Central Administrative Tribunal - Ernakulam
Shaji Prakash vs M/O Information And Broadcasting on 28 May, 2019
1 OA 253-17
Central Administrative Tribunal
Ernakulam Bench
OA/180/00253/2017
Tuesday, this the 28th day of May, 2019.
CORAM
Hon'ble Mr. E.K.Bharat Bhushan, Administrative Member
Shaji Prakash, aged 45 years
S/o Rajan
Technician, Doordarshan Relay Centre, Punalur.
Residing at "Shanthi Bhavanam",
Chooranadu North, Anayad P.O.
Kollam District-690 561. Applicant
[Advocate: Mr.T.C.Govindaswamy rep by Ms.Kala]
versus
1. The Director General, All India Radio,
Prasar Bharati (Broadcasting Corporation of India),
Akashvani Bhavan, New Delhi-110 001.
2. The Additional Director General (E)
South Zone, All India Radio & Doordarsan
Swamy Sivananda Salai, Chepauk,
Chennai-600 005.
3. The Deputy Director (Engineering)
Doordarshan Maintenance Centre
Prasar Bharati Broadcasting Corporation of India
Kakkanad, Kochi-682 030.
4. Deputy Director (E)
Doordarshan Maintenance Centre
Prasar Bharati Broadcasting Corporation of India
Adoor, Pathanamthita-691 523. Respondents
[Advocate: Mr.N.Anilkumar, SCGSC]
The OA having been heard on 24th May, 2019, this Tribunal delivered the
following order on 28.05.2019:
2 OA 253-17
ORDER
This OA is filed by Sri Shaji Prakash, Technician, Doordarshan Relay Centre, Punalur, against the failure on the part of the respondents to pre-date his appointment to 28.3.2000 whereby he would be eligible for inclusion in the GPF Pension Scheme under CCS (Pension) Rules, 1972. The reliefs sought in the OA are as follows:
(i) Declare that the applicant is entitled to be treated to have joined the post of Technician, Doordarshan Kendra, Kochi on 28.3.2000 and to be governed under the old Pension Scheme/CCS (Pension) Rules, 1972 with all consequential benefits arising therefrom and direct the respondents accordingly.
(ii) Direct the respondents to deem the applicant to have joined the post of Technician, Doordarshan Kendra, Kochi on 28.3.2000 and to include the applicant under the old Pension Scheme/CCS (Pension) Rules, 1972 and direct further to grant all the consequential benefits thereof;
(iii) Direct the respondents to transfer the applicant's PF contributions hitherto deducted to the GPF account and direct further to grant all the consequential benefits arising therefrom.
2. The applicant had responded to a Notification issued in the year 1999 for filling up of three vacancies of Technicians at VLPT/TV Lakshadweep Island and T.V.Relay Centre, Kayamkulam as per office order of the 3 rd respondent dated 24.9.1999, a copy of which is available at Annexure A1. He was invited to appear for a test for the said post. After participating in the selection, the applicant was issued an offer cum appointment order dated 23.3.2000, a copy of which is available at Annexue A2. In terms of Para 12 of the said letter, the applicant was directed to report himself for duty immediately and "in any case not later than 31.3.2000" before the Station Engineer, Doordarshan Maintenance Centre, Cochin. The applicant states that he reported for duty on 28.3.2000 before the 3rd respondent as per the direction. After having worked for two days, 3 OA 253-17 he was asked to report at Kalpeni in Lakshadweep and in order to facilitate the urgent travel, the applicant was directed to take a ticket for travel by the Ship 'Tipu Sultan', scheduled to leave on 30.3.2000 from Cochin. He also carried a letter dated 30.3.2000 addressed to Lakshadweep Administration, a copy of which is available Annexure A3.
3. However, on 30.3.2000, the applicant was informed that there were no vacancies at Kalpeni and he need not proceed to Lakshasdep as directed earlier. Also, all the testimonials in original collected by the office of the 3 rd respondent were retained in the said office. These were returned on 17.1.2001 along with an assurance that he will be receiving intimation soon. This wait proved to be longer than expected and the applicant submitted a representation dated 24.9.2003 before the 3rd respondent, a copy of which is available at Annexure A4. Thereupon, he received a communication dated 5.11.2003 requiring him to furnish certain particulars along with an attestation form duly filled in. Thereupon, the applicant was again issued with an offer cum appointment order dated 21.1.2004 (Annexure A6) and the applicant accepted the appointment order and reported for duty on 27.1.2004. He was directed to proceed to Chetlet Island and for this purpose, a seat under emergency quota was released. The applicant joined at Chetlet on 30.1.2004 as per Annexure A8. He was later transferred to Punalur in 2007 where he is continuing.
4. As no employee's contribution towards pension was deducted from him from the beginning, the applicant was under the bonafide belief that he stood included in the GPF/CCS Pension Rules, 1972. However, during the year 2014, he was informed that he would not be included under the old pension scheme on the ground that he had joined service after 1.1.2004. The applicant submitted a 4 OA 253-17 representation on 21.4.2014 to the second respondent (Annexure A9). The applicant also received a copy of legacy data in respect of Prasar Bharati for Doordarshan Maintainance Centre, Adoor where the applicant had been working, dated 2.3.2017, a copy of which is available at Annexure A14. It is clear from the same and also from Annexure A15 that upto March, 2016, no employer's contribution had been taken and there was recovery only from the employee's salary which means that till February 2016, the applicant was under CPF Scheme.
5. As grounds, the applicant presses the point that for all practical purposes, he had been appointed and had joined the service as early as 28.3.2000. Personnel selected through the same recruitment process had all joined in December, 1999 itself. There is evidence to prove that he had joined as Technician at Doordarshan Maintenance Centre at Kochi on 28.3.2000 and thus is entitled to be included under the CCS (Pension) Rules, 1972. This position cannot be changed by the respondents unilaterally after a period of 12 years, bringing him under the less advantageous new pension scheme. It was owing to the arbitrary action on the part of the respojndents that he had been kept away from duty after having accepted the offer of appointment and after having joined duty on 28.3.2000. The applicant cannot be legally discriminated against, in the matter of inclusion in the old pension scheme vis-a-vis his appointment by virtue of the same recruitment process.
6. The respondents have filed a reply statement wherein they have not disputed the facts of the case. It is admitted that the applicant had indeed reported for duty at Doordarshan Maintenance Centre, Kochi on 28.3.2000 in response to the offer cum appointment order at Annexure A2. He was told to 5 OA 253-17 proceed to Lakshadweep Island as the selection of the applicant had been against the post of Technician there. But he was not allowed to join there as there had been "some confusion in regard to availability of actual vacancies at LPT Kalpeni". As a result of this, the offer made to applicant had become redundant and he was informed that he will be considered when another vacancy arose.
7. It is admitted that the original certificates and documents belonging to the applicant had been collected by the Doordarshan Maintainenance Centre, Kochi on 28.3.2000. It is further admitted that it was on account of oversight that the same were returned to the applicant only on 17.1.2001. On 20.1.2004, an offer of appointment was issued to the applicant and on accepting the same, he reported for duty at Chetlet on 30.1.2004. This order of appointment was issued on 26.2.2004. The contention of the applicant that he had joined duty on 28.3.2000 and would be eligible for inclusion under CCS (Pension) Rules, 1972, he being a pre 1.1.2004 appointee, is denied, stating that he had actually joined duty only on 30.1.2004. Thus, although the process of recruitment had been conducted in the year 1999 and an offer of appointment issued to the applicant on 25.10.1999, he was admitted on rolls only on 30.1.2004 as per the offer of appointment dated 21.1.2004.
8. Heard Smt.Kala, representing Sri T.C.Govindaswamy, learned counsel for the applicant and Sri N.Anilkumar, learned SCGSC for the respondents. All pleadings, both oral as well as documentary, were examined.
9. The facts of the case are not in dispute. The process of recruitment had been initiated and concluded in 1999. As per Annexure A2, an offer of appointment was extended to the applicant on 23.3.2000 with a clear direction that in the event the applicant agreed with the terms and conditions, he should 6 OA 253-17 report for duty immediately and not later than 31.3.2000. Accordingly he had joined duty on 28.3.2000. Thereupon, a strange set of circumstances arose. The applicant was directed to proceed to Kalpeni Island and subsequently told that there had been no vacancy to accommodate him. All documents and testimonials were also retained by the respondents and returned to the applicant only after a year. Subsequently a fresh offer of appointment was issued to him on 20.1.2004 which was nearly 4 years afterwards.
10. It does not require much analysis to see that there had been clear negligence on the part of the respondents as a result of which the applicant, a deserving job seeker, was kept in suspended animation for nearly 4 years. Apart from the obvious injustice involved in this, the delay has also deprived him of a chance to be included under the more advantageous old Pension Scheme available to employees who joined service prior to 1.1.2004.
11. Learned counsel for the applicant brought to my notice the following judgments, wherein the issue of inclusion of employees under the old Pension Scheme had been considered favourably:
(i) Order dated 28.6.2013 of CAT Ernakulam Bench in OA No.724 of 2012.
(ii) Order dated 15.2.2016 of CAT, Ernakulam Bench in OA No.20 of 2015.
(iii) Judgment dated 3.2.2011 of the High Court of Delhi in W.P.(C) No.5983 of 2010.
(iv) Judgment dated 27.3.2017 of the High Court of Delhi in W.P.(C) No.2810 of 2016.
12. In the judgments quoted also, due to no fault of the applicants therein, they had been made to suffer. The facts of this case are similar to the cases which had been adjudicated.
7 OA 253-17
13. On consideration of the facts before this Tribunal, a conclusion is arrived at that the OA has merit. It is hereby directed that the appointment of the applicant is to be treated as from 28.3.2000 for inclusion in the old Pension Scheme/CCS (Pension) Rules, 1972. It is clarified that this pre-dating is for the sole purpose of inclusion in the old Pension Scheme and the applicant will not be eligible for any arrears or allowances for the period he did not render service. Order to this effect is to be issued by the respondents within 30 days of receipt of this direction. The OA stands disposed of.
[E.K.Bharat Bhushan] Administrative Member aa.
8 OA 253-17 Annexures filed by the applicant:
Annexure A1: Copy of letter bearing No.CHN/DMC/2(4)/99-A/3276 dated 24.9.1999 issued from the office of the 3rd respondent (earlier designation Station Engineer).
Annexure A2: Copy of offer-cum-appointment order bearing No.CHN/DMC/2(4)99-A/1089 dated 23.3.2000 issued from the office of the third respondent.
Annexure A3: Copy of letter bearing No.CHN/DMC-54(5)99-A dated 30.3.2000, addressed to the Secretary, Lakshadweep Administration, Willingdon Island, Kochi.
Annexure A4: Copy of representation dated 24.9.2003 addressed to the 3rd respondent.
Annexure A5: Copy of letter bearing No.CHN/DMC/2(4)/2003-A/4692 dated 5.11.2003 issued from the office of the 3rd respondent. Annexure A6: Copy of offer-cum-appointment order No.CHN/DMC/2(4)/2003-A/291 dated 21.1.2004 issued by the third respondent.
Annexue A7: Copy of requisition bearing No.CHN/DMC/54(5) 2003-A dated 27.1.2004 issued by the 3rd respondent.
Annexure A8: Copy of order bearing No.CHN/DMC/14(4)/2004-A/741 dated 26.2.2004.
Annexure A9: Copy of detailed representation dated 21.4.2014 addressed to the 2nd respondent.
Annexure A10: Copy of letter bearing No.DMC/ADR/7(4)/2014-S/376 dated 29.4.2014 addressed to the 2nd respondent.
Annexure A11: Copy of reminders dated 31.12.2014 addressed to the office of the 2nd respondent.
Annexure A12: Copy of reminder dated 4.8.2015 addressed to the office of the 2nd respondent.
Annexure A13: Copy of reminder dated 21.11.2016 addressed to the office of the 2nd respondent.
Annexure A14: Copy of legacy data in respect of Doordarshan Maintenance Centre, Adoor, bearing PAO/DDK/CHN/NPS/2016-17/2973 dated 2.3.2017 issued by the Sr. Accounts Officer in the office of the Pay & Accounts Office, Ministry of Information & Broadcasting, Doordarshan Kendra, Chennai along with a certificate.
Annexue A15: Copy of the subscription details from the Doordarshan Maintenance Centre, Adoor dated 14.3.2017 issued by the Deputy director (E), Doordarshan Maintenance Centre, Adoor.
Annexure A16: Copy of communication bearing No.CHN/DMC/18(15)A/ (RTI)/2017-18/1943 dated 15.6.2017 along with its enclosure issued by the 3rd respondent.
Annexure A17: Copy of communication received from the respondents under the Right to Information Act, bearing No.CHN/DMC/18(15)A(RTI)/2017-18/1732 dated 24th April, 2017.