Central Administrative Tribunal - Delhi
N.C.Arora S/O Shri Lila Ram vs Gnct Of Delhi on 30 October, 2013
Central Administrative Tribunal Principal Bench OA No.3858/2012 MA No.3293/2012 Order reserved on: 22.08.2013 Order pronounced on: 30.10.2013 Honble Mr. V.N. Gaur, Member (A) N.C.Arora S/o Shri Lila Ram [PGT (History)-Retired] From SCAN, SVB No.2, Govt. Boys Senior Sec. School No.2, B Block, Janakpuri, Resident of B 2 B/4, Janakpuri, New Delhi-110085. Applicant. (By Advocate: Shri R. Doraiswami) Versus 1. GNCT of Delhi Through Chief Secretary to Delhi Govt. New Secretariat, Indrapratha, New Delhi. 2. Regional Director of Education, Dte. of Education, GNCTD, Lucknow Road, Delhi-110054. 3. Deputy Director (West), Dte. of Education, Govt. Co-ed SS School, Karampura, New Moti Nagar, New Delhi-110015. Respondents. (By Advocate: Shri N.K.Singh for Mrs.Avnish Ahlawat) ORDER
This OA has been filed by the applicant to count his past Municipal Corporation of Delhi (MCD) service towards pay and pension, i.e., to re-fix his pay and allowances after adding the earlier service to his pensionable service in Delhi Government and grant all consequential benefits, including arrears of pay, pension and gratuity with 9% simple interest.
2. According to the admitted facts the applicant served MCD from 09.10.1965 to 25.09.1972 with two short deputation stints in respondent-department. He was selected as a Trained Graduate Teacher (TGT) in respondent-department on regular basis w.e.f. 26.09.1972 and superannuated from service on 31.05.2004. Vide letter dated 22.12.1987 the Ministry of Human Resource Development communicated to the respondent-department that services of employees of NDMC, MCD and Delhi Cantonment Board may also be counted for pensionary benefits on the analogy of autonomous bodies as per the extant pension rules. It is the case of the applicant that he had submitted a request letter for counting his past service on 11.05.1973. Applicant has also stated in the OA that he has been following up his request since 1991 and submitted copies of the documents as asked for by the respondents but his request has not been accepted.
3. According to the learned counsel of the applicant the respondents have been taking the plea that the applicant had not submitted technical resignation to MCD at the time of joining respondent-organization. He further submitted that the application of the applicant for the post of TGT in respondent-organization was forwarded by the MCD. He was duly relieved. At the time of being relieved the applicant was not asked to submit any technical resignation. It is also an admitted fact that the GPF amount due to the applicant was transferred to the respondent-organization in 1999. The learned counsel further submitted that it was not unusual for the employees to submit technical resignation much after they had actually left the organization. For example the applicant in OA-3432/2010 had submitted her option in April, 1984 for counting of her service in response to the letter dated 07.04.1984 of the department and MCD had accepted her technical resignation in 1984 w.e.f. 1972. He also drew our attention to the documents submitted by the applicant to the respondent-organization where the photocopy from the duplicate service book of the applicant (filed with the rejoinder) contains the following remark:
Nanak Chand Arora has tendered his Techncial Resignation in the M.C.D. Edu. Deptt. and accepted by the A.E.O. S.P. Zone w.e.f. 25.09.1972.
Sd- illegible The applicant has also submitted photocopies of his technical resignation submitted in 1999, copy of the option exercised by him on 11.05.1973 and a certificate issued by the Principal, Chatterpati Sarvodaya Vidyalaya, Padwala Kalan, New Delhi dated 30.10.1999 to the effect that he had applied for counting his past service in 1973. Referring to the latest instructions with regard to counting of service issued by the respondent-organization dated 27.04.2005, learned counsel for the applicant pointed out that now the rules provide that if no option is exercised by the employee within 6 months, it will be deemed that he has opted for pensioanry benefits based on the combined service. Respondent-organization therefore should have taken a more liberal view and not rejected the request of the applicant on technical grounds when the eligibility of the applicant for counting of past service has not been questioned.
4. With regard to the condonation of delay (MA-3293/12) learned counsel for the applicant submits that the applicant has been pursing this matter with the respondents for more than 20 years now and the respondents never accepted or rejected his request till February, 2012 when an arbitrary and unreasoned bald order was passed by the respondents in this regard. The applicant had filed a petition with the Delhi Government Public Grievances Commission vide petition dated 08.05.2012. The Commission also rejected the applicants long outstanding claims. Accordingly, applicant has now approached this Tribunal for justice. He also relied on the law, as laid down by the Honble Apex Court in Union of India and others v. Tarsem Singh, (2008) 2 SCC (L&S) 765, where the Honble Apex has held that:
4. The principles underlying continuing wrongs and recurring/ successive wrongs have been applied to service law disputes. A `continuing 3 wrong' refers to a single wrongful act which causes a continuing injury.
`Recurring/successive wrongs' are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. This Court in Balakrishna S.P. Waghmare vs. Shree Dhyaneshwar Maharaj Sansthan - [AIR 1959 SC 798], explained the concept of continuing wrong (in the context of section 23 of Limitation Act, 1908 corresponding to section 22 of Limitation Act, 1963):
"It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury." The applicant further relied on the decision of Madras High Court in R. Subramanian v. CAT, Writ Petition No.4213/2006 in which the Madras High Court has held as under:
8. Since the question of getting pension being continuous cause of action and it is held that the petitioner is otherwise entitled to pension, then he has a right to receive pension every month. Therefore, while considering the question of latches and delay, when there is continuing cause of action, the right to get such pension does not get permanently barred, but the right to get arrears alone get barred by the principles of limitation. The applicant also relied on the decisions of this Tribunal in OA no.1737/93 Smt. Kamla Devi Aggarwal v. Govt. of NCT of Delhi & Anr., decided by the Principal Bench on 05.04.1994, OA no.2061/2003 - Smt. Parkash Kaur v. Govt. of NCT of Delhi, decided by the Principal Bench on 16.01.2004 and OA no.3432.2010 Smt. Shakuntala Angurala v. GNCT of Delhi & Others, decided by the Principal Bench on 30.03.2011.
5. On the other hand, learned counsel for the respondents submitted that the OA was hopelessly time barred since the applicant retired in 2004 but he filed this OA after about 09 years. He further argued that the applicant was claiming that he had requested for counting of his past service vide letter dated 11.05.1973 but at the face of it, the documents submitted by the applicant do not appear to be the true copies of the originals, as they do not bear any endorsement or receipt number etc. No such document is available in the record maintained by the respondents. Further the facts that the clarification regarding counting of past service was issued by the Ministry of Human Resource Development on 22.12.1987 and the applicant claims to have submitted his request on 11.05.1973, clearly showed that it was an afterthought. The technical resignation of the applicant dated 17.08.1999 was not acceptable to the respondents as the same should have been submitted at the time of leaving MCD in 1972 and the technical resignation was also required to be accepted by the competent authority. The learned counsel of respondents also challenged the authenticity of the certificate issued by the Principal dated 30.10.1999 as the entry in the diary register bears serial number PK/300A dated 30.10.1999 while ordinarily the numbers are in regularity and suffixes are not used. The learned counsel for the applicant referred to the photocopies of diary register showing some representative entries from another school, namely, Sarvodaya Bal Vidyalaya at Ramesh Nagar, which shows that entries with suffix A are quite common in the diary register. The learned counsel for the respondents was, therefore, of the view that the OA was liable to be dismissed on account of laches as per the law as laid down in D.C.S. Negi v. Union of India and Ors., Civil Appeal No.7956 of 2011, decided on 07.03.2011 and also on the ground that supporting documents submitted by the applicant do not appear to be genuine.
6. Considering the facts of this case and the principle of continuing wrong, the M.A. for the condonation of delay is allowed.
7. We have considered the submissions made both by the learned counsels for the applicant and respondents and have also perused the pleadings on record. The Ministry of Human Resource Development clarification letter dated 22.12.1987 in respect of DoPT OM dated 29.08.1984 provides as follows:
(ii) As regards the service rendered under MCD/NDMC/Cantonment Board, Delhi, being counted for pensionary benefits on their joining the service under Delhi Administration, it has been stated by the Deptt. of Pensions that in so far as NDMC is concerned, it is treated as a central autonomous body and pro-rata retirement benefits are admissible to a Central Govt. employee on absorption therein. Accordingly, Delhi Admn. may count the past service in respect of such teachers who have come from NDMC. In respect of MCD/Cantonment Board, it is presumed that these two bodies are on the same footing as NDMC. If the above presumption is correct, Delhi Administration may also count the past service rendered in MCD/Cantonment Board for pensionary purpose.
(iii) The teachers who resigned from one management to join another Management should be asked to deposit the amount equivalent to the share of the employee and the share of the management towards CPF with Delhi Administration or the Management which they have joined, with simple interest at the rate 6% per annum. The basic conditions for eligibility for counting of past service are that (i) the applicant should have served under one of the organizations mentioned in the above letter, (ii) the applicant should have given a technical resignation and (iii) he should have exercised option within one year of the circular issued on 07.04.1984 with regard to CPF benefits. The relevant para from the OM dated 29.08.1984 reads as follows:
(ii) An employee of an autonomous body on permanent absorption under the Central Govt. will have the option either to receive CPF benefits which have accrued to him from the autonomous body and start his service afresh in Government or choose to count service rendered in that body as qualifying service for pension in Government by forgoing employers share of CPF contributions with interest thereon, which will be paid to the concerned Govt. within one year from the date of absorption. If no option is exercised within stipulated period, employee shall be deemed to have opted to receive CPF benefits. The option once exercised shall be final.
8. It is an admitted fact that the applicant served in MCD from 09.10.1965 to 25.09.1972. The dispute is confined to two facts, (i) that he did not submit any technical resignation at the time of leaving the MCD and (ii) he did not submit the request for counting of past service within one year after the same was made applicable on 22.12.1987. From the history of the case, as admitted by the respondents, it is clear that the respondents were all along aware that the applicant was serving in MCD prior to joining the respondent-organization in 1972. It has also been admitted that in 1999 the CPF amount was transferred from MCD to GPF account of the applicant with the respondents. It is, therefore, unbelievable that at the time the applicant left MCD and joined respondent-organization he would not have been properly relieved by the MCD and that the respondents would not have insisted on relieving letter from the previous organization. Further, while transferring the CPF amount to the respondent-department in 1999 could MCD do it without terminating the lien of the applicant with them? Even if it is assumed that the request letter submitted by the applicant on 11.05.1973 for counting his past service does not exist, the fact is that he has been making representations in this regard since 15.11.1991, which was not too late, given the fact that Ministry of Human Resource Development clarification was issued on 22.12.1987 and the same was brought to the notice of all concerned much later (circulated on 07.03.1988). The respondents have also taken contradictory stands in questioning the request letter of applicant dated 11.05.1973 on the ground that how he could submit such letter when the scheme came into force post Ministry of Hume Resource Development letter dated 22.12.1987. On the other hand, the letter of respondents dated 31.12.2002 annexed to the rejoinder states not exercising option for counting past service within stipulated period of one year from joining this Department as the reason for rejection of the request of the applicant. It is obvious that the respondents have adopted a very rigid, perfunctory and technical stand on the request of the applicant, washing their hands of any obligation on their own pert to check the documents in their records or with the MCD. In a similar situation this Tribunal in OA-2061/2003 (supra) had observed:
9. Having regard to the facts and circumstances of the case, it is observed that the applicant did serve the NDMC for more than 12 years prior to her joining the Govt. Schools under the Delhi Administration. It is also a fact that her name she was registered in the Employment Exchange and she had been given NOC for such registration. In terms of the Ministry of Home Affairss order as referred to hereinabove, such an NOC was also taken for applying for higher posts. It is also apparent that the applicant joined the Delhi Govt. on the very next day after having been relieved from the NDMC. There was, therefore, no discontinuity in the services rendered by the applicant to either the previous employer or the employer from where she finally retired as Vice-Principal. There is no doubt that NDMC is an Autonomous Organisation and accordingly the service rendered by the applicant in the said Organisation should have been treated as qualifying service for pensionary purposes. The respondents appear to have taken an unhelpful position on the ground there was no NOC given to the applicant for applying for appointment as a Language Teacher in Govt. Schools under Delhi Administration nor was here application for appointment under Delhi Government forwarded through proper channel. These arguments are not really significant. Keeping in view the facts that the NDMC is/was an Autonomous Organisation and the service rendered to them is to be counted as qualifying service for pensionary benefits and further that the Public Grievances Commission had recommended that the applicant had got good grounds for her case and accordingly desired that the decision of the Department be reviewed and further that the case of Smt. Kamla Aggarwal is similar to the case of the applicant, in which case necessary benefit for counting of her service rendered in the NDMC for pensionary purposes have been allowed, I do not see any reason why the respondents should take the position that the applicant cannot be allowed the benefit of her past service rendered in the NDMC for pensionary purposes. It needs to be borne in mind that the Delhi Administration has to show an example as a model employer, who are expected to follow the instructions of the Government on different subjects including the ones which are applicable in the instant case. It is a well established fact that services rendered in Autonomous Organisations are to be treated as qualifying service and further that there has been a number of cases in this regard including that of Smt. Kamala Aggarwal, which need to be followed by respondents.
9. The applicant in the present OA submitted a technical resignation on 17.08.1999 only after much correspondence with the respondents, as the same appeared to be the only stumbling block in the way of his request being accepted. The respondents could have taken a decision on the basis of this technical resignation, which did not require any formal acceptance by the MCD. There were precedents of technical resignations being accepted with retrospective effect by MCD. Leaving that aside, the approach of the Government in such cases is reflected in the OM No.28-10/84-Pension Unit dated 29.08.1994 issued by the Department of Personnel and Administrative Reforms, which is in the context of Transfers of Central Government Servants to Central Autonomous Bodies and vice versa contains a provision that:
The option shall be exercised within one year from the date of absorption. If no option is exercised within stipulated period, employee shall be deemed to have opted to receive CPF benefits. The option once exercised shall be final.
10. If this principle was applied to the applicant, he should have been paid the CPF benefits by MCD soon after he joined the respondent organization, which was not done. An amount of Rs.10,621/- was transferred from the CPF A/c no.3462 of the applicant in MCD to GPF A/c no. Sel./CR/15281 in the respondent organization sometime in 1999.
11. Again the respondents themselves have issued a circular dated 27.04.2005 regarding Permanent Absorption of Central Govt. employees of the Union Territory in the Autonomous Bodies of the Union Territories and vice versa Regarding counting of service for pension-option thereof, wherein it has been provided that if no option is exercised by the employee within 6 months, it will be deemed that he has opted for pensioanry benefits based on the combined service.
12. In OA-3432/10 (supra) this Tribunal has observed thus:
Although the provisions of the above OM it has also been mentioned that this would apply to those who were absorbed after 1987, yet it shows a liberal trend in applying the rules.We are of the considered view that the Applicant had opted for the counting of her past services in the Government and not for retaining the monetary benefits received from her parent organization and in the peculiar facts of this case, her option was within one year of the termination of her lien in the MCD, as has been demonstrated by sequence of events narrated above. The stance of the Respondents is unnecessarily rigid and unaccommodating. The view of the Tribunal in OA number 2061/2003, adverted to above, that the Government, as a model employer should not take a view bound by straitjacket, which would defeat the purpose of the scheme, has been approved up to the highest Court in the country.
13. From the submissions of the respondents and keeping in view the foregoing discussion I do not find any convincing reason for non-acceptance of the request of the applicant by the respondents. In fact, as the applicant otherwise was eligible for counting of his past service, the respondents should not have made him run from pillar to post for more than 20 years asking him to produce various documents in support of his claim while the original papers are supposed to be in the custody of MCD/Delhi Administration.
14. Considering the above facts and circumstances, OA is allowed. The respondents shall count the service rendered by the applicant in MCD w.e.f. 09.10.1965 to 25.09.1972 for granting pension and other consequential benefits like gratuity, leave encashment and commutation to the applicant, subject to fulfilling of other conditions laid down in the Ministry of Personnel, Public Grievances and Pensions, Government of India circular dated 29.08.1984/04.02.1986. This shall be done within a period of 02 months from the date of receipt of this order.
(V.N. Gaur) Member (A) San.