Central Administrative Tribunal - Kolkata
Avinandan Chatterjee vs M/O Defence on 9 September, 2022
1 -0.A./1182/2021& ors CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA Date of Order: 09.09.2022 Coram: Hon'ble Ms. Bidisha Banerjee, Judicial Member 0.A,/1182/2021 ( Kolkata ) " "" AVINANDAN CHATTERJEE vs ; oe iM/O DEFENCE 0.A,/1236/2021 ( Kolkata) oy DIPAKPAL | vs M/O DEFENCE 0.A./1237/2021 ( Kolkata ) "BIPLABDAS | | VS. . M/O DEFENCE For The Applicant(s): Mr. N Roy, Counsel For The Respondent(S): Mr. 8. Chatterjee, Counsel ORDER(ORALD 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 consent 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. For the sake of brevity, facts of OA. No. 1182/2021, is being delineated and discussed hereunder: .
| erences "Be QA STIB2/20Z1& 075 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) To issue direction upon the respondent fo quash cancel set aside 26.02.2021 forthwith.
b) To issue further direction upon the respondent authorities to. give old pension scheme forthwith. ;
c} To issue further direction upon fhe respondent authorities according to judgment the Hon'ble High Court the applicant entitle ofd pension acheme. The applicant prayer for old pension scheme may be given forthwith.
d} Leave may be granted fo file joint application under Rule (4)5)la) CAT procedure 1987,
e) Any other order or further order or orders has learned Tribunal deer fit and proper, f} To produce Connected Deparfnental Record ai the time of Hearing."
4. The applicant was appointed as Chargeman Grade ~IT (OP) in the discipline of Mechanical at Metal & Steel Factory, [shapore vide order dated 20.04.2004. Ld. counsel alleges that vacancy arose in the year 2001-2008 and that the department did not initiate recruitment process to the post in time due to which the applicant was appointed after 01.0 L.Od.
The applicant desires to be governed by Pension Rules 1993 and nat by the Pension Scheme of 2004, effected from 01.01.2004 in view of the fact that the vacancies in question against which they stand selected occurred before OL.0L.04.
8, At heaving, ld. counsel for the applicant would seek benefit of this ibunal's order in OLA 7381/2021 in Shri Ritesh Shukla and 26 Others versus UOT, rendered on 26.07.2021, which is axtracted as under for clarity:
"This-application has been preferred to seek the following reliefs: | "Sfa) Leave may be granted to the applicants to file this application Jointly under Rute 4{S}fa) of the Central Administrative Tribunal {Procedure} Rules, 193? as 3 - O.A./1182/202 4 ors because all the applicants' grievences dre common and they are challenging the same impugned orders.
{b} To quash and/or set aside the impugned office order dated 16" March, 2026 issued by the General Moneger, Gun Shell Factary, Cossipore By which te department has stated that the Old Pension Scheme is applicable in respect of the- incumbent anly 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 inspectar Rajendra Singh & Ors vs. Union of india Ors being Annexure A-7 of this original, duplication fe} To quash and/or set aside the stereatype impugned office arder stated
-- - 14.09.2020 Issued by the General Manager, Gun & Shell Factory, Cossipore whereby ond whereunder the benefit of Old Pension Scheme sought for by the applicants has been rejected on the ground which is clearly wolates the paragraph 18 of the judgment passed by the Delhi High Court in the case of inspector Rajendra Singh Ors-vs- Uaion of india & Ors. which is affirmed by the Hon'ble Supreme Court being Annexure A-9 of this ariginal epplicatian :
fd} To quash and/or set aside the impugned office mema dated ras 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 peregraph, the aforesaid office memo issued by the by the DOPT cannot be applicable being Annexure A-14 of this original application.
_ fe} Te declare that the affice memo. dated 27.02.2020 issued by the Government of Indio Department of Pension & PW Lok Nayak Bhawan, Khan Market, New Defhi-21000 under paragraph 4 whereby the DOPT hes said that in all cases where the results for recruitment were declared before 01.01.2004 ageinst 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 an or before 32.12.2003 against vacancies occurring before 01.01.2004 and are covered under the National Pension System an joining service an after 01,01 2003 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 ta 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 arder 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 fas been affirmed af the Hon'ble Delhi High Caurt'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 Caurt's order 27.03.2017 under pora 18 referred above and ta give benefit af coverage under OPS under CCS (Pension) Rules, 1972 in favaur 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 20.10.2008 which is appearing Annexure A-d of this original application.
if To pass an apprapriate order directing upan the DOP? te madify 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 Supreme Court vide order dated 08.01,2017 in SLP no, 39335/2017 decided by the 08 af the Hon'ble Supreme Court.
< {gi} To declare that all the present applicants those who are appainted in _ terms af the vacancies sanctionéd by the OFB vide office arder dated 20.10.2003 are entitled for the coverage under OPS under ccs{Pension) Rules, 197? and they are entitled for'such benefit by setting aside and/or quashing the stereotype impugned office _ order dated.14.09.2020 beiig Annexure A-9 of this Original Application."
2. Heard Id. Counsel for both sides.
3. The brief facts of the case are as under: . oo id. Counsel for applicants subrnits 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 20.30.2003 but they got appointed ofter 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 QF8 on 20.10.2003 and against said vacancies, all the applicants were selected and got . QU 2) appointment, therefore they have to be governed under Old Pension Scheme instead of Z i 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 af 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 resuits declared on ar before 34.12.2003 against vacancies occurring before 01.01.2004 and ore covered under NPS on joining service an 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 (il) & {ili} 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 ta inform you that your case has not been found fit by the Competent Authority for conversion from NPS to OPS. Hence, your representation dated 2g" 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 natification 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. UO! & Ors. rendered on 27.03.2017 wherein the . petitioners who were recruited after 01.01.2004, against vacancies that occurred before 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.
wogieltteag 5 OA /LI82/20218 ors
25. At hearing, ld. 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 . _petiieners wha had applied purseant ta 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 judginents passed by the Court as under:
fi} (if) (fit) fi) Patif Gopal Babulal & Ors. vs. Union of India & Ors, W.P. {Cc} . 4164672018;
Tanaka Ram & Ors. vs. Unian of india & Ors., 2019 (174) DRI 146 (08):
Shyam Kumar Choudhary and Ors. vs. Union of India being W.P, {C} No, 1358 of 2017 and Niraj Kumar Singh & Ors. vs. Union of india & Ors, WP. iC} No. 13129/2019, oe a 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 fs declined.
g. in the case of certain constables of the BSF, this Court by Rts judgment 'dated 12" February, 2019 in Tanaka Ram (supra) allowed the proyer af those Petitioners and permitted thenr to avail of the benefit of the Of Pension Scheme. it was field that the option to continue the Old Pensian 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 alsa pertinent to mention thet the Respondents aggrieved by the said judgment filed an SLP bearing No. 25228/2019 before the Apex Caurt, 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) Na. 1358 of 2017 ollowed similor petitions vide Judgment dated 03"
April, 2019 against which the Respondents had again filed SLP bearing no. B315392019 which was again dismissed on 27° September, 2019, The Respondents thereafter chose te 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, .
an Following the judgment of Shyam Kumar Choudhary {supra}, the learned predecessor Division Bench in Niraf Kumar Singh and Ors. Vs. Union of india & Ors. W.P.(C) No. 23129/2019 granted similar benefit to 17 petitioners who hac applied to the past of Sub-Inspectar in Central Police Organisations pursuant ta on 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 fine! result was declared in May, 2004, The said 17 petitioners were issued offer of appointment on oz" dune, 2005 and an accepting the same, the appointment letter was issued on 4" duly, 2005 for Joining the Sashastra Seema Bal.
6 O.A/1482/2021& ors
42. 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).
_ December, 2003, this Court is of the view thet 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.
'1. For the above reasans, the petitioners are allowed. Respondents are . directed ta extend the benefit of Old Pension Scheme to each of these Petitioners and pass consequential orders within o period of eight weeks from today.
46. -- 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 Na, 7373/2021 but the SLP was dismissed on 09.07.2021, . .
6. Therefore, fd. Counsel for applicant would vociferously contend that the issue has aitained a finality that, where the vacancies arose before 01.01.2004, vacancy notification was published and the récruitment process was also initiated before 01.01.2004, but the appointment letters could be issued only ofter 01.01.2004, the incumbents would still be governed by the Old Pension Rules of 1972, as held in ifie 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. UG! & Ors, referred to surpa. oe Therefore, the OA may be disposed of with a direction upon the respondent autharities 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. . &. However, ld. 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 QM, 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 con be taken in accordance with law. 2 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 of Central Govt. employees on the basis of a mitro distinction or no distinction at ail, for 4 O.A.f1UAB2/20218 ors Ye parity of reasons the applicants would deserve identically relief. The OM dated ' 47.02.2020 needs to be revisited.
10. Ordered accordingly. Let the motter be referred to the DOPT to consider the grievance of the present applicants as well as alf 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 sucht employees ought to be brought under the ambit of the Old Pension Bules of 1972 in the light of the decisions {supra}, and issue an appropriate order within three months from the date af receipt of the copy of this order." ;
6. tis submitted that the decision in Ritesh Shukla (OA/TB L202) and Shekhar Chandra Sarkar (O.A/350/00132/2021) have been implemented and their matters have been sent to the DOPT, Lud. epunsel 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 auch tisposal.
8, 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 OL.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 rate 30.06.2020, ag they appear to be identically circumstanced.
ny G. Appropriate order be issued within 8 months. No costs.
(Bidisha Banerjee) Member J) acetate tata NANI REEDED NERNEY EEE EEE OE INTEC Ct CN TEE et Ene rte eee rte