Central Administrative Tribunal - Delhi
Shri Rameshwar Singh vs Union Of India on 2 December, 2011
Central Administrative Tribunal
Principal Bench
OA NO. 2332/2010
New Delhi this the 2nd day of December, 2011
Honble Mr.G.George Paracken, Member(J)
Honble Dr. A.K.Mishra, Member (A)
Shri Rameshwar Singh
S/o Sh. Ram Prasad at present
Working as Peon A/c No.8324738 Gp D
Post in establishment of LAO (Army)
Under the Administrative Control of ZO Defence
Accounts Agra MO CDA (Army) Meerut
Ministry of Defence
R/o 31-G-352 Guru Govind Nagar
Ukharra Road Rajpur Chungi
Agra (U.P.)
. Applicant
(By Advocate: Sh. V.P.S.Tyagi)
Versus
Union of India
Through the Secretary,
Ministry of Defence
South Block, New Delhi.
2. Ministry of Personnel, Public Grievances
& Pensions, (Through Secretary)
Department of Personnel and Training,
North Block,
New Delhi.
3. The Controller General of Defence Accounts,
Ulan Battar Marg,
Palam, New Delhi.
4. The Controller of Defence Accounts (Army),
Belvadier Complex,
Meerut Cantt.
5. The Zonal Office
Defence Accounts Department
Agra (U.P.)
6. The LAO (Army)
Agra (U.P.)
.. Respondents
(By Advocate: Sh. Satish Kumar)
O R D E R
Honble Shri George Paracken:
The short question that is being considered in this case is whether the applicant shall be governed by the Old Pension Scheme or the New Pension Scheme which has come into force w.e.f. 1.1.2004.
2. The relevant facts for adjudication of the above issue are delineated here. The applicant was initially appointed as a casual labour w.e.f. 23.5.1989 and he was working in the Area Accounts Office (Army), Agra Cantt. a Sub Office in the Defence Accounts Department under Main Office CDA (Army). Even though his initial engagement was for 89 days on daily wages, he was allowed to continue on year to year basis by giving artificial and technical breaks of one or two days in between in different spells of re-engagements. Some of the similarly placed persons who have been engaged even later than the applicant had approached this Tribunal and on its directions, they have been granted temporary status followed by regularization in service in terms of the Scheme issued by the Government of India vide DOPT OM No.51016/2/90-Estt.(C) dated 10.9.1993 by the respondents vide Annexure A-4 order dated 26.12.2002. Later on, 50% of the service rendered by them with temporary status was also ordered to be counted for the purpose of retirement benefits. However, the applicants and certain other similarly placed persons were regularized in Group D post and appointed as Peon in the scale of Rs.2550-3200 only w.e.f. 20.6.2007. However, 50% of service rendered by them as casual labourers was counted for the purpose of retirement. Thereafter, the applicant has opted to be governed under CCS Pension Rules 1972 as the modified pension rules which came into force w.e.f. 1.1.2004. According to the applicant, in terms of the scheme of 1993 for regularization of causal labourers with temporary status, those who had put in three years of service were treated at par with the temporary Group D employees for the purpose of contribution towards the GPF scheme. The applicant has, therefore, made a representation in this regard but the respondents have rejected the same vide Annexure A-1 letter dated 16.3.2010. By the said letter he was informed that regularization of his service was made in terms of the directions of this Tribunal contained in its order dated 31.10.2005 but the regularization of 11 other individuals was made in compliance of an earlier order dated 11.10.2000 in OA-2488/1999. He was also informed that New Pension Scheme is applicable to all those causal labourers whose service have been regularised as Group D on or after 1.1.2004 in terms of Government of India DOPT letter No.49014/1/2004-Estt(C) dated 26.4.2004.
3. The applicant has challenged the aforesaid decision of the respondents in this OA and sought a direction to the respondents to continue to govern him under the General Provident Fund Rules and permit him to contribute the subscription thereto. He has also sought a direction to the respondents to apply to the provisions of CCS Pension Rules, 1972 in his case also. In this regard he has relied upon various judgments/orders of this Tribunal.
4. In OA-1195/2006 Umesh Singh and others vs. Union of India and others, this Tribunal, following its earlier order in OA-122/2005 and OA-152/2006 Giriraj Sharma vs. Union of India and others decided on 23.1.2006, held that the aforesaid order of the DOP&T dated 26.4.2004 was not to be made applicable in the case of the applicants therein and not to make any recovery from their pay and allowances. Respondents were also directed to refix their pay by grant of increments accrued during the period rendered as temporary status casual labourers from 1993 till regularisation with all consequential benefits including counting of 50% service towards qualifying service prior to grant of temporary status and after that full period as qualifying service for pension. In the case of OA-122/2005 Giriraj Sharma (supra) the applicant was engaged as causal labourers w.e.f. 14.6.1989. They were granted temporary status vide order dated 15.3.1994 w.e.f. 1.9.1993. They were also granted other benefits under the Scheme of 1993 including increments w.e.f. 15.3.1994 and deductin of GPF etc. His main grievance was with regard to applicability of OM dated 26.4.2004 in his case. The said OM was applicable only in the cases of Central Government employees who have been appointed on or after 1.1.2004 whereas applicant had already been appointed prior to that date. Following the directions contained in the orders of the Coordinate Bench of this Tribunal, the applicants case was also allowed holding that the OM dated 26.4.2004 shall not apply in his case because he has already been granted temporary status before the issuance of the said OM in accordance with the scheme of 1993 wherein certain benefits were given to those causal labours who were granted temporary status who had put in 3 years service thereafter. Therefore, those benefits cannot be taken away by the administrative instructions by giving it retrospective effect.
5. The applicant has also relied upon the decision of the Bombay Bench of this Tribunal in OA-855/2002 Vinayak Balkrishna Keer vs. Union of India and others, dated 3.3.2003, Writ Petition No.10837/2001 General Manager, South Central Railway, Rail Nilayam, Secunderabad, A.P. and another vs. Shaik Abdul Khader decided by Andhra Pradesh High Court on 23.6.2003, Writ Petition No.108/2001 B.Hmangaihsanga Vs. The State of Mizoram and others decided by the Gauhati High Court on 4.7.2003 etc.
6. Respondents in their reply have submitted that the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pension, Government of India vide OM No.51016/2/90-Estt(C) dated 10.9.1993 formulated the scheme called Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India, 1993. The aforesaid Scheme was a policy decision of the Government and never contemplated that merely because a casual labour who was accorded temporary status would acquire the constitutional status of a civil servant. They have also referred to the provisions contained in the scheme to the effect that despite conferment of temporary status, the services of a casual labourers may be dispensed with by giving a notice of one month in writing. A casual labourer with temporary status can also quit service by giving a written notice of one month. The wages for the notice period will be payable only for the days on which such casual worker is engaged on work. They have also submitted that the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pension, Government of India vide OM No.49014/1/2004-Estt(C) dated 26.4.2004 modified the Scheme of grant of Temporary Status in view of Introduction of New Pension Scheme. Vide the aforesaid OM, it was mandated that the scheme for grant of temporary status and regularization of casual workers in Central Govt. officers formulated in pursuance of the judgment dated 16.2.1990 in the case of Raj Kamal & Ors. Vs. Union of India has been reviewed in the light of introduction of New Pension Scheme in respect of persons appointed to the Central Government service on or after 1.1.2004 and it has been decided to modify the scheme as under:
(i) As the new Pension Scheme is based on defined contributions, the length of qualifying service for the purpose of retirement benefits has lost its relevance, no credit of casual service, as specified in para 5 (v), shall be available to the casual labourers on their regularization against Group-D posts on or after 1.1.2004.
(ii) As there is no provision of General Provident Fund in the New Pension Scheme, it will not serve any useful purpose to continue deductions towards GPF from existing casual employees, in the terms of para 5 (VI) of the scheme for grant of temporary status. It is, therefore, requested that no further deductions towards General Provident Fund shall be effected from the casual labourers w.e.f. 1.1.2004 onwards and the amount lying in their General Provident Fund accounts, including deductions made after 1.1.2004, shall be paid to them.
7. Again vide OM No. 49014/1/2004-Estt(C) dated 23.7.2004, Ministry of Personnel, Public Grievances and Pension has mandated that interest up to 30.4.2004 may be allowed on GPF accumulations who have bestowed with the temporary status. They have also stated that in the case of the applicant, he was accorded temporary status w.e.f. 1.9.1993 in terms of the order passed by this Tribunal dated 31.10.2005 in OA-355/2005 but he was accorded the constitutional status of a civil servant only on 15.6.2007 when he was offered a temporary post of Peon in the grade of Peon in the Defence Accounts Department. By the time, the New Pension Scheme effected from 1.1.2004 has already been implemented. Therefore, the applicant is not entitled to get the benefit of Old Pension Scheme as per the CCS Pension Rules, 1972.
8. In the rejoinder filed by the applicant he has reiterated that he was engaged as casual labour on 23.5.1989 and was granted temporary status by operation of law w.e.f. 1.9.93. He was, however, granted the substantive absorption in Group D post as Peon in the pay scale of Rs.2550-3200 w.e.f. 20.6.2007. Since the Modified Pension Scheme has been introduced vide DOP&T OM dated 26.4.2004 whereby the casual labourers who have been granted temporary status under DOP&T OM dated 10.9.93 and who have been later granted substantive absorption in regular service w.e.f. 1.1.2004 or after are also brought within the purview of the Modified Pension Scheme ignoring the envisaged benefit to which the causal labourer who are conferred with temporary status by operation of law under DOP&T OM dated 10.9.1993. He has also reiterated that one of the provisions of OM dated 10.9.1993 is that the causal labourer with temporary status by virtue of rendering three years of service as causal labourer with temporary status would be treated at par with temporary Government employees for purpose of contributing towards GPF subscription etc.
9. We have heard the learned counsel for the parties. As stated earlier, this OA has been filed by the applicant seeking a direction to the respondents to quash the impugned communication dated 16.3.2010 holding that the New Pension Scheme introduced vide DOPT letter dated 26.4.2004 is applicable to him by virtue of his being granted substantive appointment in Group D post of Peon by regularization in terms of this Tribunals order dated 31.10.2005. Admittedly, the applicant was initially engaged as daily wager w.e.f. 23.5.1989 and he was conferred with temporary status w.e.f. 1.9.1993 by operation of law as per DOP&T OM dated 10.9.1993 followed by substantive appointment in Group D post by regularization w.e.f 15.6.2007. As such he has acquired certain legal right under the DOPT OM dated 10.9.1993 which includes counting of 50% service rendered as causal labourer with temporary status as qualifying service towards pension. The Honble High Court of Andhra Pradesh in the matter of General Manager, South Central Railway Rail Nilayam Secunderabad AP & Anothers Vs. Shaik Abdul Khader, ATJ 2004 (2) 23, it has been held as under:
Therefore, we have no doubt in our mind that once temporary status is granted to a person who is absorbed later on the regular service carries forward not only the leave to his credit but also carries forward the service in full. Half of the service rendered by him as casual labour before getting the temporary status has to be counted.
10. There is also a decision of Mumbai Bench of this Tribunal in the case of Vinayak Balkrishan Keer Vs. Union of India & others, ATJ 2003 (3) 593 on the same issue. Again this Tribunal rendered judgment in OA-1195/2006 Umesh Singh & others vs. Union of India & others, decided on 30.11.2006 following the order of the Coordinate Bench of this Tribunal in OA-122/2005 & OA-152/2006, Giriraj Sharma and another (supra) wherein it was held that the causal labourer with temporary status who had rendered continuous service of three years after conferment of temporary status would continue to be entitled to get benefit under that scheme and OM dated 26.4.2004 shall not be applicable to them. The order of this Tribunal In OA-1195/2006 Umesh Kumar & others vs. Union of India & others was challenged before the Honble High Court of Delhi vide WP (C) No.2294/2007 but the same was dismissed by order dated 30.3.2007. The issue attained finality as the respondents have implemented the directions contained in the said order/judgment.
11. In view of the above position, we have no hesitation to allow this OA. Consequently, the impugned letter Annexure A-1 dated 16.3.2010 is quashed and set aside. We also direct the respondents to apply the provisions of CCS (Pension Scheme) 1972 in respect of the applicant. They are also directed to continue to extend the benefits under the GPF Rules to the applicant and deduct the monthly subscription regularly and without any interruptions. Aforesaid directions shall be complied with by passing appropriate orders under intimation to the applicant within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
( Dr. A.K. Mishra ) ( George Paracken )
Member (A) Member (J)
sd