Central Administrative Tribunal - Chandigarh
Unknown vs The Union Of India Through Secretary on 31 July, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH ( reserved on 29.7.2013 ). O.A.NO. 680/HR/2013 Date of order:---- July 31, 2013. Coram: Honble Mr. Ranbir Singh, Member (A) Honble Mr. Sanjeev Kaushik, Member (J). Dr. Harsh Mohan s/o late Shri Ram Das, Professor & Head, Department of Pathology, Government Medical College, Sector 32-A, Chandigarh and resident of House No.1886-A, Sector 21(Part II), Panchkula. Applicant (By Advocate: Mr. R.S.Bains) Versus 1.The Union of India through Secretary, Home, Government of India, New Delhi. 2.The Union Territory of Chandigarh through Secretary, Medical Education & Research, U.T. Secretariat, Sector 9, Chandigarh. 3. The Director Principal, Government Medical College & Hospital, Sector 32, Chandigarh. Respondents (By Advocate: Shri Aseem Rai). O R D E R. Honble Mr. Sanjeev Kaushik, Member (J):
With the consent of the learned counsel for the parties, the matter is taken up for final hearing as the interim relief and main relief are akin to be each other.
2. By means of the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant sought a direction from this Tribunal to direct/declaration that the age of superannuation for medical teachers in the Government Medical College & Hospital, Chandigarh, has been enhanced from the age of 60 years to the age of 62 years and accordingly, the applicant is due to retire on attaining the age of superannuation on July 31, 2015 and further sought a declaration that the notification of the Punjab Government dated November 29, 2011 is applicable to the medical teachers of Union Territory of Chandigarh, with effect from November 29, 2011.
3. Facts are not in dispute; therefore, a brief note is sufficient. The applicant is presently posted as Professor & Head, Department of Pathology, Government Medical College & Hospital, Chandigarh, since 1.1.1994. As per existing Rules, the applicant is due for retirement on attaining the age of superannuation at the age of 60 years on 31.7.2013. It is the case of the applicant that the service condition of an employee of Union Territory of Chandigarh is at par with an employee working under the Government of Punjab. Since the Government of Punjab, vide notification dated 29.11.2011 had already enhanced the age of retirement from 60 years to 62 years, therefore, the applicant be also allowed to continue in service and he be retired on attaining the age of 62 years. The applicant had already represented to the respondents Union Territory, Chandigarh on 18.4.2012 and thereafter on 22.1.2013 to increase the age of retirement. When the respondents did not convey any decision to the applicant, the applicant under Right to Information Act seek information and he came to know that the matter is under active consideration of the respondents and has already been referred to the Ministry of Home Affairs, Government of India, Delhi, for its concurrence. As per the existing Rules, the applicant is going to retire on 31.7.2013 on attaining the age of 60 years. Hence the present Original Application.
4. Pursuant to notice, the respondents filed short reply on behalf of respondents no.2 & 3 by Professor Atul Sachdev, Director Principal, Government Medical College & Hospital, Chandigarh. In the short reply, the respondents have admitted this fact that the representations dated 18.4.2012, 15.10.2012 and 22.1.2013 addressed to the respondent authorities regarding his claim for enhancement of age of superannuation from 60 to 62 years at par with his counterparts in the State of Punjab, has already been forwarded to the higher authority. Not only this, it is submitted in para 3 that Chandigarh Administration even prior to receipt of representations had initiated necessary steps on its part in response to the said notification dated 29.11.2011 issued by the Punjab Government enhancing the age of medical teachers in Punjab from 60 to 62 years. Paras 2 & 3 of the short reply reads as follows:-
2. That the applicant is serving in the respondent Govt. Medical College & Hospital in the capacity of Professor and Head in the Department of Pathology. He has referred to his representations dated 18.04.2012, 15.10.2012 and 22.01.2013 addressed to the respondent authorities regarding his claim for enhancement of age of superannuation from 60 to 62 years at par with his counterparts in the State of Punjab. Now he has approached this Honble Tribunal through the instant Original application seeking issuance of directions to the effect that age of superannuation for medical teachers in Chandigarh particularly in the GMCH be enhanced from the age of 60 years to 62 years in terms of the notification issued by the Punjab Government dated 29.11.2011. As he is otherwise due to retire on attaining the age of superannuation i.e. 60 years on 31.07.2013, the applicant has sought interim relief to the effect that during the pendency of this O.A, the respondents may be restrained from retiring the applicant from service of UT Chandigarh on such date.
3. That in this regard it is respectfully submitted that the Chandigarh Administration even prior to receipt of representations from the applicant, had initiated necessary steps on its part in response to the said notification dated 29.11.2011 issued by Punjab Government enhancing the age of medical teachers in Punjab from 60 to 62 years. Due cognizance has already been taken of the letter dated 29.09.2008 vide which the age of superannuation of the medical teachers such as the applicant had earlier been increased from 58 to 60 years. While processing the matter it was felt necessary to seek the advice of the Law Department, U.T. Chandigarh as to whether the Chandigarh Administration was on its own competent to effect such enhancement in age or was it necessary to first seek approval from the Ministry of Home Affairs, Government of India. According to the Law Department, this issue has inadvertently never been finally decided. The unique position of Chandigarh as a centrally administered Union Territory would allow primacy to the Government of India in such matters. Accordingly, the proposal for said enhancement has been submitted to Govt. of India vide letter dated 20.09.2012 seeking approval for the adoption of the Punjab Govt. notification dated 29.11.2011. Copy of letter dated 20.09.2012 seeking approval from GOI is being appended as Annexure R-1. Since no response was forthcoming from the GOI regarding the proposal, the concerned authority was again requested to convey the approval vide letter dated 21.02.2013, 21.05.2013 and 13.06.2013. Copy of letter dated 21.02.2013, 21.05.2013 and 13.06.2013 is being appended as Annexure R-II, III and IV respectively. However, Respondent No.1/GOI has not responded in this matter till date.
5. Shri R.S.Bains, learned counsel appearing on behalf of the applicant vehemently argued that the in action of the respondents in not enhancing the age of superannuation from 60 to 62 years at par with his counterparts in the State of Punjab, is totally illegal, arbitrary and against the decision taken by the respondents where they themselves have decided and notify that the service condition of an employee working in Union Territory, Chandigarh, shall be the same as the condition of service of person appointed to corresponding post in the Punjab Civil Services. It is the case of the applicant that any amendment carried out by the Punjab Government for their employees would be ipso-facto applicable to the employees of the Union Territory Chandigarh, without their adoption by the Administration of the Union Territory, Chandigarh. He further urged that a direction be given to the respondents to issue a notification in this behalf and also to allow the applicant to continue in service till he attain the age of 62 years.
6. To buttress his submissions, he placed reliance on a judgment passed by the Honble Apex Court in the case of Union Territory of Chandigarh & Ors. Versus Rajesh Kumar Basandhi & Another (2002 (11) S.C.C. Page 549 ) and the order passed by this Tribunal in the case of Krishan Gopal Vij versus Union of India & Ors. (O.A.No.326/CH/2007) decided on 30.4.2008.
7. Per contra, Shri Aseem Rai, learned counsel appearing for Union Territory, Chandigarh has argued that the Chandigarh Administration has already referred the matter to the Government of India for its approval. He did not dispute this fact that this Court has already decided the similar issue in the case of Krishan Gopal Vij (supra) wherein the age of retirement was enhanced from 58 years to 60 yeas as enhanced by the Punjab Government notification dated 23.4.2007.
8. We have considered the rival contentions of the learned counsel for the respective parties and have gone through the pleadings as well as judgments cited by the learned counsel for the respective parties with their able assistance.
9. The solitary question which arise for our consideration is whether the service condition of the employees working under Union Territory, Chandigarh, shall be the same as the condition of service of persons appointed to corresponding posts in the Punjab Civil Services as per notification dated 13.1.1992 and modified thereafter without their adoption by the respondents.
10. The Union Territory of Chandigarh was constituted on 1.11.1966 under the provision of State Organization Act. By means of a notification dated 1.11.1966 issued by the Government of India, Ministry of Home Affairs, in exercise of its power conferred under the proviso to Article 309 of the Constitution of India. The Administrator of the Union Territory of Chandigarh, was authorized to exercise to make the power rules in regard to the method of recruitment to the Central Civil Services under its administrative control in connection with the affairs of the Union Territory of Chandigarh. In the year 1992, another notification dated 13.1.1992 was issued under Article 309 of the Constitution of India whereby the President framed conditions of service of Union Territory of Chandigarh Employees Rules, 1992. It took effect from 1.4.1991. The Rules of 1966 in so far as inconsistent with the provisions of the 1992 Rules were repealed. The Rules of 1992 provide as under:-
2. Conditions of service of persons appointed to the Central Civil Services and posts under the administrative control of Administrator.- The conditions of service of persons appointed to the Central Civil Services and posts in Groups A, B, C and D under the administrative control of the Administrator of Union Territory of Chandigarh shall, subject to any other provision made by the President in this behalf, be the same as the conditions of service of persons appointed to corresponding posts in Punjab Civil Services and shall be governed by the same rules and orders as are for the time being applicable to the latter category of persons :
Provided that in the case of persons appointed to the services and posts under the administrative control of the Administrator, Chandigarh, so long as they are drawing pay on the rates admissible to the corresponding categories of employees of the Government of Punjab, it shall be competent for the Administrator to revise their scales of pay from time to time so as to bring them at par with the scales of pay which may be sanctioned by the Government of Punjab from time to time to the corresponding categories of employees. According to the above provisions, persons appointed to the services of the Union Territory of Chandigarh, their condition of service shall be governed by the same rules and orders as applicable for the time being to the corresponding posts in the Punjab Civil Services. So far as scales of pay are concerned, it is provided that the Administrator will be competent to revise the same from time to time so as to bring it on a par with scales of pay of Punjab Services.
10. Another notification was issued on 26.6.1992 under the subject clarification regarding application of Punjab Rules wherein the Union Territory has clarified the conditions of service of persons appointed to Central Civil Services. The relevant part of the said letter reads as follows:-
I am directed to address you on the subject noted above and to state that with the notifying of the conditions of service of Union Territory of Chandigarh Employees Rules, 1992,---vide Government of India notification NO.14012/2/88-CHD., dated 13th January, 1992, which came into force with effect from Ist Day of April, 1991, the conditions of service of the persons appointed to Central Civil Services and posts, in Group A, B, C and D under the Administrative control of the Administrator of the Union Territory of Chandigarh, which includes probation, seniority, pay of members of service, leave, pension and other cognate matters and also the matters relating to discipline, penalties and appeals, shall be the same as conditions of service of persons appointed to corresponding posts in Punjab Civil Services and are to be governed by the same Rules and Orders as are for the time being applicable to the Punjab Government Employees. Some of the Departments have been seeking clarification on these points as to whether Rules and Orders of the Punjab Government are now to be made applicable or the Central Rules will continue to be applicable to the employees. It is, therefore, clarified that with effect from Ist April, 1991, all the Rules and Orders so far as the same relate to the conditions of service referred to above as are for the time being applicable to Punjab Government Employees shall continue to be applicable to the Union Territory Employees. A perusal of the above make it clear that the respondents U.T. Administration have defined that what comes under the condition of service i.e. probation, seniority, pay of members of service, leave, pension and other cognate matters and also the matters relating to discipline, penalties and appeals shall be at the same as conditions of service of persons appointed to corresponding posts in Punjab Civil Services. By another notification dated 29.10.1992 issued by the Home Secretary, Chandigarh Administration, clarifying regarding application of Punjab Rules and clarified other cognate matters which include retirement also. The relevant portion of the notification dated 29.10.1992 reads as follows :-
Copy of letter No.8846-IH(4)-92/19636 dated the 29th October, 1992 from the Home Secretary, Chandigarh Administration, addressed to all the Heads of Departments/Offices in the Chandigarh Administration.
Subject: Clarification regarding application of Punjab Rules.
I am directed to refer to the clarification regarding application of Punjab Rules issued,--vide this Administrations letter No.5433-IH(7)-92/12426 dated the 26th June, 1992 (copy enclosed) and to say that the words other cognate matters which find mention in the opening paragraph have been inviting attention of this Administration since long. After due consideration, it has been decided that the words ` other cognate matters shall include the following, namely :--
1.Retirement ( including pre-mature and voluntary retirement);
2.Medical facilities.
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2.You are requested to take further necessary action, accordingly.
3.The receipt of this communication may please be acknowledged. The reading of above two notifications dated 26.6.1992 and 29.10.1992 make it clear that the Union Territory Chandigarh has clarified that the age of retirement of an employee working in Union Territory Chandigarh be at par with their counterparts in State of Punjab. Earlier also, the similar situation crop up and the litigation went upto to the Honble Apex Court in the case of Union Territory, Chandigarh & Ors. Versus Rajesh Kumar Basandhi (supra) where the question arose for interpretation of phrase for the time being in U.T. Chandigarh Employees Rules, 1992. The facts of that case was that the respondents before the Honble Apex Court filed Original Application before this Tribunal wherein the question was to determine that whether the maximum age limit prescribed by the Punjab Government under Punjab Civil Service Rules, which was increased from 30 to 35 years for entry into government service was applicable to Union Territory Chandigarh also without there being any adoption by the Administrator of the Union Territory Chandigarh. It was the case of the applicant therein that once a notification was issued on 13.1.1992, then there was no need for the Union Territory Chandigarh, for issuing any notification subsequently adopting any clarification to the service Rule by the Government of Punjab as in the initial notification dated 13.1.1992, it has categorically been stated for the time being. The Lordships of the Honble Apex Court have held as follows:-
The intention of the appellant also does not appear to be to confine the meaning of the phrase "for the time being" to a single time which would be demonstrated by the fact that in the notification issued for recruitment, one of the conditions was that the candidate should have experience of two years at the Bar. This condition was introduced by amendment to Section 87A on 24.12.1991 that is to say the amendment in the rule regarding two years experience was included in the requirement of eligibility. A specific query was made from the learned counsel for, the appellant on the point, namely, in what manner the amendment in the relevant provision regarding two years practice was given effect to in the notification for recruitment, the learned counsel answered that the said amendment had been made before the issuance of the notification making the Punjab Rules applicable to the persons appointed in the service of Union Territory of Chandigarh, To be more specific the case of the appellant is that the provision of the Punjab Rules was amended on 24.12.1991 introducing the condition of two years practice at the Bar whereas the notification was issued by the Chandigarh Administration subsequently i.e. on 13.1.1992 therefore amended position of the Punjab Rules till that date namely 13.1.1992 was incorporated in the notification for recruitment. But it would be pertinent to point out that it was conveniently skipped by the appellant to notice that Punjab Rules were made applicable with effect from 1.4.1991 though the notification to that effect was issued on 13.1.1992. The consequence of giving effect to the notification dated 13.1.1992 w.e.f. 1.4.1991 would be that Punjab Rules as existing on 1.4.1991 would be applicable. If the argument of the appellant is accepted that the phrase "for the time being" was applicable for only one time and not for future amendments, Punjab Rules, as existed on 1.4.1991 alone would apply without taking note of the subsequent amendment in the rules i.e. as made on 24.12.91 regarding requirement of two years practice. But the appellant did not adhere to that position which is being canvassed now but in the notification for recruitment the position as brought about by amendment in the Punjab Rules as on 24.12.1991 was incorporated and given effect to. The appellant cannot have it both ways. Once having given effect to the notification dated 13.1.1992 with effect from 1.4.1991 it should have adhered to the rules as existed on 1.4.1991 if it wanted to say that the phrase "for the time being" was meant for a single time and not for future varying situation and amendments. Thus the stand taken by the appellant becomes self-contradictory to its own conduct in incorporating the rule as amended on 24,12.1991 i.e. subsequent to 1.4.1991 with effect from which date the Punjab Rules were made applicable to the services of the Union Territory of Chandigarh. The mere fact that notification was issued on 13.1.1992 will not change the position if it were to be interpreted that the phrase "for the time being" was for a single time. The appellant having itself given effect to the rules amended after 1.4.1991, cuts against its own argument to say that amendment subsequent to 1.4.1991 would not be applicable unless specifically adopted by the Union Territory of Chandigarh. It may not be open for the appellant to pick one amendment in the Punjab Rules and implement the same and refuse to apply the other amendment It is clear that no adoption of the amended provision was necessary and by assigning the general meaning to the expression "for the time being" it would be applicable without being specifically adopted by the Chandigarh Administration. The general meaning of the phrase "for the time being" seems to be reasonable since the position as existing at the time the rule is applied that would be taken into account unless of course context may indicate otherwise. We find no such context by reason of which we may assign meaning to the phrase other than the meaning understood in general sense that such an expression is indefinite in time and refers to state of facts which may arise and exist at the time the rule is applied which may vary at different times. The same meaning as generally understood has also the approval of the decision of this Court in Jivendra Nath Kaul (supra). Once it has already been held by the highest Court of law that there is no need to issue notification for adopting any amendment carried out by the State of Punjab in their service Rules by the Chandigarh Administration, then the stand taken by the respondents that they have already referred the matter to the Union Government for clarifying does not arise and ipso-facto the notification issued by the State of Punjab enhancing the age of retirement from 60 to 62 years vide notification dated 29.1.2011 would be applicable to the employees under the control of Union Territory Chandigarh to the corresponding posts.
11. It is to be notified here that earlier also the State of Punjab on 23.4.2007 had enhanced the age of retirement of medical/dental/ayurvedic teachers from 58 to 60 years when the same was not made applicable to the employees of the Union Territory Chandigarh, then the matter came up for consideration before this Tribunal in the case of Krishan Gopal Vij (supra ) which was allowed by this Tribunal vide order dated 30.4.2008 by holding that in terms of the notification dated 13.1.1992 which was subsequently modified, any amendment carried out by the State of Punjab in their service rules will ipso-facto applicable to the employees of the Union Territory, Chandigarh.
12. In view of the law enunciated by the Honble Apex Court in the case of Rajesh Kumar Basandhi ( supra ) and in faithful compliance thereof, we hold that the notification dated 29.11.2011 issued by the Government of Punjab enhancing the age from 60 years to 62 years with immediate effect is ipso-facto is applicable to the employees under the control of Union Territory, Chandigarh, in view of notification dated 13.1.1992 which was subsequently clarified by other notifications dated 29.6.1992 and 29.10.1992. Accordingly, the O.A. is allowed. The respondents are directed to allow the applicant to continue in service till he attains the age of superannuation i.e. 62 years instead of 60 years. No costs.
(SANJEEV KAUSHIK) (RANBIR SINGH) MEMBER (J). MEMBER (A) Dated: July 31, 2013. Kks