on regular basis w.e.f.11.8.1986. He attained the age of superannuation on 30.8.1989. He filed a representation for payment of gratuity and also retiral benefits. The said retiral benefits were denied by the respondents on the premise that he had not completed 10 years of qualifying service as required in terms of Service Rules. He filed the original application before the Central Administrative Tribunal. The said application was allowed inter-alia on the premise that the applicant had formulated a regularization scheme in the year 1989 in terms whereof respondent should have been given a permanent status. The High Court has upheld the said view. The Apex Court after constituting Constitution Bench decision in case of Secretary, State of Karnataka and Ors Vs. Umadevi (3) and Ors. (2006) (4) SCC 1, held that view as taken by the Tribunal as well the High Court cannot be sustained and decision of the department whereby, service rendered by the applicant as Mazdoor was not be counted as qualifying service was not interfered with.
Thus in view of the above as laid down by the Apex Court in the case of Teja Singh (Supra); where service rendered in the capacity as daily wage Mazdoor was not counted as qualifying service for purpose of pensionary benefits, has been upheld, we see no justification to come to the conclusion that service rendered by the applicant on part time basis should be counted for calculating pensionary benefits. Accordingly, the O.A. is berift of merits which is accordingly dismissed with no orders as to costs.
(KHUSHIRAM) (M.L. CHAUHAN) MEMBER (A) MEMBER (J) Place: Chandigarh. Dated: 06.05.2010. KR* 8 8 O.A. No. 944/PB/2009