Central Administrative Tribunal - Madras
P Shanmugam vs M/O Urban Development on 12 August, 2025
1 OA 969/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA.No.310/00969/2023
Dated the 12th day of August, Two Thousand Twenty-Five
CORAM:
HON'BLE MR. M. SWAMINATHAN, Member (J)
P. Shanmugam,
No.25/4, Central Government Quarters,
Thirumangalam Campus,
Annanagar, Chennai 600040 ...Applicant
By Advocate : Ms. V. Kaanchana for M/s. K.S. Saravanan
Vs
1. The Special Director General (Chennai)
Central Public Works Department,
Government of India,
Rajaji Bhavan, Besant Nagar,
Chennai 600 090
2. The Chief Engineer (Chennai)
Central Public Works Department,
3rd Floor, G Wings Rajaji Bhavan,
Besant Nagar, Chennai 600 090
3. The Executive Engineer,
Chennai IV Division, CPWD,
Nirman Bhavan,
Thirumangalam, Chennai 600 40 ...Respondents
By Advocate : Ms. M. Santhini
2 OA 969/2023
ORDER
(Pronounced by Hon'ble Mr. M. Swaminathan, Member (J) This OA has been filed by the applicant seeking the following relief:
"To call for the records of the 2 nd respondent in its No.32/13/2020- Admin.1/328-29, dated 08.03.2023, communicating the decision of the 1st respondent in its No.10(2)1(A)/CE(Works-cum-TLQA/2023/326H, dated 02.03.2023 and quash both the orders and consequently direct the respondents to cover the applicant under the Old pension scheme by granting him pension and other terminal benefits by counting his service from 11.01.1991 and pass such other orders or orders as may be deemed fit and thus render justice".
2. Brief facts of the case as submitted by the applicant are:
The Applicant joined the respondent department as Driver on temporary basis in the year 1991. Subsequently, the applicant filed OA No.280 of 2000 before this Tribunal for regularization of his service. This Tribunal, by order dated 12.07.2001, directed the respondents to regularize the service of the applicant. Even after the direction of this Tribunal, the respondents did not regularize the applicant and therefore the applicant again filed OA No.1596 of 2010, wherein this Tribunal passed a positive direction to the respondents to regularise the applicant, by order dated 16.12.2011.
The applicant was regularized by the respondent with effect from 11.12.2006. The applicant made a representation to cover him under the Old Pension Scheme counting his service from 11.01.1991. The respondents by order dated 08.03.2023 rejected the request of the applicant. Against which, the applicant has preferred the present OA for the aforesaid relief.3 OA 969/2023
3. The learned counsel for the applicant submitted that the applicant initially having been appointed on 11.01.1991 under the respondents and worked continuously, is entitled to get the coverage under the Old Pension Scheme by counting the past service. She contended that in terms of CCS Pension Rules, past service if followed without break by regular service, it is to be counted for the purpose of pension. If that being the case, under pension rules, rejection of the applicant's representation is arbitrary and without application of mind.
4. The learned counsel for the applicant further submitted that the reason for rejection as found in the impugned order that the applicant's name was not sponsored by the employment exchange, is an irrelevant factor in so far as counting past service for pension is concerned. Therefore, it is apparent that the respondents have considered several irrelevant facts in rejecting the applicant's claim.
She further submitted several courts have categorically held in several cases that when a person is appointed before 01.01.2004 and has a right to claim regularization of his services before 01.01.2004, the date of introduction of CPS Scheme, in such case such employee should be covered under the old pension rules only.
5. The learned counsel for the applicant contended that the DoPT, Government of India, have issued series of instructions in the 4 OA 969/2023 year 2020, 2021 & 2023 enabling several categories of employees to get coverage under old pension scheme. A perusal of the OM would indicate that the object of the Government was to cover more employees under the old pension scheme especially when the employees have been appointed prior to 01.01.2004. Even in case where such appointment was made after 01.01.2004, if the vacancies existed before 01.01.2004, the Government has directed to cover under old pension scheme.
6. The learned counsel for the applicant relied on the following judgements:
(i) Judgement of the Hon'ble Madras High Court, dated 19.03.2014, in the case of Union of India Vs K. Puniyakoti & others reported in (2014) 2 CTC 777
(ii) Judgement of the Hon'ble Delhi High Court, dated 19.09.2024, in the case of Chandi Prasad & others Vs Union of India & others, reported in (2024) SCC OnLine Del 7958 Therefore, she prayed for the relief sought in the present OA.
7. Per contra, the learned counsel for the respondents relied on the reply statement filed by her. She contended that the applicant's interpretation that the applicant was appointed on 11.01.1991 and he should be covered under old pension scheme is clearly a misrepresentation and misleading one. She submitted that the applicant was not appointed in any post under Government of India on 11.01.1991, by following the prescribed Recruitment Rules. The 5 OA 969/2023 applicant has been appointed with effect from 11.12.2006 vide CPWD Memorandum NO.10(1)/2011/CCC.II /ES/2065, dated 16.12.2011. The OM specifically spelt in Vide Para-No.25, that "he will be governed by the New Pension Scheme which is in force w.e.f.
01.01.2004. Since the applicant's appointment in CPWD was from 11.12.2006, the applicant is governed only by New Pension Scheme.
8. The learned counsel for the respondents further contended that counting of past continuous service for pension is not applicable to the present case since the applicant has not been appointed in any post under the Government. He is not a government servant but rendered service of a driver and paid through hand receipt. In such circumstances, the past services cannot be counted and old pension is not applicable to the applicant. She further submitted that as per the scheme of grant of temporary status and regularization of causal workers issued by Ministry of Personnel, Public, Grievances & Pension (Department of Personnel & Training), OM NO.51016/90 Estt, dated 10 th September 1993 for granting temporary status in Group D posts the pre-requisite is that the Labour should have been engaged through employment exchange as per the OM dated 7 th May 1985. In the present case, the representation of the applicant was rejected on the ground that the applicant was not sponsored by employment exchange. Therefore, she prayed for the dismissal of the OA.
6 OA 969/20239. Heard both the parties at length, perused the pleadings, materials on record and the citations cited by the respective parties.
10. The question involved in the present case is that whether an employee who joined the organization prior to 01.01.2004 either on daily wages/adhoc/temporary basis whatever be the name called, and subsequently regularized after 01.01.2004, will be covered under the old pension scheme or under new pension Scheme.
11. We find the present issue is no more res integra and the Hon'ble Delhi High Court in the case of Chandi Prasad & others Vs Union of India & others in WP (C) No.3481/2019, order dated 19.09.2024, had answered the question that the entire service of the applicant from the date of initial appointment on daily wages/adhoc/temporary basis till the date of permanent appointment/regularization shall be counted as qualifying service for the purpose of pension and they will be deemed to be in service prior to 01.01.2004 and governed by old pension scheme. The relevant portion of the judgement is extracted below:
"10. The issue framed by the Court for its consideration was as follows:
"21. The framing of the issue would not govern the outcome of the case. The primary issue for consideration was whether in the peculiar facts and circumstances of the case, respondents who had been appointed on ad-hoc basis before 7 OA 969/2023 01.04.2004 could avail the benefit of OPS?"
11. This judgment is significant for the present petition inasmuch as it deals with both the aspects arising herein i.e. initial appointment being temporary/ad-hoc followed by regularisation and criteria for coverage under OPS/NPS Scheme. The High Court observed that Respondents could not be treated as fresh appointees in stricto-senso. As per the terms and conditions of the appointment letters, their services as ad- hoc appointees were not considered for purpose of their regularisation but on their successful appointment as regular employees, services rendered on ad-hoc basis were safeguarded for purpose of pay protection. Affirming the decision of the Tribunal, Court held that the Tribunal rightly came to a conclusion that Respondents would be governed by OPS. Relevant paragraphs of the judgment are as follows:
"22. The Tribunal has examined the issue in two different ways. The relevant observation of the Tribunal on this aspect reads thus:--
"14. Ex-facie, the main celebrated arguments of the learned counsel for the respondents and their objections projected in the impugned orders, that since the PGIMER, Chandigarh, has not taken any approval of the Department of Personnel & Training (DoPT) before extending the adhoc appointments, till the regular appointments of the applicants, so they are not entitled for the benefit of the GPF-cum-Old Pension Scheme, and if it is granted to them, then it will open floodgates of litigation, for other institutions, are not only devoid of merit, but mis-placed as well and deserve to be repelled for, more than one, (following) reasons.
15. At the first instance, it is not a matter of dispute, that having possessed the requisite qualifications and experience etc, in pursuance of the advertisement and having successfully completed the recruitment process as per statutory rules and regulations of the PGIMER, all the Doctors (applicants) were duly appointed as Assistant Professors, in their respective fields, during the period ranging from 1996 to 2003, by the Competent Authority. Since then, they are performing the same duties with devotion, which are performed by regular appointees. Similarly, the clinical duties of all the Doctors (applicants) are the same, as performed by regular incumbents. Subsequently, the PGIMER advertised the posts manned by the applicants, for filling on regular basis. The applicants, have requisite qualifications & experience, and were eligible for regular appointments against the said posts, as well. They were duly selected and appointed, on regular basis, without any interruption maintaining and protecting their continuity 8 OA 969/2023 in service, pay scale and other service benefits, including the increments, which they were drawing as adhoc appointees.
16. In that eventuality, for the purpose of pensionary benefits, the qualifying service of the applicants shall commence from the date, they took charge of the posts, to which they were first appointed, in temporary capacity, as that temporary service was followed, without interruption, by substantive permanent appointments in the same service/posts, as contemplated under Rule 13 (Chapter III) of the Central Civil Services (Pension) Rules, 1972 (Annexure A-28).
17. Not only that, as indicated hereinabove, the applicants continued working, as such, uninterruptedly and without any break. Even the Respondents No. 2 & 3, have duly acknowledged the factual matrix, in this regard, in their written statement."
xxx xxx xxx
23. In the same manner, the second feeble argument & ground to reject the claim of the applicants, vide impugned order, Annexure A-1, that if the request of faculty members of the Institute is allowed, then it will give rise and would open flood gates of litigation by a number of representations from various other Institutions/organizations, is again not, at all, tenable. Once, it is held that the applicants are legally entitled to the benefit of GPF-cum-Old Pension Scheme, as discussed here-in-above, then their claim cannot possibly be denied on the ground that it will give rise to a number of representations and would open flood gates of litigations, by various other Institutions/ organizations for grant of similar relief. It is now well settled principle of law that the legitimate and legal right of the applicants cannot be denied to them, in the garb of plea of opening of Flood Gate Litigations.
xxx xxx xxx
26. This is not the end of the matter. What cannot possibly be disputed is that in the wake of representations of the applicants, the Director of the PGIMER, vide letter dated 21.1.2010, favourably recommended their cases and forwarded it to be put up and the Governing Body of the PGIMER (Central Government), in its meeting, held in January, 2011, had constituted a 6 Member sub-Committee, to look into the grievance of the applicants. The Committee had also favourably recommended their case, vide letter 9 OA 969/2023 dated 14.9.2011 (Annexure A-14). Then, the matter was considered by the Governing Body under Agenda No. F-6 on 28.04.2012 and it was resolved that all these faculty members were on ad-hoc basis for a long period and could have been regularized prior to 01.01.2004, had the Selection Committee met earlier.
27. Meaning thereby, had the meeting of the Governing Body was timely held, then the service of the applicants would have been regularized much prior thereto. In other words, since the respondents failed to convene the timely meeting of the Governing Body, so the applicants, cannot, possibly be blamed, in any manner, in this regard. Concededly, the Governing Body appreciated the circumstances and after detailed discussion, agreed to approve the proposal to grant the benefit of GPF-cum-Old Pension Scheme, to the applicants, as a special case, vide Agenda Item No. F-6, in its meeting held on 28.4.2012, and it was resolved as under:--
"The matter was discussed in detail. The Governing Body was informed about the recommendations of the Committee under Joint Secretary (HR) of the Ministry and that all these faculty members were on ad-hoc basis for a long period and could have been regularized prior to 01.01.2004, had the Selection Committee met earlier. The Governing Body appreciated the circumstances but at the same time the fact remains that these faculty members were actually appointed on regular basis only after 01.01.2004. After detailed discussion, the Governing Body agreed to approve the proposal as a special case, which could not be cited as a precedence, subject to the approval of the government".
28. Surprisingly enough, the Ministry of Health and the Competent Authority, without assigning any cogent reasons, and without any detailed discussion of legal/rule position and entitlement of the applicants, have taken a somersault, and rejected their claim, on speculative grounds. Admittedly, as per Regulation No. 61 of Schedule-1 appended to PGIMER, Chandigarh Regulations, 1967, its Director has been empowered to appoint Faculty, on adhoc basis, for two years. It was duly acknowledged and explained by Respondents No. 2&3 in their written statement that since, the meeting of the Governing Body, is held once or twice a year, so keeping in view the public interest, exigency of service and heavy rush of patients, the institute filled up these vacancies on adhoc basis, in various disciplines in various departments, as a stop gap arrangement, till final process of recruitment is made. As the applicants, continued 10 OA 969/2023 on their respective posts, till their regular appointments, so the mere fact the PGIMER has not obtained the approval of the DoPT, is not a ground, much less cogent, to deny the legitimate claims of the applicants, in this relevant connection, as contrary projected on behalf of the respondents. It was for the competent authorities to get alleged approval from the DoPT (if any), and the applicants cannot possibly be blamed, in any manner, in this regard, and their legitimate right cannot be taken away. Thus, any such administrative instructions, requiring the approval of the DoPT, for extension of adhoc service, pail into insignificance, in view of the failure of the authorities. The respondents, therefore, now cannot possibly be heard to say, rather estopped, from their own act and conduct, to deny the pointed benefits of GPF-cum-Old Pension Scheme to the applicants."
xxx xxx xxx
25. It is a fact on record that the respondents were performing the same duties, which were being performed by regular appointees. Respondents continued without any interruption i.e. maintaining and protecting their continuity in service, pay scale and other service benefits, including the increments, as being drawn by them as ad-hoc appointees.
The said fact is fortified by the conduct of their appointing authority as pay protection was allowed to them on their appointment on regular basis. However, in the case of fresh appointments they were given a pay scale of fresh appointee. At this stage it would be relevant to reproduce the minutes of Sub-Committee meeting held on 14.09.2011.
"At the outset, the Chairman asked the details of the case from the Member Convener. It was informed to the members that there are about 23 faculty members who were appointed on adhoc basis (as per details in Annexure) without break prior to 01.01.2004 and have been working without break till their appointment on regular basis as Assistant Professors after 01.01.2004. They have represented for applicability of Old Pension Scheme in their case as they were appointed prior to 01.01.2004. It was also informed that the matter was earlier referred to the Govt. of India on 23.06.2009 and in response this Ministry of Health and Family Welfare, vide their letter dated 01.01.2010 intimated that the proposal was sent to DOPT and they have stated that "Since PGIMER, Chandigarh, in their offer of appointment had Stated that only NPS will apply in these cases, it is for them to resolve the matter".11 OA 969/2023
The matter was placed before the Governing Body on 17.01.2011, the Governing Body recommended that Sub- Committee to examine the issue may be constituted in the Ministry as to whether any departure from the NPS can be considered in PGIMER or other similar institutions on the ground that the initial ad-hoc appointments have taken effect from a date earlier than 01.01.2004. Accordingly, a Sub- Committee was constituted under the Chairmanship of JS (HR). The Committee was informed that all these faculty members have been appointed against the regular vacancies and pay protection was also allowed to them on their appointment on regular basis. After due deliberations the Committee considered that there is a case/ground for extending benefits of CCS (Pension) Rules, 1972 (Old Pension Scheme) to these 23 faculty members. The request is further strengthened on the grounds that the meeting of Standing Selection Committee for selecting them on regular basis could not be held regularly, which is beyond the knowledge and control of these 23 faculty members. The Committee, however, further observed that it should be a onetime measure and should not be quoted as precedent in future.
This committee recommends for extending the benefit of Old Pension Scheme to these 23 faculty members after approval by the Competent Authority".
26. For the reasons mentioned above, the respondents were not treated as fresh appointees in stricto sensu. As per the terms and conditions of the appointment letter their services as ad-hoc appointees were not considered for the purpose of their regularisation but on their successful appointment as regular employees the services rendered by them on ad-hoc basis were safeguarded for the purpose of pay protection. In view of above discussion, the Tribunal rightly came to the conclusion that respondents would be governed by OPS prevalent at the time of their initial appointment.
27. Viewed from another angle, the respondents were denied benefit of OPS only on the ground that NPS would apply to employees who were appointed on or after 01.01.2004. It is undisputed that respondents were working against those very posts since 1999 onwards although initially on adhoc basis but that cannot be a ground to disentitle them from benefit of OPS."
12. In A.R.D. Nayagam v. The Director, Local fund Audit, Chennai- 108 and Others, 2012 SCC OnLine Mad 5098, Petitioner was 12 OA 969/2023 appointed as Water Supply Attender on daily wages in 1980 and his service was regularised on 04.08.2006. On attaining the age of superannuation on 31.05.2009, he sought pensionary benefits. However, his request was declined on the ground that Petitioner was not entitled to regular pension but only to a contributory pension since his regular appointment was made after 01.04.2003 as contemplated under G.O.Ms. No.259 dated 08.08.2003. Upon filing the writ petition, Respondent contested the same and stated that Government of India introduced the Contributory Pension Scheme dated 08.08.2003 for employees who joined service on or before 01.04.2003 and therefore, those who joined on or after 01.04.2003 are not eligible for regular pension under Tamil Nadu Pension Rules. As Petitioner's service was regularised in the time scale of pay only w.e.f. 23.06.2006, he was not eligible to regular pension that existed prior to 01.04.2003. Negating the contention of the Respondent, the Madras High Court held as follows:
"7. When the very G.O. says that the new pension scheme, namely contributory pension scheme is applicable to persons, who are newly recruited after 01.04.2003, I fail to understand as to how the respondents are entitled to treat the petitioner as newly recruited person after 01.04.2003, merely because, his service was regularised on 23.06.2006. The respondents are not disputing the fact that the petitioner was originally appointed as Water Supply attender as early as on 27.02.1980. Certainly, the words 'newly recruited' cannot be construed to mean that it applies only to persons, whose services were regularised before 01.04.2003. New recruitment and regularisation are two different aspects and stages and therefore, the respondents are not entitled to put both together in the same boat and deny the benefit of pension under the general scheme to the petitioner."
13. Recently, the High Court of Punjab & Haryana in the case of Union of India & another v. Dr. Sameer Aggarwal & another, decided on 18.04.2022 in CWP No. 7694/2022, relied on the earlier judgment in Dr. Neelam Aggarwal (supra) and granted the same benefit as was granted to the Respondents in Dr. Neelam Aggarwal (supra) and relevant paragraphs of the judgment are as follows:
"It was also noticed by the Tribunal that the said judgment had been upheld by the Co-ordinate Bench in Union of India v. Dr. Neelam Aggarwal, 2019 (4) SCT 842 on 22.10.2018. Resultantly, the Senior Standing Counsel for Union of India could not dispute the fact that the application was allowed in the same terms and the applicant- respondent No. 1 herein was granted the benefit of GPF- cum-Old Pension Scheme (OPS). It is pertinent to mention 13 OA 969/2023 that the Tribunal did not grant any benefit for the past service rendered by him with Punjab Government but for the arrears towards his claim for pension. The said respondent has also not filed any cross-petition against that claim.
xxx xxx xxx A perusal of the earlier order of the Division Bench would also go on to show that it was noticed by the Division Bench that the similarly situated persons were working against those posts since 1996 and there was continuity of service and the services rendered by them were safeguarded for the purpose of pay-protection. It was also noticed that the PGIMER had extended the benefit of Old Pension Scheme to the similarly situated non-medical faculty and the same was not denied in the writ petition.
Accordingly, we are of the considered opinion that respondent No. 1 is identically situated and there was no denial of the said fact in the pleadings before the Tribunal.
Another aspect which is to be noticed is that another Division Bench of this Court in Harbans Lal v. The State of Haryana, 2012 (3) SCT 362, was also noticed in the earlier decision of the Tribunal which had upheld the principle that once the services of work-charge employees were regularized then the earlier service was also liable to be considered for the purpose of pension and the entire service was to be counted back from the said date of his initial appointment. It is not disputed that the SLP No. 23578 of 2012 filed by the State of Punjab was dismissed on 30.07.2012 and Review Petition No. 2038/2013 was also dismissed on 04.11.2015. The relevant portion reads as under:
"From the above discussion, we have come to the conclusion that the entire daily wage service of the petitioner from 1988 till the date of his regularisation is to be counted as qualifying service for the purpose of pension. He will be deemed to be in govt. service prior to 1.1.2004. The new Restructured Defined Contribution Pension Scheme (Annexure P-1) has been introduced for the new entrants in the Punjab Government Service w.e.f. 01.01.2004, will not be applicable to the petitioner. The amendment made vide Annexure P-2 amending the Punjab Civil Services Rules, cannot be further amended by issuing clarification/instructions dated 30.5.2008 (Annexure P-3). The petitioner will continue to be governed by the GPF Scheme and is held entitled to receive pensionary benefits as 14 OA 969/2023 applicable to the employees recruited in the Punjab Govt. Services prior to 1.1.2004."
Accordingly, keeping in view the above discussion we are of the considered opinion that the present writ petition is liable to be dismissed since respondent No. 1 is identically situated and placed with similarly situated faculty members of petitioner No. 2-Institute. There is no justifiable reason for this Court to interfere on account of the fact that there was an admission regarding all these aspects in the pleadings itself by the petitioner No. 2-Institute. Resultantly, the present writ petition is hereby dismissed."
14. From a conspectus of the aforementioned judgments, it is palpably clear that Courts have repeatedly affirmed that if an employee enters service prior to 01.01.2004, i.e. the date of enforcement of NPS, in whatever capacity, whether as temporary or ad-hoc employee and renders continuous and uninterrupted service, followed by regularisation/absorption, the period of service shall count towards qualifying service for pension and such an employee will be deemed to be in service prior to 01.01.2004 and thus governed by OPS. This is the view taken by this Court in Dr. Archana Verma (supra) and Dr. Ravindra Narayan Mishra (supra). This Court is conscious of the fact that an appeal is pending in Dr. Ravindra Narayan Mishra (supra) but be it noted that when the appeal was listed on 07.05.2024, the Court had made a categorical observation that the Bench was not staying the operation of the order and it would be open to the Respondents to seek implementation of the order as per law. In view of the many judgments, now covering the issue in favour of the Petitioners, it is hardly open to JNU to take a position that Petitioners are covered under the expression "new entrants/new recruits" envisaged under NPS, wiping out their entire past service and depriving them of pension under OPS.
15. For all the aforesaid reasons, this Court comes to the irresistible conclusion that entire service of the Petitioners from the date of initial appointments on daily wages/ad-hoc/temporary basis till the date of permanent appointment/regularization shall be counted as qualifying service for the purpose of pension and they will be deemed to be in service prior to 01.01.2004 and governed by OPS. Needless to state that NPS will be inapplicable to the Petitioners and accordingly, necessary and corrective orders shall be issued by JNU in this regard.
16. Writ petition is allowed in the aforesaid terms".
12. If we apply the judgement cited supra to the present case, the applicant joined the respondents' organization in the year 1991 and 15 OA 969/2023 after continuous service he was regularized with effect from 11.12.2006. Therefore the applicant cannot be considered as new entrant and hence the entire service of the applicant from the date of initial appointment, i.e., 11.01.1991 on temporary basis till the date of regularization should be counted as qualifying service for the purpose of pension and the applicant will be deemed to be in service prior to 01.01.2004, hence he will be governed by old pension Scheme.
13. Further this Tribunal in its order dated 12.07.2001 in OA 286/2000 has clearly mentioned that "the applicant in OA 286/2000 has been working from 1991 onwards. When there is vacancy there is no necessity to utilise the applicants services as drivers on hand receipt basis. In these circumstances, it is only proper on the part of the respondents as a model employer to consider the case of the applicants for regularisation. Admittedly there are vacancies and against these vacancies the respondents are bound to consider the case of the applicants for regularisation as drivers." Hence the contention of the learned counsel for the respondents that the applicant has not been appointed in any post under the Government and he is not a government servant but rendered service of a driver and paid through hand receipt, cannot be accepted.
16 OA 969/202314. In the above circumstances, the impugned orders dated 02.03.2023 & 08.03.2023 are quashed and set aside. The respondents are directed to cover the applicant under old pension scheme by counting his service w.e.f. 11.01.1991. The said exercise shall be completed by the respondents within a period of 3 months from the date of receipt of copy of this order.
15. In the result the OA is allowed on the above terms. There shall be no order as to costs.
(M. Swaminathan)
Member(J)
MT 12.08.2025