Central Administrative Tribunal - Kolkata
Sanjib Kr Dey vs O F B on 9 September, 2022
© 1 0.A./1463/2021 with 0A/985/22 &0.A/1540/22 KOLKATA BENCH, KOLKATA Date of Order: 09.09.2022 -- Coram: Hon'ble Ms. Bidisha Banerjee, Judicial Member (0.A/1463/2021 (Kolkata) M.A/463/2021 4 1 SANJIBKR DEY & Ors VS OFB 0.8,/985/2022 ( Kolkata) 'M.A,/380/2022 : ! 0.A,/1540/2022 ( Kolkata) M.A,/599/2022 Co few SANDIP MONDAL & Ors VS DEFENCE KRUSHNA CHANDRA ACHARYA & Another | VS a ORDNANCE FACTORY BOARD (OFB) For The Applicant(s): Mr. P. € Das, counsel Ms. T. Maity, counsel For The Respondent(s): Mr. it. Halder, counsel ORDERORALD Per: Ms. Bidisha Banerjee, Member (J):
This matter is taken up by Single Bench in view of the revised list dated 04.04.2000 issued under Sub-Section (6) of Section 5 of the Administrative Tribunals Act, 1985 and as no complicated question of law is involved this matter is taken up for disposal at the admission stage with the ceasent of both the parties.
2. As common question of facts and law govern these matters, these cases are being heard out analogously, upon due notice and with consent of all the sides, to be disposed of by this common order.
- CENTRAL ADMINISTRATIVE TRIBUNAL .......--- -- ~~ ----0 = -
vate Se me eet @) 2 0.A./1463/2021 with OA/985/22 &0.A/1540/22
3. M.A/463/2021, arising out of O.A 1463/2021, M.A 380/2022 arising out | of O.A 985/2022 and M.A 599/2022 arising out of O.A 1540/2022 have been filed by the applicants praying for liberty to pursue this O.A jointly on account of commonality of interest and, that, they are pursuing a common _cause of action. On being satisfied, M.A is allowed.
4. For the sake of brevity, facts of OA. No. 1463/2021 is being delineated and.
discussed hereunder:
The applicant, who joined service after 01.01.2004 and wants to be governed. by the old pension scheme, has preferred this O.A to seek the following reliefs:
"a) Leave may be granted to the applicants to file this application jointly under Rule 4(5)(a) of the Central Administrative Tribunal (Procedure) Rules, 1987 as because all the applicants' grievances are common and they are challenging the same impugned order;
b) To quash and/or set aside the impugned office order dated 4th August, 2021 issued by the General Manager, Gun & Shell Factory, Cossipore whereby and whereunder they have rejected the claim of the applicants by not giving the benefit of Old Pension Scheme under CCS (Pension) Rules, 1972 which is clearly against the paragraph 18 of the judgment passed by the Delhi High Court in the case of Inspector Rajendra Singh & Ors. -vs- Union of India & Ors being Annexure A-5 of this original application;
c) To quash and/or set aside the stereotype impugned office order dated 04.08.2021 issued by the General Manager, Gun & Shell Factory, Cossipore whereby and whereunder the benefit of Old Pension Scheme sought for by the applicants has been rejected on the ground which is clearly violates the paragraph 18 of the judgment passed by the Delhi High Court in the case of Inspector Rajendra Singh & Ors. -vs- Union of India & Ors. which is affirmed by the Hon'ble Supreme Court being Annexure A-5 of this original application.
d) To quash and/or set aside the impugned office memo dated 17th. February, 2020 issued by DOP&T by which the paragraph 18 of the judgment passed by the Delhi High .
Court in the case of Inspector Rajendra Singh & Ors. -vs- Union of India & Ors has not been followed and by misinterpretation of that paragraph, the aforesaid office memo issued by the DOP&T cannot be applicable being Annexure A-14 of this original application.
e) To declare that the office memo dated 17.02.2020 issued by the Government of India, Department of Pension & PW, Lok Nayak Bhawan, Khan Market, New Delhi-110003 under paragraph 4 whereby the DOP&T has said that 'in all cases where the results for recruitment were declared before 01.01.2004 against vacancies occurring on or before | 31.12.2003, the candidates declared successful for recruitment shall be eligible for coverage under the CCS (Pension) Rules, 1972. Accordingly, such Government servants who were declared successful for recruitment in the results declared on or before 31.12.2003 against vacancies occurring before 01.01.2004 and are 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. The option may be exercised by the concerned Government servants latest by 31.06.2020' has to 3 0.A./1463/2021 with OA/985/22 &0.A/1540/22 be modified in terms of paragraph 18 of the order dated 27th March, 2017 passed by the Hon'ble High Court at Delhi, New Delhi in the case of Inspector Rajendra Singh & Ors. - vs- Union of India & Ors. in WP(C) No. 2810/2016 which has been affirmed by the Hon'ble Supreme Court vide' order dated 08.01.2017 in Special Leave Petition being Special Leave Petition (Civil) Diary No(s). 39335/2017 decided by the Division Bench of the Hon'ble Supreme Court whereby it has been affirmed of the Hon'ble Delhi High Court's judgment dated 27.03.2017 that has to be incorporated in the said office memo dated 17.02.2020 and further declare that paragraph 4 of the DOP&T;s office memo dated 17.02.2020 will not be applicable in the case of the present applicants' case in terms of the decision of the Hon'ble Delhi High Court's order 27.03.2017 under para 18. referred above and to give benefit of coverage under Old Pension Scheme under CCS (Pension) Rules, 1972 in favour of all the applicants who were selected for appointments in terms of the vacancies sanctioned by the Ordnance Factory Board vide office order dated 20.10.2003 which is appearing Annexure A-4 of this original application;
f) To pass an appropriate order directing upon the DOP&T to modify the office memo dated 17.02.2020 in terms of paragraph 18 of the order dated 27th March, 2017 passed by the Hon'ble High Court at Delhi, New Delhi in the case of Inspector Rajendra Singh & Ors. -vs- Union of India-& Ors. in WP(C) No. 2810/2016 which has been affirmed by the Hon'ble Supreme' Court vide order dated 08.01.2017 in Special Leave Petition being Special Leave Petition (Civil) Diary No(s). 39335/2017 decided by the Division Bench of the Hon'ble Supreme Court.
g) To declare that all the present applicants those who are appointed in terms of the vacancies sanctioned by the Ordnance Factory Board in the year 2003 are entitled for the coverage under Old Pension Scheme under CCS (Pension) Rules, 1972 and they are entitled for such benefit by setting aside and/or quashing the stereotype impugned office order 04.08.2021 being Annexure A-5 of this original application;"
5. The applicants are aggrieved as their representation seeking coverage under the ambit of Old pension Scheme has been rejected by the respondent authority. Ld. Counsel for the applicant submits that the vacancies arose in 2003 i.e before the introduction of New Pension Scheme, however, since the applicants were appointed after 01.01.2004 their prayers were rejected.
' : woud a
6. At hearing, 1d. counsel for the applicants seeks benefitg of the decision in 0.A/350/00132/2021 in the case of Shri Shekhar Chandra Sarkar vs VOI rendered on 03.02.2022, as well as the decision in O.A 731/2021 in Shri Ritesh Shukla and 26 Others versus UOI, rendered on 26.07.2021.
The order in Ritesh Shukla is extracted as under for clarity:
"This application has been preferred to seek the following reliefs:
4 0.A./1463/2021 with OA/985/22 &0.A/1540/22 "3(a) Leave may be granted to the applicants to file this application jointly under Rule 4(5)(a) of the Central Administrative Tribunal (Procedure) Rules, 1987 as because all the applicants' grievances are common and they are challenging the same impugned orders.
(b) To quash and/or set aside the impugned office order dated 16" March, 2020 issued by the General Manager, Gun Shell Factory, Cossipore by which the department has stated that 'the Old Pension Scheme is applicable in respect of the incumbent only if their selection process completed before 01:01 2004 which is clearly against the paragraph is of the judgment passed by the Delhi High Court in the case of Inspector Rajendra Singh & Ors vs. Union of india Ors being Annexure A-7 of this original application
(c) To quash and/or set aside the stereotype impugned office order stated. . -
14.09.2020 issued by the General Manager, Gun & Shell Factory, Cossipore whereby and whereunder the benefit of Old Pension Scheme sought for by the applicants has been rejected on the ground which is clearly violates the paragraph 18 of the judgment passed by the Delhi High Court in the case of inspector Rajendra Singh Ors-vs- Union of India & Ors. which is affirmed by the Hon'ble Supreme Court being Annexure A-9 of this original application
(d) To quash and/or set aside the impugned office memo dated 17° February, 2020 issued DOPT by which the paragraph 18 of the judgment passed by the Delhi High Court in the case of Inspector Rajendra Singh & Ors. vs-Union of India & Ors.
_-Has not been followed and by misinterpretation of that paragraph, the aforesaid office memo issued by the by the | DOPT cannot be applicable being Annexure A-14 of this original application.
fe) To declare that the office memo dated 17.02.2020 issued by the Government of India Department of Pension & PW Lok Nayak Bhawan, Khan Market, New Dethi-11000 under paragraph 4 whereby the DOPT has said that in all cases where the results for recruitment were declared before 01.01.2004 against vacancies occurring on or before 31.12.2003, the candidates declare successful shall be eligible for coverage under the CCS (Pension) Rules, 1972. Accordingly, such Government servants who were declared 'successful for recruitment in the result declared on or before 31.12.2003
- against vacancies occurring before 01.01.2004 and are covered under the National Pension System on joining service an after 01.01 2004 may be given one time option to be covered under the CCS, (Pinion) Rules, 1972. The option may be exercised by the . concerned. Government servants latest by 31.05.2020 has to be modified in terms of paragraph 18 of the order dated 27" March, 2017 passed by the Hon'ble High Court at Delhi, New Delhi in the case of Inspector Rajendra Singh & Ors-Union of India & Ors in WPCT No. 2810/2016 which has been affirmed by the Hon'ble Supreme Court vide order dated 08.01.2017 as Special Lease Petition being Special Leave Petition © No. 39335/2017 decided by the DB of the Hon'ble Supreme Court whereby it has been affirmed of the Hon'ble Delhi High Court's judgment. dated 27.03.2017 that has to be incorporated in the said office memo dated 17.02.2020 will not be applicable in the case of the present applicants' case in terms of the decision of the Hon'ble Delhi High Court's order 27.03.2017 under para 18 referred above and to give benefit of coverage under OPS under CCS (Pension) Rules, 1972 in favour of all the applicants who were selected for appointment s in terms of the vacancies sanctioned by the Ordance Factory Board vide office order dated 20.10.2003 which is appearing Annexure A-4. of . this _ original application.
Cf) To pass an appropriate order directing upon the port to modify the office _ memo dated 17.02.2020 in terms of para 18 of the order dated 27" March, 2017 passed by the Hon'ble High Court at Delhi, New Delhi in the case of Inspector Rajendra Singh v. Union of india & Ors. In WP (C ) No. 2810/2016 which has been affirmed by the Hon'ble oO 5 0.A./1463/2021 with OA/985/22 &0.A/1540/22 Supreme Court vide order dated 08.01.2017 in SLP no. 39335/2017 decided by the DB of the Hon'ble Supreme Court.
---- (g) To declare that all the present applicants those who are appointed in terms of the vacancies sanctioned by the OFB vide office order dated 20.10.2003 are entitled for the coverage under OPS under CCS(Pension) Rules, 1972 and they are entitled for such benefit by setting aside and/or quashing the stereotype impugned office order dated 14.09.2020 being Annexure A-9 of this Original Application."
2. Heard Id. Counsel for both sides.
3. The brief facts of the case are as under:
Ld. Counsel for applicants submits that the applicants are aggrieved that their representations for coverage of their services under Old Pension Scheme have been - - rejected by the respondent's authority. Although the vacancies were sanctioned by the OFB, vide office order dated 20.10.2003 but they got appointed after 01.01.2004. Thereafter, a circular dated 17.02.2020 was issued by the DOPT. After the said circular, the applicants made representations before the General Manger, Gun & Shell Factory, Cossipore on 29.05.2020 individually since the vacancies were sanctioned by the OFB on 20.10.2003 and against said vacancies, all the applicants were selected and got appointment, therefore they have to be governed under Old Pension Scheme instead of New Pension Scheme. But their claim has been rejected vide order dated 14.09.2020 on the following : | Vide reference above, Department of Pension and PW of Government of India issued an OM regarding coverage under CCS(Pension ) Rules, 1972 in place of National Pension System for those Central Government Servants who were declared successful for recruitment based on the results declared on or before 31.12.2003 against vacancies occurring before 01.01.2004 and are covered under NPS on joining service on or after 01.01.2004. Those, covered under NPS, may be given a one time option to be covered under the CCS (Pension) Rules, 1972 and the said option should be exercised by the Government servants latest by 31.05.2020. Accordingly, OFB along with GSF issued the above instruction vide reference {ii) & (iii) above.
2. Your application dated 29 May, 2020 in this regard has been received at this end. After scrutiny of this case, it is found that your written examination for the post of Store Keeper was held on 28.11.2004 and further process was completed accordingly.
3. In view of the above facts, it is regretted to inform you that your case has not been found fit by the Competent Authority for conversion from NPS to OPS.
Hence, your representation dated 29 May, 2020 is hereby disposed off."
Ld. Counsel for applicant would vociferously argue that since the vacancies in question arose before 01.01.2004 i.e. before introduction of New Pension Scheme (NPS in short) of 01.01.2004 selection process could not be completed before 01.01.2004, his client should be covered by the Old Pension Rules of 1972, in terms of the DOPT neiification dated 17.02.2020 itself. However, in support, Id. Counsel would also 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 6 0.A./1463/2021 with 0A/985/22 &0.A/1540/22 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.
5. At hearing, Id. Counsel for applicant would further place the decision of Hon'ble Apex Court in the case of Shabad Prakash Punia & Ors. 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 22" December, 2003, and implemented with effect from 1* 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);
(iii) Shyam Kumar Choudhary and Ors. vs. Union of India being W.P. (C ) No. 1358 of 2017.and ;
(iv) 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" 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 og" - 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"7 june, 2005 and on 7 0.A./1463/2021 with 0A/985/22 &0.A/1540/22 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 i.e. prior to coming into force of the present contributory pension scheme on 22"
December, 2003, this Court is of the view that petitioners cannot be deprived of the benefit of the Old 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.
6. Therefore, ld. Counsel for applicant would vociferously contend that the issue has attained a finality that, where the vacancies arose before 01.01.2004, vacancy notification was published and the recruitment process was also initiated before 01.01.2004, but the appointment letters could be issued only after 01.01.2004, the . incumbents would still be governed by the Old Pension Rules of 1972, as held in the | 'decisions quoted supra. There should not be any deviation from the settled position in the present case.
7. Ld. 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 decision in Inspector Rajendra Singh & Ors. vs. UO! & Ors. as well as Shabad Prakash Punia & Ors. vs. UOI & Ors. referred to surpa. . .
Therefore, the OA may be. disposed of with a direction upon the respondent authorities to consider the grievance of the applicants in the light of the decisions cited supra and to pass an appropriate order within a time frame. 8, However, Id. Counsels would also submit that since the departmental respondents would not be inclined to give the benefits contrary to the OM dated 17.02.2020, and have rejected the claim of the applicant citing. the said OM, the DOPT be directed to issue appropriate order in the light of the decisions cited supra, at the earliest so that a decision in the matter can be taken in accordance with law.
9. Therefore, in view of the fact that the applicants seems to be identically - -
circumstanced to the petitioners in Shabad Prakash Punia & Ors. where vacancies arose notification was issued and selection was initiated before 01.01.2004 but appointment letters were issued after 01.01.2004 and there cannot be a macro compartmentalization 0 8 . 0.A./1463/2021 with 0A/985/22 &0.A/1540/22 ; of Central Govt. employees on the basis of a micro distinction or no distinction at all, for parity of reasons the applicants would deserve identically relief. The OM dated oo 17.02.2020 needs to be revisited.
; a 10. Ordered accordingly. Let the matter be referred to the DOPT to consider the oo grievance of the present applicants as weil as all identically circumstanced employees, who would be entitled to claim benefit of the decisions in Rajendra Singh (supra) and Shabad Prakash Punia (supra), to revisit the issue whether such employees ought to be brought under the ambit of the Old Pension Rules of 1972 in the light of the decisions . (supra),.and issue an appropriate order within three months from the date of receipt of the copy of this order."
5. It is submitted that the decision in Ritesh Shukla and Shekhar Chandra Sarkar have been implemented and their matters have been sent to 7 the DOPT.
6. Ld. counsel for the applicant submits that he would be fairly satisfied if the present O.As are directed to be considered in the light of the decisions, supra. Ld. counsel for the respondents offers no objection to such disposal.
7. Accordingly, all the above OAs are disposed of with a direction upon the respondents to consider the plight of the applicants, who are appointed after 01.01.04 but against vacancies that arose before 01.01.04 in the light of Ritesh Shukla and Shekhar Chandra Sarkar supra and in view of the fact that the option to switch over to Old Pension Scheme was allowed even till 30.06.2020 as they appear to be identically circumstanced.
8. Appropriate order be issued within 2 months. No costs.
(Bidisha Banerjee) Member (J) ss