Central Administrative Tribunal - Delhi
Dr Nusrat Hameed Khan Through Lrs Mrs. ... vs Ministry Of Ayush on 2 June, 2023
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OA No.240 of 2021 with MA-963 of 2023
Court No.6 (item No.30)
Central Administrative Tribunal
Principal Bench
OA No.240/2021
MA 963 of 2023
Reserved on: 25.05.2023
Pronouncement on: 02 .6. 2023
Hon'ble Dr.Chhabilendra Roul, Member (A)
1) Dr. Nusrat Hameed Khan (Deceased)
Research Officer (Unani)
Through Legal Heir
(a) Mrs. Zeenat Begum aged about 88 years
W/o Late Abdul Hameed Khan
Mohalla: Bairoon Sarai,Sardhana, Distt: Meerut
Uttar Pradesh
2) Dr. Abdul Rahim, Aged About 55 years
Research Officer(Unani)
S/o Late Masroor Ahmed
R/o E-111,3rd Floor Mannat Apartment,
Near Hari Kothi, Abul Fazal Enclave,
Jamia Nagar, New Delhi 110025
3) Dr. M. Anwarul Islam Research Officer (Unani)
S/o late S. Mohammad Jamil Khan
R/o C-31,Pocket 9A,Jasola Vihar
New Delhi-110025
4) Dr. Shamsul Arafin, Research Officer (Unani)
S/o Late Wali Mohd Khan
R/o House no. 358 Sector 14,
Vikas Nagar,Lucknow 226022
5) Dr. Pervez Khan, Research Officer (Unani)
S/o Late Zaheer Ahmad Khan
R/o 4/812 Flat nO. 2 First Floor
Sameer Apartment Sir Syed Nagar
Civil lines,Aligarh 202001 (UP)
6) Dr. Mumtaz Ahmad, Research Officer (Unani)
s/o Late Mahboob Hasan
R/o C 657/1 Gtb Nagar Kareli Prayagraj -211016
7. Dr. Mohd. Naseem
Research Officer(Unani
S/o Mr. Sarfarazul Haqude
R/o H.No. 4/411, Bakery Wali Gali,
Zohrabagh, Dodhpur, Aligarh,Pin 202001
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OA No.240 of 2021 with MA-963 of 2023
Court No.6 (item No.30)
8) Dr. Hafiz C Mohammad Aslam
Research Officer(Unani)
S/o C .Abdul Ghani
R o 51/18 3rd Floor, Hussain Maistry Street,
East Kalmandapam Road,Royapuram,
Chennai 600 013
9) Dr. Jawadul Haq
Research Officer(Unani)
S/o Abdul Haq
R/o H No 32/196A Gadda Street Kurnool
Andhra Pradesh
10) Dr. Syed Gulnawaz Ahmed
Research Officer(Unani)
S/o Raisuddin (late)
R/ o 303 Poornananda classic towers
opp:Govt. Chest Hospital1
S.R. Nagar Hyderabad,Telangana Pin-500038
11. Dr. Ziaul Haq Siddiqui
Research Officer (Unani)
S/o Abdur Wahab
R/o H.No.14/240, Sector 14 Vikas Nagar,
Lucknow-226022
12). Dr. Arifa Khatoon
Research Officer ( Unani)
S/o Dr.Abdul Hafeez Khan
R/o H. No. No. 529 Ka /872
Skat Vihar Khurram Nagar, Lucknow-226022
13. Amir Faisal Khan
ResearchOfficer (Unani)
S/o Late Safir Ahmed Khan
R/o 4/75 Badar Bagh Civil Lines,
Aligarh .....Applicants.
(Through Advocate:Mr.K.C. Mittal)
Versus
1. Union of India,Through Secretary
Ministry of Ayush, Ayush Bhawan,
GPO Complex, B-Block,INA,
New Delhi-23
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OA No.240 of 2021 with MA-963 of 2023
Court No.6 (item No.30)
2. Central Council for Research of Unani
Medicine
Through its Director General
Department of Ayush
Ministry of Health & Family Welfare
61-65, Institutional Area,Opp. D Block,
Janakpuri, New Delhi-58 -Respondents
(Through Advocate: Mr.Vijendra Singh)
ORDER
By Hon'ble Dr.Chhabilendra Roul, Member (A):-
The present Original Application has been filed by the applicants because of non-action on the part of the respondents in respect of their representations on various dates for covering them under the Old Pension Scheme (OPS).
2. The brief facts of the case is that the respondents advertised vacancies for post of Assistant Research Officers (Unani) in the month of March, 1996. The applicants were considered fit for appointment and they were given appointment as Assistant Research Officers on various dates starting from 12.7.1996 to 1.8.1996. At the time of issuing the appointment letters, the respondents mentioned that their appointment is purely on adhoc basis against reserved vacant post. The Government of India vide notification No.5.7.2003-ECB & dated 22.12.2003, introduced the 4 OA No.240 of 2021 with MA-963 of 2023 Court No.6 (item No.30) New Pension Scheme (NPS). The services of the applicants were regularized on 03.02.2004. The applicants made individual representations to the Directorate of CCRUN, New Delhi for covering them under the Old Pension Scheme. They cited the OM No. 57/04/2019- P & PW (B) dated 17.02.2020 of the Department of Pension and Pension Welfare, New Delhi where one time option has been given to be covered under the CC(Pension) Rules, 1972. In their representation, they have stated that they have given several reminders to cover them in GPF Old Pension Scheme instead of NPS Scheme and they have been requested to give their option to adopt the Old Pension Scheme. However, the respondents have not taken any final decision regarding the representations furnished by the individual applicants.
Being aggrieved, they have filed the present Original Application in this Tribunal, seeking the following relief(s):-
(a). Directing the respondents to cover all the applicants under the Old Pension Scheme instead of New Pension Scheme and deduct their general provident fund up to date and take all necessary steps in this regard; and
(b). Pass such other /further direction(s) which this Hon'ble Tribunal deems fit and 5 OA No.240 of 2021 with MA-963 of 2023 Court No.6 (item No.30) proper in the facts and circumstances of the present case.
3. On admission of the OA notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed his rejoinder to the same.
4. The main grounds undertaken by the applicants in their OA, have stated that all of them have been appointed by a regular process. Advertisements were issued against reserved vacancies and they were selected by due procedure of selection. Though the appointment letters mentioned that their appointment was purely on adhoc basis against the reserved vacancies, their appointments are continuous against the regular vacancies from the respective dates of their appointments. In view of this, the entire advertisement and selection process was initiated and conducted well before 01.01.2004 and the vacancies advertised before 31.12.2003.
5. The learned counsel for the applicant cited OM No. 57/04/2019- P & PW (B) dated 17.02.2020 of the Department of Pension and Pension Welfare, New Delhi, where the results were declared before 1.1.2004 against vacancies occurring on or before 31.12.2003. 6
OA No.240 of 2021 with MA-963 of 2023 Court No.6 (item No.30) The successful candidates for such recruitment shall be eligible for covering under the CCS( Pension) Rules, 1972. The learned counsel for the applicants also relied upon the latest DOP&T instructions dated 03.03.2023, wherein in para 4 the following has been stated as under:-
"4. The matter has been examined in consultation with the Department of Financial Services, Department of Personnel & Training, Department of Expenditure and Department of Legal Affairs in the light of the various representations/references and decisions of the Courts in this regard. It has now been decided that, in all cases where the Central Government civil employee has been appointed against a post or vacancy which was advertised/notified for recruitment/appointment, prior to the date of notification for National Pension System i.e. 22.12.2003 and is covered under the National Pension System on joining service on or after 01.01.2004, may be given a one-time option to be covered under the CCS(Pension) Rules, 1972 (now 2021). This option may be exercised by the concerned Government servants latest by 31.08.2023"
6. The learned counsel for the applicants further cited the rulings dated 6.12.2016 of the Principal Bench in OA 1807/2014 titled Dr. Mohd. Fazil vs. Union of India & Anr and the judgment dated 02.5.2016 passed by the Coordinate Bench of the Tribunal at Lucknow in OA No. 548/2014 in case of 7 OA No.240 of 2021 with MA-963 of 2023 Court No.6 (item No.30) Rafat Khanam vs. Union of India and Ors. and the judgment dated 28.3.2018 passed by the Patna Bench of the Tribunal in OA No. 050/00817/2016 in the case of Hakim (Mrs. ) Najmus Sehar vs. Union of India and Ors. In Rafat Khanm vs. Union of India 's case, the facts are similar to the present instant case. The applicants therein joined the Central Council for Research and Family Medicine, Department of Ayush, Ministry of Health and Family Welfare as Assistant Research Officer on 26.7.1996 initially on adhoc basis and subsequently they were regularized on 03.02.2004.
The Principal Bench of the Tribunal vide its order dated 06.12.2016 In OA 1807/2014 has held as under:-
7. In view of the terms of service notified in the Advertisement, as mentioned in paragraph 5 above, I am fully convinced that the applicant is entitled for the grant of the prayers made in the O.A., which gets further fortified by similar view taken by the Lucknow Bench of the Tribunal (supra).
8. In the conspectus of the discussion in the foregoing paragraphs, the O.A. is allowed.
Respondent No.2 is directed to pass a specific order granting the benefits of pension-cum-DCR Gratuity Scheme along with GPF to the applicant from the date of his eligibility, within a period of three months from the date of receipt of a copy of this order.
7. The learned counsel for the applicant further cited the rulings dated 06.12.2021 in Writ Petition No. 8 OA No.240 of 2021 with MA-963 of 2023 Court No.6 (item No.30) 17042/2021 in the case of Kamaluddin vs. State of UP and Anr., the Apex Court has held that:
"In view of the aforesaid fact, this Court finds that the reason assigned by the authority concerned in rejecting pensionary benefit to petitioner based upon the Government Order dated 17.07.2019 according to which an employee appointed subsequent to 01.04.2005 shall be governed by New Pension Scheme is misconceived and not sustainable in law as the appointment of the petitioner is 14.06.1989 which is prior to 01.04.2005. Thus, for the reasons given above, the impugned order so far as it relates to petitioner is set aside, and a mandamus is being issued to respondent no.2-Nagar Ayukt, Nagar Nigam Prayagraj to grant pensionary and other retiral benefits to the petitioner within a period of three months from the date of production of certified copy of this order. The writ petition is allowed subject to the observations made above"
8. The learned counsel for the applicant stated that the Civil Writ Petition No.17204 of 2015 in U.O.I & others vs. Mukti Prasad Yadav and Ors., the Hon'ble Patna High Court, vide its judgment dated 15.12.2015, has held as under:
"4. The Tribunal, noticing the Full Bench judgment as well as the judgment of the Karnataka High Court in this regard in favour of the employees, held that they would be covered by the Old Pension Scheme. To us, the problem is simple. The New Pension Scheme would apply to persons coming in Government Service after 1-1- 2004. The applicants before the Tribunal were first casual labourers, but with effect from 1989 they acquired the temporary status or the status of a temporary employee of the Government in the 9 OA No.240 of 2021 with MA-963 of 2023 Court No.6 (item No.30) Department of Posts. After three years of such continuous service, they were entitled to certain benefits, which a permanent Group-D employee gets. They were receiving the same, pending confirmation in service as a permanent employee. Towards pensionary benefits, G.P.F. deductions were made. Then came cut-off date as 1-1-2004. In the meantime, the vacancies having occurred in the year 2011, they were substantially appointed as permanent employees. They were regularized as permanent employees. To us, the answer would be evident from the fact that they were already in service prior to 1-1-2004, though in a temporary status. To us, it appears that the meaning of the Scheme, which puts the cut-off date as 1-1-2004 is that all those persons, who have come in service after 1-1-2004 would be covered by the New Pension Scheme. As noted and stated above, the applicants before the Tribunal, the respondents herein, were already in service, though in temporary status prior to the cut-off date. To them, this cut-off date would not apply, and consequently they would be deemed to be in service on 1-1-2004 having been confirmed as permanent employees in Group-D with effect from 2011. Thus, we find no error in the judgment and order of the Tribunal.
5. This writ petition is, accordingly, dismissed."
9. Similarly in the CWPOA No. 849 of 2019 in case of Kamal Dev Sharma vs. State of Himachal Pradesh and Ors., vide its order dated 15.7.2020 has held that the Hon'ble High Court has held that :
"16. Aforesaid Rules provide that employees appointed on or after 15.5.2003 and who are already contributing towards the GPF, shall cease to continue to subscribe towards the GPF from the date of notification of Contributory Pension Scheme, but in the instant case, petitioner cannot be said to be appointed on or after 15.5.2003, rather for the reasons stated herein above petitioner's date of appointment will relegate back 10 OA No.240 of 2021 with MA-963 of 2023 Court No.6 (item No.30) to his initial date of appointment i.e. 1999 and as such, he cannot be estopped from contributing towards GPF.
17. Consequently, in view of the aforesaid discussion as well as law relied upon, present petition is allowed and impugned order dated 9.8.2011 (Annexure P-4) is quashed and set- aside. It is further held that the HP Civil Services Contributory Pension Rules, 2006 is not applicable retrospectively in the case of the petitioner and he is entitled to contribute towards GPF qua which he has been already allotted GPF No. i.e. Med-16543. In the aforesaid terms, present petition is disposed of, so also pending application(s), if any."
10. In view of the aforementioned judgments by various High Courts and also by the coordinated Benches of this Tribunal as cited above, the learned counsel for the applicant averred that the present applicants are entitled to be covered under the Old Pension Scheme from the date of their initial joining as Assistant Research Officers on adhoc basis against reserved vacancies.
11. The learned counsel for the respondents has relied heavily upon the counter affidavit filed by the respondents. He stated that the letter of Ministry of Health & Family Welfare, Govt. of India, Deptt. Of Ayush (letter No.7-19/2014-CCRUM/Estt. dated 19.11.2014) which covers regularisation of temporary status employees for their coverage under the Old Pension Scheme is not applicable in the instant case 11 OA No.240 of 2021 with MA-963 of 2023 Court No.6 (item No.30) as that letter covers a particular group of employees who were granted temporary status. Similarly, he averred that the DOP&T OM dated 26.2.2016 as quoted by the applicants in their OA also not applicable as the employees in that case were casual labourers who have been granted temporary status and who have been given benefit of 50% of the service rendered under temporary category to be counted for the purpose of the retirement benefits.
As regards to letter dated 17.2.2020 of the Department of Pension and Pension Welfare, he averred that this OM covers only for appointment on regular basis and not on adhoc basis as the applicants in the present instant case.
12. The learned counsel for the respondents further averred that the orders of the coordinate Benches of the Tribunal at Lucknow Bench in the case of Rafat Khanam (supra) in OA No. 548/2014, (order dated 5.2.2016) was stayed by the Lucknow High Court on 28.2.2018 on account of non representation by the Petitioner. Similarly in OA No. 1807/2014 (Dr. Mohd. Fazil vs. U.O.I.( supra) was also stayed by the Hon'ble High Court of Delhi vide its judgment dated 26.2.2019.
Again order dated 23.3.2018 in OA 12 OA No.240 of 2021 with MA-963 of 2023 Court No.6 (item No.30) No.050/00187/2026 in Hakim (Mrs.) Najmus Sehar vs. U.O.I.(supra) was also stayed by the Patna High Court vide its judgment dated 28.3.2018. In view of this, he averred that these orders by the coordinate Benches of the Tribunal have not attained finality as these are still under adjudication by the superior courts. Hence, reliance cannot be placed on these orders of the coordinate Benches .
13. I have perused the records of the case and heard the arguments advanced by both parties. It is admitted fact that the Government of India is given one time option to employees who have been appointed on regular basis after 1.1.2004 but the recruitment process started before 31.12.2003, they have been given to migrate to Old Pension Scheme and stipulated date is given for such option is 31.08.2023. Here the main issue is that whether this OM also covers to casual/ adhoc/ temporary employees whose recruitment process started well before 1.1.2004 or the employees who have been appointed on adhoc/ temporary/casual basis against regular vacancies following due process of appointment in pursuant with the advertisements to be covered under the Old Pension Scheme. In this case the three judgments 13 OA No.240 of 2021 with MA-963 of 2023 Court No.6 (item No.30) cited by the learned counsel for the applicants particularly Hon'ble High Court of Allahabad in Writ A. No. 17042/2021 titled as in Kamaluddin vs. State of UP and anrs. (supra) the judgment of High Court of Patna in C.W.J urisdiction Case No. 17204/2015 titled as Union of India & anr. vs. Mukhti Prasad Yadav & ors. (supra), and the High Court of Himachal Pradesh at Shimla in Kamal Dev Sharma vs. State of Himachal Pradesh & anors. (Supra) are squarely applicable in the present case. In addition, the coordinate bench of this Tribunal at Chandigarh in OA No. 060/2018 has allowed the migration to the Old Pension Scheme to the Lectures (Assistant Professors) of PGI at Chandigarh who were appointed on adhoc basis against the regular vacancies prior to 1.1.2004. This was assailed by the Union of India in Punjab & Haryana High Court at Chandigarh in CWP No. 2371/2020 titled as Harbans Lal vs. State of Punjab & Ors., vide its judgment dated 31.08.2010, has held as under:-
"16. 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 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 14 OA No.240 of 2021 with MA-963 of 2023 Court No.6 (item No.30) 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 continuė 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.
17. 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."
The Hon'ble High Court upheld the decision of coordinate Bench of this Tribunal at Chandigarh. In the instant case, the applicants have been appointed by following due process of advertisement and recruitment rules well before 1.1.2004. They were appointed on adhoc basis against the regular vacancies in the year 1996. In view of the applicability of the ratios of judgments and orders mentioned above, the present applicants are entitled to get the benefit of Old Pension Scheme.
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OA No.240 of 2021 with MA-963 of 2023 Court No.6 (item No.30)
14. In view of this, the present OA is allowed and the respondents are directed to allow the present applicants to exercise their option to migrate to the Old Pension Scheme. Once the applicants furnished their option to migrate to the Old Pension Scheme, they shall be allowed to be migrated to such Scheme. This exercise shall be completed within a period of eight weeks from the date of receipt of a certified copy of this order. There is no order as to costs.
All pending MAs are also disposed of accordingly.
(Dr. Chhabilendra Roul) Member (A) /mk /