Central Administrative Tribunal - Madras
A Balasundaramoorthy vs Bharat Sanchar Nigam Ltd on 2 January, 2024
1 OA No.310/01134/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/01134/2019
Dated this 2nd January, Two Thousand Twenty Four
CORAM :
HON'BLE MR M. SWAMINATHAN JUDICIAL MEMBER
A. Balasundaramoorthy,
S/o Arjunan,
Driver (Retired),
E 54E, Nethaji Circle,
BSNL Staff Quarters,
Anna Nagar, Chennai. .. Applicant
By Advocate M/s R. Renga Ramanujam
Vs.
1.The Chief General Manager,
Chennai Telephones,
No.78, Purashawakkam High Road,
Chennai.
2. Deputy General Manager (HR/Admn),
BSNL,
Chennai Telephones,
No.89, Millers Road,
Chennai.
3.Union of India
rep by Secretary to Government,
Department of Telecommunication,
Sanchar Bhavan,
20, Asoka Road, New Delhi. .. Respondents
By Advocate Mr. S.Gopinathan for R.1 & 2
Mr. G. Dhamodaran for R. 3
2 OA No.310/01134/2019
ORDER
(Pronounced by The Hon'ble Mr. M. Swaminathan, Judicial Member) The applicant has filed the OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
" to direct the respondents to settle the benefits of Old CCS (Pension) Rules that existed prior to 01.10.2000 to the applicant herein and pass such further or other orders as this Hon'le Tribnal may deem fit and proper in the facts and circumstances of the case and thus render justice."
2. Brief facts of the case are as under:
The Applicant submits that he was Seaman Sailor in Indian Navy, he joined in Indian Navy on 26.12.1978 and and after completing his service, he was discharged from service on 31.12.1993. The Applicant submits that the Department of Telecommunication had issued a Notification to filling up of the post of Drivers in the open marker for the vacancies that arose prior to 28.04.2000. The Applicant submits that he had applied for the above post and he had attended the Oral/ Written and Practical Test on 07.07.2000 and 08.07.2000 along with G. Anbu, G. Sekaran & S. Murugan. He further submits that he was issued with the appointment order by the 1st Respondent on 14.07.2000 but he was issued reposting order by order 13.11.2000 notifying his date of appointment as 23.10.2000 but the 4 candidates who were attended the interview along with the Applicant were issued with the reposting order on 18.10.2000 and their 3 OA No.310/01134/2019 date of entry into service was fixed before 01.10.2000 and therefore they are getting the benefits under the Old CCS Pension Rules, whereas,he was denied the benefits under the Old CCS Pension Rules though he was also attended the interview along with those candidates. The Applicant submits that thereafter BSNL was converted as Corporation and therefore an option was called for by the Respondent on 12.02.2001 for continuing service in BSNL and he had opted for continuing his service in BSNL. In pursuant to that, the Director DOT had issued the absorption order in the name of President of India stating that the applicant was absorbed in the BSNL with effect from 01.10.2000 and therefore he is covered under the Old CCS Pension Rules. Subsequently. He was enrolled into the GPF Scheme and recovery was made under the GPF Scheme was made till the date of his retirement on superannuation 31.03.2019. However, his terminal benefits were not settled under the Old CCS Pension Rules.
3. The Applicant further submits that the Persons who attended the interview along with him were issued with the appointment order dated 18.10.2000 notifying their appointment prior to 01.10.2000 and they were brought under the Old CCS Pension Rules, but the applicant was denied the same benefit and even after the order was issued in the name of President to bring him under the Old CCS Pension Rules. The grievance of the applicant is that even after the recovery was made under GPF Scheme till his retirement and yet his terminal benefits were not settled under Old 4 OA No.310/01134/2019 CCS Pension Rules in a most arbitrary and discriminatory manner and in violation of Article 14, 16 & 21 of the Constitution of India. Hence, this Original Application.
4. Heard the learned counsel for the Applicant M/s. R. Renga Ramanujam and the learned counsel for the respondents 1 & 2 Mr. S. Gopinathan and Mr. G. Dhamodaran, the learned counsel for the 3rd respondent and perused the pleadings and the materials placed on record.
5.Arguments of the Applicant 5.1 The main argument of the learned counsel was that the applicant was issued appointment order on 14.07.2000 that is prior to 01.10.2000 for the post of Driver, yet the benefit of Old CCS (Pension) Rules was denied to the applicant merely on the ground that he was issued with the reposting order after 01.10.2000 in a most arbitrary and discriminatory manner and therefore illegal.
5.2 The counsel drew our attention that totally 7 candidates who attended the interview along with the applicant were issued with appointment order on 14.07.2000 itself, but only 4 of them were issued with reposting orders before 01.10.2000 and they are covered under Old CCS (Pension) Rules and the remaining 3 were denied the very same 5 OA No.310/01134/2019 benefit including that of the applicant on the ground that the reposting orders were issued after 01.10.2000 due to administrative grounds is in violation to Article 14 & 16 of the Constitution of India. 5.3 The learned counsel also submitted that on 24.12.2001 Director (Esst - Chennai DOT) in the name of President of India issued an order stating that the applicant was permanently absorbed in the BSNL, with effect from 01.10.2000 and he is entitled to Pension and gratuity as per the Rule 37 A of the CCS Pension Rules and also Family Pension and the applicant was enrolled in GPF and recovery was also made under the GPF, but contrary to their own order, the applicant was denied the benefits under the Old CCS (Pension) Rules even after the recovery was made under GPF till his retirement is highly arbitrary and illegal. He further submitted that though the applicant has made a representation on 03.07.2019, till now the respondents have not passed any order on the same. The learned counsel further contended there are catena of judgments passed by Tribunals, Hon'ble High Courts and the Hon'ble Apex court on the issue and cited the decision of the Hon'ble Apex court dated 25.04.22 reported in 2022 SCC OnLine SC 508 in the case of P. Ranjitharaj Vs. State of Time Nadu which according to the learned counsel is directly applicable to the present case. Therefore, he prayed for the relief sought in the application. 6 OA No.310/01134/2019
6.Argument of the Respondents 6.1 The learned counsel for the respondents 1 & 2 at the outset submitted that the OA is liable to be dismissed both on merits and on delay and laches. The applicant has filed the OA after superannjuation from BSNL, knowing very well that he is a BSNL recruitee and is not eligible for such benefits. The order to that effect was issued long back in the year 2008 itself and he continued to be in service till his retirement in the year 2019 and approached this Tribunal 11 years, without any bonafide reasons to claim such relief.
6.2 With regard to the applicant's averment that he is contributing to GPF fill his date of retirement, the learned counsel for the respondents 1 & 2 submitted that it is only after retirement that the wrong deduction of GPF from the applicant came into light. The GPF was wrongly deducted from the applicant till December, 2018 and the GPF final claim of the applicant was settled by DOT in April, 2019. Immediately, the respondents have initiated corrective actions.
6.3 The learned counsel further contended that the applicant has not challenged the order for the last 11 years and it is held in various judgments, that the applicant who is approaching the Tribunal very lately without bonafide valid reasons is not entitled to seek any relief having accepted the order of the respondents in the first instant. Therefore, he prayed for dismissal of the OA.
7 OA No.310/01134/2019
7. The learned counsel for the 3rd respondent submitted that the applicant himself volutnarily declared his final option for absorption in BSNO and not opted for Central Government Status. In the circumstances, the applicant enrolled into CPF Scheme and Employees Contribution was also recovered by BSNL from his salary till the date of his retirement 31.03.2019. He also submitted that nearly after a lapse of 18 years and that too after having peaceful retirement from BSNL Service, the applicant prayed for pension under CCS (Pension) Rules, 1972, which cannot be accepted at all and his claim of pension under the Old Pension cannot be entertained and should be rejected in limine by the Tribunal.
8. The learned counsel for the 3rd respondent relied upon the order dated 01.12.2021 of the Allahabad Bench of this Tribunal in OA Diary No.2184 of 2021 in the matter of Arif Saeed & 68 Ors Vs. UOI & Ors and also orders dated 07./16/11/2022 of the Hon'ble High Court of Ranchi in W.P.(S) No.2330/2022 in the matter of Vikash Kumar Gupta & 67 others Vs. UOI & Ors, in support of his contention.
9.Findings of the Tribunal 9.1 I have considered the submissions made by the parties and gone through the decisions cited by the respective counsels I have already dealt with the similar issue in OA 1004 of 2021 and passed an order on 21.11.2023 on the basis of the order passed by the Tribunal in OA.603 of 8 OA No.310/01134/2019 2021 on 07.03.2022. The relevant paragraphs of the said order are extracted as hereunder:
"15. It is to be noted that while dealing in the similar issues, the Hon'ble High Court at Ernakulam in the matter of Abdul Rasheed.A.A. & Ors Vs. UOI-BSNL & Ors by observing all aspects and with relevant rules held as under:
"16. The order is only in so far as the permanent absorption of the petitioners permanently in BSNL. They were alternatively described as permanent or temporary employees of the DoT in the order. They were also granted protection under rule 37-A of the CCS (Pension) Rules The cancellation of such an order would only result in their being reverted to Government service under the DoT . The question would be as to whether after long years of such service in BSNL, they can be reverted back to the DoT. As we noticed earlier, the option exercised by the employees whether it to be reversion back to DoT or for permanent absorption in BSNL, when accepted by the Government of India is irreversible and there could be no cancellation effected thereat especially after long years. We also notice that cancellation has been effected subsequent to the acceptance of option, without notice to the parties and in contravention of the specific rules referred to by us herein above."
16. Thereby, the Hon'ble High Court declared the petitioners are servants of Union of India under DOT . They were also granted protection under Rul2 37-A of the CCS (Pension) Rules. The cancellation of such an order would only result in their being reverted to Government service under the DoT. The question would be as to whether after long years of such service in BSNL, they can be reverted back to the DoT. As we noticed earlier, the option exercised by the employment whether it to be reversion back to DoT or for permanent absorption in BSNL, when accepted by the Government of India is irreversible and there could be no cancellation effected subsequent to the acceptance of option, without notice to the parties and in contravention of the specific rules referred to by us herein above."
17. It is to be noted that by Order dated 10.11.2020, the 9 OA No.310/01134/2019 Respondent No.4 has canceled the Presidential Order date 31.12.2001 and treated the applicant as BSNL Recruitee. It is also to be noted that as subsequently the applicant in his representation dated 06.03.2019, mentioned that some of the employees who joined in the BSNL, keep under GPF member as BSNL absorbee having Presidential order, some of the remain appointed by DoT. Almost all 56 employees have been restored with GPF under the provisions of Rule 37 of CCS (Pension) Rules. Hence, the applicant has also requested the same benefit at par with such employees Though he specifically point out the observation of Hon'ble Supreme Court in a catena of judgments and submitted that the expressions "vested rights" or " accrued rights" has been used while striking down the impugned provision which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc. of the employees. The said expression have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date an thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already to the employee under the existing rule is arbitrary, discriminator and violative of the rights guaranteed under Articles 14 & 16 of the Constitution.
18. It is well settled that the right given to such employee under the provisions of any act or Rules governing the employment, if taken away by amending such rules with retrospective effect, the same would amount to violating the rules under Articles 14 & 16 of the Constitution.
19. It is also to be noted that as held by the Hon'ble High Court of Madras in the matter of Mahavir Mirror Industries vs The Designated Authority Director General of Anti Dumping and Allied Duties, Ministry of Commerce and Industry, Govt of India, New Delhi that when a decision is rendered by a Court of Record such decision, apart from being binding on the parties to the litigation, becomes precedent for the very same Court as well as Courts subordinate to such Courts. Merely because an appeal is filed and is pending, "precedent" value of a decision is not taken away. In the present case, in the normal course, I am bound to follow the earlier decision. Further, the Hon'ble High 10 OA No.310/01134/2019 court of Calcutta, vide its order dated 14.05.2007 in Pijush Kanti Chowdhury vs. State of West Bengal & Ors, after relying upon various Supreme court judgments has observed thus:
"13. Therefore, the effect of the order of stay in a pending appeal before the Apex Court does not amount to 'any declaration of law' but is only binding upon the parties to the said proceedings and at the same time, such interim order does not destroy the binding effect of the judgment of the High Court as a precedent because while granting the interim order, the Apex Court had no occasion to lay down any proposition of law inconsistent with the one declared by the High Court which is impugned."
In view of the above, the contention of the respondents that the judgment of the Hon'ble Kerala High court in OP (CA) No.63 of 2017(2) in the matter of Abdul Rasheed.A.A.&Ors Vs UOI, BSNL & Ors is stayed by the Hon'ble Supreme court cannot be accepted. The other judgements relied by the Respondents in support of their claim does not apply to the present case as the facts and ratio of the case relied by respondents are different.
21. It is also to be noted that Department of Pension and PW OM dt.17th Feb 2020 declared in para 3 that from the representations of the Government employees and the references received from Ministries/ Departments, it has been observed that in many of the cases referred to this Department, selection process (including written examination, interview and declaration of result) for recruitment had been completed before 01.01.2004 but the employee joined the Government service on or after 01.01.2004. Accordingly the option exercised once will be final.
22. Further in Para 7 reads thus:-
"it is clarified, that the above option would be available to only those Government servants who were declared successful for recruitment before 01.01.2004 against vacancies pertaining to the period prior to that date . This option shall, however, not be available to the Government servants appointed on or after 01.01.2004 if they fall in any of the following categories
(i) Government servants whose names were included in a panel 11 OA No.310/01134/2019 of selected candidates before 01.01.2004 for recruitment against vacancies occurring on or after 01.01.2004 and were accordingly recruited on or after 01.01.2004.
(ii) A Government servant whose name was included in a panel of selected candidates prepared before 01.01.204 for vacancies arising before and after 01.01.2004 but was actually appointed after 31.12.2003 against a vacancy arising on or after 01.01.2004;
(iii) Government servants who were selected against vacancies pertaining to the period prior to 01.01.2004 on the basis of an advertisement/notification issued before 01.01.2004 or a written examination/interview held before 01.01.2004 but results for recruitment were declared on or after 01.01.2004.
(iv) Government servants who joined on or after 01.01.2004 after they were granted extension of joining time on their own request and, in accordance with the instructions issued by the Department of Personnel & Training, their seniority was depressed on account of such extension of joining time to a batch for which the result for recruitment was declared don or after 01.01.2004"
Para 10 of the OM reads thus:
"All Ministries/Departments are requested to give wide publicity to these orders. The cases of those Government servants who fulfill the conditions mentioned in this O.M. and who exercise option to switch over to the pension scheme under CCS (Pension) Rules may be settled by the administrative Ministries/Departments in accordance with these orders."
9.2 In my considered opinion the issue is no more res integra. As rightly pointed out by the learned counsel for the applicant, the decision taken by the Hon'ble Apex Court in the case of P. Ranjithraj Vs State of Tamil Nadu & Others in Civil Appeal No.3176-3177 of 2022 reported in 2022 SCC OnLine Sc 508 directly applies to the present case and the relevant 12 OA No.310/01134/2019 portions are extracted below:
11. After we have heard counsel for the parties and with their assistance perused the material available on record, in our considered view, the premise on which the High Court has proceeded is not sustainable for the reason that the appellants along with other applicants had participated in the self same selection process pursuant to advertisement dated 9th September, 2001 held for the post of APP Grade II and verification was made by the Commission in the case of the present appellants on 3rd September, 2002.
12. In the given circumstances, when those who are lower in order of merit to the appellants were appointed by an order dated 24th September, 2002, the appellants have no right of say in the matter of appointment and no justification has been tendered by the State respondent as to why their names were withheld for two/three years, when their names were cleared by the Commission on 3rd September, 2002 and sent to the State Government and finally appointments were made of the appellants on 23rd August, 2005 and 23rd April, 2004 respectively and the delay indeed in making appointments in the case of the present appellants in no manner could be attributable to them.
13. In the given circumstances, when all other candidates who had participated along with the appellants pursuant to advertisement dated 9th November, 2001, on the recommendations made by the Commission were appointed on 24th September, 2002 including those who are lower in the order of merit, there appears no reason for withholding the names of the present appellants and merely because they were appointed at a later point of time, would not deprive them from claiming to become a member of Tamil Nadu Pension Rules, 1978, which is applicable to the employees who were appointed on or before 1st April, 2003.
14. In the facts and circumstances, the finding recorded by the High Court qua the present appellants is not sustainable and deserves to be set aside.13 OA No.310/01134/2019
15. The appeals are accordingly allowed and the judgment and order dated 19th June, 2014 and 2nd November, 2018 of the High Court qua the appellants are set aside. The respondents are directed to treat the present appellants to be a member of the Tamil Nadu Pension Rules, 1978 for all practical purposes and benefits as member of the Rules, 1978 to which the appellants are entitled, including retiral benefits, be made available to them. No costs.
16. Pending application(s), if any shall stand disposed of.
10. In the above circumstances the applicant is entitled for the relief prayed for in the OA. The respondents are directed to treat the applicant under the CCS (Pension) Rules, 1972, for all practical purpose and settle benefits under the said Rules. The respondents are further directed to comply the said direction within a period of 3 months from the date of receipt of a copy of this order.
11. With the above direction, the OA is allowed. No order as to costs.
(M. SWAMINATHAN) MEMBER(J) 02.01.2024 mas