Central Administrative Tribunal - Allahabad
Sanjay Singh vs Chairman Railway Board on 9 April, 2024
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Reserved on 22.03.2024
Pronounced on 09.04.2024
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH, ALLAHABAD
Original Application No.1006 of 2019
Present:
Hon'ble Mr. Mohan Pyare, Member- (Administrative)
Sanjay Singh, Son of Shri Ram Bakas Singh,
Aged about 50 years, 36/1 Subhash Road, Income Tax Lane,
Near Akur Public School Dehradun,
Uttrakhand.
...........Applicant
By Advocate: Shri Hari Bhawan Pandey
Versus
1. Union of India, Ministry of Railway,
Through the Chairman, Railway Board,
Govt. of India, Rail Bhawan, Raisina Road,
New Delhi, Pin Code-110001.
2. The Divisional Railway Manager,
Northern Railway, Moradabad
DRM Office, Civil Lines, Near Kapoor Company,
Moradabad (U.P.) Pin Code-244001.
------------Respondents
By Advocate: Shri Ajay Kumar Rai
ORDER
Delivered by Hon'ble Mr. Mohan Pyare, Member-(Administrative) Shri Hari Bhawan Pandey, learned counsel for applicant and Shri Ajay Kumar Rai, learned counsel for respondents are present.
2. By way of this original application the applicant has sought the following reliefs:-
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"(i) To issue a writ order or direction in the nature of certiorari quashing the impugned order dated 05.02.2019 passed by The Divisional Railway Manager Moradabad.
(ii) To issue an order or direction in the nature of mandamus directing the respondents to release all the retirement benefits including Pension, gratuity and leave encashment, etc.
(iii) To issue an order or direction in nature of mandamus directing the respondents to pay 18% interest from the due date to the actual date of payment.
(iv) To issue any other writ order or direction as this court may deem fit and proper under the circumstances of the case.
(v) To award cost."
3. The brief facts of the case are that the applicant was posted as Junior Engineer-2 (Drawing) in South-Eastern Railways on 05.02-1994 and worked there till the date 31.01.2000. He applied for the post of Section Engineer (P. Way) in Northern Railway through proper channel, after his selection he has been relieved by Deputy Chief Engineer (construction) S.E Railway Sambalpur vide office order no.16/2000 and applicant joined on the post of Section Engineer (P. Way) in Moradabad Division of Northern Railway. The applicant, while working on the post of Section Engineer (P. Way) Hardoi, applied for the post of Assistant Engineer in Uttaranchal Peyjal Sansadhan Vikas Evam Nirman Nigam. After qualifying written examination, applicant applied for permission before the Divisional Railway Manager Moradabad to participate in Interview Examination for the post of Assistant Engineer, Uttaranchal Peyjal Sansadhan Vikas Evam Nirman Nigam. Permission for participation in interview examination has been given by Divisional Railway Manager Moradabad. After receiving the appointment letter applicant has applied for his relieving before the appropriate authority. Finally the applicant has been relieved from the post of Section Engineer ( P.Way ) Hardoi ADEN/Hardoi letter no.S.E/2/2005 dated 28.06.2005 on the basis of referral letter of DRM Northern Railway Moradabad for joining on the post of Assistant Engineer. Applicant joined Uttaranchal Peyjal Sansadhan Vikas Evam Nirman Nigam as Assistant Engineer on 29-06-2005.
The applicant has put up his resignation from the post of Section Engineer (P. 3 Way) of Northern Railway Moradabad before The Divisional Railway Manager Northern Railway Moradabad on 12.06.2008. The applicant has given his detailed representation before the Divisional Railway Manager Northern Railway Moradabad claiming his retirement benefits on 15.07.2009. The applicant has also registered his grievances regarding his retirement benefits on Pensioner Portal of Govt. of India (PG Portal) vide registration no. DPPW/E/2017/05900 on 18.04.2017. In response of this letter a reply has been sent to the applicant from the office of Divisional Railway Manager Moradabad that his matter is already decided in the Pension Adalat 2016 and thus, the matter is disposed off. Vide letter Nо. 720-E/15-Pension/Ex-sep. way/SEPR/2008, dated 13.12.2016, Divisional Railway Manager Moradabad replied to applicant that pension is payable after 20 years service in case of Voluntary retirement and after 10 years in the case of Superannuation so as per rules, no pension is payable to him. But their reply is incorrect and not as per Railway Services Pension rules 1993. As Chapter V of Railway Services Pension Rules 1993 describes different type of Pensions in which following type of pensions are described.
1- Superannuation Pension.
2- Retiring Pension.
3- Pension on absorption in or under a Corporation, Company or body. 4- Invalid Pension.
5- Compensation retirement Pension.
6- Compulsory retirement Pension.
In the clause no. 53 of Railway Service Pension Rules 1993 following is mentioned.
53. Pension on absorption in or under a corporation, company or body-(1) A railway servant who has been permitted to be absorbed in a service or post in or under a corporation or company wholly or substantially owned or controlled by the Central Government or a state Government or in or under a body controlled or financed by the central Government or a state Government shall be deemed to have retired from service from the date of such absorption and subject to sub-rule(30, he shall be eligible to receive retirement benefits, if any from such date as may be determined, in accordance with the orders of the Railways applicable to him.
4(Authority: Railway Board's letter No. FIIII/2003PN1/25, dt.20.01.2005) Explanation: Date of absorption shall be-
i) In case a railway employee joins a corporation or company or body on immediate absorption basis, the date on which he actually joins that corporation or company or body.
ii) In case a railway employee initially joins a corporation or company or body of foreign service terms by retaining a lien under the railway the date from which his unqualified resignation is accepted by the railways. (2) The provision of sub rule (1) shall also apply to a railway servant who is permitted to be absorbed in joint sector undertaking, wholly under the joint control of Central Government and state Government/Union territory Administrations or under the joint control of two or more state Government/Union territory Administrations or under the joint control of two or more state Government or Union territory Administrations. (3) Where there is a pension scheme in a body controlled or financed by the Central Government in which a railway servant is absorbed, he shall be entitled to exercise option either to count the service rendered under the railways in that body for pension or to receive retirement benefit for the service rendered under the railways in accordance with the order issued by the railways. (Authority: Railway Board's letter No. 2011FIIII/1(I)9, dt. 23.09.2013) This clause is applicable to the case of applicant.
In the clause no 69 of Chapter VI of Railway Service Pension Rules 1993, requirement of minimum qualifying service and amount of pension is described, This clause is quoted as -
Clause 69(1) mentions that in the case of a Railway Servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half month's emoluments for every completed six monthly period of service.
(1A) The dearness allowance admissible on the date of retirement shall also be treated as emoluments for the purpose of sub-rule (1); (Authority: Railway Board's letter no. 2011/FIIII/1(1)9 dated. 23.09.2013.
"Clause 69(2) mentions that in case of a railway servant retiring in accordance with the provisions of these rule after completing of the qualifying service not less than 10 years, the amount of pension shall be calculated at fifty percent of emoluments or average emoluments whichever is more beneficial to him, subject to a minimum of three thousand and five hundred rupees per mensem and a maximum of forty five thousand rupees per mensem."
It's crystal clear from Railway Services Pension Rules 1993 that minimum requirement of service for Railway Pension is only 10 years. So their reply in response of applicant's application in Pension Adalat 2016 and PG portal registration no. DPPW/E/2017/05900 on 18.04.2017 is not correct as per Railway Services Pension Rules 1993. On 11.04.2018 the applicant received letter from Divisional Manager Moradabad that it is not possible to consider on 5 your pension related matter because it seems that you have not taken Technical Resignation before joining in Uttaranchal Peyjal Sansadhan Vikas Evam Nirman Nigam. Taking the reference of the letter dated 11.04.2018 which was sent to the applicant by DRM Mordadabad, Deputy Secretary, Cabinet secretariat (Directorate of Public Grievances) New Delhi, invited the views/ comments of the applicant in the matter, if any by 30th of April 2018. The applicant has sent his proper clarification on the letter dated 11.04.2018 and also explained that each and every time the respondents have not decided the matter before rejecting his grievances and due to unknown reasons Railways are not considering the request of the applicant in terms of the extant rules. The grievance has been rejected by the Deputy Secretary, Cabinet secretariat (Directorate of Public Grievances) New Delhi, on 29.05.2018 taking the ground of non submission of the Technical Resignation by the applicant, pension is not admissible as per Rules. Meeting with the Divisional Railway Manager Moradabad and the applicant was also conducted regarding the redressal of the grievance of the applicant. On 28.06.2018 the Applicant received a letter from Divisional Railway Manager Moradabad that it is not possible to consider the matter of pension due to non submission of Technical Resignation. The applicant has sent the representation to the Chairman Railway Board on 24.04.2018 and also on 10.08.20018 explaining all the relevant points along with the annexures of the relevant documents but no any response has been given by him till the date. On 14.09.2018 the applicant again participated in Pension Adalat 2018 and new reply has been given by the authority concerned that application given by the applicant regard to relieve from work could not be consider as Technical resignation. The reply received from Divisional Railway Manager Moradabad pension is payable to Employee
i) who has retired on his superannuation.
ii) If the employee has been granted compulsory retirement due to disciplinary reasons.
iii) If the employee has been retired from Railway service due to his physical disabilities.
6Aggrieved by the action of the respondents the applicant has filed the present original application.
4. Respondents in their counter reply have submitted that the applicant joined the railway department as Junior Engineer-2 (Drawing) in the South Eastern Railway, Mumbai in the year 1994 and worked till 2000 but not made said authority as a party in the array of parties during filing of original application. In absence of making correct authority as a party in the present original application vitiates all the case of applicant on the ground of non-joinder of necessary party and as such on this ground alone the original application is liable to be dismissed. The applicant has resigned from the post of Section Engineer (P. Way) provisionally on 26-06-2007 and finally on 12-06-2008 but the applicant came before this Court for redressal of his grievance in the year 2019 after more than 11 years of inordinate delay on the behest of submitting several representations for the same from last 11 years. In view of the fact, it is clear that the case of the applicant is highly time barred and due to this reason alone the original application is liable to be rejected.
5. The applicant joined the Uttaranchal Peyjal Sansadhan Vikas evam Nirman Nigam, Uttarakhand after giving resignation from the respondents department and joined the present department as a fresh appointment but the applicant filed the present original application treating his appointment in the present department as a "appointment under absorption" and seeking pension and pensionery benefits. For justifying his case, the applicant relied upon the Railway Service (Pension) Rules, 1953, Clause 53 and 69, DOP&T OM No. 28020/1/2010-Estt(C), Indian Railway RBE No. 21/2017 dated 07-03-2017 and IREM chapter XIX.
The Hon'ble Supreme Court in the latest judgment of Bses Yamuna Power Ltd. VS Ghanshyam Chand Sharma on 5 December, 2019 has held that the "On the issue of whether the first respondent has served twenty years, we are of the 7 opinion that the question is of no legal consequence to the present dispute. Even if the first respondent had served twenty years, under Rule 26 of the CCS Pension Rules his past service stands forfeited upon resignation. The Bombay High Court in the case of Iliyas Yusuf Naikwadi Vs. The State of Maharashtra Primary... decided on 31.08.2006 (2006(6) Mhlj 450) referred to the Hon'ble Apex Court judgment in the case of UCO Bank and Ors. Vs. Sanwar Mal, while dealing with the meaning and scope of and the differentiation between the terms "resignation" and "retirement" held thus:-
"We find merit in these appeals. The words "resignation" and 9 of 11 OA 1715 of 2017 "retirement" carry different meanings in common parlance. An employee can resign at any point of time even on the second day of his appointment but in the case of retirement he retires only after attaining the age of superannuation or in the case of voluntary retirement on completion of qualifying service. The effect of resignation and retirement to the extent that there are severance of employment but in service jurisprudence both the expressions are understood differently. Under the Regulations the expressions "resignation" and "retirement" have been employed for different purpose and carry different meanings. The pension scheme herein is based on actuarial calculation, it is a self financing scheme, which does not depend upon budgetary support and consequently it constitutes a complete code by itself. The scheme essentially covers retirees as the credit balance to their provident fund account is larger as compared to employees who resigned from service. Moreover, resignation brings about complete cessation of master and servant relationship whereas voluntary retirement maintains the relationship for the purposes of grant of retrial benefits, in view of the past service. Similarly, acceptance of resignation is dependent upon discretion of the employer whereas retirement is completion of service in terms of regulations/rules framed by the bank, Resignation can be tendered irrespective of the length of service whereas in the case of voluntary retirement, the employee has to complete qualifying service for retrial benefits. Further, there are different yardsticks and criteria for submitting resignation vis-a-vis voluntary retirement and acceptance thereof."
The Bombay High Court has ultimately observed that Hon'ble Apex Court has, therefore, clearly distinguished between the act of "resignation" from the act of "retirement" and has held that resignation bring about complete cessation of master and servant relationship whereas voluntary retirement maintains such relationship for the purposes of availing retrial benefits. 8 The CAT Madras in the case of S Charles vs D/O Post on 2 January, 2020 has held that Thus the claim of the applicant cannot be recognized to grant him the relief he prays for on account of the following:-
a) The case of the applicant falls squarely under Section 26 of the Pension Rules which relates to resignation and not premature voluntary retirement which are governed by some other rules. And, resignation means forfeiture of past services.
b) The qualifying service for pension at the time of his leaving the services is not less than a square of years whereas the services rendered by him even if his case is brought within the provisions of rule 48 of the pension rules is 20 years which admittedly the applicant does not fulfill.
c) The precedent relied upon by the applicant is misplaced and hence cannot be applied to the facts of the case of the applicant.
d) As rightly pointed out the applicant has risen from slumber after a score and 5 years (even if his first application is reckoned with and limitation stares at him) this delay could be condoned only when the applicant has otherwise a cast iron case which is not SO.
e) The judgment of the Apex Court in the case of BSES Yamuna Power Ltd., vs. Sh., Ghanshyam Chand Sharma & Anr., dated 05.12.2019 applies in all the square to the facts of this case and therein the Apex Court in unequivocal terms stated that once a case falls under Rule 26 of the Pension Rules there is no question of entitlement of any pension.
6. The respondents have filed written submission and reiterated the same facts mentioned in their counter reply and submitted that the applicant was selected and joined Uttarakhand state government through open market vacancy as direct recruits whereas Rule 53 of Railway (Service) pension Rules- 1993 provides provisions for an employee who is absorbed in another departments or establishments. The applicant is highly misconceived regarding Rule-53 of Railway Pension Rule-1993.
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7. In the rejoinder affidavit the applicant has almost reiterated the same facts which have been mentioned in the original application as well as in the written submission. The Railway Board has issued a master circular 53 for pension related matters through RBE No. 18/2021 circulated by letter no. D- 43/14/2019-F(E) III New Delhi Dated 10-03- 2021. This letter is issued by Director Finance (Estt.) Railway Board and addressed to General Manager, All Indian Railway, Production Unit. Metro railway Calcutta and others in this letter he mentioned "Pension rules are incorporated in the Indian Railway Establishment code vol (II) (1985 Edition) and the manual of Railway pension rules (1993 Edition) the manual Embodies pension rules and orders were issued from time to time in a self contained, however, has not been updated after 1993 and during this period, large number of provisions have either become obsolete or have been substantially modified by issue of numerous orders. Master circulars Part C is related with "Retirement benefits for the Railway Employees permanently absorbed in public sector undertaking". 3(A) - Clarification was issued that resignation from Railway service with a view to join public sector undertaking shall be treated as good and sufficient from the point of view of administration to claim retirement benefits (Authority F(E)III/66/PN/dated 21-09-66) 3(D)-Resignation with a view to absorption in public sector undertaking was treated as deemed retirement and amount of DCRG payable to the absorbed employee was exempted from income tax (Authority F(P)/67/PN1/18 dated 10.9.1971) 3(H)-Retirement benefits to a Railway servant who had applied on his own volition on the basis of his application in response to press advertisement for post in public sector undertakings and Autonomous bodies was also allowed the payment of retirement benefits as allowed to those who were permanently absorbed to those who were permanently absorbed after deputation in public interest. (Authority E (NG)/72/AP/12 dated 02-08-1972, E (NG) 11/73/AP/11 Dated 5-12-1975, E (NG) 11/77/AP/19 dated 24-05-1978). The Applicant has 10 relied upon the Railway Service (pension) Rules, 1953, clause 53 and 69, DOP&T no. 28020/1/2010-Estt (C), Indian Railway RBE No. 21/2017 Dated 07- 03-2017 and IREM Chapter XIV.
8. Heard both the counsel for the parties and verified the documents.
9. On verification of documents and arguments put forth by the parties the issue emerged "whether applicant was absorbed in the Payjal Sansadhan Vikas Evam Nirman Nigam, Uttarakhand or he has got re-appointment on the basis of open market competition". In the original application as well as in the written submissions the documents enclosed by the learned counsel for the applicant deals with Pension on absorption in or under a corporation, company or body. The case laws relied upon by the applicant in OA No.356 of 2008 and subsequently decided by Hon'ble High Court of Delhi in W.P.(C) No.742/2009 deals the case of an employee who was absorbed in RITES department, a sister organization of the railways. The issue involved in the case referred by the applicant is different from the issue in the present original application. Office memorandum No.28020/2/2018-Estt.(C) dated 27.08.2018 relied upon by the applicant clearly mentions in paragraph no.9 which is quoted below:-
"Applicability of Pension Scheme In cases where Government servants, who had originally joined government service prior to 0101.2004, apply for posts in the same or other Departments and on selection they are asked to tender technical resignation, the past services are counted towards pension if the new post is in a pensionable establishment in terms of Rule 26(2) of CCS(Pension) Rules 1972. They will thus continue to be covered under the CCS(Pension) Rules, 1972 even if they join the new post after 01.01.2004."
10. It is not the case of the applicant that the new job where he has joined is a pensionable or non-pensionable job. Secondly, it is clearly established that applicant has joined Payjal Sansadhan Vikas Evam Nirman Nigam, Uttarakhand as new recruit. It is not the case of absorption of applicant in the new job.
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11. In view of the above discussions, I am of the considered view that the applicant has not been able to establish his relief and hence the original application is liable to be dismissed on merit. Accordingly, the original application is dismissed. No Costs.
All the pending MAs stand disposed off.
(Mohan Pyare) Member (Administrative) /Neelam/