Central Administrative Tribunal - Cuttack
Dr Manoj Kumar Das vs Health Research on 31 January, 2025
1 O.A.No. 260/00692 of 2022
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00692 of 2022
Reserved on 30.01.2025 Pronounced on 31.01.2025
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Dr. Manoj Kumar Das, aged about 61 years, son
of Shri Raicharan Das, resident of in front of
Pandra Krishi Market, Near Aman Medical,
Pandra, P.O. Hehal, P.S. Sukhdeo Nagar, Ranchi-
834005, Jharkhand.
......Applicant
VERSUS
1. Union of India through the Secretary, Ministry
of Health and Family Welfare, Nirman Bhawan,
New Delhi, P.O. New Delhi, P.S. New Delhi, New
Delhi.
2. The Director General and Secretary,
Department of Health Research Indian Council
of Medical Research, Ansari Nagar, New Delhi,
P.O. New Delhi, P.S. New Delhi, New Delhi.
3. The Director, National Institute of Malaria
Research (formerly Malaria Research Centre),
Indian Council of Medical Research, Sector-8,
Dwarka, P.O. Dwarka, P.S. Dwarka, New Delhi.
4. The Secretary, Department of Expenditure,
Ministry of Finance, North Block, New Delhi,
P.O. New Delhi, P.S. New Delhi, New Delhi.
......Respondents
For the applicant : M/s A.Behera, R.K.Bisoi, Counsel
For the respondents : Ms. K.Pattnaik, Counsel
2 O.A.No. 260/00692 of 2022
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
The prayer of the applicant in this OA is to direct the Respondents to count his service from 04.01.1988 to 15.03.2007 rendered in National Institute of Medical Research (NIMR) under the Integrated Disease Vector Control (IDVC) project as qualifying service for all purposes viz pension and other pensionary benefits by quashing the order dated 26.04.2019 wherein the Respondents rejected his representation.
2. According to Applicant, on 04.01.1988, on being selected through an open advertisement, he was appointed purely on temporary and ad hoc basis as a Technical Officer in the IDVC Project under Malaria Research Centre, NIMR in the pay scale of Rs. 2000-3200/- and posted at Berhampur Field Unit in Odisha. Thereafter, on 21.06.1988, he was transferred and posted at Rourkela Field Unit and, on 02.05.1989, he was posted to Shahjahanpur field Unit in the State of UP. On 31.12.1991, he was appointed as Research Scientist in the same IDVC Project in the pay scale of Rs. 2000-4000/- and on 30.06.1994 he was appointed as 3 O.A.No. 260/00692 of 2022 Senior Research Scientist in the same project in the pay scale of Rs. 3000-4500/-. During 2004-2005, he was posted as in charge of Car Nicobar Island. He was selected in the regular cadre of Senior Research Officer under MRC-NIMR in the pay scale of Rs. 3000- 4000/- and on 15.03.2007 he submitted his technical resignation from the post of Senior Research Scientist and joined in the post of Senior Research Officer on 16.03.2007 and his pay was also fixed in the cadre under FR 27. On 26.04.2019, he submitted representation for counting his period of service from the date of joining on temporary/adhoc basis under IDVC Project under Malaria Research Centre, National Institute of Medical Research (NIMR) from 04.01.1988 till his joining as Senior Research Officer, i.e. 15.03.2007, but his representation was rejected vide order dated 26.04.2019 on the sole ground that the initial appointment of the applicant was not in a regular cadre in MRC, NIMR. The initial engagement of the applicant was purely on temporary and ad hoc basis in IDVC Project. Therefore, the said period cannot be counted for the purpose of pension and other pensionary dues. He approached before the CAT, Ranchi Circuit Bench in OA No. 971 of 4 O.A.No. 260/00692 of 2022 2019. During the pendency of the said OA, he superannuated from service on 30.11.2019. On his prayer, the said OA was transferred to this Bench and renumbered as OA No. 692 of 2022.
3. Learned Counsel for the Applicant, in course of hearing, placed reliance on Rule 13 of CCS (Pension) Rules, 1972, to state that rejection of the representation was without due application of mind because the applicant was continuing under the IDVC project, without any break, followed by regularization, and, thus, in terms of Rule 13 of Rules, the applicant is entitled to count the entire period of service for all purpose. It is also stated that similarly situated employees working under IDVC project approached before the Hon'ble High Court of Delhi in W.P No. 1554 of 2003 praying for their regularization from their initial date of engagement under the project with consequential benefits such as Old Pension, Gratuity, ACP, MACP etc. and the direction issued therein has also been implemented granting the benefits to those applicants by the Government vide letter No. 69/11/2007-ECG-1 dated 08.01.2008 and letter No. 67/6/2003-ECG-1 dated 06.07.2009. The applicant has also placed on record copy of the order of the Hon'ble High 5 O.A.No. 260/00692 of 2022 Court of Delhi in WP No. 5715 of 2017 wherein it was directed that the respondents to uniformly implement regularization in respect of all similarly situated employees. Accordingly, learned counsel for the applicant has submitted that the instant case, being same and similar, the applicant is also entitled to the relief claimed in this OA and, to bolster his argument, he has also placed reliance on the following decisions:
(a) Mahesh Chandra Verma vs State of Jharkhand, (2018) 7 SCC 270;
(b) Prem Singh vs State of UP, (2019) 10 SCC 516;
(c) Harbans Lal vs State of Punjab, 2010 SCC Online P&H 8181 and upheld by the Hon'ble Apex Court vide CC ( C) No. 17901/2011 dated 30.07.2012;
(d) Union of India & Anr vs Dalip Kumar, 2010 SCC Online 311;
(e) Dr. Ravindra Narayan Mishra vs Guru Tegh Bahadur Khalsa College & Ors, 2023 SCC Online Del 3057;
(f) OA No. 1168/2011 dated 31.07.2019 (N.K.Biswas & Ors vs UOI & Ors) of CAT, Jabalpur Bench upheld by the Hon'ble High Court of Madhya Pradesh on 29.11.2022.
4. The Respondents have filed their counter contesting the case of the applicant. Relying on the stand taken in the counter, Ld. Counsel appearing for the respondents has submitted that the project was 6 O.A.No. 260/00692 of 2022 started during Seventh five-year-plan period and a total 413 posts carrying different running pay scale were sanctioned by ICMR from time to time. The applicant was offered appointment vide order dated 03.08.1987 as Technical Officer in pay scale of Rs. 2000-3200/- with condition that the appointment was on purely temporary, on ad hoc and on co-terminus with the project activities. It was also intimated that the post of purely for the purpose of the project scheme and was outside the cadre of regular post of the institute or ICMR and he shall not have any claim for regular appointment or the benefits granted to regular staff of the institute/ICMR. He accepted the offer with such condition and joined as Technical Officer on 04.01.1988. Thereafter, he was transferred and posted to other field units of the country. While continuing as such, in response to an advertisement, he was selected for the post of Research Scientist in pay scale Rs. 2200-4000/- in the IDVC project. He was issued the offer of appointment dated 13.12.1991 with specific condition that he cannot claim for regular appointment to the post. He accepted the offer and joined the post on 20.01.1992. Again, in pursuance of the advertisement published in June, 1993, he was selected and offer of 7 O.A.No. 260/00692 of 2022 appointment was issued to him vide memorandum dated 23.06.1994 as Sr. Research Scientist and pay scale of Rs. 3000-4500/- in the IDVC project purely on temporary, ad hoc basis with co-terminus with the project activity. He accepted the offer and joined the post on 30.06.1994. Subsequently, the applicant was appointed to the post of Sr. Research Officer in the pay scale of Rs. 3000-4500/-, through direct recruitment quota, which was in the regular scientific cadre of ICMR in which post he joined on 16.03.2007 after resignation from the post of Sr. Research Scientist held by him in IDVC project. The representation submitted by the applicant for counting his period of service from 04.01.1988 to 15.03.2007 was duly considered but in absence of any such rule for counting the service rendered by the applicant in the project, the same was rejected. According to the Ld. Counsel for the respondents, since the initial appointment of the applicant was under the project on temporary and ad hoc basis, and having accepted the terms and conditions he joined the post, he cannot claim for counting the service rendered under the project on such temporary and ad hoc basis in absence of any such provision. Further, it is submitted that a resignation from the post held on ad 8 O.A.No. 260/00692 of 2022 hoc basis, for seeking appointment to a regular post, cannot be treated as technical resignation and, as such, the past service rendered on ad hoc basis is not countable as per DoP&T OM dated 17.08.2016.
4.1 The next limb of argument of Ld. Counsel for the respondents is that in pursuance of the order dated 19.03.2012 of Hon'ble High Court of Judicature at Madras, Chennai, in W.P(C) No. 22606/2011- (G.R.Srinivasan & Other Vs UOI & Ors), the services of 14 employees in the IDVC project were regularized w.e.f. the date of their appointment by creating equal number of temporary posts personal to the officer concerned for whom these posts were created and the said posts shall stand abolished as soon as the officers, for whom it was created, retire, confirmed on regular appointment to other posts or for any other reasons.
4.2 It is also submitted that in pursuance to the order dated 20.03.2013 of the Hon'ble High Court of Delhi in W.P.(C) No. 1554/2013 (Malaria Research Centre Employees Welfare Association & Ors Vs UOI & Ors), the services of IDVC project staff were regularized w.e.f. the dates of their appointment by creating 9 O.A.No. 260/00692 of 2022 equal number of temporary posts personal to the officer concerned for whom the posts were created and the said posts got abolished upon their retirement, confirmation on regular appointment to other posts or for any other reasons.
4.3 At the cost of repetition, Ld. Counsel for the respondents stated that since the applicant, after submitting resignation, joined in the post of Sr. Research Officer, he is not entitled to count the service rendered under the project on temporary/ad hoc basis and, hence, the OA being devoid of any for dismissal of this OA.
5. After giving due consideration to the arguments advanced by the parties, we have gone through the averments made in the pleadings and documents placed in support thereof including the decision referred to above. The decisions relied on by the applicant are dealt into as under.
6. In the case of Mahesh Chandra Verma (supra), the question for consideration before the Hon'ble Apex Court is as to whether the serviced rendered by Sri Mahesh Chandra Verma as Judicial Officer Fast Track Court are liable to be counted for pension and pensionary benefits to the post joining in Judicial Service wherein the Hon'ble 10 O.A.No. 260/00692 of 2022 Court after placing reliance on various decisions have held that the applicant along with all judicial officers identically situated are entitled to the benefits of the period of service rendered as Fast Track Court Judges for determination of the length of service for the purpose of pension and retiral benefits.
7. In the case of Prem Singh (supra), the question for consideration before the Hon'ble Apex court is as to whether the service rendered as workcharge employee can be reckoned for computation of qualifying service for the purpose of pension and pensionary benefits. The Hon'ble Apex Court after relying on the various decisions rendered in the subject have held that service rendered in the workcharge establishment shall be counted as qualifying service for the purpose of pension and pensionary benefits.
8. In the case of Harbans Lal (supra), which was upheld by the Hon'ble apex Court in special Leave to Appeal (civil) CC No. 17901/2011 dated 30.07.2012. The Hon'ble High Court of Punjab and Haryana had held 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 regularization is to 11 O.A.No. 260/00692 of 2022 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 Re-structured 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 applicable to the employees recruited in the Punjab Govt. Services prior to 1.1.2004.
In view of the above, the writ petition is allowed. Accordingly respondents are directed to treat the whole period of work charge service as qualified service for pension because accordingly to clarification issued on 30.5.2008 (Annexure P-3), the new defined Contributory Pension Scheme would be applicable to all those employees who have been working prior to 1.1.2004 but have been regularized thereafter. Let his pension and arrears be calculated and paid to him expeditiously, preferably within a period of three months from the date of receipt of copy of this order."
9. In the case of Sri Dalip Kumar (supra) the CAT, PB, New Delhi noted that the statutory rule like Rule 13 of the Central Civil Service (Pension) Rule, 1972 stipulates that qualifying service of a government servant commences from the date he is asked to charge on a temporary capacity provided that this temporary service is followed without interruption by substantive appointment in the same or in another service or post. Since, Sri Dalip Kumar while 12 O.A.No. 260/00692 of 2022 continuing after conferment of temporary status was appointed in a substantive Group-post, therefore, under Rule 13 his qualifying service would commence from the date of grant of temporary status and will be covered under the Pension Rules in vogue. The said order of the Tribunal was upheld by the Hon'ble High Court of Delhi and thereafter by the Hon'ble Apex Court in Special Leave to Appeal (Civil) No. 6742/2010 dated 12.11.2013.
10. In the case of Dr. Ravindra Narayan Mishra (supra), he was initially appointed on 21.10.1992 as ad-hoc Lecturer in Khalsa College for two months followed by ad-hoc appointment in Satyawati College between 1994-1995 and again as ad-hoc lecturer in Khalsa College, where he worked from 1995 to 30.04.2003. Pursuant to recommendation of a duly constituted Selection Committee, he was appointed as Lecturer on 13.03.2003 on temporary basis against the lien vacancy of Dr. (Mrs.) Jitinder Kaur and joined on 16.07.2003. He had rendered continuous service till 27.08.2004 without any interruption and was absorbed on permanent basis in the college with effect from 27.08.2004. He along with others approached the Hon'ble High Court of Delhi relating to counting of the entire period 13 O.A.No. 260/00692 of 2022 of service as qualifying service and treating them to be the employees under Old Pension Scheme. The Hon'ble High court finally adjudicated the matter by holding that the entire service from initial appointment on temporary basis till regularization shall be counted as qualifying service for the purpose of pension and they deem to be in service prior to 01.01.2004 and governed by the OPS.
11. In the case in hand, in the counter so also in course of hearing, it has been admitted by the respondents that in compliance of the order of the Hon'ble High Court of Judicature at Madras, Chennai and the Hon'ble High Court of Delhi, similarly situated employees engaged in the IDVC project were regularized w.e.f. their initial engagement on temporary/ad hoc basis. It is also not in dispute that in pursuance of the advertisement made by the Council, applicant while continuing under the same respondents as Sr. Research Scientist submitted application through his employer/ICMR for the post of Sr. Research Officer under the ICMR and after being selected through a regular process of selection, he tendered his "technical resignation" vide application dated 15.03.2007 and, thereafter, in application dated 16.03.2007, he had intimated that since he has 14 O.A.No. 260/00692 of 2022 been posted at the Field Unit and working as Officer-in-Charge, as such, he may be treated to have joined in the post of Sr. Research Officer. From the above, it establishes that the duties discharged by the applicant in IDVC project as Sr. Research Scientist on temporary ad hoc basis was same and similar to that of the duties after his joining to the post of Sr. Research Officer. After joining, he was allowed protection of pay in the post of Sr. Research Officer under FR 22, as stated by the applicant, has not been disputed by the respondents. The respondents have stated that since the applicant was continuing purely on temporary/ad hoc basis under a project, his plea that he joined in the post of Sr. Research Officer after tendering technical resignation is not acceptable as per DoP&T OM dated DoP&T OM dated 17.08.2016 but we find that this plea has been taken by the respondents for the first time in the counter without any supporting documents to the above effect. After submission of technical resignation vide letter dated 15.03.2007 and joining report dated 16.03.2007 in the post of Sr. Research Officer, the applicant was allowed to continue in the post of Sr. Research Officer by the respondents granting him all the benefits, including the 15 O.A.No. 260/00692 of 2022 protection of his pay and financial upgradation etc. vide order dated 12/19.06.2013 and, thus, when the applicant prayed to count the period of service which he had rendered under the IDVC project for the purpose of pension and pensionary benefits, denying the same on the ground that his resignation cannot be treated as technical one is an afterthought and is not acceptable in the eyes of law.
12. It is a sound principle commonly accepted that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative Article 14 of the Constitution of India vide State of Uttar Pradesh and others Vrs. Arvind Kumar Srivastava and others, (2015) 1 SCC (L&S) 191. As discussed above since in compliance of the order of the Hon'ble High Court of Madras, Chennai and the Hon'ble High Court of Delhi, the similarly situated persons engaged on temporary/ad hoc basis under the project have been regularized from the date of their initial engagement and the whole period has been reckoned for the purpose of pension and pensionary benefits, we see no justification to deny the said benefit to the applicant herein. Therefore, the rejection of the claim of the applicant deserves to be annulled. Accordingly, the 16 O.A.No. 260/00692 of 2022 impugned order dated 26.04.2019 is hereby quashed and as a consequence, the respondents are hereby directed to treat the applicant as an entrant to Govt. service prior to 01.01.2004 and consider grant of pension and pensionary benefits by counting his period of service from 04.01.1988 to 15.03.2007 rendered in NIMR under IDVC project as qualifying service for the purpose of pension and pensionary benefits. The consequential action as per the direction made above, shall be completed within a period of 60 days from the date of receipt of a copy of this order.
13. In the result, the OA stands allowed leaving the parties to bear their own costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS