Central Administrative Tribunal - Delhi
Subhash Chander Garg vs Govt. Of Nctd on 29 September, 2022
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Item No. 10 O.A. No. 1116/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1116/2021
M.A. No. 2196/2022
This the 29th day of September, 2022
Hon'ble Mr. Manish Garg, Member (J)
Subhash Chander Garg
S/o Late Sh. Krishan Chander Garg,
293/10, Adarsh Nagar,
Sonipat-130001
(Aged about 58 years)
Presently working in IT Department
Group:- 'B'
...Applicant
(By Advocate: Mr Ajesh Luthra)
Versus
1. Govt. of NCT of Delhi
Through its Chief Secretary
Delhi Secretariat, I.P. Estate,
New Delhi.
2. The Secretary,
Information and Technology Department
9th Level, B-Wing,
Delhi Secretariat, I.P. Estate, New Delhi.
3. The Secretary,
Services Department,
7th Level, 'B' Wing,
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Item No. 10 O.A. No. 1116/2021
Delhi Secretariat, I.P. Estate, New Delhi
4. The Commissioner,
Excise, Entertainment & Luxury Tax,
L Block, Vikas Bhawan,
GNCT of Delhi.
5. Union Public Service Commission
Through its Secretary,
Dholpur House,
Shahjahan Road, New Delhi-110069
...Respondents
(By Advocate: Mr. Sameer Sharma)
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Item No. 10 O.A. No. 1116/2021
ORDER (ORAL)
MA No. 2196/2022
The present MA has been filed by the applicant for preponement of date. The said MA has become infructuous, since the matter is already taken up for hearing.
OA No. 1116/2021
This OA has been filed by the applicant seeking the following relief(s):-
"8. (a) Quash and set aside the impugned Order dated 13.04.2021 placed at Annexure-A/1;
(b) Direct the Respondents to induct the Applicant into statutory pension scheme under CCS (Pension) Rules notionally treating him to have been appointed as System Analyst in Planning Department, GNCT of Delhi from the date of occurrence of vacancy/initiation of recruitment process or from the date of determination of result/select panel for the limited purpose of grant of pension under CCS (Pension) Rules only and accept the option already submitted by the applicant.
(c) Direct the Respondents to collect necessary subscription under the Provident Fund Rules and the contribution collected from the Applicant under the new pension scheme and credit the same to his general provident fund account.4 Item No. 10 O.A. No. 1116/2021
(d) Pass any other order/relief/direction(s) as this Hon'ble Tribunal may deem fit and proper in the interests of justice in favour of the Applicants.
(e) Award costs of the proceedings."
2. Brief facts of the case are that the applicant has been a candidate towards the post of System Analyst in Planning Department, GNCT of Delhi towards an advertisement issued by UPSC in June, 2002. In the said advertisement, the post of System Analyst is mentioned at Sl. No. 5. The vacancy pertains to year 2000. The selection was purely interview based. The interviews were conducted on 15.01.2003 and the panel of candidates was also prepared, in order of merit, on the said date itself. The recommendations of UPSC from the main were sent to GNCTD in January 2003 which in turn issued offer of appointment. The said candidate however did not join and his offer of appointment was cancelled in September 2003. Pursuant to cancellation of offer of appointment, GNCT Delhi requested UPSC to recommend the next candidate from the select panel for appointment, in November 2003. UPSC, in turn, forwarded the next name i.e. the applicant 5 Item No. 10 O.A. No. 1116/2021 in February 2004, from the select panel already prepared in the year 2003.
3. In support of his argument, learned counsel for the applicant relies on OM No. 57/04/2019-P&PW (B) dated 17.02.2020 (Annexure- A/4). Subject of the same reads as under:-
"Subject: Coverage under Central Civil Services (Pension) Rules, 1972, in place of National Pension System, of those Central Government employees whose selection for appointment was finalized before 01.01.2004 but who joined Government service on or after 01.01.2004."
4. Therefore, further reliance has been put upon Clause 3 of the aforesaid OM by the counsel for applicant. Clause 3 reads as under:-
"3. 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 employees joined the Government service on or after 01.01.2004. A few illustrations where the selection was finalized before 01.01.2004 but actual joining took place on or after 01.01.2004 are as under:-
(i) The result for recruitment was declared before 01.01.2004 but the offer of appointment and actual 6 Item No. 10 O.A. No. 1116/2021 joining of the Government servant was delayed on account of police verification, medical examination etc.;
(ii) xxx xxx xxx
(iii) Candidates selected before 01.01.2004 through a common competitive examination were allocated to different Departments/organisation. While recruitment process was completed by some Departments/organisations on or before 31.12.2003 in respect of one or more candidates, the offers of appointment to the candidates allocated to the other Departments/organisation were issued on or after 01.01.2004.
5. Learned counsel for applicant also relies on Judgment of High Court of Uttarakhand at Nainital in the matter of State of Uttarakhand and others Vs Balwant Singh and Others in Special Appeal No. 330 of 2013 with State of Uttarakhand and others Vs Chandra Shekhar Singh and Others in Special Appeal No. 523 of 2013 dated 26.06.2014. He further relies on the judgment of Central Administrative Tribunal, Ernakulam Bench in OA No. 180/00020/2015 dated 15.02.2016 in the matter of Sheeba B and Shinoy Vs Union of India & Others. The operative portion of the same reads as under:-
"7. After hearing both sides this Tribunal is of the view since the limited prayer of the applicant is to treat the date of arising of the vacancy of the posts retrospectively as their date of posting for the purpose of pension, it appears to this Tribunal that the O.A. can be allowed as no other third party interest is put in jeopardy and as the applicants will not be eligible for other benefits like pay for the 7 Item No. 10 O.A. No. 1116/2021 aforesaid period. Hence it is declared that the applicants are deemed to have been appointed from the date the vacancy arose and that they shall be included in the CCS (Pension) Rules 1972. Respondents are directed to collect necessary subscription under the Provident Fund Rules and the contributions collected from the applicants under the new pension scheme shall be credited to their general provident fund account. It is made clear that no other financial benefits including increments and back wages have been granted to the applicants for the aforesaid period."
6. In the present case admittedly the applicant was placed under the waiting list in the selected panel and he was offered an appointment to the same in light of the fact that the one Sh. Sutrayya Rudrayya Swami (Roll No. 78) did not accept the offer of appointment till the stipulated time, as per rule, 6 months' time was given to him. Offer of appointment made to Sh. Sutrayya Rudrayya Swami was cancelled with the prior approval of Hon'ble Lt. Governor, Delhi and the order to this effect was issued by Department of Information Technology on 09.01.2004 along with the request to UPSC to send next name from the panel to fill one vacant post of System Analyst (Now Sr. System Analyst). UPSC recommended the name of the Applicant vide letter dated 11.02.2004.
7. He further relies upon decision of Hon'ble High Court of Delhi in W.P. (C) No. 756/2020 in the matter of Dr. 8 Item No. 10 O.A. No. 1116/2021 Davinder Singh Brar Vs Union of India & Ors. dated 28.01.2020. The operative portion of the same reads as under:-
"2. The brief facts are that the Respondents issued an advertisement dated 24th May, 2003 inviting applications for appointment to Group 'A' post of Dental Surgeon in the rank of Assistant Commandant in the Respondent/Border Security Force ('BSF'). In response to the said advertisement, the Petitioner applied and on being found eligible, was called to appear on 29th March, 2004 for an interview/medical examination, which he cleared. The Respondents issued an appointment letter to him on 16th October, 2004.
xxx xxx xxx
13. The Court is not persuaded that the above distinction can constitute a ground for denying to the Petitioner coverage under the OPS. The fact remains that for an advertisement that came to be issued on 24th May, 2003, the Respondents only concluded the selection process in February, 2004. It is not the case of the Respondents that this delay was attributable to the Petitioners. Further, the OM dated 13th April, 2018, referred to hereinabove, does not recognize any such distinction for the purpose of deciding eligibility of personnel to the OPS.
14. In that view of the matter, the impugned order dated 17th August, 2019 is hereby set aside. A direction is issued to the Respondents to extend the benefit of the OPS to the Petitioner in terms of the CCS (Pension) Rules, 1972 by issuing appropriate orders within a period of 12 weeks from today. The petition is disposed of in the above terms."
8. The above said decision was taken up in appeal in SLP No.173/2021 wherein the Hon'ble Apex court vide 9 Item No. 10 O.A. No. 1116/2021 its order dated 04.06.2021 dismissed the SLP against the aforesaid decision. Per contra, the respondents rely upon clause 7 (iii) page 22 of the aforesaid OM dated 17.02.2020. It follows as under:-
"(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."
9. Learned counsel for respondents tries to press upon this Tribunal that since he was in the waiting list only therefore it can be said that the process of selection was completed. He further relied upon decision of Hon'ble High Court in W.P. (C) No. 10306/2016 in the matter of Union of India & Ors. Vs Dr. Narayan Rao Battu and Anr. dated 27.03.2019. Operative portion of the same reads as under:-
"2. Pursuant to an advertisement issued by the respondent no.2/UPSC inviting applications for the post of Deputy Legislative Counsel (DLC) in Grade III of the Indian Legal Service on 26.04.2003, the respondent no.1 applied for the said post. This advertisement, besides prescribing the educational and other qualifications for the said post, also specified that the benefit of added years of service as admissible under Rule 30 of the CCS (Pension) 10 Item No. 10 O.A. No. 1116/2021 Rules, 1972 would be applicable to the post. Based on his application, the respondent no.1 was called for an interview by the UPSC on 25.09.2003 and subsequently, the UPSC recommended the name of one Mr. Ashok G. Pawade for appointment to the said post on 07.10.2003, while the name of the respondent no.1 was placed in the reserve list of candidates.
xxx xxx xxx
21. In our view, once the new pension scheme unambiguously provided that all new incoming appointees, whose appointment was made after a specific cut-off date i.e. 01.01.2004, would be squarely governed by its provisions, the said cut-off date could not be tinkered with, except in those limited circumstances when the court finds that the appointment was delayed due to any pending litigation, or due to lapses attributable to the employer.
22. Even though the learned counsel for the petitioners, by placing reliance on C. Jacob v. Director of Geology [(2008) 10 SCC 115] and Union of India v. M.K. Sarkar [(2010) 2 SCC 59] contends that the delay and laches of almost ten years in placing forth his demand disentitles the respondent from any reliefs, in view of our aforesaid conclusion that the respondent having been appointed after 01.01.2004 cannot claim to be governed by the new pension scheme, we do not deem it necessary to deal with this contention of the petitioners.
23. However, as noted in our order dated 27.03.2019, the petitioners ought to explain as to how they can deprive the respondent of the benefit of the added years of service promised 11 Item No. 10 O.A. No. 1116/2021 to him in the advertisement, pursuant whereto he was selected to the said post, for which purpose we have already directed the petitioners to file an additional affidavit and have listed the matter for hearing on 06.05.2019.
24. For the aforesaid reasons, the impugned order dated 18.04.2016 passed by the Central Administrative Tribunal in O.A.No.2945/2015 is set aside and the writ petition is allowed in these terms."
10. He further stressed upon the Para 24 of decision of Hon'ble Apex Court in Rakhi Ray and Others Vs High Court of Delhi and Others with Navin Kumar Jha Vs Lieutenant Governor and Others in Civil Appeals Nos. 1133-35 of 2010 with SLPs (C) No. 28488 of 2008 with No. 29248 of 2008, decided on 01.02.2010. Para 24 reads as under:-
"24. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. In the instant case, once 13 notified vacancies were filled up, the selection process came to an end, thus there could be no scope of any further appointment."12 Item No. 10 O.A. No. 1116/2021
12. In the present case, the facts as narrated in the Union of India & Ors. Vs Dr. Narayan Rao Battu and Anr. (supra) as relied upon by the respondents, are clearly distinguishable. In the above noted case, the Hon'ble High Court had no occasion to deal with the OM dated 17.02.2020 and illustrative situation contemplated therein.
13. The case of the present applicant who was already in the waiting list and was among the prospective candidate likely to be selected and the same panel was not exhausted, has not been dealt and as the notification is subsequent to the judgement dated 23.03.2019 passed by the Hon'ble High Court. Further reliance placed on the decision of Hon'ble Apex Court in the said case is also clearly distinguishable. In the facts and circumstances of the said case, the Hon'ble Apex Court (supra) dealt with the issue "whether a person whose name appears in the said list does not acquire any indefeasible right of appointment. In the present case, the decision was already taken by "Competent Authority"
to appoint the applicant may be though on a subsequent date based on the prior selection process and advertisement which was issued much before 13 Item No. 10 O.A. No. 1116/2021 31.12.2003. It can be seen that the case of the applicant stands on entirely different footing since the selected panel was not exhausted and he was appointed pursuant to the advertisement, therefore his selection was prior to 31.12.2003 as he was well under zone of consideration in wait list as a legitimate expectation.
Hence, case of the applicant finds merits to the effect that he is entitled to old pension scheme and not under the new pension scheme. In the event the applicant was not placed in wait list and panel had lapsed in that situation the applicant could not have claimed any benefit. A legitimate right had already accrued to the applicant when he was placed in wait list panel and selection process which was over prior to 31.12.2003.
14. In the peculiar facts and circumstances of the present case, decision rendered in W.P. (C) No. 756/2020 (supra) squarely applies to the present case too. Therefore, the present OA is allowed and the impugned order dated 13.04.2021 is set aside. It is further directed that the respondents may induct the applicant into statutory pension scheme under CCS (Pension) Rules notionally treating him to have been appointed as "System Analyst" in Planning Department, 14 Item No. 10 O.A. No. 1116/2021 GNCT of Delhi from the date of offer of the joining for the limited purpose of grant of pension to Old Pension Scheme under CCS (Pension) Rules only.
15. Needless to say that any payments made by the applicant or any contribution made by employer or employee other than G.P.F. shall be adjusted to the account of the applicant under Old Pension Scheme under G.P.F. as per rules by passing appropriate orders. The said exercise be carried out by complying all procedure formalities by the applicant within a period of two months from the date of receipt of copy of this order.
16. OA is allowed to the aforesaid extent. No order as to costs.
(Manish Garg) Member (J) /neetu/