Central Administrative Tribunal - Kolkata
Tushar Biswas vs Eastern Railway on 18 April, 2022
\ . ' moe | CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA Date of Order: 18.04.2022 O.A. No. 350/484/2022 Coram: Hon'ble Ms. Bidisha Banerjee, Judicial Member In the matter of : Tushar Biswas, Son of Ashutosh Biswas, aged about 42 years, working as Welder Helper, residing at Village-Bagula Purba Para (N), C/O- Pabitra Biswas, P.O.- Bagula, P.S.- Hanskhali, Dist.- Nadia, Pin 741502 (Ph. No. 9433545151) (Email- [email protected]) beeen Applicant -Versus- 1. Union of India through the General Manager, Eastern Railway, Fairlie Place, Kolkata -- 700001. 2. The Chief Personnel Officer, Eastern Railway, Fairlie Place, Kolkata -- 700001. 3. The Sr. Divisional Personnel Officer, Eastern Railway, Howrah, PO+PS Howrah -- 711101. 4. The Secretary to the Government of India, Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training, North Block, New Delhi -- 110001. beaeees Respondents For The Applicant(s): Mr. A. Chakraborty Ms. P. Mondals Counsel For The Respondent(s): Ms. D. Ghosh Dastidar, Counsel ORDER(ORAL Per: Ms. Bidisha Banerjee, Member (J)
Heard Ld. Counsels for both sides.
2. This application has been preferred to seek the following relief:
ed "ta) An order do issue directing the respondent nos.
i and 2 to issue directions to te Competent Authority to grant scope of switching over to Old 'Pension Scheme in foveur of the-appiieant on immediate basis for extending and effecting coverage of his case.under Central Services {Pension} Rule 1972 in place of National Pension System at an earliest. .
{b} Te grant Costs and incidentals.
{fc} Any-other order or orders as the Hon'ble Tribunal deems fit and proper."
This matter is taken up by Single Bench in view of the revised list dated 04.04.2000 issued under Sub-Section- (8) of Section 5 of the Administrative Tribunals Act, 1985, and, ag no complicated question of law is involved, this matter is taken up for disposal with the consent of both the parties, 3 The applicant herein had applied against a Joint Eamployment Notice bearing no, ER/1/2001 SPL by the Eastern Railway for which he appes ared in the Written test, as well as in PET, in the month of duly and December respectively in the year 2008. The applicant was thereafter declared successful and the selection process was completed before O1.01,2004 when the Old Pension Scheme was in effect. However, he was offered appointment only after 01.01.2004, ie. when the New Pension Scheme came into effect.
4. At hearing, Ld. Counsel for applicant would vociferously argue that, since the vacancies In question arose before the notification was issued with an implied promise of coverage under old rules, and, as the selection was completed before 01.01.2004, Le. before the introduction of New Pension Scheme (NPS in short) of O1.01.8004, but the arders could only be issued after O1.01.2004 on account of delay caused by the \ concerned authorities, his client should be covered by the Old Pension Rules of 1972, in terms of the DOPT notification dated 17.02.2020 itself. Further in support, Ld. Counsel would cite the decision of the Hon'ble High Court at Delhi in WP (C) No. 2810/2016 in the case of Inspector Rajendra Singh & Ors. vs. UOI & Ors. rendered on 27.03.2017 -- wherein the petitioners who were recruited after 01.01.2004, against vacancies that occurred before 01.01.2004 were declared as eminently entitled to be covered by the Old Pension Rules and that bringing them into the ambit of New Pension Scheme of 2004 in bad in law. Ld. Counsel for applicant would also place the decision of Hon'ble Apex Court in the case of UOI Vs Shabad Prakash Punia SLP (C) No. 7373/2021 and batch cases where the petitioners who had applied pursuant to the notification dated September, 2003 and June, 2003 for the post of Constable/GD in Central Armed Police Forces and Sub- Inspectors through Staff Selection Commission, and had qualified in the said examination of 2003, sought for benefits under Old Pension Scheme under the CCS (Pension) Rules, 1972, whereas, the New Contributory Pension Scheme that was introduced by a notification dated 22nd December, 2003, and implemented with effect from 1st January, 2004, was applied.
Hon'ble Court found that the batch mates of the most of the petitioners have been given the benefits of Old Pension Scheme under various judgments passed by the Court as under:
(i) Patil Gopal Babulal & Ors. vs. Union of India & Ors., W.P. (C) 11646/2018; .
(ii) Tanaka Ram & Ors. vs. Union of India & Ors., 2019 (174) DRJ 146 (DB);
Shyam Kumar Choudhary and Ors. vs. Union of India being W.P. (C ) No. 1358 of 2017 and Niraj Kumar Singh & Ors. vs. Union of India & Ors., W.P. (C ) No. 13129/2019.
The Hon'ble Court therein held as under:
"8. The issue in the present batch of matters is no longer res integra. Consequently, the request for additional time to file counter-affidavit is declined.
9, In the case of certain constables of the BSF, this Court by its judgment dated 12% February, 2019 in Tanaka Ram (supra) allowed the prayer of those Petitioners and permitted them to avail of the benefit of the Old Pension Scheme. It was held that the option to continue the Old Pension Scheme should be extended to all those who has been selected in the examination conducted in 2003, but were issued call letters only in January or February, 2004. It is also pertinent to mention that the Respondents aggrieved by the said judgment filed an SLP bearing No. 25228/2019 before the Apex Court. The said SLP has been dismissed by the Supreme Court vide order dated 02"4 September, 2019.
10. This Court in Shyam Kumar Choudhary and Ors. vs. Union of India being W.P.(C) No. 1358 of 2017 allowed similar petitions vide judgment dated 09% April, 2019 against which the Respondents had again filed SLP bearing no. 31539/2019 which was again dismissed on 27% September, 2019. The Respondents thereafter chose to file a review petition bearing no. 2188/2020 before the Apex Court in the said matter and the said Review petition was also dismissed on merits vide order dated 24% November, 2020.
11. Following the judgment of Shyam Kumar Choudhary (supra), the learned predecessor Division Bench in Niraj Kumar Singh and Ors. Vs. Union of India & Ors.,W.P.(C) No. 13129/2019 granted similar benefit to 17 petitioners who had applied to the post of Sub-Inspector in Central Police Organisations pursuant to an advertisement dated 21* June, 2003 even when the written examination and physical efficiency test were held in November, 2003, medical examination was held in January-February, 2004 and final result was declared in May, 2004. The said 17 petitioners were issued offer of appointment on 02"4 June, 2005 and on accepting the same, the appointment letter was issued on 14* July, 2005 for joining the Sashastra Seema Bal.
12. Another Coordinate Bench vide judgment dated 06% November, 2020 in W.P.(C) No. 6548 of 2020 as well as 6989/2020 was pleased to allow the said petitions for grant of Old Pension Scheme by following the judgment in Shyam Kumar Choudhary (supra).
13. Having regard to the fact that _in the present batch of cases also the advertisement/notification was issued in September. 2003 and June, 2003 ie prior to coming into force of the present contributory pension scheme on 22"4 December, 2003, : , e view th mt .
Pension Scheme.
14. This is more so when the batchmates of the petitioners are getting this benefit under various judgments passed by this Court.
15. For the above reasons, the petitioners are allowed. Respondents are directed to extend the benefit of Old Pension Scheme to each of these Petitioners and pass consequential orders within a period of eight weeks from today.
16. Accordingly, the writ petitions along with pending applications stand disposed of."
The decision was rendered on 15.01.2021 by the Hon'ble High Court at New Delhi and the decision in one of such Writ Petitions bearing No. WP (C)9252/2020, was assailed before the Hon'ble Apex Court in SLP No. 7373/2021 but the SLP was dismissed on 09.07.2021. 5, Therefore, Ld. Counsel for the applicant would vociferously contend that the issue has attained a finality that, where the vacancies arose and the notification to All wo vacancies was published before 01.01.2004, the recruitment procesa was also inthated as also the results were published prior to 01.01.2004, but the appointment letters could be issued only after 01.01.2064, the incumbents would still be governed by the Old Pension Rules of 1972, as in the decisions quoted supra. Ld. Counsel would also refer to the judgement of this Tribunal in O.A. 1815 of 2021 (Prem Kumar Vs SE Railway) and analogous matters which is taken on record.
6. Li. Counsel for respondents would fairly agree that the matter can be remanded back to the authorities for a fresh consideration in the light of the deeision in. Inspector Rajendra Singh & Ors. vs. UOI & Ors., as well as in Shabad Prakash Punia & Ors. vs. UOI & Ors. referred to aupra.
Therefore, the instant O.A. is hereby be disposed of with a divection upon the respondent authorities to consider the representation of the applicant dated 27.05.2020 fat Annexure A-5 to the O.A) and to address the grievance of the applicant in the light of the DoPT O.M. dated 17.02.2026, as well as, the decisions cited supra and to pass an appropriate order within 3 months from the date of receipt of a copy of this order.
7, The OLA. accordingly, stands dispose a"
'(Bidisha Banerjee) Member () UW